sanction of dismissal was in the words of one of the first circuit dry county and in the circumstances of this case where there was only one disc discovery order that was  very substantially complied with and and no if you will second chance and instead of the court taking a a potential sanction efforts particularly regarding these three engineering reports your honor the issue of and that seems to be the focus of the district court's decision of why they we were talking about reports that were i believe five to six to seven years old at the time i had gone to iran and met with half a dozen of their representatives to obtain documents i obtained a great deal of documents and produced those and included in those were many records and documents and photographs that showed the same conditions or at least some of the same conditions that were noted in these three reports i would also point out the three reports in question if i'm remembering those correctly those dealt overall more overall with  entire doc structure and i think even one of them was a was a soils engineer or poor this structure that is the object of the case is a steel fender system it's basically a checkerboard of steel structure that sits on the face of the dock itself the concrete dock being kind of like of a parking lot concrete slab parking lot sitting atop numerous steel structures and my recollection is that the three reports in question dealt more with an overall evaluation of that entire structure the more detailed reports and photographs that we produced of which there were at least six other records that were produced that deal specifically with the fender system that is the subject of this of this claim so while we can see that in the search for the records and my visits to the to the company to obtain the records we didn't obtain those three reports associated obtained through subpoena tecum that they submitted to engineers local engineers in the area and that's how they obtained those three specific reports you  you only had one chance i think at the outset he remarked but i assume you mean by the court there was more order by the court by the magistrate judge but in the meantime counsel opposing counsel has repeatedly asked for documents or deposition dates or other things to advance litigation isn't that correct there were numerous requests yes your honor that led to the initial motion to compel  once i would say but what we did when when we obtain the magistrate's first order we endeavored to comply with with that order and unlike the numerous i think uniformly the circumstances that existed where this quarter and in the district courts in the circuit addressed a situation the draconian remedy or le draconian sanction of dismissal was only warranted in cases where there was a complete disregard we did not completely disregard to the magistrate's order we produced hundreds and and eventually up to two thousand pages of documents that were responsive and provided the defendant the information that he needed to prepare is defense for the case it has to because this is the second time you said it would be dismissal such as happened he would be a draconian sanction and i think you're talking about the jurisprudence from the circuit that uses that term but what's the status of neurons i assume you're suggesting that a lesser sanction would have been more appropriate to get the attention of either in iran doubt or pardon me saying or are you to whatever extent there's not compliance with the discovery but noranda as i understand it is is you were supposed to substitute a party at this point aranda would there be any response to a monetary sanction of the able to respond at all well the subsequent owner holdings what was going to be in in th case and it is true that when we went in the magistrate in his reasons and recommendations mentioned that it actually kind of took me obit by surprise because prior there had been the issue came up during the settlement discussion that we had with the magistrate in the vendor and i did represent that let me get back to i i'm interested in what you're saying but my question is was there an ability of the offending person the non compliant party or attorney in this case to respond financially if the magistrate had said you're not complying with discovery timely and sufficiently i'm therefore going to under rule thirty seven assess a financial penalty was your client at the time the rand the record plaintive able to respond by paying such a penalty if that's the less drastic sanction you're suggesting i don't believe that miranda itself was in that in that position wro ok we would urge your honor is that in the in the circumstances where in this case that were extremely different from the cases where the dismiss sanction was upheld or or validated are very different from the the case here where we we did comply substantially with the court's  order you will note that in the in the associated submissions they spend a great deal of time up time arguing the defense of the case that the reason the doc failed was because it was in poor condition those arguments are all based primarily on documents that we obtained and produced to them so we would suggest that that any specific questions of which there were a very small number compared to the large number of requests or made the defendants had the information they needed to defend the case and the fact that we produce documents showing poor conditions and the same information that was in the reports we overlook shows that there was no conduct on the ranges part on my part that was either willful or in bad faith and that those those components are required to support a dismissal sanction that the district court decision be reporters ask what other lesser sanction do you think assuming and i realize that you may disagree that there should have been a sanction at all what other lesser sanctions would have been appropriate in this case short of dismissing the case and setting or assessing a financial penalty well certainly the financial sanction would would be the one that most courts would resort to but i think i would jump to your first suggestion about whether in this circumstance a sanction was appropriate at all i could see a sanction if like in the other cases that courts have addressed this issue and where the requests are submitted no response motion to compel is filed no response  counsel doesn't attend court conferences and other proceedings that the court sets and just completely disregards the requirements of the court  that wasn't the case here we spent a great effort to try to get the documents and get the discovery to the defendant and so we've all been in cases  where on the other side