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Erin M. Carrillo #024613

The Carrillo Law Firm, PLLC

23 North Stewart Avenue

Tucson, AZ 85716

(520) 398-7369

erin@thecarrillolawfirm.com

Kimberly M. Hult #31764. Admitted Pro Hac Vice

Lauren E. Groth #47413, Admitted Pro Hac Vice

Hutchinson, Black and Cook, LLC

921 Walnut Street, Suite 200

Boulder, CO 80302

(303) 442-6514

hult@hbcboulder.com

groth@hbcboulder.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Lida DeGroote, individually, 

Plaintiff,

vs.

Arizona Board of Regents, d/b/a University 

of Arizona, a governmental body of the 

State of Arizona, 

Defendant.

Case No.: 2:18-cv-00310-SRB

PLAINTIFF’S MOTION FOR 

EVIDENTIARY AND MONETARY 

SANCTIONS FOR DISCOVERY 

MISCONDUCT

Pursuant to Fed. R. Civ. P. 37(b) and (c) and the Court’s inherent powers, Plaintiff 

Lida DeGroote (“Plaintiff” or “Ms. DeGroote”) moves this Court for an order imposing 

sanctions and granting relief against Defendant Arizona Board of Regents, d/b/a University 

of Arizona (the “U of A”) for failing to disclose material evidence, providing untruthful 

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discovery responses, and testifying falsely. The University’s conduct has harmed the 

integrity of this judicial proceeding and severely prejudiced Plaintiff.

CERTIFICATION OF COUNSEL

Undersigned counsel has conferred with U of A’s counsel, which agreed to limited 

additional discovery but opposes the additional sanctions sought in this Motion. 

INTRODUCTION

The sanctity of the judicial process relies on the parties’ fair and truthful participation, 

compliance with their “obligations and responsibilities” and agreement to “tell the truth” in 

discovery. See Dotson v. Bravo, 202 F.R.D. 559, 570–71 (N.D. Ill. 2001). On May 29, 2019,

Plaintiff discovered that for over a year, the U of A failed to disclose relevant, requested

documents (while repeatedly representing to Plaintiff and this Court that those documents

had been produced), submitted false interrogatory answers, and allowed key witnesses to 

give untruthful deposition testimony. This misconduct severely undermined Plaintiff’s 

diligent discovery efforts. As the Ninth Circuit has stated, “[t]here is no point to a lawsuit if 

it merely applies law to lies.” Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1058 

(9th Cir. 1998). 

One of Plaintiff’s Title IX claims alleges that the U of A had actual notice that former 

University football player and student Orlando Bradford (“Mr. Bradford”) engaged in serious 

dating violence toward U of A female students. Plaintiff specifically alleges that U of A

officials knew by March 2016 that Mr. Bradford had physically abused both “Student A”

1

and Plaintiff. Plaintiff further alleges that, despite this knowledge of the abuse, the 

University failed to take any action to protect her or other potential victims, and, as a result, 

Mr. Bradford continued to physically, emotionally, and verbally abuse Plaintiff – hitting, 

choking and threatening her, causing her to fear for her life – until just before his arrest in 

September 2016. 

 

1 Given her nonparty privacy interests, Plaintiff will refer to her only as “Student A” and will 

redact her name (and that of other students) in documents attached to this Motion.

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In discovery, Plaintiff focused on the U of A’s knowledge of Mr. Bradford’s abuse. 

Formal discovery began in May 2018, and until May 29, 2019, the U of A and its 

representatives maintained in its discovery responses, in pleadings filed with the Court, see, 

e.g., [Doc. 17, ¶ 4], and in sworn deposition testimony that it had limited notice of Mr. 

Bradford’s abuse of Student A and no notice of the threat to Plaintiff or other female students. 

Late last month, the U of A produced, for the first time, a page of notes, dated March 

23, 2016, by Erika Barnes, the U of A’s Senior Associate Athletic Director (“Senior 

Associate AD”), Senior Woman Administrator (“SWA”), and Title IX liaison for its Athletic 

Department. See Exhs. 2 and 3. Ms. Barnes’ notes document detailed reports of Mr. 

