                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA




 In the Matter of the
 FORT TOTTEN METRORAIL CASES
 Arising Out of the Events of June 22, 2009


 LEAD CASE: Jenkins v. Washington
 Metropolitan Area Transit Authority, et                 Case No. 10-MC-314 (RBW/JMF)
 al.,


 THIS DOCUMENT RELATES TO:
 ALL CASES




                                MEMORANDUM OPINION

       This case was referred to me for resolution of discovery disputes. Currently pending and

ready for resolution is Defendant ARINC Incorporated’s Motion for Sanctions Against

Defendant WMATA [#423]. For the reasons stated herein, the motion will be denied.

                                      BACKGROUND

       The collision between two Washington Metropolitan Area Transit Authority

(“WMATA”) trains occurred on June 22, 2009, and a lawsuit pertaining to it was filed within

two days. Software called the Advance Information Management (“AIM”) system had been

installed by ARINC and plaintiffs named ARINC as a defendant in the complaint. See Master

Complaint [#5]; Defendant ARINC Incorporated’s Memorandum of Points and Authorities in

Support of Motion for Sanctions Against Defendant WMATA [#423-1] at 2. On December 17,

2010, WMATA asserted a cross claim against, inter alia, ARINC for indemnity and contribution.
Defendant Washington Metropolitan Area Transit Authority’s Cross-Claim Against Defendants

Alstom Signaling, Inc., Ansaldo Sts USA, Inc., and ARINC Incorporated [#140].

        On April 1, 2011, Judge Walton set April 15, 2011, as the deadline for production of

documents. Amended Scheduling Order [#234]. Nevertheless, WMATA continued to produce

documents well after that date in response to demands by the parties, including ARINC. [#423-1]

at 4.

        On August 10, 2011, ARINC took the deposition of a man named Daniel Epps, III, a

WMATA employee who served as the Director of the Operations Control Center where

ARINC’s software, the AIM system, is in use. [#423-1] at 4. Eppps indicated that another

WMATA employee named Beck Pak had the responsibility to make recommendations pertaining

to a Business Process Review conducted by an ARINC subcontractor in connection with the

design and implementation of the AIM system. Id.

        ARINC had previously placed WMATA’s production of documents into a database. Id. at

4. After Epps’ deposition, ARINC searched its database to find some documents referencing Pak

and those that did, came for the most part, from ARINC’s own production. Id. ARINC inquired

of WMATA whether it had collected and produced documents from Pak’s file. Id. at 4-5. While

WMATA investigated, ARINC looked in the database for the files of other WMATA employees,

Arturo Weldon, Robert Gholston, III, and then later Milton Jetter, after WMATA indicated that

Jetter was a contract specialist who had dealt with the contract between ARINC and WMATA.

Id. at 5.

        On September 22, 2011, ARINC contacted WMATA about its concerns regarding how

few documents had been produced as to these individuals and on September 29, 2011, the day


                                                2
before all discovery was to close, WMATA indicated that it was in the process of collecting the

documents pertaining to these individuals. Id. at 6. WMATA also indicated that it had identified

another employee, Ashak Rajpal, who was a contracting officer for the “WMATA ROCS/AIM

upgrade.” Id.

       According to ARINC, from September 30, 2011, to October 14, 2011, WMATA made

eight document productions, consisting of almost 300,000 pages of documents, and that when

ARINC filed the current motion, it was still awaiting the production of additional documents.

[#423-1] at 8. Having filed its motion for summary judgment on November 11, 2011, without

certain documents, ARINC claims that it has been prejudiced by having to proceed without them.

Id. at 8-9, 16. It urges that WMATA be precluded from using these documents while ARINC is

permitted to use them, and that the jury be instructed that it may draw an adverse inference from

WMATA’s late production. Id. at 23. Finally, ARINC demands that it be paid its attorney’s fees

and costs for having to file the motion. Id. at 23-24.

