MOORE v. NAPOLITANO

searches, "[o]n December 26, 2007, the Secret Service's Office of the Chief Counsel forwarded an e-mail to `all Assistant Directors [ADs], Special Agents in Charge [SAICs], Resident Agents in Charge [RAICs], and Division Chiefs' directing a search `of their offices, including all personal and office files, for any paper documents related to decision-making or recommendations for bids of selections to any GS-14, GS-15, or SES Special Agent position from 1991 to 2005.'" Id. (quoting

Def.'s Evid'y Hrg. Ex. 14 at 1). This e-mail was sent to approximately 156 agents. Id.

The magistrate judge found that the ambiguity in the defendant's instructions "became evident as Defendant's own witnesses testified regarding their respective interpretations of the terms `personal files,' `office files' and `office' in the context of the e-mail inquiries." Id. at 16 n. 18 (listing several agents' inconsistent interpretations of the files they were to search in response to the defendant's two e-mail inquiries). For example, the magistrate judge discussed the testimony of Agent Faron Paramore, SAIC of the Director's Office, who testified that he originally thought the November 5, 2007 email required a physical search of only his personal office, and searched the files of the entire Director's Office only after receiving clarification from the Secret Service's Chief Counsel's office about the intended scope of the requested search. Id. at 22-23. Nevertheless, the defendant used the same ambiguous term "office files" in the December 26, 2007 email without further instructions to clarify for everyone else what "office files" meant. In addition, the magistrate judge found that defendant's search instructions failed to adequately inform the e-mail recipients, including Inspectors Kuhn and Hunnicutt, whose "role [it was] to receive documents located during the searches and to answer any questions posed by the recipients of the e-mail," of the claims and defenses involved in this case even though the plaintiffs' document requests sought documents "relating . . . in any way to the claims and defenses raised in this case[.]" Id. at 23 (internal quotation marks omitted).

The defendant disputes the magistrate judge's conclusion that the defendant's search instructions were ambiguous, arguing that "however a witness may have initially interpreted [the search terms], all the witnesses cited [by the magistrate judge] testified that they ultimately understood that they were to search all of the office under their supervision where responsive records might be located." (Def.'s Obj'ns at 14.) With testimony from only the small sample of the approximately 182 recipients of the November 2, 2007 e-mail and 156 recipients of the December 26, 2007 e-mail, it was not error to infer from the different initial interpretations that there was ambiguity in the search instructions. The defendant has pointed to no evidence before the magistrate judge that demonstrates that the defendant communicated with all of the e-mail recipients to ensure that they had not adopted an erroneous interpretation of the scope of the search requested and had not certified completion of a search based on an erroneous interpretation of what was required. In addition, as is discussed below, the testimony of the agents regarding their search efforts in response to the 2007 e-mail search instructions revealed that they conducted inconsistent searches and, in some instances, inadequate searches. Thus, contrary to the defendant's objection, it was not error to conclude from the evidentiary record that the defendant's search instructions did not sufficiently inform recipients of what efforts needed to be made to satisfy the defendant's obligation to conduct a reasonable search.

The magistrate judge found that the defendant's search instructions were deficient for failing to include express search references to appropriate index numbers or off-site storage, including the Federal Records Center. Moore, 255 F.R.D. at 23-24. The defendant argues that the plaintiffs did not prove that the agents needed such specific search instructions. (Def.'s Obj'ns at 15-16.) However, the plaintiffs need not have proven that the agents charged with searching their offices needed such a directive. Inspector Kuhn testified that the Secret Service filing system designates office files regarding promotion of special agents by a particular index number, and that responsive documents could be stored at the Federal Records Center, but he did not know if anyone searched there. Moore, 255 F.R.D. at 23, 30. The defendant has pointed to no evidence demonstrating that the administrative index number and documents stored off-site were irrelevant to the plaintiffs' request. It was enough for the magistrate judge to note the omission from search instructions of obvious locations of potentially responsive

documents in assessing whether the defendant's omissions were indicative of a chronically and willfully anemic approach to discovery obligations warranting a significant sanction.

