Lisa Olivarez v. GEO Group, Inc.
844 F.3d 200
| 5th Cir. | 2016Background
- Plaintiff Olivarez alleged repeated sexual assaults by a GEO employee while detained; defendants contended encounters were consensual.
- GEO recorded at least three of Olivarez’s inmate phone calls that contained statements arguably suggesting consent.
- GEO’s and Valladarez’s counsel signed Rule 26(a)(1) initial disclosures but did not list or produce the audio recordings.
- Counsel played the recordings during Olivarez’s deposition and later provided opposing counsel online access.
- Olivarez moved for sanctions under Rules 26 and 37 for failure to disclose; the district court held the recordings were not "solely for impeachment," ordered $1,000 fines against each attorney, and later denied reconsideration.
- Appellants appealed, arguing (1) the recordings were solely impeachment evidence and not subject to disclosure, and (2) any nondisclosure was substantially justified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recordings must be disclosed under Rule 26(a)(1) or are exempt as "solely for impeachment" | Recordings are substantive because they tend to show consent, a central disputed issue | Recordings used only to impeach credibility and thus fall within the impeachment exception to disclosure | Recordings were at least partly substantive (tend to prove consent) and thus had to be disclosed under Rule 26(a)(1) |
| Whether attorneys had "substantial justification" for omission under Rule 26(g)/Rule 37 | Counsel reasonably relied on out-of-circuit authority and honestly intended to use recordings solely for impeachment | Counsel should have applied controlling Fifth Circuit precedent and disclosed items with substantive value | No substantial justification; reliance on nonbinding out-of-circuit cases was unreasonable given Fifth Circuit precedent |
| Whether district court abused its discretion in imposing sanctions | Sanctions were excessive and applied under a novel standard | Sanctions appropriate under Rules 26(g)(3) and 37 and the court’s inherent authority | No abuse of discretion; sanctions affirmed |
| Jurisdiction/appealability | N/A | N/A | Final dismissal with prejudice made the order appealable under 28 U.S.C. § 1291 |
Key Cases Cited
- Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) (evidence that tends to establish truth of key issues is not "solely" impeachment and must be disclosed)
- Baker v. Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357 (5th Cir. 2008) (surveillance evidence with impeachment value can be substantive)
- Topalian v. Ehrman, 3 F.3d 931 (5th Cir. 1993) (district courts have broad discretion to impose sanctions)
- Procter & Gamble Co. v. Amway Corp., 280 F.3d 519 (5th Cir. 2002) (abuse of discretion standard for sanctions; sanctions review limited)
- Pierce v. Underwood, 487 U.S. 552 (U.S. 1988) ("substantially justified" means justified to a degree that could satisfy a reasonable person)