Opinion
Case No. 4:99-CV-103
May 3, 2000
ORDER
In accordance with the opinion entered this date, IT IS HEREBY ORDERED that the Defendant's Motion for Summary Judgment (Docket #26) is MOOT in light of the Defendant's Amended motion filed on April 17, 2000.
IT IS FURTHER ORDERED that the Defendant's Amended Motion for Summary Judgment (Docket #47-1) is GRANTED.
IT IS FURTHER ORDERED that the Defendant's Amended Motion to Dismiss for Discovery Abuse (Docket #47-2) is DENIED.
IT IS FURTHER ORDERED that JUDGMENT is entered in favor of the DEFENDANT and the complaint is dismissed in its entirety. IT IS FURTHER ORDERED that the Defendant may submit an affidavit containing a schedule of costs incurred as a result of the Plaintiffs' failure to timely comply with discovery requests.
Date: May 3, 2000
OPINION
The Plaintiffs, John C. Dzierwa, Dennis Miller, and Steven Wiley, allege that their former employer, Smiths Industries Aerospace Defense Systems, Inc., ("Smiths"), discriminated against them on the basis of age in violation of Michigan's Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS, § 37.2101, et seq. Before the Court is the Defendant's amended motion for summary judgment and to dismiss for discovery abuse (Dkt #47). Having considered the relevant case law, parties' briefs, and oral arguments held on April 21, 2000, the Court grants the motion for summary judgment the reasons stated herein.
I
In 1997, Smiths relocated from Eastern Avenue ("Eastern site"), a site that they owned, to Patterson Avenue, into a building that required renovation. Smiths sold the Eastern site to National RE/sources. Smiths, however, was the mortgagee for the property. National RE/sources owned the Patterson Avenue location which it leased to Smiths. The Plaintiffs were salaried non-exempt employees associated with Smiths' facilities department and project managers involved in the relocation. James Doubek was designated the program manager for the renovation and the move. He was brought in from Smiths' Florida office to temporarily oversee the transition. He lived in a hotel in Grand Rapids and commuted to Florida during 1998. The Plaintiffs received an award for their efforts in achieving a successful completion of the project.
In the fall of 1998, National RE/sources approached the Plaintiffs to see if they would be interested in managing the Eastern site while it was up for sale. The services, to commence February 1, 1999, until the property was sold, included a daily two-hour inspection and walk-through and responsibility for coordinating building repairs. Dzierwa and Miller contend that in November 1998, while at the Beltline Bar, they told Doubek that they had been approached by National RE/sources to manage the Eastern site. They allege that "he didn't see a problem with it" and that he stated that it was a good opportunity for the Plaintiffs to earn additional income after work. In December 1998, Doubek left his temporary assignment in Grand Rapids and received a permanent transfer to California. The Plaintiffs were managed by Vice President David Miller and supervisor Larry Bergman. The Plaintiffs formed Apple Property Management and on February 1, 1999, Dzierwa and Miller signed a contract on behalf of Apple Property Management with National RE/sources to provide property management services at the Eastern site. The Plaintiffs did not advise their present managers.
Compl. ¶ 31.
Pls' Br. in Resp. to Def's Mtn for SJ (Dkt #49) at 4.
Miller Dep. at 77.
Dzierwa Dep. at 190.
In early March, Smiths received a copy of a certificate of insurance for the Eastern site. It listed, as it should, Smiths as mortgagee. It also listed, as additional insureds, Apple Property Management, Dzierwa and Miller. Bergman questioned Miller about the insurance document. Miller, however, denied knowledge about the document and claimed that he and Dzierwa had formed an old company that was no longer active. Miller initially did not tell Bergman the truth because he "didn't feel it was any of his business what we were doing after hours." Later that day, however, Miller contacted Bergman and asked to speak with him about Apple Property Management. During that meeting, Miller disclosed that the Plaintiffs had formed Apple Property Management and were conducting walk-throughs of the Eastern site for National RE/sources.
Miller Dep. at 130.
Miller Dep. at 127.
Bergman Dep. at 33.
Miller Dep. at 131.
