Opinion
No. CIV 08-1046 WJ/LFG.
June 10, 2010
REPORT AND RECOMMENDATION
Within fourteen (14) days after a party is served with a copy of this analysis and recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such analysis and recommendation. A party must file any objections within the fourteen-day period allowed if that party wants to have appellate review of the analysis and recommendation. If no objections are filed, no appellate review will be allowed.
THIS MATTER is before the undersigned Magistrate Judge on a referral from United District Court Judge William Johnson [Doc. 91] to make recommendations on the ultimate disposition of Defendants Gary Carson and Don Mangin's ("Carson and Mangin") "Motion to Strike Summary Judgment "Exhibit B" and Undisputed Material Facts Based on the Impermissibly Obtained Recorded Statement of Defendant Peter Camacho and for Sanctions," filed April 23, 2010 [Doc. 84]. Carson and Mangin's Motion to Strike is full briefed. [Doc. Nos. 85, 93, 96.] Oral argument is not necessary.
After careful consideration of the pleadings and attachments, the Court recommends that Carson and Mangin's Motion to Strike be granted and that sanctions be assessed against Plaintiffs and Defendants Peter Camacho ("Camacho"), Jason Bowie ("Bowie"), and James LaPorte ("LaPorte"), as described herein.
Factual and Procedural Background
On January 14, 2009, Plaintiffs filed an amended complaint for civil rights violations against the five named individual defendants. [Doc. 7.] The complaint identifies Camacho, Bowie and LaPorte as law enforcement officers employed by the Rio Rancho Department of Public Safety; and Mangin, Carson and Bouska as law enforcement officers employed by the New Mexico Department of Corrections. [Doc. 7, ¶¶ 4, 5, 6.]
A sixth Defendant was dismissed. [Doc. 49.]
Plaintiffs are represented by the law firm of Kennedy and Han. Defendants Camacho, Bowie, and LaPorte (Rio Rancho Department of Public Safety officers) are represented by Stephen G. French. The other two defendants, Carson and Mangin (Department of Corrections officers) are represented by a separate law firm, Civerolo, Gralow, Hill Curtis.
Briefly, Plaintiffs allege civil rights violations and negligence on the part of Defendants from the alleged unlawful seizure and arrest of Plaintiffs and the alleged unlawful search and seizure of Plaintiffs' property. Plaintiffs also assert state tort claims of assault, battery, false arrest, and false imprisonment against all Defendants. Defendants deny the allegations. [Doc. 20, p. 2.]
Some claims against some Defendants have been dismissed. See Doc. Nos. 52, 55.
For a more detailed summary of the factual contentions, see Doc. 55.
According to the Joint Status Report, the incident in question occurred on about July 6, 2007, when the New Mexico Joint Terrorism Task Force conducted a special operation focusing on gangs and gang activity in Rio Rancho, New Mexico. All Defendants participated to varying degrees in the operation and encounter with Plaintiffs on July 6th that form the basis of this lawsuit. [Doc. 20.]
The two groups of Defendants filed separate Answers. [Doc. Nos. 10, 17.] Each Answer raised defenses of qualified immunity. [Doc. 10, pp. 5-6; Doc. 17, p. 6.] On April 8, 2009, the Court issued an Order on Qualified Immunity Assertion, observing that all Defendants asserted qualified immunity as a defense. [Doc. 26.] The Court's Order explained that all discovery would be stayed pending resolution on a request for qualified immunity. However, the Court further instructed that if Plaintiffs needed limited discovery in order to respond to a motion to dismiss or for summary judgment, they could file a Fed.R.Civ.P. 56(f) affidavit, specifically showing what discovery was necessary and what the expected discovery would disclose. [Doc. 26, pp. 1-2.]
On June 10, 2009, Carson and Mangin filed a motion for summary judgment based on qualified immunity. [Doc. 33.] On that same date, Carson and Mangin filed an opposed motion to stay discovery pending a decision on the assertion of qualified immunity. [Doc. 35.] Counsel for Defendants Camacho, Bowie, and LaPorte (Steve French) did not oppose the motion to stay, but Plaintiffs did. [Doc. 35.]
