UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DONNA J. ZORNES; SHIRLEY D'AMICO,
Plaintiffs-Appellants,
v. No. 97-2337
SPECIALTY INDUSTRIES, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-96-244-S)
Argued: May 7, 1998
Decided: December 21, 1998
Before WILKINSON, Chief Judge, and WILLIAMS and
TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Williams wrote the majority
opinion, in which Chief Judge Wilkinson concurred. Judge Traxler
wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Joseph Anthony Schwartz, III, SCHWARTZ, BOYD &
METZ, P.A., Baltimore, Maryland, for Appellants. Douglas William
Desmarais, SMITH & DOWNEY, P.A., Baltimore, Maryland, for
Appellee. ON BRIEF: Richard L. Hackman, SMITH & DOWNEY,
P.A., Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Donna J. Zornes and Shirley D'Amico (Appellants) appeal from
the district court's dismissal of their consolidated cases with prejudice
under Rule 37(d) of the Federal Rules of Civil Procedure for discov-
ery abuse. We affirm.
I.
On January 25, 1996, Appellants filed separate complaints in the
United States District Court for the district of Maryland under the
Equal Pay Act of 1963, see 29 U.S.C.A. § 206(d) (West 1978), and
Title VII of the Civil Rights Act of 1964, see 42 U.S.C.A. § 2000(e)
(West 1994), alleging that their employer, Specialty Industries, Inc.
(Appellee), engaged in a pervasive policy of sex discrimination.1
Appellee answered and discovery began. In reviewing the propriety
of the district court's dismissal with prejudice of Appellants' claims,
we must recite the unfortunately lengthy timetable of events leading
to the imposition of sanctions.
On March 7, 1996, the district court entered a Scheduling Order
requiring discovery to be completed by October 9, 1996. Pursuant to
Appellants' unopposed motion, the cases were referred to a magistrate
judge to oversee the discovery process.
On April 26, 1996, Appellants served Interrogatories and Requests
for Production of Documents on Appellee. Appellee timely responded
on May 29. Sixty-five days later, on August 5, 1996, Appellants filed
a Motion to Compel more complete answers to the April 26 discovery
requests. Appellee moved to strike the motion as untimely under the
_________________________________________________________________
1 On August 28, 1996, the district court issued an order allowing the fil-
ing of amended complaints and consolidating the cases.
2
District of Maryland's local rules. In an order dated August 22, 1996,
the magistrate judge granted Appellee's motion. He ruled that Appel-
lants' motions failed to comply with Local Rule 104.8 in two respects.2
First, the motion was filed outside the twenty-day window afforded
by the rule, and second, Appellants improperly filed the motion with
the district court prior to serving it upon opposing counsel, also in
violation of the local rule. At the conclusion of the order, the magis-
trate judge admonished Appellants that "[n]o party should be allowed
to thwart the purposes of the rule or to ignore the time requirements
imposed by the Rule." (J.A. at 66.)
The problems continued, however. Before the magistrate judge
issued that order, on August 9, 1996, Appellee had hand-delivered
Interrogatories and Requests for Production of Documents and Things
to Appellants' counsel. In accordance with Rules 33 and 24 of the
Federal Rules of Civil Procedure, Appellants were required to
respond by September 9, 1996. On September 13, however, Appel-
lants had neither responded nor filed a request for an extension of
time, despite Appellee notifying Appellants on September 9 that the
responses were due and then warning Appellants on September 10
_________________________________________________________________
2 Local Rule 104.8 provides, in pertinent part:
a. Service of motions papers. If a party who has propounded
interrogatories or requests for production is dissatisfied with the
response to them, that party shall serve a motion to compel
within twenty days of the party's receipt of the response. The
memorandum in support of the motion shall set forth, as to each
response to which the motion is directed, the discovery request,
the response thereto and the asserted basis for the insufficiency
of the response. The opposing party shall serve a memorandum
in opposition to the motion within fourteen days thereafter. The
moving party shall serve any reply memorandum within eleven
days thereafter. The parties shall file with the Court notices of
service of the motion and memoranda but not the motion and
memoranda themselves . . . .
b. Conference of counsel. Counsel are encouraged to confer
with one another before or immediately after a motion to compel
is filed. If they are unable to resolve their disputes, counsel must
hold the conference required by LR 104.7 after serving upon one
another all of the papers relating to the motion to compel.
3
that a motion to compel would be filed on September 12 if no
responses were immediately forthcoming. As warned, on September
13, Appellee moved to compel answers to discovery and to impose
sanctions against Appellants for their failure to respond to discovery
requests.
When Appellants failed to respond to the Motion to Compel, the
magistrate judge issued a Show Cause Order on September 18 direct-
ing Appellants to demonstrate by September 25 why an order should
not be issued (1) dismissing the case with prejudice for noncompli-
ance with discovery requests; (2) ordering the payment of Appellee's
attorneys' fees incurred in filing the September 13 motion; and (3)
awarding Appellee any other necessary relief. In his written Show
Cause Order, the magistrate judge noted that this was the second time
that Appellants' counsel had ignored the mandates of the local rules
and warned Appellants and their counsel that the court would not tol-
erate further delays in the prosecution of the case. The magistrate
judge also advised Appellants that their failure to timely respond to
Appellee's discovery requests constituted a waiver of any objections
that they may have had to any of the requests3 and specifically warned
Appellants that the failure to timely comply with the show cause
order and Appellee's discovery requests could result in the dismissal
with prejudice of their cases.
Five days later, on September 23, Appellants filed a response to the
Show Cause Order to which they finally attached their answers to
Appellee's Interrogatories and Requests for Production. Incredibly,
these answers contained several objections, despite the magistrate
judge's earlier finding that all objections had been deemed waived.
Also, Appellants explained in their response that the good faith cause
for their delay was that they were "hard-working people with very lit-
tle education" and that compliance with Appellee's discovery requests
proved to be "an overwhelming and daunting task." Specifically,
Appellants' counsel noted that "[Appellants] were laboriously trying
_________________________________________________________________
3 The Show Cause Order contained a footnote alerting Appellants that
"[f]ailure to timely respond to discovery requests is considered a waiver
of any objections that the answering party may have to any of the
requests." (J.A. at 76.)
4
to answer the `Instructions' section of the Interrogatories." (J.A. at
77.)
In response to Appellants' objections, Appellee advised Appel-
lants' counsel by letter dated September 23, 1996, that the magistrate
judge's September 18 Show Cause Order provided that Appellants
had waived all objections due to their tardiness. Appellants refused to
withdraw their objections, however, and on November 14, 1996,
Appellee ultimately moved to compel compliance with the August 9
discovery request and the court's September 18 Show Cause Order.
Meanwhile, during an October 1, 1996, deposition, Appellant
D'Amico contradicted counsel's assertion that the discovery was
tardy because she and Appellant Zornes were having difficulty under-
standing the "Instructions" of the Interrogatories.4
_________________________________________________________________
4 The following exchange occurred during Appellant D'Amico's Octo-
ber 1 deposition.
Q: Which part of answering the Interrogatories was over-
whelming to you?
A: Just some of the questions were.
Q: Now, it says here, that [Appellants] were "laboriously" try-
ing to answer the "Instructions" of the Interrogatories, that's
not true, is it?
A: For me it wasn't.
***
Q: Did [Appellant Zornes] ever express any concern to you
about anything in the instructions portion of the interrogato-
ries?
A: No.
Q: So, based on your personal knowledge, this statement is
untrue; is that correct?
***
A: For me.
Q: For you, that's not true, is it?
A: Right.
(J.A. at 235-36.)
5
On September 14, Appellants served Appellee with additional
Interrogatories and a Request for Production of Documents. Appel-
lants also served an amended request that they be permitted to enter
the Appellee's premises and to inspect and photograph machinery
pursuant to Rule 34 of the Federal Rules of Civil Procedure. By let-
ters dated October 1 and 3, Appellee offered to allow Appellants,
accompanied by counsel, to inspect the premises at the close of their
shift and to allow photography at the conclusion of the main day shift.
Appellants' counsel refused this offer, however, insisting that her cli-
ents be present during the inspection during their shift and that the
machinery be photographed while in operation. On October 7, Appel-
lee responded by moving for a Protective Order to prevent the
requested inspection from taking place during work hours. Later, on
October 15, Appellee moved for yet another Protective Order from
the September 14 Interrogatories and Requests for Production of Doc-
uments, asserting that they had been served less than thirty days
before the parties' stipulated October 9 discovery deadline in viola-
tion of Local Rule 104.2.
Meanwhile, on September 23, Appellants served upon Appellee a
"Notice to Take Deposition" pursuant to Rule 30(b)(6) of the Federal
Rules of Civil Procedure. On October 4, 1996, Appellee moved for
issuance of a Protective Order and attorneys' fees due to the "absur-
dity of the scope" of the Appellants' Rule 30(b)(6) deposition
notice/document request, arguing that Appellants' document produc-
tion requests were overbroad and exceeded the number allowed by
Local Rule 104.1. In response to Appellee's October 4 and 7 protec-
tive order motions, Appellants, on October 8, moved to compel com-
pliance with their September 14 and September 23 discovery requests.
On November 18, the magistrate judge convened a hearing to dis-
cuss the numerous pending discovery motions. Specifically, he
addressed (1) Appellants' Rule 30(b)(6) requests, (2) Appellants'
Amended Request for Permission to Enter Premises and To Inspect
and Photograph Machinery, (3) the timeliness of Appellants' Septem-
ber 14 Interrogatories and Requests for Production, and (4) Appel-
lants' response to the magistrate judge's September 18 Show Cause
Order.
As to Appellants' Rule 30(b)(6) requests, the magistrate judge
found that they exceeded the number allowed by the local rules and
6
ordered the parties to agree upon document production at the deposi-
tion. As to the September 14 Interrogatories and Requests for Produc-
tion, the magistrate judge granted the Appellee's motion for a
protective order as to certain overbroad document requests. The mag-
istrate judge allowed Appellants to present the remaining September
14 Requests, however, despite recognition that the Requests were
untimely under the local rules. The magistrate judge also denied
Appellants' October 8 Motion to Compel the inspection of the prem-
ises and adopted the parameters for the inspection previously pro-
posed by Appellee. Finally, the magistrate judge admonished
Appellants yet again for their continued failure to respond to Appel-
lee's discovery responses which were due originally on September 9
and again ordered Appellants to submit completely their responses
without objections, with the exception of objections based upon attor-
ney work-product or attorney-client privilege. The magistrate judge
further ordered the parties to establish a new discovery exchange
schedule.
In response to the magistrate judge's orders, on November 26,
Appellants' counsel proposed a revised discovery schedule. Appel-
lee's counsel agreed, and the parties stipulated to December 12, 1996,
as the deadline for written discovery responses, December 31 as the
deadline for Rule 30(b)(6) and Rule 34 examinations, and January 31,
1997, as the deadline for summary judgment motions. 5 On December
12, however, Appellants' counsel notified Appellee via facsimile that
due to "unforeseen difficulties, we will need an additional period of
time in which to provide you with requested discovery." (J.A. at 162.)
Appellants' counsel subsequently indicated that the exchange date
would be December 13. Neither a response to the discovery request
_________________________________________________________________
5 Appellants characterize December 12 as a "target date" rather than a
deadline for the parties to supplement their discovery. The proposed date
resulted, however, from an order by the magistrate judge to agree upon
a revised discovery timetable. Moreover, in their November 26, 1996,
letter proposing the revised discovery schedule, Appellants gave no indi-
cation that their suggested dates were flexible"target dates" rather than
deadlines. (J.A. at 161.) In light of the magistrate judge's order to estab-
lish a discovery schedule and the problems then existing, we have a diffi-
cult time accepting Appellants' current depiction of the discovery due
dates.