The magistrate judge found that Inspectors Kuhn and Hunnicutt were not adequately informed about what constitutes a document responsive to the plaintiffs' requests. The defendant counters that these inspectors were tasked with only gathering information on the defendant's searches and that because of their minimal role, "[t]he fact that the inspectors . . . were not involved in determining whether a document was responsive to plaintiffs' requests does not indicate that defendant's instructions . . . were in any way deficient, or that the searches they performed were in any way inadequate." (Def.'s Obj'ns at 15.) While it is far from clear that the evidentiary record supports the defendant's characterization of Kuhn and Hunnicutt as mere information-gatherers, the magistrate judge also found that the e-mail recipients — who were tasked with searching — were inadequately informed about what constituted a responsive document. Moore, 255 F.R.D. at 23. The defendant has not identified evidence in the record demonstrating that all e-mail recipients were adequately informed of the types of responsive documents that should have been produced in response to the e-mail inquiry. Thus, even accepting the defendant's argument that Kuhn and Hunnicutt had a minimal role that did not require them to have knowledge of what constituted a responsive document, such an argument does not undermine the magistrate judge's conclusion that there was a widespread failure to instruct e-mail recipients appropriately.

2. Inconsistent search efforts

In reaching the conclusion that the defendant failed to conduct a reasonable search in response to the December 21, 2007 order, the magistrate judge considered the search efforts of four of the defendant's agents: SAICs Paramore and Bryant and RAICs Gavin and Mays. The magistrate judge found that the testimony of these four agents "exposed the widely varying extent of the searches conducted[,]" and that Bryant, Gavin, and Mays' testimony revealed that they conducted inadequate searches for responsive documents, not reasonable ones consistent with the defendant's obligation under the federal rules. Id. at 24.

a. Bryant

The magistrate judge found that Bryant "failed to search any of the administrative files of the Buffalo field office in November, 2007." Id. She found that in response to the November, 2007 e-mail inquiry, Bryant asked his administrative supervisor if any files would contain any responsive information, and his administrative supervisor — without conducting a search of any files — indicated that the information he was seeking would not be in "`an official capacity in [the] file room.'" Id. (quoting Mar. 6, 2008 Evid'y Hrg. Tr. at 14-15) (alteration in original). The magistrate judge further found that Bryant believed that his inquiry of the administrative supervisor constituted an adequate search. Id. She also found that beyond questioning the administrative supervisor, Bryant "merely looked at the personal files maintained in his desk, his calendar and e-mail account . . . [but] did not search in closets, credenzas, safes, vaults, off-site storage, or file cabinets other than the one containing his own personal documents" and did not ask other staff members to search for responsive documents.Id. (internal citation omitted).

The defendant alleges that Bryant reasonably relied upon information provided by the administrative supervisor who had worked in the office for over twenty-eight years and who had searched the Buffalo office records in May 2007 to prepare for an unrelated inspection. (Def.'s Obj'ns at 17-18.) Some reliance by Bryant upon his administrative supervisor to help conduct a search was not the problem. While the defendant has shown that the administrative supervisor had general familiarity with the files in the Buffalo office based upon her earlier unrelated review of office records, the defendant has not shown that the administrative supervisor ever reviewed office files for the purpose of identifying documents responsive to the November and December e-mail inquiries.

In addition, Bryant testified that he made promotion recommendations via personal e-mail but that where Bryant searched produced no hard copies of recommendation e-mails.Moore, 255 F.R.D. at 24-25. The magistrate judge also noted that despite the efforts described, Bryant signed "Paper Documents Search Certification form[s]" on November 6, 2007 and December 26, 2007, "indicating that he performed thorough searches of his office." Id. at 24 n. 22. This record reflects no error in the magistrate judge finding that neither Bryant nor his administrative supervisor actually performed a thorough or reasonable search for documents in response to the November 2007 inquiry.