On June 16, 2009, Plaintiffs filed their opposition to the motion to stay. [Doc. 36.] They argued, in part, that the Court should not stay discovery as to the other three Defendants — Camacho, Bowie, and LaPorte. They also attached a Rule 56(f) affidavit stating what limited discovery was necessary, including depositions of Camacho, Carson, and Mangin. Plaintiffs' counsel stated in the Rule 56(f) affidavit that Steve French, counsel for Camacho, Bowie, and LaPorte, did not oppose continuing with discovery and did not seek a stay as to his clients, notwithstanding attorney French's concurrence with the other Defendants' motion to stay.
On June 22, 2009, the undersigned Magistrate Judge granted Carson and Mangin's motion to stay, requiring that all discovery in the case be stayed pending a decision on the qualified immunity motion. [Doc. 37.] In its Order, the Court explained the underlying purpose of the qualified immunity defense and why a stay of discovery for all parties is required when qualified immunity is raised.
The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including "avoidance of disruptive discovery." Siegert v. Gilley, 500 U.S. 226, 236, 111 S. Ct. 1789 (1991) (Kennedy, J. concurring in judgment). There are serious and legitimate reasons for this. If a Government official is to devote time to his or her duties, and to the formulation of sound and responsible policies, it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of Government.
* * * *
It is no answer to these concerns to say that discovery for petitioners [individuals entitled to a qualified immunity defense] can be deferred while pretrial proceedings continue for other defendants [those not entitled to assert qualified immunity]. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure that the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery.
[Doc. 37, p. 2] ( citing Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1953 (May 18, 2009)).
On June 24, 2009, Plaintiffs filed a motion stay responsive deadlines and resubmitted the Rule 56(f) affidavit that was part of the opposition to the motion to stay. [Doc. 39.] Plaintiffs noted that the Court, in its Order granting the stay, had not addressed the Rule 56(f) affidavit or Plaintiffs' request for limited discovery. [Doc. 39.]
On June 29, 2009, the Court issued an Order granting in part and denying in part Plaintiffs' motion for limited discovery. [Doc. 40.] The Court permitted depositions of Camacho, Mangin, and Carson limited to specific inquiries related to the qualified immunity analysis. The Court did not, however, allow the depositions to proceed without limitations. [ See Doc. 40, p. 2.]
The issue raised by the present motion to strike relates to Plaintiffs' counsel's decision to take statements of Camacho, Bowie, and LaPorte on June 25, 2009, three days after the Court stayed discovery and four days before the Court allowed limited discovery. There is a dispute as to how to characterize the statements given by the three Defendants. Plaintiffs identify the statements as "voluntary, consensual interviews." [Doc. 93, p. 1.] Defendants Carson and Mangin characterize the statements as secret, sworn depositions, for which they received no notice and did not attend.
Plaintiffs' counsel filed certificates of service on July 21, 2009, regarding notices to take depositions of Mangin and Carson. [Doc. Nos. 42, 43.]
It is undisputed that these statements were recorded on June 25, 2009, and that Plaintiffs' counsel asked questions of Camacho, Bowie, and LaPorte, who were present with their attorney Steve French. It is also undisputed that their statements were sworn. The Court does not know if the statements were videotaped as well. Defendants Carson and Mangin, along with their attorneys, received no notice of these sworn and recorded interviews and were clearly not in attendance. Thus, they had no opportunity to object to questions, cross-examine those Defendants, rehabilitate their testimony, or take steps to protect the interests of their own clients. As noted by Justice Kennedy in Iqbal, absent counsel were unable "to ensure that the case does not develop in a misleading or slanted way that causes prejudice to their position." Iqbal, 129 S. Ct. at 1953. Moreover, Plaintiffs' Rule 56(f) affidavit did not request depositions of Bowie and LaPorte, nor did the Court's subsequent Order allowing very limited discovery address depositions of Bowie and LaPorte.
