1 The plaintiff married after the initiation of this action. The Court will therefore use her

present name—Brenda Wortham—in this opinion. United States Court of Appeals,

Fifth Circuit.

No. 92-1668.

Brenda CHILCUTT, et al., Plaintiffs-Appellees,

v.

UNITED STATES of America, Defendant-Appellant.

Randell P. Means, in his individual capacity, Appellant.

Oct. 25, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before JOHNSON, JOLLY, and JONES, Circuit Judges.

JOHNSON, Circuit Judge:

When th e defendant, United States of America, failed to properly respond to the plaintiffs'

discovery requests in the case sub judice, the district court ordered the Government to produce

previously requested documents and respond to unanswered interrogatories. The court also ordered

the Assistant United States Attorney ("AUSA"), Mr. Randell Means, to personally rei mburse the

plaint iffs for attorney's fees which arose fro m t he Government's discovery abuse. When the

Government disobeyed the district court's order to fulfill its discovery obligations and attempted to

deceive the court and the plaint iffs into believing that certain documents properly requested either did

not exist or were not requested, the district court, exercis ing authority granted in Rule 37 of the

Federal Rules of Civil Procedure, deemed that the liabilit y facts of the plaint iffs' case were established

for the purposes of the case. The Government and Mr. Means aver that the district court abused its

discretion in sanctioning them. We disagree and therefore affirm.

I. Facts and Procedural History

On October 4, 1988, Brenda Chilcutt Wortham, 1 perfo rming her duties as an employee of

Chrysler First, Inc., visited the River Bend Post Office in Fort Worth, Texas, to pi ck up the2 In the latter scheduling order, the court extended the discovery cut-off date to May 8, 1992,

and scheduled the trial for the week of June 8, 1992.

3 The Federal Rules of Civil Procedure required that the Government respond no later than

April 23, 1992. F ED .R.C IV .P. 33(a) and 34(b). company's mail. Soon after she entered the post office, she slipped and fell. The fall resulted in

serious injuries which required Ms. Wortham to undergo several major surgeries and extensive

medical care. Ms. Wortham's workers' compensation carrier, Home Indemnity Company ("HIC"),

alleged that governmental negligence had caused Ms. Wortham's fall. HIC therefore filed an

administrative claim with the Unite d St at es Postal Service ("USPS") in August 1990, seeking

reimbursement for monies paid Ms. Wortham for her work-related injury. Ms. Wortham filed a

similar claim in October of the same year. The USPS denied both claims.

Ms. Wortham and HIC later commenced this action in the Northern District of Texas, suing

under the Federal Torts Claims Act. In its initial scheduling order, filed on July 17, 1991, the district

court stated that "[s]hould any party or counsel fail to cooperate in doing anything required by this

order to be done, such party or counsel or both will be subject to sanctions, including dismissal or

entry of default without f urt her notice." R. at 26. In the court's memorandum attached to the

scheduling order, entitled "Special Pretrial Instructions," the court in formed the parties that it

expected counsel for each party to cooperate fully in the discovery process. The court further warned

that it would not tol erate discovery abuses, stating that "[u]nnecessary discovery or unreasonable

delay may subject the infracting party to sanctions and the payment of costs." R. at 28. The court

admonished the parties in the same manner in revised scheduling orders which were filed on February

27, 1992, and March 9, 1992. 2

On March 24, 1992, Ms. Wortham served interrogatories and requests for production of

documents and things on Randell Means, the AUSA in c h arge of the case. 3 In early April, she

reiterated her request for many of the documents and things in subpoenas duces tecum. Although

the Government produced some of the requested items for depositions, it did not answer or object

to the requests for producti on or the interrogatories. Counsel for Ms. Wortham, Ms. Kelly Robbins,

talked with Mr. Means several times by telephone and in person, both before and after the answers4 The Government answered a number of the interrogatories by stating that it did not possess

the information requested. For example, Mr. Means testified at the hearing that the janitorial

contractor, Ms. Marilyn Chapman, knew the answers to four of the interrogatories. However,

Mr. Means had never attempted to contact Ms. Chapman prior to the hearing to get the

information. In fact, although Means possessed Ms. Chapman's address, he had never looked up

her telephone number in the directory to call her. Further, although Ms. Chapman, who was not a

hostile witness to the Government, worked at the post office each day, Mr. Means had never

visited the post office during her work hours to question her.

5 The documents showed that other people had fallen at other post office locations. Because

the same contractor cleaned all of the post offices in the Fort Worth area and used the same type

of wax on all of the floors, this information was quite beneficial to the plaintiffs, who claimed,

among other things, that the post office floor was excessively slick.

6 This log apparently contained information about remedial actions taken by the USPS in

response to Ms. Wortham's accident, as well as information on other accidents which occurred at

the River Bend location. were due. She informed him that time was of the essence and reminded him that the discovery cut-off

date was May 8. During each discussion, Mr. Means informed Ms. Robbins that he was preparing

responses to the discovery requests and assured her that the answers were forthcoming. In reality,

the answers were not forthcoming; Ms. Robbins' efforts to extract answers from Mr. Means were

of no avail.

On May 19, 1992, twenty-six days after the Government's discovery answers were due, Ms.

Robbins filed a motion to compel and a motion for sanctions. The district court scheduled a hearing

on those motions for May 22. Mr. Means served Ms. Robbins with answers to some of the

interrogato ries and o bjected to others the morning of the hearing. However, at the hearing Ms.

Robbins complained, not only about the tardiness of the recently-supplied answers and objections,

but she also asserted that a number of the answers to the interrogatories were incomplete. 4 Further,

although Mr. Means provided some important documents in response to the requests for producti on

on the morning prior to the hearing, 5 he failed to produce other requested documents. In his answers

to the productio n request s and again at the hearing, Mr. Means averred that at least half of the

requested documents did not exist. One such document was an accident log which the plaintiffs

claimed Mr. Svede, the Fort Worth USPS accident investigator and the Government's representative

for this action, maintained. 6 Another was a standard accident report ("Form 1769").

The district court, re viewing these and other discovery infractions, refused to grant the7 However, he added that he would not rule "out the possibility of there being a default

judgment on liability, and perhaps even on damages, if the government continue[d] the course of

conduct" in which it had been engaging. Tr. Vol. 3 at 37.

