PACIFIC GAS & ELECTRIC COMPANY v. USA

Filing 337

ORDER FOR SANCTIONS Joint Statement due by 7/25/2008; Defendant's Bill due by 8/8/2008; Plaintiff's Counsel's Response due by 8/25/2008. Signed by Judge Emily C. Hewitt. (jh4)

P A C I F I C GAS & ELECTRIC COMPANY v. USA

D o c . 337

In the United States Court of Federal Claims
N o . 04-74C (in to which has been consolidated No. 04-75C) (E -F ile d : June 27, 2008) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

PACIFIC GAS & ELECTRIC COMPANY,

P la in tif f ,

S p e n t Nuclear Fuel Case; V io la tio n of Order Amending P r o te c tiv e Order dated May 14, 2 0 0 6 ; Availability of Sanctions o r Remedies; Government E n titled to Reasonable E x p e n s e s , Including Attorneys' Fees

v.

T H E UNITED STATES,

Defendant.

J e rry Stouck, Washington, DC, for plaintiff. Robert L. Shapiro, Washington, DC, of c o u n s e l. Jeanne E. Davidson, Director, with whom were Peter D. Keisler, Assistant Attorney G e n e ra l, and Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, C iv il Division, United States Department of Justice, Washington, DC, for defendant. Jane K. Taylor, Office of General Counsel, United States Department of Energy, W a sh in g to n , DC, and Scott R. Damelin, Joshua E. Gardner, Sharon A. Snyder, and M a ria n E. Sullivan, Civil Division, Department of Justice, Washington, DC, of counsel. ORDER

Dockets.Justia.com

H E W IT T , Judge

I.