7
nor a motion for extension of time followed, however; Appellee ulti-
mately moved for dismissal with prejudice of Appellants' lawsuit on
December 16.
On December 20, Appellants finally served their complete discov-
ery responses, originally due on September 9, upon Appellee. These
supplemental responses included a one-hundred-page journal which
Appellant D'Amico had denied existed during her earlier deposition.
Then, at 5:00 p.m. on December 31, the agreed-upon date for the
conclusion of all discovery, Appellants requested permission to
inspect the premises and review documents during the week of Janu-
ary 21-27. This request squarely conflicted with the parties' stipula-
tion that all discovery would be completed by December 31.
Moreover, Appellee had notified Appellants that the documents were
available for review on December 12. Due to the untimeliness of the
request, on January 8, 1997, Appellee moved for a Protective Order
to deny the discovery.
Undeterred, Appellants moved on January 22 for entry of default
judgment against Appellee for failure to comply with the magistrate
judge's November 18 order which they asserted granted their Motion
to Compel and ordered Appellee to produce certain documents, to
fully answer various interrogatories, and to permit inspection of prem-
ises. Not surprisingly, on January 27, the magistrate judge issued an
order barring any additional discovery motions.
On July 3, 1997, the magistrate judge issued an order granting
Appellee's January 8 protective order and denying Appellants' Janu-
ary 22 default judgment motion. Further, finding Appellants' default
motion to be utterly lacking in merit, the magistrate judge imposed
sanctions against Appellants' counsel, ordering her to pay Appellee's
attorneys' fees incurred as a result of Appellants' motion for default
judgment, and a $500 fine. See Fed. R. Civ. P. 11. The magistrate
judge based his rulings upon the following conclusions:
[Appellants'] Motion is fraught with false allegations
regarding Orders of the Court, misrepresentations of
requests for extensions, meritless excuses and unsubstan-
tiated allegations as to [Appellee's] failure to supply discov-
ery which was neither ordered by this Court nor properly
8
requested by [Appellants]. The frivolousness of [Appel-
lants'] Motion is evidenced by [Appellants'] counsel's com-
plete failure to proffer dates to conduct the outstanding
discovery or to file the appropriate motion to compel. Addi-
tionally, a bad faith, retaliatory purpose seems evident in
light of [Appellants'] counsel's failure to attempt to conduct
or compel discovery in a timely manner. Thus, this Court
finds that [Appellants'] counsel's history of continued disre-
gard for the letter and spirit of the Federal Rules, Local
Rules, and Orders of this Court merits sanctions.
(J.A. at 203.) The magistrate judge simultaneously issued a Report
and Recommendation to the district court to dismiss Appellants' suit
with prejudice for abuse of discovery under Rule 37(d). The magis-
trate judge found that counsel's "history of untimeliness and eleventh
hour extension[s]" evidenced "bad faith." (J.A. at 210.) The magis-
trate judge sharply rebuked counsel for providing a"questionable
response to a Show Cause Order," and for "directly violat[ing] Fed.
R. Civ. P. 33(b)(4), and this Court's explicit Order." (J.A. at 211.)
After a de novo review, see Fed. R. Civ. P. 72(b), the district court
fully adopted the recommendation of the magistrate judge and granted
Appellee's motion to dismiss by order dated August 26, 1997. The
district court also imposed sanctions against Appellants' counsel pur-
suant to Rule 11 of the Federal Rules of Civil Procedure. Appellants
appeal the dismissal of their cases.6
II.
Rule 37(d) of the Federal Rules of Civil Procedure gives the dis-
trict court wide discretion to impose sanctions for a party's failure to
comply with its discovery orders. Thus, it is only for an abuse of dis-
cretion that a reviewing court may reverse the decision of the district
court. See National Hockey League v. Metropolitan Hockey Club,
Inc., 427 U.S. 639, 642 (1976); United States v. Shaffer Equip. Co.,
11 F.3d 450, 462 (4th Cir. 1993). In fact, the Supreme Court has cau-
tioned us not to allow the "natural tendency on the part of reviewing
_________________________________________________________________
6 Appellants do not appeal the imposition of Rule 11 sanctions against
their attorney.
9
courts, properly employing the benefit of hindsight, to be heavily
influenced by the severity of outright dismissal as a sanction for fail-
ure to comply with a discovery order." National Hockey League, 427
U.S. at 642. "The question, of course, is not whether [we] would as
an original matter have dismissed the action; it is whether the District
Court abused its discretion in so doing." Id.
In an effort to balance the competing interests of the due process
rights of the litigants and the integrity of the judicial process, the
Supreme Court has held that a court must consider four factors before
imposing sanctions under Rule 37(d): (1) whether the noncomplying
party acted in bad faith; (2) the amount of prejudice the party's non-
compliance caused the opposing party, which necessarily includes an
inquiry into the materiality of the evidence that the noncomplying
party failed to produce; (3) the need for deterrence of the particular
sort of noncompliance; and (4) the effectiveness of less drastic sanc-
tions. See Mutual Fed. Sav. & Loan Ass'n v. Richards & Assocs., 872
F.2d 88, 92 (4th Cir. 1989). The Fourth Circuit has stated further that
before dismissing a case with prejudice, the district court must give
a party a "clear and explicit" warning of the consequences of failing
to satisfy the court's conditions and orders. Choice Hotels Int'l, Inc.
v. Goodwin & Boone, 11 F.3d 469, 472 (4th Cir. 1993); see also
Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40-41 (4th Cir.
1995) (noting that "this court has emphasized the significance of
warning a defendant about the possibility of default[under Rule 37]
before entering such a harsh sanction"); Lolatchy v. Arthur Murray,
Inc., 816 F.2d 951, 954 n.2 (4th Cir. 1987) (noting that warning to
parties was a "salient fact" that distinguished cases in which default
judgment was appropriate sanction for discovery abuse under Rule
37).
In this case, the magistrate judge expressly warned Appellants
early in the parties' litigation that further discovery abuse would
result in the dismissal of their actions. In his August 22 order, the
magistrate judge wrote that "[n]o party should be allowed to thwart
the purposes of the rule or to ignore the time requirements imposed
by the Rule." (J.A. at 66.) Again, in his September 18 Show Cause
Order, the magistrate judge specifically warned that failure to comply
with the requirements of the discovery rules could result in dismissal
with prejudice of Appellants' claims. Finally, the magistrate judge
10
verbally chastised Appellants during the November 18 hearing and
ordered their compliance with Appellee's discovery requests.7 In spite
of these clear warnings, Appellants nevertheless continued to violate
the magistrate judge's orders, ignore the Rules of Civil Procedure,
and unreasonably reject Appellee's attempts to maintain an orderly
discovery process. As a result, we cannot say that the district court
abused its discretion when it ultimately resorted to the severest sanc-
tion of dismissing Appellants' complaints with prejudice pursuant to
Rule 37(d) of the Federal Rules of Civil Procedure.
A.
In considering the first element of the four-part test, we have held
that the district courts should restrict their imposition of the ultimate
sanction of dismissal with prejudice to "only the most flagrant case,
where the party's noncompliance represents bad faith and callous dis-
regard for the authority of the district court and the Rules." Mutual
Fed. Sav. & Loan Ass'n, 872 F.2d at 92. We are convinced that,
unfortunately, this high standard was met in this case. The district
court found that Appellants' bad faith was demonstrated by, among
other things, Appellants' numerous "eleventh hour extensions" and
consistent disregard of discovery deadlines, despite Appellee's good
faith prodding and the magistrate judge's warning in the Show Cause
Order that such delays would not be tolerated. The district court spe-
cifically found that Appellants' tardy October 8 submission of objec-
tions to Appellee's Interrogatories was in direct violation of the
_________________________________________________________________
7 The dissent chastises the majority's reliance upon the statements
made in the November 18 hearing, noting that "[w]ith no hearing tran-
script or written order to inform us, there is no way to ascertain exactly
what was conveyed to the parties." Dissent op. at 30. While we acknowl-
edge that no transcript or order memorializes the statements made, the
dissent fails to acknowledge that the magistrate judge characterized his
November 18 warnings in his Report and Recommendation as "verbal
admonitions [that] put Plaintiffs on notice that further discovery abuse
would not be tolerated." (J.A. at 211.) Absent evidence (or even argu-
ment) from Appellants to the contrary, unlike the dissent, the majority
relies upon the magistrate judge's own history of the hearing -- that he
delivered a clear message that further discovery abuse would lead to dis-
missal.
11
September 18 Show Cause Order.8 The district court also pointed to
_________________________________________________________________
8 Appellants argue for the first time in their Reply Brief that they did
not wilfully or intentionally violate the Show Cause Order because their
only objections were either "attorney-client and work-product privileges"
or "`form objections' produced from a word processor's memory."
Appellants' Reply Br. at 10-11. In support of this proposition, Appellants
have filed an accompanying motion to supplement their Reply Brief with
the entirety of their answers to Appellee's Interrogatories and Request
for Production of Documents. Appellee has moved to strike the portions
of Appellants' Reply Brief concerning this argument and opposes Appel-
lants' Motion to Supplement the Reply Brief on the grounds that these
factual issues were never presented to the district court and were omitted
from Appellants' Opening Brief. We grant Appellee's motion to strike
this portion of Appellants' Reply Brief and deny Appellants' motion to
supplement their Reply Brief with their responses to Appellee's discov-
ery requests.
The magistrate judge recommended that Appellants' cases be dis-
missed with prejudice, in part, because they submitted objections to
Appellee's August 9 discovery requests in violation of the Show Cause
order, the Federal Rules of Civil Procedure, and the local rules. In their
objections to the Proposed Findings and Recommendation of the Magis-
trate Judge, Appellants asserted that the magistrate judge's finding that
Appellants submitted objections in bad faith was erroneous because (1)
the order "did not explicitly state that Appellants had waived their right
to objections" and (2) they "believed that they showed good cause[, i.e.,
Appellants' difficulties understanding the questions posed,] and, for that
reason, did not believe that they had waived their objections." Objections
By Plaintiffs To Proposed Findings And Recommendations Of Magis-
trate Judge, C.A. No. S-96-244 (July 18, 1997). This argument (that
Appellants believed that they had not waived any objections because
they had "good cause" for their delay) is an entirely separate and distinct
argument from that posed in their Reply Brief. Accordingly, we decline
to consider it. See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222,
1227 (4th Cir. 1998) (declining to review issues not raised in the district
court).
Further, even if the issue was raised below, Appellants' failure to pre-
sent it in their Opening Brief forecloses our review of it. See Cavallo v.
Star Enter., 100 F.3d 1150, 1152, n.2 (4th Cir. 1996) (holding that argu-
ments not raised on appeal by appellants until their reply brief were not
properly before the appellate court regardless of whether question was
raised in district court), cert. denied, 118 S. Ct. 684 (1998). The only
mention of the "objection issue" in Appellants' Opening Brief is in an
12
Appellants' failure to comply with the December 12 deadline for pro-
viding supplemental answers to interrogatories. Noncompliance with
this due date was especially egregious because Appellants themselves
proposed the due date, and these same answers were the subject of
two prior Motions to Compel. Moreover, Appellants utterly failed to
articulate any good cause for the delay. This "blatant disregard" for
the court's order and the rules, (J.A. at 254), the court concluded, evi-
denced bad faith warranting dismissal. See Mutual Fed. Sav. & Loan
Ass'n, 872 F.2d at 92 (holding that dismissal with prejudice is proper
when a "party's noncompliance represents bad faith and callous disre-
gard for the authority of the district court and the Rules").