8 In his response to the requests for production, Mr. Means listed the name of each person he

had contacted to assist in his search for pertinent documents. As required by the court, Mr.

Means also attached an affidavit to the response, certifying the following:

Every item responsive to plaintiff's discovery requests has been produced and is

listed in this affidavit. I do further certify that I have made inquiries of such a

nature as to be calculated to disclose the existence of any item of any kind or

character called for by any of plaintiff's discovery requests. I do further certify that

the person listed with each enumerated response after the title " Contact: "

constitutes the persons contacted by me with regard to ascertaining the existence

of and locating items responsive to plaintiffs' requests. I do further certify that the

response there indicated represents the substance of the response of each such

person to the inquiries made by me.

I do hereby declare under penalty of perjury that the foregoing is true and

correct.

R. at 181. As to the requests which called for Mr. Svede's accident log, Mr. Means stated

in his response that Mr. Svede had been his contact person. plaint iffs a

default judgment. He determined that such a penalty was too harsh under the

circumstances before him. 7 Nonetheless, finding that the Government's conduct was not substantially

justified and that no circumstances existed which made sanctions inappropriate, the court concluded

that a lesser sanction was, indeed, appropriate. The court first ordered the Government to deliver

every document called for by the plaint iffs' requests for producti on to Ms. Robbins' office by May 27.

The cour t directed Mr. Means to attach an affidavit to his responses to the discovery requests

certifying that he, Mr. Means, had made inquiries which were calculated to disclose the existence of

any document or tangible thing for which the producti on requests or subpoenas duces tecum called. 8

Additionally, the court ordered the Government to produce Ms. Chapman for a deposition on May

28 since the Gov e rnment had failed to question her. Further, based upon the authority provided

under Rule 37(d), the court ordered Mr . Means to pay for those deposition costs and all of the

attorney's fees and other expenses the plaint iffs had incurred in preparing the motion to compel and

the motion for sanctions. The court stated that these sanctions were against the attorney, not against9 The Government filed an interlocutory appeal, asking this Court to review the district court's

decision to sanction Mr. Means. However, because that court had not yet entered final judgment,

we dismissed for lack of appellate jurisdiction.

10 He stated that on May 29 he learned that he had previously provided incorrect information

on the supplier of the floor wax. Mr. Means also asserted that he had "discovered" the existence

of some documents which he had previously claimed were non-existent.

11 More specifically, Mr. Means constated:

Plaintiff further complains that Al Svede has not produced his ow n log relating to

the same topic. Defendant has certified, based upon the answ er provided by Al

Svede, that there is no record of any complaint of the type sought by Plaintiff's

request. There being no information of the type sought, as established by a

complete search of the proper records of Defendant and the certified answer of

Defendant, there is no violation of this Court's orders shown.

R. at 346. (Emphasis added).

12 In their requests for production, the plaintiffs limited all inquiries to the River Bend Post

Office location. At this June 4 hearing, Means stated that he had checked the log in question. He

asserted, however, that the log contained no information on accidents which occurred at the River

Bend location. The following transpired: the United States, and forbade Mr. Means from seeking reimbursement from the Government. 9 The

court also infor med Ms. Robbins that after she reviewed the Government's recently provided

responses to her discovery requests, she could file supplemental motions to compel and for sanctions

if she so needed.

She did so. Among other things, she complained in her supplemental motions of the

Government's failure to produce the Form 1769 and Mr. Svede's accident log. With respect to the

latter, Ms. Robbins specifically pointed out that "Al Svede testified in his deposition (at page 114, line

16) that he keeps a log which, among other things, would contain informatio n relating to types of

claims and their disposition. Defendant has never produced this log." R. at 239.

Mr. Means responded to a large number, but not all, of Ms. Robbins' allegations. 10 Important

for our purposes, Mr. Means stated that he had produced the only accident log that was responsive

to the p l aint iffs' producti on requests. 11 The hearing on this supplemental motion for sanctions

occurred on Thursday, June 4, 1992, just four days—only one working day—prior to the scheduled

trial. During that hearing, Mr. Means again claimed that although Mr. Svede possessed an accident

log, it was not covered by the plaint iffs' requests for production. 12 Mr. Means again testified that noTHE COURT: Well, why haven't those accident logs been produced?

MR. MEANS: Your Honor, as our motion sets out, the request related

specifically to anything that dealt with these premises. A search has been

conducted of those accident logs, as we have set out in our response to this

supplemental motion, and there is no record in those logs relating to any accident

or complaint on the premises of River Bend for the time—

THE COURT: Well, that takes care of it. That's what she has asked for.

And if you can at some point in time prove they misrepresented to you in saying

that there is nothing, then they have got a different problem. But so far the

representation is that there is nothing.

MS. ROBBINS: Well, Your Honor, we do know of two accidents that occurred

at that premises, and they would be listed in that log.

THE COURT: Well, I have got to assume they don't do a very good job of

keeping their records because it's been represented that there is no record of those

accidents. Is that w hat you are representing?

MR. MEANS: That is correct, Your Honor.

THE COURT: Even though there are two other accidents on the premises, the

post office department did not keep a record in any of its logs, accident logs or

other books, of those accidents.

MR. MEANS: There is one accident that was reported. That is the Chillcut (sic)

accident this case is based on. And my representation is the same as what is

reflected here. Yes, Your Honor, there is no record of that in this log. She refers

to a second accident that occurred, and no further reporting was made. And the

document that was filled out at the scene of the River Bend post office and has

remained at that location has been produced, and there is no other notation in the

log of that transaction.

MR. MEANS: There is no record. As our response to this supplemental motion

states, I am stating under oath before the court as an officer of the court that my

representations in that motion are correct, that a search of that log has been

conducted, and no accident has been identified to the time periods in that

log—and I believe it's 1987 through the present—for the premises, River Bend

[post office], for both employee accidents or complaints or customer accidents.

Tr. Vol. 5 at 48-50 (emphasis added). Form 1769 existed, claiming, "As I understand, the plaint iff says she filled that out and gave it to the

witness on that date. Our position is that did not happen." Tr. Vol. 5 at 57.

