United States District Court, E.D. Pennsylvania
January 12, 2004.
CHASE MANHATTAN BANK, ET AL
The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
MEMORANDUM & ORDER
Presently before this Court is Plaintiff, Joseph Hussey's, Motion
for Sanctions Against the Chase Defendants for failure to comply with
this Court's Order of May 15, 2003. For the following reasons, Plaintiffs
Motion will be denied.
Plaintiff's Complaint alleges a breach of fiduciary duty under the
Employment Retirement and Income Security Act, ("ERISA"), 29 U.S.C.A. §
1132(a)(3), for the Chase Defendants' alleged failure to provide
Plaintiff with the requisite information to elect excess long-term
disability ("LTD") benefits. (Compl. at ¶ 35.) Plaintiff claims that
during discovery, he "served upon Chase a Request for Production of
Documents which sought, among other categories of information, all
documents relating to individuals who elected to participate in the Chase
excess LTD benefit," (Pl.'s Mot. for Sanctions Against the Chase Defs. at
¶ 6.), but the Chase Defendants refused to provide the documents. (Id. at
¶ 7.) Plaintiff then filed a Motion to Compel. (Doc. No. 12.) We
subsequently provided both parties with the opportunity to be heard on
this issue during a conference held in Chambers on May 15, 2003. Based on
we issued our Order of May 15, 2003. Plaintiff presently seeks to
impose both "preclusionary and monetary sanctions against the Chase
Defendants," pursuant to Federal Rule of Civil Procedure 37(b)(2)(B), for
their alleged failure to comply with sections 1(a) and 1(d) of that
The decision to impose sanctions for discovery violations under Rule
37(b)(2)(B) is "within the district court's broad discretion over
discovery matters." Ware Communications. Inc v. Rodale Press. Inc., No.
CIV.A.95-5870, 2002 WL 89604, at *2 (E.D. Pa. Jan. 23, 2002). However,
the Third Circuit also cautions that the exclusion of evidence for
violation of a discovery order is an "extreme sanction." Ware
Communications. Inc. v. Rodale Press. Inc., 322 F.3d 218, 221 (3d Cir.
2003) (citing In re TMI Litig., 193 F.3d 613, 721 (3d Cir. 1999)). When
considering sanctions under Rule 37(b)(2)(B), courts use the following
factors to guide their analysis:
(1) the extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the
failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether
the conduct of the party or the attorney was willful
or in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of
alternative sanctions; and (6) the meritoriousness of
the claim or defense.
Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863
, 868 (3d Cir.
No Violation of Section 1(d)
Plaintiff claims that the Chase Defendants failed to comply with
Section 1(d) of this Court's May 15, 2003 Order by withholding the names
of the Chase employees who selected
LTD Excess Plan coverage between 1997 and the present. However, section
1(d) of the Order states:
1. The Motion to Compel Chase Defendants is GRANTED to
the following extent. By June 16, 2003, each of the
Chase Defendants shall produce:
. . .
d. the document or documents showing the number of
Chase employees who selected LTD Excess Plan
coverage for . . . each of the years 1997 to the
(Court's Order of 5/15/03, at 2; Doc. No. 25 (emphasis added).)
While there was a delay due to Chase Defendants' initial failure to
provide the material related to section 1(d) when they sent Plaintiff the
discovery related to the other areas specified in the Order, Chase
Defendants did ultimately provide Plaintiff with the required
information. There is nothing in the record to indicate that Chase
Defendants' initial omission was an act of bad faith or that Plaintiff
was prejudiced as a result of that initial omission.*fn1 Further, the
Chase Defendants provided Plaintiff with that information within eight
days of Plaintiffs correspondence which brought this omission to the
Chase Defendants' attention. (Letter from Schwemler to Yu and Hollihan of
7/2/03, Pl.'s Ex. D; Letter from Yu to Schwemler of 7/10/03, Pl.'s Ex.
Plaintiff subsequently objected to the form in which the Chase
Defendants provided that information, claiming that the Chase Defendants'
chart that listed only the number of individuals both eligible and
enrolled in the LTD Excess Plan for 1997, 1998, and 1999, was
Plaintiff then requested copies of the documents that were the source for
these numbers. Within six days of receiving that request, the Chase
Defendants provided Plaintiff with these documents in redacted form,
omitting the names of the employees. Again, Plaintiff objected, claiming
that the Chase Defendants had failed to comply with this Court's Order.
