Robert STEINBUCH, Plaintiff,
v.
Jessica CUTLER and Ana Marie Cox, Defendants.
Civil Action No. 05-970 (PLF/JMF).
United States District Court, District of Columbia.
December 8, 2006.*5 Jonathan S. Rosen, Clearwater, FL, for Plaintiff.
John R. Ates, Albo & Oblon, LLP, Arlington, VA, Matthew C. Billips, Miller & Billips, P.C., Atlanta, GA, for Defendants.
MEMORANDUM OPINION
FACCIOLA, United States Magistrate Judge.
This case has been referred to me for resolution of all discovery disputes. Currently before me are plaintiffs oral motion to disqualify counsel, Plaintiffs Motion to Compel [# 47], defendant's Motion to Extend Discovery [# 49] ("Motion to *6 Extend"), and Defendant's Motion to Deem Rule 86 Requests Admitted, Motion to Compel Discovery, and Alternative Motion to Preclude Evidence [# 62] ("Defendant's Motion to Compel"). For the reasons stated below, I will recommend plaintiffs motion to disqualify counsel be denied, Plaintiffs Motion to Compel will be denied, defendant's Motion to Extend will be denied as moot, and Defendant's Motion to Compel will be granted in part and denied in part.
BACKGROUND
On May 5, 2004, defendant Jessica Cutler, while working as a staff assistant to United States Senator Mike DeWine, created an Internet blog known as the "Washingtonienne." For the following twelve days, Cutler posted various blog entries detailing her social and sexual activities with various men, including: plaintiff Robert Steinbuch. On May 18, 2004, another Internet site known as "Wonkette" and written by Ana Marie Cox, posted a link to Cutler's blog, which expanded the audience for Cutler's writings. Plaintiff Steinbuch filed the instant action on May 16, 2005, against defendant Cutler, alleging two claims of invasion of privacy and one claim of intentional infliction of emotional distress.
Cutler first moved to dismiss the action for failure to state a claim, and that motion was denied on April 5, 2006. After Cutler filed a second motion to dismiss for lack of jurisdiction, Judge Friedman stayed discovery of this case on June 30, 2006, pending the motion's outcome. The stay was lifted when the second motion to dismiss was denied on August 22, 2006. The present discovery motions at issue followed. On October 13, 2006, this Court stayed all discovery again, but later allowed briefing to continue for discovery motions already filed. On October 30, 2006, Judge Friedman granted plaintiffs motion to amend the complaint and add Ana Marie Cox as a defendant. The amended complaint was filed the same day, alleging two claims against both defendants for invasion of privacy and one claim against both defendants for intentional infliction of emotional distress. A status and scheduling hearing was held in this case on November 28, 2006.
DISCUSSION
I. Plaintiffs Motion to Disqualify Counsel[1]
This case was referred to me for purposes of discovery. At the hearing on November 28, 2006, plaintiff orally moved the Court to disqualify defense counsel Matthew Billips for various ethical violations related to discovery. As the admission to this court's bar pro hac vice was granted to Billips by the district judge, I am without jurisdiction to revoke his pro hac vice status. See In re Belli, 371 F.Supp. 111, 112 (D.D.C.1974). Nonetheless, after hearing argument on the motion, I offer my recommendation to the district judge.
Plaintiff argues Billips violated Judge Friedman's order of August 22, 2006, to exhibit conduct in accordance with the Federal Rules of Civil Procedure, Local Civil Rules of this Court, and the D.C. Bar Voluntary Standards for Civility in Professional Conduct when Billips filed his Reply brief for Defendant's Motion to Compel. According to plaintiff, Billips committed *7 ethical violations by testifying within the brief itself and by attaching anonymous student evaluation forms as an exhibit to defendant's Reply brief for her Motion to Compel, the sole purpose of which was to embarrass Steinbuch.
In response, Billips argues he committed no ethical violation. The attachment, which was received from Steinbuch's employer in response to a subpoena, goes directly to disputing plaintiffs claim of ongoing harm to his reputation among and relationship with students as a result of the Washingtonienne blog. Additionally, defendant offers the attachment to dispute plaintiff's response to defendant's Interrogatory No. 64, which requests information relating to any discipline by an employer of Steinbuch "for any behavior or conduct which was directed toward any female employee(s)." The anonymous student evaluations, according to defendant, suggest potential discipline by his employer, the University of Arkansas, for Steinbuch's treatment of certain female students.[2] Furthermore, the salacious details offered willingly by plaintiff in his non-anonymous Complaint led Judge Friedman to refuse to enter a protective order or otherwise seal documents in this case due to Steinbuch's own role in its publicity. As a result, Billips claims he has done nothing improper to merit any sanctions against him, especially anything to warrant his disqualification.
