Opinion
Civil Action No. 02-1235, Section "E"(1).
December 6, 2004
HEARING ON MOTIONS
Submitted on briefs
TRINCHARD'S MOTION FOR SANCTIONS FOR VIOLATION OF PROTECTIVE ORDER (Rec. doc. 152)
GRANTED IN PART AND DENIED IN PART
TRINCHARD'S MOTION TO RECONSIDER THE ORDER COMPELLING PRODUCTION OF THE BURGE FILE PENDING THE COURT'S RESOLUTION OF DEFENDANTS' MOTION FOR SANCTIONS FOR VIOLATION OF PROTECTIVE ORDER (Rec. doc. 154)
DENIED
Before the undersigned is the motion of two of the defendants, Clare W. Trinchard ("Trinchard") and her law firm, Trinchard Trinchard, L.L.C., for sanctions for violation of the protective order. A related motion for reconsideration is also pending. For the reasons described below, Bruce A Cranner, counsel for the plaintiff, H.S. Stanley, Jr. ("Stanley"), bankruptcy trustee for the involuntary bankruptcy of Gary Hale ("Hale"), shall pay $500 to the Clerk of Court for the Attorneys' Registration and Disciplinary Fund within ten (10) working days of the entry of this order. All other relief sought by Trinchard and her law firm is denied.
If Charles M. Hughes, Jr. represented a party to this proceeding, a similar sanction would be imposed on him. He represents the Sheriff in a separate proceeding: Rodney Strain, Jr. v. Clare Trinchard, et al, 2003-11456, 22nd Judicial District Court for the Parish of St. Tammany.
The genesis of this controversy is long and serpentine. The events that most directly bear on the request for sanctions began with Stanley's motion to compel documents from Trinchard and her firm which he contended were required to respond to their motion for summary judgment. Rec. doc. 16. He sought an order compelling them to produce their file relative to their representation of Hale in Gerald Burge v. Parish of St. Tammany, et al, CA 91-2321 c/w CA 96-0244. Trinchard and her firm also represented the St. Tammany Parish Sheriff's Office ("Sheriff") in that proceeding. At that time, the Sheriff's appeal of the Burge case was pending before the Fifth Circuit. Trinchard and her firm contended that the Sheriff had not waived his attorney-client privilege and that their obligation of confidentiality to the Sheriff outweighed any obligation to produce the file in response to Hale's request. The undersigned found that Hale had the right to examine the file and "[t]he issues raised by the objection of the St. Tammany Parish Sheriff's Office can be resolved by a protective order that limits access to the file to Mr. Hale, the plaintiff-trustee, his counsel and any expert retained to assist the plaintiff-trustee." Rec. doc. 17 at pp. 3-4. The parties were ordered to prepare such a protective order.
On October 8, 2002, the parties submitted the protective order, which was signed by Mr. Cranner. The order was entered on October 10, 2004. Rec. doc. 20. Stanley was required to hold the file materials subject to six conditions, including:
2. Access to the materials is strictly limited to the following individuals: (a) counsel of record for the plaintiff in this matter, . . . (b) Mr. Hale; (c) plaintiff H.S. Stanley; (d) counsel of record for the plaintiff in Mr. Hale's bankruptcy proceeding . . .; and (e) any expert retained to assist plaintiff in this matter. These persons are prohibited from communicating any of the of the content of the materials to anyone not otherwise included in this paragraph;
The Sheriff was not a person who was permitted to have access to the file materials.
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4. It shall be the responsibility of counsel of record for the plaintiff in this matter to communicate the contents of this Order to the other individuals set out in Paragraph (2);
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6. Any violation of this Order is to be brought to the attention of the Court by way of written motion and, if proven, will subject the violator to the possibility of any and all reasonable sanctions and/or penalties legally available to the Court.
Rec. doc. 20. Pursuant to the protective order, Mr. Cranner obtained access to the file and copied documents from it. Rec. doc. 157 at p. 4.
On December 4, 2002, the Sheriff's appeal was argued before the Fifth Circuit. Mr. Cranner observed the argument. On December 10, 2002, he suggested that the Sheriff was entitled to the file and could demand to review it. On January 17, 2003, Mr. Cranner and Mr. Hughes met. During the meeting Mr. Cranner mentioned that he possessed documents that he had obtained from the file and the existence of the protective order. Mr. Hughes does not recall seeing the protective order. He states:
See December 10, 2002 letter from Mr. Cranner to Margaret Kern. This is one of three letters filed in the record with a minute entry dated December 6, 2004.
Id.
See Affidavit of Charles M. Hughes, Jr. at para. 5 attached to minute entry of December 6, 2004.
At that time, Mr. Cranner expressed his belief that allowing Affiant to view the documents would not violate the protective order or its "spirit," because, as counsel for Sheriff Strain, Affiant was legally entitled to see the documents, under the relevant law and based on the fact that the materials were equally Sheriff Strain's file along with Mr. Cranner's client, since the Trinchard firm had represented Sheriff Strain in the Burge litigation and in fact remained enrolled as counsel of record for Sheriff Strain as of that date.
Id. at para. 5.
