MEMORANDUM AND ORDER
Presently before the Court is Defendant Governor Mifflin School District’s Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 45 (Doc. No. 15). Plaintiff Andrea Coleman-Hill has opposed this motion (Doc. No. 17). The Court held oral argument on October 8, 2010.
Defendant’s Motion for Sanctions arises out of the conduct of Plaintiffs counsel, Robin J. Gray, Esq. As will be detailed herein, in her zeal to build her client’s ease, Ms. Gray circumvented the Rules of Civil Procedure, and resorted to “self-help” in order to resolve a perceived deficiency in Defendant’s discovery responses. Perhaps most disturbingly, Ms. Gray did so because she presumed that the Court was without authority and/or inclination to enforce the Rules of Civil Procedure to rectify perceived deficiencies in Defendant’s discovery response.
As more fully set forth herein, Defendant’s Motion for Sanctions is GRANTED IN PART and DENIED IN PART.
I. FACTS
The underlying action involves alleged racial discrimination against Plaintiff Andrea Coleman-Hill (“Plaintiff’) by her employer, Defendant Governor Mifflin School District (“the District”). Plaintiff alleges that the District’s superintendent, Dr. Mary T. Weiss, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., by mistreating Plaintiff on account of her race.
In the course of discovery, Ms. Gray served Requests for Production of Documents on the District’s counsel, Jonathan P. Riba, Esq., and conducted depositions. The Document Requests directed to Defendant were pursued in an unorthodox fashion. At least some of the Document Requests were set forth in a lettеr dated July 21, 2010. In that letter, Ms. Gray requested “[a]ny and all information, correspondence, emails, phone messages from Dr. Weiss to individual members of the Board regarding my client form [sic] the start of her employ with the school District until the present.” (Pl.’s Am. Answer to Def.’s Mot. Sanctions Ex. D, at 2). Mr. Riba timely responded. (Def.’s Mot. Sanctions Ex. B, at 8). It is this response that Plaintiff later, and unilaterally, determined to be deficient.
Thereafter, on August 16, 2010, Ms. Gray deposed Ms. Rachel Dombrowski, who served as the Distriсt’s Director of Technology. Because of her position, Ms. Dombrow-ski had access to all documents that are
At some point in time after Ms. Dombrow-ski’s deposition, Ms. Gray determined that “[t]he information given to Plaintiff by Defendant [in response to the Request for Production of Documents] did not add up.” (Pi’s Br. in Resp. to Def.’s Mot. Sanctions 8). Thus, on August 24, 2010, Ms. Gray served a subpoena duces tecum on Ms. Dombrowski, requesting “any and all emails from the email archives of Dr. Mary T. Weiss’ Governor Mifflin email box regarding emails to and from the school board, the music program issue and any other emails regarding Andrea Coleman-Hill.” (Def.’s Mot. Ex. A, at 4).
The subpoena served was improper and/or deficient, in multiple respects. First, the subpoena was dirеcted to an employee of the District, and sought production of the District’s documents. The Federal Rules of Civil Procedure direct that an opposing party’s documents should be obtained through a properly served Request for Production of Documents, served on counsel of record for the party.
Second, although the subpoena ostensibly was served to address the presumed withholding of documents that Plaintiff “knew” to exist, it went further than the Request for Production of Documents. The Request sought communications between the Board and Dr. Weiss relating to Ms. Coleman-Hill. The Dombrowski subpoena goes further, and seeks email communications “regarding emails to and from the school board [and] the music program issue.” (Def.’s Mot. Ex. A, at 4).
Finally, Ms. Gray failed to properly fill out the subpoena by neglecting to specify a date and time for the production of the requested documents, and merely wrote “See Attached” on the form. (Def.’s Mot. Ex. A, at 2). In a letter accompanying the subpoena, Ms. Gray asked for production “at [Ms. Dombrowski’s] earliest convenience.” (Def.’s Mot. Ex. A, at 1). According to Ms. Gray, she served the subpoena on Ms. Dombrowski and on Mr. Riba, simultaneously, via first class mail. Thus, Mr. Riba did not get prior notice of the subpoena, and thus had no opportunity to lodge objections. By the time Mr. Riba objected to the subpoena on August 27, 2010 (Def.’s Mot. Ex. D), Ms. Dombrowski had already provided voluminous dоcuments to Ms. Gray, including at least three attorney-client privileged documents.