where the discovery has been difficult to obtain and judges you know issue multiple orders to to compel the discovery and not until cases that are cited in associates brief that that discussed the remedy as being a remedy of last resort and and a dry county  result if you will that is that requires willful conduct or bad faith conduct that that is manifested by a complete disregard for the court's orders and its other proceedings and i think one of those cases  carter versus dialysis clinic two thirty four fed third seven o seven  eight more v comber two thousand and seventeen u s district lexus one five six eight seven seven and wilson versus james industry two thousand may please the court good morning your honors and patrick shane represent associated terminals l l c along with my partner katie rice who's at counsel table your honor is we've had a couple years of high water in the mississippi river in the new orleans harbor and we're doing a good bit of property those involving docks one of the things that we know is it's a tough place to have a dock because about how difficult the conditions can be on the river especially when we have multiple years like this so we've refined our discovery responses from the various cases that we've handled and we do have very detailed and pursued written discovery devices relating to claims by property damage by dock owners that they sustain property damage because of our vessel operator clients so some of it can be tough how to read a l statement that's not my strength business losses that's not my strength i understand these concepts though when you get to the real property damage part of these cases depreciation did the repairs and all betterment what was the condition of the dock before you claim we damaged it and what were you thinking about your maintenance schedule and how you needed to proceed to maintain or replace that stock so our discovery devices are oriented to those essential questions of the maritime property damage case we first propounded our discovery when the new rand vs associated terminals matter was pending and and that they were into bankruptcy proceeding in st louis missouri the devices tourism requests for production were duly propounded and became do with no objections and no answers being filed as judge north wrote in his recommendations look that was kind of a tricky procedure and maybe it's excusable because a procedural posture was unusual we were all thinking as a new orleans lawyer boy i'd love to see this part of the bankruptcy proceeding get sent back down to new orleans where i feel a little bit more at home so there wasn't high pressure to answer this discovery while i was in the missouri proceeding but as judge north noted by the time in may of the following year we began to ask for the discovery when it got sent back down here the the lack of response which was complete and total lack of response was no longer excusable and i'm not going to go through the details chronology because it's very precisely laid out in judge north's recommendations and we've read them and agree that he's got it stated it with absolute correct persuasion but what i will say is that our effort to get this discovery began and continued through the summer with informal and collegial requests ultimately followed by a motion to compel filed at the end of the summer that led to the hearing in august before united states magistrate judge michael north this was the type of motion to compel scenario that we don't usually confront usually when we bring a motion to compel it's because there are objections and we want to argue to and fro about whether the objections are valid or there  responses and we want to argue about whether we are entitled to more documents in this case we went to the motion to compel hearing with zero responses having been provided to us the judge provided counsel with a  short period of ten days or fourteen days to answer and at the at the point that the answers came in we had some papers described in the appellant's brief is look we gave some information that's right but what was not there was  engineering information that we need we are focusing on depreciation betterment what's the condition of the dock we asked for engineering reports we also asked for depreciation schedules video footage of the dock which we knew existed protocols for inspection and maintenance permits and licenses for the dock board meetings discussing replacement schedules is not just the engineering through several supplemental responses in the autumn of that year we never got any engineering information from there and to listen to miranda say that there to nurture and to say that there has been a substantial compliance with the discovery when no engineering data was replied was supplied no information meaningful to our ability to calculate the depreciation issues and betterman issues that are so they go to the essence of the case we then found engineering evidence and by that i mean we canvassed the engineers up and down between baton rouge and new orleans it's a pretty small community of engineering support for the various terminals along that area and so we know what seven or eight places to go to look for information and we we canvassed that's how we found the engineering evidence the engineering evidence is summarized in judge north's recommendation opinion it is extremely compelling there is when their engineers they say they recommended phasing out the dock and that the dock which is there to hold a crane to unload barges could no longer safely hold the weight of a crane the raglan report noted fatigue corrosion construction deficiencies and said we cannot predict whether you will have joint failure the stock they used this engineering report documented that the structure was thirty five to fifty years old and that it was a fifty three year old dock and said that the dock needed to be replaced counsel is your point is that you didn't get this from the other side they can get the fruit from the other side but in terms of prejudice what i would say your honor my point is now this the weight and strength of the evidence when you have engineering evidence from the other side generated outside of a litigation setting that says the dock is past its useful life and there can't be any more damage that's where the essence of the prejudice was in this case we never got the engineering data from the random not within th deadline from judge north we were past the discovery deadline we were within a week or two of the state of the originally set trial date which got bombed because judge barbie developed a calendar conflict we would have gone to trial in this case two weeks later without knowing of the existence of the