IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50191

LISA VELASQUEZ OLIVAREZ, 

 Plaintiff, 

v. 

GEO GROUP, INCORPORATED; ET AL, 

 Defendants, 

SHAWN K. FITZPATRICK; TIMOTHY FLOCOS, 

 Appellants. 

Appeal from the United States District Court

for the Western District of Texas 

Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges. 

EDWARD C. PRADO, Circuit Judge:

Attorneys Shawn K. Fitzpatrick and Timothy Flocos (collectively, 

“Appellants”) were sanctioned by the district court for certifying that their 

clients’ initial disclosures under Federal Rule of Civil Procedure 26(a)(1) were 

complete and correct even though the disclosures failed to mention evidence 

that Appellants later used during a deposition. Appellants now ask this Court 

to reverse the district court’s decision and remit to them the monetary 

sanctions collected by the district court. We AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2016

Lyle W. Cayce

Clerk

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I. BACKGROUND 

In 2012 and 2013, Plaintiff Lisa Velasquez Olivarez was allegedly 

sexually assaulted on multiple occasions while incarcerated at the Maverick 

County Detention Center (“MCDC”), a facility which was then operated by the 

GEO Group, Inc. (“GEO”). Olivarez alleged that she was sexually assaulted by 

Defendant Luis Armando Valladarez, who was a GEO employee at the time. 

Around the time of the alleged assaults, Olivarez made a series of phone calls 

to her mother and a friend named Juan using the MCDC’s phone system. Each 

call began with a prerecorded message indicating that the call might be 

monitored and recorded. GEO recorded at least three of Olivarez’s phone calls. 

During these phone calls, Olivarez discussed her encounters with Valladarez 

in ways that might be construed to suggest Olivarez consented to the sexual 

conduct. 

On November 26, 2014, Olivarez filed a complaint against GEO, 

Valladarez, and other MCDC officials, raising various claims related to the 

alleged sexual assaults, including a civil rights claim under 18 U.S.C. § 1983. 

In response to these claims, Defendants argued, among other things, that 

Olivarez had “initiated consensual sex” with Valladarez and that the 

purportedly consensual sexual encounters did not deprive Olivarez of any civil 

rights under § 1983. On May 19, 2015, Fitzpatrick, in his capacity as GEO’s 

attorney, submitted GEO’s initial disclosures pursuant to Federal Rule of Civil 

Procedure 26(a)(1)(A). Flocos, who was representing Valladarez, submitted 

initial disclosures on behalf of his client the following day. Neither of these 

initial disclosures mentioned the audio recordings of Olivarez’s conversations 

with her mother and her friend Juan.

Appellants deposed Olivarez on May 29, 2015. During the deposition, 

Fitzpatrick first questioned Olivarez about her phone conversations with her 

mother and her friend Juan. Olivarez testified that she told her mother and 

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Juan about the incidents with Valladarez, that her mother told her to be 

careful, and that she told Juan that Valladarez had forced her to have sex. 

Later in the deposition, Flocos played the recordings of Olivarez’s phone calls 

and questioned her extensively about her conversations with her mother and 

Juan. After the deposition ended, Fitzpatrick provided Olivarez’s counsel with 

an online link to the recordings.

On July 31, 2015, Olivarez filed a motion requesting that the district 

court impose sanctions on GEO and Valladarez under Federal Rules of Civil 

Procedure 26 and 37 for failing to include the audio recordings in their clients’ 

initial disclosures. Under Rule 26(a)(1)(A): 

a party must, without awaiting a discovery request, provide to the 

other parties . . . a copy—or a description by category and 

location—of all documents, electronically stored information, and 

tangible things that the disclosing party has in its possession, 

custody, or control and may use to support its claims or defenses, 

unless the use would be solely for impeachment . . . . 