Bradford’s abuse of Student A, including that Mr. Bradford had admitted to hitting Student 

A, blackmailed Student A using sexually explicit videos, created fake Twitter accounts, and 

threatened to “F’ her up/hit her”. See Exh. 2. It also documents his abuse of Plaintiff, whom

he was then dating, describing it as a “volatile relationship,” and noting that he “hits her 

often,” “freaked out on her dog in front of people,” and had sent a sexually explicit video of 

her to others. In addition, the notes further document Mr. Bradford’s “violent past,” that he 

was “not afraid to hurt someone,” and that people “need to be careful[.]” See id. 

Then, on June 14, 2019, the U of A also disclosed, again for the first time, documents 

showing that on March 24, 2016, Ms. Barnes emailed these same notes to the U of A’s Dean 

of Students, Kendal Washington White (“Dean Washington White”), and Senior Title IX 

Investigator Susan Wilson (“Ms. Wilson”). See Exh. 3. In addition to contradicting prior 

disclosures, discovery responses, and sworn deposition testimony, these documents confirm 

that by March 24, 2016, three top U of A officials knew of Mr. Bradford’s serious abuse of 

both Student A and Plaintiff. 

This late disclosure – obtained only after Plaintiff made persistent and repeated 

requests that the U of A verify that all documents had truly been produced – occurred

approximately five weeks before the discovery deadline and well after the completion of key 

depositions, preparation of expert reports, and the deadline for serving other written 

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discovery. It demonstrates the U of A has (1) failed to disclose relevant information; (2) 

given untruthful responses to Plaintiff’s discovery requests; (3) provided false testimony on 

material facts under oath and in deposition; and (4) is far more culpable in this case than it 

previously represented. Accordingly, Plaintiff respectfully submits that significant sanctions 

are warranted under Ninth Circuit law. 

FACTUAL BACKGROUND

I. Plaintiff’s Claims and the U of A’s discovery abuses.

Plaintiff was a U of A student from 2011-2017. Exh. 5 at 71:10-11. In late 2015, she 

began dating Mr. Bradford, who was later named as starting running-back for U of A’s

football team. Id. at 261:17-262:7; [Doc. 11, ¶ 7]. In January 2016, Mr. Bradford began to 

abuse Plaintiff, beating her, kicking her, dragging her by her hair, throwing her across rooms 

and into walls, choking her, and threatening to kill her. See id. at 22:18-22, 23:14-25:13, 

Depo. Exh. 3.2 Mr. Bradford also blackmailed her, warning that he would disseminate

sexually-explicit videos of her if she reported his abuse. Id. at 217:12-18. The abuse 

continued until September 2016, shortly before he was arrested for kidnapping and assaulting

another U of A student, MacKenzie Brown. See id. at 55:21-25, 57:9-11.3 

On January 30, 2018, Plaintiff filed her Complaint. [Doc. 7]. In response, the U of 

A denied, among other things, any notice of Mr. Bradford’s abuse of Plaintiff prior to his 

arrest in September 2016. [Doc. 17, ¶ 4]. For over a year, it continued to deny that notice.

A. The Failure to Disclose Relevant, Requested Documents. 

On April 9, 2018, Plaintiff and the U of A exchanged mandatory initial discovery

responses. See Exh. 6. The U of A’s Title IX files for Plaintiff, Ms. Brown, and Student A 

were not, however, listed or produced, and key witnesses like Dean Washington White were 

 

2 Graphic photographs showing Plaintiff’s injuries have been omitted from the Deposition 

Exhibit 3, which is part of Exhibit 5. 

3 Ms. Brown has filed her own Title IX Complaint, Brown v. Arizona Board of Regents, d/b/a 

University of Arizona, No. 2:17-cv-03536-GMS, using her real name.

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not identified. See id. On May 23, 2018, Plaintiff served her first discovery requests on the 

U of A, seeking all documents relating to any assaults and/or reports of abuse by Plaintiff

and/or Student A, including specifically any “any reports by [Student A’s teammate] . . . .” 