Moreover, in addition to Appellants' lack of compliance with the
court's order and rules, the magistrate judge made findings, adopted
by the district court, that Appellants made affirmative misrepresenta-
tions to the magistrate judge. As discussed, supra, Appellants' coun-
sel filed a response to the magistrate judge's September 18 Show
Cause Order in which she posited that the good faith cause for Appel-
lants' delay in complying with Appellee's discovery requests was that
"Plaintiffs were laboriously trying to answer the`Instructions' section
_________________________________________________________________
argument to refute the district court's assertion that Appellee suffered
prejudice when it incurred additional expenses as a result of filing suc-
cessive motions to compel. Appellants argue that the magistrate judge's
later acknowledgment that Appellants had not waived their right to
object on the grounds of work-product or privilege was a ruling against
Appellee; therefore, Appellants argue, they should not be penalized for
expenses Appellee incurred filing a motion which it subsequently lost.
Again, this argument which solely addresses the prejudice factor, is com-
pletely different from the one in the Reply Brief which addresses Appel-
lants' alleged bad faith.
Finally, Fourth Circuit Rule 28(b) requires that a party wishing to
attach supplemental material to a brief must present the proposed mate-
rial under separate cover "accompanied by a motion for leave to file that
specifically identifies the proposed material, indicates whether it is a
matter of record, and sets forth good cause for deviating from the general
prohibition of attachments to briefs." Fourth Cir. R.28(b). We deny
Appellants' motion to supplement the Reply Brief with the proposed
material because they have failed even to attempt to articulate good
cause for granting the motion.
13
of the Interrogatories." (J.A. at 77). However, as noted, supra at n.4,
Appellant D'Amico denied in a later deposition that she was having
difficulty understanding the interrogatory instructions. She further
stated that Appellant Zornes had not expressed any concern to her
about understanding the instruction section of the interrogatories.
Appellants' filing of what the magistrate judge appropriately charac-
terized as a "questionable response" to its Show Cause Order further
supports the district court's conclusion that Appellants' constant
delays and noncompliance were motivated by bad faith. (J.A. at 211.)
These findings more than adequately support the district court's find-
ing of bad faith.9
B.
As to the prejudice to Appellee, the district court determined that
Appellants' "delays in providing answers in a timely fashion ha[d] . . .
materially prejudiced the Defendant." (J.A. at 255.) In particular, the
district court cited Appellants' failure to produce a one-hundred-page
diary chronicling alleged acts of harassment perpetrated by Appel-
lants' co-workers until after the discovery due date. This failure, the
court found, was exaggerated by the fact that Appellant D'Amico
flatly denied the existence of such a journal during her October 1,
_________________________________________________________________
9 The dissent contends that our statement that the magistrate judge
found that Appellants "made affirmative misrepresentations" to the court
"is an overstatement of what the magistrate judge found." Dissent op. at
33. The dissent then continues on to explain "[w]hat actually happened."
Id. In response to the dissent's first assertion, we cite footnote 2 of the
magistrate judge's Report and Recommendation in which he notes the
court's "concern about deposition testimony by Plaintiff Shirley
D'Amico which directly controverted assertion of counsel in her
Response to the Show Cause Order." (emphasis added) (J.A. at 211.)
Further, while we find the dissent's explanation of the deposition testi-
mony of Plaintiff D'Amico interesting, it is an argument and explanation
that Appellants have never offered to this Court. On appeal, Appellants
have not taken issue with the magistrate judge's finding that the deposi-
tion testimony "directly controverted" the assertions of counsel. Accord-
ingly, while the dissent's view of the deposition testimony may be
supportable, it is not one espoused by Appellants. Although it is often
tempting to step into the advocate's shoes, we believe that judicial
restraint mandates that we leave advocacy to parties' able counsel.
14
1996, deposition.10 In addition to withholding the diary from Appel-
lee, Appellants also failed to respond to Appellee's Interrogatories
_________________________________________________________________
10 In their Reply Brief, Appellants argue for the first time that any prej-
udice suffered by the Appellee due to Appellant D'Amico's perjury was
minimized when D'Amico admitted that such a diary existed during her
deposition the very next day. Appellants contend that as a result of
Appellant D'Amico's deposition, Appellee knew of the diary's existence
on October 2, 1996, and any prejudice Appellee suffered is the result of
Appellee's own failure to pursue a known line of inquiry. In support of
this factual allegation, Appellants move that they be allowed to supple-
ment their Reply Brief with excerpts from Appellant D'Amico's October
2 deposition in which she allegedly admitted to the diary's existence.
Appellee moves to strike the portions of Appellants' Reply Brief con-
cerning the alleged recantation and oppose Appellants' Motion to Sup-
plement the Reply Brief because, like the argument referred to in n.8,
Appellants failed to raise the alleged recantation below or in their Open-
ing Brief. We agree and grant Appellee's Motion to Strike and deny
Appellants' Motion to Supplement their brief.
Despite Appellants' assertions to the contrary, this claim was not pre-
sented to the district court for its consideration. As such, Appellants'
claim is foreclosed from appellate review. See Karpel v. Inova Health
Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (holding that issues
raised for the first time on appeal will not be considered absent excep-
tional circumstances). Appellants admit that they failed to address
D'Amico's perjury in any of their motions to the magistrate judge or the
district court. Nevertheless, they incredibly assert that the issue was
properly placed before the district court because (1) Appellee attached
pertinent portions of the October 2 deposition transcript to a wholly unre-
lated November 14, 1996, document filed with the district court, and (2)
Appellee raised the issue of D'Amico's perjury to the district court in its
Reply to Appellants' Response to Appellee's Motion to Dismiss. This
argument is completely without merit. District courts are not required "to
anticipate all arguments that clever counsel may present in some appel-
late future. To do so would not only strain judicial resources by requiring
those courts to explore exhaustively all potential claims of a . . . plaintiff,
but would also transform the district court from its legitimate advisory
role to the improper role of an advocate seeking out the strongest argu-
ments and most successful strategies for a party." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Because the district court
was not presented with Appellants' argument, it obviously did not abuse
its discretion in failing to consider it.
Second, despite the district court's express reliance upon Appellant
D'Amico's failure to disclose the diary as a basis for dismissing the com-
15
and Requests for Production of Documents by the original September
9, 1996, deadline. Further, when Appellants finally answered the
_________________________________________________________________
plaints, Appellants inexplicably did not address the issue in their Open-
ing Brief to this court. Rather, they waited until their Reply Brief to
attempt to refute the district court's finding. Consequently, even if the
issue were raised in the district court, we decline to consider it. See
Cavallo v. Star Enter., 100 F.3d 1150, 1152, n.2 (4th Cir. 1996) (holding
that arguments not raised on appeal by appellants until their reply brief
were not properly before the appellate court regardless of whether ques-
tion was raised in district court), cert. denied , 118 S. Ct. 684 (1998). As
a result of the foregoing reasoning, we deny Appellants' motion to sup-
plement the record on appeal with excerpts from Appellant D'Amico's
October 2 deposition.
The dissent, incredibly, asserts that Appellants' failure initially to brief
the issue of whether Appellant D'Amico committed perjury should be
excused because Appellee did not use the word "perjury" below. See Dis-
sent op. at 43-44 n.20. If Appellants read either"Defendant's Reply to
Plaintiffs' Response to Defendant's Motion to Dismiss" or "Defendant's
Reply to Plaintiff's Objections to the Findings of the Court Regarding
Sanctions," they were fully apprised of Appellee's allegations regarding
Appellant D'Amico's nondisclosure under oath of the diary. That Appel-
lees failed to invoke the term "perjury" until on appeal to this Court is
of no moment. Appellee's argument was clear.
As noted in n.9, supra, we decline to make Appellants' case as the dis-
sent has done. While the result in this case may appear to be harsh, we
cannot condone the dissent's willingness to excuse Appellants' failure to
challenge the district court's conclusion that Appellant D'Amico comit-
ted perjury regarding the diary in their initial brief (a finding, we empha-
size, that was strenuously sought by Appellees in two separate motions).
The dissent seems to dismiss the district court's conclusion because the
ruling totaled only "7 words in a 27-page order." Dissent op. at 43-44
n.20. The length of the district court's ruling is not relevant to our
inquiry. The district court clearly concluded that Appellant D'Amico was
not truthful, and Appellants did not appeal that ruling.
Moreover, even if we considered Appellants' argument, it would not
change the outcome of this appeal. To the contrary, that Appellants pos-
sessed the diary and knew that it was the subject of a proper discovery
request, and yet deliberately failed to produce it until two months after
the October 2 deposition and four months after the initial August 9 dis-
16
overdue interrogatories, they improperly answered with objections in
violation of Rule 33(b)(4) of the Federal Rules of Civil Procedure11
and the magistrate judge's Show Cause Order. The district court
noted that all of these improprieties by Appellants required Appellee
to file numerous Motions to Compel and Protective Orders, resulting
in the expenditure of significant attorneys' fees.
The record supports the district court's finding of substantial preju-
dice. Appellants protest that any prejudice Appellee may have suf-
fered as a result of their delay was minimized by their ultimate
compliance with all discovery requests by December 20, 1996, only
eight days after the parties' stipulated due date. We disagree. Appel-
lants' decision to withhold certain materials from Appellee, notably
the diary, until ten days before the discovery deadline effectively pre-
vented Appellee from pursuing any further discovery.
In addition, although Appellants' counsel was assessed attorneys'
fees related to Appellee's defense of Appellants' frivolous Motion for
Default Judgment, the district court noted that Appellee was forced
unnecessarily to expend monies defending against other meritless
motions and pursuing overdue discovery in this case. The district
court cited at least three such instances, including (1) defense of
Appellants' August 6 Motion to Compel, (2) Appellee's September
_________________________________________________________________
covery request, is unexcusable. Appellants' attempt to shift the burden
back to the Appellee to pursue discovery of the diary that it had already
requested to no avail further demonstrates Appellants' conscious disre-
gard of Appellee's discovery requests. As to the dissent's assertion that
Appellants' counsel objected to production of the journal on privilege or
work-product grounds, we find no basis in the record on appeal or in
Appellants' briefs for this proposition.
11 The Federal Rules of Civil Procedure provide:
All grounds for an objection to an interrogatory shall be stated
with specificity. Any ground not stated in a timely objection is
waived unless the party's failure to object is excused by the court
for good cause shown.
Fed. R. Civ. P. 33(b)(4). As noted, supra, Appellants filed numerous
objections to Appellee's interrogatories without offering any good cause
in direct violation of both the court's order and the Rules.
17
13 Motion to Compel, and (3) Appellee's November 14 Motion to
Compel. We agree with the district court that Appellee was substan-
tially prejudiced by having to incur significant additional legal fees as
a result of Appellants' continued discovery abuses. See Zaczek v.
Fauquier County, Va., 764 F. Supp. 1071, 1079 (E.D. Va. 1991) (dis-
missing with prejudice action, in part, because plaintiff's misconduct
caused defendants "unnecessary expenses for costs and attorneys
fees"), aff'd, 16 F.3d 414 (4th Cir. 1993); Aerodyne Sys. Eng'g v.
Heritage Int'l Bank, 115 F.R.D. 281, 290-91 (D. Md. 1987) (dismiss-
ing with prejudice action under Rule 37, in part, because party was
"prejudiced by the fact that it has been put to substantial expense in
seeking discovery and has faced substantial delay in proceeding with
. . . litigation"). The district court's conclusion that the cumulative
effect of Appellants' misconduct substantially prejudiced Appellee
was not an abuse of discretion.
C.
