                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                                 No. 01-11401



RANDOLPH VINTON HAAS,
                                                 Plaintiff-Appellee,

                                    versus

S.O. WOODS, JR.; ET AL,
                                                 Defendants,

S.O. WOODS, JR.; VICTOR RODRIGUEZ;
BRYAN COLLIER,
                                                 Defendants-Appellants.



             Appeal from the United States District Court
                  For the Northern District of Texas
                           (3:99-CV-2734-D)

                              November 7, 2002


Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.

PER CURIAM:*

      As a sanction for a discovery violation, the trial judge

struck defendants’ motion for summary judgment based on qualified

immunity and ordered the case to trial.                The magistrate judge

volunteered that the ruling would not bar its consideration of

defendants’ claim in a motion for judgment as a matter of law.



      *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
      The discovery issue arose when defendants produced material

documents on the day the plaintiff’s response to defendants’ motion

for summary judgment was due, production that had been ordered at

an early stage in discovery.     At a hearing of plaintiff’s motion

for   sanctions   the   magistrate   judge    concluded   that   the   late

production prejudiced the plaintiff and frustrated its “efficient”

handling of the motion for summary judgment.        Impatient with this

development he stated:

      But the reality of this case and the way it’s progressed
      is that, quite frankly, folks, I can try this thing
      faster than I can messing around with the summary
      judgment evidence and all the fallout caused by the
      failure to timely produce these documents.       We will
      proceed to trial, and we will proceed to trial promptly.


      There had been no previous sanctions or warnings, and the

failure to produce was not found to have been willful.           Nor is it

clear that the late production materially delayed consideration of

the motion for summary judgment.         Moreover, the order ignored the

realities of its ruling – producing this appeal and possibly a

second before any “prompt” trial could be held. Significantly, the

magistrate judge failed to consider sanctions less severe than

denying a component of the defense – freedom from trial itself.

For example, if punishment was the objective, the obvious response

would have been to order that defendants bear the expense of any

additional discovery occasioned by the late production.          And as we

observed, if avoiding delay in trying the case was the objective,



                                     2
the chosen sanctions had the opposite effect of protracting what

should have been a simple matter.       It was the judge’s obligation to

consider the least severe and effective sanction.         The record does

not reflect that this was done.          And on its face striking the

defendants’ motion for summary judgment based on qualified immunity

defense is disproportionate to the discovery error.

     We   vacate   the   order   dismissing   in   part   the   defense   of

qualified immunity and remand the case for further proceedings.

This includes the determination of an appropriate sanction, any

additional discovery, and consideration of any motion for summary

judgment asserting the defense of qualified immunity.

     VACATED and REMANDED.




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