NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 8, 2011*
Decided March 9, 2011
Before
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐3351
ANNA L. ROBINSON, Appeal from the United States District
Plaintiff‐Appellant. Court for the Central District of Illinois.
v. No. 09‐2237
CHAMPAIGN UNIT 4 SCHOOL Michael P. McCuskey,
DISTRICT, et al., Chief Judge.
Defendants‐Appellees.
O R D E R
Anna Robinson sued the Champaign Unit 4 School District, her former employer,
claiming race discrimination and retaliation in violation of Title VII of the Civil Rights Act
of 1964, see 42 U.S.C. §§ 2000e‐2(a)(1), 2000e‐3(a). The district court dismissed her complaint
as a sanction under Federal Rule of Civil Procedure 37 after accepting the school district’s
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐3351 Page 2
assertion that Robinson had failed to provide adequate initial disclosures under Federal
Rule of Civil Procedure 26. Because the district court did not explain how Robinson’s
compliance was inadequate or why lesser sanctions would be ineffective, we vacate the
dismissal and remand for further proceedings.
Robinson filed her complaint in September 2009 using a standard form provided by
the district court for pro se Title VII complaints. Robinson alleges that she was fired because
she is black and had complained of discrimination in the past, and sought back pay and
medical expenses. She also submitted a 28‐page, single‐spaced timeline with dates and
descriptions of the events that formed the basis of her claims, including names of the
persons involved in each incident and in some instances contact information. The school
district filed a one‐paragraph answer denying wrongdoing and asserting that it could not
respond to the allegations in Robinson’s complaint because it does not contain “concise
factual allegations in a numbered or otherwise organized fashion.” The school district also
certified that it provided initial disclosures under Rule 26(a)(1), but the record does not
disclose what information was given to Robinson.
A magistrate judge held a pretrial conference in December 2009 and ordered
Robinson, by minute entry, to “provide initial disclosures to defendant within 7 days.” In
the record before us there is no indication that the magistrate judge had reviewed the
timeline Robinson submitted with her complaint or evaluated whether that document was
adequate to meet the initial disclosure requirements of Rule 26(a)(1). That provision
requires civil litigants to disclose a range of information without a discovery request,
including details about individuals likely to have discoverable information, copies of
documents a party has in its possession to support its claims, and a computation of
damages. See FED. R. CIV. P. 26(a)(1)(A)(i)‐(iii). The magistrate judge scheduled a second
pretrial conference for January, and instructed the parties to submit a joint discovery plan in
advance of that date. The court later postponed the conference because the parties had not
submitted their proposed plan. Robinson then requested and was granted additional time to
collect medical records that the school district wanted from her, so the court further
postponed the conference until March 2010, again instructing the parties to submit a
discovery plan prior to the conference.
Prior to the March discovery conference, the school district filed its own proposed
discovery plan and explained that the parties could not reach an agreement on an
appropriate schedule despite several meetings. In a motion asking that its plan be adopted,
the school district asserted that Robinson still had not tendered “initial Rule 26 Discovery
Compliance documents” but did not specify what Robinson had failed to hand over. The
school district added that it could only estimate the time needed for each stage of the
litigation because, without initial discovery from Robinson, it was “flying blind” concerning
No. 10‐3351 Page 3
the issues that would arise in the lawsuit. The school district did not explain why the
timeline Robinson had submitted with her complaint was insufficient to give it notice of the
issues in the case.
After the March conference, Robinson gave the school district a proposed witness
list, copies of her written communications with the school district in the period leading up
to her termination, and medical records from treatment for chest pain and other conditions
that she maintains were exacerbated by the school district’s unlawful conduct. The school
district moved for sanctions under Rule 37, however, arguing that Robinson had failed to
comply with the disclosure requirements of Rule 26(a)(1). The school district submitted a
copy of Robinson’s list of potential witnesses; the list includes contact information for each
of the 10 names, all but 2 of which appear on the timeline submitted with Robinson’s
complaint. The school district again failed to acknowledge its receipt of the timeline, yet it
argued that Robinson’s witness list does not satisfy Rule 26(a)(1)(A)(i) because it lacks “the
subjects of the information Plaintiff may have used to support her claim.” Rule
26(a)(1)(A)(i) simply requires that litigants disclose “the name and, if known, the address
and telephone number of each individual likely to have discoverable information—along
with the subjects of that information—that the disclosing party may use to support its
claims or defenses.” The school district also argued that Robinson had failed to comply
with Rule 26(a)(1)(A)(iii), which requires early disclosure of “a computation of each
category of damages claimed by the disclosing party.” The school district emphasized that
Robinson’s disclosures must be incomplete because she had earlier told the court that she
was trying to gather a “vast amount of documents” and had told the school district’s lawyer
that she had “a lot” of documents.
