Wolters Kluwer Financial Services, Inc. v. Scivantage, No. 07-2491 (2d Cir. 2009)
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07-2491-cv (L) Wolters Kluwer Financial Services, Inc. v. Scivantage 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: December 2, 2008 Decided: April 21, 2009) Docket Nos. 07-2491-cv (L), 07-3410-cv (Con), 08-0031-cv (Con), 08-0036-cv (Con), 08-0029-cv (Con) - - - - - - - - - - - - - - - - - - - -x Wolters Kluwer Financial Services, Inc., Plaintiff, Marc S. Reiner, Kristan Peters, Dorsey & Whitney LLP, Appellants, - v.Scivantage, Adname Charchour, Sanjeev Doss, Cameron Routh, Gregory Alves, Defendants.* - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, McLAUGHLIN, B.D. PARKER, Circuit Judges. A law firm and two of its partners appeal from the * The Clerk of Court is directed to amend the official caption as indicated. 1 imposition of sanctions by the United States District Court 2 for the Southern District of New York (Baer, J.). 3 the imposition of sanctions as to one partner (who is no 4 longer with the firm), but reverse as to the firm and the 5 other partner. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 We affirm FRED WARDER, Esq., Patterson Belknap Webb & Tyler, LLP, New York, N.Y., for Appellant Marc S. Reiner. FRANCIS CARLING, Esq., Collazo Carling & Mish, LLP, New York, N.Y., for Appellant Kristan Peters. FRANK H. WOHL, Esq., Lankler Siffer & Wohl, LLP, New York, N.Y., for Appellant Dorsey & Whitney, LLP. DENNIS JACOBS, Chief Judge: This appeal is from non-monetary sanctions imposed by 24 the United States District Court for the Southern District 25 of New York (Baer, J.) upon the law firm of Dorsey & 26 Whitney, LLP ( Dorsey ), and two of its partners: Kristan 27 Peters (no longer with the firm) and Marc Reiner. 28 underlying litigation, Dorsey client Wolters Kluwer 29 Financial Services, Inc. ( Wolters ) sued four of its former 30 employees in the Southern District of New York, alleging 31 that they had taken certain proprietary information and 2 In the 1 divulged it to their new employer, the technology company 2 Scivantage. 3 orders of confidentiality, Dorsey voluntarily dismissed the 4 suit and re-filed a substantially identical suit in the 5 District of Massachusetts (Scivantage having contested 6 personal jurisdiction in the Southern District of New York). 7 Dorsey then filed a motion in the Massachusetts action 8 seeking injunctive relief and attaching some of the 9 discovery material produced by defendants in New York. After considerable discovery conducted under 10 Following a hearing into the voluntary dismissal and the use 11 of the discovery material (as well as other issues) the New 12 York district court issued a 130-page opinion imposing non- 13 monetary sanctions on Dorsey, Peters, Reiner, and their 14 client. 15 of sanctions on Peters in light of the abundance of evidence 16 of her misconduct; but we reverse the sanctions imposed on 17 Dorsey and Reiner. Wolters has not appealed. We affirm the imposition 18 19 20 I Although the sanctions are non-monetary, the district 21 court respected the reputational impact of sanctions, and 22 made detailed findings that allow disposition on appeal 3 1 without remand. 2 v. Scivantage et al., 525 F. Supp. 2d 448 (S.D.N.Y. 2007) 3 (Opinion & Order). 4 explain the disposition of this appeal. 5 See Wolters Kluwer Financial Services Inc. We adduce only those facts necessary to Dorsey filed suit on behalf of Wolters in March, 2007, 6 alleging federal and state violations, and seeking 7 injunctive relief. 8 restraining order and ordered expedited discovery. 9 parties exchanged discovery documents, and the individual The district court granted a temporary The 10 defendants were deposed.1 11 district court entered a Confidentiality Order providing in 12 part that certain material--including all discovery material 13 at issue here-- shall not be used [in] any other litigation 14 proceeding, and that the district court s jurisdiction to 15 enforce those restrictions would survive the lawsuit. 16 While discovery was ongoing, the Defendants moved to dismiss on the ground (inter alia) 17 that the district court lacked personal jurisdiction over 18 the defendants, all of them located in Massachusetts. 