In the Matte r of the

F ORT TOT TEN METRORAIL CASE S Arising Ou t of the Events of June 22, 2009 LEAD CASE: Jenkin s v. Washin gton Met ropolitan Area Transit Authority, et al. , THIS DOCUMENT RELATES T O: ALL CASES UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Case No. 10- MC- 314 (RBW/JMF )

MEMORAN DUM OP INION This case was re fer

red to me f

or re solution of discovery disputes. Currently

pendingand

rea dy for r esolution is Defenda nt ARI NC Incorpor ated’ s Motion for Sanctions Ag ainst Def endant WMATA [#423] . For the re asons stated he rein, the motion will be denied. BACK GR OUND The c ollisi on betwee n two Washington Metropolitan Ar ea T ransit Authority (“WMATA” ) trains oc curr ed on June 22, 2009, and a law suit pertaining to it was filed within two day s. Software called the Advanc e Information Mana g ement (“ AI M”) sy stem had bee n installed by

ARI NC and plaintiffs name d ARI NC as a de fenda

nt in the complaint. See Master Complaint [ #5]; Def

endant ARI

NC I ncorpor ated’ s Memorandum of Points and Authorities in Support of Motion for Sanctions Ag ainst Defe ndant WMATA [#423-1] at 2. On De cembe r 17, 2010, WMATA asserte d a cr oss claim ag ainst, inter alia , ARI NC for indemnity

and contr ibution.Def

endant Washing ton Metropolitan Are a Tra nsit Authority ’s Cross-Claim Ag ainst Defe ndants Alstom S igna ling, Inc., Ansa ldo Sts USA, Inc., and A RI NC Incorpor ated [#140]. On April 1, 2011, Judge Walton set April 15, 2011, as the de adline for production of documents. Amende d SchedulingOrde r [#234] . Neve rtheless, WMATA continued to produc e documents we ll after that date in re sponse to demands by the par ties, including A RI

NC. [#423-1] at 4. On August 10, 2011, ARI NC took the deposition of a man named Danie l Epps, I I I , a WMATA employ ee who serve d as the Dire ctor of the Oper ations Control Center wher e ARI NC’s softwar e, the AI M sy stem, is in use. [ #423-1] at 4. Eppps indicated that anothe r WMATA employ ee na

med B eck Pak ha d the re sponsibili ty to make re commendations per taining to a B usiness Process Reviewconducte d by an ARI NC subcontrac tor in connec tion with the desig n and implementation of the A I M sy stem. I d. ARI NC had pre viously

place d WMATA’s production of doc uments into a databa se. I d. at 4. After Epps’ deposition, ARI

NC sear ched its data

base to find some doc uments ref ere ncingPak and those that did, ca

me for the most part, from ARI NC’s own produc tion. I d. ARI NC inquired of WMATA whethe r it had collec ted and pr oduced doc uments from Pak’s file. I d. at 4-5. While WMATA investigated, ARI NC looked in the databa se for the files of othe r WMATA employ ees, Arturo Weldon, Robert Gholston, I I I , and then late r Milton J etter, a fter WMATA indica ted that J etter w as a c ontrac t specialist who had de alt with the contra ct betwe en ARI NC and WMATA. I d. at 5.On September

22, 2011, ARI

NC contac ted WMATA about its conce rns re g ardinghow few documents had be en produc ed as to these individuals and on September 29, 2011, the da y 2befor e all discove ry was to close, WMATA indicated that it was in the proc ess of c ollecting the documents per

taining to these individuals. I d. at 6. WMATA also indicated that it had identified another employ ee, A shak Rajpal, who wa s a contra cting office r for the “WMATA ROCS/AI M upg rade .” I d. Acc ordingto ARI

NC, from September

30, 2011, to October

14, 2011, WMATA made eig ht document produc tions, consisti ngof almost 300,000 pag es of doc uments, and that whe n ARI NC filed the cur

rent motion, it was still awa iting the pr oduction of additional docume nts. [#423-1] at 8. Havingfiled its motion for summary judgme nt on November