See Exh. 7 at RFP 3, 4. Plaintiff defined “documents” broadly, consistent with the scope of 

Fed. R. Civ. P. 34(a)(1)(A). See id. at 3.

In June 2018, the U of A produced some Title IX electronic files maintained in its 

“Advocate” database. See Exh. 8. The University did not, however, disclose the existence 

of any physical Title IX files maintained in the Dean of Students’ Office, including Ms. 

Wilson’s “working files.” While the University also produced a small number of emails 

regarding Mr. Bradford, Student A, Plaintiff, and Ms. Brown, those emails did not include 

any emails to or from its Athletic Department. 

Concerned that relevant, requested documents might not have been produced, 

Plaintiff contacted the U of A, and, in October 2018, was assured that the emails produced

“would obviously include, if they existed, emails indicating knowledge of misconduct by 

Bradford.” See Exh. 9. In January 2019, when Plaintiff’s counsel noted ongoing concern 

“about the lack of email communication produced in this case[,]” see Exh. 10, the U of A

advised that it had searched all relevant communications and documents on “any device” 

and “to the extent they were located, we produced them.” Id. It also maintained in hearings 

before this Court that all documents had been produced. 4 

In reliance on the U of A’s repeated representations and given its stated defenses, 

Plaintiff began to depose key current and former U of A employees, including (1) Ms. 

Barnes, the Senior Associate AD/SWA/Title IX liaison, who met with Student A and her 

 

4 For example, during the January 15, 2019 hearing, the U of A represented that it “has 

provided all of the information it has. It has provided the names of everyone that it knows 

of that has any knowledge of any of these incidents . . . We have provided every piece of 

documentation that we can find that has anything to do with it.” Exh. 4 at 15:16-21; see also 

id. at 15:9-11.

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teammates in March 2016, see Exh. 11 at 90:25-92:25; 99:3-18; 112:25-113:23; and (2) Ms. 

Wilson, the Senior Title IX investigator who also met with Student A in March 2016, see

Exh. 12 at 107:9-109:9.5 Significantly, at her deposition, Ms. Wilson revealed that there 

were additional relevant and responsive documents that the U of A had not produced. In 

particular, Ms. Wilson testified that there were physical Title IX files in the Dean of Students’

office for “every referral, report, concern that [she] received.” See Exh. 12 at 84:7-84:24. 

Plaintiff promptly requested production of those files, which fell within the scope of her prior 

discovery requests and the U of A’s mandatory initial disclosure obligations. See Exh. 13. 

On May 29, 2019, the U of A finally produced the physical Title IX files and Ms. 

Wilson’s “working files” for the relevant Title IX investigations. Ms. Wilson’s “working 

file” for Student A included Ms. Barnes’ notes from March 23, 2016. See Exh. 2. Two 

weeks later, on June 14, 2019, the University produced, without explanation, Ms. Barnes’ 

emails forwarding the notes to Dean Washington White and Ms. Wilson. See Exh. 3.

B. The Failure to Provide Truthful Interrogatory Answers.

U of A’s late disclosure of Exhibits 2 and 3 reveal that the U of A provided false or 

misleading interrogatory answers on the notice issue. In her first set of interrogatories, 

Plaintiff requested that the U of A identify all individuals with knowledge of facts related to 

her abuse. See Exh. 7 (Interr. No. 2). In its answer, the University of Arizona stated that 

“no employees, officials or personnel at the U of A had any knowledge of Plaintiff’s 

allegations of assault prior to September 2016.” See Exh. 14 at 6 (emphasis added). As 

Exhibits 2 and 3 establish, this answer was, at best, misleading, if not outright false. 

Similarly, Plaintiff also requested that the U of A identify all individuals with 

knowledge of facts related to Student A’s abuse. See Exh. 7 (Interr. No. 1). Once again, in 

its answer, the University did not disclose that Ms. Barnes sent reports of Student A’s abuse 

 

5 Ms. Wilson was originally scheduled to be deposed in November 2018. Due to discovery 

disputes, the Court’s orders for the production of other records, and medical issues, Ms. 