Due to the numerous discrepancies between the plaint iffs' claims and the defendant's response,

the court directed the Government to bring its witnesses, including Mr. Svede, to the court later on

the same day. One of the first questions the court asked Mr. Svede concerned the existence of the13 Mr. Means presented no explanation for his misrepresentation regarding Form 1769. In fact,

even though Mr. Svede, the Government's representative, testified under oath that such a form

existed and that he possessed a copy thereof, Mr. Means and the Government—similar to the

argument that windmills are dragons—persist in their quixotic claim that the form does not exist.

Tr. Vol. 5 at 142; Oral Argument Tape.

14 See infra note 12. Mr. Svede provided no explanation as to the non-production of the log.

Mr. Means merely asserted that he did not believe that the log was covered by the requests for

production. Form 1769. Mr. Svede testified under oath that not only did the Form 1769 exist

, b ut that he

possessed a copy of that form. 13 If that were not bad enough for the Government, when Ms. Robbins

asked Mr. Svede whether he had listed Ms. Wortham's accident in his accident log, he answered that

he had done so. Mr. Svede presented the log to the court to review, and it did, indeed, list Ms.

Wortham's accident, contrary to Mr. Means' earlier statement that it did not. 14

The court disagreed, finding that several of the requests covered the accident log. The court

further found that although the Government and the people working on the case knew that the log

existed and that it was called for by the requests for production, the Government chose to withhold

the documents in derogatio n o f t he discovery rules and the court's order compelling discovery.

Finally, the court found that the Government had severely disadvantaged the plaint iffs by producing

the documents on the eve of trial and by causing the plaintiffs' counsel to devote a great amount of

time, not to preparing for trial, but to dealing with the Government's discovery abuses.

Exercising authority under Rules 37(b) and 37(d) of the Rules of Civil Procedure, the court

determined that stiff sanctions were appropriate because of the Government's flagrant disregard of

its discovery obligations and its flouting the court's order compelling discovery. Although the court

believed that a default judgment as to liabilit y or damages was justified, it decided instead merely to

deem that the prima facie elements of the plaint iffs' liabilit y claim were established for the purposes

of the case. The court allowed the Government to present evidence of its affirmative defenses and

required the plaint iffs to prove damages. After a bench trial on the Government's affirmative defenses

and on damages, the court found for the plaintiffs and awarded them $892,567.00.

Not prone to overlook what appeared to be a "flagrant ca se o f misrepresentation by Mr.

Means, as well as a rather flagrant violation of the discovery obligations," the dis trict court hel d a15 See supra note 11.

16 See supra note 12; see also supra note 8. hearing to determine whether it should hold Mr. Means in criminal contempt of court and bar him

from practicing before the Northern District of Texas. Tr. Vol. 3 at 4. During the hearing, the court

ignored many of the discovery infractions and focussed solely on Mr. Svede's log. Despite the fact

that he had previously referred to the accident log several times, both in his response to Ms.

Wortham's supplemental motion for sanctions 15 and in a hearing before the court in whi ch he had

affirmed, as an officer of the court, that he had reviewed that particular log, 16 Mr. Means claimed at

this hearing that he had never seen the log and had not known that it existed prior to the June 4

hearing.

The district court thought o t herwise, concluding that he could find that the elements of

criminal contempt were proved beyond a reasonable doubt. The court determined that Mr. Means

had intentionally mis represented to the court that Mr. Svede's l og di d not report Ms. Wortham 's

accident. However, giving Mr. Means the "benefit of the doubt," the court chose not to disbar him

or hold him in criminal contempt. Instead, the court ordered Mr. Means to obtain fifteen hours of

ethics or professional responsibility training by November 1, 1992. He also dictated that Means not

be reimbursed for the training costs and ordered Mr. Means to reimburse Ms. Robbins for the time

she had spent in the hearing. The Court again directed that Mr. Means not seek or obtain

reimbursement for that sanction.

The Government and Mr. Means are not satisfied in the least bit with the outcom e of this case,

and they both appeal. The Government argues that the district court abused its discretion in deeming

the liability elements of the case established. Mr. Means challenges the court's decision forbidding

him from seeking reimbursement from the Government.

II. Discussion

A. Standard of Review

Rule 37(b)(2) authorizes courts to appropriately respond to and deal with parties which have

disobeyed discovery orders. District courts' discretion in fashioning appropriate sanctions for parties17 We note that deeming the establishment of certain facts is one of the least harsh sanctions

available to courts under Rule 37(b). Indeed, it is only more severe than the granting of expenses

and attorneys' fees. See F ED .R.C IV .P. 37(b)(2); see also United States v. Sumitomo Marine and

Fire Ins. Co., 617 F.2d 1365, 1369 (9th Cir.1980).

18 Clearly, had the Government proved its case by a preponderance of the evidence, the fact

that the liability elements had been deemed established would have been nugatory, and the

Government would have been victorious in this litigation. who disobey their orders is quite broad, though not unlimited. Marshall v. Segona, 621 F.2d 763,

767 (5th Cir.1980); E

merick v. Fenick Industries, Inc., 539 F.2d 1379, 1381 (5th Cir.1976). Hence,

the question we must decide in each of these issues is not whether this Court would have imposed

the same sanctions as did the distri ct court ; the question is whether the district court abused its

discretion in so doing. N

ational Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,

640, 96 S.Ct. 2778, 2778, 49 L.Ed.2d 747 (1976); S hipes v. Trinity Indus., 987 F.2d 311, 323 (5th

Cir.1993).

B. Establishing Facts Against the Government

1. Proper Standard

The Government, in its argument that the district court improperly sanctioned it, insists that

the sanction in question was tantamount to a default judgment on both liability and damage claims.

The Government therefore contends that Rule 37 dismissal and default judgment cases control the

fact s of this case. S ee e.g. Batson v. Neal Spelce Associates, Inc. 765 F.2d 511 (5th Cir .1985);

Marshall v. Segona, 621 F.2d 763 (5th Cir.1980); E merick v. Fenick Industries, Inc., 539 F.2d 1379

(5th Cir.1976). While it is true that a court's decision to deem certain facts established may equate

to a default judgment in some circumstances, see Marshall, 621 F.2d at 766 n. 3, such is not the case

here. 17

The district court all o wed t he Government to present its case in chief on its affirmative

defense iss ue. The Government did so: it called three witnesses to attempt to prove that Brenda

Wortham's negligence, not that of the Government, had caused the a ccident. Because the court's

ruling did not preclude the Government from presenting its case in chief, the sanction was a far cry

from a default judgment. 18 Further, the Government's assertion that the court also granted a defaultjudgment on the damages issues is all but fanciful. Not only did the court require Ms. Wortham to

prove damages, but on many of the damage elements, the court made conclusions which were very

favorable to the Government.

