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Sines v. Kessler

United States District Court, W.D. Virginia, Charlottesville Division

August 9, 2019

ELIZABETH SINES et al., Plaintiffs,
JASON KESSLER et al., Defendants.



         This matter is before the Court on Plaintiffs' Motion for Sanctions Against Defendants Elliot Kline and Matthew Heimbach, ECF No. 457, and Motion for Sanctions Against Defendant Vanguard America, ECF No. 465. Vanguard America was represented by counsel when the motion against it was filed, ECF No. 497, but did not file a brief in opposition. Kline and Heimbach are representing themselves, ECF Nos. 347, 397, and neither filed a brief opposing the motion within the time allowed, see ECF No. 101. The Court held a hearing on June 3, 2019, at which counsel for Plaintiffs and (now former) counsel for Vanguard America appeared in person. The Court sent three notices each to Kline and Heimbach, but neither appeared at the hearing or acknowledged the Court's communications.

         Plaintiffs contend that Kline, Heimbach, and Vanguard America (together, “Defendants”) have disobeyed multiple Court orders directing them to provide or permit discovery of materials and information that go to the heart of this lawsuit. See Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach 3-4; Pls.' Mot. for Sanctions Against Def. Vanguard Am. 3-4.[1] They ask the Court to impose substantive sanctions that will level the evidentiary playing field at trial and “stem the tide of Defendants running from accountability by following each other out the back door, never to be heard from again.” Pls.' Mot. for Sanctions Against Def. Vanguard Am. 3-4; see also Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach 18. Plaintiffs' position is well taken. Indeed, Defendants have continually failed to fulfil even their most basic obligations to this Court, their counsel, and the other parties to this case. See generally Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 640-43 (1976); Young Again Prods., Inc. v. Acord, 459 Fed.Appx. 294, 301-04 (4th Cir. 2011); Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 525-27 (D. Md. 2010). Their refusal to meaningfully participate in discovery-or in Kline's case to participate at all-despite repeated court orders directing them to do so has shifted everyone's focus “from the merits to the collateral and needless” and stalled the litigation's progress for months on end. Lee v. Max Int'l, 638 F.3d 1318, 1321 (10th Cir. 2011) (Gorsuch, J.). This behavior is unacceptable and will be sanctioned. As I explained at the June 3 hearing, however, it would be premature to impose Plaintiffs' requested evidentiary sanctions before making a final attempt to obtain discovery. This Memorandum Opinion further explains my conclusion and sets out the Court's expectations for Defendants' participation in this litigation going forward.

         I. The Legal Framework

         “Litigants come to court to have their problems solved” in a fair, efficient, and orderly forum. See Catzin v. Thank You & Good Luck Corp., 899 F.3d 77, 86 (2d Cir. 2018) (citing Fed.R.Civ.P. 1). The Federal Rules of Civil Procedure are a set of written rules that “for all practical purposes, and with few exceptions, . . . control the procedure in all civil actions in the United States District Courts.” 4 Charles Wright & Arthur Miller, Federal Practice & Procedure § 1011 (4th ed. 2013); see Fed. R. Civ. P. 1, 81. “They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1. And, although “litigation is not a game, ” Bintliff v. United States, 462 F.2d 403, 407 (5th Cir. 1972), federal courts do expect that everyone will play by the same rules on as level a field as is reasonably possible, see McNeil v. United States, 508 U.S. 106, 113 (1993). “Lawyers and litigants who decide that they will play by rules of their own invention will find that the game cannot be won.” Nw. Nat'l Ins. Co. v. Baltes, 15 F.3d 660, 663 (7th Cir. 1994).

         Rules 26 through 37 govern discovery in most civil cases. See Mancia v. Mayflower Textile Servs., 253 F.R.D. 354, 357 (D. Md. 2008). They are rooted in “the unshakable foundation” that “[o]ur adversary system for the resolution of disputes . . . . [is] directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition, ” United States v. Shaffer Equip. Co., 11 F.3d 450, 457 (4th Cir. 1993). See Victor Stanley, 269 F.R.D. at 526; Metro. Opera Ass'n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int'l Union, 212 F.R.D. 178, 181 (S.D.N.Y. 2003). “The basic philosophy” driving discovery today is “that prior to trial every party to a civil action is entitled to the disclosure of all relevant information in the possession of any person, unless the information is privileged.” 8 Wright & Miller, Federal Practice & Procedure § 2001 (3d ed. 2002); accord Hickman v. Taylor, 329 U.S. 495, 501 (1947) (“The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.”). “Discovery, in other words, is not a one-way proposition. It is available in all types of cases at the behest of any party, individual or corporate, plaintiff or defendant.” Hickman, 329 U.S. at 507. “To that end, either party may compel the other to disgorge whatever [relevant] facts he has in his possession.” Id.; see Eramo v. Rolling Stone, LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016).