1 The During one of these depositions, defendant Sanjeev Doss admitted that he had Wolters files on his computer when the suit was filed, but that he had deleted them. This admission raised concerns of spoliation among the Dorsey attorneys, and appears to have raised the temperature of the litigation. 4 1 Dorsey attorneys then began to consider voluntary dismissal 2 in New York and re-filing in the District of Massachusetts. 3 Wolters gave Peters permission to dismiss the suit. 4 a subsequent conference call with the court and opposing 5 counsel, however, Peters did not mention the pending 6 dismissal. 7 call, Peters (the partner in charge) instructed Reiner (the 8 junior partner on the case) to file the dismissal; Reiner 9 sent notice of the dismissal by regular mail--though not 10 11 During Either during or shortly after the conference electronically. Despite the dismissal, Peters refused to return the 12 discovery material produced by defendants, including three 13 CDs (containing 153,000 pages of documents) that were 14 produced after the dismissal had been quietly effected. 15 Despite repeated orders by the district court to return all 16 discovery material, including copies of deposition 17 transcripts, the return of discovery material was not 18 completed until two weeks after the suit was dismissed. 19 the meantime, Peters filed a motion for temporary injunctive 20 relief in the District of Massachusetts, appending 115 pages 21 of material produced in New York that were subject to the 22 Confidentiality Order. 5 In 1 Defendants moved for sanctions, and the district court 2 scheduled an evidentiary hearing. The parties subsequently 3 settled, and the defendants withdrew the sanctions motion; 4 but the court, having its own concerns regarding the 5 lawyers conduct, proceeded with the hearing. 6 the court imposed a total of twenty-seven non-monetary 7 sanctions on Dorsey, Peters, and Reiner, and their client. 8 The firm and the individual lawyers appeal. Ultimately, 9 II 10 11 We review a district court s imposition of sanctions 12 for abuse of discretion. Schlaifer Nance & Co. v. Estate of 13 Warhol, 194 F.3d 323, 333 (2d Cir. 1999). 14 court must ensure that the district court s sanctions are 15 not based on an erroneous view of the law or on a clearly 16 erroneous assessment of the evidence. 17 quotation marks omitted). 18 clearly erroneous where the reviewing court is left with 19 the definite and firm conviction that a mistake has been 20 committed. 21 168 (2d Cir. 2001) (internal quotation marks omitted). 22 the imposition of sanctions is also improper where it Id. The reviewing (internal An assessment of the evidence is Zervos v. Verizon New York, Inc., 252 F.3d 163, 6 And 1 cannot be located within the range of permissible 2 decisions. Id. at 169. 3 These familiar principles notwithstanding, we bear in 4 mind that when the district court is accuser, fact finder 5 and sentencing judge all in one, Schlaifer, 194 F.3d at 334 6 (internal quotation marks omitted), our review is more 7 exacting than under the ordinary abuse-of-discretion 8 standard, Perez v. Danbury Hosp., 347 F.3d 419, 423 (2d 9 Cir. 2003). Imposition of sanctions under a court s 10 inherent powers requires a specific finding that an attorney 11 acted in bad faith. 12 inherent-power sanctions are appropriate only if there is 13 clear evidence that the conduct at issue is (1) entirely 14 without color and (2) motivated by improper purposes. 15 at 336. 16 legal or factual basis; it is colorable when it has some 17 legal and factual support, considered in light of the 18 reasonable beliefs of the attorney whose conduct is at 19 issue. 20 that conduct is without color or for an improper purpose, 21 must be supported by a high degree of specificity in the 22 factual findings. Schlaifer, 194 F.3d at 338. Moreover, Id. Conduct is entirely without color when it lacks any Id. at 337. A finding of bad faith, and a finding Id.; Eisemann v. Greene, 204 F.3d 393, 7 1 396 (2d Cir. 2000) (per curiam). 2 III 3 4 The district court imposed two non-monetary sanctions 5 on Dorsey & Whitney as a firm: one for voluntarily 6 dismissing the Wolters Kluwer suit in the Southern District, 7 and one for using the deposition transcripts in the 8 Massachusetts action. Both sanctions must be overturned. 