B a c k g ro u n d

T h is proceeding regarding sanctions or remedies arises from plaintiff's counsel's f a ilu re to comply with an order of this court. The court's order of May 14, 2006, Pacific G a s & Electric Co. v. United States, No. 04-74C, 2006 U.S. Claims LEXIS 418, at *1 (F e d . Cl. May 14, 2006) (Order Amending Protective Order), arose out of the substantive litig a tio n in which plaintiff Pacific Gas & Electric Company (PG&E or plaintiff) filed tw o suits against the federal government (government or United States or defendant) for p a rtia l breach of contracts for the disposal of spent nuclear fuel (SNF) and/or high-level ra d io a c tiv e waste generated at plaintiff's nuclear electric utilities.1 Case No. 04-74C, P la in tif f 's Complaint, Jan. 22, 2004, 1 (Complaint or Compl.); Case No. 04-75C, P lain tiff 's Complaint, Jan. 22, 2004, 1. The complaints in the two proceedings were s u b s ta n tia lly identical. Compare Case No. 04-74C, Plaintiff's Complaint with Case No. 0 4 -7 5 C , Plaintiff's Complaint. The cases were consolidated by court order on April 12, 2 0 0 5 . Order of Apr. 12, 2005, 1. References to the "Complaint" in this Order are to the c o m p la in t filed in case number 04-74C. The court granted defendant's motion for su m m a ry judgment with respect to two of the three counts that plaintiff had alleged in its C o m p lain t. Pac. Gas & Elec. Co. v. United States (PG&E Summary Judgment Decision), 7 0 Fed. Cl. 766, 782 (2006). With respect to the remaining count, the court held a trial a n d issued its opinion on October 13, 2006. Pac. Gas & Elec. Co. v. United States (P G & E Trial Opinion), 73 Fed. Cl. 333 (2006). The court held that plaintiff was entitled to $42,765,453 in damages due to the government's partial breach of its contracts. Id. at 432. On April 21, 2005, during discovery in this case, the court issued a protective order g o v e rn in g the disclosure of protected material. See Protective Order, Docket No. 31, A p r. 21, 2005 (Protective Order). The Protective Order allowed confidential material to b e used "solely for the purpose of conducting litigation in the SNF cases pending in the U n ite d States Court of Federal Claims." Id. at 2. During discovery, plaintiff filed a m o tio n to compel the production of documents that defendant had withheld based upon a ss e rtio n s of the deliberative process privilege by the Department of Energy and the N u c le a r Regulatory Commission. Defendant's Motion to Enforce the Terms of the P ro tec tiv e Order, As Amended by the Court's Order Dated May 14, 2006 (Motion to The complaints of Pacific Gas & Electric Company (PG&E or Plaintiff) were two of approximately sixty-six filed by nuclear electric utilities seeking damages from the United States for breach of contract. PSEG Nuclear, L.L.C. v. United States, 465 F.3d 1343, 1345 (Fed. Cir. 2006). 2
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E n f o rc e or Def.'s Mot.) 2; see Pacific Gas & Electric Company's Motion to Compel D is c o v e ry and Request for Expedited Hearing, Docket No. 37, Aug. 25, 2005. After re v ie w in g those documents in camera, the court ordered the government to produce ce rtain documents because plaintiff's need for the documents outweighed defendant's c o n c e rn s about disclosure. Pac. Gas & Elec. Co. v. United States (PG&E Order to C o m p e l), 71 Fed. Cl. 205, 214-16 (2006). In that order, the court discussed some of the d o c u m e n ts over which defendant had claimed privilege, using those documents as e x a m p le s to identify the type of documents that defendant should produce. Id. at 211-16. The court provided this guidance "for the purpose of permitting the parties to analogize th e se examples to disputed documents not mentioned in this Order and thereby to resolve a n y further discovery disputes involving the deliberative process privilege that may a ris e ." Id. at 210. To the extent that the parties could not agree with regard to any of the re m a in in g documents withheld under that privilege, the court stated that "plaintiff . . . m a y . . . move the court to compel production of any of the documents described in the a f f id a v its , based on `a showing of evidentiary need . . . that outweighs the harm that d is c lo s u re of such information may cause to defendant.'" Id. (citation omitted). On May 11, 2006, plaintiff filed a new motion to compel defendant to produce the d o c u m e n ts over which defendant continued to assert the deliberative process privilege. Pacific Gas & Electric's Second Motion to Compel the Production of Documents W ith h e ld Under the "Deliberative Process" Privilege (PG&E's Second Motion to C o m p e l), Docket No. 231, May 11, 2006. After further review of documents in camera, th e court granted plaintiff's motion in part, holding that defendant must produce some of th e documents in question but that defendant had rightly asserted the deliberative process p riv ile g e over others. Order Amending Protective Order, U.S. Claims LEXIS 418, at * 1 3 -1 4 . In its Order Amending Protective Order, the court amended the Protective Order e n te re d in the case to limit distribution and use of the documents. Id. at *5 n.3. Specifically, the court stated: E v e ry document ordered to be produced by this Order shall be subject to the p ro te c tiv e order issued by the Court on April 21, 2005. However, for the p u rp o se s of this Order, the Court AMENDS the Protective Order to limit th e disclosure and/or use of all documents mentioned in this Order to the a tto rn e ys for the plaintiffs in this litigation only, rather than, as stated in the P r o te c tiv e Order, the "attorneys for plaintiffs in the spent nuclear fuel c a s e s ." Id . (emphasis in original). The Order Amending Protective Order therefore limited the u s e of the documents to "this litigation only," that is, the PG&E consolidated cases. Id. In response to this order, the government produced 211 documents. Def.'s Mot. 6. Plaintiff added some of those documents to its exhibit list, but it did not seek admission of 3

