Solis v. Seafood Peddler of San Rafael, Inc. et al

Filing 232

ORDER REQUIRING FURTHER BRIEFING AND SETTING HEARING ON PLAINTIFF'S MOTION FOR DISCOVERY SANCTIONS; AND ORDER TO SHOW CAUSE RE: UNPROFESSIONAL CONDUCT. Defendants' supplemental opposition to the Secretary's Motion for Sanctions, Dkt . No. 223, due by 5:00 PM on 4/23/2014. The Secretary's reply and response to Order to Show Cause due by 12:00 PM on 4/28/2014. Hearing on Secretary's Motion for Sanctions, Dkt. No. 223, and Order to Show Cause Hearing set for 4/30/2014 11:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Nathanael M. Cousins. Signed by Judge Nathanael M. Cousins on 4/21/2014. (nclc2, COURT STAFF) (Filed on 4/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,

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Plaintiff,

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v.

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SEAFOOD PEDDLER OF SAN
RAFAEL, INC., dba SEAFOOD
PEDDLER; ALPHONSE SILVESTRI;
RICHARD MAYFIELD; FIDEL
CHACON,

Case No. 12-cv-00116 WHO (NC)
ORDER REQUIRING FURTHER
BRIEFING AND SETTING HEARING
ON PLAINTIFF’S MOTION FOR
DISCOVERY SANCTIONS; AND
ORDER TO SHOW CAUSE RE:
UNPROFESSIONAL CONDUCT
Hearing: April 30, 2014, 11:30 a.m.
Re: Dkt. 223, 229

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Defendants.

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This Order directs additional briefing and sets the hearing on the Secretary’s

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Motion for Sanctions, docket entry 223. It also demands the Secretary to show cause as

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to why his counsel should not be sanctioned for unprofessional conduct.

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I.

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Additional Briefing
Defendants request additional time to file an amended opposition to the sanctions

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motion. Dkt. 229. That request is granted in part. By 5:00 p.m. on April 23, 2014,

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defendants must supplement their opposition with the following evidence and
Case No. 12-cv-00116 WHO (NC)
ORDER SETTING HEARING; ORDER
TO SHOW CAUSE

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explanation:
(1) Specify all rules, case authorities, and the “general legal principles” that

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support defendants’ argument that an expert witness must have his or her time

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compensated by the other side before his or her deposition begins. Dkt. 225 at 6-7. And,

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(2) Identify where in this Court’s March 20, 2014, Order denying a protective

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order for the Sandy Magid deposition, it is stated that the Secretary must compensate

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Magid for his time at the deposition. Dkt. 222.

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The supplemental submission is limited to five pages.

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The Secretary’s reply must be filed by noon on April 28 and must include a

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response to the order to show cause set forth below.

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II.

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Order to Show Cause
Every member of the bar of this Court must comply with the standards of

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professional conduct required of the State Bar of California and must, among other

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responsibilities, “[p]ractice with the honesty, care, and decorum required for the fair and

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efficient administration of justice.” N.D. Cal. Civil L.R. 11-4(a)(4). “Our adversarial

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system relies on attorneys to treat each other with a high degree of civility and respect.”

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Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010); see Bateman v.

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U.S. Postal Serv., 231 F.3d 1220, 1223 n.2 (9th Cir. 2000) (“[A]t the risk of sounding

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naive or nostalgic, we lament the decline of collegiality and fair-dealing in the legal

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profession today, and believe courts should do what they can to emphasize these

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values.”); Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997) (“There is

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no better guide to professional courtesy than the golden rule: you should treat opposing

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counsel the way you yourself would like to be treated.”); Cal. Attorney Guidelines of

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Civility & Professionalism § 1 (“The dignity, decorum and courtesy that have

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traditionally characterized the courts and legal profession of civilized nations are not

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empty formalities. They are essential to an atmosphere that promotes justice and to an

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attorney’s responsibility for the fair and impartial administration of justice.”).

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Case No. 12-cv-00116 WHO (NC)
ORDER SETTING HEARING; ORDER
TO SHOW CAUSE
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The Court has previously expressed concern that the conduct of the attorneys in

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this case was not meeting the expected professional standard. On October 2, 2013,

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District Court Judge William H. Orrick ended his discovery order as follows:

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“It goes without saying that for the remainder of this litigation, counsel are expected to

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conduct themselves in accordance with the highest professional standards. The bickering

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and accusations hurled at one another to date, and at the Case Management Conference,

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have no place in this Court.” Dkt. 181 at 5.

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Approximately four months after Judge Orrick’s admonition, Leon Pasker, Senior
Trial Attorney and counsel for the U.S. Department of Labor allegedly authored the

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following one-line email in response to Seafood Peddler’s expert witness disclosure of

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Sandy Magid:

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“This is probably hands down the stupidest expert witness disclosure I have

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ever seen. Ever.”

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The email went to defendants’ counsel, as well as to three of Pasker’s attorney colleagues

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at the Department of Labor. It is attached to defendants’ opposition to the motion for

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sanctions. Dkt. 227-1 at 8, 2/17/2014 10:27 a.m. email.

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Under Civil Local Rule 11-6, in the event a Judge has cause to believe that an

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attorney has engaged in “unprofessional conduct,” the Judge may refer the attorney to the

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Court’s Standing Committee on Professional Conduct.

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Here, the Court has cause to believe that attorney Pasker’s email does not

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demonstrate the care and decorum necessary for the fair and efficient administration of

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justice. The Court is also curious as to whether any of the other attorneys for the

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Secretary took any corrective action after receiving the February 17 email. Accordingly,

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the Secretary’s brief due April 28 must respond to this charge and explain why Pasker

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should not be referred to the Standing Committee. The Court also may consider any other

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sanction authorized by law.
Case No. 12-cv-00116 WHO (NC)
ORDER SETTING HEARING; ORDER
TO SHOW CAUSE
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III.

Hearing
The Court will hear the Motion for Sanctions and the Order to Show Cause on

April 30, 2014, 11:30 a.m., in Courtroom A, San Francisco.

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IT IS SO ORDERED.

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Date: April 21, 2014
___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 12-cv-00116 WHO (NC)
ORDER SETTING HEARING; ORDER
TO SHOW CAUSE
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