On September 8, 2010, the District filed the instant motion for sanctions for Ms. Gray’s inappropriate use of a subpoena. Defendant seeks sanctions as follows: exclusion of the documents provided by Ms. Dombrow-ski directly to Ms. Gray; admonishment of Ms. Gray to comply with the Federal Rules of Civil Procedure; an affidavit by Ms. Gray that all documents provided by Ms. Dom-browski have been furnished to defense counsel; and payment of defense counsel fees associated with the instant motion.
At oral argument, Ms. Gray conceded that a motion to compel was appropriate for addressing the District’s perceived failure to comply with her Requests for Production of Documents. Nevertheless, Ms. Gray did not file a motion to compel, asserting that she presumed that the District would continue to be non-compliant with its discovery obligations. Most disturbingly, Ms. Gray stated thаt she presumed that this Court was without the power and/or the inclination to compel the District’s compliance.
II. LEGAL STANDARDS
A. Proper Use of Subpoena Power.
Under Federal Rule of Civil Procedure 45, a party may obtain documents from a non-
A party issuing a subpoena to a non-party for the production of documents during discovery must provide prior notice to all parties to the litigation. Id.; Spencer v. Steinman,
As compared to other discovery tools, subpoenas present unique issues, because they invoke the Court’s power:
The risks attached to the misuse of the subpoena power are great. Under this delegation, an attorney is licensed to access, through a non-party with no interest to object, the most personal and sensitive information about a party. By failing to receive prior notice of the information sought from the non-party, a party is deprived of its greatest safeguard under the Rule, i.e., the ability to object to the release of the information prior to its disclosure. Therefore, the loss of the opportunity tо object prior to the release of the information caused injury to [the defendant]. Moreover, misuse of the subpoena power is not limited to the harm it inflicts upon the parties, it also compromises the integrity of the court’s process. When the power is misused, public confidence in the integrity of the judicial process is eroded. Therefore, the failure to provide prior notice to [the defendant] of the subpoenas cause[s] injury to the public.
McCurdy,
B. Enforcing Compliance with Rules of Civil Procedure.
“It is well-established that the scope and conduct of discovery are within the sound discretion of the trial court.” Guinan v. A.I. duPont Hosp. for Children, No. 08-228,
“Sanctions must, of course, be proportionate to the violation.” Mid-Atlantic Constructors,
Many sanctions (e.g. admonishment and compelling a party to file an affidavit) are liberally ordered by the court. Where a party’s conduct goes beyond a “mere violation” of a discovery obligation, courts can impose additional, more severe sanctions.
“[T]he exclusion of critical evidence is an ‘еxtreme’ sanction, not normally to be imposed absent a showing of willful deception or ‘flagrant disregard’ of a court order by the proponent of the evidence.” Quinn v. Consol. Freightways Corp. of Del.,
In employment cases such as this one, exclusion of critical evidence is viewed as an even more extreme sanction. Both the Supreme Court and the Third Circuit have observed that plaintiffs face “proof problems” in employment discrimination cases. See U.S. Postal Serv. Bd. of Governors v. Aikens,
In considering whether the exclusion of evidence is an appropriate sanction for failure to comply with discovery duties, we must consider four factors: (1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or wilfulness in failing to comply with a court order or discovery obligation.
Nicholas v. Pa. State Univ.,
III. DISCUSSION
A. Ms. Gray’s Misconduct
Ms. Gray failed to properly notify the District of her intent to serve the subpoena. The subpoena was served contemporaneously on Ms. Dombrowski and Mr. Riba, thus making it impossible to timely object before admittedly privileged documents were furnished.
Moreover, Ms. Gray mishandled discovery by not completely filling out the subpoena to Ms. Dombrowski. Ms. Gray failed to specify a time and place for production, and instead sought production “at your earliest convenience.” The Court is troubled by Ms. Gray’s admission that this violation of Rule 45 apparently was not a one-time mistake; rather, Ms. Gray readily admitted that she routinely fills out all subpoenas in this manner.
Further complicating matters is that Ms. Dombrowski apparently did not keep a record of precisely what documents were provided to Ms. Gray. As noted, Ms. Gray represents that she received 182 pages of documents from Ms. Dombrowski on August 31, 2010. Thereafter, Ms. Dombrow-ski endeavored to “re-create” her search at Mr. Riba’s request, and provided Mr. Riba with 284 pages of documents on September 2, 2010.