9 10 11 A. Voluntary Dismissal The district court found that Dorsey s main purpose in 12 filing a Rule 41 voluntary dismissal of the Wolters 13 litigation was to judge-shop in order to conceal from its 14 client deficiencies in counsel s advocacy that had been 15 noted by the district judge in New York. 16 reasoned that this sort of judge-shopping was an improper 17 purpose and was accordingly sanctionable. 18 The district court In seeking reversal of the sanction, Dorsey advances 19 two arguments: (1) the district court s finding that Dorsey 20 lawyers acted with an improper purpose was not accompanied 21 by a finding that the firm itself acted in bad faith; and 22 (2) the conduct itself is not sanctionable because the Rule 8 1 41 dismissal was not entirely without color. 2 Dorsey on both grounds. 3 We agree with With regard to bad faith, the only passage in the 4 district court s opinion touching on culpability of the firm 5 itself is in a footnote to its conclusion, in which the 6 court wrote that the firm s culpability stems not only from 7 Ms. Peters, but also from the firm s inability . . . to 8 adequately supervise its attorneys, as well as its decision 9 to leave Ms. Peters in charge of the litigation while she 10 was on vacation. 11 court imputed Peters s bad faith to Dorsey because Dorsey 12 failed to prevent what she did. 13 [b]ad faith is personal and may not automatically be 14 visited on others. 15 DASA Corp., 560 F.2d 1078, 1089 (2d Cir. 1977). 16 Accordingly, absent other specific evidence of Dorsey s bad 17 faith, a sanction under the court s inherent power is 18 unjustified. 19 55 F.3d 34, 38 (2d Cir. 1995) ( [T]he court s factual 20 findings of bad faith must be characterized by a high degree 21 of specificity. ) (internal quotation marks omitted). 22 This passage reflects that the district But we have held that Browning Debenture Holders Comm. v. See Milltex Indus. Corp. v. Jacquard Lace Co., With regard to the Rule 41 dismissal, a plaintiff who 9 1 has not been served with an answer or motion for summary 2 judgment has an unfettered right voluntarily and 3 unilaterally to dismiss an action. 4 F.2d 1169, 1175 (2d Cir. 1979). 5 disruptive and annoying, but it is permitted by the rules: Thorp v. Scarne, 599 Dismissal of a suit may be 6 7 8 9 10 11 12 13 14 15 [P]laintiffs tend to dismiss actions that do not look promising while defendants generally want to obtain an adjudication on the merits in precisely the same cases. [But as] long as the plaintiff has brought himself within the requirements of Rule 41, his reasons for wanting to do so are not for us to judge. Id. at 1177 n.10. 16 file a valid Rule 41 notice of voluntary dismissal for any 17 reason, and the fact that it did so to flee the jurisdiction 18 or the judge does not make the filing sanctionable. 19 Accordingly, because the district court made no finding that 20 Dorsey acted in bad faith in voluntarily dismissing the case 21 under Rule 41, and because Dorsey was entitled by law to 22 dismiss the case, the district court s sanction against 23 Dorsey for filing the voluntary dismissal must be reversed. It follows that Dorsey was entitled to 24 25 26 27 B. Use of Deposition Transcripts in Massachusetts The district court sanctioned Dorsey (jointly and severally with Peters) for the use of the [deposition] 10 1 transcripts in Massachusetts in contravention of this 2 Court s Confidentiality Order. 3 district court made no sufficient finding that the firm 4 itself acted in bad faith. 5 Dorsey argues that the In support of the sanction, the district court found 6 that the firm had assigned a senior partner to supervise 7 Peters s management of the case, and that the supervising 8 partner had signed off on the use of the deposition 9 transcripts in Massachusetts. However, the record also 10 shows that the supervising partner asked Peters for a copy 11 of the Confidentiality Order; that Peters did not give him a 12 copy until after the Massachusetts motion had been filed; 13 and that he signed off on the use of the deposition 14 transcripts on the basis of Peters s representation that 15 such use was not barred by the Order. 16 supervising Dorsey partner might have insisted on seeing a 17 copy of the Order before the Massachusetts motion was filed, 18 nothing in the record suggests that the decision to permit 19 the Massachusetts filing was made by the firm in bad faith 20 or for any improper purpose. 