a n y of them at trial. Id. After the trial in this case concluded, the court issued its opinion a n d entered final judgment on October 13, 2006. PG&E Trial Opinion, 73 Fed. Cl. at 3 3 3 . On December 22, 2006, the court denied plaintiff's motion for reconsideration. Pac. G a s & Elec. Co. v. United States (PG&E Denial of Reconsideration), 74 Fed. Cl. 779, 7 8 5 (2006). Plaintiff and defendant filed an appeal and cross-appeal, respectively, which a re currently pending before the Court of Appeals for the Federal Circuit. Notice of A p p e a l, No. 04-74C (Fed. Cl. Jan. 18, 2007); Notice of Cross-Appeal, No. 04-74C (Feb. 2 0 , 2007). P la in tif f 's counsel in this case also serves as counsel for Dairyland Power C o o p e r a tiv e (Dairyland), plaintiff in one of the approximately sixty-six other SNF cases, D a iryla n d Power Cooperative v. United States (Dairyland), No. 04-106C (Fed. Cl.). On Ja n u a ry 18, 2007, plaintiff's counsel, acting as counsel to Dairyland, filed a motion to c o m p e l on behalf of Dairyland. Dairyland's Motion to Compel Documents Withheld U n d e r the "Deliberative Process" and Attorney-Client Privileges, Dairyland, No. 04-106C (F e d . Cl. Jan. 18, 2007) (Dairyland's Motion). In Dairyland's Motion, plaintiff's counsel so u g h t some of the same documents subject to the deliberative process privilege that this c o u rt had ordered produced in this case subject, however, to its Order Amending P ro te c tiv e Order. Compare Order Amending Protective Order with Dairyland's Motion. The government opposed Dairyland's Motion. See Defen[d]ant's Response to Plaintiff's M o tio n to Compel Discovery and Motion for a Protective Order, Dairyland, No. 04-106C (F e d . Cl. Jan. 18, 2007) (Dairyland Def.'s Resp.). In his reply to the government's opposition, which was filed under seal, counsel fo r Dairyland attached an appendix that contained thirty-five documents that this court h a d ordered the government to produce in the PG&E case subject, however, to its Order A m e n d in g Protective Order which limited the use of the documents to use in the PG&E c o n so lid a ted cases. Def.'s Mot. 6-7; see Reply in Support of Dairyland's Motion to C o m p e l Documents Withheld Under the Deliberative Process and Attorney-Client P riv ile g e s (Dairyland Pl.'s Reply), Dairyland, No. 04-106C (Fed. Cl. Mar. 19, 2007). Defendant states that it "notified counsel for Dairyland of [its] objection to Dairyland's su b m iss io n to the [c]ourt in the Dairyland case copies of documents that were subject to d e l ib e r a tiv e process privilege and requested that counsel for Dairyland, who is also c o u n se l for PG&E, withdraw those portions of its reply brief that discuss the content of p ro te c te d documents and that it withdraw the protected documents themselves from the re c o rd of the Dairyland case." Def.'s Mot. 7-8. However, "Dairyland declined to w ith d ra w [the documents] from the record in the Dairyland case." Id. at 8. On May 3, 2007, defendant filed a motion with the Dairyland court requesting that th e court strike the disputed materials from the Dairlyand record. Defendant's Motion to S trik e Portions of Plaintiff's March 19, 2007 Reply Brief and Accompanying Appendix 4

o n "Dairyland's Motion to Compel Documents Withheld Under the Deliberative Process a n d Attorney-Client Privileges" (Motion to Strike), Dairyland, No. 04-106C (Fed. Cl. M a y 3, 2007). The Dairyland court granted the Motion to Strike on June 29, 2007. Response to Government's January 9, 2008 Brief Regarding Sanctions or Remedies as R e q u e s te d in the Court's December 12, 2007 Order (Plaintiff's Response or Pl.'s Resp.) 1. O n May 25, 2007, defendant also filed its Motion to Enforce in this court. Def.'s M o t. 1. The court granted the motion, finding that counsel for PG&E violated the Order A m e n d in g Protective Order when he used thirty-five protected documents for purposes o u ts id e of the PG&E litigation. Pac. Gas & Elec. Co. v. United States (PG&E Violation O p in io n ), 79 Fed. Cl. 744, 748 (2007). Further, this court ordered briefing on the q u e stio n of appropriate sanctions or remedies. Id. In response to this order, on January 9, 2 0 0 8 , the government filed Defendant's Response to the Court's Order, Dated December 1 2 , 2007, Regarding Sanctions or Remedies for Plaintiff Counsel's Violation of the C o u rt's May 14, 2006 Protective Order (Defendant's Brief or Def.'s Br.) 1. On January 2 3 , 2008, counsel for PG&E filed Plaintiff's Response. Pl.'s Resp. 1. Finally, on January 3 0 , 2008, the government filed Defendant's Reply to Plaintiff's Response to the Court's O rde r, dated December 12, 2007, Regarding Sanctions or Remedies for Plaintiff's V iolatio n of the Court's May 14, 2006 Protective Order (Defendant's Reply or Def.'s R e p ly) 1. II. A u th o ritie s to Order Sanctions or Remedies