The grant of admission to a nonresident attorney to appear in this court pro hac vice is not a right but a privilege, "the granting of which is a matter of grace resting in the sound discretion of the presiding judge." In re Belli, 371 F.Supp. at 112. Once admitted pro hac vice, attorneys are expected to adhere to the same rules of procedure and professional Conduct as members of the bar of this jurisdiction. See Local Rules 83.2 and 83.12.
A federal court has the power to control admission to its bar and to discipline attorneys who appear before it. Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Lucas v. Spellings, 408 F.Supp.2d 8, 10 (D.D.C.2006). In Chambers, the Supreme Court emphasized that "[c]ourts of justice are universally acknowledged to be vested, by their very creation, with powers to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates." Chambers, 501 U.S. at 43, 111 S.Ct. 2123 (internal citations omitted). This power must be exercised with great caution, however. Id. Any sanction imposed must be carefully calibrated and be no greater than necessary to achieve the purpose for which the sanction is imposed. Bonds v. District of Columbia, 93 F.3d 801, 808-13 (D.C.Cir.1996).
Revocation of pro hac vice status is rare in this Circuit, as evidenced by the dearth of case law on this topic and the absence of any legal authority provided by plaintiff. This is not surprising, as any motion to disqualify counsel faces the extraordinarily high burden articulated by the Court of Appeals in Koller v. Richardson-Merrell, Inc., 737 F.2d 1038, 1056 (D.C.Cir.1984), vacated on other grounds, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985). In Koller, the court held that disqualification may be ordered only when the conduct is in violation of the rules of professional conduct to the point of undermining the court's confidence in the vigor of counsel's representation of her client or where the attorney is in a position to use confidential *8 information concerning her client's opponent gained from a prior representation. As the D.C. Circuit stated:
We agree [with the Second Circuit] that disqualification is warranted only rarely in cases where there is neither a serious question as to counsel's ability to act as a zealous and effective advocate for the client, nor a substantial possibility of an unfair advantage to the current client because of counsel's prior representation of the opposing party, or prior responsibility as a government official. Except in cases of truly egregious misconduct likely to infect future proceedings, other means less prejudicial to the client's interest than disqualifying the counsel of her choice are ordinarily available to deal with ethical improprieties by counsel.
Id. at 1056 (citations omitted).
The behavior of defense counsel in filing anonymous student evaluations without placing them under seal certainly deserves admonition. Billips himself acknowledges that the interrogatory speaks of Steinbuch's being disciplined for behavior directed by Steinbuch toward "employees." Students are not employees, and nothing about the document filed suggests disciplinary measures by the University of Arkansas. By the same token, defendant asked in Interrogatory No. 64 whether plaintiff could identify any documents that related to counseling or reprimands by employers of plaintiff for conduct directed at female coworkers. Plaintiff objected on the grounds that the information sought was unduly burdensome to produce and was irrelevant and immaterial. Plaintiff also stated enigmatically "Plaintiff responds.", whatever that means. Defendant protested that she questioned plaintiffs "unverified assertion that there is no information to provide." Reply Memorandum in Support of Motion to Deem Rule 36 Requests Admitted, Motion to Compel Discovery, and Alternate Motion to Preclude Evidence and Incorporated Memorandum of Law at 12. She then attached the evaluations in which some of the students complained that plaintiff was flirting with the female students in class. Allowing for exaggeration or overstatement, defendant insisted that it was hard to believe that plaintiff had not been counseled about such behavior.
The production of the evaluations had a point: it was so likely that plaintiff had been counseled that there had to be information pertaining to such counseling. I cannot say that that argument is so attenuated as to be sanctionable or that it is so obvious that production of the evaluations had no other purpose besides embarrassing plaintiff. Plaintiff has therefore not met the high standard to merit revocation of defense counsel's pro hac vice status.
Though the Court will not recommend revocation of the pro hac vice status of defense counsel at this time, it will remind all counsel in this case that appropriate sanctions are permissible for violations of the rules of discovery and professional conduct and, if such misconduct continues, may be appropriately imposed. Furthermore, given the behavior of counsel for both parties in this case, both parties are ordered not to file one single document of discovery, for any reason, without first receiving permission from this Court to do so, after providing specific grounds stating the reason such a filing is necessary.
