                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
____________________________
                             )
REGINALD MOORE, et al.,      )
                             )
     Plaintiffs,             )
                             )
     v.                      ) Civil Action No. 00-953 (RWR/DAR)
                             )
JANET NAPOLITANO,            )
                             )
     Defendant.              )
____________________________ )

                  MEMORANDUM OPINION AND ORDER

     Plaintiffs, African-American current and former special

agents of the United States Secret Service, brought this

employment discrimination action individually and on behalf of a

putative class of African-American special agents against the

Secretary of the Department of Homeland Security.   The defendant

objects to the magistrate judge’s imposition of sanctions that

were imposed under Federal Rule of Civil Procedure 37 after the

magistrate judge granted a motion to compel a reasonable search

for paper documents responsive to the plaintiffs’ document

requests and after the defendant violated the compulsion order.

The defendant has not shown that the magistrate judge erred in

imposing sanctions under Rule 37 for the defendant’s discovery

violation or violation of the order.   The preclusion sanction,

though, will be construed to preclude the defendant from offering

any legitimate, nondiscriminatory reason for a nonpromotion in

response to any prima facie case of disparate treatment
                                -2-

discrimination against the individual named plaintiffs, but not

otherwise preclude the defendant from defending the case.

                            BACKGROUND

     On October 29, 2007, after the defendant’s Rule 30(b)(6)

designee testified that the Secret Service had not searched the

records of any decisionmaker in response to the plaintiffs’

discovery requests served over a year earlier, the plaintiffs

filed a motion for sanctions and to compel the defendant to

comply with her discovery obligation “to conduct a reasonable

search for and to produce all documents responsive to [the

plaintiffs’] requests for production, including ‘print and save’

e-mails, ‘contemporaneous notes,’ and other documents ‘regarding

the actual substantive promotion[] decisions made by the Secret

Service supervisors and managers that adversely affected the

Plaintiffs and the [putative] class.’”   Moore v. Chertoff, 255

F.R.D. 10, 13 (D.D.C. 2008) (quoting Pls.’ Mot. to Compel a

Reasonable Search (“Pls.’ Mot. to Compel”) at 1-2, 15-18).    The

document requests at issue included a request by the plaintiffs

served on May 23, 2006 seeking “[a]ll documents, . . . whether

stored electronically or in hard copy, that contain information

on the selection of” Special Agents for promotion to the relevant

positions.   (Pls.’ Mot. to Compel at 3.)   Plaintiffs also served

on June 15, 2006 a document request, seeking all documents

related “to the bid and selection process for each competitive
                                   -3-

promotion” sought by the individual named plaintiffs and all

documents “provided to or reviewed by individuals who” made the

promotions decisions for each position for which the individual

named plaintiffs applied.   (See id. at 4 ¶¶ 5, 8.)    The

plaintiffs also sought a preclusion sanction that would prevent

the defendant from defending against the plaintiffs’ individual

and class action prima facie cases of discriminatory

nonpromotion.   (See id. at 20.)    On December 21, 2007, the

magistrate judge granted the plaintiffs’ motion to compel the

defendant to conduct a reasonable search for responsive paper

documents, ordered production of the documents by January 7,

2008, and ordered the defendant as a partial sanction to pay the

plaintiffs’ costs, including reasonable attorneys’ fees, of

moving to compel such discovery.     She vowed a further hearing for

the purpose of determining any additional appropriate sanction

for the defendant’s discovery violation.     Moore, 255 F.R.D. at

14.   The magistrate judge held an evidentiary hearing at which,

though, the plaintiffs also vowed “to ‘demonstrate through live

testimony . . . the egregiousness of [the] Defendant’s violation”

and that the plaintiffs never received the responsive documents,

and the defendant also vowed to show “absolute compliance” with

the December 21, 2007 order.   Id. at 16.    (See also Def.’s

Proposed Findings of Fact [Docket #571] at 2 (acknowledging that

defendant’s compliance with the December 21, 2007 compulsion
                                -4-

order would in part be at issue in the hearing).)   The docket

reflects that the parties presented evidence for sixteen days

from January 10 though April 14 of 2008 and closing arguments at

the end of May.   Based on the entire record, Moore, 255 F.R.D. at

13, including the evidence introduced at the hearing, the

magistrate judge found that even one year after the order

granting the motion to compel was issued, the defendant had still

not complied, id. at 33, and the defendant’s failure to conduct a

reasonable search for and to produce all responsive documents was

willful given the defendant’s behavior throughout discovery.     Id.

at 35-36.   Invoking her authority to issue “just orders,” id. at

36, under Rule 37(b)(2) when a party “fails to obey an order to

provide . . . discovery,” the magistrate judge sanctioned the

defendant by ordering that “once Plaintiffs have established a

prima facie case of discriminatory non-promotion, Defendant may

not defend any such prima facie case[.]”   Id. at 37.   The

magistrate judge also ordered “pursuant to Rule 37 . . .      [that

the] Defendant shall pay Plaintiffs their costs, including

reasonable attorneys’ fees, of drafting, filing, and litigating

the Motion [to Compel and] for Sanctions.”   Id.

     The defendant has filed objections to the magistrate judge’s

ruling, arguing that the magistrate judge erred because the

defendant complied with the order compelling her to conduct a

reasonable search, and because the magistrate judge’s order
                                -5-

imposed “a severe sanction precluding [the] defendant from being

able to thoroughly defend the merits of this case.”     (Def.’s

Obj’ns at 1.)   In addition, the defendant objects to the

magistrate judge’s order awarding costs to the plaintiffs,

alleging that no cost sanction is appropriate under Rule

37(b)(2)(C) because the defendant complied with the court’s

order, and that the defendant had already paid for plaintiffs’

costs incurred in filing their motion.   (Id. at 44.)

                            DISCUSSION

     Federal Rule of Civil Procedure 72(a) and Local Civil Rule

72.2(b) allow a party to seek reconsideration of a magistrate

judge’s decision in a discovery dispute.   “On review, the

magistrate judge’s decision is entitled to great deference unless

it is clearly erroneous or contrary to law, that is, if on the

entire evidence the court is left with the definite and firm

conviction that a mistake has been committed.”   Moore v.

Chertoff, 577 F. Supp. 2d 165, 167 (D.D.C. 2008) (internal

quotation marks and citations omitted); see also Graham v.

Mukasey, 247 F.R.D. 205, 207 (D.D.C. 2008); LCvR 72.2(c) (“Upon

consideration of objections filed . . . , a district judge may

modify or set aside any portion of a magistrate judge’s order

under this Rule found to be clearly erroneous or contrary to

law.”).
                                  -6-

I.    RULE 37 AUTHORITY

       The defendant contends that the magistrate judge erred in

issuing a sanction under Rule 37(b)(2) because the plaintiffs

requested the sanction before the magistrate judge issued her

December 21, 2007 order granting the plaintiffs’ motion to

compel, and because the magistrate judge’s sanction opinion makes

no finding that the defendant violated her December 21, 2007

order.   (Def.’s Obj’ns at 29-31.)