In addition, Rule 26(g)(1) requires that “[e]very disclosure under Rule 

26(a)(1) . . . be signed by at least one attorney of record.” By signing, an 

attorney certifies that an initial disclosure is “complete and correct” under the 

requirements of Rule 26(a)(1) “to the best of the [attorney’s] knowledge, 

information, and belief formed after a reasonable inquiry.” Fed. R. Civ. P. 

26(g)(1). “If a certification violates [Rule 26(g)] without substantial 

justification, the court . . . must impose an appropriate sanction on the signer, 

the party on whose behalf the signer was acting, or both.” Fed. R. Civ. P. 

26(g)(3). Likewise, a party is subject to sanctions under Rule 37(c)(1) if the 

“party fails to provide information or identify a witness as required by Rule 

26(a) or (e), . . . unless the failure was substantially justified or is harmless.” 

The parties settled their case while the motion for sanctions was under 

consideration by the district court. However, on October 20, 2015, the district 

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court issued an order holding that the “audio recordings [did] not solely contain 

impeachment evidence, therefore Rule 26 required their disclosure.” Pursuant 

to Rule 37 and the court’s inherent authority, the district court imposed 

sanctions requiring each Appellant to pay a $1,000 fine. Appellants

subsequently filed motions for reconsideration. On January 27, 2016, the 

district court issued an order denying the motions for reconsideration. The 

district court explained that Appellants had certified that their clients’ initial 

disclosures were “complete and correct” pursuant to Rule 26(g)(1), but the 

“disclosures did not include recorded phone calls despite their being 

encompassed by Rule 26(a)(1)(A)(ii).” After determining these omissions were 

not substantially justified, the district court concluded that sanctions were 

required under Rule 26(g)(3). On the same day, the district court dismissed 

Olivarez’s cause of action with prejudice pursuant to Federal Rule of Civil 

Procedure 41(a)(1)(A)(ii). 

Appellants timely appealed. On appeal, Appellants argue that the 

district court abused its discretion by (1) incorrectly applying Rule 26(a)(1)’s 

disclosure requirement and (2) failing to properly consider whether Appellants’ 

purported violation of Rule 26 was substantially justified under Rule 26(g)(3).

II. JURISDICTION AND STANDARD OF REVIEW 

We have jurisdiction over this appeal under 28 U.S.C. § 1291 because the 

district court’s dismissal of the underlying action with prejudice constituted a 

final decision. Marshall v. Kansas City S. Ry. Co., 378 F.3d 495, 500 (5th Cir. 

2004); Click v. Abilene Nat’l Bank, 822 F.2d 544, 545 (5th Cir. 1987). “The 

district courts wield their various sanction powers at their broad discretion.” 

Topalian v. Ehrman, 3 F.3d 931, 934 (5th Cir. 1993). Thus, we “may reverse a 

district court’s award of sanctions only if we find that the court abused its 

discretion in imposing them.” Id. “A district court abuses its discretion if it 

awards sanctions based on an erroneous view of the law or on a clearly 

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erroneous assessment of the evidence.” Procter & Gamble Co. v. Amway Corp., 

280 F.3d 519, 526 (5th Cir. 2002) (quoting Walker v. City of Bogalusa, 168 F.3d 

237, 240 (5th Cir. 1999)). 

III. DISCUSSION 

A. Substantive Versus Impeachment Evidence 

Appellants first argue that they used the recordings solely to impeach 

Olivarez’s credibility; therefore, they were not required to disclose the 

recordings under Rule 26(a)(1), which specifically states evidence need not be

disclosed if “the use would be solely for impeachment.” Appellants contend the 

district court abused its discretion by announcing a novel standard under Rule 

26(a)(1) and then sanctioning them for not complying with that novel standard. 

But contrary to Appellants’ contentions, the district court’s decision was firmly 

grounded in this Court’s precedent. 

“Substantive evidence is that which is offered to establish the truth of a 

matter to be determined by the trier of fact.” Chiasson v. Zapata Gulf Marine 

Corp., 988 F.2d 513, 517 (5th Cir. 1993). “Impeachment evidence, on the other 

hand, is that which is offered to ‘discredit a witness . . . to reduce the 

effectiveness of [her] testimony by bringing forth evidence which explains why 

the jury should not put faith in [her] or [her] testimony.’” Id. (quoting John P. 