II. PLAINTIFF'S MOTION TO COMPEL
Plaintiffs Motion to Compel seeks to compel discovery responses from defendant. However, his motion, consisting entirely of one paragraph, fails to adhere to this Court's rules of procedures. Local *9 Rule 7(a) states: "Each motion shall include or be accompanied by a statement of the specific points of law and authority that support the motion, including where appropriate a concise statement of facts." Local Rule 7(a). Plaintiff fails to provide any memorandum of law or any legal authority supporting his claim. Plaintiff's motion is therefore denied.
III. DEFENDANT'S MOTION TO EXTEND DISCOVERY
In her motion, defendant asks the Court to extend discovery an additional sixty days to December 15, 2006. At the status and scheduling hearing in this case on November 28, 2006, given multiple prior stays of proceedings, parties agreed to a new discovery deadline of January 29, 2007, for these parties. As a result, Defendant's Motion to Extend is denied as moot.
IV. DEFENDANT'S MOTION TO DEEM RULE 36 REQUESTS ADMITTED, MOTION TO COMPEL DISCOVERY, AND ALTERNATIVE MOTION TO PRECLUDE EVIDENCE
Defendant seeks to deem certain discovery requests admitted, compel responses to other discovery requests, or alternatively preclude plaintiff from presenting certain evidence and witnesses. As will now be established, many of defendant's discovery requests are already answered in full, overly broad, or otherwise objectionable. The plaintiff will be compelled to answer other requests. Since defendant complains of multiple discovery requests, the chart below summarizes the request, plaintiff s objection and any additional response, and the Court's ruling with stated reasoning.
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SUMMARY OF
REQUEST FOR SUMMARY OF COURT'S
NUMBER ADMISSION RESPONSE RULING
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12 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
disclosed his relationship and immaterial; overbroad a denial. Nothing further is
with defendant to one and vague; otherwise necessary.
or more third parties. plaintiff denies.
13 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
discussed his relationship and immaterial; overbroad a denial. Nothing further is
with defendant with and vague; otherwise necessary.
one or more third parties. plaintiff denies.
14 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
discussed spanking in and immaterial; overbroad a denial. Nothing further is
his relationship with defendant and vague; assumes necessary.
with one or more third facts not established; otherwise
parties. plaintiff denies to extent
request can be deciphered.
15 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
discussed oral sex in his and immaterial; overbroad a denial. Nothing further is
relationship with defendant and vague; otherwise necessary.
with one or more third parties. plaintiff denies to extent
request can be deciphered.
16 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
discussed sex in the missionary and immaterial; overbroad a denial. Nothing further is
position in his relationship and vague; otherwise necessary.
with defendant with plaintiff denies to extent
one or more third parties. request can be deciphered.
*10
17 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
was aware that his relationship and immaterial; overbroad a denial. Nothing further is
with defendant was and vague; plaintiff necessary.
known to others employed denies to extent request can by Senator Mike DeWine. be deciphered.
18 Prior to May 13, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
discussed his relationship and immaterial; overbroad a denial. Nothing further is
with defendant with and vague; plaintiff necessary.
others in Senator DeWine's denies to extent request can
office. be deciphered.
19 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
was aware that his relationship and immaterial; overbroad a denial. Nothing further is
with defendant was and vague; plaintiff necessary.
known to others employed denies to extent request can
by judiciary committee. be deciphered.
20 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
discussed his relationship and immaterial; overbroad a denial. Nothing further is
with defendant with and vague; plaintiff necessary.
others employed by judiciary denies to extent request can
committee. be deciphered.
21 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
was aware that his relationship and immaterial; overbroad a denial. Nothing further is
with defendant was and vague; plaintiff necessary.
known to others employed denies to extent request can
by U.S. Senate. be deciphered.
22 Prior to May 16, 2004, plaintiff Unduly burdensome; irrelevant Plaintiff has responded with
discussed his relationship and immaterial; overbroad a denial. Nothing further is
with defendant with and vague; plaintiff necessary.
others employed by U.S. denies to extent request can
Senate. be deciphered.
