FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS V. GIRARDI; GIRARDI &
KEESE; WALTER J. LACK; PAUL A.
TRAINA; SEAN A. TOPP; ENGSTROM,
LIPSCOMB & LACK,
Respondents, No. 03-57038
SONIA EDUARDA FRANCO FRANCO; et D.C. No.
CV 03-05094 NM
al., ORDER
Plaintiffs-Appellants,
v.
DOW CHEMICAL COMPANY; et al.,
Defendants-Appellees.
Filed June 9, 2008
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
Marsha S. Berzon, Circuit Judges.
ORDER
1. On March 21, 2008, the Report and Recommendation of
the Special Master regarding fees and expenses to be paid by
way of sanctions to Defendants-Appellees by Respondents
was filed with this court and served on the parties. The
Defendants-Appellees and Respondents were afforded time to
object to the Report, and no objections were filed as to
amounts of the recommended sanctions. Given that the court
has some question as to whether the amount of the sanctions
is too high or too low with respect to certain of the respon-
dents and given that additional facts may be established dur-
7075
7076 FRANCO v. DOW CHEMICAL CO.
ing the course of disciplinary proceedings that may affect the
court’s determinations in this and other respects, the court will
not decide whether to adopt or modify the findings and rec-
ommendations of the Report until after the conclusion of the
disciplinary proceedings.
2. On March 21, 2008, the Special Master also filed a Sup-
plemental Report and Recommendation under seal, regarding
discipline under Federal Rule of Appellate Procedure 46. Pur-
suant to the Special Master’s Order filed on October 17, 2006,
Respondents were entitled to request further proceedings
should they not accept the disciplinary measures recom-
mended in the Supplemental Report. The Special Master pro-
vided this opportunity for further disciplinary proceedings in
response to Respondents’ motions to disqualify Defendants
from participating in the Special Master Proceedings.
Because Respondents have objected to the proposed disci-
pline, and to the findings of the Report and Recommendations
of the Special Master insofar as they were adopted in the Sup-
plemental Report, the Special Master shall hold further pro-
ceedings as to what discipline, if any, is appropriate under
Rule 46 or any other applicable rule or statute. An indepen-
dent prosecutor will be appointed by separate order. The inde-
pendent prosecutor shall present evidence relevant to
determining whether discipline should be imposed and, if so,
the appropriate level of such discipline. The independent
prosecutor shall also recommend appropriate disciplinary
measures, if any, in light of the evidence adduced. Findings
in the Report and Recommendations of the Special Master not
heretofore objected to by Respondents shall be considered a
part of the record and may be taken into account by the inde-
pendent prosecutor, the Special Master, and the court. In the
course of the disciplinary proceedings Respondents shall have
the opportunity to adduce relevant evidence and to argue that
previously unobjected to findings are insufficient to warrant
the imposition of discipline. Both the independent prosecutor
and the respondents may call expert witnesses in lawyer disci-
FRANCO v. DOW CHEMICAL CO. 7077
pline. At the conclusion of the proceedings the Special Master
shall receive the independent prosecutor’s report and recom-
mendations and shall make his own report and recommenda-
tions to the court. The court shall then determine what
discipline, if any, is appropriate.
3. The Clerk shall open a disciplinary docket in this matter.
All further proceedings involving possible sanctions or disci-
pline, including this order, will be maintained on this new
docket. The Clerk shall make a notation on the docket in 03-
57038 indicating that all further proceedings involving sanc-
tions or discipline will be maintained on docket 08-80090.
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