461 F.Supp.3d 80
S.D.N.Y.
2020
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Background

  • Plaintiffs (State and NGO coalitions) challenged Commerce Secretary Ross’s addition of a citizenship question to the 2020 census; after an eight‑day bench trial the district court enjoined the question as arbitrary and pretextual and the Supreme Court affirmed on pretext grounds.
  • After the Supreme Court decision, NGO Plaintiffs obtained new evidence (including documents linked to redistricting specialist Thomas Hofeller) suggesting political motives and possible false or misleading testimony by witnesses (notably Mark Neuman and John Gore).
  • Defendants later disclosed that they had inadvertently failed to produce a large set of documents collected during discovery — ultimately at least ~900 documents (3,700 pages) — due to a document‑review/custodian coding error.
  • NGO Plaintiffs moved for sanctions and additional discovery under Rule 26(g), the Court’s inherent authority, and Rule 37, seeking further findings, waiver of privileges, and fees/costs.
  • The Court declined to impose sanctions or order further discovery based on the new evidence about witness conduct (no clear and convincing proof of a scheme/fraud on the court and no prejudice given Plaintiffs’ complete victory), but found Rule 37(b)(2)(C) reimbursement appropriate for costs/fees caused by Defendants’ failure to produce documents.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Rule 26(g) sanctions and discovery are warranted for deficient discovery certifications Counsel-certified productions were incomplete and sanctionable; further discovery needed to identify responsible senior officials Rule 26(g) applies to signers (line attorneys); no prejudice because Plaintiffs already prevailed and settled most fees Denied — Rule 26(g) sanctions inappropriate (no prejudice; certifications at issue were by line counsel)
Whether the Court should impose sanctions under its inherent authority for alleged false testimony and a fraud on the court (Neuman, Gore) New documents show coordination with Hofeller and misleading testimony that may have concealed political motives; inherent powers needed to punish and investigate Alleged falsehoods are not shown by clear and convincing evidence to be part of a scheme; courts require bad faith and fraud on the court standard Denied — no clear and convincing evidence of bad‑faith scheme; restraint advised and further discovery not proportional
Whether Rule 37(b) sanctions are available for failure to obey orders to complete the Administrative Record Failure to produce numerous collected documents violated court orders to complete the administrative record and warrants sanctions/remedies Producing the administrative record differs from ordinary discovery; no discrete order to produce these specific documents Granted in part — Rule 37(b)(2)(C) applies; Defendants must reimburse NGO Plaintiffs’ reasonable fees/costs caused by the production failures
Whether additional discovery or remedial orders (waiver, adverse findings) are warranted Further discovery could identify responsible actors and justify broader sanctions (waivers, factual findings) Additional discovery would be disproportionate; Plaintiffs already obtained full relief and Congress/oversight bodies are better suited to investigate Denied — no further discovery or expanded sanctions; parties to meet and confer to quantify fee award

Key Cases Cited

  • New York v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502 (S.D.N.Y. 2019) (district court opinion enjoining the citizenship question as arbitrary and pretextual)
  • Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (Supreme Court affirming pretext ruling)
  • Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (scope and restraint in exercising a court’s inherent sanctioning powers)
  • Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) (inherent power to impose discovery sanctions)
  • DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124 (2d Cir. 1998) (bad faith prerequisite for inherent‑powers sanctions)
  • SEC v. Smith, 710 F.3d 87 (2d Cir. 2013) (bad‑faith requirement for sanctions under inherent authority)
  • Gleason v. Jandrucko, 860 F.2d 556 (2d Cir. 1988) (perjury or nondisclosure by witness alone does not constitute fraud on the court)
  • In re Grievance Comm. of U.S. Dist. Court, Dist. of Conn., 847 F.2d 57 (2d Cir. 1988) (limits on treating untruthful deposition testimony as fraud on the court)
  • Cine Forty‑Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062 (2d Cir. 1979) (range of Rule 37 sanctions and culpability considerations)
  • Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357 (2d Cir. 1991) (Rule 37 sanctions available for disobedience of clearly articulated court discovery orders)
  • Diaz‑Fonseca v. Puerto Rico, 451 F.3d 13 (1st Cir. 2006) (Rule 37 sanctions may follow from failure to produce an administrative record)
  • S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123 (2d Cir. 2010) (district court’s broad discretion in selecting just Rule 37 sanctions)
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