23-50 Each request restates each Same response to each blog Overruled. Plaintiff should
blog entry with request for entry. Unduly burdensome; respond to each request
admission relating to date of irrelevant and immaterial. with an indication of the
blog posting. "Defendant's blog is truth or falsity of the date
known as the Washingtonienne; on which the blog entry was
Defendant's complete posted.
blog is set forth in the complaint.
The complete blog
was available on May 18,
2004.
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SUMMARY OF
REQUEST FOR SUMMARY OF COURT'S
NUMBER ADMISSION RESPONSE RULING
------------------------------------------------------------------------------------------------------------------------
51 List all facts upon which Unduly burdensome; irrelevant Overruled. "Lack of complete
any denial of a request for and immaterial; "lack truth" is not a sustainable
admission above is based. of complete truth/accuracy." objection. The facts
are relevant to plaintiffs
claims and defendant has a
right to the request.
52 Provide all documents to Unduly burdensome; irrelevant Overruled. If any documents
support above denials. and immaterial. exist pertaining to
denial of any admission
requests, plaintiff must produce
them to the defendant.
54 Describe all direct interaction Unduly burdensome; irrelevant Sustained; instead, the interrogatory
plaintiff had with defendant and immaterial. must be narrowed
since January 1, 2004. "Plaintiff had numerous to the period of May
interactions with Defendant 1, 2004, to June 15, 2004,
*11
during this time period." but may include all contact
between plaintiff and defendant,
to include physical
contact and by any form of
communication whatsoever.
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55 Identify all third parties Unduly burdensome; irrelevant Overruled. Defendant is to
with whom plaintiff discussed and immaterial; "over fully respond to the interrogatory.
his interactions with broad, vague, and seeks
defendant, including date privileged information."
and substance of conversations.
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56 Describe any action taken Unduly burdensome; irrelevant Overruled. Plaintiff must
by defendant to cause harm, and immaterial; "Defendant's specify the specific harm
including date, description, blog caused Plaintiff done to him and the date
response, and reason for harm by invading his the harm was sustained.
liability. privacy and intentionally
causing emotional distress
from May 2004 until obtaining
his current employment."
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57 State each part of the blog Unduly burdensome; irrelevant Overruled. Plaintiff is to
plaintiff contends is false and immaterial; otherwise fully respond to the interrogatory.
and what actually happened responds "among other
instead. things the following is false:
D's discussions re: handcuffs,
Chief of Staff, events
concerning W and other
characters in the blog,
statements made by P, sexual
encounters and statements."
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58 Describe harm to plaintiff in Unduly burdensome; irrelevant Overruled. Plaintiff should,
seeking employment, including and immaterial; otherwise at the point of filing suit, be
prospective employer, responds: "Hemline able to explain the basis of
title and job description, Law School, Dean John his suit by explaining the
contact information for each Garron, St. Paul, MN; damage to employment
prospective employer, compensation Charlston (sic) Law School, prospects. If the extent of
and benefits for Dean Richard Gershon, the harm is not yet known,
each job, reason for not Charlston (sic), SC; Washington plaintiff should respond
receiving the job, and each DC legal recruiters, with the harm that is known
person who told plaintiff he names unknown." at this point. He should
would not get the job. specify which law schools
and legal recruiters declined
to interview him or offer
him employment because of
the blog and which of them
specifically so indicated.
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59 Itemize monetary damages Unduly burdensome; irrelevant Overruled. Response is
for loss of income and benefits. and immaterial; otherwise utterly deficient. Plaintiff
responds: "specifics should know at this point
unknown at this moment." damages, if any, due to lost
employment prior to his
current employment.
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60 If seeking damages for Unduly burdensome; irrelevant Overruled. Plaintiff is to
physical, mental, emotional, and immaterial; otherwise provide names of any health
or psychological injury, responds: "Plaintiff care providers responsive to
identify names of health saw Dr. in DC area as a the interrogatory or
care providers. result of damages caused by acknowledge there were
Defendant's blog subject to none.
this suit. Name unknown
at this moment"
*12
------------------------------------------------------------------------------------------------------------------------
61 Specify additional damages Unduly burdensome; irrelevant Overruled. Plaintiff is to
caused by defendant, including and immaterial. provide details relating to
when damage occurred, "Plaintiff's damages are invasion response.
basis of recovery, of his privacy, emotional
and identify related documents. distress, lost job
opportunities, and loss of a
friend."