11, 2011, without

cer tain documents, ARI

NC claims that it has been pr ejudiced by havingto proce ed without them. I d. at 8-9, 16. It urg es that WMATA be pre cluded f rom using the se docume nts while ARI NC is permitted to use them, and that the jury be instructed tha

t it may draw an adve rse infe renc e fr om WMATA’s late produc tion. I d. at 23. Fina lly , ARI NC demands that it be paid its attorney ’s fe es and costs for

havingto file the motion. I d. at 23-24. In its opposit ion to ARI

NC’s motion, W MATA supplements the history of this dispute by

rec ounting its response s to the discovery demande d by

plaintiffs and its fellow de fenda nts. See WMATA’s Opposition to ARI NC I ncorpor ated’ s Motion for Sanctions [#463] . First, WMATA notes that it had to respond simultaneously to the discovery

demands of the plaintiffs and its codefe ndants. [#463] at 4. With t he conc urre nce of plaintiffs, “WMATA cr eate d seven g ener al cate g ories of r equeste d materia ls to classify responsive doc uments” and use d this approac h “to addre ss countless complications prese nted by the re quests for doc uments from the c odefe ndants.” I d. Be cause WMATA and ARI NC share d an e- discovery vendor, WMATA indicated that it was not a sked and the ref ore did not provide the names of the “custodians” of the
3produce d discovery since it believe d that ARI NC had equa l acc ess to those names. I d. at 5. WMATA ultim ately

produce d more than 3 million pag es of doc uments (id. at 4) a nd insists that “[T] housands of pa g es of doc uments naming the five individuals named in ARI NC’s motion [ for sanctions] were pr oduced be fore ARI NC raised this discover

y dispute.” I d. at 5. On J uly 16, 2010, ARI

NC serve d its answer to the F irst Amended Ma ster Complaint [#35] and spec ified, as its eig hth defe nse, the g overnme nt-contra ctor de fense . Def endant ARI

NC Incorpor ated’ s Answer

to the First Amende d Master Complaint [#62] at 48. ARI NC now cites this defense as a ba sis for its moti on for summary judgme nt ag ainst the plaintiffs, ar g uing that ARI NC partake s of the sover eig n immunit y aff orded WMATA be cause it was WMATA’s contra ctor. See Def

endant ARI

NC I ncorpor ated’ s Reply to WM ATA’s O pposition t o Motion for Sanctions [#491] at 7; Def endant ARI

NC Incorpor ated’ s Motion for Summary J udg ment [#428]

. In its ini tial disclosure, ARI NC identified 33 cur

rent or f ormer WMATA e mploy ees a s witnesses with information re lated to ARI NC’s claims and de fense s. WMATA’s Opposition to ARI NC Incorpor ated’ s Motion for Sanctions [#463] at 6. Included in that list were 1) Robert Ghoulston, 2) Be ck Pak, and 3) Arturo Weldon, three of the potential witnesse s who wer e the subject of ARI

NC’s inquiries in September, 2011. I d. As to these thre e people , ARI NC indicated that they had knowledg e and inf

ormation reg arding : “(i) pe rfor mance of the ROCS Contract; (ii) the desig n of the AI M product for WMATA; and (iii) communications with ARI NC personne l reg ardingthe deve lopment, testing, c utover, a nd/or installation of the AI M software for WMATA.” I d. ARI

NC further

indicated in its initi al disclosure that it would rely on contra cts betwee n itself and WMATA in support of its gove rnment contra ctor de fense and that one of those ag ree ments, dated Oc tober 23, 2004, states that notices are to be sent to J etter a nd that the
4ag ree ment is signed by Rajpal. I d. at 7. WMATA responded by

producingeig ht witnesses “who te stified with reg ard to WMATA’s use of the A I M sy stem, the contra ct with ARI NC and the re lated B usiness Process Review, duringthirteen da y s of depositions.” I d. WMATA also permitted the inspec tion of the “Ope rations Control Center (where the ce ntral computer sy stem using the A I M sy stem is operated) ove r two day s.” I d. Ultimately , WMATA produce d 3,348,483 pag es of e lectronic ally stored information while ARI NC produce d 2,476,363 pag es, to which both sides applied a n elec tronic re cords sy stem to sort, gr oup, and dig est. I d. at 8. Acc ordingto WM ATA, in the late summer of 2011, ARI NC sought discove ry

of documents per

taining to Pak, Walden, Jetter, and Ghoulston. [#463] at 9. On August 8, 2011, ARI NC also serve d a notice of a Rule 30(b) (6) de position. I d. WMATA responded to the demand by

producingresponsive, non- privileg ed docume nts related to Pak a nd Weldon on September 30, 2011. I d. at 10. WMATA also identified thre e witnesses it intended to produc e for the 30( b)(6) deposition: 1) Pak, 2) Tim Shoppa, and 3) Rajpal. I d. WMATA also produce d elec tronically

stored information from Ghoulston’s hard dr ive, explaining that only approximately

