Magistrate Awards Attorneys’ Fees and Threatens Adverse Inference Jury Instruction to Force Defendants’ Compliance with Outstanding Production Requests and Discovery Orders

McDowell v. Gov’t of Dist. of Columbia, 233 F.R.D. 192 (D.D.C. 2006)

As a result of the difficulties faced by plaintiff in trying to obtain discovery in this case, plaintiff sought an order granting summary judgment against the District as to the “practice of allowing in the field strip searches or searches that involve viewing or touching inside the clothes searches.” Plaintiff also sought costs and attorneys’ fees incurred as a result of defendants’ failure to produce the requested discovery materials, which included a spreadsheet and certain arrest forms referred to as “PD 163s.”

Throughout the course of discovery, including 11 motions to compel, plaintiff had two primary complaints. First, that the spreadsheet never captured all the data that she sought and second, that defendants had failed to produce the corresponding PD 163’s. In fact, even the most recent spreadsheet produced by defendants failed to list certain arrest events that plaintiff knew existed by virtue of the fact that plaintiff already had in her possession the corresponding PD 163’s.

Magistrate Judge John A. Facciola observed that, by requesting summary judgment as to her claim that defendants engage in a practice of allowing improper strip searches, plaintiff was in essence seeking a default judgment. The judge noted that courts “must take care, especially when contemplating a litigation-ending sanction, to ensure that it is proportional to the underlying conduct.” This care requires consideration of three factors: 1) the resulting prejudice to the opposing party, 2) the resulting prejudice to the judicial system, and 3) the need to deter such behavior in the future.

As to the first factor, the judge found that defendants’ conduct was prejudicial to plaintiff’s ability to establish the necessary elements of a Monell claim. In order to prove that defendants had a policy of deliberate indifference, plaintiff needed to show that the behavior complained of was widespread. Plaintiff’s inability to obtain the desired PD 163’s hindered her ability to make this showing.

As to the second factor, the judge found that, although defendants’ actions required an inordinate amount of the court’s time, trial dates were not yet been set and “the disruption of the court’s calendar has not been as great as it could have been.”

As to the third factor, the court noted that the choice of sanction under Rule 37, whether mild or severe, is always guided by the concept of proportionality; between offense and sanction. The court concluded that the defendants’ actions in this case were “not so flagrant and egregious as to be in bad faith, i.e., with a malicious or evil intent.” He found that defendants were guilty only of: 1) providing overly broad responses to plaintiff’s requests for production of documents, and 2) operating in an environment that is short both on funding and staffing. “These two reasons explain completely defendants’ inability to comply with plaintiff’s discovery demands.” The court further commented: “Indeed, of all the things one may say about the District’s behavior in this case, that it was the product of a crafty, malevolent intelligence, is not of them.”

The court concluded that the discovery dispute could be adequately remedied by the imposition of attorneys’ fees and costs against defendants and the possibility of a jury instruction, and ordered the following relief:

Defendants will, therefore, be required to submit a current projection with the following information: 1) number of PD 163’s remaining unretrieved, 2) hours required for one person to complete the task, 3) projected completion date for retrieval of half of the remaining PD 163’s, and 4) projected completion date for retrieval of all of the remaining PD 163’s.

Once that is done, I will set an inexorable deadline for the production of the remaining 163’s. If that deadline is not met, I will recommend to Judge Roberts that he give the jury the following instruction:

You are instructed that, in this case, as you have heard, the District of Columbia was not able to produce all the arrest reports in which the named officers were either arresting officers or assisted in making a certain arrest. It is well respected principle of the law that a party’s failure to produce evidence in its possession or control permits you to conclude that, had it been produced, it would have been unfavorable to that party. In this case, you may find that the District’s failure to produce the arrest reports permits the conclusion that the District of Columbia had a policy and practice of having its officers make strip searches of persons, such as plaintiff, who were arrested by those officers.


  • This case is a sanctions case that illustrates how much discovery abuse federal courts will permit. This case does not seem to involve a motion for summary judgment though the court and perhaps the moving party may have used that term. Summary judgments and sanctions motions involve different concepts, standards, rules etc.

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