On March 23, 1999, Vice President David Miller and Human Resources Vice President Dennis Carvalho met with Miller and Dzierwa and told them that the company was investigating a conflict of interest involving Apple Property Management and National RE/sources. In the meeting, Miller and Dzierwa said that they were conducting walk-throughs for National RE/Sources and had told Doubek this. They were advised, however, that Doubek had denied this. They informed management for the first time that Wiley was involved.
On March 26, 1999, Dzierwa and Miller were terminated from Smiths because their work with National RE/sources constituted a conflict of interest in violation of company policy and because their misrepresentations violated the company's Standards of Conduct.
The Conflict of Interest Policy provides in relevant part:
All employees have a clear duty in conducting Company business to place the interest of the Company ahead of their personal interests. For this reason, it is the established policy of the Company that all employees must avoid any situation which involves or appears to involve such a conflict or any relationship which might appear to influence decision or actions.
Outside Concern: Any business entity . . . with which the Company does business, directly or indirectly, or which is seeking to do business with the Company, including the sale or purchase of goods and/or services and the sale, lease, or rental of real or personal property.
Illustrations of Conflict of Interest Situations . . . f. Performance of substantial managerial, consulting or other services for an outside concern may be done only with the President's approval. . . .
Exh. L, Ltr from Vice President David Miller to Dzierwa. The Standards of Conduct provides in relevant part:
Maintaining the highest standards of performance and conduct is the responsibility of every employee. The success of our Company in providing outstanding quality products and services to our customers requires our employees' willingness to exercise self-discipline. No set of rules can specify all conduct which is inconsistent with the employment relationship and which warrants discipline. The following set-of rules lists certain of the most important and most common infractions and is intended as a guide. . . .
5. Insubordination, failure or refusal to follow instructions, or other disrespect for managerial authority. . . .
7. Making false . . . statements concerning any employee, customer, supplier, the Company, or its products. . . .
10. Unsatisfactory conduct (conduct detrimental to the interests of the Company or other). . . .
19. [N]ot being actively at work during working hours. . . .
31. Doing personal business on Company time, or with Company equipment or material, without authorization. . . .
Def's Mtn for SJ, Dkt #26, Exh. B.
Smiths decided to discipline rather than terminate Wiley because he had not deceived company officials as had Dzierwa and Miller. On the morning of March 26, 1999, Smiths advised Wiley that he would receive a two week unpaid suspension for violation of the Company's conflict of interest policy and must divest himself of the business relationship with National RE/sources. Wiley inquired as to what would happen if he chose not to accept it. Carvalho responded that he would accept his resignation. Wiley then left and came back at the end of the work day, handed Carvalho his badge and said, "Here you can fire me."
Ehr Dep. at 18.
Carvalho Dep. at 19.
Wiley Dep. at 102.
On July 8, 1999, the Plaintiffs commenced this action in state court. The Defendant removed the case to this court on the basis of diversity jurisdiction.
The complaint asserted state law disparate treatment and disparate impact claims of age discrimination (counts I II); intentional infliction of emotional distress (count III) and, with respect to Dzierwa, retaliatory discharge for filing a worker's compensation claim (count IV). The Plaintiffs, however, have agreed to the dismissal of counts II, III, and IV.
II
The purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is appropriately granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED R. CIV. P. 56(c). To counter a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 323-24. A genuine issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The Court must view the record and any inferences to be drawn from the underlying acts in the light most favorable to the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999).
III A
The complaint alleges that Smiths terminated Miller and Dzierwa and constructively discharged Wiley on the basis of age in violation of the Elliott-Larsen Civil Rights Act. In Town v. Michigan Bell Tel. Co., 455 Mich. 688, 695, 568 N.W.2d 64, 67 (1997), the Michigan Supreme Court has adopted the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for cases alleging discriminatory conduct by an employer.
In order to make out a prima facie case, a plaintiff must show that: (1) he was a member of the protected class; (2) he was subject to adverse employment action; (3) he was qualified for the position; and (4) he was replaced by a younger person. Id. at 805.
