United States of America v. Sierra Pacific Industries et al, No. 2:2009cv02445 - Document 124 (E.D. Cal. 2011)
Court Description: ORDER denying SPI's 107 Motion for Reconsideration of Discovery Order, signed by Judge John A. Mendez on 1/10/11. SPI shall comply with Magistrate Judge Brennan's Order 92 within seven days from the date of this Order. (Kastilahn, A)
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United States of America v. Sierra Pacific Industries et al Doc. 124 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 13 ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 SIERRA PACIFIC INDUSTRIES, et al., 16 Defendants. 17 18 Case No. 2:09-CV-02445 JAM-EFB ORDER DENYING SIERRA PACIFIC INDUSTRIES’ MOTION FOR RECONSIDERATION OF DISCOVERY ORDER This matter comes before the Court on Defendant Sierra 19 Pacific Industries’ (“SPI”) Motion for Reconsideration of 20 Discovery Order (Doc. #107). 21 opposes the motion (Doc. #111). Plaintiff United States of America 22 23 I. FACTUAL AND PROCEDURAL BACKGROUND 24 On August 10, 2010, the United States Forest Service 25 invited the public to a series of seven tours of a Forest 26 Service Project on the Plumas National Forest. 27 (“Schaps”), an associate attorney with Downey, Brand, counsel of 28 record for SPI, attended the public tour, along with other Michael Schaps 1 Dockets.Justia.com 1 members of the public. During the tour, Schaps communicated 2 with a number of Forest Service employees. 3 Schaps inform those employees that he was an attorney with the 4 law firm representing SPI in this pending litigation. At no time did 5 Upon learning that Schaps attended the tour and asked 6 questions to Forest Service employees, the United States filed a 7 Motion for Protective Order to Bar Improper Ex Parte Contacts 8 and Produce Evidence of Ex Parte Contracts; And Prohibit Use of 9 Evidence Obtained From Ex Parte Contacts (Doc. #68) before the 10 Honorable Edmund F. Brennan, Magistrate Judge. 11 briefing and a hearing, Magistrate Judge Brennan granted the 12 United States’ Motion for a Protective Order (Doc. #92). 13 now asks this Court to reconsider and set aside Magistrate Judge 14 Brennan’s Order. 15 II. After extensive SPI OPINION 16 A. Legal Standard 17 28 U.S.C. § 636(b) and E.D. Cal. Local Rule 303 govern the 18 standard for a Motion for Reconsideration. The district court 19 “may reconsider any pretrial matter . . . where it has been 20 shown that the magistrate judge’s order is clearly erroneous or 21 contrary to law.” 22 Rule 303(f). 23 highly deferential; see United States v. Abonce-Barrera, 257 24 F.3d 959, 968-69 (9th Cir. 2001), and does not permit the 25 reviewing court to substitute its own judgment for that of the 26 magistrate judge’s. 27 951 F.2d 236, 241 (9th Cir. 1991). 28 U.S.C. § 363(b)(1)(A); E.D. Cal. Local The standard of review under § 636(b)(1)(A) is Grimes v. City & County of San Francisco, 28 2 1 B. Magistrate Judge’s Opinion 2 Magistrate Judge Brennan held that Rule 2-100 of the Rules 3 of Professional Conduct of the State Bar of California 4 (“California Rules”) was violated by SPI’s counsel’s 5 communication with Forest Service employees during the August 6 10, 2010 public tour. 7 1. 8 Legal Standard Rule 2-100 is a “no contact rule” which states that 9 “[w]hile representing a client, a member shall not communicate 10 directly or indirectly about the subject of the representation 11 with a party the member knows to be represented by another 12 lawyer in the matter, unless the member has the consent of the 13 other lawyer.” 14 Rule 2-100 contains a “public body”/“public officer” 15 exception to the no contact rule. 16 “[t]his rule shall not prohibit communications with a public 17 officer, board, committee, or body.” 18 but not formally adopted, opinion by the California state bar, 19 the public officer exception allows for contact with a 20 represented party or employee if the communication is with: 21 a person to whom a communication would be constitutionally protected by the First Amendment right to petition the government. Such a person would be one who, for example, has the authority to address, clarify or alter governmental policy; to correct a particular grievance; or to address or grant an exemption from regulation. 22 23 24 25 Subsection (C)(1) states that According to a proposed, 26 Proposed Formal Opinion Interim No. 98-0002. 27 Formal Opinion focuses primarily on the level of the public 28 official’s authority to determine whether the public official 3 Thus, the Proposed 1 exception applies. 2 unadopted opinion were line police officers, and they were 3 determined not to be of the requisite level of authority to be 4 covered by the public officer exception. 5 6 2. The public officials at issue in the Magistrate Court’s Analysis Magistrate Judge Brennan found that the public officer 7 exception of subsection (C)(1) does not apply to the instant 8 case. 9 Amendment right to seek redress of a particular grievance, but “Schaps’ actions were not an exercise of a First 10 were rather an attempt to obtain evidence from these employees.” 11 Doc. #92 at 10. 12 attending a public information tour of a project site. 13 facts show and the court finds that he was attempting to obtain 14 information for use in the litigation that should have been 15 pursued through counsel and through the Federal Rules of Civil 16 Procedure governing discovery.” 17 found no evidence to support a conclusion that Schaps was 18 communicating with a policy-making official or persons with 19 authority to change a policy or grant some specific request for 20 redress that Schaps was presenting. 