         Rules 26 through 36 provide specific devices or procedures-such as interrogatories, document requests, and depositions-for one party to obtain discoverable information from another. See Pruitt v. Bank of Am., N.A., No. 8:15cv1310, 2016 WL 7033972, at *2 (D. Md. Dec. 2, 2016) (“Interrogatories and depositions are important elements of discovery; a [party] would be hard-pressed to conduct its case without them.”); Middlebrooks v. Sebelius, Civ. No. 04-2792, 2009 WL 251411, at *3 (D. Md. Aug. 13, 2009) (“The purpose of pre-trial discovery is for a litigating attorney [or party] to obtain information from the opposing party, information which in many cases is not otherwise available.”). Courts rely “in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and their judicial business honestly.” Metro. Opera Ass'n, 212 F.R.D. at 181; see Pack v. S. Car. Wildlife & Marine Res. Dep't, 92 F.R.D. 22, 25 (D.S.C. 1981) (pro se litigant must make a “good faith attempt to comply with rules of discovery and to be present” for court). When they do not, Rule 37 provides one mechanism for a federal court to compel compliance or to sanction an unacceptable failure to follow the rules.[2] Fed.R.Civ.P. 37(a)-(f). Plaintiffs' motions come under Rule 37(b)(2), which gives the district court where an action is pending broad discretion to impose sanctions when “a party, or a party's officer, director, or managing agent, . . . fails to obey an order to provide or permit discovery, ”[3] Fed.R.Civ.P. 37(b)(2)(A). See Law Funder, L.L.C. v. Munoz, 924 F.3d 753, 758 (5th Cir. 2019) (“Rule 37(b)(2)(A) allows a district court to impose a sanction when a party fails to comply with a discovery order, and the court has broad discretion in fashioning its sanction when it does so.”); cf. Indep. Productions Corp. v. Loew's, Inc., 30 F.R.D. 377, 381 (S.D.N.Y. 1962) (explaining that a prior version of Rule 37(b)(2), which allowed courts to impose “sanctions when ‘any party or an officer or managing agent of a party'” failed to obey a discovery order, clearly indicated “that the acts of one determined to be the managing agent of a party are imputed to the party”).

         “Rule 37(b)(2) contains two standards-one general and one specific-that limit a district court's discretion. First, any sanction must be ‘just'; second, the sanction must be specifically related to the particular ‘claim' which was at issue in the order to provide discovery.” Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982). The Fourth Circuit has “developed a four-part test for a district court to use when determining what [substantive] sanctions to impose” under this subsection.[4] Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001) (en banc); see S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). The court must consider: (1) “whether the non-complying party acted in bad faith”; (2) the kind and degree of prejudice that noncompliance caused its adversary; (3) the need to deter the specific sort of noncompliance; and (4) “whether [any] less drastic sanctions” would be effective.[5] Belk, 269 F.3d at 348. “Rule 37 sanctions must be applied diligently, ” Roadway Express, Inc. v. Piper, 447 U.S. 752, 763 (1980), “both as a matter of justice in the individual case and ‘to deter others who might be tempted to similar conduct, '” Lee, 638 F.3d at 1320 (quoting Nat'l Hockey League, 427 U.S. at 643 (brackets omitted)). See Victor Stanley, 269 F.R.D. at 533-34 (explaining that Rule 37 sanctions serve “both normative . . . and compensatory” functions). The sanctions listed in Rule 37(b)(2)(A) “are not exclusive and arbitrary but flexible, selective, and plural. The district court may, within reason, use as many and as varied sanctions as are necessary, ” 8B Wright & Miller, Federal Practice & Procedure § 2284 (3d ed. 2002), to achieve those goals in a particular case. Specific options include an order deeming facts established, allowing or requiring an adverse inference, and entering default judgment against the disobedient party. See Victor Stanley, 269 F.R.D. at 533-34 (citing Fed.R.Civ.P. 37(b)(2)(A)).