engineering expert opinions generated by miranda's own experts outside of litigation when i say the evidence can't be overstated it's being suggested we were prejudiced because we could hire our own experts to look at the photographs and documents that have been produced by the other side of our litigation expert could take the witness stand and say in my opinion the docket exceeded its useful life and he would be subject to cross examination to show the things that court room by as how much you're being paid and how many times mcshane hired these experts aren't like that these experts in my judgment the opinion of these experts is dispositive and so that shows the high nature of the high level of prejudice of not having this information in the fact that we could have ended up proceeding a trial without these documents being provided by the other side had we not gum shoed and searched for this evidence demonstrates the willfulness which is one of the elements i'm going to get to when i start talking about the elements of rule thirty seven in rule forty one but to paint the picture of the nature of the prejudice this is when the facility was to do lap it had to do it on its own benefit of hindsight if my client had a hold harmless when they went in there we wouldn't be here today but we were called upon to assist them to deal with problems associated with the fact that th dock was to have a date in the first when you look at whether dismissal under rule for thirty seven or rule forty one is the right remedy there are elements that i'm going to discuss but the essence of this comes from a directive in the supreme court in the case called insurance company of ireland where the court said ask yourself this question was this dismissal just i want to demonstrate to you that to allow this case to proceed based on what happened over the course of for a full year would in our view be a miscarriage of justice and therefore the decision made by judge bar b a to accept the recommendations of united states magistrate or was entirely appropriate and should be withheld the elements under rule thirty seven of the federal rules of civil procedure which dictate whether a decision by a district court judge to dismiss a case for discovery's actions was an abuse of discretion which is the standard was the bad behavior the abuse in bad faith or willful did it cause prejudice and then when you think about the dismissal and whether it's warranted is it the this is a sanction of last resort and is there any available sanction and is it kone and so i want to talk about each of those judge north the magistrate in the case was credited in that and judge barbie's opinion with having an intimate knowledge of what had transpired during the discovery process in this case and judge north in his footnote five said noranda pleads its good faith three times in the first page of its opposition memory and these an overcome facts that say otherwise and the facts that were compelling to the judge he said what was really troubling on the willfully issue was the unadopt aged deficiencies so it's not really a question of did did you give me two thousand pieces of paper it's i'm looking to win this case by showing that your doc is already exceeded its useful life and you have engineering reports that say that it has and you don't give it to me and even when i get them from a third party and have a motion to a motion to dismiss phase we file a motion to dismiss say they should give us these records and in the ordinary course what i would want to do to oppose that is go back out meet with my client and say we have to explain what we did it may be  the engineering records were in the yellow folder shame on us we only looked in the green red and blue folders here's an affidavit that didn't happen here we are in a motion to dismiss setting and judge north asked counsel what happened here what happened here in the answer on the record cited in judge north's opinion is i can't explain it and this is a point of emphasis for us we're not casting aspersions mr fay we're not questioning his integrity we have known him for a long time and we hold him in high regard what he said was i went with the discovery devices to my client and i went through one of the time and this this this and this and they didn't give me this stuff and i don't have an explanation and at that phase in motion to dismiss to offer no explanation was relied upon by judge north to say that supports a finding that they don't have one other than this was deliberate and willful and in bad faith that's the finding of bad faith i'm not measuring this by some test of whether there was a meaningful response i would submit without the engineering reports being provided that there is no meaningful response without the depreciation schedules and the mate and schedules and the internal communications of the board records that's not a meaningful accepted that recommendation which we submit was correct where we prejudiced i think i've made my argument about that we would have moved her summary judgment with their with their records that the structured outlived its useful life and i believe we would have won and then is there another remedy here short of dismissal and judge north reason that there was not because the rand was not capable of meeting any financial penalties and short of dismissal judge north saw no other available remedy and i think that was the correct decision then this isn't really part of the test but it kind of blends or spills over into is this a remedy of last resort the description of this remedy is a draconian remedy fact that miranda after that came out of the bankruptcy this claim through some process that we never discovered and i don't know whether this is accurate or not but the contention is that grammar c holdings now owns this claim judge north said well then dismissing  or twenty had computer problems judging or said well that's fine but you had to look twenty six i think that may have been adjudged barbie's actually you had six days after you got home to do this so not  and judge barbie i found that this amounted to a violation of federal rules of civil procedure a pattern of abuse of discovery practice noncompliance with the court order there's some suggestion in the briefing from turandot that noncompliance with only one court order shouldn't lead to a dismissal importantly there are more than one court order here there's the discovery order and there is also the disk of the scheduling order the rule sixteen scheduling order because we went up to a week before trial the discovery deadline passed with suggestions oh i'm still looking i'm still organizing and we'll have some more papers for you hey we've got a