Wilson’s deposition was rescheduled several times before it was taken on April 17, 2019. 

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to Dean Washington White or Ms. Wilson in March 2016. Exh. 14 at 3. Instead, the U of A 

falsely stated that Ms. Washington White had no knowledge of Student A’s allegations until 

the summer of 2016. Id. at 5. The U of A also failed to disclose that Ms. Barnes had spoken 

with its Title IX Coordinator, Mary Beth Tucker, and Athletic Director, Greg Byrne, 

regarding Student A’s and her teammates’ reports. See Exh. 11 at 159:25-160:22; 185:6-19; 

see also Exh. 14 at 15-17 (failing to disclose Ms. Barnes’ reports of Mr. Bradford’s abuse of 

Student A, and especially, abuse of Plaintiff, in response to Interrogatory No. 9). 

C. The Failure to Provide Truthful Testimony.

Perhaps most troubling has been the revelation that key University employees 

repeatedly gave false testimony at their depositions. Given the extent of this untruthful 

testimony, it strongly appears to constitute perjury.

6

 

1. Ms. Barnes, Senior AD/SWA/Title IX Liaison

On February 26, 2019, Ms. Barnes was deposed and questioned about her March 2016

meeting. In response to several questions, she repeatedly and falsely denied that she had 

taken any notes. For example, Ms. Barnes replied as follows to a direct question:

Q: During the first meeting with [Student A’s teammate], did you take any notes of that 

meeting?

A. I did not. Listened.

Exh. 11 at 99:24-100:1 (emphasis added). When pressed on this issue, Ms. Barnes even 

fabricated detailed explanations as to why she did not document the meeting. 

Q: And you stated earlier that you don’t normally take notes of these kind of 

discipline-these kinds of reports?

A: I don’t like keeping the information-having parallel documents. I want to give 

that information to the appropriate office for their records.

 

6 Plaintiff has highlighted some of the testimony here. Plaintiff has attached, as Exhibits 15 

and 16 to this Motion, a summary of these and other, similar excerpts for the Court’s review.

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Id. at 100:2-7; see also id. at 131:14-132:6, 132:21-133:23. On April 18, 2019, Ms. Barnes 

testified as a 30(b)(6) witness and was questioned about athletic department records on Title 

IX and Dean of Students matters. Again, she denied that documents, such as Exhibit 2, even 

existed. Exh. 11 at 11:6-12, 14:9-17 (30(b)(6) testimony).

Ms. Barnes also did not testify fully or truthfully about the reports by Student A’s 

teammates, failing to disclose the documented fighting between Student A and Mr. Bradford, 

Mr. Bradford’s admission that he had hit Student A, that Mr. Bradford was blackmailing 

Student A, that Mr. Bradford had threatened Student A, or that others reported that he had a 

“violent past” and “was not afraid to hurt someone.” See Exh. 2. Instead, Ms. Barnes

testified that she did not learn about the fights until later, see Exh. 11 at 180:2-21, did not 

believe that Student A was in danger of immediate harm, see id. at 103:4-15, and denied that

Student A’s teammate reported any injuries (scratches) on Student A’s neck, id. at 129:11-

14. 

Significantly for this case, Ms. Barnes also testified falsely about her knowledge of 

Mr. Bradford’s relationship with and abuse of Plaintiff. She instead specifically denied that

Student A’s teammates reported that Mr. Bradford had physically abused Plaintiff: 

Q: So [Student A’s teammate] mentioned to Detective Dorer that she was aware of 

another girl that Orlando was dating, that they would get in physical fights, and he 

would hit her, too, and they would fight like Orlando and Student A did. Do you 

recall [the teammate] reporting that to you?

Ms. Elliott: Form.

The Witness: No.

Id. at 125:24-126:5. She further claimed that she “didn’t know” Plaintiff and Mr. Bradford’s

relationship status, see id. at 165:11-12, and expressly denied that the students reported either 

that Mr. Bradford fought with or hit Plaintiff. See id. at 125:24-126:5. 