During оral argument, Ms. Gray argued that proceeding in this fashion was justified because she needed to build her case, and because she had already requested the docu-
Moreover, Ms. Gray’s misconduct is even more egregious because she invoked — and misused — subpoena power. As noted above, subpoenas represent the delegation of authority to attorneys. The abuse of subpoena power is most dangerous because it threatens to erode public confidence in the judicial system. Attorneys must understand the high degree of trust that is imposed upon them, and must conduct themselves with the utmost care when using the Court’s subpoena power. McCurdy,
B. Appropriate Sanctions
As noted above, Defendant asks the Court to impose various sanctions on Plaintiff: exclusion of the documents provided by Ms. Dombrowski directly to Ms. Gray; admonishment of Ms. Gray to comply with the Federal Rules of Civil Procedure; an affidavit by Ms. Gray that all documents provided by Ms. Dombrowski have been furnished to defense counsel; and payment of defensе counsel fees associated with the instant motion.
1. Preclusion
The Third Circuit has articulated a test that must be applied in determining whether preclusion of evidence is an appropriate discovery sanction. The Third Circuit made it clear that preclusion of evidence is an extreme sanction, even more so in the context of Title VII employment cases. I am, of course, constrained to follow this precedent.
Ms. Gray obtained admittedly privileged documents because of her violations of the subpoena rule. Obviously, Ms. Gray shall be precluded from using any privileged or protected documents at trial. Ms. Gray shall immediately return all copies of all such documents to Mr. Riba.
Concerning the non-privileged documents gained through improper means, applying the Third Circuit’s test, I must consider: (1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the ease or other cases in the court; and (4) bad faith or wilfulness in failing to comply with a court order or discovery obligation.
The fourth factor is satisfied in the present case, as a seasoned lawyer such as Ms. Gray cannot plausibly maintain that she is unaware of the proper use of discovery tools. Surely, Ms. Gray understands that court process must be used in a fashion that preserves the integrity of court process. Ms. Gray has offered no basis for her lack of faith that this Court could have — and would have — addressed any discovery violations on Defendant’s part.
As to the first three factors, the record as developed to date does not support a conclusion that Defendant has been prejudiced, or that any such prejudice cannot be cured. Similarly, there is nо basis for concluding that Ms. Gray’s conduct has disrupted the orderly and efficient trial of this case. However, there still is some confusion as to exactly what documents were improperly provided to Ms. Gray by Ms. Dombrowski (the remedy to address this situation is discussed in the next section).
With the exception of the privileged documents previously identified, Defendant’s re
2. Bates Stamping Documents and Preparing an Affidavit
As noted, Ms. Gray’s conduct has created unnecessary confusion, because Ms. Dombrowski produced two different sets of documents to Ms. Gray and Mr. Riba. Ms. Gray is hеreby ordered to Bates stamp the documents received from Ms. Dombrowski and provide a copy of the Bates stamped documents to the District. Ms. Gray shall prepare an affidavit setting forth the Bates ranges of the documents, and shall attest that the documents so identified are a complete set of all documents produced by Ms. Dombrowski. Ms. Gray shall also attest that all privileged documents (including copies thereof) have been returned tо the District.
The Bates stamped documents and the affidavit shall be provided within seven days of this Order.
3. Attorney’s Fees
A court may award fees and costs where a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,
Under these circumstances, I easily conclude that Ms. Gray acted in bad faith, and oppressively. Spencer,
In addition, Ms. Gray admitted that she routinеly fills out subpoenas incompletely/ inappropriately. An award of monetary sanctions will hopefully deter Ms. Gray from doing so in the future. Therefore, the imposition of attorney’s fees is appropriate. Defendant’s counsel is instructed to submit a fee petition, setting forth an itemization of attorneys fees incurred in addressing Ms. Gray’s discovery violation. Plaintiffs counsel, Robin J. Gray, Esq., shall pay a reasonable amount of attorney’s fees, costs, and expenses that were incurred in filing this motion.
4. Admonishment.
The Court’s dismay with the current situation is amply expressed above, and so will not be further repeated here. Ms. Gray is specifically admonished to refrain from utilizing subpoenas to obtain documents from her adversary. Ms. Gray is specifically admonished to serve copies of any subpoenas on her adversary, before serving same on third parties, so that her adversaries have the opportunity to lodge objections. Ms. Gray is specifically admonished to fill out subpoenas fully and appropriately, so that the responding party and opposing counsel are both informed as to the appropriate time and manner of responding to same.
Finally, Ms. Gray is specifically admonished to refrain from self-help tactics to cure perceived deficiencies in her adversary’s discovery responses. Ms. Gray is reminded that this Court can, and will, enforce the Rules оf Civil Procedure.
For the foregoing reasons, Defendant Governor Mifflin School District’s Motion for Sanctions is GRANTED IN PART and DENIED IN PART.
An appropriate Order follows.
ORDER
AND NOW, this J/.TH day of November, 2010, upon consideration of Defendant Governor Mifflin School District’s Motion for Sanctions (Doe. No. 15); and Plaintiff Andrea Coleman-Hill’s response thereto (Doc. No. 17); and the Court having heard Oral Argument;
It is hereby ORDERED that Defendant’s Motion is GRANTED IN PART and DENIED IN PART as follows:
1. The request to preclude all evidence produced by Ms. Rachel Dombrowski to Robin J. Gray, Esq., is GRANTED IN PART and DENIED IN PART. Plaintiff is precluded from using any privileged or protected documents in any fashion. However, Defendant’s request for blanket preclusion of all documents obtained from Ms. Dombrowski is denied without prejudice to Defendant’s right to renew this Motion, or to file a motion in limine, if specific prejudice can be identified.
2. The request for attorney’s fees, costs, and expenses is GRANTED. Plaintiffs counsel, Robin J. Gray, Esq., shall pay a reasonable amount of attorney’s fees, costs, and expenses that were incurred in filing this Motion. Defendant’s counsel is instructed to submit an appropriate Fee Petition, setting forth an itemization of his claim for attorney’s fees, costs, and expenses.
3. The request for an affidavit by Robin J. Gray, Esq., is GRANTED. Ms. Gray shall provide an affidavit to Defendant’s counsel within seven (7) days (a) attesting that all privileged documents have been returned to the Defendant’s counsel; (b) stating that all documents produced by Ms. Dombrowski to Ms. Gray havе been identified and furnished to Defendant’s counsel, and (c) setting forth the Bates ranges of the documents provided.
4. The request for admonishment is GRANTED. The Court admonishes Robin J. Gray, Esq., that her continued failure to abide by the Federal Rules of Civil Procedure by (a) engaging in self-help for perceived discovery violations, (b) serving incomplete subpoenas lacking the requested times and dates for production, and (c) misusing a discovery tool intended for non-parties will not be tolerated and may be the basis for future sanctions.
5. It is further ORDERED that Ms. Gray shall return any documents that are admittedly privileged to Defendant’s counsel, and shall provide to Defendant’s counsel a Bates stamped copy of all documents sent by Ms. Dombrowski within seven (7) days.
Notes
. This motion was referred to me for disposition by Judge C. Darnell Jones by Order dated September 17, 2010. (Doc. No. 18).
. There is a dispute regarding how many documents Ms. Dombrowski provided to Ms. Gray. When Mr. Riba asked Ms. Gray to forwаrd all of the documents that Ms. Dombrowski provided, Ms. Gray furnished 182 pages. (Def.’s Mot. ¶ 14). However, when Mr. Riba asked Ms. Dom-browski to forward all of the documents that she provided, Ms. Dombrowski sent 284 pages. (Def.’s Mot. ¶ 17).
. Ms. Gray claims to have personal knowledge that the District engages in spoliation of evidence. Ms. Gray provided no evidentiary support for this accusation, and only brought it to the Court's attention in attempting to justify her own misconduct
. Ms. Gray filled out a subpoena to another witness in this case, Mr. Jim Watts, in the same manner. (Def.'s Mot. Ex. C).
. As previously noted, the Court is unconvinced by this argument. Comparing Plaintiff's July 21 Request for documents to Ms. Dombrowski’s subpoena, a clear difference regarding the extent of requested discovery emerges. The July 21 Request sought information "from Dr. Weiss to individual members of the Board.” (PL’s Am. Answer Ex. D, at 2). However, the subpoena asked for Dr. Weiss's email archives that were "to and from the school board, the music program issue and any other emails regarding Andrea Coleman-Hill.” (Def.'s Mot. Ex. A, at 4).