b. Gavin

The magistrate judge found that Gavin largely relied upon his resident administrative manager's word that there would be no promotion documents or promotion-related materials in the Wilmington office. However, the administrative manager did not conduct any confirming search for responsive documents. Id. at 25. Gavin also asked his staff whether they had any promotion-related materials in their office space, and took their word when they all said "no" without even confirming whether they had conducted a search for such materials and without conducting such a search himself. Gavin did look in a "small two-drawer filing cabinet in the resident administrative manager's office" containing administrative filings and searched simply "by looking at the file folder labels affixed to each file" rather than opening them. Id. He also searched his own personal folder where he kept activity reports, travel vouchers and other miscellaneous documents, and looked in the closet and cabinets when he "happened to be in the closet" or "happened to look in cabinets." Id. at 25-26. However, Gavin "did not specifically look for notes, notebooks, memos, calendar entries, or print-and-save e-mails in response to the December 26, 2007" e-mail inquiry. Id. at 26. Gavin, nevertheless signed a certificate that a thorough search was conducted.

Whatever the likelihood was of finding responsive documents, virtually no search was conducted, much less a thorough one. The magistrate judge found that RAIC Gavin's search efforts were "lackluster." Id. The record bears out that characterization, and was fair support for the magistrate judge's negative assessment of the reasonableness of the defendant's search.

c. Mays

The magistrate judge found that in response to the December 2007 e-mail, Mays searched the office's administrative files by flipping through pages of those file folders that he thought from their labels would contain responsive documents. Id. Mays testified that he also "forwarded an e-mail to the members of his staff, asking them to conduct a search of their offices" and

reply with responsive materials. Id. However, none responded to him and he never spoke with them regarding their search efforts. Thus, Mays "could not testify regarding whether [his staff members] conducted a search or the scope of any performed search." Id. Nevertheless, Mays, too, signed a form and certified that a thorough and reasonable search was performed.

The defendant contends that the search was reasonable enough since Mays testified "that when he gives an order to his staff he expects them to comply." (Def.'s Obj'ns at 20.) However, it was not error for the magistrate judge to find problematic that Mays certified that a reasonable search was performed without having surveyed his staff members to determine "the scope of any performed search[,]" Moore, 255 F.R.D. at 26 (emphasis added), or to factor this search in with the remaining evidence in assessing whether the defendant's overall performance warranted a substantial sanction.

3. Inspector Hunnicutt's credibility

The defendant objects to the magistrate judge's reliance on Inspector Hunnicutt's credibility as evidence of whether or not a reasonable search was performed, contending that Hunnicutt's testimony was irrelevant because Hunnicut was tasked with only "document[ing] defendant's search efforts," and was not "in charge of searching for documents . . . or play[ing] any role in the actual searches." (Def.'s Obj'ns at 21-22.) Thus, the defendant contends, "[a]lthough defendant's efforts through Inspector Hunnicutt to gather evidence about how the search was performed may have been flawed, it does not mean that a reasonable search was not performed." (Id. at 22.) The defendant has not shown error in the magistrate judge's finding that Hunnicutt's testimony lacked candor and credibility, Moore, 255 F.R.D. at 27, or her reliance on such finding as evidence in assessing whether a reasonable search was performed in response to her order or whether the defendant's overall conduct was willful. Hunnicutt was presented as the person who was responsible for keeping track of the Secret Service's search efforts and had knowledge regarding what efforts were undertaken in response to the court's December 21 order. For such an important witness to testify without credibility or candor about what search efforts were made can be probative of the defendant's good faith and easily lead to grave skepticism in making that assessment.

Overall, considering the magistrate judge's findings regarding the ambiguity in the defendant's search instructions, the inconsistent and inadequate search efforts of agents Bryant, Gavin, and Mays, and Inspector Hunnicutt's failure to credibly explain the defendant's search efforts, it was not clearly erroneous for the magistrate judge to find that the defendant violated the December 21, 2007 order compelling the defendant to conduct a reasonable search for paper documents. Nor was there error in finding that this evidence in light of the defendant's chronic discovery misconduct during the pendency of this case warranted a severe sanction.

III. PRECLUSION SANCTION

The magistrate judge found that the defendant's violation of the order compelling a reasonable search was willful, and ordered that "once Plaintiffs have established a prima facie case of discriminatory non-promotion, Defendant may not defend any such prima facie case[.]" Id. at 37. The defendant alleges that the magistrate judge erred in imposing this sanction because the circumstances of this case are not sufficiently egregious to warrant such a severe sanction. The defendant alleges that either no sanction is warranted or lesser sanctions of reopening discovery, allowing plaintiffs to supplement their motion for class certification, and a division of costs for adjudicating the plaintiffs' motion to compel are more appropriate in the circumstances. (See Def.'s Obj'ns at 44-45.)

