Summary:The Court found that the ESI was important to the case, as it provided evidence of the loan and loan proceeds. This included the promissory note executed by Cusimano for the loan from Dickens, the promissory noted executed by Cusimano for the $40,000 loan from SLCas, and Dickens Law's November 2014 bank statement reflecting a $40,000 wire transfer from SLCas and a $20,000 withdrawal. The Court did not address any other ESI as it was not relevant to the case.
Court:United States District Court, W.D. Missouri, Western Division
Date decided:
Judge:Smith, Ortrie D.
DANTE A.R. COMBS, Plaintiff, v. THE CORDISH COMPANIES, INC., et al., Defendants Case No. 14-0227-CV-W-ODS United States District Court, W.D. Missouri, Western Division Filed September 17, 2018 Counsel Antonette M. Dupree, Spark Legal Solutions, LLLP, Kansas City, MO, Marie L. Gockel, Lynne J. Bratcher, Bratcher Gockel Law, L.C., Independence, MO, for Plaintiff. Patrick F. Hulla, Anne Hershewe, Ogletree, Deakins, Nash, Smoak & Stewart, Kansas City, MO, for Defendants The Cordish Companies, Inc., Lounge KC, LLC, Entertainment Concepts Investors, LLC, Entertainment Consulting International, LLC. Mark David Ware, Overland Park, KS, Nathaniel A. Dulle, Wallace Saunders P.C., Lee's Summit, MO, Patrick F. Hulla, Ogletree, Deakins, Nash, Smoak & Stewart, Kansas City, MO, for Defendant First Response, Inc. Smith, Ortrie D., United States District Judge ORDER AND OPINION (1) DENYING DEFENDANTS' MOTION FOR SANCTIONS, AND (2) SCHEDULING PRETRIAL CONFERENCE AND TRIAL *1 Pending is Defendants' Motion for Sanctions. Doc. #439. For the following reasons, Defendants' motion is denied. I. BACKGROUND A. Prelude to the Pending Motion This matter's history is permeated by dissonance, incivility, and acrimony. Only three months after the matter was filed, the Court, when issuing an order on what should have been routine motions, noted there had been “increasing signs of devolving civility and the parties' inability to work together to permit this case to be prosecuted efficiently and professionally.” Doc. #30, at 1.[1] Although the case was in its infancy, the Court observed the parties did not discuss even routine accommodations. Id. Instead, the parties raced to the Court to remedy issues that could have been resolved (or at least simplified) if they “discussed the matters as professionals instead of the personal enemies they seem to have become.” Id. at 2. Before the parties were allowed to file anything further, the Court required the parties to provide further assurances of their awareness of the Court's expectations. Id. at 3. The Court directed the parties to execute and file declarations confirming they read the Court's Rule 16 Notice, which contained the Principles of Civility adopted by the Kansas City Metropolitan Bar Association, appended hereto as Exhibit A, and the Court's Order noting the lack of civility and cooperation. Id. Unfortunately, the disputes continued unabated. On at least three occasions, the Court reminded the parties that they were expected to agree to requests for reasonable extensions and other accommodations. See Doc. #67. The Court also held at least five discovery dispute conferences. Docs. #74, 148-49, 164-65, 172, 176, 193-194. Four conferences were held over the course of thirty-three days. These disputes – both in content and frequency – demonstrated an unprecedented deterioration of the discovery process, especially in light of the Court's previous admonishments. *2 While in the midst of resolving these discovery disputes, the Court noted the case had “been marked by a high degree of non-cooperation and gamesmanship.” Doc. #126, at 2. While “overt animosity” seemed to have diminished, some filings still caused the Court concern. Id. The Court observed Defendants and their counsel (1) continued to disagree with Plaintiffs' requests for reasonable accommodations and extensions, forcing Plaintiffs to seek judicial relief; (2) delayed the process of resolving requests by waiting until the last moment to respond to routine motions; and (3) were not forthcoming in discovery responses. Id. The Court also noticed Plaintiffs and their counsel (1) did not act diligently and delayed crucial matters; (2) abandoned focus on the events giving rise to the lawsuit; and (3) seemed more interested in painting Defendants in an unflattering light. Id. at 2-4, 8. These are examples of the parties' conduct; there are other instances. In June 2015, the Court granted summary judgment in favor of Defendants on all of Plaintiff Combs's and Plaintiff Williams's claims. Doc. #269. Both Plaintiffs appealed.