                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                         FILED
                                                                    U.S. COURT OF APPEALS
                             ________________________                 ELEVENTH CIRCUIT
                                                                           Aug. 7, 2008
                                    No. 06-15011                       THOMAS K. KAHN
                              ________________________                      CLERK


                          D. C. Docket No. 04-60068-CV-JEM

SCOTT HIRSCH,

                                                                  Plaintiff-Appellant,

                                            versus

NOVA SOUTHEASTERN UNIVERSITY, INC.,
a Florida not for profit corporation,
a.k.a. Nova Southeastern Health
Professions Division, College of
Dental Medicine,

                                                                  Defendant-Appellee.
                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                     (August 7, 2008)

Before TJOFLAT and BLACK, Circuit Judges, and EVANS,* District Judge.

PER CURIAM:

       *
        Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
      Scott Hirsch appeals the district court’s denial of his Fed. R. Civ. P.

60(b)(3) motion seeking relief from judgment and a new trial in his lawsuit against

Nova Southeastern University, Inc. (Nova). He also appeals his unsuccessful

motion for sanctions. Both issues arise from certain discovery conduct by Nova

that Hirsch alleges was improper. Hirsch, a former dental student at Nova, sued

the school alleging they had discriminated against him based on his Attention

Deficit Hyperactivity Disorder (ADHD). A jury found in favor of Nova. Hirsch

then filed the Rule 60(b)(3) motion, arguing Nova engaged in misconduct when it

misleadingly compiled a list of similarly situated students that Hirsch says was

important to his theory at trial. He also sought sanctions. The district court denied

both motions, and we affirm.

                                          I.

      Hirsch matriculated at Nova’s college of dentistry in Fall 2001. He failed

one course his first semester and was placed on probation; he then failed three

more courses in Winter 2002. During this time, he was diagnosed with ADHD,

although he had not yet told Nova. His parents informed Nova after learning of

the failures in May 2002.

      Because Hirsch demonstrated academic deficiency, he was referred to the

Student Advancement Committee (SAC). According to the student handbook,

                                          2
Hirsch would have been subject to possible dismissal for failing four or more

courses in a single year. Instead, he was allowed to take re-examinations in each

of the four courses. He passed three, but failed the fourth. The school required

that he repeat his first year. After sailing through the fall semester of his repeat

year, Hirsch failed two courses during the Winter Term, including Physiology, the

class he could not pass from the previous year. This time the school dismissed

Hirsch.

       While all of this transpired, Hirsch and the school were discussing whether

Hirsch was entitled to reasonable accommodations during his exams due to his

ADHD. The details are unimportant for purposes of this appeal. Suffice to say

Hirsch thought Nova treated him unfairly based on his ADHD, and so in January

2004 he filed suit under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, alleging discrimination due to his disability.1

       During discovery, Hirsch sought certain information relating to other

students who had failed classes and appeared before the SAC. Nova resisted, and

a magistrate order was issued on February 11, 2005 compelling discovery. It

stated in relevant part:


       1
         Hirsh also had a breach of contract claim against Nova, but Hirsch’s counsel admitted at
oral argument that the discovery response at issue here was relevant only to the Rehabilitation
Act discrimination claim.

                                                3
      For each student who is identified in Student Advancement
      Committee meeting minutes as having failed one or more dental
      courses from August 1, 2000 to date, [Nova] shall identify each
      student by first year of enrollment and current enrollment status, the
      course(s) failed and the semester of each course failure, and for each
      such failure provide the Committee’s recommended action and actual
      disciplinary action taken by the Dean. [Nova] will protect the identity
      and gender of each student by assigning each student a letter or
      number identifier.

Nova complied and produced a chart with each student identified by year of

enrollment, their status (enrolled, not enrolled, dismissed, or graduated), the

courses failed, the SAC’s recommendation (re-examination, probation, or

dismissal), and the dean’s ultimate action.

      Hirsch says he hoped to use this information, which he dubs the

“Comparator Data,” to establish that similarly situated students were treated

differently from him. At trial, he attempted to introduce the Comparator Data as

evidence, but Nova objected. Nova said the court could not know whether the

students in the data were truly similarly situated persons, because Hirsch had not

asked for—and had not received—information on whether the students had taken

and passed re-examinations. Such information would be essential to meaningfully

compare them with Hirsch.