       In its opposition to ARINC’s motion, WMATA supplements the history of this dispute by

recounting its responses to the discovery demanded by plaintiffs and its fellow defendants. See

WMATA’s Opposition to ARINC Incorporated’s Motion for Sanctions [#463]. First, WMATA

notes that it had to respond simultaneously to the discovery demands of the plaintiffs and its co-

defendants. [#463] at 4. With the concurrence of plaintiffs, “WMATA created seven general

categories of requested materials to classify responsive documents” and used this approach “to

address countless complications presented by the requests for documents from the co-

defendants.” Id. Because WMATA and ARINC shared an e-discovery vendor, WMATA

indicated that it was not asked and therefore did not provide the names of the “custodians” of the


                                                  3
produced discovery since it believed that ARINC had equal access to those names. Id. at 5.

WMATA ultimately produced more than 3 million pages of documents (id. at 4) and insists that

“[T]housands of pages of documents naming the five individuals named in ARINC’s motion [for

sanctions] were produced before ARINC raised this discovery dispute.” Id. at 5.

       On July 16, 2010, ARINC served its answer to the First Amended Master Complaint

[#35] and specified, as its eighth defense, the government-contractor defense. Defendant ARINC

Incorporated’s Answer to the First Amended Master Complaint [#62] at 48. ARINC now cites

this defense as a basis for its motion for summary judgment against the plaintiffs, arguing that

ARINC partakes of the sovereign immunity afforded WMATA because it was WMATA’s

contractor. See Defendant ARINC Incorporated’s Reply to WMATA’s Opposition to Motion for

Sanctions [#491] at 7; Defendant ARINC Incorporated’s Motion for Summary Judgment [#428].

       In its initial disclosure, ARINC identified 33 current or former WMATA employees as

witnesses with information related to ARINC’s claims and defenses. WMATA’s Opposition to

ARINC Incorporated’s Motion for Sanctions [#463] at 6. Included in that list were 1) Robert

Ghoulston, 2) Beck Pak, and 3) Arturo Weldon, three of the potential witnesses who were the

subject of ARINC’s inquiries in September, 2011. Id. As to these three people, ARINC indicated

that they had knowledge and information regarding: “(i) performance of the ROCS Contract; (ii)

the design of the AIM product for WMATA; and (iii) communications with ARINC personnel

regarding the development, testing, cutover, and/or installation of the AIM software for

WMATA.” Id. ARINC further indicated in its initial disclosure that it would rely on contracts

between itself and WMATA in support of its government contractor defense and that one of

those agreements, dated October 23, 2004, states that notices are to be sent to Jetter and that the


                                                 4
agreement is signed by Rajpal. Id. at 7.

       WMATA responded by producing eight witnesses “who testified with regard to

WMATA’s use of the AIM system, the contract with ARINC and the related Business Process

Review, during thirteen days of depositions.” Id. WMATA also permitted the inspection of the

“Operations Control Center (where the central computer system using the AIM system is

operated) over two days.” Id. Ultimately, WMATA produced 3,348,483 pages of electronically

stored information while ARINC produced 2,476,363 pages, to which both sides applied an

electronic records system to sort, group, and digest. Id. at 8.

       According to WMATA, in the late summer of 2011, ARINC sought discovery of

documents pertaining to Pak, Walden, Jetter, and Ghoulston. [#463] at 9. On August 8, 2011,

ARINC also served a notice of a Rule 30(b)(6) deposition. Id. WMATA responded to the

demand by producing responsive, non-privileged documents related to Pak and Weldon on

September 30, 2011. Id. at 10. WMATA also identified three witnesses it intended to produce

for the 30(b)(6) deposition: 1) Pak, 2) Tim Shoppa, and 3) Rajpal. Id. WMATA also produced

electronically stored information from Ghoulston’s hard drive, explaining that only

approximately 20% of the 23,600 documents on that hard drive would be responsive. Id. at 11.