At that meeting Mr. Cranner showed Mr. Hughes several inches of documents that he obtained from the litigation file, including pleadings, correspondence, attorneys' notes and reports of experts. Mr. Hughes reports that at the meeting the two attorneys had significant discussions concerning the scope of the protective order and Mr. Cranner specifically instructed Mr. Hughes that any sharing of the documents with either Gerald Burge or his counsel, Mark Smith, was a violation of the protective order. On January 20, 2004, Mr. Hughes accepted Mr. Cranner's offer to provide him with the file documents. On January 30, 2003, Mr. Cranner sent Mr. Hughes the documents from the file. Mr. Hughes prepared a petition for filing in state court on behalf of the Sheriff and attached one of the documents obtained from Mr. Cranner to this petition. He believes that this action,
[W]as necessary and done in fulfillment of his duty and professional obligations to tender the document as good-faith evidence of the allegations set out in that suit, particularly in light of the nature and seriousness of those allegations.
Id. at para. 6.
Id. at para. 8.
January 20, 2003 letter from Mr. Hughes to Mr. Cranner attached to minute entry of December 6, 2004.
January 30, 2003 letter from Mr. Cranner to Mr. Hughes attached to minute entry of December 6, 2004.
Hughes affidavit at para. 9.
Burge's counsel, Mr. Smith, examined the petition and obtained a copy of the attached and then public document. He submitted the document to the Louisiana State Bar Association, Office of Disciplinary Counsel in connection with a complaint against Trinchard and her firm. Rec. doc. 157 at pp. 4 and 5.
Mr. Cranner acknowledges that he erred in delivering the documents to the Sheriff without moving to amend the protective order. Rec. doc. 157 at p. 7. Mr. Cranner contends he did so based on his incorrect recollection that the order permitted production of the documents to the Sheriff. Therefore, Stanley urges the violation of the protective order was inadvertent.Id. at p. 2. This appears at odds with Mr. Hughes' recollection that Mr. Cranner did not believe that disclosure of the documents would violate the "spirit" of the protective order. Stanley emphasizes the alleged wrongful conduct of Trinchard and her firm in defense of the claims against Hale in the Burge litigation. He argues that any monetary sanction is not warranted where the violation of the protective order was "unintentional, understandable, and innocuous." Id. at p. 7.
Id. at para. 5.
Mr. Hughes reports that the documents he reviewed at Mr. Cranner's office presented evidence of a significant cause of action against Trinchard and her firm arising out of a "blatant conflict of interest. . . ." Although he was aware that disclosure of the documents to Burge or his counsel was a violation of the protective order, he believed he was duty bound to attach at least one of the documents to the state court petition "particularly in light of the nature and seriousness of those allegations." In November 2004, Trinchard and her firm agreed to produce the file in its entirety to the Sheriff.
Id. at para. 6.
Id. at para 9.
Id. at para. 10.
At least since July, 2004, Stanley has sought to reexamine the file. Rec. doc. 101. On October 21, 2004, Stanley's request for access to the file was granted. Rec. doc. 151. Trinchard and her firm contend that Stanley should be denied any further access to the file because of the violation of the protective order. There are now parallel proceedings in state and federal court involving similar claims against Trinchard and her firm. The Sheriff has access to the entirety of the file in the state court proceeding. Hale has copies of some materials from the file. If Hale is denied full access to the file, one result could be endless controversy over whether Hale is using the portion of the file he is entitled to or whether he has improperly obtained documents from the Sheriff. The request by Trinchard and her firm that Hale be denied any further access to the file is denied.
Mr. Cranner and Mr. Hughes have placed the undersigned in the uncomfortable position of measuring their conduct in pursuit of their representation of their clients against the requirements of the protective order and their obligations to the Court and the other litigants. The protective order represents a bright line. Its terms are clear and unambiguous. Mr. Cranner, a signatory to the order, crossed the bright line. While he urges this was done in error, Mr. Cranner had ample opportunity to confirm the content of the protective order before releasing the documents to Mr. Hughes. Although Mr. Hughes never saw the protective order, he knew that it prevented Burge or his counsel from having access to the documents. His belief that his professional responsibility to his client and his obligation to support allegations made in state court trumped the provisions of the protective order without asking this court for relief from the order also crossed the bright line.
Mr. Cranner and Mr. Hughes treated the protective order cavalierly. Mr. Hughes knew he was violating the provisions of the protective order when he attached the document to a public filing. In Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397, 1411, (5th Cir. 1993), the Fifth Circuit said it was "unclear whether the inherent power to sanction discovery abuses extends to abuses committed by non-parties . . ." Accordingly, the court declines to impose sanctions on the Sheriff or its counsel.
If the court accepts Stanley's description of Mr. Cranner's conduct, then he failed to acquaint himself with the provisions of the protective order before releasing the documents to Mr. Hughes on January 30, 2003. If counsel does not review a protective order to make certain that any disclosure of the documents was in accord with its provisions, then the order has no value. If the court accepts Mr. Hughes' description of Mr. Cranner's conduct, then he was relying on the "spirit" of the protective order rather than its letter. Mr. Cranner may or may not have correctly divined its "spirit." If the spirit of a protective order is controlling, however, each alleged violation will require a search for the subjective and thereby the objective terms of the order become meaningless. There is clear and convincing evidence that Stanley's counsel violated the terms of the protective order. See Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282, 290-291 (5th Cir. 2002). As described at the outset, Mr. Cranner shall pay $500 to the Disciplinary Fund.
IT IS ORDERED that: (1) the motion of Clare W. Trinchard and her law firm, Trinchard Trinchard, L.L.C., for sanctions and violation of the protective order (Rec. doc. 152) is GRANTED in PART and DENIED in PART in accord with the terms of this minute entry; and (2) their motion to reconsider the order compelling production of the Burge file is (Rec. doc. 154) is DENIED.