As to the third factor for consideration -- the need to deter non-
compliance with the rules of discovery and the directives of the court
-- the Supreme Court has held that "the most severe in the spectrum
of sanctions provided by statute or rule must be available to the dis-
trict court in appropriate cases, not merely to penalize those whose
conduct may be deemed to warrant such a sanction, but to deter those
who might be tempted to such conduct in the absence of such a deter-
rent." National Hockey League, 427 U.S. at 643. In the instant case,
Appellants chose to ignore the Local Rules, the Federal Rules of Civil
Procedure, and the magistrate judge's orders, despite numerous writ-
ten and verbal warnings that such violations would not be counte-
nanced. In light of the dramatic increase in federal court litigation, we
will not circumscribe the district courts' ability to maintain efficiently
their dockets and to guard jealously the court's integrity. See
Lolatchy, 816 F.2d at 957 (noting that trial judge's supervision of pre-
trial discovery is entitled to deference because of the "superiority of
the trial judge's position to supervise the litigants and assess their
good faith" (internal quotation marks omitted)) (Wilkinson, J., dis-
senting). For it is the court's duty to protect the interests not only of
the parties directly prejudiced by discovery abuse, but also those liti-
gants indirectly prejudiced when the court's resources are squandered
due to an abusing party's misconduct. Cf. National Hockey League,
18
427 U.S. at 643 (affirming district court's dismissal with prejudice of
appellant's case under Rule 37, in part, because"it might well be that
[petitioner] would faithfully comply with all future discovery orders
entered by the District Court in this case. But other parties to other
lawsuits would feel freer than we think Rule 37 contemplates they
should feel to flout other discovery orders of other district courts.");
8A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure Civil § 2284, at 640 (2d ed. 1994) (noting that district
courts are "tak[ing] a tougher view of sanctions for discovery viola-
tions, and that sanctions are, as the Supreme Court invited in National
Hockey League, now being looked to for their deterrent effect in other
cases rather than merely as a remedy for the wrong done in the case
at hand"). As a result, we cannot say that the district court abused its
discretion when it concluded that Appellants' continued discovery
abuse in the face of an explicit warning "warrant[ed] dismissal as a
way to deter future egregious behavior." (J.A. at 259.)
D.
Finally, we must consider whether a less drastic sanction would
have been effective to stop Appellants' misconduct. Appellants con-
tend that the more appropriate sanction in this case would have been
the levying of attorneys' fees against Appellants' counsel under Rule
37 with a warning that future abuse would lead to dismissal. We dis-
agree. First, Appellants received such a warning from the magistrate
judge and chose to ignore it. Second, while this sanction was avail-
able to the district court, it was not the only one. The purpose of Rule
37 is to allow the district courts to punish deliberate noncompliance
with the federal rules of discovery and to deter such conduct in the
future. To that end, Rule 37 is flexible. It gives the district court a
wide range of possible sanctions from which the court is given the
discretion to choose the most appropriate considering the unique cir-
cumstances of each case. See 8A Wright & Miller, Federal Practice
& Procedure, § 2284, at 614-15 (1994) ("The sanctions enumerated
in the rule are not exclusive and arbitrary but flexible, selective, and
plural. The district court may, within reason, use as many and as var-
ied sanctions as are necessary to hold the scales of justice even.").
As stated previously, Appellants and their counsel were warned
repeatedly by the magistrate judge in his written orders that discovery
19
abuses would not be tolerated and continued noncompliance could
lead to dismissal with prejudice of Appellants' cases. Subsequent to
the issuance of these warnings, Appellants were chastised again by
the magistrate judge during the November 18, 1996, hearing for their
continued abuses. Nevertheless, Appellants continued to flout the
rules by missing the December 12 discovery due date and requesting
discovery past the December 31 deadline. In view of Appellants' his-
tory of continued discovery abuse in wilful defiance of the magistrate
judge's warnings, we cannot say that dismissal was not an appropriate
sanction.
III.
"[W]hen a party deceives a court or abuses the process at a level
that is utterly inconsistent with the orderly administration of justice
or undermines the integrity of the process, the court has the inherent
power to dismiss the action." Shaffer Equip. Co., 11 F.3d at 462; see
also Zaczek, 764 F. Supp. at 1076 (noting that"federal judges possess
the inherent authority to dismiss a complaint to sanction litigants or
attorneys who violate court orders, abuse the litigation process, or
otherwise conduct the litigation in bad faith" (citing Roadway
Express, Inc. v. Piper, 447 U.S. 752, 764-66 (1980))). The discovery
disputes in this case began with Appellants' filing an untimely Motion
to Compel in violation of the local rules and ended with Appellants'
filing of a frivolous Motion for Default Judgment against Appellee.
In the interim, Appellants demonstrated an incredible disregard for
the local rules, Federal Rules of Civil Procedure, and the magistrate
judge's Show Cause order in which he specifically warned Appellants
and their counsel that the court would not tolerate delays in the prose-
cution of their case and that a failure to respond to discovery requests
could result in the dismissal with prejudice of their actions. (J.A. at
76.) Based upon the foregoing and the facts enumerated above, the
district court did not abuse its discretion when it levied the ultimate
sanction against Appellants.12 Accordingly, the district court's order
_________________________________________________________________
12 Having ruled in favor of Appellee, we conclude that its Motion to
Strike portions of Appellants' Opening Brief is moot. Further, as this
appeal was not frivolous, we deny Appellee's motion for costs.
20
dismissing with prejudice Appellants' actions is
AFFIRMED.
TRAXLER, Circuit Judge, dissenting:
With respect, I dissent. In my opinion, the district court abused its
discretion by dismissing these cases with prejudice under Rule 37(d)
as a first sanction for plaintiffs' 3 month delay in completing their
response to defendant's last minute discovery requests.
Donna Zornes and Shirley D'Amico ("plaintiffs") filed these law-
suits against Specialty Industries, Inc. ("defendant") in January 1996.
Discovery disputes ensued, and at times became acrimonious. How-
ever, the discovery delay leading to the dismissal under Rule 37(d)1
-- plaintiffs' tardy responses to defendant's discovery -- lasted less
than four months, during which time the magistrate judge (to whom
all discovery oversight had been assigned) issued a single 2-page Rule
to Show Cause that received no further action and held a single hear-
ing which resulted in no written order and for which we have no tran-
script. The magistrate judge never issued an order compelling
plaintiffs to produce discovery by a specific deadline or face dismissal
and, despite defense counsel's requests, never imposed a sanction
upon plaintiffs' counsel -- opting instead to recommend, as the first
sanction, outright dismissal of plaintiffs' complaints. The district
judge, also without conducting a hearing or issuing a prior order,
accepted the recommendation and dismissed the actions.2
_________________________________________________________________
1 Under Rule 37(d), the district court may impose sanctions "[i]f a party
... fails ... to serve answers or objections to interrogatories submitted
under Rule 33 ... or [ ] to serve a written response to a request for inspec-
tion submitted under Rule 34." Fed.R.Civ.P. 37(d). Although the major-
ity has also referenced the inherent authority of a judge to impose the
sanction of dismissal, see, e.g., United States v. Shaffer Equip. Co., 11
F.3d 450, 462-63 (4th Cir. 1993), the district judge relied solely upon
Rule 37(d).
2 In relating the background of this case, I have noted when hearings
were not held by the magistrate judge or district judge. I fully recognize
that Local Rule 105 of the District of Maryland permits courts to rule
upon motions without a hearing and I know that this is a common prac-
21
In recommending dismissal, the magistrate judge erroneously con-
cluded that defendant had been prejudiced by a 10-month delay in
receiving responses to its discovery requests. The district judge recog-
nized the error, as defendant's requests were not served until August
1996 and were "answered properly" in plaintiffs' second supplemen-
tal responses served on December 20, 1996. J.A. 255. Yet the district
judge, eight months after these complete responses were served, nev-
ertheless dismissed both complaints pursuant to Fed.R.Civ.P. 37(d),
having concluded that defendant had been prejudiced because the
December 20 production had "included a one hundred page journal
entry which [p]laintiff D'Amico had previously denied existed." J.A.
255. Unfortunately, this finding was erroneous -- the product of sev-
eral misrepresentations made to the district judge concerning the dis-
covery at issue.
Thus, I dissent, not because I condone the delay by plaintiffs'
counsel, but because the events below do not rise, as a matter of law,
to the level necessary to justify, as a first sanction, the drastic conse-
quence of dismissal with prejudice. In my opinion, its imposition was
unduly hasty, unfair to plaintiffs, and inconsistent with prior decisions
of this court.3
_________________________________________________________________
tice in the various districts, including my own. The decision to conduct
or forgo a hearing under these circumstances is indeed a matter of discre-
tion on the part of district courts, but the exercise of this discretion is
appropriately considered by this court in reviewing an imposition of the
most harsh sanction available. As will be pointed out later, there were
misconceptions on the part of the magistrate judge and the district judge
regarding important facts in this case which might have been eliminated
with courtroom hearings. Accordingly, I would temper the deference
normally given the trial court's decision in these matters because this
deference is predicated to a certain extent on the contact the district court
has with the attorneys and litigants and here this contact was very lim-
ited.
3 Alarmed by inconsistencies between the incomplete joint appendix
before us and troublesome assertions made by defense counsel, I
requested and reviewed the full record below. Having found therein sub-
stantially relevant information, I have relied upon it in this dissent.
22
Facts
As reflected in the majority opinion, the procedural history of this
case is convoluted. Although plaintiffs filed these lawsuits in January
1996, virtually no discovery was conducted by either side during the
ensuing months. When plaintiffs' counsel served interrogatories and
requests for production on April 26 however, conflicts began to arise.
Defense counsel served answers and objections to plaintiffs' discov-
ery, which plaintiffs' counsel felt were incomplete. She wrote defense
counsel a letter on June 12, within 20 days after receipt of the
responses, in an attempt to informally resolve the problem. In my
opinion, such a practice is commendable and should be encouraged.4
Defense counsel ignored the first letter, so plaintiffs' counsel made a
second attempt at an informal resolution. This second try at a resolu-
tion short of court intervention was met by a flat refusal from defense
counsel, who then called her on the 20-day rule. Continuing her
efforts to secure complete responses to her discovery requests, plain-
tiffs' counsel filed a motion to compel on August 5. 5
Five days later, on August 9, defense counsel served his first set
of written discovery requests -- five months after the first scheduling
order was issued and at the latest possible time to afford a response
under the discovery deadline, which had already been extended by
consent to September 9. Thus, it is hardly surprising that defense
counsel joined with plaintiffs' counsel on September 6 (three days
before plaintiffs' responses were due) in obtaining an additional 30-
day extension of discovery to October 9. Defense counsel, however,
refused to allow plaintiffs any additional time to respond to defen-
dant's outstanding discovery requests, and on September 16 filed a
motion to compel, a motion to shorten plaintiffs' time to respond to
_________________________________________________________________
4 As noted by the majority, Local Rule 104.8(a) of the District of Mary-
land requires a party dissatisfied with discovery responses to serve a
motion to compel within 20-days of the party's receipt of the responses.
Local Rule 104.8(b) also encourages counsel to confer with one another
and attempt to resolve disputes before or immediately after a motion to
compel is filed.
5 On August 22, the magistrate judge summarily denied this motion, as
he had the right to do, because technically it was made beyond the 20-
day time limit.
23
the motion to compel, and a motion for sanctions. Defense counsel
contends these motions were necessitated by the October 9 deadline
-- an interesting theory given his own contribution to the discovery
delays -- yet there is no indication the court was putting time pres-
sures upon the litigants.
Immediately upon receipt of the defendant's motions, the magis-
trate judge on September 19 issued a Rule to the plaintiffs to show
cause why an order should not be issued dismissing their cases with
prejudice or imposing other sanctions. The magistrate judge simulta-
neously denied the defendant's motion to shorten the plaintiffs' time
to respond, specifically noting that any prejudice the defendant might
suffer as a result of the impending October 9 deadline was "of its own
making by waiting so long to propound discovery requests." J.A. 75.6
Plaintiffs' counsel filed a response to the Rule on September 23,
within the court's deadline, and attached her discovery responses,
which resulted in her missing the original 30-day time limit for
response by 14 days.