         II. Background

         This section summarizes certain factual allegations in Plaintiffs' Amended Complaint. ECF No. 175. “While the Court does not repeatedly state ‘Plaintiffs allege that Defendant X did Y,' this summary should not be taken as the Court's endorsement of one version of the facts” relevant to Plaintiffs' substantive claims for relief against any named defendant. Mem. Op. on Defs.' Mots. to Dismiss Am. Compl. 3 (“Mem. Op.”), ECF No. 335.

         On August 11 and 12, 2017, the “Defendants in this lawsuit, including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in Charlottesville, Virginia. Violence erupted.” Mem. Op. 1; see Am. Compl. ¶¶ 1-7. Plaintiffs, several residents who were injured that weekend, contend that “this violence was no accident”-rather, they allege that Defendants “conspir[ed] to engage in violence against racial minorities and their supporters” in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1985, and related state laws. Mem. Op. 1-2. “While ultimate resolution of what happened at the rallies awaits another day, ” this Court has held that Plaintiffs plausibly alleged that certain Defendants-including Kline, Heimbach, and Vanguard America-“formed a conspiracy to commit the racial violence that led to the Plaintiffs' varied injuries.” Id. at 1; see Order of July 9, 2018 (citing ECF No. 205).

         Plaintiffs contend that Kline, Heimbach, and Vanguard America each played a key role in planning the rallies and that they actively communicated with their co-Defendants and others before, during, and after these events. Most of that activity occurred online. Kline and Defendant Jason Kessler “used an online platform called ‘Discord' for planning. This ‘invite only' platform allowed Defendants and their chosen invitees to engage in private conversations during the lead up to the events.” Mem. Op. 7 (citing Am. Compl. ¶¶ 71-73). Kline and Kessler “moderated and managed Discord, ” while Heimbach, Vanguard America, and others actively participated on the platform. Id. “Conversation on Discord included mundane planning details, racist ‘jokes,' and concrete threats of violence, ” id. at 8, including running over counter-protestors marching in the streets, id. at 42-43.

         A. Elliot Kline (“Eli Mosley”)

         Kline, who also goes by “Eli Mosley, ” is associated with the white-supremacist group Defendant Identity Evropa, which he led from August to November 2017. Am. Compl. ¶¶ 29, 30. Kline “has described himself as the ‘command soldier major of the ‘alt-right, '” id. ¶ 29, and once told rally attendees that he “‘was in the Army'” and intended to run this event “‘as a military operation, '” id. ¶ 192 (capitalization corrected).

         Kline and Kessler “were the principal coordinators for the Unite the Right rally on August 11 and 12, 2017.” Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach Ex. 3, Tr. of Dep. of Jason Kessler 237 (May 16, 2018), ECF No. 457-3; see also Id. Ex. 2, Tr. of Dep. of Erica Alduino 189 (Dec. 3, 2018) (“Jason Kessler and Eli Mosley were the only ones that I can confirm were planners of it.”), ECF No. 457-2. In June 2017, Kline “apparently drafted and circulated” a confidential “intel report, ” titled “Operation Unite the Right Charlottesville 2.0, ” laying out Defendants' plans for Saturday, August 12. Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach 6 (citing id. Ex. 4, ECF No. 457-4, at 2-8). As of June 11, the event was “being organized by” Kline and Kessler “with a few others” acting as event coordinators on Discord. Id. Ex. 4, at 2, 6. Kline also oversaw “Information Sharing, ” and he instructed the “group leaders” who received his report to “not discuss the specifics of this event outside of official discussion channels.” Id. at 5 (“[W]e'd like to keep the info leaks to a minimum on certain things.”). He listed his Discord username, cell phone number, and email address, and encouraged recipients to “[f]eel free to msg/call whenever.” Id. at 6.