The Court first addresses the claim that Wiley was constructively discharged. Constructive discharge occurs when an employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation. Manning v. Hazel Park, 202 Mich. App. 685, 697, 509 N.W.2d 874, 880 (1993). Constructive discharge is not in itself a cause of action but is a defense against the argument that no suit should lie in a specific case because the plaintiff left the job voluntarily. Id. Smiths informed Wiley that because he violated the conflict of interest policy, he would receive a two-week suspension and instructed him to divest himself from the Natural RE/source relationship. Wiley declined to accept the suspension because he considered it "insulting." Smiths' disciplinary action was in no way "so severe that a reasonable person in the employee's place would feel compelled to resign." Champion v. Nationwide Security, Inc., 450 Mich. 702, 710, 545 N.W.2d 596, 600 (1996).
Carvalho Dep. at 15.
Wiley Dep. at 94.
With respect to the fourth prong, the Plaintiffs allege that their duties were assumed by subcontractors and that the "vast majority" of the employees of the subcontractors are under the age of forty. The Plaintiffs, however, offer no authority for their proposition that the Court should consider the ages of a subcontractor's employees where an employer has contracted work cu:: to an independent contractor.
Pls' Br. in Resp. to Def's Mtn for SJ (Dkt # 49) at 12.
The Plaintiffs also allege that they were replaced "through the hiring of various new employees" and identify David Morrissey and Ray Olander.
Pls' Br. in Resp. to Def's Mtn for SJ at 11. The Court adopts this spelling of Mr. Olander's name although it is variously spelled as "Orlander" and as "Olander" in the parties' briefs.
The uncontroverted evidence establishes that work was redistributed. Both Morrissey and Olander worked at Smiths before Dzierwa and Miller were terminated. Morrissey worked at Smiths as a contract employee as of March 22, 1999, and assumed permanent employment on September 20, 1999. Olander began work as a contract employee on February 18, 1999, and assumed permanent employment on April 5, 1999. "[A] person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties." Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). See also Godfredson v. Hess Clark, Inc., 173 F.3d 365 (6th Cir. 1999) (holding that the plaintiff was not replaced where two employees assumed his duties after his discharge "in addition to [their] other duties").
V.I.P. David Miller Dep. at 66.
Robert Gengle, Manager of Human Resources, Aff.¶ 7.
Gengle Aff. ¶ 8.
Finally, the Court notes that Morrissey cannot be considered a replacement because he is not substantially younger than the Plaintiffs. Although it is not necessary for an age discrimination plaintiff to have been replaced by someone under forty years of age, the replacement must be substantially younger than the plaintiff. Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998). During oral argument, Plaintiffs' counsel attempted to argue that Morrissey was substantially younger than the Plaintiffs. At the time of discharge, Dzierwa was forty-nine, Miller forty-four and Wiley forty-two years old. Morrissey was forty-two years old. Such a gap does not meet the substantially younger standard. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996) (holding that a 40-year-old replacement was substantially younger than the 57-year-old plaintiff); Bush, 161 F.3d at 368 (41-year-old replacement was not substantially younger than 46-year-old plaintiff); Wellman v. Wheeling and Lake Erie Ry., No. 97-3084, 134 F.3d 373 (table), 1998 WL 25005, *4 (6th Cir. Feb. 17, 1998) (per curiam) (holding that a 46-year-old plaintiff replaced by a 41-year-old failed to meet his burden of showing that his replacement was "substantially younger").
For the foregoing reasons, the Plaintiffs have not met their burden of showing that they were replaced by a younger individual and thus have failed to make out a prima facie case of age discrimination.
B
Even if the Court were to conclude that the Plaintiffs had established a prima facie case of age discrimination, their claim would not survive summary judgment because they have not produced evidence which would enable the trier of fact to reject Smiths' legitimate, nondiscriminatory reason for its actions.
Dzierwa and Miller were terminated for violating Smiths' conflict of interest policy and Smiths' company standards. Wiley was to be disciplined for violating the conflict of interest policy.
Conflict of Interest
Smiths and National RE/sources had an ongoing business relationship involving the two properties. Smiths was the mortgagee of the Eastern site. National RE/sources provided Smiths with an eighteen year environmental indemnification on the Eastern site. National RE/sources owned the Patterson site that Smiths occupied. It is undisputed that the Plaintiffs did not make written disclosure before entering into the contract with National RE/sources as Smiths' policy required nor did they seek approval from Vice President David Miller or President Bob Ehr. Standards of Conflict
V.P. David Miller Dep. at 18.