The "central requirement of Rule 37 is that any sanction must be just," and the "choice of sanction should be guided by the concept of proportionality." Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (internal quotation marks omitted). Bonds instructs that before imposing a severe, litigation-ending sanction that approaches a default judgment or denies a party a fair trial on the merits, a district court must "consider whether lesser sanctions would be more appropriate for the particular violation" because the judicial system favors disposition of cases on the merits. Id. In considering whether a severe sanction "rather than a milder disciplinary measure" is appropriate, a court should consider "the effect of a [party's] contumacious conduct on the court's docket, whether the [party's] behavior has prejudiced the [opposing party] and whether deterrence is necessary to protect the integrity of the judicial system." Id. Then, if imposing a severe sanction, the court should "either make a finding supported by the record that the more severe sanction is necessary to avoid prejudice to [the opposing party] or to the court's calendar . . . or — if the sanction is based only on deterring future discovery misconduct — the more severe sanction must be supported by a finding of flagrant or egregious misconduct by the" sanctioned party. Id. at 809.

In appropriate situations, a court also may find that a severe sanction is necessary to prevent some benefit to the sanctioned party. Bonds, 83 F.3d at 809. The magistrate judge did not base the sanction at issue on any finding that such a sanction was necessary to avoid a benefit to the defendant.

Bonds also cautions that a preclusion sanction may be so severe as to be litigation-ending, even if it is not described as such. The district court in Bonds precluded the defendant "from offering any fact witnesses at trial as a discovery sanction" for "failing to respond in a timely manner to an interrogatory requesting the names of all persons with knowledge of relevant events regarding the class action and then providing an inadequate response." Id. at 803-04. Although recognizing that "the [broad] preclusion order did not operate with such assured effect as a default judgment[,]" the court of appeals nonetheless found that such a sanction "approach[ed] a default judgment in its severity." Id. at 808-09. The court explained that "resolution of the plaintiffs' sexual harassment and retaliation claims was likely to depend on the credibility of conflicting witnesses and the jury's evaluation of [the defendant's] employees' motives." Id. at 808. As a result, while it was "true that the [defendant] could still introduce documentary evidence and expert testimony, counter-designate portions of deposition testimony introduced at trial, cross-examine the plaintiffs' witnesses, and make opening and closing arguments[,]" the preclusion order was still a severe sanction resulting in a "one-sided trial" where the defendant was left "with little ability to contest the plaintiff's claims."Id. at 808-09. Upon reviewing the district court's finding of prejudice to the plaintiffs and the court, and the need for deterrence, the Bonds court found that the district court's findings were insufficient to persuade the court that lesser alternative sanctions would have been ineffective. Id. at 813.

In imposing the sanction at issue, the magistrate judge intended that the chosen sanction neither be "`litigation-ending,'" nor "`approach[] a default judgment' . . . nor den[y] Defendant the right to a trial on the merits." Moore, 255 F.R.D. at 32 n. 34, 33 n. 36, 37 (quoting Bonds, 93 F.3d at 808) (first alteration in original). Nonetheless, recognizing the defendant's "concerns that the sanction . . . is akin to a default," id. at 33 n. 36, the magistrate judge applied the Bonds framework when considering whether to impose a severe sanction and made findings that the defendant's conduct caused prejudice to the plaintiffs and disrespected the court, and there was a need to deter the defendant's willful violation.