21 against Dorsey for the use of the deposition transcripts 22 must therefore be reversed. In short, while the The imposition of sanctions 11 IV 1 2 The district court imposed two non-monetary sanctions 3 on Reiner, one for cancelling a deposition on the date the 4 suit was voluntarily dismissed, and one for sending notice 5 of the dismissal by mail but not electronically. 6 sanctions must also be reversed. These 7 8 9 A. Cancellation of Deposition The district court had directed the parties to schedule 10 the depositions of key witnesses. 11 Wolters) asked to depose Bill Wagner, whose deposition was 12 scheduled for Friday, April 13--the day of the dismissal. 13 On April 12, Reiner e-mailed defendants counsel to confirm 14 the deposition. 15 wanted to depose another witness instead. 16 opposing counsel and asked to substitute the witness; 17 opposing counsel responded that Wagner would appear as 18 scheduled. 19 Dorsey (on behalf of Later that day, Peters told Reiner that she She then e-mailed The next morning, in view of the imminent dismissal of 20 the New York suit, Reiner asked Peters if he could notify an 21 adversary lawyer that the Wagner deposition would not be 22 going ahead. Peters told Reiner to wait because she didn t 12 1 want to tip him off. 2 cancel the Wagner deposition, and he then advised opposing 3 counsel by e-mail that Dorsey was unable to go forward with 4 the Wagner deposition as scheduled because he hadn t heard 5 from them regarding the substitution of witnesses--which was 6 not so. 7 conduct in cancelling the Wagner deposition, finding that 8 his last e-mail was simply a bad faith subterfuge to hide 9 the true reason for the cancellation--namely the impending 10 She later authorized Reiner to The district court sanctioned Reiner for his voluntary dismissal. 11 Reiner makes two arguments: (1) he cancelled the 12 deposition not because of the impending dismissal but 13 because Peters had told him that she wanted to depose 14 another witness instead; and (2) even if his purpose was 15 concealment, his conduct was colorable because he had no 16 legal obligation to disclose the tactical purpose of the 17 cancellation. 18 This sanction must be reversed. It is true that Reiner 19 made a misrepresentation when he claimed that the reason for 20 the cancellation was the failure of opposing counsel to 21 answer Dorsey s request to substitute witnesses. 22 every pretextual or tactical misdirection is a sufficient 13 But not 1 ground for sanctions. It was in everyone s interest that 2 the deposition be cancelled, for a reason that Reiner lacked 3 authority (from Peters) to disclose. 4 findings clearly show that the cancellation of the 5 deposition was done for the purpose of concealment, but that 6 was the intent of Peters, not Reiner. 7 other specific evidence of Reiner s intentional misconduct, 8 the sanction must be reversed. 9 338. The district court s In the absence of See Schlaifer, 194 F.3d at 10 11 B. Filing of the Voluntary Dismissal 12 The district court also reprimanded Reiner for his 13 decision to file the voluntary dismissal without immediately 14 notifying the other side, as evidenced by his crossing out 15 of the portion of the certificate of service that provided 16 for service by e-mail. 17 finding that Reiner s conduct was made in bad faith and for 18 the improper purpose of misleading this Court and 19 Defendants. 20 that his service was procedurally adequate. The court made the requisite Reiner challenges the sanction on the ground 21 The Federal Rules of Civil Procedure specifically 22 contemplate service of pleadings by mail, and provide that 14 1 service is complete upon mailing. Fed. R. Civ. P. 2 5(b)(2)(C). 3 Southern District of New York allow for electronic service 4 also. 5 under this rule by . . . sending it by electronic means . . 6 . . ); Southern and Eastern Districts of New York Local Rule 7 5.2 ( A paper served and filed by electronic means in 8 accordance with procedures promulgated by the Court is, for 9 purposes of Federal Rule of Civil Procedure 5, served and The Federal Rules and the Local Rules of the See Fed. R. Civ. P. 5(b)(2)(E) ( A paper is served 10 filed in compliance with the local civil rules of the 11 Southern and Eastern Districts of New York. ). 12 rules do not make electronic service a requirement. 13 follows that Reiner s conduct was not entirely without 14 color, and the district court s sanction must therefore be 15 reversed. But the It Schlaifer, 194 F.3d at 336. 