United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM DISMISSAL ORDER
REBECCA BEACH SMITH, Chief District Judge.
On September 17, 2012, Plaintiff brought this pro se action alleging employment discrimination on the basis of disability.
As this case progressed and as substantive matters were being considered, discovery disputes were ongoing. Plaintiff initially failed to produce medical records and other information in response to Defendant's discovery requests. Plaintiff expressed concern about the confidentiality of these records. Defendant prepared a consent protective order to address Plaintiff's concern, but Plaintiff refused to sign it. After the impasse could not be resolved, Magistrate Judge Leonard held a hearing on the outstanding discovery issues on June 19, 2013, and issued an Order on June 20, 2013. D.E. # 59. The Order required Plaintiff to submit responsive materials to certain discovery requests by July 5, 2013, and the court entered a Protective Order to cover any confidential information. D.E. # 60.
Nonetheless, Plaintiff continued to refuse to submit medical records and discovery materials responsive to certain requests. Among other things, Plaintiff withheld her relevant medical records, documents relating to her pursuit of Social Security benefits, and documents related to prior EEOC proceedings. See D.E. # 72. Accordingly, Defendant filed a Motion for Supplementary Relief, seeking an Order requiring compliance with the court's earlier Order. D.E. # 65. On December 9, 2013, the court granted Defendant's Motion for Supplementary Relief and again ordered Plaintiff to respond to the requests for production of documents. D.E. # 72. The December 9, 2013, Order compelled responses to the outstanding requests for production of documents, specifically requests 1, 2, 3, 7, and 8. The court explained thoroughly its reasoning and specifically addressed Plaintiff's objections. The Order ruled that Plaintiff's failure to respond was not substantially justified or harmless because her refusal to produce the information would hamper Defendant's ability to defend this action. D.E. # 72 at 7. The court declined, however, to impose monetary sanctions at that time because of Plaintiff's pro se and in forma pauperis status. Instead, Plaintiff was afforded another chance to comply. She was directed to respond fully to discovery no later than December 23, 2013. Defendant was directed to file a Second Motion for Supplemental Relief, if Plaintiff did not timely respond.
Plaintiff did not respond by the deadline. Instead, she filed on December 19, 2013, a Motion for Reconsideration of the December 9, 2013, Order. D.E. # 73. The court denied Plaintiff's Motion for Reconsideration by Order filed December 20, 2013. D.E. # 76.
Defendant then wrote Plaintiff and offered her additional time to comply. Plaintiff replied by letter dated January 3, 2014, reiterating that she refused and that she intended to continue to refuse to produce the documents. After receipt of Plaintiff's letter, Defendant then filed a Second Motion for Supplementary Relief. D.E. # 78. The Second Motion seeks dismissal of Plaintiff's case pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v). Plaintiff responded to the Second Motion for Supplementary Relief, and Defendant replied. Accordingly, the Second Motion for Supplementary Relief is ripe for decision.
Analysis of Second Motion for Supplementary Relief
Dismissal of an action as a result of discovery abuse is obviously one of the most severe sanctions that can be imposed. But, in this case, it is indeed warranted. In determining the appropriate remedy for discovery sanctions, the court must consider, "(1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that non-compliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective." Belk v. Charlotte-Mecklenburg Bd. of Educ. , 269 F.3d 305, 348 (4th Cir. 2001). When dismissal is sought as the sanction, the court specifically considers:
(1) the degree to which the party's non-compliance is due to willfulness, bad faith or any fault of that party and not to simple inability to comply; (2) whether the party's non-compliance has "materially" affected the "substantial rights of the adverse party" and has prejudiced the adverse party's ability to present its case; (3) the degree to which the party's non-compliance represents such "flagrant bad faith" and "callous disgregard" of the party's obligation under the Rules as to warrant the sanction not simply for the purpose of preventing prejudice to the adverse party but as a necessary deterrent to others; and (4) whether the sanction of dismissal is no more severe than is necessary to prevent prejudice to the party moving for dismissal.
Kearns v. General Motors Corp., No. 93-966-A, 1997 U.S. Dist. LEXIS 22294, *8 (E.D. Va. Aug. 8, 1997) (quoting Wilson v. Volkswagen of America, Inc. , 561 F.2d 494, 503-05 (4th Cir. 1977)).
These factors are satisfied in this case. Plaintiff has been repeatedly advised of her obligations both by Defendant and by the court. Plaintiff has advanced a variety of arguments throughout this litigation as to why she should not have to produce her medical records. Her arguments have included that: the records are confidential under HIPAA; that she is entitled to withhold the records because she plans to use them for rebuttal or impeachment during the trial; that the discovery deadline has passed and that therefore the Defendant waived her non-compliance; that the Magistrate Judge's Orders are "illegal" and predicated upon bias; that producing the documents will "disturb" the pending summary judgment motion; and that the requested information could be obtained through FOIA. The court has considered each objection and patiently explained its basis for overruling each argument. Plaintiff is not the final arbiter of what the law is. The court is, and the court has not agreed with Plaintiff.
This court previously found dismissal an appropriate sanction for another litigant who "continue[d] to litigate in a style which apparently suits his own version of how the law should work, but which ignore[d] the reality of how the law does work." Kearns, 1997 U.S. Dist LEXIS 22294, *13. Plaintiff here has acted not out of an inability to comply, or out of confusion, but in obstinate, willful adherence to her incorrect and overruled positions. Magistrate Judge Leonard overruled these positions in the June 20, 2013, Order, and again in the December 9, 2013, Order. Plaintiff did not object to the June 20, 2013, Order, as permitted by 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72. Accordingly, the directives in the June 20th Order became final and binding upon Plaintiff,  and Plaintiff was obliged to comply.
The harm to Defendant is substantial. Document request 1 asked for medical records relevant to Plaintiff's medical treatment since 2008, the first time Plaintiff mentioned the allegedly disabling condition. If this case were to proceed without the complete production of Plaintiff's medical records, Defendant would be required to defend this case with only the selective medical information Plaintiff chose to release - a fundamentally unfair result. Plaintiff cannot maintain a suit premised upon an alleged ...