      The timing of a party’s request for sanctions does not

determine a court’s authority to issue them.    The federal rules,

for the most part, do.    Plaintiffs complained in a motion to

compel that the defendant had not searched for and produced

documents.   The magistrate judge agreed, granted the motion to

compel, and pending a further hearing to determine what if any

additional sanctions were warranted, preliminarily assessed costs

against the defendant, as the magistrate judge was authorized to

do.   Fed. R. Civ. P. 37(a)(5).   The defendant makes no argument

or showing that the magistrate judge lacked such authority.

      For months thereafter, the magistrate judge held a hearing

with a dual focus on additional sanctions for defendant’s

discovery violation found at the December 21, 2007 hearing, and

defendant’s compliance with the compulsion order issued that day.

The defendant neither argues nor demonstrates that the magistrate

judge lacked continuing authority under Rule 37(a)(5) to consider
                                   -7-

whether sanctions beyond the sanction preliminarily issued for

the initial discovery violation were warranted.

     The magistrate judge had authority to issue sanctions for

violation of the compulsion order.       “A district court may order

sanctions, including a default judgment, for misconduct either

pursuant to Rule 37(b)(2)1 . . . , which authorizes a court to

assess a sanction for violation of a discovery order, or pursuant

to the court’s inherent power to ‘protect [its] integrity and

prevent abuses of the judicial process.’”      Webb v. District of

Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (quoting Shepherd v.




     1
         Under Rule 37(b)(2)(A),

     [i]f a party . . . fails to obey an order to provide or
     permit discovery, . . . the court where the action is
     pending may issue further just orders. They may include the
     following:
     (i) directing that the matters embraced in the order or
     other designated facts be taken as established for
     purposes of the action, as the prevailing party claims;
     (ii) prohibiting the disobedient party from supporting
     or opposing designated claims or defenses, or from
     introducing designated matters in evidence;
     (iii) striking pleadings in whole or in part;
     (iv) staying further proceedings until the order is
     obeyed;
     (v) dismissing the action or proceeding in whole or in
     part;
     (vi) rendering a default judgment against the
     disobedient party; or
     (vii) treating as contempt of court the failure to obey
     any order except an order to submit to a physical or
     mental examination.

Fed. R. Civ. P. 37(b)(2)(A).
                                 -8-

Am. Broad. Cos., Inc., 62 F.3d 1469, 1474 (D.C. Cir. 1995))

(alteration in original).

      Contrary to the defendant’s assertion, the magistrate did

find that the defendant violated the December 21, 2007 order

requiring the defendant to search for and produce by January 7,

2008 documents that were the subject of the motion.    The

magistrate judge expressly concluded that the defendant “fail[ed]

to timely” or reasonably “search for and serve the documents

responsive to Plaintiffs’ requests for production of documents

. . . in accordance with . . . the court’s order compelling

discovery[.]”   Moore, 255 F.R.D. at 33.   Similarly, the

magistrate judge concluded that the defendant “made a mockery of

. . . the order granting Plaintiffs’ motion to compel[.]”     Id. at

35.   Given the dual focus of the hearing, the finding that the

defendant failed to comply with the compulsion order required

that the magistrate judge “order the disobedient party . . . to

pay the reasonable expenses, including attorney’s fees, caused by

the failure, unless the failure was substantially justified or

other circumstances make an award of expenses unjust.”      Fed. R.

Civ. P. 37(b)(2)(C).   As is discussed below, the defendant has

not shown error in the finding that she failed to comply with the

compulsion order, or shown that her failure to comply was

substantially justified.    Nor has she shown that the award of

costs was unjust.   That the defendant may already have paid the
                                  -9-

costs imposed on December 21, 2007 simply means that the

defendant would not be required to pay again any portion of the

total costs imposed in the 2008 order that has already been paid.

Accordingly, the defendant has not shown that the magistrate

judge lacked authority under Rule 37 to sanction the defendant

for her discovery violation and for failing to comply with the

discovery order.

                              *    *     *

     The magistrate judge has presided over proceedings involving

discovery disputes in this case since 2005.       She has found the

defendant's behavior regarding discovery obligations consistently

over time to range from being lackluster to being recalcitrant

and obdurate.   Moore, 255 F.R.D. at 12, 26, 35.      She found that

the case was delayed “in large measure by the Defendant’s failure

to provide discovery without the virtually continuous

intervention of the court.”   Id. at 33.      The enforcement record

is not disputed.   The magistrate judge has had to enter against

the defendant no fewer than nine orders compelling the defendant

to provide discovery.   Id. at 12.      She has denied a protective

order sought by the defendant to limit discovery.       Id.   The

question here is whether, in light of this history, she had a

basis for concluding that the defendant's recent search efforts

for decisionmakers' documents were not reasonable, and the
                               -10-

defendant's conduct was willful so as to warrant a severe

sanction.

II.   DEFENDANT’S SEARCH EFFORTS

      The defendant alleges that the magistrate judge erred in

finding that the defendant failed to conduct reasonable searches

for responsive decisionmaker documents.   As a preliminary matter,

the defendant alleges that the magistrate judge erroneously

placed the burden of proof on the defendant, relying on the

heading in the magistrate judge’s opinion stating that the

“[d]efendant failed to adduce credible evidence of any reasonable

search efforts in November and December, 2007 and January, 2008”

as evidence that the burden of proof had shifted.   (Def.’s Obj’ns

at 27.)   Contrary to the defendant’s objection, viewing the

magistrate judge’s opinion in its entirety, the magistrate judge

did not erroneously place the burden of proof on the defendant.

When a plaintiff alleges that a defendant violated a discovery

order compelling a search by failing to conduct an adequate

search, a plaintiff invariably will call upon the defendant’s

agents to explain what efforts were or were not made to comply

with the court’s discovery order to show that such efforts were

deficient.   Once a plaintiff uncovers such evidence that the

defendant failed to search in particular locations or that

individual searches conducted by the defendant’s agents were

inconsistent, it necessarily falls to the defendant, the party
                                -11-

with superior knowledge of its own records, to show the

reasonableness of its decisions regarding where and how to search

for responsive documents.

     Here, the magistrate judge carefully considered all of the

evidence presented by both parties to determine whether the

plaintiffs had carried their burden, as the moving party, to

justify imposing a sanction.    If anything, the language of the

heading identified by the defendant as significant –-

“[d]efendant failed to adduce credible evidence of any reasonable

search efforts” -- and the findings within that section of the

magistrate judge’s opinion suggest that the defendant’s

presentation of evidence in its defense actually bolstered the

plaintiffs’ case for sanctions.    They do not establish that the

magistrate judge improperly placed the burden of proof on the

defendant.