[2] In July 2017, the Eighth Circuit affirmed the Court's entry of summary judgment in Defendants' favor on all of Plaintiff Williams's claims. Doc. #326. The Eighth Circuit also affirmed the Court's entry of summary judgment in Defendants' favor on Plaintiff Combs's claims with the exception of Plaintiff Combs's claim arising from the “Mosaic incident” against Defendants The Cordish Companies, Lounge KC, Entertainment Concepts Investors, and Entertainment Consulting International (“Defendants”). Id. The Eighth Circuit remanded this one claim for trial. Id. Upon remand, the Court set the one remaining claim for trial commencing on May 7, 2018. Doc. #328. A pretrial conference was held on March 26, 2018. Doc. #380. A mediation, albeit unsuccessful, was held on April 4, 2018. Doc. #392. B. Defendants' Motion for Limited Discovery On April 10, 2018, Defendants filed a motion seeking “expedited discovery of various agreements and payments between Plaintiff's counsel Linda Dickens and Glen Cusimano, a key witness in Plaintiff's case.” Doc. #397, at 1. Plaintiff did not object to the motion. Doc. #402. On April 16, 2018, the Court granted the motion for limited discovery but denied the request to conduct the discovery expeditiously. Doc. #405. Citing “the checkered history of discovery” in this matter, the Court lacked confidence the parties could smoothly conduct the requested discovery in the limited time before trial. Id. The Court struck the trial setting, and reopened discovery for sixty days. Id. Shortly thereafter, the parties inquired about the Court or a special master closely overseeing discovery, and resolving foreseeable privilege disputes. With the parties' consent, the Court appointed the Honorable Robert E. Larsen as special master, authorizing him to preside over (if necessary) and resolve objections during depositions, and adjudicate disputes arising from written discovery. Docs. #406, 408, 410, 425. Between April 30, 2018, and July 23, 2018, Judge Larsen conducted at least five status conferences, issued at least nine orders, and attended or was available for the depositions. Docs. #414-18, 420, 426-27, 431-35, 437. The Court expresses profound appreciation for the significant time, effort, and patience expended by Judge Larsen while overseeing the limited discovery, and resolving numerous disputes. At the same time, the Court denounces the amount of judicial oversight that resulted from attorney misbehavior in this case. C. The Limited Discovery (1) Written Discovery *3 Discovery commenced with Defendants serving Dickens a subpoena duces tecum seeking production of more than 170 categories of documents. Doc. #440-6. Dickens spent roughly twenty hours assembling responsive documents, meeting with her attorney, searching her basement for documents, and according to her, “exert[ing] every effort” to comply with the subpoena. Doc. #442-3; Doc. #456-3, at 3-4. Near the close of discovery, Defendants identified documents they believed Dickens failed to produce. Doc. #440-7, at 6-7. On July 20, 2018, Judge Larsen directed Dickens to produce certain documents, and denied Defendants' requests for other documents. Doc. #437. Dickens produced most of documents identified in Judge Larsen's Order, but two documents were not produced – one could not be located, and the other did not exist. Doc. #440-11, at 2, 13-14; Doc. #447-4, at 2; Doc. #453-16. (2) Depositions In addition, Cusimano and Dickens were deposed. The depositions and documents referenced during the depositions shed light on the attorney-client relationship between Dickens and Cusimano, which is relevant to the pending motion. In October 2013, Cusimano hired Dickens to represent him in a lawsuit against the same Defendants in this matter. Doc. #440-9, at 6-8. Cusimano filed his lawsuit in February 2014. Cusimano v. Lounge KC, LLC, No. 1416-CV05138 (Jackson Cty. Cir. Ct.). Roughly two weeks later, Dickens filed this lawsuit. Doc. #1. That same month, Dickens loaned Cusimano $20,000. Doc. #440-2, at 4-7; Doc. #440-9, at 9; Doc. #440-12; Doc. #453-4. In July 2014, Cusimano executed an affidavit that accompanied Plaintiffs' request for expedited discovery. Doc. #29-2. In November 2014, Cusimano executed a promissory note for a $40,000 loan from SLCas, LLC. Doc. #440-13; Doc. #453-6, at 5-7. On November 26, 2014, SLCas wire transferred $40,000 to Dickens Law LLC's bank account. Doc. #440-1, at 57-58; Doc. #440-14, at 3. Cusimano instructed Dickens to retain $20,000 of the $40,000 loan as repayment for the money she loaned him. Doc. #440-1, at 60; Doc. #440-9, at 9; Doc. #453-6, at 7; Doc. #456-3, at 7, 9. The other $20,000 was remitted to Cusimano. Doc. #440-1, at 58-59. Five days later, Cusimano executed another affidavit, which was used to support Plaintiffs' motion to certify a class action. Doc. #84-6. During the initial discovery phase, Cusimano was deposed on March 6, 2015. Doc. #157. On March 7, 2015, he executed a third affidavit. Doc. #440-16. On May 4, 2015, Cusimano executed a fourth affidavit, which accompanied Plaintiffs' opposition to Defendants' motion for summary judgment. Doc. #242-2. While Cusimano's affidavits vary in length and scope, they all discuss Defendants' allegedly discriminatory conduct. Nearly a year after Cusimano executed the fourth affidavit, Dickens Law issued three checks to him: $3,500 on March 28, 2016; $3,000 on April 27, 