Erik Ibarra v. Harris County Texas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 28, 2009

No. 08-20220 Charles R. Fulbruge III
Clerk

ERIK ADAM IBARRA; ET AL

Plaintiffs
v.

MARY BAKER; FRANK E SANDERS

Defendants - Appellants

-------------------------------------------------

SEAN CARLOS IBARRA

Plaintiff - Appellee

v.

HARRIS COUNTY TEXAS; ET AL

Defendants

MARY BAKER; FRANK E SANDERS

Appellants
 08-20220
08-20276

Consolidated with
No. 08-20276

ERIK ADAM IBARRA

Plaintiff
v.

HARRIS COUNTY TEXAS; ET AL

Defendants

v.

MR SCOTT A DURFEE

Respondent - Appellant
-------------------------------------------------
SEAN CARLOS IBARRA

Plaintiff

v.

HARRIS COUNTY TEXAS; ET AL

Defendants

v.

SCOTT A DURFEE

Appellant

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Appeals from the United States District Court
for the Southern District of Texas

Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
These two appeals are from findings of attorney misconduct.
Mary Baker, Scott Durfee, and Frank Sanders represented Harris County,
Texas, and several of its law enforcement officers in a 42 U.S.C. § 1983 action.
The district court found that Baker and Sanders improperly coached defense
witnesses, gave or abided false testimony, and vexatiously released a plaintiff’s
medical records. During the same § 1983 litigation, but in a completely separate
incident, Durfee’s client deleted approximately 2,500 emails that were under
subpoena. The district court found Durfee partially to blame for the emails’
deletion. It held Durfee in contempt and sanctioned him for attorney misconduct.
It imposed monetary sanctions against all three attorneys, and it disqualified
Baker and Sanders from further representation in the case.
The underlying § 1983 litigation has settled, and the attorneys’ monetary
sanctions have been paid or considered paid. Baker, Sanders, and Durfee
nevertheless appeal from the findings of attorney misconduct, asserting that the
findings are erroneous and will mar each attorney’s professional reputation.
The attorneys’ concern about their reputation suffices to confer Article III
jurisdiction. Durfee’s appeal is meritorious, and we vacate all findings that he
committed misconduct. We also vacate the findings that Baker and Sanders gave
or abided false testimony, but we affirm the findings that Baker and Sanders
improperly coached witnesses.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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I.
We begin by addressing our jurisdiction over these appeals. Though the
attorneys’ monetary sanctions have been paid or considered paid, their appeals
are not moot. See Fleming & Assocs. v. Newby & Tittle, 529 F.3d 631, 640 (5th
Cir. 2008) (“Any non-monetary portion of the sanctions not rendered moot by
settlement is appealable for its residual reputational effects on the attorney.”);
Dailey v. Vought Aircraft Co., 141 F.3d 224, 226 (5th Cir. 1998) (“This appeal is
not moot because the [temporary] disbarment on the attorney’s record may affect
her status as a member of the bar and have other collateral consequences.”);
Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th Cir. 1997) (“[T]he
importance of an attorney’s professional reputation, and the imperative to
defend it when necessary, obviates the need for a finding of monetary liability
or other punishment as a requisite for the appeal of a court order finding
professional misconduct.”). We will proceed to consider the appeals’ merit.
II.
We apply the same standard of review to both appeals. We review the legal
standard under which the district court sanctioned the attorneys de novo, and
we review the district court’s factual findings of attorney misconduct only for
clear error. “The clear error standard of review ‘precludes reversal of a district
court’s findings unless [the court] is left with a definite and firm conviction that
a mistake has been committed.’” Houston Indep. School Dist. v. V.P. ex rel.
Juan P., 566 F.3d 459, 465-66 (5th Cir. 2009) (quoting Jauch v. Nautical Servs.,
Inc., 470 F.3d 207, 213 (5th Cir. 2006)).
The remainder of this opinion proceeds as follows. We will first set out the
facts common to both appeals.1 We will next consider Baker’s and Sanders’s

1
Our scope of review affects how we will recount the history of these appeals. As a court
of review, we do not search the record for information that “might possibly support” the district

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appeal, setting out the facts relevant only to that appeal and then assessing the
validity of the findings that Baker and Sanders committed attorney misconduct.
Finally, we will consider Durfee’s appeal, setting out the facts relevant only to
that appeal and then assessing the validity of the findings that Durfee
committed attorney misconduct.
III.
Both appeals arise from the same underlying litigation, which originated
as follows.
Sean Ibarra and Erik Ibarra resided at 2907 Shady Park Drive, Houston,
Texas. In January 2002, Harris County law enforcement officers executed a
search and arrest warrant at the residence next door, 2911 Shady Park Drive.
At least one plain-clothed officer was present at the scene.2 While the officers
were executing the search warrant, Sean Ibarra stepped outside his residence
and, standing from 2907 Shady Park Drive, began photographing 2911 Shady
Park Drive.
Deputy Preston Foose noticed Sean taking photographs. Foose asked Sean
to cease, and he also asked Sean to give him the camera. Sean refused and,
according to Foose, fled toward his residence. Foose followed, and Deputy Dan
Shattuck also gave chase.
Foose and Shattuck caught up to Sean at his residence. An altercation
ensued. Madalyn Valdez, who also resided at 2907 Shady Park Drive, joined in