Thus, we believe that the default-judgment/dismissal cases proffered by the Go vernment

impose too great a standard for the type of sanction involved here. Rather than look to those ty pes

of cases, we believe t hat t he Supreme Court's decision in I nsurance Corp. of Ireland, Ltd. v.

Compagnie Des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), governs

this case.

There, the Compagnie Des Bauxites de Guinee ("CBG") filed suit in a Pennsylvania district

court against its insurance companies. Several of the companies ("excess insurers"), including the

Insurance Corporati on of Ireland, filed motions for summary judgment based upon their contention

that the Pennsylvania court lacked personal jurisdiction over them. CBG sought discovery on the

personal jurisdiction issue; however, the excess insurers, though ordered and later threatened with

sanctions, failed to make a conscientious effort to com ply wit h t he discovery orders. The district

court therefore carried through on its threatened sanctions and determined that the excess insurers

were subject to the in personam jurisdiction of the court for the purposes of the litigation. I nsurance

Corp. of Ireland, 456 U.S. at 697, 102 S.Ct. at 2101.

The Supreme Court, affirming the ruling of the district court , det ermined that decisions to

impose sanctions under Rule 37(b) must be guided by two important considerations: The sanction

must first of all be just, and it must "specifically relate[ ] to the particular "claim' which was at issue

in the order to provide discovery." I d. at 707, 102 S.Ct. at 2107. The Court found several significant

facts which contributed to its decision that the sanction was fair. First, the district court had warned

the excess insurers on several occasions that continued delay and disregard of its orders would result

in the imposition of sanctions. The Court also found that the excess insurers' repeated promises to

comply with discovery orders was suppo rtive of the district court's decision. Finally, the Court

concluded that the allegation of personal jurisdiction was not frivolous and that CBG's attempt to use

discovery to prove that personal jurisdiction existed was not a misuse of the judicial process. I d. at19 See supra note 7.

707-708, 102 S.Ct. at 2106-2107.

Because the discovery in issue t a rgeted personal-jurisdiction evidence, the Court had no

problem in finding that the deemed finding—personal jurisdiction—was sufficiently related to the

claim sought to be proved by discovery. I d. at 708-709, 102 S.Ct. at 21 07. The Court theref ore

found that the district court did not abuse its discretion in sanctioning the excess insurers. Id.

We believe that th e two standards presented in I nsurance Corp. of Ireland —fairness and

substantial relationship between the sanction and the claim—along with a third—that the sancti on

meet the Rule 37 goals of punishing the party which has obstructed discovery and deterring others

who would otherwise be inclined to pursue similar behavior, National Hockey League, 427 U.S. at

643, 96 S.Ct. at 2781—should guide our review of the district court's decision in the case sub judice.

2. Just and Fair?

a. Ample Warning

This case resembles Insurance Corp. of Ireland in several key respects. First, as occurred

in that case, the district court here warned the parties many times that it would not tol erate discovery

abuses. S ee Bluitt v. ARCO Chemical Co., 777 F.2d 188, 191 (5th Cir.1985) (affirming the dismissal

of a case where the district court found that the plaintiff's failure to obey discovery orders and heed

warnings that dismissal would occur unless the plaint iff performed its discovery obligations showed

that a sanction lesser than dismissal would have been of no avail).

In the instant case, the parties were warned in each of three scheduling orders, as well as in

each of the memoranda which accompanied those orders, that discove ry vio lations could result in

dismissal or default judgment. Further, in the first hearing on Ms. Wortham's motion to compel, the

district court, declining to grant a default judgment, specifically explicated that default judgment on

liabilit y and pe rhaps on damages might be justified if the Government continued in the type of

conduct in which it was engaging. 19 Further, during the hearing on the second motion to compel, the

district court warned that if the plaint iffs could prove that the Government had falsely stated that the

log contained no information on accidents which occurred at t he River Bend location, the20 See supra note 12.

Government would have a problem. 20

Having been warned numero us t imes t hat discovery abuses in general and that the

continuation of its conduct in particular might result in a default judgment, the Government should

not have been surprised by the district court's decision to deem the liabilit y facts established. In fact,

based upon the Government's flagrant violations of its discovery obligations, its flouting the district

court's discovery order, and its blatant misrepresentation to the court, the Government should have

been relieved that the court did not order a much stiffer penalty.

b. Empty Promises

This case is also similar to Insurance Corp. of Ireland in that the Government here, like the

excess insurers there, repeatedly promised to comply with its discovery obligations. Ms. Robbins,

the plaint iffs' counsel, testified that she communicated with Mr. Means numerous times, both face to

face and by telephone, before and after the Government's answers were due, explaining to him that

time was of the essence and rem inding him of the discovery cut-off date. Even according to Mr.

Means, each time he and Ms. Robbins talked, he promised that the answers would be forthcoming.

Without a doubt, those promises strung Ms. Robbins along, causing her to incorrectly believe

that seeking an order compelling discovery or moving for Rule 37 sanctions was unnecessary. Ms.

Robbins believed the Government's promises until it was nearly too late for her to adequately prepare

her case. Had the Government simply refused to perform its discovery obligations without giving

vain assurances of its alleged intent to comply, Ms. Robbins would almost certainly have sought an

order to compel much earlier than she di d. We view the Government's unfulfilled promises as the

Supreme Court viewed the excess insurers' pledges to comply with CBG's discovery requests: They

support the district court's decision to impose sanctions.

c. Frivolity of the Claim

The Government has never contended that the plaint iffs' use of discovery was an abuse of

judicial process. The plaintiffs had a colorable claim that the Government's negligence caused Ms.

Wortham's accident. The Government conceded that only five of eight light fixtures were functioning21 The district court stated that the only reason the Government would withhold Mr. Svede's

accident log and then make misrepresentations as to the log's contents was to prevent the

plaintiffs from learning that a number of other customers had also fallen at the River Bend

location.