         Kline, Kessler, and other Defendants organized a “secret” torchlight parade through the University of Virginia's grounds on the night of Friday, August 11, 2017. Am. Compl. ¶ 143. During one planning call on Discord, Kline told participants, “‘We are doing a torch light event on Friday. Anyone who doesn't have tiki stuff now should go out and get it tonight or tomorrow morning and if you could get extras that would be great.'” Id. ¶ 147 (alteration omitted). On Friday evening, Kline posted on Discord that everyone could “start assembling at Nameless Field right now with your torches to start staging. We will step off from the field at 10 pm.” Id. ¶ 152 (capitalization corrected). Kline “would later approvingly tweet [a] picture” of Defendant Christopher Cantwell “spraying pepper spray in a counter-protester's eyes, saying ‘He protect / He attack / But most importantly he got your back.'” Mem. Op. 33 (quoting Am. Compl. ¶ 172 (brackets omitted)).

         Finally, Kline communicated with others on the ground in Charlottesville on August 12. He and Kessler “exhorted rallygoers to arrive before the park opened to form a ‘white bloc barrier . . . around the entire statue podium. Given that they know we're coming, we'll all need as many people as possible to be there right when the park opens.'” Am. Compl. ¶ 189 (alteration omitted). By 11:22 a.m., local law enforcement declared an unlawful assembly and ordered everyone to leave. Id. ¶ 223. Several Defendants went to nearby McIntire Park where they “discussed returning to Emancipation Park in defiance of police orders.” Id. ¶ 231. Kline went online looking for “people with guns: ‘I need shooters,' he said. ‘We're gonna send 200 people with long rifles back to that statue.'” Id.

         B. Matthew Heimbach

         Heimbach once chaired “two different white supremacist groups” that sent members to Charlottesville for the rallies: “Defendant Traditionalist Worker Party (‘TWP'), a group founded to promote anti-Semitism; and Defendant Nationalist Front, an umbrella organization of approximately twenty white supremacist organizations, including racist skinhead crews, Klan groups, and neo-Nazi groups.” Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach 10-11. “Heimbach posted over 4, 000 messages on Discord, including some in the ‘Charlottesville 2.0' sever, and led in-person meetings to help other Defendant groups” plan for the rally. Id. at 11. “He instructed TWP members on details such as what to wear . . . and provided his followers with ‘official TWP riot shields' and ‘a dozen helmets . . . painted black with Party insignia on them'” Id. (quoting Id. Ex. 13, MattewHeimbach, Discord (July 23, 2017), ECF No. 457-13, at 3-4 (punctuation corrected)). “It'll be solid, ” he wrote. Id. Ex. 13, MattewHeimbach, Discord (July 30, 2017), ECF No. 457-13, at 5 (punctuation corrected). “Alongside our . . . Vanguard America allies, we'll have an unbreakable line.” Id. (capitalization corrected).

         Heimbach also “organized and led marchers from TWP on August 12.” Am. Compl. ¶ 200. He and a few other Defendants “allegedly engaged in many of the most specific acts of violence in furtherance of the conspiracy.” Mem. Op. 34; see Am. Compl. ¶¶ 187-88, 214, 268. Heimbach later deemed the rally a success: “‘We achieved all of our objectives. We showed that our movement is not just online, but growing physically. We asserted ourselves as the voice of white America. . . . I think we did an incredibly impressive job.'” Am. Compl. ¶ 268.

         C. Vanguard America

         Vanguard America is a white nationalist group with twelve chapters across the country. Am. Compl. ¶ 25. Vanguard America had its own Discord server, “Southern Front, ” where it encouraged members to attend the rallies. Id. ¶ 114. A Discord user called “Thomas Ryan” urged other “members to contact him directly if they planned to attend the ‘Unite the Right' event and if they wanted to travel together in a ‘hate bus,' saying: ‘This event is a **BIG DEAL** and offers a chance to link up Vanguard Guys from across the nation.' He also issued orders on the proper Vanguard uniform for the event, ” which another member described as “‘a good fighting uniform.'” Id. ¶¶ 114-15. Plaintiffs believe that “Thomas Ryan” is Thomas Ryan Rousseau, one of Vanguard America's leaders. Id. ¶ 114. Thomas Ryan knew Vanguard America's members planned to carry concealed weapons at the event, but he instructed them not to openly carry large knives because that would “look[] really dumb.” Id. ¶ 115. Some members planned to bring shields with matching logos. Id. ¶ 121. Vanguard America made twenty extra shields so its members were prepared to “remove whoever is in [their] way.” See Id. ¶ 191.