2016; and $12,000 on May 18, 2016. Doc. #440-17; Doc. #440-18; Doc. #440-21; Doc. #447-5, at 22, 27, 32-36. According to Dickens, the three checks reflect the settlement of Cusimano's potential legal malpractice claims against her. Doc. #440-1, at 26-27, 29-30, 39. While representing him, Dickens admitted to Cusimano she committed malpractice; Cusimano confirmed Dickens's admission in December 2016. Doc. #440-4, at 5-6. When deposed in July 2018, Cusimano testified Dickens made mistakes when she represented him. Doc. #440-10, at 5-6. When asked for details of these mistakes, Cusimano could not recall because he has had six concussions, “everything is a little foggy” at times, and he has tried to forget about his lawsuits. Id. Contradicting his 2016 affidavit, Cusimano, in July 2018, testified he was not paid for potential malpractice claims against Dickens. Compare Doc. #440-4, at 5-6 with Doc. #440-10, at 16. Other than two checks (one for $20,000, and one for $12,000), Cusimano did not recall receiving other payments from Dickens or her firm. Id. at 15. Although he believed the $12,000 check was for settlement of his state court matter(s), Cusimano admitted the settlement agreement revealed he would not receive any settlement proceeds. Doc. #440-10, at 9-11, 15. As best the Court can tell, Cusimano was not shown the three checks discussed above during his deposition. D. Withdrawal of Dickens as Counsel *4 During the limited discovery, on May 9, 2018, Dickens sought leave to withdraw as counsel for Plaintiff. Because other counsel had entered her appearance, the Court granted Dickens's request. Docs. #421-22. E. The Pending Motion On July 27, 2018, Defendants filed the pending motion. Doc. #440. Defendants ask the Court to sanction Plaintiff and Dickens because Dickens failed to cooperate and engage in good faith during the limited discovery, and Dickens violated the Rules of Professional Conduct and public policy against improper payments to witnesses. Id. Defendants seek sanctions in the form of dismissal of this matter, and an award of attorneys' fees and expenses associated with the limited discovery. Doc. #440, at 14. Alternatively, Defendants request an adverse instruction directing the jury to accept as true Dickens's payments and loan to Cusimano.[3] Plaintiff filed his opposition to the motion (Doc. #442), but Dickens did not file a response. The Court ordered Dickens to show cause why Defendants' motion should not be granted. Doc. #449. Dickens filed her opposition on August 28, 2018. Doc. #453. Defendants filed replies to Plaintiff's opposition and Dickens's opposition. Docs. #447, 456. Dickens twice requested leave to file a sur-reply; both requests were denied. Docs. #457-60. The motion is now fully briefed, and ripe for consideration. II. DISCUSSION A. Sanctioning Authority Defendants seek sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, and pursuant to the Court's inherent power to award sanctions. Under Rule 37, “[i]f a party...fails to obey an order to provide or permit discovery..., the court where the action is pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A). Sanctions may include prohibiting a party from supporting his claims, designating facts as established, striking pleadings (in whole or in part), and dismissing the action (in whole or in part). Fed. R. Civ. P. 37(b)(2)(A). In addition to or instead of the above sanctions, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Dismissal, which is sought by Defendants, may be considered as a sanction “only if there is (1) an order compelling discovery, (2) a willful violation of that order, and (3) prejudice to the other party.” Schoffstall v. Henderson, 223 F.3d 818, 823-24 (8th Cir. 2000) (citation omitted); Dillon v. Nissan Motor Co., 986 F.2d 263, 266 (8th Cir. 1993) (noting, under Rule 37, “dismissal may ordered as a sanction upon a finding of bad faith, willfulness, or fault.”). *5 In addition to the Court's authority to issue sanctions pursuant to Rule 37, “[f]ederal courts possess certain “inherent powers,” not conferred by rule or statute, “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (citation omitted); Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citations omitted). The Court's authority “includes the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Goodyear Tire & Rubber Co., 137 S. Ct. at 1186 (internal quotation and citation omitted). The Court may assess attorneys' fees if a party “has acted in bad faith” to reimburse legal fees incurred by the other side. Id. (citation omitted). “[T]he fee award may go no further than to redress the wronged party for losses sustained; it may not impose an additional amount as punishment for the sanctioned party's misbehavior.” Id. (internal quotation and citation omitted). B. Bases of Defendants' Motion (1) Alleged Failure to Cooperate and Engage in Good Faith Discovery Defendants argue Dickens failed to cooperate and engage in good faith discovery by (1) failing to produce or belatedly producing