(Letter from Schwemler to Yu of 7/17/03, Pl.'s Ex. F.)
Plaintiff's present Motion, as it relates to section 1(d), is premised
on the belief that this Court ordered the Chase Defendants to provide the
names of the employees. We did not. The plain language of the Order
requires only that the Chase Defendants provide the number of employees,
not their names. Accordingly, sanctions related to section 1(d) are
No Violation of Section l(a)
Plaintiff also alleges that the Chase Defendants have failed to comply
with section l(a) of this Court's May 15, 2003 Order. That section
requires the Chase Defendants to produce, by June 16, 2003, "all
documents reflecting any complaints, appeals, or protests regarding
eligibility for the Chase Long Term Disability Excess Plan ("LTD Excess
Plan") filed by employees of Chase Defendants for the time period 1997 to
present." (Court Order of 5/15/03, at 1; Doc. No. 25.) On June 16, 2003,
the Chase Defendants informed Plaintiff that "the Chase Defendants are
not aware of any complaints, appeals, or protests regarding eligibility
for the LTD Excess Plan filed by any employees other than Joseph Hussey.
Therefore, there are no documents that are responsive to item l(a) of the
Order." (Letter from Yu to Schwemler of 6/16/03 at 1, Pl.'s Ex. C.)
Plaintiff does not dispute this statement, but argues that the Chase
Defendants failed to comply with the Order by not conducting a proper
investigation as to such communications related to the Plaintiff himself.
More specifically, Plaintiff relies on the deposition of Katie
Berliner, Chase's Corporate Designee, who was involved in reviewing
Plaintiff's appeal. Berliner stated that "she never directed any Chase
employees, involved in processing Mr. Hussey's appeal, to search their
archived e-mails for responsive documents." (Pl's Mot for Sanctions
Against the Chase Defs., at ¶ 36 (citing Dep. of Katie Berliner at 73,
80-81)(emphasis added).) Plaintiff's allegation is misleading. First,
Defendants clearly state: "The Chase Defendants have produced all
documents relating to Plaintiff's claim for LTD Excess Plan benefits."
(The Chase Defs.' Opp'n to Pls.' Mot. for Sanctions at 11-12 (emphasis
added).) Defendants then go on to explain their process for compiling
such e-mails, suggesting that this system would direct them to all
existing e-mail documents:
Copies of all e-mail message[s] produced by the Chase
Defendants [are] attached hereto as Exhibit 3. The
e-mail messages relating to Plaintiff's claim were
printed and included in his paper file prior to the
commencement of this lawsuit. Ms. Berliner explained
this process during her deposition as follows:
Q. Did you archive any e-mails in connection with
Mr. Hussey's appeal?
A. I'm sure I did.
Q. Have you for the purposes of this litigation
checked your e-mail files for any correspondence
A. No, I have not.
Q. Were you asked to?
Q. Do you know if anyone's done that for you?
A. Not to my knowledge. What I did was, I reviewed
Mr. Hussey's file, whatever we had in his physical
file. I didn `t go through any e-mails or ask
anyone to go through and pull any electronic, if
they didn't already exist in that file.
(The Chase Defs.' Opp'n to Pls.' Mot. for Sanctions at 11-12 (citing
Berliner Deposition at p. 73, 1. 5-21) (emphasis added).)
In light of this testimony explaining the Chase Defendants' process for
tracking whether such e-mails would exist, it would appear that the Chase
Defendants have complied with our Order. We see no basis for Plaintiff's
suggestion that additional e-mail correspondence exists.
The Chase Defendants cannot be required to produce documents that,
according to their records, do not exist. We are satisfied that the Chase
Defendants have provided Plaintiff with all relevant e-mail
correspondence that they have in their possession. This includes more
than 100 pages of such correspondences. (Exhibits to the Chase
Defendants' Opposition to Plaintiffs Motion for Sanctions at Ex. 3.)
Accordingly, sanctions for failure to comply with section l(a) of this
Court's Order of May 15, 2003, are inappropriate.
Based on the foregoing, we will deny Plaintiffs Motion for Sanctions
Against the Chase Defendants for failure to comply with this Court's
Order of May 15, 2003.
An appropriate Order follows.
AND NOW, this ___ day of January, 2004, upon consideration of
Plaintiff's Motion for Sanctions Against the Chase Defendants, (Doc. No.
31), and all documents filed in support thereof and opposition thereto,
it is ORDERED that Plaintiff's Motion is DENIED.
IT IS SO ORDERED.