     The defendant also contends that the magistrate judge did

not assess the defendant’s search efforts under the correct legal

standard, namely, reasonableness.      (Def.’s Obj’ns at 27.)   Under

Rule 26, a party is obligated to make a reasonable effort to

search for and produce documents responsive to the opposing

party’s document requests.   See Fed. R. Civ. P. 26(g) Advisory

Comm. Notes (1983 Amendment).    “Ultimately, what is reasonable is

a matter for the court to decide on the totality of the

circumstances[,]” and “[t]his standard is heavily dependent on
                                -12-

the circumstances of each case.”    Id.   The magistrate judge’s

opinion applies this reasonableness standard, explicitly finding

that the defendant “failed to conduct a reasonable search in

2006” and similarly did not demonstrate “any reasonable search

efforts in November and December, 2007 and January, 2008.”

Moore, 255 F.R.D. at 21-22.   The defendant identifies no

misstatement of the reasonableness standard and instead points to

particular factual findings as evidence that the magistrate judge

applied a more stringent standard than reasonableness.

     A.     2006 search

     The magistrate judge found that the defendant had limited

the search for responsive documents to only three Secret Service

divisions -- Personnel, EEO, and Management and Organization –-

and had not “searched the records of any decision-maker” stored

outside of these divisions prior to the December 21, 2007 order.

(Id. at 21.)    As the magistrate judge noted, the defendant

acknowledged that it “could have gone to the individual

supervisors . . . within the Secret Service and queried them

personally about what recommendation materials they may have

[had] that would [have been] responsive to the Plaintiffs’

request.”    (Id. (quoting May 29, 2008 Hrg. Tr. at 32) (internal

quotation marks and alterations omitted).)     The defendant

contends that there was no evidence to support the magistrate
                               -13-

judge’s conclusion that a reasonable search needed to include

searches for documents outside of the three searched divisions.

     The plaintiffs presented evidence demonstrating the likely

existence of responsive documents in the records of other

decisionmakers and recommenders in the promotion process, namely

sworn testimony from Secret Service agents indicating that

promotion recommendations were communicated through e-mail.    (See

Pls.’ Opp’n to Def.’s Obj’ns at 16 n.7; Pls.’ Proposed Findings

of Fact [Docket #568] ¶¶ 299-301 (collecting deposition

testimony).)   The defendant concedes that there was testimony

from Secret Service agents that “‘it [was] possible’ that field

offices may have [had] additional promotion-related information

not sent to the Personnel Division, and that promotion-related

information may consist of a recommendation by a SAIC [Special

Agent-in-Charge] or by a first-level supervisor to an SAIC.”

(Def.’s Obj’ns at 12.)   Notably, the defendant points to no

evidence presented to the magistrate judge that demonstrated that

responsive documents likely would not have been located within

the records of these other decisionmakers and recommenders.    In

light of the plaintiffs’ evidence that responsive documents

regarding promotion recommendations existed outside of the three

searched divisions and demonstrating the importance of documents

related to the promotion recommendations to the issues in this

action, the defendant has not shown that it was clearly erroneous
                                -14-

for the magistrate judge to conclude that, in the circumstances

of this case, a reasonable search for documents responsive to the

plaintiffs’ request must include searches of the records of

individual decisionmakers located outside of the three divisions

searched.

     B.     2007 and 2008 searches

     The magistrate judge found that the defendant failed to

conduct a reasonable search in November and December of 2007 and

January of 2008, partly in violation of the order granting the

plaintiffs’ motion to compel a reasonable search of the records

of decisionmakers for responsive documents.    In so finding, the

magistrate judge reasoned that the defendant provided

insufficient search instructions to the approximately 182

supervisors who were tasked with searching for responsive

documents in response to the December 21 order.    Moore, 255

F.R.D. at 21-22.    The magistrate judge also found that the search

efforts described by the defendant’s own witnesses -- SAIC

Bryant, Resident Agent-in-Charge (“RAIC”) Gavin, and RAIC Mays --

revealed that these individuals conducted inconsistent and

inadequate searches for documents in response to the December 21

order.    In addition, the magistrate judge found that the

testimony of Inspector Hunnicutt, who was entrusted to assure an

adequate search, lacked candor, was not credible and could not be
                                -15-

relied upon to explain the defendant’s search efforts.   Id. at

26-27.

          1.    Search instructions

     The magistrate judge found that the search instructions

given to the individual agents charged with carrying out the

defendant’s search for documents in November and December of 2007

were ambiguous and deficient.   After the plaintiffs filed their

motion to compel, Secret Service Inspector Arthur Kuhn sent an e-

mail on November 5, 2007 to approximately 182 supervisors at the

GS-15 level or higher directing each individual

     to search locations including “personal files,” “office
     files,” and “the office files for which [they] were
     previously assigned when involved in the decision-
     making process[]” for “notes, letters, memoranda, e-
     mails (both paper and electronically saved), or any
     other paper documents that specifically relate to the
     ‘selection decisions’ for GS-14 and GS-15 promotions
     and reassignments from 1991 to 2005.

Id. at 18 (quoting Def.’s Evid’y Hrg. Ex. 1) (alterations in

original).   After the magistrate judge granted the plaintiffs’

motion to compel searches, “[o]n December 26, 2007, the Secret

Service’s Office of the Chief Counsel forwarded an e-mail to ‘all

Assistant Directors [ADs], Special Agents in Charge [SAICs],

Resident Agents in Charge [RAICs], and Division Chiefs’ directing

a search ‘of their offices, including all personal and office

files, for any paper documents related to decision-making or

recommendations for bids of selections to any GS-14, GS-15, or

SES Special Agent position from 1991 to 2005.’”   Id. (quoting
                                  -16-

Def.’s Evid’y Hrg. Ex. 14 at 1).     This e-mail was sent to

approximately 156 agents.   Id.

     The magistrate judge found that the ambiguity in the

defendant’s instructions “became evident as Defendant’s own

witnesses testified regarding their respective interpretations of

the terms ‘personal files,’ ‘office files’ and ‘office’ in the

context of the e-mail inquiries.”        Id. at 16 n.18 (listing

several agents’ inconsistent interpretations of the files they

were to search in response to the defendant’s two e-mail

inquiries).   For example, the magistrate judge discussed the

testimony of Agent Faron Paramore, SAIC of the Director’s Office,

who testified that he originally thought the November 5, 2007

email required a physical search of only his personal office, and

searched the files of the entire Director’s Office only after

receiving clarification from the Secret Service’s Chief Counsel’s

office about the intended scope of the requested search.        Id. at

22-23.   Nevertheless, the defendant used the same ambiguous term

“office files” in the December 26, 2007 email without further

instructions to clarify for everyone else what “office files”

meant.   In addition, the magistrate judge found that defendant’s

search instructions failed to adequately inform the e-mail

recipients, including Inspectors Kuhn and Hunnicutt, whose “role

[it was] to receive documents located during the searches and to

answer any questions posed by the recipients of the e-mail,” of
                               -17-

the claims and defenses involved in this case even though the

plaintiffs’ document requests sought documents “relating . . . in

any way to the claims and defenses raised in this case[.]”    Id.

at 23 (internal quotation marks omitted).