documents; (2) providing misleading deposition testimony; and (3) informal communicating in a “beguiling” manner. Doc. #440, at 8-13. a. Document Production Defendants argue Dickens failed to produce the $20,000 check for the loan she gave Cusimano, and the $20,000 check to Cusimano for the proceeds from the SLCas loan. Doc. #440, at 9. Judge Larsen directed Dickens to produce “a copy of the $20,000.00 check” to Cusimano “to the extent it is available.” Doc. #437. Although it is unclear as to which $20,000 payment was referenced, Dickens's attorney informed Defendants that Dickens was unable to locate the $20,000 check to Cusimano for the loan she gave him in March 2014, and the $20,000 check to Cusimano for the loan proceeds in November 2014 did not exist because money was withdrawn to purchase a cashier's check. Doc. #447-4, at 2; Doc. #453-16. Dickens testified during her deposition she believed Cusimano was given a $20,000 cashier's check in November 2014. Doc. #440-1, at 57-60; Doc. #456-3, at 8-9. The Court cannot require a party to produce a document she does not possess or a non-existent document. Moreover, the information that could have been elicited from these documents was revealed in depositions and other documents. Dickens and Cusimano testified about the $20,000 loan she gave him in March 2014, and the $20,000 Cusimano received in November 2014 from the proceeds of the $40,000 loan. Doc. #440-1, at 45, 57, 60; Doc. #440-10, at 15. Also, Defendants received the promissory note executed by Cusimano for the loan from Dickens (Doc. #440-12), the promissory noted executed by Cusimano for the $40,000 loan from SLCas (Doc. #440-13), and Dickens Law's November 2014 bank statement reflecting a $40,000 wire transfer from SLCas and a $20,000 withdrawal (Doc. #440-14). Thus, Defendants' effort to discover relevant evidence was not hindered by Dickens's failure to produce a document she no longer possessed, or a document that never existed. Defendants also contend Dickens belatedly produced her fee agreement with Cusimano, and the monthly statement of interest Cusimano owed her for the loan. Doc. #440, at 9-10. Dickens produced these documents on June 28, 2018. Doc. #440-9. Although Defendants maintain the belated production “frustrated [their] right to obtain relevant information and records,” Defendants received these documents before deposing Cusimano (about whom both documents relate), and one month before the limited discovery closed. Doc. #430. The belated production of these documents did not stymie Defendants' attempt to obtain relevant discovery. Defendants decry Dickens's belated production of enlarged but illegible copies of the checks to Cusimano. Doc. #440-11, at 13-14. Copies of the checks were produced earlier in the limited discovery, but the copies were redacted. Id. at 10; Doc. #440-1, at 56-57. Dickens later produced unredacted copies of the checks. At Judge Larsen's direction, Dickens produced enlarged copies of the checks on the day before the limited discovery closed, but the enlarged copies were illegible. Dickens argues Defendants should have known enlarging the checks would make them less legible. Doc. #453, at 16. Setting aside the absurdity of this argument, Dickens should have produced enlarged, legible copies when directed by Judge Larsen, not when Defendants asked yet again for these copies. Doc. #447-4. The enlarged, legible copies were produced on August 6, 2018, after Defendants filed the pending motion, but before Defendants filed replies to Plaintiff's response and Dickens's response. Docs. #447, 447-5, 456. *6 Also related to the Cusimano checks, Defendants contend Dickens improperly redacted portions of the checks. Dickens admittedly redacted the checks' memo lines, which were “litigation expense” on the $3,000 and $12,000 checks, and “settlement” on the $3,500 check. Compare Docs. #440-3, at 5-6, #440-4, at 3-4, #440-18, #440-19, and #440-21, with Docs. #440-17, at 2, and #447-5, at 34-36. The Court finds concealment of this information disconcerting, particularly when the redactions did not protect privileged information. Dickens should have produced unredacted, legible copies from the outset. Nonetheless, at some point prior to Dickens's deposition, Defendants must have received unredacted copies of the checks and those copies must have been legible because Defendants inquired about the meaning of “litigation expense” and “settlement” on the checks during her deposition. Doc. #440-1, at 31-34, 37-39. Further, Defendants do not set forth how they were prejudiced by the production of enlarged but illegible checks that had been previously produced in redacted and unredacted forms. While the Court is displeased by Dickens's belated production and improper redactions, Defendants have not established grounds for sanctions. b. Deposition Testimony Next, Defendants ask the Court to sanction Plaintiff and Dickens based upon Dickens's misleading deposition testimony, which “impeded Defendants' quest for