Tan v. Grubhub, Inc.

Filing 192

ORDER by Magistrate Judge Jacqueline Scott Corley granting 125 Motion for Sanctions. (ahm, COURT STAFF) (Filed on 8/25/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAEF LAWSON, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.15-cv-05128-JSC ORDER RE GRUBHUB’S MOTION FOR SANCTIONS v. GRUBHUB, INC., et al., Re: Dkt. No. 125 Defendants. 12 13 Defendant Grubhub moves for sanctions against Plaintiff Raef Lawson for publicly filing 14 documents designated “confidential” pursuant to the parties’ Stipulated Protective Order. (Dkt. 15 No. 125.) Plaintiff’s counsel admits they filed the confidential documents publicly due to 16 computer and server difficulties. Because counsel understood the documents were designated 17 confidential but nonetheless filed them publicly to make the deadline for filing Plaintiff’s 18 opposition to summary judgment, the Court GRANTS Grubub’s motion for sanctions. 19 20 BACKGROUND The Court entered the Stipulated Protective Order proposed by the parties. (Dkt. No. 94.) 21 The Stipulated Protective Order protects material designated by the producing party as 22 “Confidential” or “Attorneys’ Eyes Only” from unauthorized disclosure. (Id.) Discovery material 23 that qualifies for protection must be so designated before the material is disclosed or produced. 24 (Id. at ¶ 5.2.) “Without written permission from the Designating Party or a court order secured 25 after appropriate notice to all interested persons, a Party may not file in the public record in this 26 action any Protected Material.” (Id. at ¶ 12.3.) If a party learns that “by inadvertence or 27 otherwise, it has disclosed Protected Material to any person or in any circumstance not 28 authorized,” it must, among other things, “immediately (a) notify in writing the Designating Party 1 of the unauthorized disclosures [and] (b) use its best efforts to retrieve all unauthorized copies of 2 the Protected Material.” (Id. at ¶ 10.) 3 Plaintiff’s opposition to Grubhub’s Motion for Summary Judgment and supporting 4 evidence was due on Thursday, June 8, 2017. See Civ. L.R. 7-3(a). Approximately one week 5 before Plaintiff’s opposition was due, Grubhub and Plaintiff set up a call to discuss the 6 confidentiality designations for the deposition transcripts. (Dkt. No. 141-2.) That call never 7 transpired. (Id.) Instead, Plaintiff’s counsel filed Plaintiff’s opposition brief at 11:54 p.m. on June 8 8 without redaction or sealing. (Dkt. No. 125-2 at 2.) The Liss-Riordan Declaration was not 9 redacted or filed under seal even though it attached copies of seven exhibits that Grubhub had produced pursuant to the Protective Order and designated as “Confidential.” (See Dkt. No. 111.) 11 United States District Court Northern District of California 10 Five deposition transcriptions that were designated “confidential” were filed publicly in their 12 entirety, even though Plaintiff’s opposition only referred to selections of each transcript. (See id.) 13 Plaintiff’s counsel states that he filed the un-redacted documents because he began 14 experiencing “several computer crashes...that were impeding [his] ability to implement the 15 redaction of the voluminous materials that Grubhub designated as confidential.” (Dkt. No. 131 at 16 3 ¶ 8.) Counsel was unable to file the documents un-redacted until his law firm server came back 17 up. (Id.) Counsel was able to “redact the documents several hours later.” (Id.) 18 Early on June 9, Grubhub noticed that Plaintiff filed Grubhub’s confidential material 19 publicly and emailed Plaintiff’s counsel at 5:01 a.m. PST. (Dkt. No. 125-7 at 6.) Plaintiff filed a 20 Motion to Seal around that same time. (Dkt. No. 125-4, 125-5, 125-6.) Plaintiff’s counsel. replied 21 to Grubhub’s email stating that “[d]ue to technical issues” he had “trouble getting a redacted 22 version of [Plaintiff’s] brief prepared for filing.” (Dkt. No. 125-7 at 6.) He added that he would 23 “talk to the clerk as soon as the court opens” to ensure that “the unredacted version is taken off the 24 public docket.” (Id.) 25 Grubhub emailed Plaintiff the instructions listed on the Court’s ECF HelpDesk website for 26 “inadvertently e-filed [] sensitive document[s].” (Id. at 5.) Civil Local Rule 5-1 requires the 27 parties to consult the ECF website to retrieve improperly filed documents. The ECF website 28 instructions provide four steps to take “without delay” in order to remedy, to the extent possible, 2 1 the improper filing: (1) “[i]mmediately” send an email to the Docket Correction email address for 2 the Judge and “mark the message ‘urgent’”; (2) call the ECF HelpDesk to have the staff 3 “temporarily block access to the document by ECF users for a limited period of time”; (3) file a 4 Motion to Remove Incorrectly Filed Document “as soon as possible”; and (4) e-file a corrected 5 version of the document. (Dkt. No. 125-7 at 5.) Documents cannot be removed from ECF 6 without a motion. At 9:41 a.m., Plaintiff’s counsel informed Grubhub that the opposition brief and Liss- 7 8 Riordan Declaration were locked. (Id.) Grubhub asked whether Plaintiff’s counsel was 9 “immediately taking the other steps listed below that are to be done ‘without delay,’” to which counsel replied that he was “awaiting response from Judge Corley’s docketing clerk on how best 11 United States District Court Northern District of California 10 to have the issue resolved.” (Id. At 4.) At 7:30 pm, Grubhub’s counsel explained that Plaintiff’s 12 “apparent lack of urgency” was concerning and his failure to take all of the actions prescribed by 13 the Court’s ECF HelpDesk was “completely inadequate.” (Id. at 3.) DISCUSSION 14 15 I. Plaintiff Willfully Violated the Protective Order 16 “A “willful” violation of a court order does not require proof of mental intent such as bad 17 faith or an improper motive, but rather, it is enough that a party acted deliberately.” Evon v. Law 18 Offices of Sidney Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012). “A district court has the inherent 19 power to sanction for: (1) willful violation of a court order; or (2) bad faith.” Id. Attorney’s fees 20 are appropriate for an attorney’s willful violation of a protective order. Id. Plaintiff’s counsel willfully violated the Stipulated Protective Order. Counsel publicly 21 22 filed documents he knew he was required to file under seal because he was more concerned with 23 making Plaintiff’s deadline than complying with the Protective Order. Such conduct was wrong. 24 Counsel should have budgeted enough time to get redacted documents filed by the deadline and, 25 having not done so, should have chosen to suffer the consequences, if any, from a late filing rather 26 than unilaterally deciding to violate the Protective Order. There is no excuse for counsel’s 27 conduct and the Court expects that if counsel intends to practice in this District it will not happen 28 again. 3 Plaintiff’s counsel’s reliance on Koninklijke Philips N.V. v. Elec-Tech International Co., is 1 2 specious as in that case there was no valid court order. No. 14-cv-02737, 2015 WL 6449399, at 3 *1 (N.D. Cal. Oct. 26, 2015) (fundamental to a violations of a protective order and diligence of 4 counsel is the existence of a valid court order). The Koninklijke court never issued or approved a 5 protective order. Id. The Court is troubled that rather than admit to their breach of professional 6 responsibilities, counsel attempt to deflect sanctions by citation to an inapposite case. 7 II. 8 9 An Award of Attorney’s Fees is Appropriate Rule 37(b)(2) provides for a range of sanctions based on a party’s failure to comply with a court order, including protective orders. United States v. Nat’l Med. Enters., Inc., 792 F.2d 906, 910 (9th Cir. 1986). Further, under Rule 37(b)(2)(C) “unless the failure was substantially justified 11 United States District Court Northern District of California 10 or other circumstances make an award of expenses unjust,” the Court “must order the disobedient 12 party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s 13 fees, caused by the failure.” Requiring Plaintiff’s counsel to pay Defendant’s fees incurred in 14 correcting counsel’s egregious error, including the fees incurred in bringing the sanctions motion, 15 is appropriate. Counsel still had not filed the motion to remove the incorrectly filed document as 16 of the sanctions hearing on August 24, 2017 and, regardless, it was necessary for Defendant to 17 bring this violation to the Court’s attention given Plaintiff’s counsel’s intentional violation of the 18 Protective Order. 19 At oral argument on August 24, 2017, the Court instructed Plaintiff’s counsel to inform the 20 Court by close of business today, August 25, whether they will pay the $15,000 that Defendants 21 seek or whether Plaintiff’s counsel would prefer the Court require Defendants to submit 22 supporting documentation reflecting Defendants’ work in bringing the sanctions motion, with the 23 understanding Defendants are entitled to recover the hours spent preparing such documentation. 24 25 CONCLUSION 26 For the reasons described above, Grubhub’s motion for sanctions is granted against 27 Plaintiff’s counsel Lichten & Liss-Riordan, P.C. Plaintiff’s counsel shall inform the Court by the 28 close of business on August 25, 2017 whether they will pay $15,000 or seek further 4 1 2 3 documentation from Defendants. This Order disposes of Docket No. 125. IT IS SO ORDERED. Dated: August 25, 2017 4 JACQUELINE SCOTT CORLEY United States Magistrate Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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