Filed: Apr. 21, 2009
Latest Update: Mar. 02, 2020
Summary: 07-2491-cv (L) Wolters Kluwer Financial Services, Inc. v. Scivantage 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 (Argued: December 2, 2008 Decided: April 21, 2009) 9 10 Docket Nos. 07-2491-cv (L), 07-3410-cv (Con), 08-0031-cv 11 (Con), 08-0036-cv (Con), 08-0029-cv (Con) 12 13 - - - - - - - - - - - - - - - - - - - -x 14 15 Wolters Kluwer Financial Services, Inc., 16 17 Plaintiff, 18 19 Marc S. Reiner, Kristan Peters, 20 Dorsey & Whitney LLP, 21 22 Appel
Summary: 07-2491-cv (L) Wolters Kluwer Financial Services, Inc. v. Scivantage 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 (Argued: December 2, 2008 Decided: April 21, 2009) 9 10 Docket Nos. 07-2491-cv (L), 07-3410-cv (Con), 08-0031-cv 11 (Con), 08-0036-cv (Con), 08-0029-cv (Con) 12 13 - - - - - - - - - - - - - - - - - - - -x 14 15 Wolters Kluwer Financial Services, Inc., 16 17 Plaintiff, 18 19 Marc S. Reiner, Kristan Peters, 20 Dorsey & Whitney LLP, 21 22 Appell..
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07-2491-cv (L)
Wolters Kluwer Financial Services, Inc. v. Scivantage
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2008
6
7
8 (Argued: December 2, 2008 Decided: April 21, 2009)
9
10 Docket Nos. 07-2491-cv (L), 07-3410-cv (Con), 08-0031-cv
11 (Con), 08-0036-cv (Con), 08-0029-cv (Con)
12
13 - - - - - - - - - - - - - - - - - - - -x
14
15 Wolters Kluwer Financial Services, Inc.,
16
17 Plaintiff,
18
19 Marc S. Reiner, Kristan Peters,
20 Dorsey & Whitney LLP,
21
22 Appellants,
23
24 - v.-
25
26 Scivantage, Adname Charchour,
27 Sanjeev Doss, Cameron Routh,
28 Gregory Alves,
29
30 Defendants.*
31
32 - - - - - - - - - - - - - - - - - - - -x
33
34 Before: JACOBS, Chief Judge, McLAUGHLIN, B.D.
35 PARKER, Circuit Judges.
36
37 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.). We affirm
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 FRED WARDER, Esq., Patterson
7 Belknap Webb & Tyler, LLP, New
8 York, N.Y., for Appellant Marc
9 S. Reiner.
10
11 FRANCIS CARLING, Esq., Collazo
12 Carling & Mish, LLP, New York,
13 N.Y., for Appellant Kristan
14 Peters.
15
16 FRANK H. WOHL, Esq., Lankler
17 Siffer & Wohl, LLP, New York,
18 N.Y., for Appellant Dorsey &
19 Whitney, LLP.
20
21 DENNIS JACOBS, Chief Judge:
22
23 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. In the
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
1 divulged it to their new employer, the technology company
2 Scivantage. After considerable discovery conducted under
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.
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. Wolters has not appealed. We affirm the imposition
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.
18
19 I
20 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. See Wolters Kluwer Financial Services Inc.
2 v. Scivantage et al., 525 F. Supp. 2d 448 (S.D.N.Y. 2007)
3 (Opinion & Order). We adduce only those facts necessary to
4 explain the disposition of this appeal.
5 Dorsey filed suit on behalf of Wolters in March, 2007,
6 alleging federal and state violations, and seeking
7 injunctive relief. The district court granted a temporary
8 restraining order and ordered expedited discovery. The
9 parties exchanged discovery documents, and the individual
10 defendants were deposed.1 While discovery was ongoing, the
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 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. The
1
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. During
4 a subsequent conference call with the court and opposing
5 counsel, however, Peters did not mention the pending
6 dismissal. Either during or shortly after the conference
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 electronically.
11 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. In
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
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. Ultimately,
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.
9
10 II
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). The reviewing
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.”
Id. (internal
17 quotation marks omitted). An assessment of the evidence is
18 clearly erroneous where the reviewing court “is left with
19 the definite and firm conviction that a mistake has been
20 committed.” Zervos v. Verizon New York, Inc.,
252 F.3d 163,
21 168 (2d Cir. 2001) (internal quotation marks omitted). And
22 the imposition of sanctions is also improper where “it
6
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.
Schlaifer, 194 F.3d at 338. Moreover,
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.
Id.
15 at 336. Conduct is entirely without color when it lacks any
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.
Id. at 337. A finding of bad faith, and a finding
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. Id.; Eisemann v. Greene,
204 F.3d 393,
7
1 396 (2d Cir. 2000) (per curiam).
2
3 III
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 A. Voluntary Dismissal
11 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. The district court
16 reasoned that this sort of judge-shopping was an improper
17 purpose and was accordingly sanctionable.
18 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. We agree with
2 Dorsey on both grounds.
3 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.” This passage reflects that the district
11 court imputed Peters’s bad faith to Dorsey because Dorsey
12 failed to prevent what she did. But we have held that
13 “[b]ad faith is personal” and “may not automatically be
14 visited” on others. Browning Debenture Holders’ Comm. v.