21 Schaps asked questions that went well beyond Id. “[T]he Additionally, the court Id. at 11. Accordingly, the court found that the “public officer” 22 exception of Rule 2-100 (C)(1) has no application in this case 23 and granted the government’s motion for a protective order and 24 discovery sanctions. 25 federal employees contacted without knowledge of counsel for the 26 United States in this matter to date, as well as the dates and 27 circumstances of each contact, and to produce originals and 28 copies of all recordings or documents relating to such The court ordered SPI to identify all 4 1 communications. 2 C. Analysis 3 Magistrate Judge Brennan’s decision is not clearly erroneous 4 or contrary to law. Magistrate Judge Brennan found that the Forest 5 Service workers with whom SPI’s counsel communicated, do not have 6 decision-making powers and have no authority to redress a 7 grievance. 8 Amendment right to petition the government, but was instead engaged 9 in an attempt to discover and gather evidence and statements from He also found that Schaps was not exercising his First 10 those employees for use in litigation. 11 Magistrate Judge Brennan’s factual findings and application of the 12 law to be supported by the record and proper analysis. 13 that Magistrate Judge Brennan failed to acknowledge and/or address 14 the actual text of Rule 2-100. 15 Forest Service is a “public body” under 2-100(c)(1) and its 16 counsel’s communications with any employee of the Forest Service is 17 permitted. 18 Brennan’s Order is fully consistent with the plain meaning of the 19 terms “public officer” and “public body.” 20 denote something more than any and all government employees. 21 This Court finds that SPI argues In particular, SPI argues that the This argument is without merit. Magistrate Judge These terms clearly This Court agrees with Magistrate Judge Brennan’s conclusion 22 that SPI’s interpretation of Rule 2-100 would carry the “public- 23 official” exception to Rule 2-100 too far. 24 intended “public officer” or “public body” to mean all government 25 employees it would have said as much. 26 not mean an individual and SPI’s argument that the Forest Service 27 is a “public body” is irrelevant given the undisputed fact that all 28 of Schaps’ communications were with individual employees of the 5 If the State Bar had The term “public body” does 1 Forest Service. As the government argues, in common usage, “public 2 body” implies a multi-member group of individuals who derive 3 authority from their collective action, such as a city council or 4 Congress. 5 Magistrate Judge Brennan, to reconcile SPI’s argument for 6 “unfettered access” to all government employees with the 7 unpublished state bar opinion. 8 unprecedented situation where attorneys for private litigants would 9 be permitted to speak to any government employee about any subject It is impossible for this Court, as it was for Holding otherwise would create the 10 for the purpose of obtaining information to be used against the 11 government in litigation. 12 Finally, this Court believes it is important to make clear 13 that it is troubled by SPI’s counsel’s behavior and decisions 14 with respect to this particular incident. 15 of the ordinary and the Court takes SPI’s counsel at its word 16 that it will not occur again. 17 prohibits “any conduct that degrades or impugns the integrity of 18 the Court or in any manner interferes with the administration of 19 justice.” 20 forbid all “conduct involving dishonesty, fraud, deceit, or 21 misrepresentation.” 22 8.4(c). 23 statements of fact, but misleading omissions. 24 “Misrepresentations can also occur by partially true but 25 misleading statements or omissions that are the equivalent of 26 affirmative statements.” 27 4.1, Comment 1. 28 confidential” (Schaps’ Decl. (Doc. #107-1) ¶ 5). Such conduct is out Local Rule 180 explicitly E.D. Cal. Local Rule 180(e). The ABA Model Rules Model Rule of Professional Conduct R. These rules not only forbid affirmative false Model Rule of Professional Conduct Here, Schaps was instructed to “attempt to stay 6 Such an 1 instruction is difficult to reconcile with SPI’s position that 2 it had nothing to hide and did nothing wrong. 3 identifying himself as counsel for SPI, Schaps stated only his 4 full name and that he was a member of the public. 5 ¶ 17. 6 statement, omitting that he represents SPI is an ethical lapse 7 because Schaps was not at the Forest Service tour simply as an 8 interested citizen, but as an attorney gathering evidence to be 9 used in litigation. Instead of Schaps’ Decl. Even if Schaps did not make an affirmative false While Schaps had an absolute right to 10 attend the tour, as a practicing attorney he is held to a higher 11 standard of ethical behavior than a general member of the 12 public, particularly when he is intimately involved in 13 litigation against the tour’s sponsor. 14 intent behind Local Rule 180(e) and Rule 2-100. 15 advocacy overcame professional responsibility in this particular 16 instance. 17 happen again. Such is clearly the Zealous It should not, and, the Court is certain, will not 18 19 III. ORDER 20 For the reasons set forth above, 21 SPI’s Motion for Reconsideration is DENIED. SPI shall 22 comply with Magistrate Judge Brennan’s Order (Doc. #92) within 23 seven (7) days from the date of this Order. 24 25 IT IS SO ORDERED. Dated: January 10, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 26 27 28 7
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