This Rule is significant for several reasons. First, and most impor-
tantly, no hearing was held, no order predicated upon the Rule was
issued, and no sanctions were imposed. Second, this Rule would turn
out to be the only written document issued by the court prior to the
decision to sanction plaintiffs by dismissing their cases. Third, this
Rule, which as stated above was never acted upon by the court, con-
tained a footnote in which the magistrate judge stated, that "[f]ailure
to timely respond to discovery requests is considered a waiver of any
objections that the answering party may have to any of the requests."
J.A. 76. Although the Rule was never acted upon, the district judge
and the majority would later attach great significance to this footnote.
On October 1 and 2, defense counsel deposed plaintiff D'Amico.
During this deposition, D'Amico advised defense counsel that she and
_________________________________________________________________
6 The majority states that the Rule to Show Cause was issued when
plaintiffs failed to respond to the motion to compel. However, the motion
to compel was not served until September 16 and the Rule to Show
Cause was filed September 19. Thus, I would not conclude that the Rule
was issued because plaintiffs "failed to respond" to defendant's motion
to compel.
24
Zornes had been keeping journals of incidents which occurred in the
workplace. Plaintiffs served supplemental responses to defendant's
written discovery requests on October 8, in accordance with
Fed.R.Civ.P. 26(e), but did not produce the journals, apparently
asserting that the journals were protected by the attorney-client and
work-product privileges. Defendant, however, raised no claim of a
deficiency in the October 8 responses with the court until November
14, when it filed a motion to compel plaintiffs to withdraw their
objections and supplement their responses -- four days in advance of
a hearing which had been scheduled for November 18 to address sev-
eral unrelated discovery motions filed in the interim. It apparently
escaped notice that, in doing so, defendant violated, with impunity,
the same 20-day deadline for filing a motion to compel imposed by
Local Rule 104.8 that defendant had earlier enforced against plaintiff.
Defense counsel argued in part that he was entitled to the journal
because D'Amico had waived the attorney-client and work-product
privileges by discussing the journal during her deposition, and
attached in support the portions of D'Amico's deposition transcript in
which she disclosed the journal's existence.
The November 18 hearing was the only hearing ever held in this
case. Yet there is no written order from it to review, and the parties
have not given us the benefit of a hearing transcript. According to the
magistrate judge, however, counsel reached an agreement during the
hearing as to what supplemental discovery would be produced by
each side. In addition, the magistrate judge determined, despite the
footnote in the Rule to Show Cause, that plaintiffs had not, in fact,
waived objections based upon the attorney-client and work-product
privileges. We also know, from the docket sheet, that the September
16 motion to compel which led to the Rule was deemed to be
"[m]oot[ ]" at the conclusion of the hearing. J.A. 6. Significantly, the
magistrate judge imposed no deadline for the exchange of materials,
the completion of discovery, the filing of dispositive motions, or the
trial, leaving me doubtful that the discovery issue was as severe as
defense counsel would now have us believe. Instead, the magistrate
judge asked both counsel to agree upon the remaining discovery
deadlines and advise him of an agreed deadline for dispositive
motions only. According to the report and recommendation, "the par-
ties were put on notice that further character attacks by or upon coun-
sel for either party would not be tolerated, and the parties were
25
ordered to agree upon a revised discovery time table and proceed with
the conclusion of discovery." J.A. 209. There is no indication plain-
tiffs' counsel was singled out for a specific warning and no sanctions
were imposed during the hearing.
Counsel thereafter agreed to a written discovery exchange date of
December 12 and a discovery deadline of December 31. On Decem-
ber 12, plaintiffs' counsel notified defense counsel that her supple-
mental responses were not ready and that some additional time was
necessary. Since this was not, in my opinion, a court-mandated
exchange date, the parties were free to alter their agreed-upon sched-
ule. Defense counsel declined to do so, however, and filed the motion
to dismiss four days later. The discovery requests were "answered
properly" in plaintiffs' supplemental responses served on December
20, which included production of the journal discussed during
D'Amico's deposition. J.A. 255. Although the journal was produced
one week beyond the agreed-upon December 12 exchange date, the
discovery deadline had not yet passed, dispositive motions were not
due until January 31, 1997, and there was no trial date set. Indeed, the
pre-trial conference was not scheduled to be held until late March
1997.
Nevertheless, seven months after the motion to dismiss was filed,
the magistrate judge recommended dismissal with prejudice for what
he mistakenly believed had been a 10-month delay by plaintiffs in
fully responding to defendant's requests. The district judge correctly
noted that there had been only a 3 month delay, but believed (at the
suggestion of defense counsel) that D'Amico had unequivocally
denied the existence of the journal during her deposition and that
defendant first learned of this document in December 1996, when in
fact D'Amico had unquestionably disclosed the existence of her jour-
nal during the very same deposition. Assuming that defendant had
been prejudiced by plaintiffs' production of the journal on December
20, the district judge dismissed plaintiffs' complaints.7
_________________________________________________________________
7 The majority has also described the events which transpired after
December 20, primarily plaintiffs' counsel's attempt to conduct discov-
ery after December 31 and the motion for default filed in January 1997.
In response to these events, the magistrate judge suspended the disposi-
26
Discussion
It is well established that dismissal under Rule 37(d) should be lim-
ited to "the most flagrant case, where the party's noncompliance rep-
resents bad faith and callous disregard for the authority of the district
court and the [r]ules." Mutual Fed. Sav. & Loan Ass'n v. Richards &
Assocs. Inc., 872 F.2d 88, 92 (4th Cir. 1989). This is because dis-
missal "infringe[s] upon a party's right to trial by jury under the sev-
enth amendment and runs counter to sound public policy of deciding
cases on their merits, and against depriving a party of his fair day in
court." Wilson v. Volkswagen of Am. Inc., 561 F.2d 494, 503-04 (4th
Cir. 1977) (footnotes and internal quotation marks omitted).
A district court's decision to grant sanctions under Rule 37(d) is
reviewed on appeal for abuse of discretion. See Wilson, 561 F.2d at
505. "This does not mean, though, that an appellate court should auto-
matically affirm such exercise of discretion," and "an appellate court
would be remiss in [its] duties if [it] chose only to rubber stamp such
orders of lower courts." Id. at 505-06 (internal quotation marks omit-
ted) (alteration in original). Rather, this court"is obligated to consider
the full record as well as the reasons assigned by the [district court]
for its judgment, and to reverse the judgment below, if after such
review, the appellate court has a definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors." Id. at 505 (internal
quotation marks omitted). The specific factors are (1) whether plain-
tiffs acted in bad faith; (2) whether defendant has been prejudiced in
the defense of the lawsuit, which includes an inquiry into the materi-
_________________________________________________________________
tive motions deadline and stayed further discovery pending resolution of
the existing motions. I do not quarrel with the court's frustration with
plaintiffs' counsel after receiving defendant's motion to dismiss, but the
district judge specifically noted that no sanctions would be imposed upon
Zornes and D'Amico for these acts. They were instead the subject of the
court's imposition of a personal sanction against plaintiffs' counsel
under Fed.R.Civ.P. 11, consisting of a fine and attorneys' fees incurred
by defendant in responding to the motion for default. Because they are
not a subject of the district court's decision to dismiss the claims of the
plaintiffs, I do not rely upon them.
27
ality of the evidence which was not produced; (3) the need to deter
the type of noncompliance at issue in the future; and (4) the effective-
ness of less drastic sanctions as a preliminary deterrent. See Mutual,
872 F.2d at 92; see also Hathcock v. Navistar Int'l Trans. Corp., 53
F.3d 36, 40-41 (4th Cir. 1995). In addition, the court must consider
whether plaintiffs were clearly warned of the threat of dismissal and
given an opportunity to avoid the sanction. See Hathcock, 53 F.3d at
40. Applying these factors, I am convinced that the district court
abused its discretion in this case by dismissing these cases.
An Insufficient Warning, And Never
A Less Drastic Sanction
In this case the majority equates, wrongly I believe, the required
consideration of warnings with that of the effectiveness of less drastic
sanctions. Specifically, the majority concludes that the magistrate
judge's failure to impose any sanction prior to recommending outright
dismissal of plaintiffs' complaints was justified by plaintiffs' coun-
sel's disregard of his prior warnings. In my view, the "warnings"
issued by the magistrate judge, and relied upon by the majority, fall
far short of the clarity and specificity required to justify imposition of
dismissal with prejudice. And, they certainly do not rise to a level suf-
ficient to justify a complete disregard of the "lesser sanctions"
strongly encouraged, except in the most unusual cases, as a predeces-
sor to dismissal or default.
I begin with the lack of sufficient "warnings" of dismissal, the sig-
nificance of which has been often emphasized by this court. See
Hathcock, 53 F.3d at 40; Anderson v. Foundation for Advancement,
Educ. & Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir.
1998). It is well settled that "fairness to the plaintiff[s] and [ ] the
sound public policy of deciding cases on their merits" require that dis-
trict courts "make the threat of th[e] sanction [of dismissal] explicit
and clear so that there can be no question . . . as to whether a plaintiff
who did not satisfy the conditions understood that, by not satisfying
them, he faced prejudicial dismissal." Choice Hotels Int'l v. Goodwin
& Boone, 11 F.3d 469, 473 (4th Cir. 1993) (internal quotation marks
omitted) (emphasis added); see also Hathcock, 53 F.3d at 40 (explain-
ing that the litigant "`is entitled to be made aware of th[e] drastic con-
sequence[s] of failing to meet the court's conditions at the time the
28
conditions are imposed, when he still has the opportunity to satisfy
the conditions and avoid' the sanction.") (quoting Choice Hotels, 11
F.3d at 473). Simply stated, the law requires that prior to any dis-
missal the offending party be sufficiently warned of the possibility of
dismissal and be given a reasonable opportunity to avoid the sanction.
In concluding that "clear" warnings were given, the majority relies
upon three events. In my opinion, however, these incidents fall woe-
fully short of supporting the conclusion that the district court's dis-
missal was preceded by explicit and clear warnings that dismissal
would be entered if plaintiffs failed to file supplemental responses to
defendant's discovery by a specific date or otherwise failed to comply
with some specific condition of the court.
The majority first relies upon the magistrate judge's August 22
order denying plaintiffs' motion to compel, characterizing it as an
"express[ ] warn[ing] [to plaintiffs] early in the parties' litigation that
further discovery abuse would result in the dismissal of their actions."
Majority op. at 10. This August 22 order provides no warning of pos-
sible dismissal -- it does not even mention the word. Rather, in this
3-page order (issued without benefit of a hearing), the magistrate
judge stated that:
The purpose of Local Rule 104.8 is to have counsel mutu-
ally attempt to resolve their differences before requiring the
Court's intercession. The Rule works to save considerable
judicial time. No party should be allowed to thwart the pur-
poses of the rule or to ignore the time requirements imposed
by the Rule.
J.A. 47. Hardly a clear warning that dismissal was a possibility, the
order at best notified plaintiffs' counsel that the 20-day rule for filing
motions to compel would be strictly enforced. There is no indication
plaintiffs' counsel made the mistake a second time, although in my
view defendant's November 14 motion to compel ran afoul of it. Per-
haps most importantly, neither the magistrate nor the district judge
relied upon this as a warning of impending dismissal.
The majority next relies upon the magistrate judge's two-page Rule
to Show Cause, also issued without benefit of a hearing, which reads
29
as follows: "Plaintiff is instructed that her failure to timely comply
with this Show Cause Order and show good cause why she failed to
reasonably respond to discovery requests may result in her action
being dismissed with prejudice." J.A. 76.8 Plaintiffs' counsel timely
responded to the Rule, and the magistrate judge issued no order predi-
cated upon it, ultimately ruling at a November 18 hearing that the
motion to compel prompting the Rule was moot. Obviously the court
felt, at least at the time, that no further action was justified. Thus, I
do not understand how this Rule can be an explicit and clear warning
that failure to satisfy a specific condition of the court would lead to
prejudicial dismissal. See Choice Hotels, 11 F.3d at 473. It was a
warning, but hardly issued in a way that would alert plaintiffs that dis-
missal might be issued as the first sanction whenever, in the future,
the magistrate judge decided to recommend it.
