United States District Court, D. Colorado
KATHLEEN M TAFOYA, UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on “Plaintiff’s Motion for Sanctions” [Doc. No. 124] (“Mot.”) filed April 22, 2015. Defendants American Medical Response, Inc. (“AMR”), Global Medical Response, Inc. (“GMR”) and Emergency Medical Services Corp. (“EMSC”) (collectively “Defendants”) filed “Defendant’s (sic) Opposition to Plaintiff’s Motion for Sanctions” [Doc. No. 130] (“Resp.”) on May 19, 2015 and Plaintiff filed her “Plaintiff’s Reply in Support of Motion for Sanctions” [Doc. No. 131] (“Reply”) on June 2, 2015.
Plaintiff seeks an order from this court awarding sanctions pursuant to Federal Rule of Civil Procedure 37(b) against Defendants in the form of default judgment in her favor, or in the alternative, unspecified adverse inferences for Defendants’ alleged continued obstruction of discovery and spoliation of evidence. Plaintiff attributes three general failures in the discovery process to Defendants as grounds for the request: 1) failure or delay in obtaining the complete contract between non-parties Global Medical Response Trinidad and Tobago (“GMRTT”) and the Trinidadian Ministry of Health (“MOH”); 2) delay in producing financial documents of related parties and non-parties relevant to the litigation; and, 3) failure to provide adequate information about non-party GMRTT’s electronic failure on November 10, 2008 that may have affected the email and documents retained by GMRTT. Plaintiff argues that “[t]he totality of the record demonstrates Defendants’ discovery abuses were willful and in bad faith, ” thus justifying the relief it seeks. (Mot. at 1-2.)
This court has previously set forth the circuitous path taken by the parties prior to arriving before the District Court for the District of Colorado. (See Order dated October 20, 2014 at 1-2.) As noted by this court, while the case was pending in New York, the parties actively argued and fought over even the simplest discovery requests. This repeated squabbling resulted in an award of costs imposed against Defendants by Magistrate Judge Reyes and upheld by Senior District Judge Block because Defendants “repeatedly failed to comply with [Magistrate Judge Reyes’] orders in a manner that warrants the award of costs.” (Id. at 3, quoting from the Order of Judge Block.) This court adopted the sanctions imposed by Magistrate Judge Reyes and affirmed by Senior District Judge Block, stating
[t]he sanctions award was based on a finding, essentially, that the parties before the court “could” obtain the relevant discovery requested by the Plaintiff, but instead were actively and willfully choosing not to produce the documents.
Id. at 6. Important to this motion, this court also held, “[t]o the extent the Plaintiff is seeking further sanctions with respect to the behavior in New York, that motion will be denied.” Id.
Subsequent to that ruling, this court granted several more of Plaintiff’s discovery requests and imposed costs on Defendants where appropriate. (See Doc. Nos. 77, 78, 99 and 114.) On February 12, 2015, a hearing was convened to resolve all outstanding discovery issues and specifically addressed Plaintiff’s Motion to Compel Production of Documents on Defendants’ Amended Privilege Log [Doc. No. 100], Plaintiff’s Motion to Grant Her Motion to Compel Documents on Defendants’ Amended Privilege Log as Unopposed [Doc. No. 107] and Plaintiff’s Refiled Motion to Compel [Doc. No. 109]. Each of the three motions was granted in part.
A. Contract Documents Annexed to GMRTT/MOH Contract.
Among the issues discussed at the hearing was the production of certain documents that were allegedly annexed or appended to the contract to provide ambulance services between GMRTT and the Trinidad MOH. The contract originally provided in discovery by GMR to Plaintiff did not contain any annexed documents. At the hearing, the court suggested that GMRTT could likely get a full and complete copy of the contract with all appendices from the MOH with a single, simple request. The court strongly suggested to Defendants’ counsel that some pressure might be exerted on GMRTT by Defendants to make such a request to the MOH. (Transcript of February 12, 2015 Hearing (“Trans.”) [Doc. No. 115] at 64-65.)
The next day, on February 13, 2015, counsel for Defendants immediately began a campaign to obtain a full and complete copy of the GMRTT/MOH contract. (Resp. at 2; Ex. A.) The request by Defendants to GMRTT that they request a complete copy of the contract from the MOH, although at first apparently resisted by counsel for GMRTT, was ultimately successful and the MOH produced the contract it had on file between itself and GMRTT to GMRTT who then forwarded it to Defendants’ counsel for production in this case. (Id., Ex. C.) The contract provided by the MOH was produced to Plaintiff on May 5, 2015.
The upshot to this dispute is that, apparently, no party to the contract actually appended, annexed, attached, adjoined, affixed, or fastened the nine specifically named “Contract Documents” to the actual contract in spite of the language in the body of the contract at Section II. While the court finds it reasonable for the Plaintiff to have repeatedly attempted to obtain a “full” or “complete” contract, including the supposedly annexed Contract Documents, through discovery, the bottom line is that the documents simply were not annexed as stated. Therefore, the Plaintiff’s motion now seeks sanctions for willful failure to produce something that has been produced in full, not only once, but actually several times from different entities including parties, non-parties and the MOH.
B. Financial Documents of Related Entities.
Through discovery, Plaintiff has sought financial documents from several related entities apparently attempting to show GMRTT’s financial dependence on one or more of the Defendants so as to provide a basis for holding Defendants liable for the alleged negligence of GMRTT that caused injury to Plaintiff. This court addressed and resolved the issues surrounding the financial documents at the February 12, 2015 hearing. (See e.g., Trans.at 22-39.) Defendants state that they have provided to Plaintiff: 1) the bank statements of GEMS and GMRTT, 2) the bank statements, including cancelled checks and invoices of GMRTT in relation to GEMS, GMRTT and AMR, and 3) the entries from the financial ledgers of AMR as related to GMR, GEMS, GMRTT and ASSL, to the extent any such entries exist. Defendants state they have also produced witnesses for deposition including Timothy Dom and Kristor Sorenson regarding finances as well as the Affidavits of Ben Olson, explaining the contents of the records. (Resp. at 5.)
Given the ultimate compliance of the Defendants with the requests for financial documents and the witnesses offered to explain them, this does not appear to be a compelling independent ground ...