truthful information.” Doc. #440, at 10. Defendants base this argument on (1) Dickens's testimony about what occurred with the $40,000 loan in November 2014, particularly with regard to how Cusimano was paid; and (2) Dickens being evasive during her deposition. Dickens counters that her testimony was not misleading. Rather, she mistakenly testified about a $20,000 withdrawal slip, but later corrected the mistake. Doc. #453, at 16-17. In response to several questions, Dickens did not recall the specific information requested, and did not want to speculate. Doc. #453, at 17. While Dickens's frequent use of phrases such as “the human memory is fallible” seems evasive, it may also indicate her failure to remember. Defendants fail to demonstrate they were prejudiced by Dickens's mistaken testimony or lapses in memory, or that Dickens acted in bad faith or abused the judicial process. Thus, Defendants fail to establish a basis for sanctions with regard to Dickens's deposition testimony. c. Informal Communications Defendants assert Dickens's “informal communications were beguiling.” Doc. #440, at 11. They identify (1) Dickens's emails indicating some documents could not be obtained for some time because they were in “long term storage”; (2) her representation that she would produce the settlement agreement regarding Cusimano's alleged malpractice claims but later produced a settlement statement; and (3) her representations as to the number of checks issued to Cusimano. Id. at 11-13. Dickens initially told Defendants she could not quickly gather documents that were in long term storage, but later admitted “long term storage” was the basement of her residence. Doc. #440-1, at 3-4. While Dickens's representation was disingenuous, at best, Defendants fail to establish how Dickens's misleading representation – and more importantly, any delay caused by her failure to timely produce documents – caused them prejudice. Defendants take issue with Dickens's initial representation that there was a settlement agreement resolving Cusimano's alleged malpractice claims, but later testifying she could not locate a settlement agreement. Doc. #440-1, at 26-27, 42-44, 46. Instead, Dickens located and produced a settlement statement. Id. at 42-44. Defendants do not establish how Dickens's mistaken recollection as to whether there was a settlement agreement versus a settlement statement was made in bad faith or to abuse the judicial process. Further, Defendants fail to demonstrate how Dickens's initial mistake and later production of a similar document prejudiced them. *7 Defendants also argue Dickens misrepresented the number of settlement checks issued to Cusimano. Dickens initially represented there were two settlement checks, but later identified and produced three settlement checks. During her deposition, Dickens explained she initially thought there were two checks, but when the third check was located and produced, her memory was refreshed. Doc. #440-1, at 35-39. Dickens also testified she resolved Cusimano's potential malpractice claims for “around 15 to 17,000.” Id. at 29-31, 34-37. The three checks total $18,500, in the ballpark of the settlement amount Dickens recalled. While Dickens's informal communications were not the epitome of clarity or accuracy, Defendants had and took the opportunity to question Dickens about her prior communications and clarify those communications when they deposed her. Defendants do not show how Dickens's inaccurate recall about the number of checks was made in bad faith or was an abuse of the judicial process. And Defendants fail to show they were prejudiced by Dickens's imperfect memory, particularly when all three checks were produced, and they deposed Dickens about the checks.[4] Considering all of Defendants' arguments that Dickens failed to cooperate and engage in good faith discovery, the Court finds sanctions are not appropriate. With regard to Defendants' request for sanctions in form of dismissal of this matter pursuant to Rule 37 of the Federal Rules of Civil Procedure, Defendants fail to establish Dickens willfully violated an order compelling discovery, and they do not demonstrate they were prejudiced. Schoffstall, 223 F.3d at 823-24 (citation omitted); Dillon, 986 F.2d at 266-67. With regard to Defendants' request for sanctions pursuant to the Court's inherent power to issue sanctions, Defendant do not establish Dickens abused the judicial process or acted in bad faith. There is no evidence Defendants were prevented from obtaining relevant discovery due to Dickens's conduct. Accordingly, Defendants' request for sanctions based upon Dickens's alleged failure to cooperate and engage in good faith discovery is denied. (2) Alleged Violations of the Rules of Professional Conduct and Public Policy Defendants ask the Court to enter sanctions due to Dickens's improper payments to Cusimano, which violated the Rules of Professional Conduct and public policy against improper payments to witnesses. Defendants argue sanctions are appropriate based upon the conflicting testimony of Dickens and Cusimano about the settlement, the notations on two of the settlement checks, Dickens's redaction of the notations on the settlement checks, and the timing of the loan and settlement payments.