      After hearing arguments from both sides, the district court kept the

Comparator Data out, noting, “You got what you asked for, and [it was] within the

                                          4
strictures of [the order compelling discovery]. But I’m not sure that what you got

is particularly useful to you. I don’t know that it proves what you want to prove,

and I don’t know that you asked for the right thing.” The jury never saw the

Comparator Data.

         The judge did allow Hirsch to proffer what he would have produced had he

been allowed to use the Comparator Data, and so Hirsch’s counsel began

questioning Dean Timothy Hottel about the data. During this questioning, Hottel

revealed that many of the “failures” identified on the chart were not actual failures

in the common understanding of the word. Hottel distinguished between failures

in didactic courses and failures in clinical courses, and he said that a student could

receive a “failure” in a clinical course for reasons beyond his or her control. For

example, if there were insufficient patients upon which students could complete

their course work, a student would receive a failure in the course. The student’s

failure would remain a failure until the clinical work was able to be completed.

         But the Comparator Data Nova provided to Hirsch did not distinguish

between failures in a didactic course and temporary “failures” in a clinical

course—it listed them all as failures. Hirsch’s counsel pressed Hottel on this

point:




                                          5
      Q. When you reviewed the answers to interrogatories and you saw
      the codes, why didn’t you add a separate code for clinical holdbacks?

      A. Because I didn’t think of it.

      Q. So your answer was incomplete?

      A. Well, it’s complete in the data. It’s just the interpretation of what
      a failure is in my mind and your mind.

The trial continued, and the jury ultimately rejected Hirsch’s claim. Specifically,

the jury found Hirsch did not have a “disability” as defined by the Court’s

instructions.

      Hirsch timely sought relief from judgment and sanctions against Nova based

on its response to Hirsch’s request for the Comparator Data. Hirsch argued Nova

engaged in misconduct when it failed to distinguish between clinical “failures”

and actual course failures in its discovery response. The district court denied

Hirsch’s motions, and Hirsch appeals.

                                         II.

      Hirsch argues the district court abused its discretion in denying his Rule

60(b)(3) motion because Hottel essentially admitted Nova included misleading

information in the chart; specifically, Nova failed to distinguish between technical

clinical failures and actual failures. Hirsch says this behavior amounts to the sort

of misconduct covered by the rule because a fair reading of the discovery order

                                          6
would have required Nova to note the difference between genuine didactic course

failures and technical clinical failures.

       We review the denial of a Rule 60(b)(3) motion for relief from judgment for

an abuse of discretion. Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303,

1314 (11th Cir. 2007). Rule 60(b)(3) states: “On motion and just terms, the court

may relieve a party or its legal representative from a final judgment, order, or

proceeding for the following reasons: . . . fraud . . . , misrepresentation, or

misconduct by an opposing party . . . .” Fed. R. Civ. P. 60(b)(3). Put another way,

to prevail under Rule 60(b)(3), the moving party must show by clear and

convincing evidence that the adverse party obtained the verdict by fraud,

misrepresentation or other misconduct. Waddell v. Henry County Sheriff’s Office,

329 F.3d 1300, 1309 (11th Cir. 2003). In addition, the party must show the

misconduct prevented him from fully and fairly presenting his case. Id. The

failure to produce information called for by a discovery order can comprise the

sort of “misconduct” contemplated by Rule 60(b)(3). Rozier v. Ford Motor Co.,

573 F.2d 1332, 1339 (5th Cir. 1978).2 Therefore, the question is whether Nova’s




       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), this Court adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.

                                               7
response to the discovery order—which did not distinguish between actual failures

and technical non-failure “failures”—was a violation of the order.

      The exact language of the discovery order is excerpted above. To be sure,

Nova denies it engaged in any wrongful conduct and asserts its response to the

discovery order was complete and honest. But we can assume, without deciding,

that the language obligated Nova to distinguish between genuine failures and

temporary clinical failures. We can assume this because Hirsch’s argument fails

for two independent reasons.

      First, the transcript suggests the district court refused to admit the

Comparator Data because it did not contain information on whether the students

successfully passed re-examinations. Nova cannot be blamed for that omission,

because they were not asked to disclose that information. The order did require

Nova to list any students who had failures and appeared before the SAC, and it

required disclosure of the courses failed, the action recommended by the SAC, the

dean’s ultimate action, and the students’ current status. Nowhere did the order call

for re-examination data. Hirsch himself failed four courses and successfully re-

examined three, so re-examination data would have been essential for any

meaningful comparative purposes. Nova cannot be blamed for Hirsch’s failure to

ask for re-examination data.