court’s imposition of sanctions. Sheets v. Yamaha Motors Corp., 849 F.2d 179, 185 (5th Cir.
1988). Instead, we confine our attention to that portion of the record upon which the district
court relied. Id. We will thus highlight only those portions of the record that the district court
either mentioned or obviously relied upon in finding that Baker, Sanders, and Durfee
committed attorney misconduct.
2
The litigants have referred to one or more officers being “undercover.” The record
reveals that “[t]he undercover officers were wearing jackets with the word ‘POLICE’ on the
jacket that identified them as police officers.” We will refer to these officers as plain-clothed.

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the altercation. Erik Ibarra also participated briefly, then left and retrieved a
video recorder. He began to record the altercation when he returned.
More officers arrived, and they gained control of the situation. The officers
seized Sean’s camera and Erik’s video recorder. They arrested Erik for resisting
arrest, Sean for evading arrest and resisting arrest, and Valdez for resisting
arrest and assault. The district attorney’s office prosecuted all three.
Sean and Erik were acquitted. They then filed separate civil actions
against various Harris County defendants.3 The Ibarras alleged, inter alia, that
the defendants had violated their constitutional rights by arresting them and
seizing their belongings.
IV.
Mindful of these facts, we turn to consider Baker’s and Sanders’s appeal.
A.
Harris County Attorneys Mary Baker and Franks Sanders initially
undertook the defendants’ representation. Sanders represented Foose; Baker
represented Shattuck and several other defendants. The attorneys hired Albert
Rodriguez, a commander with the Texas Department of Public Safety, to consult
on the defense and to testify as an expert witness. The findings of attorney
misconduct arise from their interaction with Rodriguez, and with defense
witnesses whom he was advising.
1.
In January 2004, Rodriguez interviewed Foose, Shattuck, and two other
officers who had been present at Shady Park Drive on the date of the Ibarras’
arrests. Baker attended this interview, and Sanders may have been in and out.

3
The Ibarras named the following defendants: Harris County, Texas; Harris County
Sheriff’s Department; Harris County Organized Crime Task Force; Sheriff Tommy Thomas;
Foose; Shattuck; Deputy Sheriff Manuel Moreno; Sergeant Alexander Rocha; and Deputy John
Palermo. The Ibarras’ actions, though filed separately, were later consolidated.

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Partially on the basis of this interview, Rodriguez prepared a preliminary
expert’s report describing 2911 Shady Park Drive as being in a “high crime area”
and opining that:
Deputy Foose, as any well trained law
enforcement officer, believed that . . . Sean Ibarra was
photographing the undercover officers for the purposes
of retaliation. Deputy Foose also believed that Sean
Ibarra photographing the undercover officers presented
a danger to the undercover officers. Deputy Foose
believed that reasonable suspicion existed to legally
stop and detain Sean Ibarra . . . .
Sean Ibarra’s flight confirmed that reasonable
suspicion existed to legally stop and detain Sean Ibarra.
In my opinion any reasonable and prudent law
enforcement officer could have believed that attempting
to stop and detain Sean Ibarra was legal, justified, and
necessary when presented with the same or similar
circumstances.

The terms “high crime area” and “retaliation” would become linchpins of
the officers’ § 1983 defense. They also would become the focus of the sanctions
against Baker and Sanders.
Soon after Rodriguez filed his preliminary report, the Ibarras deposed a
series of witnesses: Rodriguez on August 27, 2004; Foose on September 10;
Sergeant Alexander Rocha, another defendant who had been present at the
scene, on September 13; and Shattuck on September 15. Rodriguez met with
each officer, alone, the day or two before the officer’s deposition. Rodriguez flew
from Austin to Houston to meet with Foose on September 9. He spoke over the
phone with Rocha on September 12. He flew from Austin to Houston to meet
with Shattuck on September 13.
These one-on-one meetings came to light during the officers’ depositions,
where the Ibarras voiced concern that Rodriguez had used the meetings to
adulterate the officers’ testimony. The Ibarras inquired whether Baker or