[5] With regard to their argument based upon conflicting testimony, Defendants ignore conflicts between Cusimano's July 2018 deposition testimony and Cusimano's December 2016 affidavit. In his December 2016 affidavit, Cusimano stated, among other things, Dickens admitted she committed malpractice, she and he discussed a settlement amount, he accepted a “settlement offer,” and he was paid. Doc. #440-4, at 5. In July 2018, contrary to his affidavit, Cusimano testified he never asked to be paid for a malpractice claim, and was not paid for a malpractice claim. Doc. #440-10, at 16. Presumably, Cusimano had a better recollection of the settlement and payments in December 2016, less than seven months after he received the last check from Dickens Law, than he did in July 2018. Tellingly, Cusimano, during his deposition in July 2018, frequently referenced his inability to remember, the passage of time, his attempts to try to forget about his prior lawsuits against Defendants, his six concussions, and his desire to get “as far away from this situation as possible.” Doc. #440-10, at 2, 4-5, 10-13, 15-16. *8 Dickens's testimony is akin to Cusimano's December 2016 affidavit. She testified she informed Cusimano that she committed malpractice, encouraged him to retain separate counsel to negotiate a settlement of the malpractice claim, entered into an agreement with Cusimano to resolve the potential malpractice claim, and paid Cusimano a total of $18,500. Doc. #440-1, at 25-37.[6] While Cusimano's and Dickens's testimonies contradicted one another in July 2018, Dickens's testimony does not contradict Cusimano's December 2016 affidavit. Considering Cusimano's prior affidavit coupled with his recent deposition testimony indicating, among other things, his memory was lacking and he was distancing himself from the “living...hell,” Defendants' contention about conflicting deposition testimonies of Dickens and Cusimano ignores Cusimano's prior affidavit. Defendants argue the checks to Cusimano are not what they purport to be because the notation “litigation expense” appears on two checks. One check referenced “settlement” in the memo line. Dickens wrote the “settlement” check, including the notation in the memo line. Doc. #440-1, at 39; Doc. #447-5, at 34. The other checks, which indicate “litigation expense” in the memo lines, were prepared by Dickens's administrative assistant. Doc. #440-1, at 34. Unlike the “settlement” check, which was handwritten, the “litigation expense” checks are typed. Doc. #447-5, at 35-36. Dickens also testified the three checks represented the settlement of Cusimano's potential malpractice claim against her. Id. at 39. While the notation of “litigation expense” is peculiar given the purpose of the checks, Defendants have not demonstrated the notation was a fabrication. Defendants also point to the timing of the checks in relation to testimony or statements given by Cusimano. But this representation ignores that Cusimano's story has remained largely unchanged before this matter's inception, prior to his receipt of a loan from Dickens, prior to the settlement of his potential malpractice claims against Dickens, and throughout this matter. It also ignores Plaintiffs' reliance on Cusimano's affidavits and deposition testimony in this matter before Cusimano receipt the three checks from Dickens Law in 2016. In fact, roughly a year passed between the last affidavit Cusimano executed in this matter and receipt of those checks. This Court declines to sanction a party or attorney for violating a rule prohibiting an attorney from offering “an inducement to a witness that is prohibited by law,” when there is no evidence the attorney offered a witness an inducement prohibited by law. Mo. R. Prof. Conduct 4-3.4. While Defendants speculate there may be a nefarious motive, there is no evidence showing Dickens paid Cusimano for his testimony. Based upon the information, testimony, findings, and documents presented to the Court, the payments made to Cusimano in the spring of 2016 were based upon his settlement of potential malpractice claims against Dickens.