A. Prejudice to the plaintiffs

The magistrate judge held that the defendant's "failure to timely search for and serve the documents responsive to Plaintiffs' requests for production of documents . . . has prejudiced Plaintiffs' ability to conduct meaningful discovery and to prepare to address the merits of their claims." Moore, 255 F.R.D. at 33. In reaching this conclusion, the magistrate judge found that the defendant "failed even to commence a reasonable search for the full extent of the documents responsive to [the plaintiffs' requests] until sixteen months after the requests were served," and that even a year after she entered her compulsion order, she could not find that "a reasonable search for the full extent of the responsive documents ha[d] been undertaken." Id. at 33. Moreover, the magistrate judge found that the plaintiffs have been "`required to waste time, money, and effort in pursuit of cooperation[.]'" Id. (quoting Gallina v. Wyandotte Police Dep't, No. 4:07-CV-12640, 2008 WL 5090551, at *2 (E.D. Mich. Nov. 26, 2008)). The defendant objects to the magistrate judge's finding that the plaintiffs have suffered prejudice, contending that the magistrate judge gave insufficient consideration to "whether the putative undisclosed documents must be essential, important, or even relevant to plaintiffs' claims" and that, as evidenced by the plaintiffs' filing of their motion for class certification, there was no "evidence that plaintiffs have been unable to pursue their claims with the mountains of discovery produced by defendant." (Def.'s Obj'ns at 35, 37.) In addition, the defendant alleges that the magistrate judge failed to cite evidence supporting the conclusion that the plaintiffs have been required to waste time, money, and effort. (Id. at 36.)

The magistrate judge also noted that the defendant argued that the plaintiffs premised their argument "`on the assumption that there is a huge cache of responsive paper recommendation documents previously undisclosed by defendant that is essential to [P]laintiffs' case.'" Id. at 34 (quoting Def.'s Proposed Findings ¶ 34, at 90) (alteration in original). The magistrate judge expressly rejected the defendant's claim that the plaintiffs' advanced this argument and disavowed making any finding with respect to the "volume of withheld documents[,]" reasoning that volume of withheld documents is not dispositive when determining an appropriate sanction under Rule 37. Id.

First, as a matter of law, a court does not examine the merits of a case when determining whether to certify a class under Rule 23. Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir. 1987). The fact that the plaintiffs have been able to file a class certification motion does not demonstrate that the defendant's violation of the court's order compelling a search did not prejudice the plaintiffs' ability to conduct discovery and prepare their case on the merits.

Moreover, regarding the defendant's allegation that the magistrate judge gave insufficient consideration to the plaintiffs' need for undisclosed documents, the magistrate judge considered and found that the plaintiffs carried their burden of demonstrating that there are responsive decisionmaker documents not produced that are relevant to the plaintiffs' preparation of the merits of their case. Moore, 255 F.R.D. at 34. There was a substantial evidentiary basis for the finding that undisclosed responsive documents regarding decisionmakers' promotion decisions existed. Inspector Kuhn declared that while the agency does not generally consider as official records that the agency maintains as business records individual emails that individual supervisors send bearing promotion recommendations (Kuhn Decl. ¶ 3 (Doc. # 498-15)), he testified that he knew from personal experience that individual supervisors do email such recommendations to each other. (Tr. of Jan. 10,

2008 Evid'y Hrg. at 184-85.) Nine of those very supervisors testified that they sent (Pis.' Evid'y Hrg. Exhs. 49 at 123-24, 52 at 53, 59 at 106, 65 at 93-95; Tr. of Mar. 6, 2008 Evid'y Hrg. at 33 (testimony of Dunlap, Carey, Pickle, Dowling, Bryant)) or received (Pls.' Evid'y Hrg. Exhs. 50 at 90, 58 at 187, 63 at 222, 64 at 55, 66 at 48-49 and 233 (testimony of Spriggs, Riggs, Truscott, Samway, Bauer)) such recommendations by email. A critical question in any discrimination action is whether the alleged disparity between plaintiffs and other similarly-situated individuals or groups was the result of unlawful discrimination. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008). Evidence demonstrating individual decisionmakers' reasons for promotions or nonpromotions is highly relevant to the plaintiffs' individual and potential class claims. While a pattern and practice class action relies on statistics to demonstrate the class-wide injury, anecdotal evidence is permitted and useful to bring "the cold numbers convincingly to life." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977); see also Arnold v. U.S. Postal Serv., 863 F.2d 994, 999-1000 (D.C. Cir. 1988); Segar v. Smith, 738 F.2d 1249, 1277-78 (D.C. Cir. 1984); Valentino v. U.S. Postal Serv., 674 F.2d 56, 71-72 (D.C. Cir. 1982). Here, the plaintiffs' document requests sought to capture the reasons for particular decisions to promote or not promote agents which are highly relevant to establishing an employer's discriminatory motive. Given that the defendant has failed to fully comply with the obligation to locate and produce these relevant decisionmaker documents, and the finding that this failure continued a pattern and practice of obduracy in discovery production, the magistrate did not err in finding that, despite the significant volume of discovery already produced, the plaintiffs have been prejudiced by the defendant's failure to search adequately for and produce decisionmaker documents. Similarly, the defendant's suggestion that the magistrate judge had no basis to conclude that the plaintiffs wasted time, money, and effort in pursuit of the defendant's cooperation lacks merit. The plaintiffs filed and successfully litigated a motion to compel the defendant to conduct reasonable searches for documents, and yet, as is discussed above, the plaintiffs still have not received the defendant's full cooperation. The plaintiffs engaged in months of inevitably costly discovery efforts lacking the documents that could have sharpened or sped their inquiries. The magistrate judge's finding that the