     The defendant disputes the magistrate judge’s conclusion

that the defendant’s search instructions were ambiguous, arguing

that “however a witness may have initially interpreted [the

search terms], all the witnesses cited [by the magistrate judge]

testified that they ultimately understood that they were to

search all of the office under their supervision where responsive

records might be located.”   (Def.’s Obj’ns at 14.)   With

testimony from only the small sample of the approximately 182

recipients of the November 2, 2007 e-mail and 156 recipients of

the December 26, 2007 e-mail, it was not error to infer from the

different initial interpretations that there was ambiguity in the

search instructions.   The defendant has pointed to no evidence

before the magistrate judge that demonstrates that the defendant

communicated with all of the e-mail recipients to ensure that

they had not adopted an erroneous interpretation of the scope of

the search requested and had not certified completion of a search

based on an erroneous interpretation of what was required.    In

addition, as is discussed below, the testimony of the agents

regarding their search efforts in response to the 2007 e-mail

search instructions revealed that they conducted inconsistent
                               -18-

searches and, in some instances, inadequate searches.    Thus,

contrary to the defendant’s objection, it was not error to

conclude from the evidentiary record that the defendant’s search

instructions did not sufficiently inform recipients of what

efforts needed to be made to satisfy the defendant’s obligation

to conduct a reasonable search.

      The magistrate judge found that the defendant’s search

instructions were deficient for failing to include express search

references to appropriate index numbers or off-site storage,

including the Federal Records Center.    Moore, 255 F.R.D. at 23-

24.   The defendant argues that the plaintiffs did not prove that

the agents needed such specific search instructions.    (Def.’s

Obj’ns at 15-16.)   However, the plaintiffs need not have proven

that the agents charged with searching their offices needed such

a directive.   Inspector Kuhn testified that the Secret Service

filing system designates office files regarding promotion of

special agents by a particular index number, and that responsive

documents could be stored at the Federal Records Center, but he

did not know if anyone searched there.   Moore, 255 F.R.D. at 23,

30.   The defendant has pointed to no evidence demonstrating that

the administrative index number and documents stored off-site

were irrelevant to the plaintiffs’ request.   It was enough for

the magistrate judge to note the omission from search

instructions of obvious locations of potentially responsive
                               -19-

documents in assessing whether the defendant’s omissions were

indicative of a chronically and willfully anemic approach to

discovery obligations warranting a significant sanction.

     The magistrate judge found that Inspectors Kuhn and

Hunnicutt were not adequately informed about what constitutes a

document responsive to the plaintiffs’ requests.   The defendant

counters that these inspectors were tasked with only gathering

information on the defendant’s searches and that because of their

minimal role, “[t]he fact that the inspectors . . . were not

involved in determining whether a document was responsive to

plaintiffs’ requests does not indicate that defendant’s

instructions . . . were in any way deficient, or that the

searches they performed were in any way inadequate.”   (Def.’s

Obj’ns at 15.)   While it is far from clear that the evidentiary

record supports the defendant’s characterization of Kuhn and

Hunnicutt as mere information-gatherers, the magistrate judge

also found that the e-mail recipients -- who were tasked with

searching –- were inadequately informed about what constituted a

responsive document.   Moore, 255 F.R.D. at 23.   The defendant has

not identified evidence in the record demonstrating that all e-

mail recipients were adequately informed of the types of

responsive documents that should have been produced in response

to the e-mail inquiry.   Thus, even accepting the defendant’s

argument that Kuhn and Hunnicutt had a minimal role that did not
                                    -20-

require them to have knowledge of what constituted a responsive

document, such an argument does not undermine the magistrate

judge’s conclusion that there was a widespread failure to

instruct e-mail recipients appropriately.

          2.      Inconsistent search efforts

     In reaching the conclusion that the defendant failed to

conduct a reasonable search in response to the December 21, 2007

order, the magistrate judge considered the search efforts of four

of the defendant’s agents: SAICs Paramore and Bryant and RAICs

Gavin and Mays.    The magistrate judge found that the testimony of

these four agents “exposed the widely varying extent of the

searches conducted[,]” and that Bryant, Gavin, and Mays’

testimony revealed that they conducted inadequate searches for

responsive documents, not reasonable ones consistent with the

defendant’s obligation under the federal rules.        Id. at 24.

                  a.     Bryant

     The magistrate judge found that Bryant “failed to search any

of the administrative files of the Buffalo field office in

November, 2007.”       Id.   She found that in response to the

November, 2007 e-mail inquiry, Bryant asked his administrative

supervisor if any files would contain any responsive information,

and his administrative supervisor –- without conducting a search

of any files –- indicated that the information he was seeking

would not be in “‘an official capacity in [the] file room.’”        Id.
                               -21-

(quoting Mar. 6, 2008 Evid’y Hrg. Tr. at 14-15) (alteration in

original).   The magistrate judge further found that Bryant

believed that his inquiry of the administrative supervisor

constituted an adequate search.   Id.   She also found that beyond

questioning the administrative supervisor, Bryant “merely looked

at the personal files maintained in his desk, his calendar and e-

mail account . . . [but] did not search in closets, credenzas,

safes, vaults, off-site storage, or file cabinets other than the

one containing his own personal documents” and did not ask other

staff members to search for responsive documents.   Id. (internal

citation omitted).

     The defendant alleges that Bryant reasonably relied upon

information provided by the administrative supervisor who had

worked in the office for over twenty-eight years and who had

searched the Buffalo office records in May 2007 to prepare for an

unrelated inspection.   (Def.’s Obj’ns at 17-18.)   Some reliance

by Bryant upon his administrative supervisor to help conduct a

search was not the problem.   While the defendant has shown that

the administrative supervisor had general familiarity with the

files in the Buffalo office based upon her earlier unrelated

review of office records, the defendant has not shown that the

administrative supervisor ever reviewed office files for the

purpose of identifying documents responsive to the November and

December e-mail inquiries.
                                 -22-

      In addition, Bryant testified that he made promotion

recommendations via personal e-mail but that where Bryant

searched produced no hard copies of recommendation e-mails.