22 This Court, and the Supreme Court, as well, have often forbidden the dismissal of a case if

the conduct involved was not willful or contumacious. Societe Internationale Pour

Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087,

1095, 2 L.Ed.2d 1255 (1958); Bluitt v. Arco Chemical Co., 777 F.2d at 190-91; Batson, 765

F.2d at 514.

23 Because we conclude that the Government indeed flagrantly and willfully disregarded its

discovery obligations and the district court's order, we need not determine what lesser standard of

behavior would have justified the type of sanction ordered in this case.

We note, however, that Rule 37(b) clearly indicates that district courts have

authority to grant a broad spectrum of sanctions. Of course, the flagrancy of a party's

behavior must be directly proportionate to the severity of the sanction imposed.

Nonetheless, neither this Court nor the Supreme Court has ever determined that the lack

of willful, contumacious, or prolonged misconduct prohibits all sanctions. On the

contrary, we have held that dismissal or default judgment is warranted only when

misconduct is quite serious.

The Supreme Court made clear in Rogers, a case in which the petitioners were

absolutely precluded by foreign law from turning over certain documents to the

respondents, that though the petitioners were unable to comply with the discovery

requests, the district court still had broad discretion to mete out a lesser sanction than

dismissal. Rogers, 357 U.S. at 213, 78 S.Ct. at 1096 (stating that "[i]t may be that in the

absence of complete disclosure by petitioner, the District Court would be justified in

drawing inferences unfavorable to petitioner as to particular events"). o n t he day of the accident. More importantly, the concealed log proved that numerous other

customers had likewise fallen at the River Bend Post Office. 21 The plaint iffs' claim of liabilit y was far

from frivolous.

d. Other Considerations

1. Intentional Misconduct

The Government asserts that there is no evidence of willful or contumacious behavior in this

case. It therefore claims that the district court's sanction was unjust. 22 We disagree. As discussed

earlier, the sanction granted here was not tantamount to a default judgment, and this Court has never

held that willful or contumacious conduct is a prerequisite to sanctions which are less harsh than a

dismissal or default judgment.

Regardless of the proper mens rea standard however, 23 the credible evidence in the record ofSignificantly, the Court explained that the type of conduct displayed by a party had

no bearing on whether

sanctions should be imposed, but only on the type of sanctions

imposed. The Supreme Court explained, "[T]he willfulness or good faith of [a party], can

hardly affect the fact of noncompliance and [is] relevant only to the path which the District

Court might follow in dealing with [the party's] failure to comply." Id. at 208, 78 S.Ct. at

1094 (emphasis added). Hence, we simply note that willfulness is not required for

deeming that certain facts are established for the purposes of a case unless that sanction is

the equivalent of a dismissal or default judgment.

24 This Court has noted, but chooses not to write on, numerous other discovery violations

committed by the Government, as reflected in the record of this case. this case reveals quite readily that the Government not only intentionally withheld documents that it

knew existed, but it also knowingly made blatant misrepresentations to the district court about the

existence of those documents. 24 Such conduct, in our view is patently willful and contumacious.

Indeed, the district court considered Mr. Means' behavior to be so willful and contumacious that it

seriously considered disbarring Mr. Means and holding him in criminal contempt. The punishment

meted out here clearly fit the conduct involved.

2. It's Not Our Fault

The Go vernment further claims that it was an innocent client and that the district court

unfairly punished it for the errors of its attorney

, Mr. Means. This Court has often emphasized that

an innocent party should not be severely penalized for the misconduct of its counsel. Batson, 765

F.2d at 514; M

arshall, 621 F.2d at 768; F actory Air Conditioning Corp. v. Westside Toyota, Inc.,

579 F.2d 334, 337 (5th Cir.1978). However, the district court did not punish the Government for

misconduct solely attributable to the Government's attorney

. The court concluded that there was "no

question but [t]hat [the accident log] was called for by the requests for producti on and was obviously

known to people that were working on the case on behalf of defendant. " Tr. Vol. 5 at 148. The key

people who worked on the case were Mr. Mean s, t he Government's attorney , and Mr. Svede, the

Government's representative.

There is ample evidence in the record to support the district court's conclusion that Mr. Svede

also engaged in misconduct. During Mr. Svede's depo sit io n, Ms. Robbins referred him to each

request for p ro duct ion and asked him what documents were responsive thereto. Mr. Svede

responded that he possessed an accident log which was called for by at least one of the requests. Mr.25 See, e.g., supra note 8.

26 See supra note 12.

27 We have previously held that the misconduct of an attorney who has been continuously

employed by a party supports the imposition of a default judgment against that party. United

States v. Shipco General, Inc., 814 F.2d 1011, 1014 (5th Cir.1987). There is no question but that

Mr. Means, a Department of Justice attorney, was continuously employed by defendant United

States in this case. Means testified that after the deposition, he went over the producti on r equests wi th Mr. Svede

numerous times to obtain his assistance in responding to the requests. 25 However, at the show-cause

hearing, Mr. Svede claimed for the first time to have forgotten that the log, which was still in use,

existed.

Mr. Svede's testimony, when considered alone, is incredible. Moreover, his testimony is

contrary to Mr. Means' earlier testimony. As noted in section I of this opinion, Means stated as an

officer of the court that he had reviewe d Mr. Svede's log and had determined that it was not

responsive to the plain t iffs' requests for production. 2 6 Despite these inconsistencies, however, the

Government continues to ask this Court to believe that Mr. Svede, the Fort Worth USPS accident

investigator, responsible for list ing every accident in his own accident log which was kept in his own

office, forgot that the log existed. It asks that we accept as true the "fact" that Mr. Svede could

remember his log under the stressful conditions of a deposition, but could not remember that same

log when he later reviewed the requests for production with Mr. Means.