16 17 V 18 The district court imposed twenty-four individual non- 19 monetary sanctions against Peters, identifying a variety of 20 conduct that it found to have been undertaken in bad faith, 21 without color of law, and for an improper purpose. 22 only review a sampling of Peters s conduct to affirm the 15 We need 1 district court s imposition of sanctions. 2 3 4 A. Procedural Protections At the outset, Peters argues that the district court 5 erred in imposing sanctions in the form of reprimands 6 without affording her the procedural protections available 7 to a criminal defendant. 8 party facing sanctions may be entitled to enhanced 9 procedural protections beyond notice and an opportunity to Depending on circumstances, a 10 be heard. 11 128 (2d Cir. 1998). 12 whether the sanction is intended to be compensatory or 13 punitive; (2) whether the sanction is payable to another 14 party or to the court; (3) whether the sanction was 15 retrospective or whether it sought to coerce future 16 compliance; (4) whether the sanctioned party had an 17 opportunity to purge; and (5) whether the size of the 18 required payment was substantial. 19 Mackler Productions, Inc. v. Cohen, 146 F.3d 126, Among those circumstances are (1) Id. at 129. Mackler was based on International Union, United Mine 20 Workers of America v. Bagwell, 512 U.S. 821 (1994), which 21 considered the difference between criminal and civil 22 contempt that is committed outside the judge s presence. 16 1 See id. at 826-27 & 827 n.2. The Court explained: Unlike 2 most areas of law, where a legislature defines both the 3 sanctionable conduct and the penalty to be imposed, civil 4 contempt proceedings leave the offended judge solely 5 responsible for identifying, prosecuting, adjudicating, and 6 sanctioning the contumacious conduct. 7 concentration of power risks arbitrariness and unfairness. 8 See id. 9 avoidable and therefore do not require criminal process, Id. at 831. This While civil contempt fines are nonpunitive and 10 the threat of criminal contempt fines require criminal- 11 procedure protections. 12 the reasoning of Bagwell from criminal contempt to punitive 13 sanctions against an attorney imposed under statutory or 14 inherent authority. 15 decline to extend Bagwell even further to reach reprimands 16 against an attorney. 17 See id. at 830-32. We have extended See Mackler, 146 F.3d at 128. But we It has long been recognized that separation of powers 18 concerns are abated in the contempt or sanctions context. 19 See Bagwell, 512 U.S. at 840 (Scalia, J., concurring); see 20 also Honda Motor Co. v. Oberg, 512 U.S. 415, 430 (1994) ( As 21 [the Supreme] Court has stated from its first due process 22 cases, traditional practice provides a touchstone for 17 1 constitutional analysis. ); Sun Oil Co. v. Wortman, 486 U.S. 2 717, 730 (1988) ( If a thing has been practiced for two 3 hundred years by common consent, it will need a strong case 4 for the [Due Process Clause] to affect it. (quoting 5 Jackson v. Rosenbaum Co., 260 U.S. 22, 31 (1922))). 6 Historical practice demonstrates that nonmonetary attorney 7 discipline (unlike punitive fines) does not require the full 8 panoply of criminal procedures. 9 Punitive fines and imprisonment are the common tools of 10 the criminal law. See Bagwell, 512 U.S. at 827-29. 11 of attorney discipline, such as reprimands, are not 12 traditional criminal punishments, as they serve not merely 13 to punish and deter like the criminal law, but to ensure 14 ethical conduct before the courts. 15 U.S. 265 (1883), the Supreme Court held that the 16 constitutional privilege of trial by jury for crimes does 17 not apply to prevent the courts from punishing its officers 18 for contempt, or from removing them in proper cases, 19 because sanctions such as reprimands are not for the 20 purpose of punishment, but for the purpose of preserving the 21 courts of justice from the official ministrations of persons 22 unfit to practice in them. In Ex parte Wall, 107 Id. at 288. 18 Tools Accordingly, the 1 Court held that to strike an attorney from the rolls, notice 2 and a hearing suffice for due-process purposes, as it is a 3 regular and lawful method of proceeding, practiced from time 4 immemorial. 5 common law, attorneys could be held in contempt without a 6 jury trial. 