Carson and Mangin did not realize that the sworn and recorded interviews were conducted in June 2009, until August 24, 2009, when Plaintiffs filed a response to their motion for summary judgment on qualified immunity, [Doc. 45], and attached Camacho's sworn testimony elicited in this secret proceeding as an exhibit. [Doc. 45, Ex. 3.] The cover sheet of the "officer statements" indicates that Plaintiffs' attorneys, Kennedy and Han were present, as was attorney French, along with his three clients Camacho, LaPorte and Bowie. The attached portions of the sworn and recorded interviews read like a deposition with attorney Han questioning the witness and the witness answering. Exhibits were used and discussed. In addition, Defendant Bowie answered questions as to his present and past employment and his graduation from high school.
In Carson and Mangin's reply in support of their motion for summary judgment, they alerted the Court that Exhibit 3 (Camacho's statement, along with portions of Bowie's statement) should be stricken as it was a transcript of a deposition taken in violation of the Court's Stay Order. [Doc. 46.] On December 9, 2009, the District Court denied the majority of Carson and Mangin's motion for summary judgment finding the existence of disputed material facts. [Doc. 55.] However, the District Court Judge observed that in denying the motion for summary judgment, it did not rely on Exhibit 3 (Camacho's statement) and was concerned with the allegations as to how Camacho was deposed. The Court left it to the discretion of Carson and Mangin's attorneys whether to seek sanctions against Plaintiffs' counsel. [Doc. 55, p. 4, n. 5.]
The Court granted summary judgment as to Plaintiff Phillip Martinez's excessive force claim. [Doc. 55, p. 1.]
Discovery and pleading practice proceeded after the Court resolved the qualified immunity motion. On April 5, 2010, Plaintiffs filed a motion for summary judgment as to liability. In support, they attached portions of Camacho's recorded and sworn statement from June 2009. [Doc. 77, Ex. B.]
Present Motion to Strike
When Carson and Mangin filed their response to the motion for summary judgment on April 23, 2010 [Doc. 83], they also filed a separate motion to strike Plaintiffs' summary judgment exhibit B and any or all undisputed material facts based on Camacho's statement. [Doc. 84.] Carson and Mangin asked the Court to strike testimony of Camacho and also any testimony obtained from the other Defendant-officers even though they were not yet used to support Plaintiffs' pleadings. [Doc. 84, p. 1.] In addition, Carson and Mangin seek an award of sanctions, including reasonable attorney's fees related to this matter.
Analysis
The sworn and recorded statements taken by Plaintiffs' counsel of Defendants Camacho, Bowie, and LaPorte were improper. They violate the Court's Stay Order and the Federal Rules of Civil Procedure. In addition, the sworn and recorded statements violate the New Mexico Rules of Professional Conduct and the Creed of Professionalism of the New Mexico Bench and Bar. Even if Plaintiffs were engaging in discovery with the consent of Mr. French, they were doing so in violation of the Court's complete ban on discovery at that time.
Moreover, not only did experienced and respected Plaintiffs' counsel commit these violations, so too, did experienced and respected defense counsel, who knowingly attended and proceeded in the discovery process with the knowledge that the Court barred discovery. Defense counsel permitted key depositions to go forward without notice to and attendance by other defense counsel. If this conduct had been committed by inexperienced attorneys, who may not have known better, it would have been equally improper, but perhaps not as disappointing as when the conduct was committed by attorneys of high stature, good reputation, and many years of state and federal court experience. Counsels' conduct is sanctionable.
The Court's Stay Order [Doc. 37] was clear — all discovery for all parties was stayed pending the resolution of the motion for summary judgment based on qualified immunity. The Court's ruling was based on binding United States Supreme Court and Tenth Circuit Court of Appeals precedent. See, e.g., Iqbal, 129 S.Ct. 1937; Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). No appeal was taken from the Court's Order. Notwithstanding the unequivocal requirements of the Stay Order, only three days after it was entered, Plaintiffs engaged in prohibited discovery. Defense counsel for Camacho, Bowie, and LaPorte also engaged in prohibited discovery by attending and proceeding with the depositions.