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Sanders had approved the meetings. The answer was yes; Baker (and, in the
case of Foose, Sanders) had authorized Rodriguez to contact the officers. The
Ibarras’ counsel further inquired what had transpired during Rodriguez’s face-
to-face meetings with Foose and Shattuck.
Foose responded that he and Rodriguez had met over lunch. Rodriguez had
given him Rodriguez’s copy of the Valdez/Ibarra criminal-trial transcript, which
Foose flipped through during the meeting. Rodriguez had highlighted portions
of the transcript and written notes in the margins during his own review of it;
Foose testified that he saw this markup. He also testified, however, that he and
Rodriguez had not discussed the transcript’s substance during their meeting.
On further inquiry, Foose recounted that he and Rodriguez had discussed
the Ibarra litigation—but only in very general terms. He also testified that,
during the meeting, Rodriguez had asked him whether Foose knew the definition
of reasonable suspicion; Foose testified that he answered by giving a very
general definition of that term. The pair possibly had a similarly abstract
colloquy about probable cause. Foose denied that he and Rodriguez had gone into
detail about how reasonable suspicion or probable cause applied to Sean’s
seizure or arrest. He also denied that Rodriguez advised him how to testify at
the deposition other than to tell the truth.
Events that occurred the next day suggest otherwise. Foose attended his
deposition as scheduled, and he brought a page of notes with him to the
deposition. These notes outline a key concept for the defense, articulable facts
supporting reasonable suspicion to detain Sean. The notes begin with a general
definition for reasonable suspicion, and they list eight specific facts giving rise
to Foose’s reasonable suspicion to detain Sean. The notes also contain a general
definition for “Elements of Evade Detention,” a Texas crime cited in Rodriguez’s
preliminary report. Rodriguez’s preliminary report lists the same eight facts

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supporting reasonable suspicion to detain Sean, in roughly the same order as
Foose’s notes. Foose testified that he had made the notes by himself after
meeting with Rodriguez.
One of the facts listed in Foose’s notes was that the events of January 4,
2002, had occurred in a “high crime area.” This note was the first time in the
§ 1983 proceedings or any of the prior criminal proceedings that a defendant
referred to 2911 Shady Park Drive as being in a “high crime area.” The Ibarras
questioned Foose about the address being in a high crime area. He elaborated
that he had learned 2911 Shady Park Drive was in a high crime area during a
briefing before the officers executed the January 4, 2002, warrant at that
address. This testimony was the first time that Foose had mentioned the
briefing. The Ibarras pressed for details about the briefing—where it occurred,
who gave it, who else was present—but Foose was unable to provide even a
single detail.
Further damaging to his testimony, Foose often vacillated and claimed
inability to recall important details of his meeting with Rodriguez that, again,
had occurred the day prior. The district court later would find that Foose had a
“predisposition to recollect facts that support the defense’s theory of defense
while denying recollection of other key or contradictory evidence.”
The Ibarras’ counsel later asked Shattuck what had transpired during
Shattuck’s one-on-one meeting with Rodriguez. Shattuck responded that he had
met with Rodriguez over breakfast. Rodriguez asked Shattuck to tell him again
what had occurred on January 4, 2002; and whether his recollection had changed
since the pair had last spoken on January 15, 2004. Shattuck testified that he
and Rodriguez had not talked about Shattuck’s upcoming deposition.
After learning the above facts, the Ibarras moved for sanctions. They
asserted that Rodriguez had drawn the concepts of “high crime area” and

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“retaliation” out of thin air to help the defendants avoid § 1983 liability. They
also asserted that Rodriguez had persuaded the officers to alter their testimony
to support these engineered defense theories. Furthermore, they asserted, Baker
and Sanders had condoned or encouraged this behavior—and had attempted to
cover it up.
2.
The district court scheduled a sanctions hearing for November 29, 2004.
Before the hearing occurred, Baker voluntarily withdrew from the case. At the
November 29 sanctions hearing, the court received testimony from Rodriguez,
Foose, Shattuck, and others concerning sanctions; and the court scheduled a
second hearing for January 2005 to receive testimony from Baker and Sanders.
During the interim, the Ibarras discovered billing records indicating that
Rodriguez had flown from Austin to Houston to meet with Baker and Sanders
on September 8, 2004—the day before Rodriguez had flown to Houston to meet
with Foose. Rodriguez had never mentioned the September 8 meeting. Baker
and Sanders also had not mentioned the meeting; the discovered billing records
were the first the Ibarras had heard of it.
At the second sanctions hearing, Baker acknowledged that she and
Sanders had met with Rodriguez on September 8, 2004. Baker testified that the
meeting primarily had involved another case. She testified that Rodriguez and
the attorneys may have discussed the Ibarra litigation briefly, but Rodriguez’s
billing of the meeting to the Ibarra litigation was erroneous.
Baker also testified that Sanders had authorized Rodriguez to meet with
Foose and had authorized Rodriguez to give Foose his copy of the criminal-trial
transcript. Baker testified that she had authorized Rodriguez to contact Rocha
and Shattuck. The purpose of Rodriguez’s meetings with Foose and Shattuck,
Baker testified, was for Rodriguez to determine where the officers and Sean had