Frank, Pretrial Conferences and Discovery—Disclosure or Surprise?, 1965 Ins.

Law J. 661, 664). 

This Court has made clear that some evidence serves both substantive 

and impeachment functions and thus should not be treated as “solely” 

impeachment evidence. Id.; see also Baker v. Canadian Nat’l/Ill. Cent. R.R., 

536 F.3d 357, 368–69 (5th Cir. 2008) (acknowledging that surveillance videos 

contradicting testimony from plaintiff’s witnesses were of a substantive 

nature, regardless of their impeachment value). Other courts have taken 

similar approaches. See Searles v. Van Bebber, 251 F.3d 869, 877 (10th Cir. 

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2001) (“If, as the judge saw it, the evidence was really more than mere 

impeachment evidence, then the witnesses should have been disclosed.”);

Wilson v. AM Gen. Corp., 167 F.3d 1114, 1122 (7th Cir. 1999) (holding that 

witnesses who provided impeachment testimony should have been disclosed 

prior to trial because the testimony was part of defendant’s “primary line of 

defense”); Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (holding that 

evidence was not introduced “solely for impeachment purposes” where the 

evidence was “both impeaching and substantive”). Rule 26(a)(1)’s automatic 

disclosure requirement “was adopted to end two evils that had threatened civil 

litigation: expensive and time-consuming pretrial discovery techniques and 

trial-by-ambush.” Standley v. Edmonds-Leach, 783 F.3d 1276, 1283 (D.C. Cir. 

2015) (quoting Hayes v. Cha, 338 F. Supp. 2d 470, 503 (D.N.J. 2004)). “A too 

expansive reading of the impeachment exception ‘could cause a resurgence of 

these evils.’” Id. at 1283–84 (quoting Hayes, 338 F. Supp. 2d at 503).

In Chiasson, a local rule required “each party to list the exhibits to be 

presented at trial,” but if a party had “good cause not to disclose exhibits to be 

used solely for the purpose of impeachment,” the party was permitted 

to request an ex parte conference with the court to explain why the exhibits 

should not be disclosed prior to the trial. 988 F.2d at 515.1 The district court 

ruled that a video surveillance tape could be shown to the jury during trial, 

even though it was not previously disclosed pursuant to the local rule. Id. at 

513. In doing so, the district court implicitly found that the video, which 

showed the plaintiff “sweeping [a] carport, working under a car, entering a 

 

1 Chiasson predated the current version of Rule 26(a). Prior to December 1, 1993, Rule 

26 imposed no duty to disclose information to an opposing party in the absence of formal 

discovery requests. See Fed. R. Civ. P. 26 advisory committee’s note to 1993 amendment. 

Despite this historical difference in the rule, however, Chiasson still provides clear guidance 

on how this Court interprets the phrase “solely for the purpose of impeachment” in the 

context of pretrial disclosures. 

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store, and buying food,” was being used at trial solely to challenge the 

credibility of the plaintiff’s testimony that she was “unable to carry on daily 

activities without pain.” Id. at 513, 515–17. On appeal, however, this Court 

pointed out that the evidence tended to establish the truth of “key issues” to be 

determined by the jury, namely “the severity of [the plaintiff’s] pain and the 

extent to which she ha[d] lost the enjoyment of normal activity.” Id. at 517. 

This Court held that “[b]ecause the tape is, at the very least[,] in part 

substantive, it should have been disclosed prior to trial, regardless of its 

impeachment value.” Id. at 517–18.