         Many of Vanguard America's members, including Defendant James Fields, attended the rallies wearing polo shirts and khaki pants and armed with large shields bearing the group's logo. See Am. Compl. ¶¶ 24-25, 115, 153, 197. On the morning of August 12, Vanguard America's members led the march to the park “chanting ‘Blood and soil!'” Id. ¶ 197. That afternoon, Fields intentionally drove his Dodge Challenger into a group of counter-protesters, killing one person and injuring several Plaintiffs. Id. ¶ 23. Vanguard America members later used the Southern Front server to share memes celebrating Fields's conduct, including “a picture of Plaintiff Martin flying through the air with the caption ‘Can't Dodge This.'” Id. ¶ 266. Another member “wrote: ‘I don't think we should hand out shields anymore. . . . We should hand out Dodge Challengers instead.'” Id. (capitalization corrected). A third member wrote that the Unite the Right rally “was the biggest victory for our movement history. It was glorious. . . . We gave many people shields, we fought and shed blood for our people today.” Pls.' Mot. for Sanctions Against Def Vanguard Am. Ex. 21, ECF No. 465-21.

         III. Procedural History

         Plaintiffs filed this lawsuit on October 11, 2017. ECF No. 1. Kline was properly served with a summons and copy of the Complaint at his residence in Pennsylvania on October 27, ECF No. 62, and Heimbach was personally served at his residence in Tennessee on November 6, ECF No. 108. Vanguard America was served through its representative, “Dillon Ulysses Hopper a/k/a Dillon Irizarry, authorized to accept, ” at a residential street address on November 17. ECF No. 157. All three Defendants retained Elmer Woodard, Esq., and James Kolenich, Esq., to represent them in this matter beginning on December 1, 2017. ECF No. 131. Plaintiffs filed their Amended Complaint in early January 2018.

         A. January 2018: Plaintiffs Serve Their Discovery Requests

         On January 25, 2018, Plaintiffs served their First Set of Requests for Production of Documents and First Set of Interrogatories on Kline, Heimbach, and Vanguard America. See Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach 5-6, 10-11; id. Ex. 8, ECF No. 457-8; id. Ex. 9, ECF No. 457-9; Pls.' Mot. for Sanctions Against Def. Vanguard Am. 6-7. The requests asked each Defendant to produce “all documents and communications concerning the events” described in the Amended Complaint, including any emails, text messages, recordings, or social media content related to the “preparation, planning, transportation to, or coordination for” those events. Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach Ex. 8, at 9 (capitalization altered). The interrogatories asked each Defendant to “identify, among other things, all means of communication used to discuss the events, . . . as well as the [specific] electronic devices used for such communications.” Pls.' Mot. for Sanctions Against Defs. Kline & Heimbach 8 (citing id. Ex. 9, at 9). Defendants' proper responses or objections were due by February 26. See Pls.' Mot. for Sanctions Against Def. Vanguard Am. Ex. 23, Letter from J. Fink to J. Kolenich & E. Woodard (Mar. 9, 2018), ECF No. 465-23; Fed.R.Civ.P. 33(b)(2), 34(b)(2).

         B. March 16, 2018: First Order to Provide or Permit Discovery

         I held my first conference call with the parties on March 16, 2018. See Tr. of Mar. 16, 2018 Conf. Call, ECF No. 282. Plaintiffs' counsel explained that they had “not received any written responses to [their] requests for documents or [their] interrogatories from any of the defendants, ” and “none of the defendants ha[d] produced a single document.” Id. at 10. Counsel also had “very, very serious concerns” that relevant electronically stored information (“ESI”) would be lost or destroyed unless the Court issued a preservation order. See Id. at 23. I told everyone on the call that I expected them “to preserve any potentially relevant evidence” and I took their “obligation to preserve this evidence very seriously.” Id. at 24. I also instructed the parties to meet and confer to see if they could negotiate an ESI protocol for my review. Id. at 28; see also Id. at 23 (Plaintiffs' counsel noting they were “thinking about [making] a request for an independent examiner to come in and do . . . an audit of [Defendants'] devices to make sure nothing has been deleted and, if it has, to try to get it restored”). They said that they would.

         C. March 26, 2018: Second Order to Provide or Permit Discovery

         On March 26, 2018, I issued an Order denying a pro se defendant's motion to stay discovery and giving Kline, Heimbach, and Vanguard America (and others) twenty-one days to answer, respond, or object to Plaintiffs' written discovery requests. See Order of Mar. 26, 2018, ECF ...

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