In this Order, the court decides whether sanctions or remedies are appropriate for p la in tif f 's counsel's failure to obey the Order Amending Protective Order and, if so, w h ich sanctions or remedies are appropriate. Defendant's Brief requests that the court: 1) require plaintiff to return or destroy all protected documents, 2) bar plaintiff's future u s e of the protected documents in the current litigation, and 3) award all costs and e x p e n se s incurred due to plaintiff's counsel's failure to obey the order, including a tto rn e ys ' fees. Def.'s Br. 3-4. Plaintiff's counsel responds that it is not appropriate for th e court to impose any additional sanctions or remedies because the only remedies req u ired by his violation have already occurred. Pl.'s Resp. 1-2. Specifically, plaintiff's c o u n se l refers to the Dairyland court's granting of the government's motion to strike all th e protected documents and mention of the documents from the record in Dairyland to s u p p o rt his view that all potential harm has been avoided, thus making any further s a n c tio n s or remedies inappropriate. Id. at 1. Plaintiff's counsel states, "There is an ap p rop riate remedy for the violation of this Court's amended protective order . . . . In f a ct, the government previously requested - and obtained - that appropriate relief. . . . But th e question now before the Court is whether any additional remedy or sanction is a p p ro p ria te to remedy the violation. The answer . . . is `no.'" Id. at 1-2. 5

There are several possible sources of authority for the imposition of sanctions or re m e d ie s for plaintiff's counsel's violation, including Rule 16 of the Rules of the United S tate s Court of Federal Claims (RCFC) and the court's inherent authority to enforce its o w n orders.2 After examining the requirements for these authorities to be invoked, their

Although Rules 11 and 37 of the Rules of the United States Court of Federal Claims (RCFC) also grant authority to impose sanctions, the court does not believe these authorities to be appropriate to this case. RCFC 11 concerns an attorney's duty of candor and truthfulness in all dealings with the court. See RCFC 11. Here, counsel for PG&E violated the order of the court in Pacific Gas & Electric Co. v. United States, No. 04-74C, 2006 U.S. Claims LEXIS 418, at *1 (Fed. Cl. May 14, 2008) (Order Amending Protective Order) by using protected documents in a different case. Pac. Gas & Elec. Co. v. United States (PG&E Violation Opinion), 79 Fed. Cl. 744, 748 (2007). Although counsel did initially allege to this court in PG&E's Response to the Government's May 25, 2007 Motion to Enforce Protective Order (Plaintiff's Response to Motion to Enforce or Pl.'s Resp. to Mot. to Enf.), that he did not violate the Order Amending Protective Order, that argument was based on counsel's alleged good faith misunderstanding of what the order entailed. Response to Government's January 9, 2008 Brief Regarding Sanctions or Remedies as Requested in the Court's December 12, 2007 Order (Plaintiff's Response or Pl.'s Resp.) 8. Further, counsel did not contend that he did not file the protected documents. Pl.'s Resp. to Mot. to Enf. passim. Indeed, he provided a signed declaration that he had filed copies in the Dairyland case. Id. at Ex. 1, 1. Counsel relied only on his legal opinion that filing the protected documents in the Dairyland case was not a violation of the Order Amending Protective Order. Id. at Ex. 2, 1-2. The Court of Appeals for the Federal Circuit has held that "being wrong in a choice of theory or miscalculation of facts necessary to sustain the theory does not necessarily equate with a breach of the duty of candor under RCFC 11." 1-10 Indus. Assocs., L.L.C. v. United States, 2008 U.S. App. LEXIS 10786, *29 (Fed. Cir. 2008) (quoting Motown Prods., Inc. v. Cacomm, Inc., 849 F.2d 781, 785 (2d Cir. 1998)). Because counsel never attempted to mislead the court nor acted with dishonesty towards the court in a pleading or filing, RCFC 11 is not an appropriate basis upon which to fashion sanctions or remedies in this case. Likewise, RCFC 37 is not an appropriate basis for sanctions in these circumstances. RCFC 37(b) provides that "if a party . . . fails to obey an order to provide or permit discovery . . . the court may make such orders in regard to the failure as are just." RCFC 37(b)(2). RCFC 37(b)(2) identifies many options which may be appropriate as a remedy for a violation, including: prohibiting the party from introducing designated matters into evidence, striking out pleadings, refusing to allow the party to support designated claims or defenses, treating as contempt of court the failure to obey an order, dismissing the action, and requiring the party to pay reasonable expenses, including attorney's fees. Id. (continued...) 6