20% of the 23,600 doc uments on that hard dr ive would be r esponsive. I d. at 11. Finally , “WMATA also agree d to produce additional witnesses for depositions and desig nated testimony previously

provided by

its witnesses to respond to sever al other issues r aised in ARI NC’s notice of de position.” I d. WMATA complains, howeve r, that “A RI NC never provided a listing of ke y

documents and c ateg ories of doc uments it sought in the discover y dispute” and further more, that, a lthough WMATA complete d its supplemental productions by November

4, 2011, ARI

NC “has not re quested dates for the desig nated 30( b)(6) witnesses, and ha s not
5formally

responde d to WM ATA’s of fer to desig nate testimony

of witnesses in re sponse to
sever al topics in ARI

NC’s 30(b)( 6) notice of

deposition.” I d. In its reply , ARI

NC’s insists t hat WMATA’s produc tion in S eptember of 2011 wa s late, and that it should have produc ed the doc uments from these “ key custodians” in its orig inal production bec ause the ir production wa s clea rly called f or in the re quest for doc uments that ARI NC serve d in Aug ust of 2010. Def endant’ s ARI

NC Incorpor ated’ s Reply to WM ATA’s Opposition to Mot ion for Sanctions [#491] at 1-4. ARI NC further

claims that it was pre

judiced beca use had it had the documents sooner it could have done additional follow up discover y duringthe discover

y period a nd then used the doc uments produce d and per haps other information deve loped there from in the motion for summary judgme nt it has now filed. I d. at 8. ANALYSIS First, and to c lear

awa y some brush, I

must dispos e of a

rguments that ARI

NC made in its openingbrief but doe s not address in its reply

. In its opening br ief, ARI

NC argued that WMATA fa iled in its obl iga tion to preserve

cer tain rec ords, ig noringthe principles that a re a pplied when a

party , throug h inadver

tence or with a nef

arious intent, ca

uses the loss of ele ctronica lly stored or othe r informa

tion. In its opposition, W MATA explained that eve ry document ARI

NC demande d was produc ed, eve n though WMATA ha d to restore data f rom bac k-up tape s in order to do so. ARI NC did not quarr el with WMATA’s statement in its reply and WMATA has c onvinced me that it los t nothing that ARI

NC demande d. There beingno evidenc e of a ny loss of data, the c omplicated principles per

taining to pr eser

vation and spoliation do not, thankfully , have to be considere d. Second, ARI

NC arg ued in its opening brief that sanctions wer e appr opriate be cause of

6WMATA’s alleg ed fa ilure to comply with its obl iga

tion to make the initial disclosures require d by Rule 26(a) (1). WMATA re sponded that the g overnme nt contrac tor defe nse asse rted in ARI NC’s answe r, which w ould ultim ately become the basis of its motion for summary judgme nt, is not a claim or def

ense that WM ATA ha s asserte d or will assert. Thus, WMATA had no responsibility

to produce discovera

ble information as to that de fense

. Fe dera l Rule of Civil Procedur e 26 provide s in pertinent par t: (A) . . . [A] party

must, withoutawa iting a disc overy reque st, provide to the other

parties: (i) the name . . . of

eac h individual likely

to have discovera ble information–alongwith the subjects of that information–that the disclosing party may use to support its claims or defense s, unless the use would be solely

for impea chment; (ii) a copy

–or a de scription by

cate g ory and loca tion–of all documents, ele ctronica lly stored information, and tang ible things that the disclosingparty . . . may use to support its claims or defe nses, unless the use would be solely

for impea chment; Fe d. R. Civ. P . 26(a) (1). WMATA points out that ARI NC’s g overnme nt contrac tor defe nse is not a def ense or claim that WMATA is assertingand that ther efor e this rule did not apply to its i nitial disclosure. [#463] at 1. ARI

NC responds to this argument by stating the following in a footnote: . . . The discove ry

rules, howe ver, do not off er this kind of insulation. The rules re quire the pr oduction of re quested documents that ar e re levant to “a ny party ’s claim or de fense ,” not just those claims or defe nses that per tain specific ally

to the producingparty . Fe d. R. Civ. P . 26(b)( 1). [#491] at 7 n.1. But, the r ule cited by