Dzierwa Dep. at 76.
According to Smiths, Dzierwa and Miller violated the company standards by making misrepresentations. Specifically, when Vice President Dave Miller remarked to Dzierwa and Miller that he had recommended a former employee, Frank Mileski, to National RE/sources to manage the Eastern site, neither of them disclosed that they were the ones who were managing the Eastern site for National RE/sources. when Bergman approached Miller about why his name appeared with Apple Property Management on the insurance form, Miller feigned ignorance and denied any knowledge of why his name was on the form. Their conduct was deceptive and Smiths concluded that they were not trustworthy.
Def's Exh. L.
The reason for their termination on their personnel sheet was violation of company policy, and included the statement "cannot trust." Def's Exh. M.
Having articulated a legitimate and nondiscriminatory reason, the burden shifts back to the Plaintiffs to show by a preponderance of the evidence that there is a question of material fact that Smiths' proffered reasons were not true reasons but merely a pretext for discrimination. In order to demonstrate pretext, the plaintiff is required to show that the employer's articulated reasons: (1) had no basis in fact, (2) did not actually motivate his discharge, or (3) were insufficient to motivate his discharge.Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994). "[T]he bottom-line requirement of what a plaintiff must establish in any age discrimination case is that age discrimination was a determining factor in the [adverse action]."Dubey v. Stroh Brewery Co., 185 Mich. App. 561, 564, 462 N.W.2d 758, 759 (1990). Under Michigan law, simply attempting to disprove the employer's reason is not enough. "[P]laintiff must not merely raise a triable issue that the employer's proffered reason was pretextual, but that it was a pretext for age . . . discrimination." Lytle v. Malady, 458 Mich. 153, 175-76, 579 N.W.2d 906, 916 (1998).
The Plaintiffs contend that Smiths' reasons are pretextual because other employees engaged in outside work without obtaining management approval. The Plaintiffs argue that they were treated differently from Mileski and Bergman, who also maintained outside employment, and that this difference is evidence of age discrimination. As evidence, they offer Miller's statement that when he told Bergman about Apple Property Management, Bergman allegedly replied, "Well, I don't see any problem with that." They point out that Bergman sold Amway products on the side, and that Frank Mileski had outside employment as an electrical inspector.
Miller Aff. ¶ 7.
Miller Dep. at 131.
Mileski Dep. at 31.
The Plaintiffs' claim is without merit. As a threshold matter, both Mileski and Bergman are members of the protected class. At the time the Plaintiffs were discharged, Mileski was fifty-seven years old and Bergman forty-eight. Moreover, Mileski's side business did not constitute a conflict of interest. There is no evidence that Mileski worked on "outside concerns" as defined in the policy. The example of Bergman actually weighs in favor of the Defendants because it reveals a consistent enforcement of the conflict of interest policy by Smiths. When Bergman recruited a current Smiths' contractor to be an Amway distributor, Bergman received a two-week suspension without pay as discipline for violating the company's conflict of interests policy. The record indicates that the Plaintiffs simply did not comprehend that Smiths maintained an interest in the Eastern site and an ongoing relationship with National RE/sources such that their relationship with National RE/sources constituted a conflict of interest. Their failure to recognize or inquire about a violation of company policy, however, does not render their employer's disciplinary action pretextual.
Gengle Aff. ¶ 6.
Miller testified in his deposition that "it didn't even occur to [him] to even think about it being a conflict of interest." Miller Dep. at 117.
The Plaintiffs next argue that if Smiths' proffered reason was the real reason, then Smiths "would have evenhandedly applied the policy" and terminated Wiley. The Plaintiffs' attempt to finesse and manipulate the facts is mere obfuscation. The record is replete with evidence that Smiths distinguished Wiley's conduct because, unlike Dzierwa and Miller, he did not make misrepresentations to the company. Moreover, even assuming that Wiley was similarly situated but treated better, such a difference in treatment is not evidence of age discrimination because Wiley, at forty-two years old, was not substantially younger than Dzierwa, who was forty-nine years old and Miller, who was forty-four years old.