Finally, “WMATA also agreed to produce additional witnesses for depositions and designated

testimony previously provided by its witnesses to respond to several other issues raised in

ARINC’s notice of deposition.” Id. WMATA complains, however, that “ARINC never provided

a listing of key documents and categories of documents it sought in the discovery dispute” and

furthermore, that, although WMATA completed its supplemental productions by November 4,

2011, ARINC “has not requested dates for the designated 30(b)(6) witnesses, and has not


                                                  5
formally responded to WMATA’s offer to designate testimony of witnesses in response to

several topics in ARINC’s 30(b)(6) notice of deposition.” Id.

       In its reply, ARINC’s insists that WMATA’s production in September of 2011 was late,

and that it should have produced the documents from these “key custodians” in its original

production because their production was clearly called for in the request for documents that

ARINC served in August of 2010. Defendant’s ARINC Incorporated’s Reply to WMATA’s

Opposition to Motion for Sanctions [#491] at 1-4. ARINC further claims that it was prejudiced

because had it had the documents sooner it could have done additional follow up discovery

during the discovery period and then used the documents produced and perhaps other

information developed therefrom in the motion for summary judgment it has now filed. Id. at 8.

                                            ANALYSIS

       First, and to clear away some brush, I must dispose of arguments that ARINC made in its

opening brief but does not address in its reply.

       In its opening brief, ARINC argued that WMATA failed in its obligation to preserve

certain records, ignoring the principles that are applied when a party, through inadvertence or

with a nefarious intent, causes the loss of electronically stored or other information. In its

opposition, WMATA explained that every document ARINC demanded was produced, even

though WMATA had to restore data from back-up tapes in order to do so. ARINC did not

quarrel with WMATA’s statement in its reply and WMATA has convinced me that it lost

nothing that ARINC demanded. There being no evidence of any loss of data, the complicated

principles pertaining to preservation and spoliation do not, thankfully, have to be considered.

       Second, ARINC argued in its opening brief that sanctions were appropriate because of


                                                   6
WMATA’s alleged failure to comply with its obligation to make the initial disclosures required

by Rule 26(a)(1). WMATA responded that the government contractor defense asserted in

ARINC’s answer, which would ultimately become the basis of its motion for summary judgment,

is not a claim or defense that WMATA has asserted or will assert. Thus, WMATA had no

responsibility to produce discoverable information as to that defense.

       Federal Rule of Civil Procedure 26 provides in pertinent part:

               (A)     . . . [A] party must, without awaiting a discovery request,
                       provide to the other parties:
                       (i)      the name . . . of each individual likely to have
                                discoverable information–along with the subjects of
                                that information–that the disclosing party may use
                                to support its claims or defenses, unless the use
                                would be solely for impeachment;
                       (ii)     a copy–or a description by category and location–of
                                all documents, electronically stored information,
                                and tangible things that the disclosing party . . . may
                                use to support its claims or defenses, unless the use
                                would be solely for impeachment;

Fed. R. Civ. P. 26(a)(1).

       WMATA points out that ARINC’s government contractor defense is not a defense or

claim that WMATA is asserting and that therefore this rule did not apply to its initial disclosure.

[#463] at 1. ARINC responds to this argument by stating the following in a footnote:

               . . . The discovery rules, however, do not offer this kind of
               insulation. The rules require the production of requested
               documents that are relevant to “any party’s claim or defense,” not
               just those claims or defenses that pertain specifically to the
               producing party. Fed. R. Civ. P. 26(b)(1).


[#491] at 7 n.1.