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been standing when Sean was taking photographs of 2911 Shady Park Drive.
Rodriguez’s purpose for contacting Rocha, so far as Baker understood, was to
determine whether Rocha’s recollection had changed in any way that might
affect Rodriguez’s supplemental report. Furthermore, Baker testified, Rodriguez
“has a very calming effect on officers who are going to testify. And the
depositions were very stressful.” Though Rodriguez was the defense’s expert on
reasonable suspicion and probable cause, Baker testified that she did not intend,
or want, Rodriguez to discuss those subjects with the officers. She instead
expected Rodriguez to collect facts from the officers and to calm them by
explaining broadly how testifying in a civil action differs from testifying in the
officers’ more familiar setting of a criminal action.
Finally, Baker addressed the fact that she had attended the November
2004 sanctions hearing. (She had sat in the gallery, having already withdrawn
from the case.) The Ibarras’ counsel identified several apparent inconsistencies
in the witnesses’ testimony at that hearing and questioned Baker whether she
had known that the witnesses were giving false testimony. Baker responded that
she had believed some of the testimony to be mistaken but did not know whether
any testimony was false.
When Sanders testified, he spoke mostly to other issues. He did, however,
answer some questions about apparent inconsistencies in witnesses’ testimony
during the November 2004 hearing. Sanders explained that he had not believed
any inconsistencies to be material. On cross-examination, he further testified to
having no evidence that a defendant, witness, or attorney had committed a crime
of making a false declaration, perjury, conspiracy, tampering, or subornation of
perjury during the proceedings.
The Ibarras’ counsel also questioned Sanders about several aspects of
Foose’s deposition. Early in the deposition, Foose had testified that he had met

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with Rodriguez the day before, had received Rodriguez’s copy of the Valdez/Sean
trial transcript, and had spoken generally about the case. Sanders soon
thereafter called for a break and left the room with Foose. Foose’s testimony for
the rest of the deposition was that he and Rodriguez had met the day before but
had not discussed the Ibarra litigation in detail. The Ibarras’ counsel inquired
why Sanders had called for the break, which had occurred only seventeen
minutes into the deposition.4
3.
The district court considered the sanctions motions against Baker and
Sanders together with sanctions motions against Rodriguez and the defendants.
The court concluded that “Rodriguez, the officers and their attorneys, Sanders
and Baker, gave false testimony and/or abided the giving of false testimony
during the November 29, 2004, hearing before the Court.” It elaborated that
Baker and Sanders:
knew or should have known of the significant
inconsistencies between the officers’ criminal trial
testimonies, their incident reports and their deposition
testimonies. Moreover, they knew that Rodriguez’s
testimony contradicted that of the officers, in material
respects. Yet, they condoned and/or encouraged false
testimony by Rodriguez.

Rodriguez’s false testimony, the court found, concerned his purpose for
meeting with Foose, Rocha, and Shattuck on the eve of their depositions. Though
Rodriguez had testified that he met with Foose and Shattuck to determine where
the officers and Sean had been standing immediately before Foose approached

4
Sanders testified that, before the break, he and the Ibarras’ counsel had a spat about
whether Rodriguez’s deposition occurred August 27 or later; and that he took the break to
locate a copy of the Rodriguez deposition’s transcript to verify its date. The Ibarras challenged
this explanation, correctly pointing out that Sanders acknowledged before calling for the break
that Rodriguez’s deposition indeed had occurred on August 27.

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Sean, the court found that Rodriguez’s true purpose in holding the meetings had
been to “coach” the witnesses to ensure that their deposition testimony “would
conform to facts that supported his opinion.” The attorneys’ September 8
meeting with Rodriguez demonstrated their involvement in this scheme.
Finally, the court found, Baker and Sanders intentionally had released one
of the plaintiff’s medical records “to humiliate, embarrass[,] and aggravate the
plaintiffs.” The district court sanctioned Baker and Sanders for attorney
misconduct. It also found Rodriguez’s and several witnesses’ conduct
sanctionable. It disqualified Baker and Sanders, and it imposed monetary
sanctions of $10,000 against Baker, Sanders, and Harris County.
Baker and Sanders sought reversal of their sanctions through petition for
a writ of mandamus. We denied the petition. The underlying § 1983 litigation
later settled. Under the settlement agreement, the monetary sanctions against
Baker and Sanders are considered paid. The attorneys timely appealed, seeking
to reverse the findings that they committed attorney misconduct. They assert
that the findings mar their professional reputation.
B.
We now turn our attention to the findings that Baker and Sanders
committed attorney misconduct. These findings fall into two categories: that
Baker and Sanders improperly coached witnesses and that Baker and Sanders
“gave false testimony and/or abided the giving of false testimony during the
November 29, 2004, hearing before the Court.”
1.
An attorney enjoys extensive leeway in preparing a witness to testify
truthfully, but the attorney crosses a line when she influences the witness to
alter testimony in a false or misleading way. See generally John S. Applegate,
Witness Preparation, 68 Tex. L. Rev. 277 (1989). The district court sanctioned