Pls' Br. at 16. Miller's affidavit states that:
¶ 24. [T]o the extent that the claim is made that I violated company policy and that was the reason for my termination, then the same standard should have applied to Mr. Wiley, as our positions were identical, except for our age. . . .
¶ 25. For reasons unknown to me, despite the fact that the only difference is that Mr. Wiley was younger, he was not terminated for the same alleged violation of company policy. Under these circumstances, I was treated differently than a younger employee, Mr. Wiley.
There is no evidence from which a jury could find that the decision to terminate Dzierwa and Miller and discipline Wiley was based on age. Viewing the evidence in a light most favorable to the Plaintiffs and drawing all reasonable inferences in their favor, the Court concludes that they have failed to raise a genuine issue of material fact that Smiths' proffered reasons were a mere pretext for age discrimination.
Plaintiffs' oral argument was not of material assistance to the Court as demonstrated by the following two illustrations. In arguing that the Plaintiffs had established a prima facie case, counsel stated that the Court should consider the ages of employees employed by the subcontractors Smiths had contracted with as evidence that the Plaintiffs were replaced by younger persons. Despite being unable to identify any authority to support this novel legal proposition, counsel nonetheless steadfastly maintained this claim. Secondly, when the Court requested that counsel identify evidence indicating age discrimination, counsel instead articulated the elements of the McDonnell Douglas burden shifting framework and failed to identify facts supporting their claim that age was a consideration in the Defendant's conduct.
IV
The Court next addresses Smiths' request for sanctions on the grounds that the Plaintiffs intentionally provided false and evasive discovery information.
The following additional facts are relevant to the resolution of this issue. On August 30, 1999, the Defendant served upon each Plaintiff a Request for Production, which requested, inter alia, "any and all tape recordings made by them or on their behalf which involved conversations with the Defendant or any of its employees.
On August 30, 1999, the Defendant served upon each of the Plaintiffs a set of Interrogatories in which the Plaintiffs were requested to provide the name of each person the Plaintiffs have talked to or written to about any claim connected to the allegations in the Complaint. When asked in their depositions which Smiths' employees they had spoken to about their termination, Miller and Dzierwa did not disclose that they had spoken with Doubek.
The specific interrogatory states 17. State the name and address of each person Plaintiffs . . . have talked and/or written to about any claim connected in any way to the allegations in the Complaint, and describe the subject matter and contents of each communication Plaintiff(s) had with each such person.
Miller Dep. at 143-44. Dzierwa Dep. at 51-52.
Doubek was deposed in California on January 26, 1999. After Doubek's deposition, Dzierwa served a supplemental response to Defendant's Request for Production No. 23 of one cassette of a recorded conversation between the Plaintiffs and Doubek on March 27, 1999, in which the parties discussed the Plaintiffs' termination. The Plaintiffs did not advise Doubek that the conversation was being tape recorded.
In response to the instant motion, the Plaintiffs characterize the Defendant's claim that the Plaintiffs provided evasive and false discovery responses as a "red herring" and "entirely without merit." Specifically, the Plaintiffs explain that they interpreted the interrogatory as "aimed at identifying those people with whom the Plaintiffs had communicated regarding . . . their termination . . . after their termination." They argue they "reasonably considered [their conversation with Doubek], which they believed Defendant was aware of, did not pertain to a pending claim against Defendant, and therefore, was not relative to the inquiry to the inquiry stated in Interrogatory 17." This explanation strains credulity, especially in light of the Plaintiffs' explanation regarding their failure to produce the taped conversation as requested.
Pls' Supplemental Br. at 5.
Pls' Supplemental Br. at 5.
