
USCA1 Opinion

	




                         [NOT FOR PUBLICATION]                    UNITED STATES COURT OF APPEALS                         FOR THE FIRST CIRCUIT                         ____________________No. 97-1892                              JUDY CHENG,                         Plaintiff, Appellant,                                  v.          IDEASSOCIATES, INC., GAUTAM GUPTA AND DAVID HUNTER,                        Defendants, Appellees.                                                            ____________________             APPEAL FROM THE UNITED STATES DISTRICT COURT                   FOR THE DISTRICT OF MASSACHUSETTS           [Hon. Edward F. Harrington, U.S. District Judge]                         ____________________                                Before                        Torruella, Chief Judge,                   Selya and Stahl, Circuit Judges.                         ____________________    Judy Cheng on brief pro se.    Lynne Alix Morrison, Adrienne M. Markham and Goulston & Storrs onbrief for appellees.                         ____________________                             April 9, 1998                          ____________________           Per Curiam.   In this employment discrimination    action, plaintiff appeals the dismissal of her complaint as a    sanction for failure to comply with a discovery order.     Plaintiff allegedly failed to comply with the court's March 31,    1997 order by withholding from her document production    approximately 5,000 pages of diary and calendar entries.  The    diary and calendars were kept by plaintiff for her personal use    and contain, inter alia, a running commentary on things that    plaintiff thought, saw, heard, and did during the employment    period.             Having carefully reviewed the record leading to the    dismissal, it appears that the March 31 order does not    specifically command the production of these documents, but    generally directs plaintiff to respond to defendants' document    request.  The document request, in turn, generally requests    documents about subjects relevant to the issues in suit, but    does not specifically designate these diary and calendar pages.            Plaintiff produced documents in response to the March    31 order, and defendants' demands, including, significantly,    many pages from the personal diary and calendars.  She argues    here, as below, that this production exhausted all documents in    her possession that are "relevant" to the subjects in suit.     Defendants did not refute plaintiff's assertion; rather they    urged that the withheld pages seem "reasonably calculated" to    lead to admissible evidence.               We tred lightly here so as not to intrude on the    district court's broad discretion to manage evolving discovery    demands under Fed. R. Civ. P. 34, nor to substitute our own    view as to any management orders.  This dismissal, however,    cannot stand because it is not authorized by Fed. R. Civ. P.    37(b)(2).  The sanction of dismissal under Rule 37(b)(2) is    authorized only if the order allegedly violated gave notice    that the withholding of the specific material would constitute    a defiance of the order.  R.W. Int'l Corp. v. Welch Foods,    Inc., 937 F.2d 11 (1st Cir. 1991).          [W]hen a court issues a broad-form discovery order,        and the party to whom it is addressed complies with        it somewhat less than fully, withholding documents        arguably outside the order's scope, the district        court cannot dismiss without first entering an order        commanding production of the specific materials.        Id. at 16.             The March 31 order did not unarguably command    production of the specific documents withheld, so the sanction    of dismissal was not authorized.  Plaintiff's arguments at the    June 12, 1997 hearing, where the issue was aired for the first    time, cannot be construed (on the basis of the "cold"    transcript alone) as expressing a determination to violate a    specific production order.             We also find no support for defendant's re-    characterization of the dismissal as one based on a "pattern of    discovery abuses" by the plaintiff.  This ground was not urged    in the district court, and there were no express findings to    that effect.  We cannot readily infer from this record that the    discovery events listed in defendants' brief, even    cumulatively, involved an "abuse" of the process.  See Robsonv. Hallenbeck, 81 F.3d 1 (1st Cir. 1996).  Nothing that we say    here, of course, precludes the district court from considering    any motion based on a supportable pattern of discovery abuse.     Id. at 3.                 Plaintiff's remaining assignments of error, most    significantly the denial of her motions seeking to reinstate    her Equal Pay Act claim, are not properly before us at this    time.  Where the reason for the denial of an amendment is not    obvious from the record, however, we urge the district court to    enter specific, reviewable findings.               Although we do not consider plaintiff's allegation of    judicial bias because it was not raised, ab initio, in the    district court, we think it prudent that, on remand, the case    be reassigned to a judge other than the district court judge to    whom it was originally assigned.  See D. Mass. R. 40.1(i).              The judgment of dismissal is vacated and this case is    remanded to the district court for further proceedings    consistent with this decision.  No costs.