[7] C. Defendants' Knowledge of Dickens's Loan and Payments to Cusimano *9 While the substance of Defendants' motion for sanctions has been considered, the Court must discuss what Defendants and their counsel knew about the loan and settlement, and when they knew it. Defendants' motion for limited discovery was granted based upon Defendants' and their counsel's representations as to a recent development: their receipt of information about Dickens's loan and/or settlement payments to Cusimano. Defendants' motion for limited discovery was precipitated by their receipt of the Final Hearing Report (“Report”) from the Kansas Board for Discipline of Attorneys on March 27, 2018, regarding proceedings against Dickens. Doc. #397-1. Defendants informed the Court that Dickens's loan to Cusimano “was unknown to Defendants' counsel in this action until they received the Report,” and the settlement of Cusimano's potential malpractice claims were “only revealed to Defendants through the Report.” Doc. #397, at 4. One of Defendants' representations may be accurate but misleading, and the other is false. When Defendants refer to Dickens as “beguiling,” the Court is reminded of that centuries-old idiom, “the pot calling the kettle black.” Defendants have known about Dickens's loan to Cusimano for at least three years. In fact, it was Defendants' outside counsel in the Cusimano matter who filed a complaint with the Kansas Office of Disciplinary Administrator regarding Dickens in April 2015. Doc. #447-2, at 2. In August 2015, Defendants' in-house counsel attended Cusimano's deposition during which Cusimano testified about the loan from Dickens. Doc. #442-1, at 2-3; Doc. #453-6. In addition, Dickens contends the promissory note for the loan was produced to Defendants in the Cusimano matter. Doc. #453-5, at 1.[8] Defendants could have shared the information about this loan with their outside counsel in this matter in April 2015, when this matter was pending with the Court. While discovery closed in March 2015, Defendants could have sought leave to reopen discovery in April 2015. Although the representation as to Defendants' outside counsel's lack of knowledge about the loan may be accurate, Defendants knew about the loan for some time, and that fact was not included in the motion. See Doc. #397. Dickens maintains Defendants have known about her settlement with Cusimano since at least December 2016. Doc. #453-5, at 4. Dickens states Defendants' in-house counsel also filed a disciplinary complaint against her, seeking the revocation of her law license based upon her conduct and actions in the Cusimano case. Id. According to Dickens, Defendants' in-house counsel attended the hearing before the regional committee of the Missouri Disciplinary Office in December 2016. Id. During the hearing, Dickens admitted to committing malpractice, and detailed the settlement of Cusimano's potential malpractice claims against her. Id. Thus, Defendants have known since December 2016 about Cusimano's settlement of his potential malpractice claims against Dickens. Defendants' representation to the Court that they did not know about the settlement until April 2018 is false. And while this matter was on appeal at the time the information about the settlement was provided to Defendants, they could have sought to reopen discovery when the matter was remanded roughly one year ago, not in April 2018. *10 While they attempt to paint Dickens in a bad light in their motion for sanctions, Defendants should look in the mirror. Defendants' lack of candor about discovery of the loan and settlement is disconcerting, particularly when it was Defendants' lack of knowledge that supposedly prevented them from requesting the limited discovery before April 2018. As it found with regard to Dickens's redaction of information, the Court finds Defendants' misstatements fall short of the standards expected by this Court. See Exhibit A. For this additional reason, the Court does not accept Defendants' argument that they have been prejudiced by having to request the limited discovery (when they could have sought it earlier), or Dickens's conduct during the limited discovery (when Defendants were not candid with the Court). D. Plaintiff's Decision Not to Call Cusimano as a Witness Plaintiff recently informed the Court he does not anticipate calling Cusimano as a witness. Doc. #442, at 2. If Cusimano is called to testify, Plaintiff argues Defendants have Cusimano's deposition testimony and documents with which to cross-examine and impeach him. Id. Defendants are aggravated Plaintiff initially relied on Cusimano as a key witness, but only recently indicated he may not call Cusimano at trial. Doc. #447, at 1-3. Had Plaintiff informed Defendants of his decision not to call Cusimano, Defendants claim they would have avoided expending time and money to conduct discovery related to Cusimano and Dickens.[9] Id. While they utilized Cusimano's deposition testimony and affidavits in this matter, Plaintiffs' reliance on Cusimano did not serve them well. In the three instances in which Plaintiffs sought relief and relied on Cusimano's testimony or affidavit in doing so, Plaintiffs were unsuccessful. Docs. #30, 121, 269. This begs the question: how critical was or is Cusimano's testimony? In May 2018, Dickens withdrew as counsel of record, and Lynne Bratcher, who only entered her appearance in this matter when it was remanded, became lead counsel for Plaintiff. Bratcher indicates “Plaintiff does not intend to call Cusimano as a witness.” Doc. #442, at 4. Based upon that representation alone, Cusimano will not be permitted to testify. III. SCHEDULING OF MEDIATION, PRETRIAL