Moore, 255 F.R.D. at 24-25.    The magistrate judge also noted that

despite the efforts described, Bryant signed “Paper Documents

Search Certification form[s]” on November 6, 2007 and December

26, 2007, “indicating that he performed thorough searches of his

office.”   Id. at 24 n.22.    This record reflects no error in the

magistrate judge finding that neither Bryant nor his

administrative supervisor actually performed a thorough or

reasonable search for documents in response to the November 2007

inquiry.

                b.    Gavin

      The magistrate judge found that Gavin largely relied upon

his resident administrative manager’s word that there would be no

promotion documents or promotion-related materials in the

Wilmington office.   However, the administrative manager did not

conduct any confirming search for responsive documents.    Id. at

25.   Gavin also asked his staff whether they had any promotion-

related materials in their office space, and took their word when

they all said “no” without even confirming whether they had

conducted a search for such materials and without conducting such

a search himself.    Gavin did look in a “small two-drawer filing

cabinet in the resident administrative manager’s office”
                                  -23-

containing administrative filings and searched simply “by looking

at the file folder labels affixed to each file” rather than

opening them.   Id.   He also searched his own personal folder

where he kept activity reports, travel vouchers and other

miscellaneous documents, and looked in the closet and cabinets

when he “happened to be in the closet” or “happened to look in

cabinets.”   Id. at 25-26.     However, Gavin “did not specifically

look for notes, notebooks, memos, calendar entries, or print-and-

save e-mails in response to the December 26, 2007” e-mail

inquiry.   Id. at 26.    Gavin, nevertheless signed a certificate

that a thorough search was conducted.

     Whatever the likelihood was of finding responsive documents,

virtually no search was conducted, much less a thorough one.      The

magistrate judge found that RAIC Gavin’s search efforts were

“lackluster.”   Id.   The record bears out that characterization,

and was fair support for the magistrate judge’s negative

assessment of the reasonableness of the defendant’s search.

                c.      Mays

     The magistrate judge found that in response to the December

2007 e-mail, Mays searched the office’s administrative files by

flipping through pages of those file folders that he thought from

their labels would contain responsive documents.     Id.   Mays

testified that he also “forwarded an e-mail to the members of his

staff, asking them to conduct a search of their offices” and
                                -24-

reply with responsive materials.    Id.   However, none responded

to him and he never spoke with them regarding their search

efforts.   Thus, Mays “could not testify regarding whether [his

staff members] conducted a search or the scope of any performed

search.”   Id.   Nevertheless, Mays, too, signed a form and

certified that a thorough and reasonable search was performed.

     The defendant contends that the search was reasonable enough

since Mays testified “that when he gives an order to his staff he

expects them to comply.”    (Def.’s Obj’ns at 20.)   However, it was

not error for the magistrate judge to find problematic that Mays

certified that a reasonable search was performed without having

surveyed his staff members to determine “the scope of any

performed search[,]” Moore, 255 F.R.D. at 26 (emphasis added), or

to factor this search in with the remaining evidence in assessing

whether the defendant’s overall performance warranted a

substantial sanction.

           3.    Inspector Hunnicutt’s credibility

     The defendant objects to the magistrate judge’s reliance on

Inspector Hunnicutt’s credibility as evidence of whether or not a

reasonable search was performed, contending that Hunnicutt’s

testimony was irrelevant because Hunnicut was tasked with only

“document[ing] defendant’s search efforts,” and was not “in

charge of searching for documents . . . or play[ing] any role in

the actual searches.”    (Def.’s Obj’ns at 21-22.)   Thus, the
                               -25-

defendant contends, “[a]lthough defendant’s efforts through

Inspector Hunnicutt to gather evidence about how the search was

performed may have been flawed, it does not mean that a

reasonable search was not performed.”   (Id. at 22.)   The

defendant has not shown error in the magistrate judge’s finding

that Hunnicutt’s testimony lacked candor and credibility, Moore,

255 F.R.D. at 27, or her reliance on such finding as evidence in

assessing whether a reasonable search was performed in response

to her order or whether the defendant’s overall conduct was

willful.   Hunnicutt was presented as the person who was

responsible for keeping track of the Secret Service’s search

efforts and had knowledge regarding what efforts were undertaken

in response to the court’s December 21 order.   For such an

important witness to testify without credibility or candor about

what search efforts were made can be probative of the defendant’s

good faith and easily lead to grave skepticism in making that

assessment.

     Overall, considering the magistrate judge’s findings

regarding the ambiguity in the defendant’s search instructions,

the inconsistent and inadequate search efforts of agents Bryant,

Gavin, and Mays, and Inspector Hunnicutt’s failure to credibly

explain the defendant’s search efforts, it was not clearly

erroneous for the magistrate judge to find that the defendant

violated the December 21, 2007 order compelling the defendant to
                               -26-

conduct a reasonable search for paper documents.     Nor was there

error in finding that this evidence in light of the defendant’s

chronic discovery misconduct during the pendency of this case

warranted a severe sanction.

III. PRECLUSION SANCTION

     The magistrate judge found that the defendant’s violation of

the order compelling a reasonable search was willful, and ordered

that “once Plaintiffs have established a prima facie case of

discriminatory non-promotion, Defendant may not defend any such

prima facie case[.]”   Id. at 37.    The defendant alleges that the

magistrate judge erred in imposing this sanction because the

circumstances of this case are not sufficiently egregious to

warrant such a severe sanction.     The defendant alleges that

either no sanction is warranted or lesser sanctions of reopening

discovery, allowing plaintiffs to supplement their motion for

class certification, and a division of costs for adjudicating the

plaintiffs’ motion to compel are more appropriate in the

circumstances.   (See Def.’s Obj’ns at 44-45.)

     The “central requirement of Rule 37 is that any sanction

must be just,” and the “choice of sanction should be guided by

the concept of proportionality.”     Bonds v. District of Columbia,

93 F.3d 801, 808 (D.C. Cir. 1996) (internal quotation marks

omitted).   Bonds instructs that before imposing a severe,

litigation-ending sanction that approaches a default judgment or
                                    -27-

denies a party a fair trial on the merits, a district court must

“consider whether lesser sanctions would be more appropriate for

the particular violation” because the judicial system favors

disposition of cases on the merits.        Id.   In considering whether

a severe sanction “rather than a milder disciplinary measure” is

appropriate, a court should consider “the effect of a [party’s]

contumacious conduct on the court’s docket, whether the [party’s]

behavior has prejudiced the [opposing party] and whether

deterrence is necessary to protect the integrity of the judicial

system.”       Id.   Then, if imposing a severe sanction, the court

should “either make a finding supported by the record that the

more severe sanction is necessary to avoid prejudice to [the

opposing party] or to the court’s calendar . . . or -- if the

sanction is based only on deterring future discovery misconduct

-- the more severe sanction must be supported by a finding of

flagrant or egregious misconduct by the” sanctioned party.2        Id.

at 809.