Finally, the majority relies upon statements purportedly made dur-
ing the November 18 hearing before the magistrate judge. However,
the record does not indicate that plaintiffs' counsel was warned that
dismissal was imminent at that time. With no hearing transcript or
written order to inform us, there is no way to ascertain exactly what
was conveyed to the parties. According to the report of the magistrate
judge, however, "the parties were put on notice that further character
attacks by or upon counsel for either party would not be tolerated."
J.A. 209. Thus, he does not state that plaintiffs' counsel was warned
that dismissal of the lawsuits loomed on the horizon. Significantly,
the district judge relied upon no statements made during the hearing
as a basis upon which to find that plaintiffs' counsel had been clearly
and explicitly warned that dismissal was imminent. 9
_________________________________________________________________
8 Although the magistrate judge referenced plaintiffs' violation of
Local Rule 104.8 in a footnote to his Rule to Show Cause, the Rule is
the first and only place that dismissal is mentioned.
9 Defense counsel asserts that the magistrate judge "advised [p]laintiffs
that the Court's Show Cause Order `meant what it said' with respect to
objections, and [that] [p]laintiffs were ordered to submit discovery
responses to [d]efendant without objections, with the exception of objec-
tions based on attorney work product or attorney-client privilege." Brief
of Appellee at 6. In support of this quote it attributes to the magistrate
judge, defense counsel refers us to a docket entry which merely tells us
that a marginal order was entered "granting in part [and] denying in part
30
Thus, I disagree with the majority's conclusion that these warnings
were of sufficient clarity to warrant dismissal with prejudice.
Nowhere did the magistrate judge make the threat of dismissal so
explicit and clear as to leave "no question" that plaintiffs' counsel,
much less the plaintiffs themselves, understood that the plaintiffs
"faced prejudicial dismissal" for failing to satisfy a specific condition
of the court.
I also disagree with the majority's conclusion that these purported
warnings justify the presumption by the lower court, endorsed by the
majority, that a lesser sanction would have been futile. This court has
"encouraged trial courts initially to consider imposing sanctions less
severe" than dismissal or default. Hathcock , 53 F.3d at 41. Compare
Mutual Federal, 872 F.2d at 93-94 (upholding default judgment
where less severe sanctions had little, if any, impact on defendant's
conduct, and defendant failed to comply with orders compelling dis-
covery after being specifically threatened with contempt and warned
that continued noncompliance could result in default), with Hathcock,
53 F.3d at 40-41 (vacating default judgment where plaintiff had some
knowledge of unproduced material and the district court had issued
no prior sanctions or warnings of default).
In this case the district court did not oversee discovery, yet its first
discovery order granted defendant's motion to dismiss plaintiffs'
complaints for alleged discovery abuse. Without ever conducting a
single hearing, the district court did so based upon unclear and non-
specific admonitions by the magistrate judge and relied upon those
same admonitions to, in effect, disregard the required consideration
of lesser sanctions. In my view, this was an abuse of discretion.
_________________________________________________________________
[the] motion of defendant to Compel plaintiffs Zornes and D'Amico to
fully respond to discovery requests." J.A. 7. It provides us with no sup-
port for the purported "warning" by the magistrate judge.
Defense counsel's assertion is unusual, given his concurrent attacks
upon plaintiffs' counsel for her attempt to supplement the joint appendix
before us. Under defense counsel's view of the rules, plaintiffs' counsel
should be barred from arguing anything not contained in the joint appen-
dix, even if it is in the district court record, while he is allowed to make
representations not backed up in either place.
31
Whose Bad Faith?
I next address the district court's conclusion that the plaintiffs acted
in bad faith because they failed to meet two discovery deadlines and
asserted objections to defendant's discovery requests in their initial
responses. First, I believe the objections are unfairly characterized as
a direct violation of the Rule to Show Cause. As an initial premise,
the Rule was not an order granting the motion to compel responses
by a specific date, nor an order imposing sanctions. Rather, the Rule
directed counsel to advise the court why discovery responses had not
been served and to demonstrate "why an [o]rder should not be passed"
imposing sanctions. J.A. 75 (emphasis added).10 Thus, I am extremely
reluctant to view this footnote in the Rule as being an "order" that
plaintiffs had waived all objections to defendant's discovery requests.11
Furthermore, plaintiffs' counsel's response to the Rule obviously sat-
isfied the magistrate judge because he issued no follow-up order and
later ruled that all objections had not been waived by the plaintiff. I
am also troubled because there is no reference in the record to any
violation of the Rule until the magistrate judge issued his recommen-
dation for dismissal over nine months later.12 In summary, I am
_________________________________________________________________
10 By definition, a Show Cause Order directs "a person or corporation,
on motion of opposing party, to appear in court and explain why the
court should not take a proposed action. If the person or corporation fails
to appear or to give sufficient reasons why the court should take no
action, the court will take the action." Black's Law Dictionary 1379-80
(6th ed. 1990).
11 Although not referenced in the Rule to Show Cause, the majority
relies upon Rule 33(b)(4), which states that "[a]ny ground not stated in
a timely objection is waived unless the party's failure to object is
excused by the court for good cause shown." Fed.R.Civ.P. 33(b)(4). In
my view, Rule 33(b)(4) is consistent with my belief that the footnote
could have been interpreted as notice that objections would be deemed
waived if good cause was not shown. Any other reading, I believe,
requires a presumption that the magistrate judge had already found an
absence of good cause -- which would seem inappropriate since plain-
tiffs' response to the motion to compel was not yet due.
12 The majority has refused to accept the September 23 responses from
the plaintiffs as supplemental material on appeal, or even to consider
plaintiffs' argument that they had not waived objections. Because they
are the subject of the Rule 37(d) dismissal, I would accept them.
32
unable to discern a clear meaning from the footnote and cannot vote
to deprive the plaintiffs of a decision on the merits because their
counsel ran afoul of the magistrate judge's later clarification -- par-
ticularly given the high standard for imposing dismissal as a sanction.
I am also unprepared to accept the district court's finding of bad
faith because "[p]laintiffs have requested multiple eleventh hour
extensions and have continually disregarded discovery deadlines." J.
A. 253. The contribution of defense counsel to the discovery problem
below cements my opinion. From January to August of 1996, these
cases were the subject of mutual neglect on the part of counsel for
both parties. The requests at issue were not served by defense counsel
until August 9, and without the mutual consent to a 30-day extension
of discovery, defense counsel would have had no time to conduct any
additional discovery. Initial responses were served on September 16,
objections ruled upon on November 18, and the requests were fully
responded to on December 20. In terms of specific deadlines, plain-
tiffs' counsel missed the original September 9 deadline by 14 days,
and the agreed-upon December 12 deadline by 8 days. 13 Thus, I am
loath to conclude that plaintiffs' counsel requested (as found by the
district court) or was afforded (as the majority seems to indicate)
"multiple eleventh hour extensions" as that term has been understood
in previous cases. On the contrary, plaintiffs' counsel has been consis-
tently held to and punished for missing deadlines, not extensions of
deadlines.
In support of the district judge's dismissal, the majority also states
that "the magistrate judge made findings, adopted by the district
court, that [plaintiffs] made affirmative misrepresentations to the
magistrate judge" in their response to the Rule to Show Cause. Major-
ity op. at 13. In my view, this is an overstatement of what the magis-
trate judge found. I begin with the actual response offered by
plaintiffs' counsel to the Rule to Show Cause, filed two weeks after
the initial responses were due and concurrently with those responses:
_________________________________________________________________
13 It should not escape notice that defendant also served a supplemental
response to plaintiffs' discovery requests nineteen days beyond the pro-
posed December 12 exchange date.
33
The Plaintiffs are hard-working people with very little edu-
cation. Their desire to answer the discovery in as complete
a manner as possible was an overwhelming and daunting
task. For example, Plaintiffs' counsel learned that the Plain-
tiffs were laboriously trying to answer the "Instructions"
section of the Interrogatories.
J.A. 77. In support of his motion to dismiss, filed months after this
response was offered, defense counsel argued that he had since had
the opportunity to ask both plaintiffs about this assertion and that
D'Amico "categorically denied that anything of the sort occurred, and
further testified that Ms. Zornes did not appear to have a problem
understanding the discovery requests at issue." (Defendant's Motion
to Dismiss at 2).
In my opinion, this entire issue arose as a result of defense coun-
sel's mis-characterization of the testimony below. What actually hap-
pened is as follows. D'Amico testified that the discovery requests
were confusing and that some of the questions were overwhelming for
her. When asked specifically about the "example" given in the Show
Cause response, D'Amico denied an attempt on her part to "answer"
the instructions, but would not presume to speak on Zornes' behalf.14
_________________________________________________________________
14 When questioned about the second sentence of the response,
D'Amico testified as follows:
Q. Did you at any point, try to answer the instruction in the
document?
A. No, I -- to tell you the truth, lot of this, it's a lot -- it's very
confusing, because -- it's just very confusing.
...
Q. As you were answering the interrogatories did any of the
questions seem difficult to answer or unclear to you?
A. Yeah.
...
Q. Which part of answering the Interrogatories was over-
whelming to you?
A. Just some of the questions were.
34
In support of his motion to dismiss, defense counsel transformed this
testimony into a representation that D'Amico had"categorically
denied" the earlier response on behalf of herself and Zornes. And
while he represented to the court that he had asked both plaintiffs
about the response, he offered no citation to Zornes' testimony on the
issue.15 In his report and recommendation, issued more than nine
_________________________________________________________________
Q. Now, it says here, that Plaintiffs were "laboriously" trying
to answer the "Instructions" of the Interrogatories, that's not
true, is it?
A. For me it wasn't.
Q. Then based on your observations of Ms. Zornes, that's not
true either?
A. I can't make an observation for Donna.
...
Q. Did she ever express any concern to you about anything in
the instructions portion of the interrogatories?
A. No.
...
Q. So based on your personal knowledge, this statement is
untrue; is that correct?
...
A. For me.
Q. For you, that's not true, is it?
A. Right.
J.A. at 229-236.
15 There are no excerpts from Zornes' deposition in the record. In an
earlier attempt to refute the magistrate judge's finding (in the Rule) that
any prejudice to defendant was a result of its own neglect in pursuing
discovery, defense counsel represented that Zornes was deposed in April
(prior to the Rule or plaintiffs' response to the Rule). He now argues that
he questioned both plaintiffs about the Show Cause response, which was
not filed until late September, and learned that the response was untrue.
Once again, the issue is, in my opinion, too unclear to serve as any reli-
able basis for the entry of dismissal as a sanction, particularly as against
Zornes.
35
months after plaintiffs' counsel filed the actual response to the Rule,
the magistrate judge stated that the response was"questionable," J.A.
211, but did not go to far as to characterize it as an "affirmative mis-
representation" by both plaintiffs. The district judge did not mention
the issue -- perhaps because it only involved D'Amico's testimony
or perhaps because the entire issue was too "questionable" a basis
upon which to throw both plaintiffs out of court.
In summary, I believe the record fails to support the majority's
conclusion that the magistrate judge made a "finding" that plaintiffs'
counsel's response to the Rule to Show Cause amounted to an "affir-
mative misrepresentation" by D'Amico and Zornes. Even if I were
inclined to place any emphasis upon the response, deemed "question-
able" by the magistrate judge, I cannot attribute it to plaintiffs, only
to plaintiffs' counsel, and Zornes has been punished despite the fact
that she had nothing to do with either the Show Cause response or the
testimony of D'Amico.
