Opinion
Case No. 3:11-CV-0662-VPC
02-04-2014
JAYNA CARTER, Plaintiff, v. OTIS ELEVATOR COMPANY, et al., Defendants.
ORDER
Before the court is the matter of a criminal contempt proceeding against C. Stephen Carr, Ph.D, ("Dr. Carr"), whom the plaintiff Jayna Carter ("plaintiff") retained as an expert witness.
I. Procedural History
The parties in this action submitted and the court approved a protective order governing the disclosure of confidential documents and materials that the attorneys and expert witnesses might exchange in this case (#25). Paragraph 7 of the protective order provides:
Each expert, agent or consultant or other representative who is permitted by any attorney for the parties to view, examine, scan or otherwise inspect the documents subject to this confidentiality agreement shall agree in writing to be bound by the agreement. A copy of this confidentiality agreement shall also be delivered to each of the above-listed persons by the attorneys for the parties.Paragraph 9 of the agreement governs the return of confidential documents and requires "all documents produced subject to this confidentiality agreement, and any copies, lists or summaries thereof, shall be returned within thirty days after trial and/or other final resolution of the above-entitled action to the party who produced such documents, . . ." Id.
Dr. Carr acknowledged his obligations concerning documents identified as "confidential" in the protective order and agreed that he would return all such documents, including copies, lists, or summaries at the resolution of the case, and that he would not shred or dispose of these documents (#53-2, Ex. 2, Decl. of Dr. Carr).
On April 24, 2013, the parties had a settlement conference before Magistrate Judge Cobb, who was the original magistrate judge randomly assigned to this case. The minute order of the conference indicates that the parties settled the case, and Judge Cobb ordered the parties to submit a stipulation dismissing the case (#50). However, in June 2013, after the settlement conference and before the case was dismissed, defendants' counsel filed a motion for order to show cause why Stephen Carr should not be held in contempt of court (#s 52 & 53).
The motion for order to show cause reports that as the parties were finalizing the settlement of the case, defendants requested a return of confidential documents from Dr. Carr (#52). When Dr. Carr failed to return all of the documents, plaintiff's counsel contacted him a second time, and he responded: "There were no other materials worthy of anything more than a trip to the trash can and everything else was discarded weeks ago." Id., Ex. 5 to Hamilton Affidavit. According to defendants, this was the second instance in which Dr. Carr had violated a protective order and failed to return confidential documents; therefore, defendants sought criminal contempt sanctions against Dr. Carr pursuant to Nevada law (#52).
Judge Cobb held a hearing on June 28, 2013, to discuss the motion for order to show cause. Dr. Carr was present telephonically, but had not retained counsel (#59). Judge Cobb explained that because this is a diversity case, federal law applied to this procedural issue, not state law. Id. He then explained the extent of a magistrate judge's contempt authority pursuant to 28 U.S.C. § 636(e), the distinction between civil and criminal contempt, and concluded that the alleged violation of the protective order constituted criminal contempt Id.
After explaining the procedure for criminal contempt, the court told the parties and Dr. Carr that they could also consent to have Judge Cobb conduct all proceedings related to the contempt motion pursuant to 28 U.S.C. § 636(c), by submitting a consent of the action to a magistrate judge by July 12, 2013. Id. In the event all parties consented, Judge Cobb set the show cause hearing for August 5, 2013. Id. Thereafter, John C. Boyden, Esq. filed a notice of appearance of counsel for Dr. Carr (#60), and Judge Cobb recused from the case (#61).
Mr. Boyden is a member of the law firm where Judge Cobb was employed prior to his appointment as a magistrate judge.
On August 7, 2013, Judge Jones, the District Judge assigned to the case, signed an order that the case was referred to a United States magistrate judge "to conduct criminal contempt proceedings pursuant to Fed.R.Crim.P. 42 in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ. P. 73" (#63) (emphasis supplied). The notice portion of the form also states "The following parties consent to have a United States magistrate judge conduct contempt proceedings in this case pursuant to Fed.R.Crim. P. 42." (#63) (emphasis supplied).