2. Susan Wilson, Senior Title IX Administrator

In her deposition, Ms. Wilson also denied knowing information contained in the 

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documented reports she received from Ms. Barnes on March 24, 2016. For example, she 

was questioned on why U of A did not conduct a Title IX investigation of Mr. Bradford: 

Q: Okay. And what factors did you consider in deciding whether to investigate the 

incident over—despite the fact that Student A was not interested in participating? 

A: I considered her representation that they were not in a relationship; deferred to 

her wishes; that she did not feel at risk.

Q: Anything else?

A: At that point in time, I wasn’t aware of any reports involving Orlando Bradford.

Q: Okay. Anything else?

A: Not that I can recall right now.

Q: Did you consider whether there was a risk to any other members of the 

university community?

A: I didn’t have any information to indicate that there was.

Q: Were you concerned that there might be a risk to the person named Lida that 

Orlando was reportedly staying with?

A: I didn’t have any information to indicate there was.

Exh. 12 at 115:5-25 (emphasis added). She likewise testified that she did not know of

instances of physical abuse by Mr. Bradford or that he a presented a risk to the campus. 

Q: So in the situation where you have an allegation that a student has physically 

abused another student, if the victim does not want to proceed, what was, at the time, 

your procedure for protecting the remainder of the university from the person who’s 

alleged to be physically abusive?

Ms. Elliott: Form.

The Witness: Well, in this case, there aren’t specific instances of physical abuse. 

It’s generalized that was alleged. And there was no indication that there was a 

potential risk to the campus community. And there are other concerns in terms of 

deferring to how the student wants to move forward, particularly in these instances.

Id. at 139:7-20 (emphasis added). 

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Ms. Wilson, an attorney herself, see id. at 11:8-12:24, further denied that she knew 

anything about Mr. Bradford’s abuse of Plaintiff, claiming that she only learned of it in 

September 2016. See id. at 232:18-233:6. For example, she testified as follows: 

A: It may have come up exactly in that context with Erika. And I knew at that point 

in time that Chrissy Lieberman was actively meeting and working with Lida 

DeGroote, so I mentioned to her that a student by the name of Lida was referenced 

by another student.

Q: You did mention that to her?

A: Yes, I did.

Q: When did you mention that to her?

A: It would have been shortly after my meeting with Student A.

Q: And what exactly did you mention to her?

A: I said that—and this is generally what I recall—that the name Lida came up in 

conjunction with another student meeting where the student reported one incident of 

the potential respondent putting—I don’t know if I told her specifically putting his 

hands on her neck. There was no indication that there was any potential 

problematic behavior in regards to Lida, that they were—even that they were in a 

relationship. I didn’t know if it was Lida DeGroote, but since she was meeting with 

her, just to be aware in the event that Lida expressed any concerns.

Id. at 174:1-22 (emphasis added); see also id. at 176:8-25 (denying knowledge of Plaintiff’s 

abuse; 190:13-191:9 (essentially denying knowledge of Student A’s abuse).7 

 

7 Exhibit 2 raises questions about the truthfulness of testimony by other U of A employees, 

who also received reports from the same students who informed the Exhibit 2 notes. See, 

e.g., Student A’s Coach Michael Candrea’s testimony, Exh. 19 at 129:6-22 (students reported 

only black eye), 136:12-25 (denying there were reports regarding Plaintiff). 

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ARGUMENT

I. The U of A Has Engaged in Bad Faith and Sanctionable Discovery 

Misconduct.

The Court has the power to levy sanctions for litigation misconduct that amounts to 

bad faith. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006); Surowiec v. Capital 

Title Agency, 790 F. Supp.2d 997, 1010 (D. Ariz. 2011). This power “is not limited by 

overlapping statutes or rules and can be invoked even if procedural rules exist which sanction 

the same conduct.” Sell v. Country Life Ins. Co., 189 F. Supp.3d 925, 929 (D. Ariz. 2016) 

(internal citation omitted); see also Fed. R. Civ. P. 37. 