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. See Milltex Indus. Corp. v. Jacquard Lace Co.,
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 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.” Thorp v. Scarne, 599
4 F.2d 1169, 1175 (2d Cir. 1979). Dismissal of a suit may be
5 disruptive and annoying, but it is permitted by the rules:
6 [P]laintiffs tend to dismiss actions that
7 do not look promising while defendants
8 generally want to obtain an adjudication
9 on the merits in precisely the same
10 cases. [But as] long as the plaintiff has
11 brought himself within the requirements
12 of Rule 41, his reasons for wanting to do
13 so are not for us to judge.
14
15
Id. at 1177 n.10. It follows that Dorsey was entitled to
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.
24
25 B. Use of Deposition Transcripts in Massachusetts
26 The district court sanctioned Dorsey (jointly and
27 severally with Peters) “for the use of the [deposition]
10
1 transcripts in Massachusetts in contravention of this
2 Court’s Confidentiality Order.” Dorsey argues that the
3 district court made no sufficient finding that the firm
4 itself acted in bad faith.
5 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. In short, while the
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. The imposition of sanctions
21 against Dorsey for the use of the deposition transcripts
22 must therefore be reversed.
11
1 IV
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. These
6 sanctions must also be reversed.
7
8 A. Cancellation of Deposition
9 The district court had directed the parties to schedule
10 the depositions of key witnesses. Dorsey (on behalf of
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. Later that day, Peters told Reiner that she
15 wanted to depose another witness instead. She then e-mailed
16 opposing counsel and asked to substitute the witness;
17 opposing counsel responded that Wagner would appear as
18 scheduled.
19 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.” She later authorized Reiner to
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. The district court sanctioned Reiner for his
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 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. But not
22 every pretextual or tactical misdirection is a sufficient
13
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. The district court’s
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. In the absence of
7 other specific evidence of Reiner’s intentional misconduct,
8 the sanction must be reversed. See Schlaifer, 194 F.3d at
9 338.
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.” The court made the requisite
17 finding that Reiner’s conduct was “made in bad faith and for
18 the improper purpose of misleading this Court and
19 Defendants.” Reiner challenges the sanction on the ground
20 that his service was procedurally adequate.
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). The Federal Rules and the Local Rules of the
3 Southern District of New York allow for electronic service
4 also. See Fed. R. Civ. P. 5(b)(2)(E) (“A paper is served
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
10 filed in compliance with the local civil rules of the
11 Southern and Eastern Districts of New York.”). But the
12 rules do not make electronic service a requirement. It
13 follows that Reiner’s conduct was not entirely without
14 color, and the district court’s sanction must therefore be
15 reversed. 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. We need
22 only review a sampling of Peters’s conduct to affirm the
15
1 district court’s imposition of sanctions.
2
3 A. Procedural Protections
4 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. Depending on circumstances, a
8 party facing sanctions may be entitled to enhanced
9 procedural protections beyond notice and an opportunity to
10 be heard. Mackler Productions, Inc. v. Cohen, 146 F.3d 126,
11 128 (2d Cir. 1998). Among those circumstances are (1)
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.
Id. at 129.
19 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.”
Id. at 831. This
7 concentration of power risks arbitrariness and unfairness.
8 See
id. While civil contempt fines are “nonpunitive and
9 avoidable” and therefore do not require criminal process,
10 the threat of criminal contempt fines require criminal-
11 procedure protections. See
id. at 830-32. We have extended
12 the reasoning of Bagwell from criminal contempt to punitive
13 sanctions against an attorney imposed under statutory or
14 inherent authority. See
Mackler, 146 F.3d at 128. But we
15 decline to extend Bagwell even further to reach reprimands
16 against an attorney.
17 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. Tools
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. In Ex parte Wall, 107
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.”
Id. at 288. Accordingly, the
18
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.” Id. at 288-89. Blackstone confirms that at
5 common law, attorneys could be held in contempt without a
6 jury trial. See William Blackstone, 4 Commentaries *277,
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 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. Peters has not
19
1 identified a single court that has required that criminal
2 procedures be employed before imposition of reprimands
3 against an attorney. Based on this clear historical and
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.
9
10 B. Disclosure of “Attorney’s Eyes Only” Material
11 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.” The district court, crediting Honor’s
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. We see no reason
20 to disturb this sanction on appeal.
21
22
20
1 C. Failure to Attend a Deposition
2 The district court ordered that the deposition of
3 defendants’ witness Michael Wiatrak be conducted on
4 Thursday, April 12 at 9 a.m. The night before, Peters e-
5 mailed defense counsel confirming the deposition, but
6 neither she nor any other Dorsey lawyer showed up. The
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
10 order. See Friends of Animals, Inc. v. U.S. Surgical Corp.,
11 131 F.3d 332, 334 (2d Cir. 1997) (per curiam).
12 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). There is no abuse of discretion here: Peters’s
16 failure to appear at the deposition directly contravened the
17 court’s discovery order. The sanction is affirmed.
18
19 D. Ordering of Duplicate Transcripts
20 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. Two days later, while
21
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. Peters
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. We affirm the district court’s
11 sanction.
12 Having reviewed these three instances, we see no need
13 to consider the other sanctions for which the district court
14 issued reprimands. No likely argument has been advanced as
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.
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