The forms attached to Judge Jones's order and signed by counsel for the defendants also contain the same language that the case is referred for criminal contempt proceedings. See #63, pages 2 &3.
After Judge Cobb recused, the case was referred to this court (#63), and the court held a status conference on August 22, 2013 (#65). Mr. Boyden made his appearance on behalf of Dr. Carr, the parties and the court discussed the status of the show cause proceeding, Mr. Boyden indicated he would consent to this court's jurisdiction, and the court set the matter for hearing on October 23, 2013 (#66). On August 6, and August 27, 2013, respectively, the Clerk of Court received notices of consent to a magistrate judge, which contained the same language found in the consents of defendants' counsel; that is, that they were consenting to the magistrate judge conducting criminal contempt proceedings. See Exhibits A & B to this order. However, Judge Jones did not sign these orders. Id.
On November 19, 2013, Mr. Boyden and Dr. Carr submitted a second notice of consent (#78). The Clerk entered the notation, "See Order [63]" and docketed the consent form (#78). Judge Jones did not approve this order either, because it was not presented to him for approval. However, the wording of this notice comports with form provided by the Administrative Office of the United States Courts, and this is the form that is linked to the District of Nevada's website.
The Clerk's Office representative reported to the court that the deputy clerks responsible for receiving and submitting the notices of consent were unaware the form had been altered.
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The wording is important, as it differs from the order Judge Jones signed (#63), and the notice Mr. Boyden and Dr. Carr submitted back in August 2013. The pertinent language in the "notice" portion of the form reads:
Consent to magistrate judge's authority. The following parties consent to have a United States magistrate judge conduct all proceedings in this case including, trial, the entry of final judgment, and all post-trial proceedings.The Reference Order, which the District Judge signs, states:
IT IS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.(#78). The form notice and order makes no reference to criminal contempt proceedings or Rule 42 of the Federal Rules of Criminal Procedure. At this juncture in the proceeding, Judge Jones had ordered consent for a criminal contempt proceeding insofar as defendants were concerned; however, he had not ruled on the notices that Dr. Carr or Mr. Boyden (twice) submitted. This fact is important because if criminal contempt proceedings were to proceed, they would proceed against Dr. Carr.
On October 16, 2013, Mr. Boyden filed a notice of supplemental authority/request for dismissal (#70). In it, he explained - correctly - that criminal, contempt proceedings arising out of civil litigation are not part of the original case; rather, they are.between the public and the defendant. See Young v. U.S. ex rel. Vuitton el Fils S.A., 481 U.S. 787, 790 (1987). Id. This court agreed and issued an order referring the matter of criminal contempt to the United States Attorney (#73). On January 9, 2014, this court notified the parties that the United States Attorney declined to prosecute this matter and directed the parties to submit a stipulation and order dismissing this case no later than January 31, 2014 (#74).
The parties did so (#75). However, the next day, defendants filed a request for a conference call (#76). The court held a hearing the following day, and defendants reported that notwithstanding that the United States Attorney declined to prosecute this matter, defendants believed the court was obliged to appoint another attorney to prosecute the contempt pursuant to Fed.R.Crim.P. 42(a)(2). This is where the case now stands.
II. Discussion and Analysis
A. Criminal Contempt
This matter has now been referred to the undersigned magistrate judge, and this court sua sponte concludes that the conduct complained of - Dr. Carr's alleged violation of a protective order in a civil case - does not rise to the level of criminal contempt. The court understands the allegations against Dr. Carr to be twofold: first, according to defendant, Otis Elevator, Inc., Dr. Carr violated the protective order in this case because rather than return all confidential documents, which he agreed to do, Dr. Carr threw them away. Second, this is not the first time Dr. Carr has been retained as a plaintiff's expert against Otis where he has violated the same provision of a protective order and simply disposed of confidential documents.