trough and we have a rule sixteen scheduling order that governs the trial and it includes a discovery deadline and to say that you're still working on it after the discovery deadline is a violation of the second order to the extent that anyone would conclude that that's an operative legal issue the rule forty one dismiss some of the factors are similar but one of them isn't i think i've touched on this but was the delay caused by the actual litigant or by the attorney let's don't overly punish the attorney the lead again if it was malfeasance by their lawyer and again i would direct the court to the exchange in the magistrate's motion to dismiss conference or counsel for noranda said i can't explain why my client didn't give me these engineering reports when i went through the discovery devices with them so once again we are  not laying this at the feet of counsel we're laying this squarely at the feet of the rand it we are claiming that this was a deliberate willful concealment of the engineering evidence rule forty one asks where you prejudice a cover that i think i demonstrated and was the delay caused by intentional conduct one of the operative points there that judge north and judge barbee eight focused on was that at the motion to dismiss stage were five months after the deadline to comply with judge north's order and we still don't have the engineering records by the way the three engineering reports stablish in the record below were all addressed to a single person at miranda and we have been asking for his deposition for months and we've been stonewalled on the deposition requests which is further evidence that they were trying to keep this from us and see if they could get to a trial judge bar b i called it a flagrant disregard for the discovery process and willful and intentional con so just for context when i began my involvement in this matter that i was hired to deal with this property damage claim while the case was in missouri and went up and was involved in some of the litigation in bankruptcy proceeding i'm not a bankruptcy lawyer but i was involved in this aspect of the case at the time of the bankruptcy associated had a claim on scare claim for one point three million dollars which was discharged in bankruptcy as the rand had a right under the governing law to do ok but eradicating to us and asked look we need we're trying to stay in business i know that you're out one point three million we can get a court order where we can be allowed to pay you for our post petition work we need your help will you help us and we did we put our crime barge back in there this is when this claim arose post petition bankruptcy we are there helping them stay in business we we're we had damage to our crane barge when it was there because the dock was falling apart we put a rant on notice of the crane barge damage we saw payment for the money for our services and miranda responded saying you've damaged the dock and they refused to pay for the post petitions services that we're providing to help them stay in business arguing that this dock damage claim entitle them to settle off prosy so the manipulation and the scheming by miranda we feel like enough is enough and the relief that we ask is this because the clear record of delay in this case is  attributable willful misconduct and because the acts clearly prejudiced associated terminals substantial discovery sanctions are appropriate here a lesser sanction a monetary sanction would not work iran has no money and associated cannot squeeze blood from a turnip both judge north and judge bar b a concluded no lesser deterrent would better serve the interests of justice he said judge barbie so the discovery problems here undermined were an affront to the of quote discovery fiasco close quote at the fifth circuit has previously said merits a dispositive sanction that's united states versus forty nine thousand dollars in currency the decision of the lower court dismissing this case mcshane spent a good deal of his argument representing to the port that despite requests the engineering reports and and maintenance records were not produced to th we suggest that is not accurate the three rip specific reports that were referred to by magistrate north obviously were were not among the documents but there were no less then then six reports that are in the record showing the various construction schematics this one from james ragland the engineer describing the conditions of of the fender mr ragland being the author of one of the reports that mr mcshane is referring to that wasn't produced and so there are you saying that your client produced those yes i and your honor and these i don't have the record numbers right now but they are record documents thirty six to thirty six three thirty six four thirty six five engineers and and noranda internal engineers that describe the specifics of the fender mr mcshane i believe made my point when he said that these three missing reports dealt with the dock and that the dock was on the verge of not being able to report to support the machinery that was on the dock itself didn't mention anything about the fender system that is attached to the face of the dock these reports detail the conditions of those docs or of the of the fender we produce original construction drawings showing the original construction of of the dock we produced numerous maintenance records showing each time that that noranda made improvements or repaired stealing the fender were those items produced terribly or only after the hearing on the compel they were produced after the hearing on the motion to compel you why weren't they produced before hand was there they're sure there was not an objection relevance was there no there wasn't it was just the logistics of me getting up to grammar c and sitting down and getting commercial people to sit down and and deal with litigation which in my experience i've had a hard time to do commercial people who are  being driven to do more with fewer people have demands on their time and light efforts up i had to basically go up there and and meet with them and go to each department and sit down and get e mails and reports and so forth so it was logistical i would say right so the documents that one of the categories of documents that mr mcshane referred to that he said he needed was things like  schedules which are driven by tax concerns that don't impact the damages issue that he referred to clearly the age of the dock the construction what it's made of  environment it's service it's in the service that it's in all of those are clearly reflected in the in the substantial number of documents that we did produce in response to the order compelling production of those documents