     Bonds also cautions that a preclusion sanction may be so

severe as to be litigation-ending, even if it is not described as

such.       The district court in Bonds precluded the defendant “from

offering any fact witnesses at trial as a discovery sanction” for


        2
      In appropriate situations, a court also may find that a
severe sanction is necessary to prevent some benefit to the
sanctioned party. Bonds, 83 F.3d at 809. The magistrate judge
did not base the sanction at issue on any finding that such a
sanction was necessary to avoid a benefit to the defendant.
                                  -28-

“failing to respond in a timely manner to an interrogatory

requesting the names of all persons with knowledge of relevant

events regarding the class action and then providing an

inadequate response.”    Id. at 803-04.      Although recognizing that

“the [broad] preclusion order did not operate with such assured

effect as a default judgment[,]” the court of appeals nonetheless

found that such a sanction “approach[ed] a default judgment in

its severity.”   Id. at 808-09.    The court explained that

“resolution of the plaintiffs’ sexual harassment and retaliation

claims was likely to depend on the credibility of conflicting

witnesses and the jury’s evaluation of [the defendant’s]

employees’ motives.”    Id. at 808.      As a result, while it was

“true that the [defendant] could still introduce documentary

evidence and expert testimony, counter-designate portions of

deposition testimony introduced at trial, cross-examine the

plaintiffs’ witnesses, and make opening and closing arguments[,]”

the preclusion order was still a severe sanction resulting in a

“one-sided trial” where the defendant was left “with little

ability to contest the plaintiff’s claims.”        Id. at 808-09.    Upon

reviewing the district court’s finding of prejudice to the

plaintiffs and the court, and the need for deterrence, the Bonds

court found that the district court’s findings were insufficient

to persuade the court that lesser alternative sanctions would

have been ineffective.    Id. at 813.
                               -29-

     In imposing the sanction at issue, the magistrate judge

intended that the chosen sanction neither be “‘litigation-

ending,’” nor “‘approach[] a default judgment’ . . . nor den[y]

Defendant the right to a trial on the merits.”   Moore, 255 F.R.D.

at 32 n.34, 33 n.36, 37 (quoting Bonds, 93 F.3d at 808) (first

alteration in original).   Nonetheless, recognizing the

defendant’s “concerns that the sanction . . . is akin to a

default,” id. at 33 n.36, the magistrate judge applied the Bonds

framework when considering whether to impose a severe sanction

and made findings that the defendant’s conduct caused prejudice

to the plaintiffs and disrespected the court, and there was a

need to deter the defendant’s willful violation.

     A.   Prejudice to the plaintiffs

     The magistrate judge held that the defendant’s “failure to

timely search for and serve the documents responsive to

Plaintiffs’ requests for production of documents . . . has

prejudiced Plaintiffs’ ability to conduct meaningful discovery

and to prepare to address the merits of their claims.”3   Moore,


     3
      The magistrate judge also noted that the defendant argued
that the plaintiffs premised their argument “‘on the assumption
that there is a huge cache of responsive paper recommendation
documents previously undisclosed by defendant that is essential
to [P]laintiffs’ case.’” Id. at 34 (quoting Def.’s Proposed
Findings ¶ 34, at 90) (alteration in original). The magistrate
judge expressly rejected the defendant’s claim that the
plaintiffs’ advanced this argument and disavowed making any
finding with respect to the “volume of withheld documents[,]”
reasoning that volume of withheld documents is not dispositive
when determining an appropriate sanction under Rule 37. Id.
                                -30-

255 F.R.D. at 33.   In reaching this conclusion, the magistrate

judge found that the defendant “failed even to commence a

reasonable search for the full extent of the documents responsive

to [the plaintiffs’ requests] until sixteen months after the

requests were served,” and that even a year after she entered her

compulsion order, she could not find that “a reasonable search

for the full extent of the responsive documents ha[d] been

undertaken.”   Id. at 33.   Moreover, the magistrate judge found

that the plaintiffs have been “‘required to waste time, money,

and effort in pursuit of cooperation[.]’”      Id. (quoting Gallina

v. Wyandotte Police Dep’t, No. 4:07-CV-12640, 2008 WL 5090551, at

*2 (E.D. Mich. Nov. 26, 2008)).    The defendant objects to the

magistrate judge’s finding that the plaintiffs have suffered

prejudice, contending that the magistrate judge gave insufficient

consideration to “whether the putative undisclosed documents must

be essential, important, or even relevant to plaintiffs’ claims”

and that, as evidenced by the plaintiffs’ filing of their motion

for class certification, there was no “evidence that plaintiffs

have been unable to pursue their claims with the mountains of

discovery produced by defendant.”      (Def.’s Obj’ns at 35, 37.)   In

addition, the defendant alleges that the magistrate judge failed

to cite evidence supporting the conclusion that the plaintiffs

have been required to waste time, money, and effort.      (Id. at

36.)
                                 -31-

     First, as a matter of law, a court does not examine the

merits of a case when determining whether to certify a class

under Rule 23.   Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir.

1987).   The fact that the plaintiffs have been able to file a

class certification motion does not demonstrate that the

defendant’s violation of the court’s order compelling a search

did not prejudice the plaintiffs’ ability to conduct discovery

and prepare their case on the merits.

     Moreover, regarding the defendant’s allegation that the

magistrate judge gave insufficient consideration to the

plaintiffs’ need for undisclosed documents, the magistrate judge

considered and found that the plaintiffs carried their burden of

demonstrating that there are responsive decisionmaker documents

not produced that are relevant to the plaintiffs’ preparation of

the merits of their case.   Moore, 255 F.R.D. at 34.   There was a

substantial evidentiary basis for the finding that undisclosed

responsive documents regarding decisionmakers’ promotion

decisions existed.   Inspector Kuhn declared that while the agency

does not generally consider as official records that the agency

maintains as business records individual emails that individual

supervisors send bearing promotion recommendations (Kuhn Decl.

¶ 3 (Doc. # 498-15)), he testified that he knew from personal

experience that individual supervisors do email such

recommendations to each other.    (Tr. of Jan. 10, 2008 Evid’y Hrg.
                               -32-

at 184-85.)   Nine of those very supervisors testified that they

sent (Pls.’ Evid’y Hrg. Exhs. 49 at 123-24, 52 at 53, 59 at 106,

65 at 93-95; Tr. of Mar. 6, 2008 Evid’y Hrg. at 33 (testimony of

Dunlap, Carey, Pickle, Dowling, Bryant)) or received (Pls.’

Evid’y Hrg. Exhs. 50 at 90, 58 at 187, 63 at 222, 64 at 55, 66 at

48-49 and 233 (testimony of Spriggs, Riggs, Truscott, Samway,

Bauer)) such recommendations by email.   A critical question in

any discrimination action is whether the alleged disparity

between plaintiffs and other similarly-situated individuals or

groups was the result of unlawful discrimination.    See Brady v.

Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir.