Perhaps what is most troubling to me is that any errors of plaintiffs'
counsel have never resulted in the imposition of sanctions when com-
mitted. Rather, the first sanction ever imposed was the dismissal of
her clients' lawsuits. Although a litigant generally chooses counsel at
its peril, see Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962), "`jus-
tice demands that a blameless party not be disadvantaged by the
errors or neglect of his attorney which cause a final, involuntary ter-
mination of proceedings.'" Lolatchy v. Arthur Murray, Inc., 816 F.2d
951, 953 (4th Cir. 1987) (quoting United States v. Moradi, 673 F.2d
725, 728 (4th Cir. 1982)); see also United States v. Shaffer Equip.
Co., 11 F.3d 450, 462 (4th Cir. 1993) (recognizing, in a similar con-
text, the "strong policy that cases be decided on the merits" and that
imposition of a dismissal sanction should include consideration of
"the extent of the client's blameworthiness if the wrongful conduct is
committed by its attorney" because "we seldom dismiss claims
against blameless clients").
In Lolatchy, the court reversed the sanction of default imposed
upon the defendants because:
the defendants [were] blameless. There ha[d] been no preju-
dice to the plaintiff [because the discovery had been fully
36
answered before the hearing on the default motion]. Any dil-
atory action was on the part of the attorney, not the defen-
dants, it was not drawn out, and continued at the most for
a time span of only a few months. No sanctions short of
default were attempted by the district court. The only sanc-
tion it ever imposed was default as to liability.
Id. at 953. Although recognizing that opposing counsel's frustration
in preparing for trial "may be a sufficient reason for sanctions short
of default judgment," the court held that it"should not suffice as a
reason for depriving the [litigants] of their day in court." Id. at 954.
Rather, a more appropriate sanction would have been to charge the
attorney "with all costs and expenses attendant to the delay, including
attorneys' fees, or even . . . contempt of court." Id. at 953.
Similarly, no sanction short of dismissal was ever attempted in this
case. The entire discovery dispute over the completeness of plaintiffs'
responses lasted less than four months, and it is undisputed that com-
plete responses were in fact served within days of defendant's motion
to dismiss and months in advance of the dismissal order. These facts,
coupled with my adherence to the strong policy of deciding cases on
the merits, lead me to conclude that dismissal was too harsh a sanc-
tion given the insufficient evidence of bad faith on the part of Zornes
or D'Amico.
What Prejudice to Defendant?
It is well settled that the sanction of dismissal should also be
reserved for cases "in which it is demonstrated that the failure to pro-
duce materially affect[s] the substantial rights of the adverse party
and is prejudicial to the presentation of his case ." Wilson, 561 F.2d
at 504 (footnotes and internal quotation marks omitted) (alteration in
original) (emphasis added). And, even where the"failure to produce
results in the discovering party's case being jeopardized or preju-
diced, it is the normal rule that the proper sanction must be no more
severe . . . than is necessary to prevent prejudice to the movant." Id.
(internal quotation marks omitted) (alteration in original). The district
court "must consider how the absence of such evidence [not pro-
duced] would impair [the other party's] ability to establish their case
and whether the non-complying party's conduct [in not producing
37
documents] would deprive [the other party] of a fair trial." Id. at 505
(internal quotation marks omitted) (alterations in original). Further-
more, "when granting such sanction, [the district court] should clearly
state its reasons so that meaningful review may be had on appeal." Id.
(internal quotation marks omitted).
In my opinion, the district court abused its discretion in finding that
defendant was significantly prejudiced by plaintiffs' delay in produc-
ing the journal which "Plaintiff D'Amico had previously denied
existed" during her deposition. J.A. 255. Defense counsel is more crit-
ical -- representing to this court that D'Amico committed perjury by
flatly denying the journal's existence. And, the majority has rejected
plaintiffs' attempt to supplement the transcript of record with addi-
tional excerpts from D'Amico's deposition, which reveal that she in
fact disclosed the existence of the journal over two months before
defense counsel filed his motion to dismiss. Unlike the majority, I am
unprepared to place the brand of "perjury" upon D'Amico, or to rely
upon it to dismiss Zornes' complaint. Moreover, I fail to find suffi-
cient support for the conclusion that defendant was materially preju-
diced by plaintiffs' production of the journal on December 20.
First, too much has been made in this appeal of D'Amico's alleged
"perjury" at her deposition. This is what happened. D'Amico's depo-
sition began on October 1, at which time she denied keeping a journal
of workplace concerns.16 However, the deposition was continued the
_________________________________________________________________
16 During her first day of testimony, D'Amico testified as follows:
Q. Did you review the notebook you've been keeping in this
litigation?
A. What notebook.
Q. Let's start another way, have you been keeping any kind of
notebook to record any of your concerns, about the work-
place?
A. No.
Q. Did you bring a note pad at all to work to write down any
of your concerns?
A. No.
38
following day, and D'Amico volunteered that she was keeping an "in-
cident journal" at her home.17 It is as simple as that, and I am unwill-
_________________________________________________________________
Q. Does Ms. Zornes do that?
A. No.
...
Q. To your knowledge, does Ms. Zornes keep a notebook?
A. I don't know.
Q. Have you ever seen her keep a notebook?
A. No, I haven't.
Q. Have you ever seen her write anything down during the
work-day?
A. No.
...
Q. Outside of the work-place, have you maintained any kind of
notebook or journal?
A. No.
Q. Outside of the work-place, do you know if Ms. Zornes
keeps any kind of notebook?
A. No, I don't know.
J.A. 147-49.
17 On her second day of testimony, D'Amico testified as follows:
Q. You and I discussed yesterday, some occasions when you
spoke with management to discuss your concerns?
A. Yes.
Q. I'm just trying to learn whether there are other occasions
that you might have done so, that were not described yester-
day?
A. I think we touched base with everything.
Q. We did, you're confident of that?
A. So far as I know, yes.
39
ing to find either perjury or prejudice to the defendant from a situation
such as this.
After D'Amico's deposition, plaintiffs' counsel resisted production
of the journal on the basis that it was protected by the attorney-client
and work-product privileges. On November 14, defense counsel filed
a motion to compel plaintiffs to withdraw their objections to produc-
_________________________________________________________________
Q. Are there any documents that would refresh your recollec-
tion to make sure that we did in fact discuss everything?
A. Yeah, I do have an incident journal that I do keep of things
that does happen.
Q. You do keep a journal?
A. Yes, I did.
Q. Yesterday you told me you didn't; is that correct.
A. Right.
Q. What has happened in the past 24 hours to enabled you to
recall something that you specifically told under oath yes-
terday that you did not have?
A. It's not that I don't have it, it's just than I -- you kept ask-
ing me if I kept it at work. If I wrote in it at work and it's
not really a whole lot of paper. All it is just certain dates
where something went down and I wrote notes.
...
Q. Did you have something to hide yesterday?
A. No, I don't have nothing to hide. You kept asking about a
"journal" and this and that, and to me it's not a "journal" all
it is is an incident report, where some things set things in
my mind because this is drawing on so long.
...
Q. Does Ms. Zornes keep a journal of incidents like you do?
A. Yes.
Continued Deposition of Shirley D'Amico taken October 2, 1996 at 225-
30. It is this testimony that the majority has refused to accept as supple-
mental material to the record on appeal.
40
ing the journal, arguing in part that the Rule to Show Cause barred
all objections and, in part, that D'Amico had waived work-product
and attorney-client privileges by discussing the journal during the sec-
ond day of her deposition, October 2.18 Thus, the magistrate judge,
who was overseeing discovery and had been made aware of
D'Amico's testimony disclosing the journal's existence, makes no
mention in his report and recommendation of a previous denial by
D'Amico. He knew the truth about what had happened during
D'Amico's deposition, but mistakenly believed that plaintiffs had
withheld complete responses to discovery for ten months.
Plaintiffs thereafter filed their objections to the report and recom-
mendation, but had no reason to address D'Amico's deposition testi-
mony because the magistrate judge had not relied upon it in any way
in his reasoning. Defense counsel, in response to plaintiffs' objec-
tions, attached copies of only the October 1 deposition testimony of
D'Amico and represented to the district court that she had "previously
deni[ed]" its existence. The district judge, who had not been involved
in the details of the earlier discovery dispute and who held no hearing
on the motion to dismiss, ruled as follows:
The Plaintiffs in the instant case correctly point out that [the
magistrate judge] incorrectly stated that the Plaintiffs pre-
vented the Defendant from preparing an adequate defense to
Plaintiffs' case for ten months by Plaintiffs' tardiness in
answering interrogatories properly. These interrogatories
were not served until August 9, 1996, and were finally
answered properly on December 20, 1996, one week after
the final deadline for the second supplemental answers. This
delay, through clearly not ten months, did prejudice the
Defendant, as the overdue discovery included a one hundred
page journal entry which Plaintiff D'Amico had previously
denied existed. Untimely receipt of such a document just ten
days before the December 31, 1996, discovery deadline
prejudiced the Defendant substantially.
_________________________________________________________________
18 Thus, the October 2 deposition excerpts which plaintiffs have
attempted to submit to this court, contrary to the majority's belief, were
not attached to a "wholly unrelated November 14, 1996 document filed
with the district court." Majority op. at 15.
41
J.A. 255 (citations and internal quotation marks omitted). I note first
that the district court's entire reference to D'Amico's testimony con-
cerning the journal is contained within his finding that defendant was
prejudiced by a 3-1/2 month delay in the production of the journal
"which D'Amico had previously denied existed." J.A. 255. It is obvi-
ous that the district court incorrectly believed that defense counsel
had no prior knowledge of the journal and that plaintiff simply with-
held the document until ten days before the existing discovery dead-
line -- a belief which had been artfully perpetrated by defense
counsel despite the lack of any such finding by the magistrate judge
who, of course, knew better. The district judge also ruled that the
journal's contents prejudiced the defendant, but there is no indication
that the journal was placed before the magistrate judge or district
judge for their evaluation19 and the district judge provided no explana-
tion as to why a lesser sanction would not suffice to "prevent preju-
dice to the movant." Wilson, 561 F.2d at 504.
Perhaps D'Amico did improperly deny the existence of a journal
on the first day of her deposition, although I can equally speculate
that she was confused by the questions or misunderstood them. She
may have believed the journal was privileged -- defense counsel did,
after all, argue that the plaintiffs' claims of privilege in the journal
were waived by D'Amico's discussing the journal on the second day
of her deposition. The crucial fact, of course, is that she disclosed the
existence of her written record the next day during the same
deposition. And even if the testimony was sufficient to support a find-
ing of "perjury" on the part of D'Amico, Zornes has once again been
punished for testimony that she had nothing to do with and over
which she had no control.
Equally troubling to me is the fact that defense counsel knew a
_________________________________________________________________
19 In fact, the exact nature of the journal is entirely unclear to me. The
magistrate judge did not mention it, the district court calls it a "journal
entry," J.A. 255, the majority terms it a "diary," majority op. at 14, and
the defendant makes reference to "journals," Brief of Appellee at 29. I
find it extremely difficult to conclude that the prejudicial effect of this
document (or documents) was carefully considered below, as all indica-
tions are that it was not reviewed by the magistrate judge or district
judge.
42
journal existed on October 2, yet led the district court to believe that
D'Amico had only denied the existence of the journal and that defen-
dant first became aware of it on December 20. He also made the fol-
lowing representation to this court:
[T]he production of a document as vital as Plaintiffs' jour-
nals eight days after the final deadline . . . is extraordinarily
prejudicial to Defendant's defense of Plaintiffs' lawsuit,
especially in light of Plaintiff D'Amico's prior testimony
under oath that neither she nor Plaintiff Zornes maintained
a journal. Obviously, had D'Amico not perjured herself at
her deposition, Defendant could have explored the contents
of Plaintiffs' journals with her at that time. Additionally,
Defendant could have formulated an appropriate discovery
strategy in response to the contents of those voluminous
journals. Indeed, had the journals been produced on Septem-
ber 9, 1996 as required, Defendant would have had almost
four months to conduct the discovery it deemed appropriate
in response to those journals.