ARI NC in its footnot e is not the rule that pe rtains to initial

7disclosures. Rule 26(b) (1) de fines the sc ope of discove ry in ge nera l and not the scope of the require d initial dis closures unde r Rule 26(a )(1) . Indeed, if ARI NC’s argument wer e ac cepte d, the latter w ould rea d with the “ame ndment” shown in italics as follows:

(A) . . . [A] party

must, withoutawa iting a disc overy reque st, provide to the other

parties: (i) the name . . . of

eac h individual likely

to have disc overa

ble information–alongwith the subjects of that information–that the disclosing anyparty

may use to support its claims or def

enses, unless the use would be solely for impea chment; (ii) a copy

–or a de scription by

cate g ory and location–of a ll documents, elec tronically stored information, and tang ible things that the disclosing anyparty

. . . may use to support its claims or defe nses, unless the use would be solely

for impea chment; This would impose an extraordinary new oblig ation on the par ties to a lawsuit and ARI NC’s contention that Rule 26(a )(1) should be rea d to impose it cannot be counte nance d. Since the initial disclosure rule c annot serve as the ba sis of a sanc tion, the only rule-ba sed sanction ava ilable to ARI NC would be if WMATA’s asse rtedly late re sponse violated a c ourt order . See F ed. R. Civ. P. 37(b). Of cour se, WMATA neve r violated a ny court orde r. Indeed, the only court orde r per

taining to this controve rsy is J udg e Walton’s order

that all written discovery be complete d by

April 15, 2011. Ironica lly , ARINC violated a c ourt order

by demandingadditional discovery in September 2011, in direc t violation of J udg e Walton’s schedulingorder

and without ever

seekingleave to do so. Thus, ARI NC finds itself in the strang e position of demandingsanctions for a n opposing pa

rty ’s latene ss in responding to discovery that ARI NC should have not propounde d in the first place . I t would be a pe rver se

8rea ding of the Fe dera l Rules of Civil Procedur e to sanc tion W MATA for ARI NC’s claim that WMATA failed to aid ARI NC in violating a c ourt order in order to se cure discovery that ARI NC should not have had. Rule based sa

nctions not being available , ARI NC is left to invoke the inhere nt authority of the c ourt. But, a s the court of appea ls rece ntly

made c lear , “To support a sanction under

this authority , the cour

t must m ake a

findingby

clea r and c onvincingevidenc e that Noble c ommitt ed sanctionable misconduct that is tantamount to bad faith.” A li v. Tolbert, 636 F.3d 622, 628 ( D.C. Cir. 2011). Her e, ther e is no claim by ARI NC, let alone a

showing by

clea r and c onvincing evidenc e of suc h bad fa ith on W MATA’s pa rt. Fur thermore , in consideringthe awa rd of a sanction under

its inherent authority , the cour t must consider, inter alia , the pre judice to the opposingparty . Bonds v. District of Columbi a, 93 F.3d 801, 808 ( D.C. Cir. 1996). Any claim of pre

judice to ARI

NC is, at this poi nt, premature . First, as A RI

NC has to conce de, if Judge Walton g rants its motion for summary judgme nt,
acc epting its gove rnmental c ontrac tor defe nse on the pre sent rec ord, ARI NC has not suffe red a

ny prejudice whatsoeve r. Second, I see no r eason why

ARI NC cannot now move J udg e Walton to be per mitted to suppl ement its motion wit h additional, rec ently disclosed information fr om WMATA that advanc es its case . Third, eve n if its moti on is denied, ARI NC can still move J udg e Walton in limine or at trial f or the pre clusion it seeks and, a g ain, if he grants it, ARI NC will not be prejudice d. At this point , the claim of pr ejudice is so attenuated and hy pothetical that it would be an abuse of discre tion to award sa nctions. Indeed, the prejudice is so hy pothetical that Iquestion whether

the motion even pre sents a ca se or c ontroversy rathe r than a

n improper reque st for an a dvisory

opinion. See L os Ang eles v. Ly ons, 461 U.S. 95 (1983).
9CONCLUSION

For the re asons stated a

bove, De fenda

nt ARI NC Incorpor ated’ s Motion for Sanctions Ag ainst Defe ndant WMATA [#423] will be denied. An O rder acc ompanies this Memorandum Opinion. SO ORDERED.

____________________________________ JOHN M. F ACCIOLA UNITED STAT ES MAGISTRATE JUDG E

10