7 *280-81 (noting that the summary proceeding of attachment 8 without a jury trial was immemorially used to punish 9 contempt committed by attorneys and solicitors, which, if 10 frequent or unpunished, creates among the people a distrust 11 of the courts themselves ); see also David Eady & A.T.H. 12 Smith, Arlidge, Eady & Smith on Contempt 8 (3d ed. 2005) 13 (noting that at common law, [o]fficers of the court seem to 14 have been regarded as being in a special position, such that 15 they could be dealt with summarily even for offenses out of 16 court ). 17 Id. at 288-89. Blackstone confirms that at See William Blackstone, 4 Commentaries *277, While Mackler suggests that a court s supervisory 18 authority over attorneys does not permit punitive fines 19 without criminal process, the common law and long use and 20 practice support the court s authority to impose on an 21 attorney nonmonetary sanctions such as public reprimands 22 without a full criminal proceeding. 19 Peters has not 1 identified a single court that has required that criminal 2 procedures be employed before imposition of reprimands 3 against an attorney. 4 contemporary practice, which recognizes the difference 5 between punitive fines and reprimands, we hold that 6 attorneys need not be given the full rights required in a 7 criminal trial before the court may impose such nonmonetary 8 disciplinary sanctions for litigation misconduct. Based on this clear historical and 9 10 11 B. Disclosure of Attorney s Eyes Only Material Joseph Honor, a Wolters employee, testified that Peters 12 disclosed to him answers given by an opposing party in the 13 course of a deposition that had been designated Attorney s 14 Eyes Only. 15 testimony, found that Peters knowingly, intentionally, and 16 in bad faith disclosed confidential material to her client. 17 The record clearly reflects that Peters disclosure of this 18 material was without color of law, and for an improper 19 purpose in violation of the court s order. 20 to disturb this sanction on appeal. The district court, crediting Honor s 21 22 20 We see no reason 1 2 C. Failure to Attend a Deposition The district court ordered that the deposition of 3 defendants witness Michael Wiatrak be conducted on 4 Thursday, April 12 at 9 a.m. 5 mailed defense counsel confirming the deposition, but 6 neither she nor any other Dorsey lawyer showed up. 7 district court sanctioned Peters under Federal Rule of Civil 8 Procedure 37(d), which grants a district court broad power 9 to impose sanctions on a party who disobeys a discovery The night before, Peters e- 10 order. 11 The 131 F.3d 332, 334 (2d Cir. 1997) (per curiam). 12 See Friends of Animals, Inc. v. U.S. Surgical Corp., We review a district court s imposition of Rule 37 13 sanctions for abuse of discretion. John B. Hull, Inc. v. 14 Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d 15 Cir. 1988). 16 failure to appear at the deposition directly contravened the 17 court s discovery order. There is no abuse of discretion here: Peters s The sanction is affirmed. 18 19 20 D. Ordering of Duplicate Transcripts On April 19, the district court ordered Dorsey to 21 return to its adversaries all copies of their deposition 22 transcripts in Dorsey s possession. 21 Two days later, while 1 Reiner and the other Dorsey attorneys were working to comply 2 with the court s order, Peters privately contacted the court 3 reporting company and ordered another copy of several of the 4 deposition transcripts that were being returned. 5 told the company that Dorsey had misplaced its originals. 6 The district court sanctioned Peters for ordering these 7 additional copies, finding that Peters acted in bad faith. 8 Peters s conduct was entirely without color of law, and was 9 clearly taken for the improper purpose of circumventing the 10 district court s order. 11 Peters sanction. 12 We affirm the district court s Having reviewed these three instances, we see no need 13 to consider the other sanctions for which the district court 14 issued reprimands. 15 to why the other nineteen sanctions are defective, and 16 because the sanctions are all non-monetary, the subtraction 17 of one or another from the whole course of conduct would not 18 alter the nature or tenor of the district court s rulings. No likely argument has been advanced as 19 20 For these reasons, we reverse the sanctions imposed on 21 Dorsey and on Reiner, but affirm the sanctions imposed on 22 Peters. 22
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