In the instant case, the recordings of Olivarez’s phone calls likely had 

some impeachment value because they were at least arguably inconsistent 

with Olivarez’s testimony during the deposition regarding her conversations 

with her mother and her friend Juan. But the recordings also had substantive 

value because they seemed to suggest that Olivarez may have consented to the 

sexual encounters with Valladarez. The recordings tended to establish the 

truth of a key issue Defendants raised as a defense in the case—that Olivarez 

had “initiated consensual sex” with Valladarez. Accordingly, the recordings 

were, at the very least, in part substantive, and the district court did not abuse 

its discretion in concluding that Appellants were required to disclose the 

recordings under Rule 26(a)(1). 

B. Substantial Justification 

Appellants also argue that the district court failed to properly consider 

whether their decision to withhold the audio recordings from the initial 

disclosures was substantially justified. “Substantial justification for the failure 

to make a required disclosure has been regarded as justification to a degree 

that could satisfy a reasonable person that parties could differ as to whether 

the party was required to comply with the disclosure [obligation].” Grider v. 

Keystone Health Plan Cent., Inc., 580 F.3d 119, 140 n.23 (3d Cir. 2009) (quoting 

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Tolerico v. Home Depot, 205 F.R.D. 169, 175–76 (M.D. Pa. 2002)); see also Pierce 

v. Underwood, 487 U.S. 552, 564–65 (1988) (holding, in another context, that 

“substantially justified” means “justified to a degree that could satisfy a 

reasonable person”); Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1227–29

(10th Cir. 2015) (holding that “substantial justification” under Rule 37 means 

“justified to a degree that could satisfy a reasonable person”); Sheppard v. 

River Valley Fitness One, L.P., 428 F.3d 1, 12 (1st Cir. 2005) (same); Preuss v. 

Kolmar Labs., Inc., 970 F. Supp. 2d 171, 175 (S.D.N.Y. 2013) (same). The 

attorney’s decision to refrain from disclosing the information must have had a 

“reasonable basis both in law and fact.” Underwood, 487 U.S. at 565. 

Appellants cite several cases in support of their contention that they had 

a reasonable basis for concluding that disclosure was not required. Some of 

these cases suggest that evidence does not need to be disclosed under Rule 

26(a)(1), even if the evidence has substantive value, so long as the evidence is 

offered solely for impeachment. See DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 686 

(7th Cir. 1995); Ruddell v. Weakley Cty. Sheriff’s Dep’t, No. 1:07-CV-01159, 

2009 WL 7355081, at *1 (W.D. Tenn. May 22, 2009); Lomascolo v. Otto 

Oldsmobile-Cadillac, Inc., 253 F. Supp. 2d 354, 359–60 (N.D.N.Y. 2003); 

Halbasch v. Med-Data, Inc., 192 F.R.D. 641, 648–50 (D. Or. 2000). Appellants 

also cite cases suggesting that evidence does not need to be disclosed under 

Rule 26(a)(1) if a party’s subjective intent is to use the evidence solely for 

impeachment. See Nehara v. California, No. 1:10-CV-00491, 2013 WL 

1281618, at *3 (E.D. Cal. Mar. 26, 2013); Doyle v. N.J. Transit Rail Operations, 

Inc., No. CIV.A.04-5209, 2008 WL 4755735, at *3 (D.N.J. Oct. 29, 2008). 

However, all of the cases cited by Appellants were decided by courts 

outside this Circuit. The only controlling authority on the issue is Chiasson. In 

that case, we held that evidence should not be treated as “solely” impeachment 

evidence if it tends to establish the truth of key issues to be determined by the 

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jury. 988 F.2d at 517–18. Instead, the evidence must be treated as having at 

least some substantive value and must be disclosed to the opposing party. Id.

Given that this Court had previously addressed the issue, it was unreasonable 

for Appellants to rely on authorities outside this Circuit to support their own 

litigation strategy. A reasonable person would have applied this Court’s 

precedents to the facts and determined that the audio recordings needed to be 

disclosed because they had substantive value. Accordingly, we hold that the 

district court did not abuse its discretion in concluding that Appellants had no

substantial justification for violating Rule 26. 

IV. CONCLUSION 

For the foregoing reasons, the district court’s judgment is AFFIRMED. 

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