------------------------------------------------------------------------------------------------------------------------
62 If claiming damages for Unduly burdensome; irrelevant Sustained. Request is
physical, mental, psychological, and immaterial; overbroad overly broad.
or emotional injury, and duplicative.
identify any other health
provider in last ten years.
------------------------------------------------------------------------------------------------------------------------
64 Identify anything relating Unduly burdensome; irrelevant Overruled. Plaintiff must
to counseling, reprimands and immaterial. clarify response with either
by employers of plaintiff for "Plaintiff responds." responsive facts or indicate
conduct directed at female that no such materials exist.
coworkers.
------------------------------------------------------------------------------------------------------------------------
65 Identify names of all individuals Unduly burdensome; irrelevant Sustained. This is patently
whom plaintiff and immaterial. overly broad.
sought to enter romantic,
dating, or sexual relationship
with since January 1,
2004, and whether each person
agreed; dates and number
of times plaintiff interacted
with each individual;
and anyone plaintiff discussed
these relationships
with.
-----------------------------------------------------------------------------------------------------------------------
71 Identify any person with Unduly burdensome; irrelevant Overruled. Plaintiff should
discoverable information for and immaterial. Provides supplement the response
plaintiff's claims or defendant's 15 names with addresses, with an indication of the
defenses and what and also identifies specific knowledge each
knowledge each individual is "former and current U.S. person has.
believed to possess. Senate Judiciary staff;
former and current staff of
Senator Dewine (sic), former
and current staff of the
United States Senate."
------------------------------------------------------------------------------------------------------------------------
72 Produce any documents Unduly burdensome; irrelevant Overruled. Plaintiff should
identified in response to and immaterial. produce responsive documents
Interrogatory 71. or appropriately indicate
that no such documents
exist.
------------------------------------------------------------------------------------------------------------------------
75 Identify each document to Unduly burdensome; irrelevant Overruled. Plaintiff must
support claims in Complaint and immaterial. produce responsive documents
or defenses in Answer. "Material sought is work or provide a privilege
product." log pursuant to Rule
26(b)(5) for any documents
withheld due to privilege.
------------------------------------------------------------------------------------------------------------------------
76 Produce any documents Unduly burdensome; irrelevant Overruled. Plaintiff must
identified in response to and immaterial. produce responsive documents
Interrogatory 75. or provide a privilege
log pursuant to Rule
26(b)(5) for any documents
withheld due to privilege.
------------------------------------------------------------------------------------------------------------------------
77 Describe any mitigation Unduly burdensome; irrelevant Overruled. Plaintiff is to
efforts undertaken by plaintiff. and immaterial; respond to the interrogatory
"request is overbroad." in full.
------------------------------------------------------------------------------------------------------------------------
*13
78 Produce all emails "to, from, Unduly burdensome; irrelevant Overruled in part. Plaintiff
by, and/or regarding Defendant" and immaterial. is to respond to the request
since January 1, 2004. for production in full as to
mails to or from the defendant
in the period of May 1,
2004, to June 15, 2004.
------------------------------------------------------------------------------------------------------------------------
CONCLUSION
For the reasons discussed, I recommend plaintiff's motion to disqualify counsel be denied, Plaintiff's Motion to Compel is denied, defendant's Motion to Extend is denied as moot, and Defendant's Motion to Compel is granted in part and denied in part. An Order accompanies this Memorandum Opinion.
ORDER
In accordance with the accompanying memorandum opinion, it is hereby ORDERED that:
1. This Court will not recommend revocation of defense counsel's pro hac vice status; and it is further ORDERED that
2. No document of discovery shall be filed in this case for any purpose without prior explicit permission granted by this Court; and it is further ORDERED that
3. Plaintiff's Motion to Compel [# 47] is DENIED; and it is further ORDERED that
4. Defendant's Motion to Extend Discovery [# 49] is DENIED AS MOOT; and it is further ORDERED that
5. Defendant's Motion to Deem Rule 36 Requests Admitted, Motion to Compel Discovery, and Alternative Motion to Preclude Evidence [# 62] is GRANTED IN PART AND DENIED IN PART.
SO OR BRED.
NOTES
[1] The parties presented this question as a discovery issue and argued the matter before me in that capacity. For jurisdictional purposes, I rule on the motion in the capacity of a recommendation to the district judge, who granted admission pro hac vice to defense counsel.
[2] The vague and obfuscating response of plaintiff to this interrogatory, which, other than stating objections, consists entirely of "Plaintiff responds," is addressed later in this Memorandum Opinion.