Further, an ability to assess the volume and value of documents that the defendant has not yet adequately searched for and produced cannot otherwise stand in the way of assessing the degree of prejudice to the plaintiffs. It would not be inappropriate to resolve against the defendant any uncertainty regarding the volume and value of these documents since it was the defendant's failure to adequately search for and produce all responsive documents that impeded full evaluation of them.

defendant's conduct has caused prejudice to the plaintiffs is not faulty.

B. Deterrence and impact on court

The magistrate judge concluded that the defendant "has made a mockery of Rule 34, the case management orders of the court, the order granting Plaintiffs' motion to compel, and the evidentiary hearing." Moore, 255 F.R.D. at 35. The magistrate judge found that the defendant's conduct at the evidentiary hearing constituted "substantial and prejudicial obduracy[,]" amounting to a willful, bad faith attempt to "justify [the defendant's] production of only those documents [she] was inclined to produce." Id. Specifically, the magistrate judge found that Hunnicutt's testimony lacked credibility and candor. The magistrate judge also found that "the court's ability to conduct an orderly and efficient evidentiary hearing was further compromised by Defendant's inability to call all of the witnesses" who were expected because at least one witness decided to circulate an e-mail with a press account about Hunnicutt's testimony "to other witnesses whose names were included on Defendant's witness list." Id. at 29-30, 35.

When discussing imposing a sanction to avoid "prejudice to the court," the D.C. Circuit has focused on potential prejudice to the court's calendar — that is, where, absent an appropriate sanction, a party's misconduct would "put an intolerable burden on a district court by requiring the court to modify its own docket and operations" and require the court to "expend considerable judicial resources in the future in addition to those it has already wasted[.]" Shea v. Donohoe Constr. Co., Inc., 795 F.2d 1071, 1075-76 (D.C. Cir. 1986). While the magistrate judge characterized as evidence of "prejudice to the judicial system" her findings that the defendant willfully made a mockery of the federal rules and the court's orders and interfered with the court's ability to conduct an efficient evidentiary hearing, these findings are as appropriately considered as reasons for sanctioning the defendant under a "deterrence and punishment" rationale — that is, where there is a "need to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future." Id. at 1077.

The defendant disputes the finding of an injury to the court because the defendant was not required to document her searches and because the witnesses who were not called were not identified by the magistrate judge or the plaintiffs as necessary to the evidentiary hearing. (Def.'s Obj'ns at 37-38.) While the defendant was not obligated to document her searches in any particular manner, a party vowing to demonstrate her absolute compliance with a court order should carry some responsibility to refrain from presenting testimony lacking candor. As is noted above, the defendant has shown no fault with the finding that Hunnicutt lacked candor and credibility. Regarding the defendant's objection to the magistrate judge's finding that the court was harmed by the defendant's disregard of the rule on witnesses, defense counsel conceded that she did exclude witnesses who had been inappropriately exposed to press coverage of the evidentiary hearing. Moore, 255 F.R.D. at 29 (quoting Feb. 25 Evid'y Hrg. Tr. at 266-68). Contrary to the defendant's unsupported objection, the magistrate judge had a reasonable basis to infer that the defendant's management of potential witnesses compromised the court's ability to conduct an efficient hearing because the defendant admitted that her presentation of evidence was affected by her agents' inappropriate exposure to press reports. Accordingly, it was not error for the magistrate judge, having found that the defendant presented a witness who lacked credibility and failed to prevent contamination of potential witnesses, to conclude that the defendant's conduct was disrespectful to the court.