While true that Plaintiffs filed a response to the motion to stay, attaching a Rule 56(f) affidavit, and also filed another pleading with the Rule 56(f) affidavit, Plaintiffs did not ask to take limited discovery as to Bowie and LaPorte, whom they apparently also deposed on June 25, 2009. Moreover, Plaintiffs filed the motion to stay responsive deadlines, seeking limited discovery, a day after they already had conducted the secret depositions. Thus, even if Plaintiffs had properly requested limited discovery as to Bowie and LaPorte, they had already engaged in that discovery without Court approval.
In addition to Plaintiffs' and defense counsel's disregard of a Court Stay Order, the Court rejects Plaintiffs' argument that Defendants Camacho, Bowie, and LaPorte provided voluntary statements that did not qualify as depositions under the Federal Rules of Civil Procedure. The statements had all of the earmarks of a Fed.R.Civ.P. 30 deposition. They were recorded and sworn statements, made in the presence of counsel, albeit in the absence of all counsel of record. Plaintiffs' counsel questioned the witnesses; the witnesses responded under oath. Exhibits were used during the depositions. The questioning was extensive. Transcripts were provided and are now used as exhibits in support of dispositive pleading practice.
Such conduct is impermissible. Rule 32 states that all or part of a deposition may be used against a party on the conditions that the party was present or represented at the deposition or had reasonable notice of it. Fed.R.Civ.P. 32(a)(1)(A). Rule 30 requires that a party who intends to depose a person by oral question give reasonable written notice to every other party. Fed.R.Civ.P. 30(b)(1). The local rules requires that counsel confer in good faith regarding the scheduling of a deposition and that service of notice of deposition be made at least 14 days before the scheduled deposition. Even if Plaintiffs were allowed to take the discovery in question, which they were not, they did not comply with any of the pertinent rules.
In addition, at a minimum, Camacho's recorded and sworn statements have been used against Carson and Mangin, who were not present at the depositions, nor did they receive any notice of the depositions. The depositions were improper, regardless of how Plaintiffs may "style," label or characterize them.
Given the patent violation, it is not surprising that there are few published or unpublished decisions addressing this matter. The violations of the Court's Order and the Federal Rules of Civil Procedure are clear on their face. Plaintiffs rely on an unpublished opinion from the Southern District of Florida, West Coast Life Ins. Co. v. Life Brokerage Partners, LLC., No. 08-80897, 2009 WL 2244223, at *3 (S.D. Fla. Jul. 27, 2009) (unpublished). The case is distinguishable because there was no Stay Order issued in that case. Moreover, the case is non-binding on this Court. Similarly, Bozeman v. Orum, 422 F.3d 1265, 1267 n. 1 (11th Cir. 2005), reh'g denied, 186 F. App'x 984 (11th Cir. 2006) has no bearing on this matter as the recorded statement at issue was made before a lawsuit was filed, and again, there was no Stay Order in place.
Plaintiffs' counsel and defense counsel for Camacho, Bowie, and LaPorte also violated the Creed of Professionalism that requires counsel to "consult with opposing counsel before scheduling depositions and meetings. . . ." A Creed of Professionalism of the New Mexico Bench and Bar, § C. In addition, both counsel violated the Rules of Professional Conduct that prohibit attorneys from knowingly disobeying an obligation under the rules of a court. NMRA 16-304(C).
It is unclear why Plaintiffs' counsel elected to proceed with discovery in the face of a Stay Order, or why they requested limited discovery a day after they had already engaged in discovery. In addition, it is unclear why defense counsel French would countenance a discovery proceeding that served to deny other defendants an opportunity to participate.
Recommended Sanctions
Rule 37 of the Federal Rules of Civil Procedure authorizes imposition of sanctions when a party fails to obey a discovery order. Fed.R.Civ.P. 37(b)(2)(A). Sanctions may range from striking a pleading in whole or in part, staying further proceedings, or dismissing an action, in whole or in part. Fed.R.Civ.P. 37(b)(2)(A)(i-vii). Instead of these sanctions or in addition to them, the Court "must" order a disobedient party, the attorney advising that party, or both, to pay the reasonable expenses, including attorney's fees, caused by the violation, unless the failure or violation was substantially justified. Fed.R.Civ.P. 37(b)(2)(C).
