                                        UNITED STATES DISTRICT COURT
                                        FOR THE DISTRICT OF COLUMBIA



 VENACIO AGUASANTA ARIAS, et al.,

              Plaintiffs,
                                                                               Civil Action No. 01-1908
                      v.                                                              RWR/DAR

                                                                               (consolidated with Civil Action No.
 DYNCORP, et al.,                                                              07-1042 for discovery and case
                                                                               management purposes)
              Defendants.




                                  MEMORANDUM OPINION AND ORDER


          Defendants’ Motion for Sanctions Against the Arias/Quinteros Plaintiffs for Violations of

Discovery Orders (“Motion for Sanctions”) (Document No. 176) is pending for determination by

the undersigned.1 Upon consideration of the motion; Plaintiffs’ Opposition to Defendants’

Motion for Sanctions Against the Arias/Quinteros Plaintiffs (“Plaintiffs’ Opposition”)

(Document No. 185); Defendants’ Reply Brief in Support of Motion for Sanctions Against the

Arias/Quinteros Plaintiffs for Violations of Discovery Orders (“Defendants’ Reply”) (Document

No. 186); Defendants’ Supplemental Memorandum of Law in Support of Their January 26, 2010

Motion for Sanctions Against the Arias/Quinteros Plaintiffs for Their Violations of Discovery

Orders (“Defendants’ Supplemental Memorandum”) (Document No. 190); Plaintiffs’

Supplemental Brief in Support of Their Opposition to Defendants’ Motion for Sanctions Against


          1
             Arias, et al. v. DynCorp, et al. (Civil Action No. 01-1908) and Quinteros, et al. v. DynCorp, et al. (Civil Action No.
07-1042) are consolidated for case management and discovery. The document numbers cited herein correspond to the ECF
entries in Arias.
Arias, et al. v. DynCorp., et al.                                                                                                2

the Arias/Quinteros Plaintiffs (“Plaintiffs’ Supplemental Memorandum”) (Document No. 191),

and the entire record herein, the motion will be denied.



BACKGROUND

         Plaintiffs – who now number approximately 3,200 citizens of the Republic of Ecuador –

seek monetary and injunctive relief for personal injuries and property damages allegedly caused

by the actions of Defendants with respect to their contract with the United States to spray

pesticides over cocaine and heroin crops in the Republic of Columbia. See generally First

Amended Consolidated Complaint (Document No. 23).2

         A detailed account of the course of discovery which provides the context in which the

instant dispute arises appears in Arias v. DynCorp Aerospace Operations, LLC, 677 F. Supp. 2d

330 (D.D.C. 2010). Of immediate relevance is the determination of the court, during the

management of discovery, to require that the individual Plaintiffs complete questionnaires

regarding the “factual basis of their claims”. Id. at 332-33.3 The court thereafter required that 20

so-called “test Plaintiffs” be made available to be deposed by Defendants.

         In the pending motion for sanctions, Defendants represent that in October and November,

2009, they took the depositions of the 20 test Plaintiffs, and that during the depositions, “each of

the test [P]laintiffs repeatedly departed from their [sic] earlier sworn Questionnaire responses

regarding the purported factual bases for their [sic] claims . . . and relied instead on new

         2
            The court (Roberts, J.) granted Defendants’ motion for judgment on the pleadings with respect to the claims of the
Ecuadorian provinces of Sucumbios, Carchi and Esmeraldas (collectively, the “provincial Plaintiffs”) on the ground that they
lacked standing to sue. Arias v. DynCorp, No. 07-1042, 2010 WL 3700274, at * (D.D.C. September 15, 2010).

         3
            The court (Roberts, J.) ultimately dismissed with prejudice the Plaintiffs whose questionnaire responses were
incomplete. Id. at 334.
Arias, et al. v. DynCorp., et al.                                                                                                3

allegations of different purported exposures and damages.” Motion for Sanctions at 1.

Defendants submit that “[t]he test [P]laintiffs’ disavowals of the most basic elements of their

prior sworn disclosures . . . makes clear that [they] have willfullly and repeatedly violated Court

Orders over the past two years in which the Court required ‘verified, factual and complete’

disclosures, with the explicit warning of dismissal for noncompliance.” Id. (footnote omitted).4

          Defendants maintain that the “unambiguous violations of the Court’s Orders” by the test

Plaintiffs “require[s] that each of the test [P]laintiffs’ claims be dismissed with prejudice. Id. at

2. In the alternative, Defendants principally ask that if the test Plaintiffs are allowed to proceed

to trial, then “they be precluded from offering any argument to explain away their misconduct

and that the jury be instructed by the Court that the [test Plaintiffs] provided false answers under

oath in their 2008 Questionnaire responses.” Id.5

          Plaintiffs, in their opposition, generally maintain that Defendants have failed to

demonstrate that the imposition of any sanction – particularly the harsh sanction of dismissal – is

warranted. Plaintiffs characterize any discrepancies between the test Plaintiffs’ questionnaire

responses and their deposition testimony as “minor testimonial inconsistencies,” and submit that

a jury “[should be allowed] to make credibility determinations where any testimonial

inconsistencies actually exist.” Plaintiffs’ Opposition at 4; see also id. at 3-16, 21-30, 36;

Plaintiffs’ Supplemental Memorandum at 2-5 (Rule 37 sanctions “are simply not an available




         4
           Defendants further submit that therefore neither they nor the court “can have any confidence in the accuracy of the
Questionnaire responses of the 2.001 other individual [P]laintiffs who remain . . . in these cases.” Id. (footnote omitted).