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Baker and Sanders in part for using Rodriguez to alter the officers’ deposition
testimony substantively.
The evidence that Baker and Sanders engaged in this behavior is a bit
scant, but the attorneys’ appeal does not definitely and firmly convince us that
the district court’s findings are mistaken. To recap the evidence supporting
sanctions, Rodriguez flew from Austin to Houston to meet with Baker and
Sanders on September 8, 2004. They discussed the Ibarra litigation at least
briefly. Rodriguez did not disclose that this meeting occurred when he testified
at the November 29 sanctions hearing, and the meeting came to light only when
the Ibarras discovered an entry for it in Rodriguez’s billing records.
Rodriguez again flew from Austin to Houston on September 9. He met with
Foose, alone. He arrived with a highlighted, marked-up copy of the Valdez/Ibarra
trial transcript. Foose happened not to have a copy (other defendants did), and
Rodriguez asked Baker and Sanders for permission to give Foose his own. The
attorneys assented.
Foose arrived at his September 10 deposition with a page of notes that he
claimed to have compiled, alone, after meeting with Rodriguez the day prior.
Foose admitted discussing reasonable suspicion, in the abstract, with Rodriguez;
but he denied discussing how that standard might apply to the Ibarra litigation.
Foose’s page of notes lists eight articulable facts supporting reasonable suspicion
that Foose had for detaining Sean. These facts closely track Rodriguez’s
preliminary report.
Although Foose’s meeting with Rodriguez had occurred only the day prior,
Foose expressed fogginess about many of the meeting’s details. The district
court, which later had the advantage of observing Foose’s demeanor as well as
his testimony, ultimately found Foose not to be a credible witness.

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Rodriguez flew again from Austin to Houston on September 13. He met
with Shattuck, alone. Rodriguez testified that he flew to Houston to meet Foose
and Shattuck partly so that he could visit 2911 Shady Park Drive to observe
whether Sean could have been photographing anything other than undercover
police officers. Rodriguez and Foose drove by the address but remained in
Foose’s patrol car; neither one stepped out of the car to stand where Sean had
been standing. Rodriguez did not go even that far with Shattuck; they ate
breakfast, and Rodriguez flew back to Austin without visiting Shady Park Drive.
Meanwhile, Rodriguez’s preliminary report had introduced two new
concepts that were becoming entrenched in the litigation as defense theories:
Foose had reasonable suspicion to detain Sean out of a fear of “retaliation,” and
Foose and Shattuck had reasonable suspicion to detain Sean after his flight to
2907 Shady Park Drive because the flight occurred in a “high crime area.” The
Ibarras assert that these “terms of art” are additive of prior testimony, reflecting
a conspiracy between Rodriguez, Baker, and Sanders to manufacture a record
favorable to the defense. The appearance of these terms in the litigation would
not be noteworthy if they merely repackaged the witnesses’ prior testimony,
neither adding nor subtracting anything substantive.
a.
“Retaliation” has multiple meanings. Its colloquial meaning is “the act of
retaliating,” “returning evil for evil.” Webster’s Third New International
Dictionary of the English Language, Unabridged 1938 (1993). It also refers to a
specific crime in Texas. See TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (Vernon
2003) (“A person commits an offense if he intentionally or knowingly harms or
threatens to harm another by an unlawful act in retaliation for or on account of
the service or status of another as a public servant . . . .”).

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Before meeting with Rodriguez, Foose had testified only to a fear of
“retaliation” in the colloquial sense: that photographs of plain-clothed officers
someday might be published and endanger their safety. The Ibarras assert, and
the relevant sanctions assume, that Rodriguez, Baker, and Sanders were using
“retaliation” in reference to the Texas crime: Foose initially stopped and
detained Sean with reasonable suspicion that Sean was committing the crime
of retaliation. As the Ibarras correctly note, no testimony supported such a
theory when Rodriguez filed the preliminary report.
The relevant question, in other words, is whether Baker and Sanders,
through Rodriguez, used “retaliation” merely to restate Foose’s concern for
“officer safety” or instead to inject a new defense theory into the case,
unsupported by testimony, that Foose stopped and detained Sean with
reasonable suspicion that Sean was committing a crime.
Sanders evinced the latter intent on December 10, 2004, when he wrote in
a motion opposing sanctions that:
In his expert report and in his deposition testimony,
Albert Rodriguez pointed out the facts known to Foose
at the time he pursued and arrested Sean Ibarra
supported a reasonable suspicion by Foose that Ibarra
was committing or would commit the crime of
Obstruction or Retaliation under § 36.06, TEX. PENAL
CODE.

He attempted to retreat from this position during the January 2005
sanctions hearing, expressly disavowing the theory that Foose initially
approached Sean with reasonable suspicion that Sean was committing the
retaliation crime. Sanders instead maintained that would be pursuing a defense
theory that Foose initially approached Sean with a concern that Sean someday
would commit “retaliation,” in the colloquial sense, against the plain-clothed
officers.