Bad faith does not require ill will; “substantial and prejudicial obduracy may 

constitute bad faith.” Arnold v. Country of El Dorado, 2012 WL 3276979, at *3 (E.D. Cal. 

2012). Likewise, “reckless misstatements of law and fact, when coupled with an improper 

purpose” can establish bad faith. B.K.B. v Maui Police Dept., 276 F.3d 1091, 1108 (9th Cir. 

2002). It is “permissible to infer bad faith from a party’s actions plus the surrounding 

circumstances.” Haeger v. Goodyear Tire & Rubber Co., 906 F. Supp. 2d 938, 974 (D. Ariz. 

2012). Here, the U of A has engaged in at least three forms of bad faith conduct. 

A. Failing to Disclose Court-Ordered Information and Falsely 

Answering Interrogatories. 

The U of A engaged in two forms of bad faith conduct that violate this Court’s General 

Order 17-08. First, it repeatedly failed to produce relevant documents – including Exhibits

2 and 3. Second, it gave false answers to interrogatories on its knowledge of Ms. DeGroote

and Student A and failed to disclose required information. See supra at 5-7. 

Complete, accurate “responses to discovery are required for the proper functioning of 

our system of justice . . . [p]roviding false or incomplete discovery responses violates the 

Federal Rules of Civil Procedure and subjects the offending party and its counsel to 

sanctions.” Skinner v. Ryan, 2014 WL 3064897, at *4 (D. Ariz. July 7, 2014) (internal 

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citation omitted); see also Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1169 (9th Cir. 2012) 

(granting default after defendant “intentionally delayed production of documents”). 

These failures also fundamentally conflict with the spirit of the MIDP: 

The MIDP is premised on the idea that the goals of Rule 1 are promoted 

through the early sharing of information that normally would be provided only 

through costly party-initiated discovery. Parties will be able to better evaluate 

the strengths and weaknesses of their positions. Early case assessment, 

perhaps with the assistance of a neutral mediator, may lead to early resolution 

of matters before incurring additional legal fees. 

District of Arizona, Mandatory Initial Discovery Users’ Manual for the District of Arizona 

P.3, Comment 1.8

These failures substantially prejudiced Plaintiff in this lawsuit. She relied on the

truthfulness of the U of A’s disclosures and representations regarding document production 

in formulating her discovery plan, preparing other written discovery, selecting which 

witnesses to depose, and identifying information for experts. And throughout the year, the 

U of A continued to insist, falsely, that it had no notice that Mr. Bradford presented a 

substantial risk of harm to Plaintiff or others prior to September 2016. 

B. Giving False Deposition Testimony. 

At least two U of A employees gave substantial, false deposition testimony regarding 

facts material to this case. Falsifying deposition testimony is an “attempt[] to deceive the 

district court on material matters before it,” Combs v. Rockwell Int’l Corp., 927 F.2d 486, 

488 (9th Cir. 1991), and “constitutes a fraud on the court,” Da-Silva v. Smith’s Food & Drug 

Centers, Inc., 2013 WL 2558302, at *2 (D. Nev. Jun 8, 2013). 

While perjury should not be confused with mere inconsistencies, Ninth Circuit courts 

have often found witnesses to have committed perjury when failing to disclose material 

information or facts. See, e.g., Chamberlain v. Les Schwab Tire Center of California, 2012 

WL 6020103 (E.D. Cal. Dec. 3, 2012) (plaintiff committed perjury when he lied about 

 

8 Available at: 

http://www.azd.uscourts.gov/sites/default/files/documents/Arizona%20MIDP%20Users%2

0Manual.pdf

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recording conversation); Arnold, 2012 WL 3276979, at *4 (finding plaintiff committed 

perjury when lying about taking a video, noting her continuous, evolving false statements). 

False testimony may also be inferred when, as here, the circumstantial evidence also suggests 

a knowing misrepresentation. Sell, 189 F. Supp.3d at 940 (finding a deponent’s selective 

memory lacked credibility).9 

In sum, the nature and extent of Ms. Barnes’ and Ms. Wilson’s false testimony 

establishes that it should be viewed as bad faith conduct and likely perjury, particularly since

it occurred repeatedly with more than one employee and pertained to material facts. 