       But, the rule cited by ARINC in its footnote is not the rule that pertains to initial


                                                  7
disclosures. Rule 26(b)(1) defines the scope of discovery in general and not the scope of the

required initial disclosures under Rule 26(a)(1). Indeed, if ARINC’s argument were accepted,

the latter would read with the “amendment” shown in italics as follows:

               (A)     . . . [A] party must, without awaiting a discovery request,
                       provide to the other parties:
                       (i)      the name . . . of each individual likely to
                                have discoverable information–along with
                                the subjects of that information–that the
                                disclosing any party may use to support its
                                claims or defenses, unless the use would be
                                solely for impeachment;
                       (ii)     a copy–or a description by category and
                                location–of all documents, electronically
                                stored information, and tangible things that
                                the disclosing any party . . . may use to
                                support its claims or defenses, unless the use
                                would be solely for impeachment;

       This would impose an extraordinary new obligation on the parties to a lawsuit and

ARINC’s contention that Rule 26(a)(1) should be read to impose it cannot be countenanced.

       Since the initial disclosure rule cannot serve as the basis of a sanction, the only rule-based

sanction available to ARINC would be if WMATA’s assertedly late response violated a court

order. See Fed. R. Civ. P. 37(b). Of course, WMATA never violated any court order. Indeed,

the only court order pertaining to this controversy is Judge Walton’s order that all written

discovery be completed by April 15, 2011. Ironically, ARINC violated a court order by

demanding additional discovery in September 2011, in direct violation of Judge Walton’s

scheduling order and without ever seeking leave to do so. Thus, ARINC finds itself in the

strange position of demanding sanctions for an opposing party’s lateness in responding to

discovery that ARINC should have not propounded in the first place. It would be a perverse



                                                 8
reading of the Federal Rules of Civil Procedure to sanction WMATA for ARINC’s claim that

WMATA failed to aid ARINC in violating a court order in order to secure discovery that ARINC

should not have had.

       Rule based sanctions not being available, ARINC is left to invoke the inherent authority

of the court. But, as the court of appeals recently made clear, “To support a sanction under this

authority, the court must make a finding by clear and convincing evidence that Noble committed

sanctionable misconduct that is tantamount to bad faith.” Ali v. Tolbert, 636 F.3d 622, 628 (D.C.

Cir. 2011). Here, there is no claim by ARINC, let alone a showing by clear and convincing

evidence of such bad faith on WMATA’s part.

       Furthermore, in considering the award of a sanction under its inherent authority, the court

must consider, inter alia, the prejudice to the opposing party. Bonds v. District of Columbia, 93

F.3d 801, 808 (D.C. Cir. 1996). Any claim of prejudice to ARINC is, at this point, premature.

First, as ARINC has to concede, if Judge Walton grants its motion for summary judgment,

accepting its governmental contractor defense on the present record, ARINC has not suffered any

prejudice whatsoever. Second, I see no reason why ARINC cannot now move Judge Walton to

be permitted to supplement its motion with additional, recently disclosed information from

WMATA that advances its case. Third, even if its motion is denied, ARINC can still move

Judge Walton in limine or at trial for the preclusion it seeks and, again, if he grants it, ARINC

will not be prejudiced. At this point, the claim of prejudice is so attenuated and hypothetical that

it would be an abuse of discretion to award sanctions. Indeed, the prejudice is so hypothetical

that I question whether the motion even presents a case or controversy rather than an improper

request for an advisory opinion. See Los Angeles v. Lyons, 461 U.S. 95 (1983).


                                                 9
                                     CONCLUSION

      For the reasons stated above, Defendant ARINC Incorporated’s Motion for Sanctions

Against Defendant WMATA [#423] will be denied. An Order accompanies this Memorandum

Opinion.

      SO ORDERED.                                                    Digitally signed by John M. Facciola
                                                                     DN: c=US, st=DC, ou=District of
                                                                     Columbia,
                                                                     email=John_M._Facciola@dcd.uscou
                                                                     rts.gov, o=U.S. District Court, District
                                                                     of Columbia, cn=John M. Facciola
                                                                     Date: 2011.12.19 15:22:58 -05'00'
                                         ____________________________________
                                         JOHN M. FACCIOLA
                                         UNITED STATES MAGISTRATE JUDGE




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