The Federal Rules of Civil Procedure afford parties many avenues to address improper conduct in civil litigation. For example, Rule 37(b) of the Federal Rules of Civil Procedure provides sanctions for failure to obey a court order regarding discovery. Local Rule IA 4-1 of the Local Rules of Practice for the District of Nevada provides imposition of sanctions for failure to abide by a court order, after notice and hearing. These rules in civil litigation are very effective and important tools in addressing violations of court orders and other bad behavior in litigation. In contrast, criminal contempt in a civil proceeding is highly unusual because the consequences are more dire: a fine and/or imprisonment. At this juncture, there is nothing in the record to suggest that Dr. Carr used the confidential documents for an illicit purpose or something similarly egregious. While Dr. Carr's failure to return confidential documents at the conclusion of this case is a serious matter, if true, criminal contempt is a grossly disproportionate sanction. The court is not going to the time and expense of appointing an independent prosecutor to get to the bottom of this alleged violation of a protective order. As noted earlier, civil sanctions can fairly and speedily address defendant's concerns.
III. Conclusion
Based upon the foregoing, and for good cause appearing,
IT IS ORDERED:
1. This court sua sponte concludes that the alleged misconduct of Dr. Carr does not warrant criminal contempt;
2. Even if it did, this court has not received approval from the District Court to proceed with criminal contempt proceedings because the District Court did not so consent as to Mr. Boyden and Dr. Carr's notices;
3. The defendant's motion for order to show cause (#s 52 & 53) will be construed as a motion under LR IA 4-1, and Dr. Carr, through counsel, has leave to file an opposition to the motion for order to show cause (#s 52 & 53) no later than Friday, February 14, 2014 at 5:00 p.m. Pacific Time. Defendants have leave to file a reply memorandum not later than Friday, February 21, 2014 at 5:00 p.m. Pacific Time; and
4. The court will either take the matter under submission or may set the matter for hearing.
IT IS SO ORDERED.
__________
VALERIE P. COOKE
UNITED STATES MAGISTRATE JUDGE
EXHIBIT A
UNITED STATES DISTRICT COURT
for the
District of Nevada
JAYNA CARTER Plaintiff
v.
CIRCUS CIRCUS CASINOS, INC. dba CIRCUS
CIRCUS-RENO, a Nevada corporation; OTIS
ELEVATOR COMPANY, DOES I through X,
inclusive and ROE BUSINESS ENTITIES I
through X, inclusive, Defendant
Civil Action No. 3:11-cv-662-RCJ-WGC
NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
Notice of a magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent.
You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case
Consent to a magistrate judge's authority. The following parties consent to have a United States magistrate judge conduct contempt proceedings in this case pursuant to Fed. R. Grim. P. 42.
Parties 'printed names
John C. Boyden
Signatures of parties or attorneys
Reference Order
IT IS ORDERED: This case is referred to a United States magistrate judge to conduct contempt proceedings pursuant to Fed. R. Crim. P. 42 in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
__________
District Judge's signature
__________
Printed name and title
Note: Return this form to clerk of the court only if you are consenting to the exercise of jurisdiction by a United States magistrate judge. Do not return this form to a judge.
EXHIBIT B
UNITED STATES DISTRICT COURT
for the
District of Nevada
JAYNA CARTER Plaintiff
v.
CIRCUS CIRCUS CASINOS, INC. dba CIRCUS
CIRCUS-RENO, a Nevada corporation; OTIS
ELEVATOR COMPANY, DOES I through X,
inclusive and ROE BUSINESS ENTITIES I
through X, inclusive, Defendant
Civil Action No. 3:11-cv-662-RCJ-WGC
NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
Notice of a magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent.
You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case
Consent to a magistrate judge's authority. The following parties consent to have a United States magistrate judge conduct contempt proceedings in this case pursuant to Fed. R. Grim. P. 42.
Parties printed names
Image materials not available for display.
Signatures of parties or attorneys
Reference Order
IT IS ORDERED: This case is referred to a United States magistrate judge to conduct contempt proceedings pursuant to Fed. R. Crim. P. 42 in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
__________
District Judge's signature
__________
Printed name and title
Note: Return this form to clerk of the court only if you are consenting to the exercise of jurisdiction by a United States magistrate judge. Do not return this form to a judge.