When a Court considers imposition of sanctions as a result of a violation of a court order, especially the dismissal of a party's complaint, it is appropriate to conduct an analysis in accordance with Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992). See also Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988) (dismissal with prejudice is clearly a severe sanction reserved for extreme circumstance).
Under Ehrenhaus, the first factor to consider is whether the opposing party suffered actual prejudice by the violation. The prejudice here is clear. Defendants' ability to fairly defend themselves was compromised. Plaintiffs attempted to use the fruits of an impermissible discovery process to challenge Defendants' motion for summary judgment based on qualified immunity. They also used the impermissible discovery to support their own pending motion for summary judgment on liability. Defendants were not given notice of the secret proceeding, could not attend it, and had no opportunity to object to the examination of witnesses.
The second factor requires examination of whether the violation interferes with the Court process. Here, it does. The Federal Rules and Orders of the Court establish the appropriate process and procedure that govern civil actions in a federal forum. They define the scope of the litigation and facilitate a way to ensure the just, speedy, and inexpensive determination of an action. Fed.R.Civ.P. 1. When either the Rules or Orders of the Court are thwarted, the Court process falters and the case does not proceed as efficiently and economically to final resolution.
As a result of the violation in this case, the timely disposition of Plaintiffs' motion for summary judgment is delayed. Motion practice directed at the violation was necessary. All this tends to cause delay and unnecessary expense, and sap judicial resources.
The third Ehrenhaus factor requires a determination of culpability. In an instance where the litigant is responsible for the violation, then it is the litigant who bears the burden of the sanction. If, however, a violation is the fault of the party's attorney, then the attorney is the proper party to suffer the sanction. In re Matter of Baker, 744 F.2d 1438, 1442 (10th Cir. 1984) (if the fault lies with the attorneys, that is where the impact of the sanction should be lodged), cert. denied, 471 U.S. 1014 (1985); M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 873 (10th Cir. 1987) (same).
In this case, the decision to take depositions and conduct discovery is an attorney-controlled function. Thus, the financial sanction will be the responsibility of the culpable attorneys.
The fourth factor involves consideration of whether the Court gave fair warning of consequences for the violation of its orders and directives. See Willner v. Univ. of Kansas, 848 F.2d 1023, 1030 (10th Cir. 1988), cert. denied, 488 U.S. 1031 (1989). While counsel would be aware that violation of a court order can have serious repercussions, see, e.g., Fed.R.Civ.P. 16(f) and 37, counsel would not necessarily anticipate that a case could be dismissed. Because neither the parties nor counsel were specifically warned that dismissal of the litigation or claims against certain Defendants might be a likely consequence, dismissal is an inappropriate sanction at this time.
Based on the violations, the undersigned Magistrate Judge recommends that sanctions be assessed against counsel for Plaintiffs (Kennedy and Han) and counsel for Defendants (Steven French). First, the Court recommends that Carson and Mangin's motion to strike be granted in its entirety. This means that the exhibit is stricken and that all proposed undisputed material facts or argument relating to those facts should be stricken or disregarded. In essence, this means that Plaintiffs will need to re-file their motion for summary judgment as to liability having removed the offending exhibit and any reference to the exhibit by way of the undisputed material facts or argument. Moreover, none of the recorded statements of Camacho, Bowie, LaPorte should be used in any manner in this case. They may not be used as exhibits nor may they be referred to in any subsequent pleading or argument. They are to be disregarded altogether.
As attorney French was given no opportunity to respond to the motion to strike, should he disagree with this Report and Recommendation, he is now afforded an opportunity to object. See p. 1, n. 1.
Second, the Court recommends that Defendants Carson and Mangin be awarded their reasonable attorney's fees in the amount of $2000.00 for all briefing related to this issue. These Defendants, whose rights were violated or denied, should not have to suffer the additional burden of attorney's fees incurred in the vindication of this motion. That amount of the award of attorney's fees should be divided evenly between Plaintiffs' counsel and defense counsel and submitted to counsel for Carson and Mangin within ten (10) days of the District Court's decision on this recommendation.
This amount represents a fair and reasonable fee related to the briefing of the motion to strike as well as briefing related to that portion of the reply to the motion for summary judgment based on qualified immunity.
IT IS SO ORDERED.