CONFERENCE, AND TRIAL Once again, the Court must set this matter for trial. The Court will hold a pretrial conference on November 8, 2018, at 10 a.m. in Chambers. The jury trial will commence at 8 a.m. on Monday, December 10, 2018, in Courtroom 8C in the United States District Courthouse in Kansas City, Missouri. Now that the disputes surrounding the limited discovery are resolved, the Court refers this matter for mediation. The Honorable John T. Maughmer, who previously mediated this case, will contact counsel to schedule the mediation. The parties and their counsel shall appear with persons authorized to resolve this matter, and shall participate in good faith. IV. CONCLUSION For the foregoing reasons, Defendants' Motion for Sanctions is denied. A pretrial conference will be held on November 8, 2018, at 10 a.m., and trial will commence at 8 a.m. on December 10, 2018.[10] IT IS SO ORDERED. Footnotes [1] Ostensibly, another lawsuit precipitated at least some of the discord among the parties and their counsel in this matter. Two months after this matter was filed and one month prior to the Court's first order admonishing the parties and their attorneys, The Cordish Companies, Inc., Lounge KC, LLC, and Kansas City Live Block 126 Entertainment, LLC (hereinafter, “Cordish”) filed a lawsuit against Plaintiffs' counsel, Linda Dickens, her law firm (Dickens Law, LLC), and another employee of her law firm, in the United States District Court for the District of Kansas. Cordish Cos., Inc. v. Dickens Law, LLC, No. 2:14-CV-2211-JWL-JPO. Therein, Cordish alleged Dickens, her law firm, and another firm employee violated the Racketeer Influenced and Corrupt Organization Act (“RICO”), and Dickens made defamatory statements with actual malice about Cordish. Id. (Doc. #1). The District of Kansas dismissed the lawsuit in August 2014, less than four months after it was filed, finding Cordish failed to state a claim under RICO, and declining to exercise supplemental jurisdiction over the defamation claim. Id. (Docs. #24-25). [2] While the appeal was pending, the parties' acrimonious relationship persisted, as revealed in their briefing of motions related to the garnishment and release of Plaintiffs' assets, Plaintiffs' motion to approve bond and stay execution of judgment, Plaintiffs' motion for contempt, and Defendants' motion to strike. Docs. #301-05, 311-16, 318-23. [3] Defendants also ask the Court reconsider rulings on certain motions in limine. In a separate filing, Defendants sought leave to amend pretrial filings. Docs. #441, 443. The Court granted their request, and directed the parties to file amended pretrial filings and motions in limine related to the limited discovery by September 21, 2018. Doc. #445. To the extent they seek relief other than what has been granted already, Defendants' request is denied. [4] Within their arguments about Dickens's informal communications, Defendants' reference the redacted memo lines on the settlement checks, and the “underlying purposes” of the checks. Doc. #440, at 12. It is unclear as to how her redactions constitute informal communications; nonetheless, the Court already addressed this issue. See supra, section II(B)(1)(a). With regard to the underlying purposes of the checks, Defendants point to Dickens's and Cusimano's conflicting testimonies about the settlement of his potential malpractice claims against her. The Court addresses this argument infra, section II(B)(2). [5] The Court's discussion about Dickens's redactions of the checks is set forth supra, section II(B)(1)(a). [6] In investigating a complaint, the Kansas Board for Discipline of Attorneys found Dickens and “G.C. reached an agreement to settle G.C.'s potential malpractice action against [Dickens]. [Dickens] paid G.C. what they agreed on.” Doc. #397-1, at 37. [7] Dickens admittedly violated the Code of Professional Responsibility when she loaned money to Cusimano during the pendency of his case. Doc. #453, at 2. This violation was the subject of a complaint registered with the Kansas Board of Discipline of Attorneys (“KBDA”). Doc. #397-1. Because this misconduct did not occur in this matter, did not involve the parties in this matter, and has being examined by the Kansas Board of Discipline of Attorneys (Doc. #447-2), the Court declines to sanction Dickens based upon this violation of the Code of Professional Responsibility. Whatever sanction that is (or was) imposed by the KBDA or the Kansas Supreme Court will be sanction enough. [8] In their reply, Defendants did not address Dickens's representations as to Defendants' or their counsel's knowledge about the loan and/or settlement. Doc. #456. [9] Defendants also argue they should be allowed an opportunity to renew their motion for summary judgment on the one remaining claim. Defendants' request is denied. [10] To the extent this Order is deemed to be critical of attorney conduct, it applies only to the attorneys who served as lead counsel throughout the majority of the pendency of this matter.