         5
             Defendants submit that the claims of the remaining individual Plaintiffs should not be allowed to proceed until such
Plaintiffs, among other things, “have provided meaningful assurance that they have provided accurate factual disclosures in their
Questionnaire responses[.]” Id. at 3.
Arias, et al. v. DynCorp., et al.                                                                   4

remedy for any minor . . . inconsistencies between interrogatory responses (or similar

submissions) and deposition testimony.”).

        Defendants, in their reply, submit that Plaintiffs have failed “to rebut” Defendants’

showing that the test Plaintiffs “[h]ave [k]nowingly [v]iolated [t]he Court’s [d]iscovery

[o]rders.” Defendants’ Reply at 6. More specifically, Defendants submit that “[t]he issue is

whether the Court-ordered factual disclosures set forth in each individual test [Plaintiff’s]

Questionnaire response are ‘verified, factual, and complete,’ as the Court has required. They are

not.” Id.; see also Defendants’ Supplemental Memorandum at 2 (“the test [P]laintiffs’ own

deposition testimony revealed material misstatements and omissions in their 2008 Questionnaire

responses,” and that the misstatements and omissions “related to the same foundational facts

that the Court expressly addressed in its discovery orders[.]”).



DISCUSSION

        Defendants rely entirely upon Rule 37 of the Federal Rules of Civil Procedure in support

of their motion for sanctions. While Defendants generally maintain that the test Plaintiffs

“[h]ave [k]nowingly [v]iolated [t]he Court’s [d]iscovery [o]rders[]” (Defendants’ Reply at 6), the

premise of their motion remains the assertion that “the test [P]laintiffs’ own deposition testimony

revealed material misstatements and omissions in their 2008 Questionnaire

responses . . . which related to the same foundational facts that the Court expressly addressed in

its discovery orders[.]” Defendants’ Supplemental Memorandum at 2.

        Rule 37(b)(2)(A) provides for an array of sanctions, including the dismissal of an action

whole or in part. See generally Moore v. Chertoff, 255 F.R.D. 10, 30-32 (D.D.C. 2008), aff’d
Arias, et al. v. DynCorp., et al.                                                                        5
sub nom. Moore v. Napolitano, No. 00-953, 2009 WL 2450280, at *9 (D.D.C. August 7, 2009).

However, the very terms of the rule cabin the court’s authority to impose any sanction pursuant

to Rule 37(b)(2)(A) to an instance in which “a party . . . fails to obey an order to provide or

permit discovery[.]” Robinson-Reeder v. Am. Council on Educ., 262 F.R.D. 41, 43 (D.D.C.

2009); see also Azamar v. Stern, 269 F.R.D. 53, 54-55 (D.D.C. 2010) (imposition of Rule 37

sanctions appropriate “because Stern has repeatedly failed to respond to plaintiffs’ written

discovery requests.”); Perez v. Berhanu, 583 F. Supp. 2d 87, 90 (D.D.C. 2008) (Rule 37

sanctions appropriate “because defendants repeatedly failed to respond to plaintiffs’ written

discovery requests and [one defendant] failed to appear for his deposition.”).

        The undersigned finds that Defendants have failed to demonstrate that the test Plaintiffs

have failed to obey an order directing that they provide discovery. Rather, Defendants utilize

their motion for Rule 37 sanctions as a mechanism by which to address their concern that the

deposition testimony of the test Plaintiffs varied from the questionnaire responses of the test

Plaintiffs. However, the undersigned knows of no authority which supports the proposition that a

court, pursuant to Rule 37, can make determinations regarding which one of two arguably

inconsistent discovery responses is accurate, or otherwise address the credibility of the party who

served the responses.

        Even were the court to find, on the basis of Defendants’ proffers and arguments, that the

test Plaintiffs -- or any one of them -- had willfully violated a discovery order of this court, it is

unlikely that dismissal would be regarded as the appropriate sanction. This Circuit has held that

“dismissal is a sanction of last resort to be applied only after less dire alternatives have been

explored without success or would obviously prove futile.” Bonds v. District of Columbia, 93
Arias, et al. v. DynCorp., et al.                                                                    6
F.3d 801, 808 (D.C. Cir. 1986) (citations and internal quotations omitted); see also Henry v.

Onsa, No. 05-2406, 2008 WL 552627, at *2 (D.D.C. Feb. 27, 2008) (citing Bonds, 93 F.3d at

808) (“[D]ismissal is a severe sanction, and should be restored to only to the extent necessary to

induce future compliance and preserve the integrity of the system[.]”); c.f. Arias, 677 F. Supp.

2d at 332 (dismissing with prejudice the claims of the individual Plaintiffs who failed to submit

completer questionnaire responses “[in violation of] multiple explicit court orders, and no lesser

sanction is appropriate[.]”).


CONCLUSION

        For the foregoing reasons, it is, this 10th day of December, 2010,

        ORDERED that Defendants’ Motion for Sanctions Against the Arias/Quinteros

Plaintiffs for Violations of Discovery Orders (Document No. 176) be DENIED.




                                                                     /s/
                                                      DEBORAH A. ROBINSON
                                                      United States Magistrate Judge