2008).   Evidence demonstrating individual decisionmakers’ reasons

for promotions or nonpromotions is highly relevant to the

plaintiffs’ individual and potential class claims.   While a

pattern and practice class action relies on statistics to

demonstrate the class-wide injury, anecdotal evidence is

permitted and useful to bring “the cold numbers convincingly to

life.”   Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,

339 (1977); see also Arnold v. U.S. Postal Serv., 863 F.2d 994,

999-1000 (D.C. Cir. 1988); Segar v. Smith, 738 F.2d 1249, 1277-78

(D.C. Cir. 1984); Valentino v. U.S. Postal Serv., 674 F.2d 56,

71-72 (D.C. Cir. 1982).   Here, the plaintiffs’ document requests

sought to capture the reasons for particular decisions to promote

or not promote agents which are highly relevant to establishing
                               -33-

an employer’s discriminatory motive.   Given that the defendant

has failed to fully comply with the obligation to locate and

produce these relevant decisionmaker documents, and the finding

that this failure continued a pattern and practice of obduracy in

discovery production, the magistrate did not err in finding that,

despite the significant volume of discovery already produced, the

plaintiffs have been prejudiced by the defendant’s failure to

search adequately for and produce decisionmaker documents.4

Similarly, the defendant’s suggestion that the magistrate judge

had no basis to conclude that the plaintiffs wasted time, money,

and effort in pursuit of the defendant’s cooperation lacks merit.

The plaintiffs filed and successfully litigated a motion to

compel the defendant to conduct reasonable searches for

documents, and yet, as is discussed above, the plaintiffs still

have not received the defendant’s full cooperation.   The

plaintiffs engaged in months of inevitably costly discovery

efforts lacking the documents that could have sharpened or sped

their inquiries.   The magistrate judge’s finding that the




     4
      Further, an ability to assess the volume and value of
documents that the defendant has not yet adequately searched for
and produced cannot otherwise stand in the way of assessing the
degree of prejudice to the plaintiffs. It would not be
inappropriate to resolve against the defendant any uncertainty
regarding the volume and value of these documents since it was
the defendant’s failure to adequately search for and produce all
responsive documents that impeded full evaluation of them.
                                -34-

defendant’s conduct has caused prejudice to the plaintiffs is not

faulty.

     B.   Deterrence and impact on court

     The magistrate judge concluded that the defendant “has made

a mockery of Rule 34, the case management orders of the court,

the order granting Plaintiffs’ motion to compel, and the

evidentiary hearing.”   Moore, 255 F.R.D. at 35.   The magistrate

judge found that the defendant’s conduct at the evidentiary

hearing constituted “substantial and prejudicial obduracy[,]”

amounting to a willful, bad faith attempt to “justify [the

defendant’s] production of only those documents [she] was

inclined to produce.”   Id.   Specifically, the magistrate judge

found that Hunnicutt’s testimony lacked credibility and candor.

The magistrate judge also found that “the court’s ability to

conduct an orderly and efficient evidentiary hearing was further

compromised by Defendant’s inability to call all of the

witnesses” who were expected because at least one witness decided

to circulate an e-mail with a press account about Hunnicutt’s

testimony “to other witnesses whose names were included on

Defendant’s witness list.”5   Id. at 29-30, 35.


     5
      When discussing imposing a sanction to avoid “prejudice to
the court,” the D.C. Circuit has focused on potential prejudice
to the court’s calendar -- that is, where, absent an appropriate
sanction, a party’s misconduct would “put an intolerable burden
on a district court by requiring the court to modify its own
docket and operations” and require the court to “expend
considerable judicial resources in the future in addition to
                               -35-

     The defendant disputes the finding of an injury to the court

because the defendant was not required to document her searches

and because the witnesses who were not called were not identified

by the magistrate judge or the plaintiffs as necessary to the

evidentiary hearing.   (Def.’s Obj’ns at 37-38.)   While the

defendant was not obligated to document her searches in any

particular manner, a party vowing to demonstrate her absolute

compliance with a court order should carry some responsibility to

refrain from presenting testimony lacking candor.    As is noted

above, the defendant has shown no fault with the finding that

Hunnicutt lacked candor and credibility.   Regarding the

defendant’s objection to the magistrate judge’s finding that the

court was harmed by the defendant’s disregard of the rule on

witnesses, defense counsel conceded that she did exclude

witnesses who had been inappropriately exposed to press coverage

of the evidentiary hearing.   Moore, 255 F.R.D. at 29 (quoting

Feb. 25 Evid’y Hrg. Tr. at 266-68).   Contrary to the defendant’s

unsupported objection, the magistrate judge had a reasonable


those it has already wasted[.]” Shea v. Donohoe Constr. Co.,
Inc., 795 F.2d 1071, 1075-76 (D.C. Cir. 1986). While the
magistrate judge characterized as evidence of “prejudice to the
judicial system” her findings that the defendant willfully made a
mockery of the federal rules and the court’s orders and
interfered with the court’s ability to conduct an efficient
evidentiary hearing, these findings are as appropriately
considered as reasons for sanctioning the defendant under a
“deterrence and punishment” rationale -- that is, where there is
a “need to sanction conduct that is disrespectful to the court
and to deter similar misconduct in the future.” Id. at 1077.
                               -36-

basis to infer that the defendant’s management of potential

witnesses compromised the court’s ability to conduct an efficient

hearing because the defendant admitted that her presentation of

evidence was affected by her agents’ inappropriate exposure to

press reports.6   Accordingly, it was not error for the magistrate

judge, having found that the defendant presented a witness who

lacked credibility and failed to prevent contamination of

potential witnesses, to conclude that the defendant’s conduct was

disrespectful to the court.

     In finding a need to deter similar misconduct in the future,

the magistrate judge found a severe such sanction was necessary

because a “‘lesser sanction may also yield similar misconduct by

other litigants by indicating that flagrant violations will yield

only minor sanctions.’”   Moore, 255 F.R.D. at 35 (quoting Perez

v. Berhanu, 583 F. Supp. 2d 87, 91 (D.D.C. 2008)).   In assessing


     6
      In discussing the defendant’s alleged violations of the
rule on witnesses, the magistrate judge concluded that the
defendant “failed to instruct the potential witnesses to refrain
from reading press reports of testimony elicited during the
hearing[,]” and that after learning that an agent transmitted a
newspaper article to potential witnesses, “counsel for the
Defendant saw fit to do absolutely nothing[.]” Moore, 255 F.R.D.
at 30. It is apparent, though, that the magistrate judge did not
mean that defense counsel’s efforts to comply with the rule on
witnesses were non-existent. The magistrate judge accepted as
credible the testimony of Mays and Gavin who each explained that
he did not read the e-mailed article regarding Hunnicutt’s
testimony because defense counsel had instructed him not to read
public accounts of the hearing. Id. at 28-29. In addition, the
magistrate judge found that defense counsel made efforts to
investigate the scope of Mays’ and Gavin’s exposure to the e-
mailed article. Id. at 29.
                                -37-

what sanction would be just and proportional to remedy the harms

caused by the defendant’s violation and to deter future discovery

misconduct, the magistrate judge observed that the court’s

previous attempts to remedy defendant’s conduct through lesser

corrective actions, including prior orders compelling discovery,

monetary sanctions, and a sanction precluding the defendant from

using certain evidence not timely disclosed to the plaintiffs,

proved insufficient to deter the defendant from “disregard[ing]

[her] discovery obligations.”   Id. at 36.