II. The U of A Should be Sanctioned for Its Discovery Abuses.

Fed. R. Civ. P. 37 outlines the sanctions available for various discovery abuses. When

a party has committed perjury or a fraud on the court, sanctions may be severe, given the 

egregious affront to the pursuit of justice. Vogel v. Tulaphorn, Inc., 2013 WL 12166212, at 

*5 (C.D. Cal. Nov. 5, 2013); Newman v. Brandon, 2012 WL 4933478, at *4 (E.D. Cal. 2012) 

(“[P]erjury on any material fact strikes at the core of the judicial function and warrants a 

dismissal of one’s right to participate at all in the truth seeking process.”); see also United 

States v. Mandujano, 425 U.S. 564, 576–77 (1976) (the Supreme Court has “without 

exception allowed sanctions for false statements or perjury.”); Alexander v. Caraustar 

Indus., Inc., 930 F. Supp. 2d 947, 957 (N.D. Ill. 2013) (“[P]erjury strikes at the heart of the 

integrity of the judicial system.”).

A. Monetary Sanctions. 

The University’s tactics have cost Plaintiff substantial time and expense with 

unnecessary discovery, meet and confer efforts, discovery hearings, and follow up discovery 

 

9 The U of A’s employees’ false testimony is imputed to the U of A as they were agents 

acting on its behalf, not disinterested third parties. Indeed, Title IX liability arises from their 

knowledge and actions (or inaction). As a result, U of A may be sanctioned for this 

misconduct to “ensure that fairness is done at trial.” See Pettit v. Smith, 45 F. Supp. 3d 1099, 

1110 (D. Ariz. 2014); Ramos v. Swatzell, 2017 WL 2857523, at *6 (C.D. Cal. 2017). 

 

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after depositions. Addressing the University’s false statements will, if the Court grants the 

contemporaneously-filed motion to extend discovery, add new but necessary discovery 

expenses. The prejudice to Plaintiff is significant, and the prior false statements now cast 

doubt on the veracity of all of the U of A’s submissions throughout this case. Da-Silva, 2013 

WL 2558302, at *3 (internal citation omitted). When a party disobeys a discovery order and 

prejudices a party, it should pay the reasonable expenses, including attorney’s fees, caused 

by the failure, unless it was substantially justified. Leon, 464 F.3d at 961; Fed. R. Civ. P.

37(b)(2)(C); see also General Order 17-08 (Rule 37(b)(2) applies to mandatory discovery 

responses required by ¶ 11). 

The Supreme Court and the Ninth Circuit have also held that attorney’s fees and 

related expenses may be awarded for bad-faith conduct. See Chambers v. NASCO, Inc., 501 

U.S. 32, 33 (1991); Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017); Miller 

v. City of Los Angeles, 661 F.3d 1024, 1029 (9th Cir. 2011). Monetary sanctions must be 

compensatory rather than punitive in nature, Goodyear, 137 S. Ct. at 1186, but in exceptional 

cases, a trial court may “shift all of a party’s fees, from either the start or some midpoint of 

a suit, in one fell swoop.” Id. at 1187. 

Plaintiff accordingly requests her discovery fees and costs dating from Ms. Barnes’ 

deposition, with the further opportunity to brief those expenses for the Court.

10

B. Evidentiary Sanctions 

1. Remedial sanctions to address the late disclosure. 

When conferring on this motion, the U of A agreed that additional discovery was 

warranted to mitigate any prejudice. Counsel for the parties did not agree, however, on other 

methods to remedy the late disclosure. The U of A’s misconduct draws into particular 

question the integrity of the charts summarizing the U of A’s other Title IX and Office of 

 

10 Alternatively, Plaintiff requests that this Court award fees and costs incurred for this 

sanctions motion, as well as for the additional discovery that must now be conducted. See 

e.g., Ober v. City of Los Angeles, 2014 WL 2504504, at *7 (C.D. Cal. Mar. 27, 2014).