With respect to the Doubek tape recording, the Plaintiffs state that they "made the tactical decision" to withhold production of the tape until after Doubek's deposition. The Plaintiffs aver that the tape shows that Doubek "knew and approved of the involvement of Plaintiffs in the Apple management business outside of their employment with" Smiths. The Plaintiffs explain that if Doubek was untruthful in his deposition as to whether he approved their outside employment, he "could be held accountable for his inaccurate and/or untruthful testimony by means of the tape." Unless the Court is "to assume an Alice-in-Wonderland world where words have no meaning," the transcript of the tape recorded conversation most certainly does not demonstrate that Doubek approved of the Plaintiffs' outside employment. Doubek explicitly disclaims that he had the authority to give them permission for outside work. In any event, regardless of what Doubek said during the telephone conversation, Plaintiffs' counsel had no license to withhold properly requested evidence to attain an advantage. "Our system of discovery was designed to increase the likelihood that justice will be served in each case, not to promote principles of gamesmanship and deception in which the person who hides the ball most effectively wins the case." Abrahamsen v. Trans-State Exp., Inc., 92 F.3d 425, 428 (6th Cir. 1996).
Pls' Supplemental Br. at 7.
Pls' Supplemental Br. at 8.
Pls' Supplemental Br. at 7.
Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring) (citing LEWIS CARROLL, ALICE IN WONDERLAND 163 (D. Gray ed., 1971) ("When I use a word . . . it means just what I choose it to mean — neither more nor less.")).
* * *
Doubek: [Vice President] Miller had called me and asked if I knew you guys were working at Eastern and I said, No I did not. Because I didn't. But it sounded like what they were going to do was just talk to you about it, and usually there's some — when I've had a business on the side I got an approval, you know, it was not — as long as it's not a conflict of interest, usually they approve it.
But its better to do that up front, you know. . . . Dzierwa: [V.P. David Miller] said, Well, did you say anything to anybody? Does anybody else know about it?" I said, and we said, "Well, we mentioned it to Jim [Doubek] that we were approached" and, you know, remember when we were sitting at the Beltline Bar that evening we told you about it?Doubek
Doubek: [W]hen [V.P. David Miller] mentioned it, [I said] "Well, they should have gotten approval beforehand," but it didn't seem like a big deal, you know. . . . He wanted to know if I had approved it. I mean, how can I approve it. . . . That would have put them in a little more tough spot if I had, you know, if somebody that was sort of in the management team there had approved something, something you had done, then it would have been better if I had, from your point of view I think.
Miller: I think the way we understood it the night we talked to you, you kind of just said go for it, so we just figured what's the big deal, you know?
Doubek: Well, yeah, but I figured you guys were going to split. . . .
On April 18, 2000, each Plaintiff filed an affidavit under oath in compliance with an order of the Court dated April 11, 2000, disclosing the existence "of all audio and video tape recordings memorializing any conversation involving one of defendant's past or present employees." Dzierwa's affidavit stated that in addition to the conversation with Doubek that he had taped, he had taped a January 2000 conversation with Lee Facado, another Smiths' employee. He also had a March 26, 1999, message on his computer from National RE/sources, which he provided although he did not believe it fell within the order of the Court.
Dkt #45.
Dkt #50.
The Court is deeply troubled by the conduct of Plaintiffs' counsel. The Rules of Professional Conduct impose upon lawyers a duty of candor to the court. Instead of candor in this case, counsel engaged in deliberate non-disclosure. Particularly egregious is counsel's attempt to rationalize this conduct.
Plaintiffs' counsel fails to acknowledge that this conduct violated both the spirit and letter of the Federal Rules of Civil Procedure.
FED. R. CIV. P. 26(g) provides in relevant part:
Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. . . . The signature of the attorney . . . constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.
The objective of the subsection is to provide "a deterrent to . . . evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection." The Court invites the Defendant to submit an affidavit detailing a bill of costs, if any, incurred as a result of the failure by Plaintiffs' counsel to timely comply with the discovery requests.
An order and judgment consistent with this opinion shall be entered.
Date: May 3, 2000
C. Disclosure of Possible Conflict of Interest Situations
If, at the time of signing the No Conflict of Interest Certification, or at any time thereafter, an employee . . . has or is about to acquire an interest in, or become party to, a relationship which might violate this policy, such employee must submit a Disclosure Statement of all the facts and circumstances . . . The Disclosure Statement will be reviewed by the Vice president of Contracts and Compliance. . . .
Def's Mtn for SJ, Dkt #26, Exh. C.