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a p p lic a b ility to this case, and the appropriateness of the requested remedies or sanctions th e re u n d e r, the court concludes that an award to defendant of expenses incurred due to p la in tif f 's counsel's noncompliance with the court order, including attorneys' fees, under R C F C 16 or, in the alternative, under this court's inherent authority, is the appropriate re m e d y for the harm to defendant and the court by plaintiff's counsel's failure to obey the O rd e r Amending Protective Order. A. R C F C 16

T h e court has explicit authority under RCFC 16 to impose sanctions or remedies in c irc u m sta n c e s such as have arisen in this case. RCFC 16 affords a judge discretion to c o n tro l pretrial proceedings. See RCFC 16. RCFC 16(a) provides that "[i]n any action, th e court may in its discretion direct the attorneys for the parties . . . to appear before it for a conference or conferences before trial." RCFC 16(a). At any of these conferences, the c o u rt may take appropriate action regarding "the control and scheduling of discovery, in c lu d in g orders affecting disclosures and discovery pursuant to RCFC 26 and RCFC 29 th ro u g h 37." RCFC 16(c)(6). RCFC 26(c)(2) states that the court may enter protective o rd e rs that require "that the disclosure or discovery may be had only on specified terms a n d conditions, including a designation of the time or place." RCFC 26(c)(2). In addition to its authority to control discovery pursuant to RCFC 16, the court may also take action w ith respect to the "disposition of pending motions," RCFC 16(c)(11), and any "other m a tte rs as may facilitate the just, speedy, and inexpensive disposition of the action," R C F C 16(c)(16). These actions are subsequently entered into an order, known as a p re tria l order. RCFC 16(e). The ability to schedule and control pretrial proceedings would mean very little if th e court did not have the power to enforce its orders. The judge is therefore given this p o w e r pursuant to RCFC 16(f). The Advisory Committee Notes to the Federal Rules of

(...continued) Although counsel for PG&E most assuredly violated the court's Order Amending Protective Order, this was an order limiting the use of discovered materials, not "an order to provide or permit discovery," as described in RCFC 37(b). As indicated by the text of the rule, particularly in the remedies it identifies, RCFC 37 is focused on violations during the discovery period itself, rather than the situation here - in which counsel violates a protective order after substantive litigation has terminated and judgment has been entered. See RCFC 37. In this situation, few - if any - of the remedies proposed in RCFC 37 would make sense. The court can no longer designate facts as being established, refuse to allow the party to support designated claims or defenses, strike out pleadings, or dismiss the action. See id. Therefore, based upon the text of RCFC 37, especially the focus of its remedies, it does not appear to the court to be an appropriate source of authority upon which to base any sanction or remedy in this case. 7

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C iv il Procedure (FRCP) 16, which rule is closely paralleled by the RCFC,3 state that su b se c tio n (f) was added to reflect existing practice of enforcing the rule via appropriate m e a su re s and that it now "expressly provides for imposing sanctions on disobedient or rec alcitran t parties, [or] their attorneys. . . ." Fed. R. Civ. P. 16 Notes of Advisory C o m m ittee on 1983 Amendments. RCFC 16(f) now states, "If a party or a party's a tto rn e y fails to obey a scheduling or pretrial order . . . the judge, upon motion or the ju d g e 's own initiative, may make such orders with regard thereto as are just. . . ." RCFC 1 6 (f ). Such orders may include any of the sanctions or remedies found in RCFC 3 7 (b )(2 )(B ), (C), or (D). Id. In addition to the optional sanctions or remedies provided in R C F C 37, "the judge shall require the party or the attorney representing the party . . . to p a y the reasonable expenses incurred because of any noncompliance with this rule, in c lu d in g attorney's fees." RCFC 16(f) (emphasis added). Indeed, the award of expenses in c u rre d is required "unless the judge finds that the noncompliance was substantially ju stif ied or that other circumstances make an award of expenses unjust." Id. (emphasis a d d e d ). B. Inherent Authority