                                          8
      Second, the jury rejected Hirsch’s claim on a basis unrelated to the

Comparator Data. The jury specifically found Hirsch had not established his

ADHD constituted a “disability” under the law. No one disputes the Comparator

Data is irrelevant to the question whether Hirsch’s ADHD constituted a disability;

the data would come into play only after Hirsch had proven a disability, when the

data could then be used to show Nova discriminated against him. Thus, the jury

never reached an issue where the absent Comparator Data would have been

relevant to their decision. In other words, Hirsch would have had to prove a

“disability” regardless of whether the data was responsive to his discovery request.

      Hirsch reminds us that our inquiry is not one of outcome-determinativeness:

“[Rule 60(b)(3)] does not require that the information withheld be of such nature

as to alter the result of the case.” Rozier, 573 F.2d at 1339 (“This subsection of

the Rule is aimed at judgments which were unfairly obtained, not at those which

are factually incorrect.”). We do not quarrel with this proposition. But there was

nothing unfair about Hirsch’s unfavorable judgment; he simply did not prove to

the jury he was disabled. The Comparator Data, even if disclosed exactly as

Hirsch thinks he asked for it, would have been completely irrelevant to the

question whether his ADHD constituted a disability. Hirsch “fully and fairly




                                          9
present[ed] his case” on whether he was disabled, see id., and he lost. The

Comparator Data was irrelevant to this dispositive issue.

      Although alteration of the result is not the touchstone of a Rule 60(b)(3)

analysis, the moving party surely is obligated to demonstrate the relevance of the

withheld evidence in light of the jury’s explicit determination. Cf. Rozier, 573

F.2d at 1345 (“It is apparent . . . that the [withheld evidence] . . . might have been

the catalyst for an entirely different approach to the case on a theory that the

plaintiff, lacking the document, let die before it reached the jury.”). Hirsch cannot

show his approach to a threshold, dispositive issue was impacted in any way by

Nova’s disclosures of the Comparator Data. Therefore, Hirsch was not prevented

from fully and fairly litigating his case, and he is not entitled to relief under Rule

60(b)(3).

                                          III.

      Hirsch also argues he is entitled to monetary sanctions for Nova’s abuse of

discovery. We review the decision whether or not to award sanctions for an abuse

of discretion. Serra Chevrolet, Inc. v. General Motors Corp., 446 F.3d 1137,

1146-47 (11th Cir. 2006). Under Fed. R. Civ. P. 37(b)(2), if a discovery order is

violated the court should impose monetary sanctions unless the conduct was

substantially justified or “other circumstances” would make an award unjust. Fed.

                                           10
R. Civ. P. 37(b)(2). In addition, Rule 37(c)(1) permits a court to impose monetary

sanctions for failures to disclose or supplement prior disclosures. Fed. R. Civ. P.

37(c)(1). “Rule 37 sanctions are intended to prevent unfair prejudice to the

litigants and insure the integrity of the discovery process.” Gratton v. Great Am.

Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999). The district court adopted the

magistrate judge’s denial of Hirsch’s motion for sanctions, which stated

“defendant complied with its discovery obligations and plaintiff was not unfairly

prejudiced by the alleged errors.” We readily conclude neither holding was an

abuse of discretion.

      In part II, we assumed, without deciding, that Nova’s conduct was a

violation of the discovery order. Here we look more closely at the order, and we

conclude that the district court did not abuse its discretion in finding Nova did not

violate its discovery obligations. The order requires disclosure of “course(s)

failed” and “each course failure,” and does not explicitly require Nova to

distinguish between genuine failures and technical failures in the clinical work. In

light of Hottel’s testimony that the school “[did not] consider any difference at the

time the grades go out,” we cannot say the district court abused its discretion in

finding Nova met its discovery obligations.




                                         11
      Moreover, the district court did not abuse its discretion in finding Hirsch

was not prejudiced by any perceived failures in Nova’s discovery disclosures. For

the reasons discussed supra part II, Hirsch’s unfavorable verdict did not relate to

any issue implicating the Comparator Data, and he failed to request information

necessary for drawing meaningful comparisons. Therefore, the district court was

well within its discretion to deny sanctions.

                                         IV.

      The judgment of the district court is AFFIRMED.




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