We cannot accept the Government's ludicrous assertion that Mr. Svede was totally removed

from the misconduct here. The district court's finding is amply supported by the evidence. We fail

to see the injustice in sanctioning the Government for th e misco nduct of its representative in this

case. 27

3. Previous Sanctions

Highly supportive of the distric t co urt 's decision to deem that the liability facts were

established in this case is the fact that that court had previously sanctioned Mr. Means for discovery

abuses. One would think that a $2500 sanction granted personally against the Government's attorney

would have been warning enough that the district court would not tol erate an y further discovery28 In United States v. Shipco General, Inc., the district court initially sanctioned Shipco $500

for ignoring its discovery obligations and the court's order compelling discovery. Because that

sanction failed to coerce compliance on the part of Shipco, the district court dismissed Shipco's

claims against the United States. We affirmed. 814 F.2d 1011 (5th Cir.1987).

29 The Supreme Court explicated:

[B]eyond peradventure, the general course of legislation and judicial decision in

the several states indicates that it has always been assumed that the power existed abuses. Since such was not the case, t he district court was well within its discretion to grant the

harsher sanction. 28

Nevertheless, the Government complains that the district court should not have jumped to the

sanction it chose, but should have granted a less harsh sanction instead. In the Government's view,

only after disobeying the order compelling discovery after the imp osition of a s econd, less-harsh

sanction should it have been punished as severely as it was punished. This argument is without merit.

Attorneys are professionals. They are, in every respect, officers of the court, and officers of

the court must comply with each court order when it is issued—not after two or three warnings to

do so and not after lesser sanctions are imposed. "It [should be] universally understood that a court's

orders are not to be willfully ignored, and, certainly, attorney s are presumed to know that refusal to

comply will subject them and their clients to sanctions." Batson, 765 F.2d at 515.

We conclude that the sanction granted against the Government was fair.

4. Related to the Claim Sought to be Proved by Discovery

The district court determined that the only reason the Government withheld the accident log

was to prevent the plaint iffs from learning that a numbe r o f o t her customers had also fallen in the

River Bend Post Office. Had the Government properly responded to the subpoenas duces tecum and

requests for production, the plaint iffs would have been able to investigate those accidents and would

likely have strengthened their liabi lit y allegations against the Government. Obviously, the

Government's misconduct precluded that from happening.

When parties pr esent no valid objections to discovery and intentionally withhold properly

requested information, courts have the authority to presume that the party's refusal to produce the

information is "an admission of the want of merit in the asserted defense." 29 H ammond, 212 U.S. atto compel the giving of testimony or the production of books and papers by proper

regulations prescribed by the legislative authority, and, for a failure to give or

produce such evidence, the law might authorize a presumption in a proper case

against the party refusing, justifying the rendering of a judgment by default, as if no

answer had been filed.

Hammond Packing Co. v. Arkansas, 212 U.S. 322, 352, 29 S.Ct. 370, 380-81, 53 L.Ed.

530 (1909).

30 The Government additionally complains that it should not have been sanctioned because the

plaintiffs were not prejudiced by its discovery abuses. While perhaps relevant to the type of

sanction imposed, a party need not always be prejudiced by its opponent's discovery abuses prior

to the imposition of sanctions. After all, the goal of sanctioning is not to reward the complying

party, but to punish the infracting party and to deter others who may be want to engage in similar

behavior. See National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781. 351, 29 S.Ct. at 380; s ee also Insurance Corp. of Ireland, 456 U. S. at 709, 102 S.Ct. at 2107.

Based upon the facts of this case, we believe that the district court was well within its discretion to

presume, for the purposes of this case, that the plaintiffs' liability claims were established.

5. Punishment and Deterrence

The Government argues that for such a relatively minor infraction, the district court should

have granted a continuance rather than imposing the type of sanctions at issue in this case. 30 First,

it must be c lear t hat unless compelling reasons exist, this Court will not require a district court to

inconvenience itself by rearranging its calendar to accommodate a malefacto r who has violated its

discovery obligations. See Geiserman v. MacDonald, 893 F.2d 787, 791-92 (5th Cir.1990).

Second, the Government's argument that its conduct was relatively minor and due solely to

miscommunication and confusion makes it patent that the Government has yet to recognize that its

conduct constituted serious infractions against the rules of discovery as well as against the district

court, itself. Far from being relatively minor infract io ns, the Government's conduct, as discussed

above, was willful, contumacious, and flagrant. Unfortunately, the sting of the punishment imposed

here failed to bring home to the Government that its actions in this case fell far below that which is

acceptable. The Government's lack of concern about the behavior of its counsel and representative

clear ly demo nstrates that it deserved the type of sanctions meted out here. However, even if the

Government were to become penitent for its behavior, we do not believe that a lesser sanction would

serve the deterrent purposes of Rule 37. S ee National Hockey League, 427 U.S. at 643, 96 S.Ct. at31 Mr. Means also refers the Court to regulations which allow the Justice Department to

reimburse employees who have been sued in their individual capacities. Our review of those

regulations, however, fails to reveal that they are inconsistent with the district court's decision

here. The relevant section is entitled "Representation of Federal officials and employees by

Department of Justice attorneys or by private counsel furnished by the Department in civil,

criminal, and congressional proceedings in which Federal employees are sued, subpoenaed, or

charged in their individual capacities." 28 C.F.R. § 50.15 (1992). Subsection (c)(1) provides that

the "Department of Justice may indemnify the defendant Department of Justice employee for any

verdict, judgment, or other monetary award which is rendered against such employee ..." Id. at §

50.15(c)(1).

This language is inapplicable in the situation before us: The regulation evinces no

intent whatever to restrict a court's authority to impose sanctions against government

employees. Even if an inconsistency existed, however, the Federal Regulations, which do

not have the force of a federal statute, would have to bow to the Federal Rules of Civil

Procedure, which do. See Sibbach v. Wilson and Co., 312 U.S. 1, 13, 61 S.Ct. 422, 426,

85 L.Ed. 479 (1941). 2781 (concluding that if the Supreme Court reversed the district court's decision to dismiss the case

under Rule 37, "it might well be that [petitioner] would fait hfully comply with all future discovery

orders entered by the District Court in this case. But other parties to other lawsuits would feel freer

than we think Rule 37 contemplates they should feel to flout other discovery orders of other district

courts").

For the above stated reasons we affirm the district court's decision to deem the liabilit y facts

as established for the purposes of this case.