In June 2010 the magistrate judge conducted a hearing to address the motion for
sanctions. Although neither party has provided a transcript of this hearing, the school
district represents in its appellate brief that the magistrate judge found Robinson’s conduct
unreasonable and explained what she must do to comply with Rule 26. A minute entry
following that hearing notes that there was “[d]iscussion regarding disclosures” and that
Robinson was “to fully comply with the requirements of Rule 26(a)(1) within seven (7)
days.” The minute entry also documents that the motion for sanctions was granted, and
that the school district was ordered to file an affidavit in support of fees and costs. The
school district later submitted an affidavit from counsel explaining that he spent 16 hours
trying to get Robinson “to fully comply with Rule 26 discovery requirements.” Although
the affidavit acknowledges that Robinson had provided some documents, counsel asserts
that her disclosures came “nowhere near full compliance with Rule 26.” The affidavit offers
no further explanation of the deficiencies in the disclosures, and makes no mention of the
timeline Robinson submitted. The school district asserted that it had spent $2,062.50 in
No. 10‐3351 Page 4
unnecessary legal fees as a result of Robinson’s “failure to comply with discovery
procedures.” The magistrate judge later ordered Robinson to pay this amount.
In July 2010 the school district filed a renewed motion for sanctions claiming that
Robinson had failed to meet the new seven‐day deadline set by the magistrate judge at the
June hearing. The school district did not specify what documents it still expected Robinson
to supply. The school district asserted that its defense had been prejudiced by Robinson’s
delays and argued that the case should be dismissed because it was now impossible for
defense counsel to “responsibly” proceed within the timeframe initially set by the
magistrate judge. Robinson did not respond to this motion.
In September 2010 the magistrate judge recommended that Robinson’s complaint be
dismissed with prejudice. The magistrate judge stated that Robinson previously had been
“put on notice of her obligations” to satisfy “the requirements of FED. R. CIV. P. 26(a)(1)” yet
unjustifiably “ignores them.” The court opined that Robinson would “not participate in the
discovery phase of this lawsuit.” Robinson filed an objection asserting that the school
district had received “all information in reference to [her] statements and witnesses” and
that she needed only to give over financial documents that were recently obtained. She
requested seven more days to turn over these new documents.
The district court concluded that Robinson had violated two orders directing her to
comply with Rule 26, and noted that she was still requesting additional time to provide
discovery. The court accepted the magistrate judge’s recommendation, granted the school
district’s renewed motion for sanctions, and dismissed the case with prejudice. Like the
magistrate judge, the district court did not discuss the two narrow subsections of Rule
26(a)(1) cited by the school district in its motion for sanctions. Neither did the district court
acknowledge Robinson’s timeline or explain why the information it contains is insufficient
to satisfy Rule 26(a)(1)(A)(i). The district court also failed to explain why Robinson’s
statement in her complaint that she is seeking back pay is insufficient to satisfy the
disclosure requirement of Rule 26(a)(1)(A)(iii).
On appeal Robinson argues that she provided the required discovery and maintains
that the school district was demanding documents already in its possession. Robinson
contends that the chronology of events submitted with her complaint identifies potential
witnesses and summarizes the information they would provide. She also notes that her
witnesses are current and former employees of the school district. In its brief the school
district does not even acknowledge, let alone refute, Robinson’s position that her
timeline—which the school district had possessed since the day Robinson filed
suit—satisfied her disclosure obligations under Rule 26(a)(1). With regard to a damages
No. 10‐3351 Page 5
computation, Robinson argues that the only documents she did not provide were a credit
report and medical records from two hospitals that she was still trying to obtain.
We review a district court’s Rule 37 sanctions, including dismissal with prejudice, for
abuse of discretion. See Greviskes v. Univ. Research Ass’n, Inc.,
417 F.3d 752, 758‐59 (7th Cir.
2005); Proctor & Gamble Co. v. Haugen,
427 F.3d 727, 737‐38 (10th Cir. 2005). Dismissal with
prejudice is an extreme sanction that should be used only as a last resort in situations where
the noncomplying party displayed willfulness, bad faith, or fault. Agiwal v. Mid Island
Mortg. Corp.,
555 F.3d 298, 302 (2d Cir. 2009); In re Thomas Consol. Indus., Inc.,
456 F.3d 719,
724 (7th Cir. 2006); Proctor & Gamble Co.,
427 F.3d at 738; Maynard v. Nygren,
332 F.3d 462,
467‐68 (7th Cir. 2003). Although we may infer willfulness, bad faith, or fault from the
sanction order, we prefer district courts to make this finding explicitly. See In re Thomas,
456
F.3d at 724; Aura Lamp & Lighting, Inc., v. Int’l Trading Corp.,
325 F.3d 903, 909 (7th Cir. 2003).
Moreover, when sanctioning a party for discovery violations, a district court should
consider the prejudice or surprise to the party against whom the evidence is offered, the
likelihood of disruption to the trial, and lesser sanctions that could cure any asserted
prejudice. See Proctor & Gamble Co.,
427 F.3d at 738; David, 324 F.3d at 857; Maynard,
332 F.3d
at 48.