Brief of Appellee at 29 (emphasis added). This representation, of
course, was made to this court prior to the plaintiffs' request to sup-
plement the record with D'Amico's October 2 testimony. Clearly mis-
leading, in my view, it obviously necessitated the plaintiff's efforts to
get the entire story before this court.20
_________________________________________________________________
20 The majority denies plaintiffs' motion to supplement the transcript of
record to show the second day of the deposition testimony and thereby
strikes plaintiffs' attempt to refute the "perjury" allegations because
plaintiff did not raise the issue until after defense counsel filed its brief
to this court. There is, in my opinion, an obvious reason for the delay.
As noted above, the magistrate judge made no mention of the issue and
the district court's reference to a "previous denial" amounted to 7 words
in a 27-page order which dismissed both plaintiffs' complaints and
issued Rule 11 sanctions against their attorney. No doubt aware of the
weaknesses in his case, particularly the absence of any fault on the part
of D'Amico or Zornes, defense counsel made an unfortunately successful
attempt to transform this issue into a major one involving perjury by an
individual plaintiff. Representations to the lower court of a "previous
denial," a half-truth at best, culminated in an obvious attempt to mislead
43
With the benefit of the additional deposition testimony, we know
that D'Amico unquestionably disclosed during her deposition that she
had recorded and kept a journal of workplace incidents. We also
know that defense counsel asserted, at the conclusion of the deposi-
tion, a right to continue the deposition if necessary, but never sought
to do so. Defense counsel also made no motion to compel until
November 14. The record does not tell us exactly how production of
the journal came about, but it appears that counsel, with the magis-
trate judge's assistance, reached an agreement during the November
18 hearing as to what additional documents would be produced to the
other side -- which included the journal. Thus, despite the fact that
the magistrate judge had imposed no deadline for the production of
documents and defense counsel agreed to a December 12 exchange
date, defense counsel asserts irreparable prejudice because the journal
was not produced until December 20.
Rendering these claims of prejudice even more suspect is the fact
that, while defense counsel claims the journal was so critical that it
_________________________________________________________________
this court into believing that D'Amico not only perjured herself in her
deposition on this issue, but also that defense counsel had absolutely no
knowledge that a journal even existed until it was produced on December
20.
Hence, it is clear to me that it was not until receipt of defendant's brief
to this court wherein the defendant branded D'Amico's testimony as
perjury that plaintiffs' counsel realized a most serious misrepresentation
was being made which would require a supplementation to the transcript
of record before this court for us to know what all of the testimony
revealed. Perhaps plaintiffs' counsel should have anticipated the issue
and covered it as an initial matter, but I can likewise reasonably conclude
that she, as most people would, presumed that no effort would be made
to mislead this court.
Thus, while I am sympathetic to the district court, which was appar-
ently provided with less than thorough memoranda and subjected to the
improper assertions of defense counsel, I believe that candor to this court
must not be defined by the contents of the joint appendix, particularly in
cases involving the severe sanction of dismissal or default. The informa-
tion is so important that I cannot understand how the majority can use
the testimony from the first day to condemn D'Amico and then forbid
consideration of the next day's testimony during which D'Amico plainly
told defense counsel about the notes she had made.
44
irreparably prejudiced his ability to defend the cases, and the majority
concludes that the late production "effectively prevented [defendant]
from pursuing any further discovery," majority op. at 17, defense
counsel chose to file a motion to dismiss under Rule 37(d) without
any attempt to reopen D'Amico's deposition to explore the contents
of her journal or to depose Zornes on the contents of the journal
D'Amico claimed that Zornes kept, even though the existing discov-
ery deadline would not pass until December 31, 1996 and the pre-trial
conference would not be held until late March 1997. Nor has defen-
dant at any time contended that the journal, when received, contained
any "incidents" which were not already revealed in plaintiffs' initial
discovery responses or depositions.
At a minimum, defense counsel had knowledge of the journal in
October and ample opportunity to compel its production and explore
its contents. See Hathcock, 53 F.3d at 40-41 (reversing entry of
default, in part because plaintiffs "possessed at least some [but not
full] knowledge of the allegedly discoverable materials [defendant]
failed to produce.").21 These facts, coupled with the lack of explana-
tion as to how late production of the journal, or its contents, actually
prejudiced defendant, leaves me unable to conclude that defendant's
"ability to establish [its] case" has been impaired or that the late pro-
duction of the journal has "deprive[d][defendant] of a fair trial."
Wilson, 561 F.2d at 505. And even if I were to assume that the late
production of the journal was prejudicial, the district court has failed
to explain why no lesser sanction could have sufficed to "prevent
prejudice to the movant." Id. at 504. In my view, a number of more
appropriate options were available.22
_________________________________________________________________
21 I also note that, had plaintiffs' counsel not consented to the second
extension of discovery, defendant would have had no time to conduct
any discovery in response to the journal including, of course, deposing
D'Amico in the first instance. Even with the extension, they had 30 days
to complete discovery -- not the four months asserted -- and by the time
they filed their untimely motion to compel, discovery was over. While
plaintiffs' counsel was equally negligent in pursuing the discovery neces-
sary to prepare her clients' cases, defendant's claims of prejudice are, in
my view, overstated and sharply diminished by its own conduct.
22 For example, the district court could have extended discovery to
allow defendant to explore the incidents, if any, it had not already been
45
I am also unpersuaded by the premise that the money spent by
defense counsel associated with pursuing the discovery responses
rises to the level of prejudice warranting dismissal of the complaints.
If a monetary sanction had been imposed for plaintiffs' counsel's con-
duct after she responded to the Rule to Show Cause, I would support
the district court's attempt to correct any improper behavior at that
time. I would similarly have supported the imposition of such sanc-
tions at the November hearing, along with an appropriate warning. As
it stands, however, plaintiffs' discovery obligations were completed
by December 20, the only existing court deadline was the January 31
deadline for dispositive motions, and there is no indication that a trial
date had been set. Accordingly, any prejudice could have been
addressed by imposing costs and fees, and allowing defendant addi-
tional time to complete any discovery the journal necessitated.23
_________________________________________________________________
made aware of through the interrogatory responses and depositions
and/or barred plaintiffs from raising or relying upon any incidents con-
tained in the journal which had not already been disclosed. To the extent
additional discovery was necessary, the court could have imposed fees
and costs associated with it upon plaintiffs or their counsel. In December
1996, there was certainly no time obstacle to this extension of discovery
for defendant as the pre-trial conference was not scheduled to be held
until March of the following year.
23 Thus, I am also unpersuaded by the majority's reliance upon Zaczek
v. Fauquier County, Va., 764 F.Supp. 1071, 1079 (E.D. Va. 1991), aff'd,
16 F.3d 414 (4th Cir. 1993), and Aerodyne Sys. Eng'g v. Heritage Int'l
Bank, 115 F.R.D. 281, 290-91 (D. Md. 1987). In Zaczek, the court dis-
missed a § 1983 action filed by an unemployed pro se prisoner with "few
assets," after the prisoner had filed over fifty motions in eight months
despite repeated, and explicit, warnings to stop. In Aerodyne, the district
court assumed oversight of the discovery dispute from the magistrate
judge when plaintiffs were two months late in responding, sent a letter
informing counsel that sanctions would be granted unless responses were
received by a certain date, issued a follow-up order requiring an immedi-
ate response and imposing monetary sanctions when not received, and
held a hearing before ruling that the action would be dismissed unless
plaintiff provided full and complete responses by yet another specific
date. I do not quarrel with these cases, but find them to be vastly differ-
ent from this one.
46
Who Has Been Deterred - And From What?
I turn now to the final factor for consideration-- whether the harsh
sanction of dismissal was warranted by the need to deter noncompli-
ance with discovery rules and court directives. As a general rule, I
embrace and appreciate the majority's deference to the "trial judge's
position to supervise the litigants and assess their good faith."
Lolatchy, 816 F.2d at 957 (Wilkinson, J., dissenting) (internal quota-
tion marks omitted). I simply do not find the usual degree of defer-
ence to be warranted in this case.
Prior to issuing his recommendation for dismissal, the magistrate
judge had issued the 3-page order denying plaintiffs' motion to com-
pel without a hearing, and the 2-page Rule to Show Cause without a
hearing and without follow-up. The magistrate judge had counsel
appear before him on just one occasion -- the November 18 hearing
-- which resulted in no sanctions or court-ordered deadlines. And
while the magistrate judge chastised both counsel for their unprofes-
sional behavior during the November 18 hearing, he later recom-
mended dismissal without conducting a hearing. The district judge
accepted the recommendation, without ever issuing a prior order or
holding a hearing. Thus, while I agree that dismissal must be avail-
able as a sanction in appropriate cases, this is not such a case. The
severity of the sanction demands that it follow a clear and specific
warning, the consideration of imposing lesser sanctions in an attempt
to steer the course, and a careful consideration of alternative methods
to resolve any prejudice.
I also believe the laudable goal of deterrence has not been served.
Plaintiffs' counsel has been fined $500 and ordered to pay approxi-
mately $3,400 in attorneys' fees to defense counsel for the motion for
default she filed in January 1997. She may or may not find this to be
a deterrent, but is free to continue practicing law nonetheless. Defense
counsel, buoyed by the result in this case, will likely be encouraged
to litigate similarly in the future. Plaintiffs, on the other hand, have
been forever foreclosed from a decision on the merits.
Conclusion
Having reviewed the entire record in this case, and the factors
which must be carefully applied to evaluate the severe sanction of dis-
47
missal, I am regretfully convinced that the district court abused its
discretion in dismissing plaintiffs' complaints. Dismissal with preju-
dice was imposed as the first sanction in this case, and without a
"clear and explicit" warning that dismissal would result if plaintiffs
failed to comply with a specific order or condition of the court. I
believe it is unacceptable to allow courts to rely upon a Rule to Show
Cause, issued days after discovery responses were first due and which
was timely responded to by the offending party, as a vehicle to dis-
miss complaints months later. If a sanction was warranted, it should
have been imposed within a reasonable time after the response to the
Rule was filed and it should have been based on events which
prompted the Rule in the first instance. I fear the majority has today
eviscerated the purpose behind warnings, for district courts may here-
after threaten dismissal for a minor infraction of timing and forever
rely upon that warning to dismiss at will in the future. And, it appears,
courts may dispense altogether with the consideration of lesser sanc-
tions as a first attempt to correct the behavior of the litigant's attor-
neys -- so long as they have threatened dismissal sometime in the
past.
The majority has also placed great emphasis upon the district
court's findings of bad faith by plaintiffs and undue prejudice to the
defendant. Plaintiffs' counsel is not blameless by any means. She cer-
tainly joined defense counsel's lack of diligence in preparing these
cases for trial and, after being placed under attack by her opposing
counsel, reacted by filing an improvident motion for default judg-
ment. However, in my view, the incomplete representations made by
defense counsel to the court below and an insufficient transcript of
record on appeal have resulted in both the district court and majority
being misled, and my conclusion that defense counsel is equally, if
not more, to blame for the discovery difficulties below.
Thus, I dissent. In my view, the record before us woefully lacks the
clarity and certainty required to impose the harsh sanction of prejudi-
cial dismissal and, instead, reveals a pattern of uncivil and unprofes-
sional behavior on the part of both sides to this controversy. Believing
as I do in the strong policy that cases should be decided on the merits,
rather than on the cunning of the litigants' counsel in conducting dis-
covery, and that Zornes and D'Amico have suffered an unjust sanc-
48
tion, I would remand to the district court for close supervision of the
remaining discovery and a final determination on the merits.
49