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Despite Sanders’s January 2005 testimony, the weight of the evidence
leaves us with something short of a “definite and firm conviction” that the
district court erred in concluding that Baker and Sanders, acting through
Rodriguez, improperly influenced Foose to testify in conformity with a novel
defense theory, previously unsupported by fact, but which was advanced in
Rodriguez’s preliminary report. We affirm the findings of misconduct against
Baker and Sanders for improperly coaching witness testimony concerning
“retaliation.”
b.
We also affirm the findings of misconduct against Baker and Sanders
based on Foose’s use of the term “high crime area” during his deposition.
Rodriguez flew from Austin to Houston to meet with the attorneys on
September 8. He billed the time to the Ibarra litigation, and the attorneys
approved the billing. Rodriguez again flew from Austin to Houston on
September 9, this time to meet with Foose, alone. He called Baker for permission
to give Foose his copy of the Valdez/Ibarra criminal-trial transcript. Baker
relayed Sanders’s authorization, and Rodriguez handed Foose his copy of the
transcript. Rodriguez had highlighted and made notes on portions of the
transcript. Foose reviewed the transcript. Foose brought a page of notes with
him to his deposition the next day. These notes closely tracked Rodriguez’s
report and referred to 2911 Shady Park Drive as being in a “high crime” area.
During the deposition, Foose testified that he had not visited 2911 Shady Park
Drive before traveling there January 4, 2002, to execute the warrant at that
address. He testified that he learned 2911 Shady Park Drive was in a “high
crime area” during a briefing. He could not, however, recall even a single detail
about that briefing other than it occurred. He had never previously referred to
2911 Shady Park Drive as a “high crime area.”

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In the light of these facts, as well as others previously mentioned, we
cannot say the district court clearly erred in finding that Baker and Sanders,
through Rodriguez, improperly coached Foose’s “high crime area” testimony. We
affirm the findings of misconduct against Baker and Sanders for improperly
coaching witness testimony concerning 2911 Shady Park Drive being in a “high
crime area.”
2.
The district court found that Baker and Sanders “gave false testimony
and/or abided the giving of false testimony during the November 29, 2004,
hearing before the Court.”
Insofar as the district court found that Baker and Sanders gave false
testimony during the November 29, 2004, hearing, the finding is clearly
erroneous. Baker and Sanders did not testify until January 2005.
We next consider whether Baker and Sanders abided the giving of false
testimony during the November 29, 2004, hearing. The rules of professional
conduct permit an attorney to offer or use evidence that the attorney believes,
but does not know, to be false. See ABA MODEL R. PROF’L CONDUCT 3.3; TEX.
DISC. R. PROF’L CONDUCT 3.03, cmt. 15. The district court wrote that Baker and
Sanders “knew or should have known” of inconsistencies in the police officers’
testimony and “were aware of or should have been aware of Rodriguez’s false
testimony” during the November 29 hearing. Because the district court applied
a legal standard too permissive of sanctions, we reverse. We vacate the relevant
findings of misconduct.
In sum, we affirm the findings of misconduct against Baker and Sanders
for improperly coaching witness testimony. We vacate the findings of misconduct
against Baker and Sanders for giving or abiding false testimony during the
November 29, 2004, hearing before the district court.

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V.
We now turn to Durfee’s appeal. The events relevant to this appeal
occurred some three years after the Baker/Sanders episode.
A.
Durfee represented Harris County’s District Attorney, Charles Rosenthal,
in relation to subpoenas issued during the Ibarra litigation. On October 31,
2007, the Ibarras served a subpoena duces tecum on Rosenthal for all emails sent
or received by Rosenthal, Rosenthal’s First Assistant, or Durfee between July 1,
2007, and October 15, 2007. The subpoena encompassed 12,785 emails, 4,792 of
which were in Rosenthal’s email folders.
Durfee met with Rosenthal on November 5 and prepared to file a motion
to quash the October 31 subpoena. Durfee accessed Rosenthal’s computer,
compiled a table listing the subject line of each of Rosenthal’s subpoenaed
emails, and printed the table. Durfee did not print the emails themselves, and
he did not otherwise back them up. Durfee also did not specifically instruct
Rosenthal to preserve the subpoenaed emails. Rosenthal, however, had received
notice of the subpoena and later testified that he understood its scope.
After Durfee left Rosenthal’s office on November 5, Rosenthal deleted
approximately 2,500 of the subpoenaed emails. There is no evidence that Durfee
knew Rosenthal was going to do this.
On November 20, the district court held a hearing to consider a motion for
contempt that the Ibarras had filed concerning a different subpoena. Of
relevance to the October 31 subpoena, the parties agreed at the November 20
hearing that, from November 26 through November 28, the plaintiffs would
review all of the emails that were within the October 31 subpoena’s scope. The
parties further agreed that the Ibarras would depose Rosenthal when they
completed reviewing the subpoenaed emails.