C. Propriety of Sanctioning Mr. Means

Although Mr. Means does not argue that the district court abused its discretion in sanctioning

him, he does contend that by forbidding him from seeking reimbursement from the U.S. Government,

the district court violated the separation of powers doctrine. Mr. Means asserts that as a member of

the executive branch, and, more specifically, the Justice Department, the Attorney General—and not

a member of the judiciary—is to discipline him. 31

Congress has made it abundantly clear that it intends for Government attorney s to be treated

the same as private attorneys. Amending 28 U.S.C. section 2412 in the Equal Access to Justice Act

("EAJA"), Congress determined that the Governm ent sho uld be held liable for attorney's fees and

expenses "to the same extent that any other party would be liable under the common law or under

the terms of any statute which specifically provides for such an award." 28 U.S.C. § 2412(b). The32 Subsection (f) provided: "E XPENSES A GAINST U NITED S TATES . Except to the extent

permitted by statutes, expenses and fees may not be awarded against the United States under this

rule." See 4 A J AMES W. M OORE ET AL

., M OORE ' S F EDERAL P RACTICE ¶ 37.01[11] (2d Ed.1992).

33 Interestingly, the committee stated that it believed the EAJA would "make the United States

proceed more cautiously" in judicial and administrative proceedings. 1980 U.S.C.C.A.N. at 4999.

34 The rule reads:

In lieu of any of the foregoing orders or in addition thereto, the court shall require

the party failing to obey the order or the attorney advising that party or both to pay

the reasonable expenses, including attorney's fees, caused by the failure, unless the

court finds that the failure was substantially justified or that other circumstances

make an award of expenses unjust. F ED .R.C IV .P. 37(b)(2)(E). House Committee on the Judiciary explained that the change in section 2412, which took effect in

October 1981, simply "reflects the belief that, at a minimum, the United States should be held to the

same standards in litigating as private parties." H OUSE C OMM

. ON THE J UDICIARY

, E QUAL A CCESS

T O J USTICE A CT

, H.R EP

. No. 96-1418. 96th Cong., 2d Sess. 9 (1980), r eprinted in 1980

U.S.C.C.A.N. 4953, 4984, 4987, 4996. Moreover, the EAJA specifically deleted subsection (f) of

Rule 37, 3 2 which had precluded courts from imposing discovery sanctions on the United State s. 3 3

Equal Access to Justice Act, Pub.L. No. 96-481, § 205; see also 1980 U.S.C.C.A.N. at 4998.

By taking away the Government's protecti on from Rule 37 sanctions, Congress could not have

been clearer in revealing its intent to subject the Government and its attorney s to Rule 37(b)(2)(E)

which provides that, except in circumstances not at issue in this case, district courts are to order the

recalcitrant party, the attorney

, or both to pay reasonable expenses, including attorney's fees, to the

opposing party for violations of discovery orders. 34

There is no question but that a court can forbid a private attorney from seeking reimbursement

from clients or employers under Rule 37. S ee Shipes, 98 7 F.2d at 323 ("Under Rule 37(b), [the

attorney ] may be personally liable for reasonable expenses, including attorneys' fees, caused by his

failure to comply with a discovery order."); D erechin v. State University of New York, 963 F.2d 513

(2d Cir.1992) (upholding a district court's decision to forbid a state-employed attorney from seeking

reimbursement from the state). In fact, the Supreme Court, construing Rule 11, determined that the

punishment and det errent effects of sanctions are m aximized when awarded against the attorney35 Blue v. United States Department of the Army is inapposite to the facts of this case. There,

the district court forbade the NAACP from reimbursing one of the attorneys who had been

sanctioned, reasoning that NAACP members should not have to pay for the transgressions of the

attorney . 914 F.2d 525, 549 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1580, 113

L.Ed.2d 645 (1991). Unlike this case, the NAACP was not involved in any w ay with the

litigation in Blue. It was not a party, and it did not supply the attorney. The Fourth Circuit

reversed, concluding that the district court had no authority to tell the NAACP, an entity which

was not involved in the case, how not to expend its monies.

While it is certainly true that the district court in the case sub judice commented

that taxpayers should not be penalized for the misconduct of Mr. Means, the record in this

case shows all too clearly that, unlike the district court in Blue, this district court's primary

reason in precluding Mr. Means—who was at all times involved in this litigation—from

seeking reimbursement was to punish Mr. Means for his flagrant disregard of his discovery

obligations. Such a reason for imposing sanctions is entirely appropriate. National

Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781; See Derechin v. State University of

New York, 963 F.2d 513 (2d Cir.1992) (upholding district court's decision to prohibit state

attorney from seeking reimbursement). personally:

The purpose of the provision in question [which empowers courts to sanction persons or

entities for the signing of frivolous documents], however, is not reimbursement, but

"sanction;" and the purpose of Rule 11 as a whole is to bring home to the individual signer

his personal, nondelegable responsibility. It is at least arguable that t hese purposes are better

served by a provisio n which makes clear that, just as the court expects the signer

personally—and not some nameless person within his law firm—to validate the truth and legal

reasonableness of the papers filed, so also it will visit upon him personally—and not his law

firm—its retribution for failing in that responsibility. The message thereby conveyed to the

attorney

, [is] that this is not a "team effort" but in the last analysis [is] yours alone

. ... Moreover,

... there will be greater economic deterrence upon the signing attorney

, who will

know f o r certain that the district court will impose its sanction entirely upon him, and not divert part of it to a partnership ..."

Pavelic and LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126, 110 S.Ct. 456, 460, 107

L.Ed.2d 438 (1989) (emphasis in original).

We believe the reasoning in Pavelic an d LeFlore holds true for Rule 37 sanctions. The

district court's decision to prevent Mr. Means from seeking reimbursement was not inconsistent with

the goals of Rule 37. 35

That Congress ha s allo wed federal courts to sanction Government attorneys in the same

manner that those courts sanction private attorney s does not answer Mr. Means' contention that such

a rule is violative of the separation of powers doctrine. It goes without saying that any rule which

violates the Constitution, even if authorized by federal statutes, must be struck down. However, we

believe that such is not the case here.36 Governmental attorneys should model the ideals of integrity and ethics rather than attempt to

circumvent them. See Perry v. Golub, 74 F.R.D. 360, 366 (N.D.Ala.1976) (asserting that public

interest dictates that the Government, more than any other entity, comply with court orders).