In discussing the defendant's alleged violations of the rule on witnesses, the magistrate judge concluded that the defendant "failed to instruct the potential witnesses to refrain from reading press reports of testimony elicited during the hearing[,]" and that after learning that an agent transmitted a newspaper article to potential witnesses, "counsel for the Defendant saw fit to do absolutely nothing[.]" Moore, 255 F.R.D. at 30. It is apparent, though, that the magistrate judge did not mean that defense counsel's efforts to comply with the rule on witnesses were non-existent. The magistrate judge accepted as credible the testimony of Mays and Gavin who each explained that he did not read the e-mailed article regarding Hunnicutt's testimony because defense counsel had instructed him not to read public accounts of the hearing. Id. at 28-29. In addition, the magistrate judge found that defense counsel made efforts to investigate the scope of Mays' and Gavin's exposure to the e-mailed article. Id. at 29.

In finding a need to deter similar misconduct in the future, the magistrate judge found a severe such sanction was necessary because a "`lesser sanction may also yield similar misconduct by other litigants by indicating that flagrant violations will yield only minor sanctions.'" Moore, 255 F.R.D. at 35 (quoting Perez v. Berhanu, 583 F. Supp. 2d 87, 91 (D.D.C. 2008)). In assessing what sanction would be just and proportional to remedy the harms caused by the defendant's violation and to deter future discovery misconduct, the magistrate judge observed that the court's previous attempts to remedy defendant's conduct through lesser corrective actions, including prior orders compelling discovery, monetary sanctions, and a sanction precluding the defendant from using certain evidence not timely disclosed to the plaintiffs, proved insufficient to deter the defendant from "disregard[ing] [her] discovery obligations." Id. at 36.

The defendant objects to the magistrate judge's reliance on the multiple lesser sanctions previously imposed by the court as justification for the need for the preclusion sanction at issue. The defendant contends that because her objections to two of the three previous sanction orders were pending at the time the magistrate judge issued the sanction at issue, it was "manifestly unfair and premature for the Magistrate Judge to sanction [the] defendant based on rulings" still subject to review by the district court. (Def.'s Obj'ns at 39.) A pending review of prior lesser sanctions does not obligate a magistrate judge to be blind to prior findings of misconduct and whether her imposition of previous, lesser sanctions was insufficient to deter the defendant's subsequent discovery misconduct. The defendant's argument is of particularly little weight here since the magistrate judge's two previous sanctions orders, although slightly modified, have been largely upheld in substance. See Moore v. Napolitano, Civil Action No 00-953 (RWR/DAR), 2009 WL 2450280 (D.D.C. Aug. 7, 2009).

C. Proportionality/no lesser alternative

In concluding that the instant preclusion sanction is "`just,' and is `guided by the concept of proportionality between offense and sanction[,]'" the magistrate judge "considered the extent to which `less dire alternatives have been explored without success' or would obviously prove futile[.]"Moore, 255 F.R.D. at 36 (quotingBonds, 93 F.3d at 808) (internal quotation marks omitted). The magistrate judge determined that the instant preclusion sanction was "not `litigation-ending[,]'" but nonetheless significant enough to remedy the defendant's violation. Id. (quoting Bonds, 93 F.3d at 808). The defendant alleges that the magistrate judge erred in imposing a severe sanction akin to a litigation-ending default judgment, and alleges that an appropriate sanction, if any, would be a "reopening of discovery, allowing plaintiffs to supplement their motion for class certification, and a division of costs for adjudicating plaintiffs' motion to compel." (Def.'s Obj'ns at 44-45.)