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Also of relevance to the October 31 subpoena, Durfee still did not know
that Rosenthal had deleted approximately 2,500 of the subpoenaed emails.
Durfee first learned of the emails’ deletion near the close of business
November 21, which was the day before Thanksgiving. He instructed the office’s
Director of Information Services Technology (Gary Zallar, or “Zallar”) to work
through the holiday weekend to recover as many emails as possible. Durfee did
not immediately inform plaintiffs’ counsel or the court that the emails had been
deleted. Zallar worked through the weekend, but he was unable to restore all of
the deleted emails.
On Monday, November 26, the records review began as scheduled. Durfee
was unable to join plaintiffs’ counsel for the records review, but at his direction
a staff attorney informed them that Rosenthal had deleted some of the emails.
Plaintiffs’ counsel reviewed the remaining emails over the next three days and
deposed Rosenthal the day after that. The plaintiffs moved for contempt and
sanctions against Rosenthal on November 30, and they supplemented this
motion on December 2 to include Durfee (and Rosenthal’s First Assistant, who
is not party to this appeal). The November 30 motion for contempt and sanctions
was the first that the district court had heard of the deleted emails.
The district court considered the sanctions motion at a two-day hearing,
soon after which the underlying § 1983 case settled. After the case settled, the
district court: denied sanctions as to Rosenthal’s First Assistant; held Rosenthal
in contempt and sanctioned him $18,900; and held Durfee in contempt and
jointly and severally liable for $5,000 of the $18,900. Rosenthal paid the
monetary sanctions.
The district court supported its ruling against Durfee with the following
reasoning. Durfee, “as Chief of the General Litigation Division . . . is fully
responsible for, and charged with, managing the records of the District

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Attorney’s Office in all litigation involving the office . . . . In this role, he is
responsible to his client(s) and the courts with respect to documents that are the
subject of a subpoena.” Durfee “‘omitted’ to act or advise his client” to preserve
the subpoenaed emails. His failures to act included neglecting to: “implement[]
a systematic procedure for the production or retention of documents responsive
to the October 31 subpoena”; and “ensur[e] that certain relevant backup tapes
were preserved.” His failures to advise included neglecting to: “(1) give adequate
instructions about what discovery was sought by the October 31 subpoena; (2)
communicate with Rosenthal concerning the scope of documents reasonably
available and responsive to the October 31 subpoena; and (3) communicate with
Rosenthal concerning methods for storing the electronic data or other documents
requested.”
Additionally, the district court faulted Durfee: (1) for waiting until
November 26 to inform plaintiffs’ counsel that the subpoenaed emails had been
deleted; (2) for not informing the district court that the subpoenaed emails had
been deleted; and (3) for “making baseless representations about the
completeness of the respondents’ production in light of the fact that many of the
documents called for by the subpoena had not been adequately searched for, had
been deleted and/or were no longer available.” The district court held that
Durfee’s failure immediately to disclose the deletions violated Rules 3.03(a);
4.01(b); and 8.04(a)(1), (3), and (4) of the Texas Disciplinary Rules of Professional
Conduct. “[E]ven in the absence of bad faith,” the district court held, Durfee’s
omissions merited sanctions “pursuant to the Court’s inherent power.” The
district court also listed Federal Rules of Civil Procedure 26(g) and 45 as bases
for the sanctions.
B.

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The findings of misconduct against Durfee cannot stand unless the district
court had a legal basis for finding Durfee’s conduct sanctionable. The district
court pointed to the following legal bases for sanctions: its inherent power;
Federal Rules of Civil Procedure 26(g) and 45; and Texas Disciplinary Rules of
Professional Conduct 3.03(a), 4.01(b), 8.04(a)(1), 8.04(a)(3), and 8.04(a)(4). We
consider the validity of each legal basis in turn.
1.
“The court must make a specific finding of bad faith” to impose sanctions
under its inherent power. Toon v. Wackenhut Corrections Corp., 250 F.3d 950,
952 (5th Cir. 2001). The district court here did not make a specific finding that
Durfee acted in bad faith. It instead wrote that “even in the absence of bad
faith,” Durfee’s omissions merited sanctions under the court’s inherent power.
Because the district court did not find that Durfee acted in bad faith, imposing
sanctions against Durfee was an abuse of discretion insofar as the sanctions
were based on the court’s inherent power.
2.
The district court cited Federal Rule of Civil Procedure 26(g) as a basis for
sanctioning Durfee. Rule 26(g) requires an attorney to certify that each
discovery disclosure, “to the best of the person’s knowledge, information, and
belief formed after a reasonable inquiry,” is “complete and correct as of the time
it is made.” FED. R. CIV. P. 26(g)(1). “If a certification violates this rule without
substantial justification, the court, on motion or on its own, must impose an
appropriate sanction on the signer, the party on whose behalf the signer was
acting, or both.” FED. R. CIV. P. 26(g)(3). When invoking Rule 26(g) as a basis for
sanctions, the district court must specify which discovery certification was
sanctionable. Cf. Sheets v. Yamaha Motors Corp., 849 F.2d 179, 185 (5th Cir.
1988) (“We do not search the record for an order that might possibly support the