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Institutional Equity investigations of student athletes, which were ordered produced by the 

Court at the August 13, 2018 telephonic discovery dispute hearing. See [Doc. 40]. 

Plaintiff has long raised concerns about this chart. See Exh. 17 at 2:21-6:24, 7:10-17; 

16:19-17:5. Given the revelation of significant discovery misconduct, Plaintiff renews her 

request for the underlying investigatory records.11 First, Plaintiff has requested – but has not 

obtained – confirmation that in preparing the summary charts, the University reviewed both 

the physical Title IX files and Ms. Wilson’s working files. Second, the police investigation 

records relate to only two of the incidents shown on the chart so they are insufficient to verify 

the summaries. Third, while the U of A has represented that there are no documents 

addressing a global response to the 16 incidents summarized, given its earlier misconduct, 

Plaintiff cannot rely upon this representation. Fourth, in view of Ms. Barnes’ prior false 

testimony, Plaintiff should not be required to rely upon Ms. Barnes’ testimony, as the 

30(b)(6) designee for the broader response undertaken by the U of A’s athletic department 

on these issues. See Exh. 18.

The Court has previously noted that if “the point comes where I order the University 

to produce things that are otherwise protected by federal law, I have to be absolutely certain 

about that production.” Exh. 17 at 23:4-7. Plaintiff respectfully submits that this case has 

now reached the point where such production is warranted.

2. Evidentiary sanctions for false disclosures and perjury.

Pursuant to Rule 37(b)(2)(A)(i) and given the seriousness of the misconduct, Plaintiff 

also requests an Order precluding the University from asserting a defense that it had no actual 

knowledge of the substantial risk of harm posed by Mr. Bradford to Plaintiff, including 

evidence in support of this defense. This sanction is tied to the misconduct at issue and is 

 

11 Plaintiff recognizes that the names of third-party students would be redacted from those 

records, consistent with prior practice in this case, which would protect the privacy interests 

of those students. See U.S. v. Miami Univ., 294 F.3d 797, 824 (6th Cir. 2002) (noting that 

“[n]othing in the FERPA would prevent the Universities from releasing properly redacted 

records.”). 

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justified under Rule 37(b)(2)(B) and this Court’s inherent powers given the University’s 

violation of General Order 17-08. See Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. 

Corp., 982 F.2d 363, 368 (9th Cir. 1992).

In addition, Plaintiff requests that this Court grant an adverse inference instruction 

and instruct the jury that the U of A willfully offered false testimony and false information 

in discovery and that the jury may consider and draw adverse inferences from these facts. 

Experience Hendrix, LLC v. Chalpin, 461 F. Supp. 2d 165, 171-72 (S.D.N.Y. 2006). 

CONCLUSION

For the reasons outlined above, Plaintiff respectfully requests that this Motion be 

granted.

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DATED this 27th day of June, 2019.

HUTCHINSON, BLACK AND COOK, LLC

By /s/ Lauren E. Groth

Kimberly M. Hult

Lauren E. Groth

921 Walnut Street, Suite 200

Boulder, CO 80302

THE CARRILLO LAW FIRM, PLLC

By /s/ Erin M. Carrillo

Erin M. Carrillo

23 North Stewart Avenue

Tucson, AZ 85716

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CERTIFICATE OF SERVICE

I hereby certify that on June 27, 2019, I served Plaintiff’s Motion for Evidentiary and 

Monetary Sanctions on the following individuals via electronic mailing:

Claudia Acosta Collings, Esq.

Stephanie Elliot, Esq.

Assistant Attorney General 

2005 North Central Avenue

Phoenix, AZ 85004

By /s/ Erin M. Carrillo

Erin M. Carrillo

23 North Stewart Avenue

Tucson, AZ 85716

HUTCHINSON, BLACK AND COOK, LLC

By /s/ Kimberly M. Hult

Kimberly M. Hult

Lauren E. Groth

921 Walnut Street, Suite 200

Boulder, CO 80302

Attorneys for Plaintiff

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