     The defendant objects to the magistrate judge’s reliance on

the multiple lesser sanctions previously imposed by the court as

justification for the need for the preclusion sanction at issue.

The defendant contends that because her objections to two of the

three previous sanction orders were pending at the time the

magistrate judge issued the sanction at issue, it was “manifestly

unfair and premature for the Magistrate Judge to sanction [the]

defendant based on rulings” still subject to review by the

district court.   (Def.’s Obj’ns at 39.)   A pending review of

prior lesser sanctions does not obligate a magistrate judge to be

blind to prior findings of misconduct and whether her imposition

of previous, lesser sanctions was insufficient to deter the

defendant’s subsequent discovery misconduct.    The defendant’s

argument is of particularly little weight here since the

magistrate judge’s two previous sanctions orders, although
                                 -38-

slightly modified, have been largely upheld in substance.    See

Moore v. Napolitano, Civil Action No 00-953 (RWR/DAR), 2009 WL

2450280 (D.D.C. Aug. 7, 2009).

     C.   Proportionality/no lesser alternative

     In concluding that the instant preclusion sanction is

“‘just,’ and is ‘guided by the concept of proportionality between

offense and sanction[,]’” the magistrate judge “considered the

extent to which ‘less dire alternatives have been explored

without success’ or would obviously prove futile[.]”   Moore, 255

F.R.D. at 36 (quoting Bonds, 93 F.3d at 808) (internal quotation

marks omitted).   The magistrate judge determined that the instant

preclusion sanction was “not ‘litigation-ending[,]’” but

nonetheless significant enough to remedy the defendant’s

violation.   Id. (quoting Bonds, 93 F.3d at 808).   The defendant

alleges that the magistrate judge erred in imposing a severe

sanction akin to a litigation-ending default judgment, and

alleges that an appropriate sanction, if any, would be a “re-

opening of discovery, allowing plaintiffs to supplement their

motion for class certification, and a division of costs for

adjudicating plaintiffs’ motion to compel.”   (Def.’s Obj’ns at

44-45.)

     For all of the reasons discussed above, including the

defendant’s history of protracted recalcitrance during discovery,

the failure of previous, lesser sanctions to deter subsequent
                                -39-

violations, the resulting prejudice to the plaintiffs, and the

need to deter the defendant’s willful conduct, the magistrate

judge had an adequate basis for rejecting the defendant’s

suggestion that the appropriate sanction would be to give the

defendant yet a third opportunity to comply with her latest

discovery obligations, and had an adequate basis for imposing a

significant sanction in response to the defendant’s violation of

the order compelling a reasonable search for responsive

documents.    Her conclusion was, in essence, that enough is

enough.   That conclusion was fair at this stage in the

litigation.    Since the magistrate judge’s intent was that the

preclusion sanction imposed not be litigation-ending, the

sanction will be construed not to prevent the defendant from

offering any defense to any prima facie case of discriminatory

non-promotion.    Rather, the defendant will be precluded from

offering any legitimate, nondiscriminatory reason to rebut any

prima facie case of disparate treatment discriminatory

nonpromotion of the individual named plaintiffs.

     Construing the sanction in this manner tailors a

proportional remedy to the alleged harm, and does not produce an

unsupported litigation-ending sanction.    It is the individual

named plaintiffs whose time, energy and resources have been most

frustrated by the defendant’s discovery misconduct and most

compromised in the effort to gather anecdotal evidence in support
                               -40-

of their discriminatory nonpromotion allegations.   And as Bonds

recognized, defendants would have multiple methods available for

mounting a defense against the individual named plaintiffs’

promotion discrimination claims: denying the factual accuracy of

plaintiffs’ evidence, attacking the credibility of plaintiffs’

witnesses under Federal Rules of Evidence 602, 607, 608, 609, 613

and others; attacking the sufficiency of plaintiffs’ prima facie

evidence in opening statements and closing arguments and under

Federal Rule of Civil Procedure 50, and others.   Unlike the Bonds

plaintiffs, however, plaintiffs here present a protracted history

of repeated discovery misconduct by a defendant warranting a

severe preclusion sanction.

     Moreover, in a pattern and practice case, a plaintiff class

seeking to carry its prima facie burden of offering evidence

adequate to create an inference of discrimination will usually

provide statistical evidence showing a disparity between the

position of the class members and other similarly-situated

individuals, and may also present anecdotal evidence to show that

the statistical disparity is the result of unlawful

discrimination.   Segar, 738 F.2d at 1267; Arnold, 863 F.2d at

999-1000.   Once plaintiffs have established their prima facie

case of discrimination, there are two ways an employer-defendant

can seek to rebut the plaintiffs’ case.   First, “[t]he employer

can endeavor to refute the plaintiffs’ claim that a disparity
                                -41-

exists” by “[c]hallenging the accuracy or significance” of the

plaintiffs’ statistical showing.    Segar, 738 F.2d at 1267-68.

Alternatively, a defendant can present an “explanatory defense”

“to show that any observed disparities between plaintiffs and

[another] group did not result from discrimination violative of

Title VII.”   Id. at 1267-68.   Under a disparate treatment theory,

the defendant will offer “a legitimate, nondiscriminatory

explanation for the disparity” such as “some additional job

qualification . . . that the plaintiff class lacks.”       Id. at

1268.   Under a disparate impact theory where the plaintiffs have

linked the alleged disparity to a particular business practice,

the defendant will seek to prove “the business necessity of the

practices causing the disparity.”      Id. at 1270.   Although the

defendant will be precluded from offering a legitimate,

nondiscriminatory reason for any discriminatory nonpromotion that

the individual named plaintiffs establish that they suffered, she

may defend against the plaintiffs’ statistical showing by either

attacking the accuracy of the plaintiffs’ statistical showing or

presenting competing statistical evidence to refute the

significance of the plaintiffs’ showing.

                       CONCLUSION AND ORDER

     Based on all of the evidence presented, it was not clearly

erroneous for the magistrate judge to find that the defendant

violated the discovery order compelling the defendant to conduct
                                -42-

a reasonable search for and produce responsive documents.

Furthermore, the defendant has shown neither that the magistrate

judge erred in imposing sanctions under Rule 37 for the

defendant’s failure to reasonably search for and produce

responsive documents nor that the magistrate judge’s imposition

of costs was unjust.    The preclusion sanction will be construed

to preclude the defendant from offering any legitimate, non-

discriminatory reason to rebut any prima facie case of disparate

treatment discriminatory nonpromotion of the individual named

plaintiffs.    Accordingly, it is hereby

     ORDERED that the defendant’s objections [605] to the

magistrate judge’s imposition of sanctions be, and hereby are,

OVERRULED.    The defendant is precluded from offering any

legitimate, non-discriminatory reason to rebut any prima facie

case of disparate treatment discriminatory nonpromotion of the

individual named plaintiffs.

     SIGNED this 15th day of July, 2010.



                                        /s/
                                RICHARD W. ROBERTS
                                United States District Judge