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district court’s $25,000 award under Rule 37(b)(2) because this may not be the
portion of the record upon which the court relied.”).
Here, the district court did not point to a Rule 26 certification that Durfee
made in relation to the October 31 subpoena as being sanctionable. Moreover,
the record suggests that Durfee made no such certification: on November 26,
Durfee, through a Harris County staff attorney, informed the Ibarras’ counsel
that the set of subpoenaed emails available for their review was incomplete
because Rosenthal had deleted some. The district court also made no finding
that any certification of completeness that Durfee did make was without
substantial justification. Imposing sanctions against Durfee was an abuse of
discretion insofar as the sanctions were based on Rule 26(g).
3.
The district court cited Federal Rule of Civil Procedure 45 as a basis for
sanctioning Durfee. Rule 45 provides that the “issuing court may hold in
contempt a person who, having been served, fails without adequate excuse to
obey the subpoena.” FED. R. CIV. P. 45(e) (2008). Whether a person disobeyed a
subpoena depends on what the subpoena required. See Fremont Energy Corp. v.
Seattle Post Intelligencer, 688 F.2d 1285, 1287 (9th Cir. 1982) (“The subpoena
served on Moss directed him to appear and testify at a deposition. This Moss did.
The subpoena did not direct Moss to answer any of the specific questions
propounded by Fremont. If he is to be held in contempt for failure to answer
questions, then, it must be pursuant to Rule 37(b)(1) . . . .”).
Here, no subpoena was issued to Durfee in his individual capacity. The
October 31 subpoena commands “you” (presumably the person to whom the
subpoena was issued) to produce emails. The subpoena does not command any
other person to do anything. Durfee could not have disobeyed the subpoena if it

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did not require him to act, and the district court therefore abused its discretion
insofar as it sanctioned Durfee under Rule 45.
4.
The district held that Durfee violated Texas Disciplinary Rules of
Professional Conduct 3.03(a) and 4.01(b) when Durfee failed immediately to
disclose that Rosenthal had deleted the subpoenaed emails.
Texas Disciplinary Rule 3.03(a) provides that a lawyer shall not knowingly
“fail to disclose a fact to a tribunal when disclosure is necessary to avoid
assisting a . . . fraudulent act.” Texas Disciplinary Rule 4.01(b) similarly
provides that, in the course of representing a client, a lawyer shall not knowingly
“fail to disclose a material fact to a third person when disclosure is necessary to
avoid . . . knowingly assisting a fraudulent act perpetrated by a client.”
Durfee argues that his failure immediately to disclose the emails’ deletion
did not amount to assisting—much less knowingly assisting—a fraudulent act.
We agree. Durfee learned of the emails’ deletions near the close of business the
day before Thanksgiving. He informed plaintiffs’ counsel of the deletions the
next business day, and he had a staff member work through the interim holiday
weekend to recover the deleted emails. Though he did not immediately inform
the court of the deletions, this failure did not amount to assisting a fraudulent
act when Durfee already had informed the Ibarras’ counsel of the deletions and
had worked to recover the emails. The district court erred in using Texas
Disciplinary Rules 3.03 and 4.01 as bases for sanctions.
5.
The district court held that Durfee violated Texas Disciplinary Rule of
Professional Conduct 8.04(a)(1), (3), and (4) “[b]y failing to bring Rosenthal’s
actions to light upon becoming aware of them.” Texas Disciplinary Rule of
Professional Conduct 8.04(a) states that a lawyer shall not:

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(1) violate these rules, knowingly assist or induce
another to do so, or do so through the acts of another,
whether or not such violation occurred in the course of
a client-lawyer relationship;

***

(3) engage in conduct involving dishonesty, fraud, deceit
or misrepresentation;

(4) engage in conduct constituting obstruction of
justice; . . . .

Durfee did not violate Rule 8.04(a)(1) for the same reasons that he did not
violate Rule 3.03 or Rule 4.01. Rule 8.04(a)(3) also provides no ground to
sanction Durfee because the district court did not find that, by failing to bring
Rosenthal’s actions to light, he engaged “in conduct involving dishonesty, fraud,
deceit or misrepresentation”; the court instead described Durfee’s conduct
variously as neglectful or reckless.
In sum, the district court cited no valid legal basis for sanctioning Durfee.
We vacate all findings that he committed attorney misconduct.
VI.
For the foregoing reasons, we render judgment that the district court’s
findings of attorney misconduct are AFFIRMED in part and VACATED in part.
We AFFIRM the findings that Baker and Sanders improperly coached witnesses.
We VACATE the findings that Baker and Sanders gave or abided false
testimony during the November 2004 sanctions hearing. We VACATE all
findings that Durfee committed attorney misconduct.
AFFIRMED in part and VACATED in part; judgment RENDERED.

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