37 The Government contends that prohibiting Government attorneys from seeking and receiving

reimbursement may inhibit such attorneys from vigorously representing the Government and

espousing unpopular, yet necessary, legal positions. This "chilling" argument has no more force

when invoked by the Justice Department than when invoked by opponents of Rule 11 of the

Federal Rules of Civil Procedure. As long as district courts use their sanction authority carefully,

no such effects will occur. In any event, appellate review will, in appropriate cases, deter

excessive or unwarranted sanctions by the district courts.

38 So important and deeply rooted is the federal courts' authority to enforce their orders and

punish willful infractions thereupon that the seventeenth section of the Judiciary Act of 1789

provided that all federal courts "shall have power ... to punish by fine or imprisonment, at the

discretion of said courts, all contempts of authority in any cause or hearing before the same." As

quoted in Ex parte Robinson, 86 U.S. (19 Wall.) 505, 22 L.Ed. 205 (1873). Writing for the

Court in Ex parte Robinson, Justice Field began his opinion as follows:

The power to punish for contempts is inherent in all courts; its existence is

essential to the preservation of order in judicial proceedings, and to the

enforcement of the judgments, orders, and writs of the courts, and consequently to

the due administration of justice. The moment the courts of the United States w ere

called into existence and invested w ith jurisdiction over any subject, they became

possessed of this pow er.

Id. (emphasis added); see also United States v. Hudson and Goodw in, 11 U.S. (7 Cranch)

32, 33, 3 L.Ed. 259 (1812) (asserting that "[t]o fine for contempt—imprison for

contumacy—inforce the observance of order, &c. are powers which cannot be dispensed

with in a Court, because they are necessary to the exercise of all others ..."). Contrary to Mr. Means' contention that the district court's decision violated the separation

of powers doctrine, we believe that to restrict a district court's powe r to fashion appropri ate

sanctions, simply because the transgressor is a member of the executive or legislative branch, 36 would

violate the separation of powers doctrine. 37 Such a decision would invit e members o f our sister

branches to ignore acceptable standards of decorum in courts and flout court orders. Indeed, to rule

as Mr. Means requests would rob federal courts of power they inherited at their inception: power

to preserve order in judicial proceedings and enforce judgments. 38 This Court recently ruled that it

would not hesitate to strike down any law which weakens the judiciary's power to enforce its orders

as unconstitutionally violative of the separation of powers doctrine. I n re Stone, 986 F.2d 898, 902

(5th Cir.1993). We refuse t o now approve of that which we have so recently condemned—the

erosion of a district court's authority to properly compel compliance with its orders. See McBride1 I do not know whether Stone 's analysis of inherent powers, borrowed from an Eighth Circuit

case, is fully valid. The Supreme Court declined to approve the Eighth Circuit analysis in

Chambers v. NASCO, Inc., --- U.S. ---- n. 12, 111 S.Ct. 2123 n. 12, 115 L.Ed.2d 27 (1991), but I

do not rely upon that aspect of Stone. v. Coleman, 955 F.2d 571, 582-83 (8th Cir.), cert. denied,

--- U.S.

----, 113 S.Ct. 65, 121 L.Ed.2d

32 (1992) (Lay, C.J., dissenting) (concluding that "[i]t would seriously erode our system of separation

of powers if the executive branch was (sic) effectively immune from the judicial power. The federal

courts must have the inherent authority to enforce executive branch compliance with judicial orders....

Otherwise, the judiciary

wo uld be powerless to impose the most effective remedy for ensuring

compliance with its orders against the most frequent litigant in the federal courts").

III. Conclusion

The decision of the district court is AFFIRMED, and we tax all costs and attorney's fees for

this appeal against the Government.

EDITH H. JONES, Circuit Judge, concurring specially:

I concur with all of Judge Johnson's fine opinion except for the following bit of dicta:

To restrict a district court's power to fashi o n appropriate sanctions, simply because the

transgressor is a member of the executive or legislative branch, would violate the separation

of powers doctrine. (footnotes omitted). (emphasis added)

This is as unfortunate an overst at ement as the government's contrary proposition that Judge

McBryde's order preventing Means fr o m seeking reimbursement from the Justice Department

somehow violates the separation of executive and judicial powers. This court recently described the

scope of a court's sanction against the backdrop of t he co nstitutional separation of powers and

concluded that sanctions fall within the court's inherent powers "necessary to the exercise of al l

others." I n re Stone, 986 F.2d 898, 902 (5th Cir.1993), citing Roadw ay Express v. Piper, 447 U.S.

752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980). 1 Stone then says:

Congress may interfere with this category of inherent p o wer wit hin "limits not previously

defined," so long as it does not abrogate or render the specific power inoperative. I d., citing

Michaelson v. U.S., 266 U.S. 42, 65-66, 45 S.Ct. 18, 19-20, 69 L.Ed. 162 (1924).

On the same page, Stone says that

If the power belongs in the

... category [of sanctions], we must ascertain whether a valid

statute or rule attem

pts to regulate the court's use of the power. If such a law exists, we thenmust determine whether the law abrogates or renders the power practically inoperative. I d.,

citing Michaelson, 266 U.S. at 66, 45 S.Ct. at 20.

Stone disposes of this case. That the government says there is a violation of the separation

of powers doctrine does not ipso facto make it so. The government's concern is too speculative upon

the facts before us. First, contrary to the Justice Department's argument, it is not at all clear that its

regulation bears on, much less purports to limit the court's independent power to determine how it

wil l sanct io n a government employee. Second, the Justice Department offered no evidence or

argument that Means would qualify for reimbursement but for the district court's order. Further, the

government does not assert that the distri ct co urt's order actually impinged upon the policy and

personnel interests that it asserts are protected by immunit y from such an order. These facts counsel

against our rushing to opine upon an important constitutional issue. If the regulation affected the

court's sanction power to the limited extent of preventing the court from issuing a sanction against

an assistant United States attorney individually and non-reimbursably, it appears to me that such a

regulation would not render this court's inherent sanction power "inoperative". A court has numerous

other types of sanction remedies available against the federal government and its attorney s even if this

one is not. To decide this point precisely is, however, unnecessary. The government's argument fails

on the facts before us.

* * * * * *