For all of the reasons discussed above, including the defendant's history of protracted recalcitrance during discovery, the failure of previous, lesser sanctions to deter subsequent violations, the resulting prejudice to the plaintiffs, and the need to deter the defendant's willful conduct, the magistrate judge had an adequate basis for rejecting the defendant's suggestion that the appropriate sanction would be to give the defendant yet a third opportunity to comply with her latest discovery obligations, and had an adequate basis for imposing a significant sanction in response to the defendant's violation of the order compelling a reasonable search for responsive documents. Her conclusion was, in essence, that enough is enough. That conclusion was fair at this stage in the litigation. Since the magistrate judge's intent was that the preclusion sanction imposed not be litigation-ending, the sanction will be construed not to prevent the defendant from offering any defense to any prima facie case of discriminatory non-promotion. Rather, the defendant will be precluded from offering any legitimate, nondiscriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs.

Construing the sanction in this manner tailors a proportional remedy to the alleged harm, and does not produce an unsupported litigation-ending sanction. It is the individual named plaintiffs whose time, energy and resources have been most frustrated by the defendant's discovery misconduct and most compromised in the effort to gather anecdotal evidence in support of their discriminatory nonpromotion allegations. And as Bonds recognized, defendants would have multiple methods available for mounting a defense against the individual named plaintiffs' promotion discrimination claims: denying the factual accuracy of plaintiffs' evidence, attacking the credibility of plaintiffs' witnesses under Federal Rules of Evidence 602, 607, 608, 609, 613 and others; attacking the sufficiency of plaintiffs' prima facie evidence in opening statements and closing arguments and under Federal Rule of Civil Procedure 50, and others. Unlike the Bonds plaintiffs, however, plaintiffs here present a protracted history of repeated discovery misconduct by a defendant warranting a severe preclusion sanction.

Moreover, in a pattern and practice case, a plaintiff class seeking to carry its prima facie burden of offering evidence adequate to create an inference of discrimination will usually provide statistical evidence showing a disparity between the position of the class members and other similarly-situated individuals, and may also present anecdotal evidence to show that the statistical disparity is the result of unlawful discrimination. Segar, 738 F.2d at 1267; Arnold, 863 F.2d at 999-1000. Once plaintiffs have established their prima facie case of discrimination, there are two ways an employer-defendant can seek to rebut the plaintiffs' case. First, "[t]he employer can endeavor to refute the plaintiffs' claim that a disparity exists" by "[c]hallenging the accuracy or significance" of the plaintiffs' statistical showing. Segar, 738 F.2d at 1267-68. Alternatively, a defendant can present an "explanatory defense" "to show that any observed disparities between plaintiffs and [another] group did not result from discrimination violative of Title VII."Id. at 1267-68. Under a disparate treatment theory, the defendant will offer "a legitimate, nondiscriminatory explanation for the disparity" such as "some additional job qualification . . . that the plaintiff class lacks."Id. at 1268. Under a disparate impact theory where the plaintiffs have linked the alleged disparity to a particular business practice, the defendant will seek to prove "the business necessity of the practices causing the disparity." Id. at 1270. Although the defendant will be precluded from offering a legitimate, nondiscriminatory reason for any discriminatory nonpromotion that the individual named plaintiffs establish that they suffered, she may defend against the plaintiffs' statistical showing by either attacking the accuracy of the plaintiffs' statistical showing or presenting competing statistical evidence to refute the significance of the plaintiffs' showing.

CONCLUSION AND ORDER

Based on all of the evidence presented, it was not clearly erroneous for the magistrate judge to find that the defendant violated the discovery order compelling the defendant to conduct a reasonable search for and produce responsive documents. Furthermore, the defendant has shown neither that the magistrate judge erred in imposing sanctions under Rule 37 for the defendant's failure to reasonably search for and produce responsive documents nor that the magistrate judge's imposition of costs was unjust. The preclusion sanction will be construed to preclude the defendant from offering any legitimate, non-discriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs. Accordingly, it is hereby

ORDERED that the defendant's objections [605] to the magistrate judge's imposition of sanctions be, and hereby are, OVERRULED. The defendant is precluded from offering any legitimate, non-discriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs.