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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

RYAN W. POOLE, by his mother and next friend, BARBARA ELLIOTT V. TEXTRON, INC., ET AL.

* * * * CIVIL NO. WMN-98-280

MEMORANDUM OPINION I. INTRODUCTION This is a product liability case in which the plaintiff, Ryan W. Poole ("Poole"), has sued Textron, Inc. ("Textron") for alleged defects in a golf car, which resulted in serious injuries to him. The trial judge referred the undersigned all discovery disputes. By

Memorandum and Order dated May 20, 1999, after a hearing, I granted plaintiff's three discovery motions in part, ordered, inter alia, Textron to do substantial additional investigation to respond to Poole's discovery requests, and held sub curia the request for attorneys' fees or other sanctions pending further submissions and completion of the specified remedial actions. Textron filed with the trial judge objections to several of the discovery rulings, which the trial judge rejected, affirming the discovery rulings below. At the

request of Textron, a further hearing was held on the request for attorneys' fees, costs and other sanctions, after which the parties submitted affidavits on the time expended and the appropriate hourly rate for the requested attorneys' fees. The matter is now ripe for

decision. Before the Court is plaintiff's request for attorneys' fees and other expenses related to the three substantive discovery motions and other sanctions: the motion for sanctions raising six instances of

discovery abuse,1 the motion to compel production of documents and the motion to determine sufficiency of answers and objections to requests for admissions. of these three motions. This Court has already ruled on the merits The current issue facing the Court is

whether an award of expenses including attorneys' fees or other sanction is justified under the governing rules and case law and if so, the amount of expenses or sanction. Textron acknowledges this Court's authority to assess sanctions to punish discovery abuses under Fed. R. Civ. P. 37, Fed. R. Civ. P. 26(g) and the inherent authority of the Court. (Paper No. 63 at 6).

However, Textron argues that an award of fees is inappropriate for several reasons. Chiefly, Textron argues that its collection and

investigative efforts to comply with the Court's May 20, 1999 Order were both extensive and expensive -- costing Textron $23,260 in attorneys' fees and expenses. That "sanction" is, in Textron's view,

instances of discovery abuse are incomplete document production, failure to provide accurate interrogatory answers, lack of diligent search for documents and failure to provide a corporate designee able to address all specified areas of inquiry, defendants' refusal to answer questions at the deposition, defendants' lack of candor with the Court and counsel and Textron's attempt to conceal the existence of the 1998 GX-440 golf car in its possession.

1These

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sufficient.

Alternatively, Textron argues that plaintiff's request

for expenses, including fees, in the amount of $50,346.89 is grossly excessive, under governing law. Specifically, Textron objects to the

hourly rate charged by the plaintiff's counsel as not in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. For the reasons stated below, the Court awards $37,258.39 in expenses, including attorneys' fees, but declines to award any other sanction under the rules or its inherent power. II. GOVERNING LAW ON ENTITLEMENT TO SANCTIONS AND EXPENSES, INCLUDING ATTORNEYS' FEES As Textron acknowledged, this Court has authority to redress discovery misconduct under the Federal Rules as well as under its inherent powers, and can impose a range of sanctions from award of expenses against both a party and its counsel to an entry of a default judgment. The sanction, of course, depends on the nature of

the discovery abuse. The Court's inherent authority is not displaced or limited by the sanctioning scheme of the Federal Rules. Inc., 501 U.S. 32, 46 (1991). Chambers v. NASCO,

However, the Supreme Court has stated

that "a finding [that counsel's conduct . . . constituted or was tantamount to bad faith] . . . would have to precede any sanctions under the Court's inherent powers." Roadway Express, Inc. v. Piper,

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447 U.S. 752, 767 (1980); see also Chambers, 501 U.S. at 47.

("The

narrow exceptions to the American Rule effectively limit a court's inherent power to impose attorney's fees as a sanction to cases in which a litigant has engaged in bad-faith conduct or willful disobedience of a Court's orders. . ."). The Supreme Court has

cautioned restraint in the exercise of the inherent powers "[b]ecause of their very potency," Chambers, 501 U.S. at 44 and "[b]ecause inherent powers are shielded from direct democratic controls." Roadway Express, 447 U.S. at 764. Accordingly, whether default

judgment2 or some lesser punitive sanction, such as an award of attorneys' fees,3 is imposed under the inherent powers, courts require evidence of misconduct, usually characterized as "contumacious," "fraudulent" or "bad faith," with some courts requiring that the misconduct be shown by "clear and convincing evidence.4 As will be more fully discussed below, this Court finds

the sanctioning scheme of Rules 37 and 26 of the Federal Rules of Civil Procedure sufficient to redress the violations here without

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See, e.g., Shepherd v. ABC, 62 F.3d 1469, 1477 (D.C. Cir. 1995);

Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1982); Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 1976). See, e.g., Autornma Corp. v. Stewart, 802 F.2d 1284, 1287-88 (10th Cir. 1986); Weinberger v. Kendrick, 698 F.2d 61, 80 (2d Cir. 1982). v. Greene, No. 98-9302, 2000 WL 197428 *2 (2nd Cir. Feb. 17, 2000); Crowe v. Smith, 151 F.3d 217, 239 (5th Cir. 1998); Grace v. Ctr. for Auto Safety, 72 F.3d 1236, 1243 (6th Cir. 1995). The Fourth Circuit has not yet spoken on the applicable burden of proof.
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exercise of the inherent powers. As to plaintiff's motions to compel and to test the sufficiency of the answers and objections to the request for admission, Fed. R. Civ. P. 37 governs both the entitlement to expenses and the amount of such expenses. pertinent part: [T]he Court shall . . . require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the Court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's non-disclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(4)(A) (emphasis added). Where, as here, the If such a motion is granted, the Rule provides, in

motion is granted in part and denied in part, the court shall "apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." 37(a)(4). Fed. R. Civ. P.

The Court has determined that there was no substantial and objections

justification for Textron's non-disclosure, responses

and that there were no circumstances that made an award of expenses unjust. Similarly, Rule 26(g)(3) provides, in pertinent part, that "if without substantial justification a certification is made in violation of the rule, the Court, upon motion or upon its own 5

initiative shall impose upon the person who made the certification, the party on whose behalf the disclosure request, response, or objection is made, or both, an appropriate sanction which may include an order to pay the amount of reasonable expenses incurred because of the violation, including a reasonable attorney's fee." added). (emphasis

By its language, Rule 26(g)(3) does not limit a court to the

award of expenses only, but gives the Court latitude to fashion an "appropriate sanction," in addition to an award of expenses. Nevertheless, an award of attorneys' fees appear to be the sanction most commonly imposed in reported decisions. Sanctions: 2000).5 See Gregory P. Joseph,

The Federal Law of Litigation Abuse

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