Although pro se litigants are not excused from compliance with procedural rules,
Pearle Vision, Inc. v. Romm,
541 F.3d 751, 758 (7th Cir. 2008), the school district has never
done more than make conclusory assertions that Robinson had failed to comply with Rule
26(a)(1). At no time has the school district explained how Robinson’s disclosures fail to
satisfy the narrow rules it says she violated, nor has the school district cited any legal
authority to support its position. As a result, the district court’s order, which accepts the
school district’s position uncritically, does not explain how Robinson violated Rule 26(a)(1).
That rule’s initial disclosure requirement was added in 1993 in optional form and made
mandatory in 2000. 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2053 (3d ed. 2010). To date the specific form initial disclosures must take has
not been the subject of many decisions in either the appellate or district courts. Although we
have not had occasion to address the degree of specificity required for the disclosures
mandated by subsections (a)(1)(A)(i) and (a)(1)(A)(iii), the advisory committee notes to the
1993 enactment emphasize that the “disclosure requirements should, in short, be applied
with common sense” to help focus the attention on the “discovery that is needed, and
facilitate preparation for trial or settlement”; the new rule is not intended, however, to
encourage litigants to “indulge in gamesmanship with respect to the disclosure
obligations.” FED. R. CIV. P. 26(a)(1) advisory committee’s note (1993); see Sender v. Mann,
225 Fed. R. Serv. 3d 645, 650 (D. Colo. 2004).
No. 10‐3351 Page 6
We do not see in the record before us a clear explanation of how Robinson failed to
comply with Rule 26(a)(1). She submitted a timeline that set out the events underlying her
complaint and listing the persons present during each incident she deems significant. She
also states in her complaint that she is seeking back pay, a straightforward category of
damages that the school district may easily compute. Cf. Design Strategy, Inc. v. Davis,
469
F.3d 284, 295 (2d Cir. 2006) (explaining that damages computation is especially necessary
when plaintiff seeks complex damages such as lost profits). And though Robinson did not
submit documents she was still compiling related to her medical expenses and pain and
suffering, the advisory committee notes clarify that a party’s obligation under Rule
26(a)(1)(A)(iii) to disclose documents that support the damages computation “applies only
with respect to documents then reasonably available to it.” FED. R. CIV. P. 26(a)(1) advisory
committee’s note (1993).
Even assuming that Robinson was noncompliant with Rule 26(a)(1), we cannot tell
whether the district judge examined the documents Robinson did submit or other relevant
factors, such as the prejudice to the school district or efficacy of less‐severe sanctions, before
dismissing the case. See Proctor & Gamble Co.,
427 F.3d at 738; David, 324 F.3d at 857. We see
no reason why Robinson’s disclosures were insufficient to allow the school district to
commence discovery—particularly given that the majority of her proposed witnesses are
current or former employees of the school district—and so the school district’s argument
that it has been prejudiced is unpersuasive. Even in cases of prejudice, district courts must
consider and explain why lesser sanctions would be ineffective before dismissing a case. See
Maynard,
332 F.3d at 468. Although Robinson had already been sanctioned once by
requiring her to pay a portion of the school district’s attorney fees, the judge did not explain
why barring Robinson from calling the witnesses she failed to provide information on—the
sanction recommended by Rule 37(c)(1)—or limiting her possible recovery to back pay for
failure to provide a detailed computation of other categories of damages would be
insufficient to cure any prejudice to the defendants. See CQ, Inc. v. TXU Mining Co.,
565 F.3d
268, 279‐80, n.7 (5th Cir. 2009) (limiting categories of damages available to party who failed
to provide some damage computations but emphasizing that outright dismissal of claims
was not appropriate); Musser v. Gentiva Health Serv.,
356 F.3d 751, 758 (7th Cir. 2004)
(upholding exclusion of expert testimony as proportionate sanction for failure to disclose
expert witnesses under Rule 26(a)). Ultimately, the record before us is insufficient to
conclude that the district court had a satisfactory basis to infer fault, bad faith, or willful
noncompliance with Rule 26(a)(1) as was necessary to sanction Robinson with dismissal. In
re Thomas,
456 F.3d at 724.
Accordingly, the judgment of the district court is VACATED, and the case is
REMANDED for further proceedings consistent with this order.