A s an alternative to RCFC 16, the court also has "inherent powers enabling [it] to manage [its] cases and courtroom effectively and to ensure obedience to [its] orders. . . ." A loe Vera of America, Inc. v. United States (Aloe Vera), 376 F.3d 960, 964-65 (9th Cir. 2 0 0 4 ). "These powers are `governed not by rule or statute but by the control necessarily v e ste d in courts to manage their own affairs so as to achieve the orderly and expeditious d is p o s itio n of cases.'" Chambers v. NASCO, 501 U.S. 32, 43 (1991) (quoting Link v. W a b a sh R. Co., 370 U.S. 626, 630-31 (1962)). "Because of their very potency, inherent p o w e rs must be exercised with restraint and discretion. A primary aspect of that d is c re tio n is the ability to fashion an appropriate sanction for conduct which abuses the ju d ic ia l process." Chambers, 501 U.S. at 44-45 (internal citations omitted). An ap p rop riate sanction is one that acts as a direct response to the harm that the attorney's c o n d u c t has caused. Barnes v. Dalton, 158 F.3d 1212, 1215 (11th Cir. 1998). An ex am p le of an appropriate sanction, provided by the Court in Chambers, is that "a court m a y assess attorney's fees as a sanction for the `willful disobedience of a court order.'" Chambers, 501 U.S. at 45 (citations omitted).

The RCFC are modeled after the Federal Rules of Civil Procedure (FRCP) and, except for "a limited number of changes . . . deemed necessary to accommodate procedural requirements particular to this court[,] . . . [the text of RCFC 16] fully conforms to the text of FRCP 16." RCFC 16 Rules Committee Note (2000). For this reason, the RCFC and the FRCP are often treated as being analogous. See Principal Life Ins. Co. v. United States, 70 Fed. Cl. 144, 157 (2006) (holding that FRCP 16 is "virtually identical" to RCFC 16 in the case of waiver for failure to file a pretrial motion and therefore applying standards developed under the Federal Rules). 8

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S ev era l cases elucidate what it means to act in "willful disobedience of a court o rd e r." In Aloe Vera, which defendant cites to in Defendant's Brief, Def.'s Br. 1-2, the d istric t court issued an order on September 28, 2001, stipulating that certain third party d o c u m e n ts were not to be disclosed to anyone other than the attorneys for the parties in the case before it, Aloe Vera, 376 F.3d at 962. In this order, the court requested the third p a rty to submit a proposed protective order to that effect, and directed Aloe Vera to draft an d sign a confidentiality agreement with the United States which would limit disclosure o f the documents to the attorneys for the parties. Id. Plaintiff's counsel in Aloe Vera, h o w e v e r, objected to the third party's proposed protective order and submitted "an a lte rn a tiv e protective order that would have allowed disclosure to a wide array of people, in c lu d in g current employees, officers, partners or directors, representatives and agents of th e parties . . . ." Id. at 963. In addition, plaintiff's counsel in Aloe Vera threatened to d is c lo s e the protected documents to the government prior to any protective order or c o n f id e n tia lity agreement being in place. Id. The Ninth Circuit held that the district c o u rt, pursuant to its inherent power, had acted appropriately in imposing as a sanction a tto rn e ys ' fees incurred as a result of counsel's conduct. Id. at 966. The district court had d e te rm in e d that counsel for Aloe Vera "willfully violated its September 28, 2001 . . . o rd e r by repeatedly attempting to disclose [the third party's] confidential information to a b ro a d e r audience than the court had authorized." Id. at 965. The Court of Appeals a g re e d , stating, "In light of Aloe Vera's willful and repeated disobedience of the S e p tem b e r 28 order, the district court did not abuse its discretion in imposing sanctions in th e amount of [the third party's] attorneys' fees . . . incurred as a direct result of these v io la tio n s ." Id. at 966. In explaining the basis for its conclusion that Aloe Vera's counsel had willfully d is o b e ye d a court order, the Ninth Circuit reviewed the circumstances in which Aloe V era 's counsel acted. Id. at 965-66. The Ninth Circuit determined that the Aloe Vera a tto rn e y's claim that he did not understand the order due to ambiguity was unfounded. Id. The court noted the terms of the order, which prohibited the disclosure of the documents " to anyone who is not an attorney for a party to this case." Id. at 962 (emphasis in o rig in a l). The Ninth Circuit found that the record supported the district court's statement th a t "[c]learly when a protective order is granted AGAINST a party, it should be obvious to that party that such a grant is not an opportunity to disclose the documents in question to whomever [it] chooses." Id. at 965-66 (emphasis in original).4 Nor was the Ninth

This fact pattern is clearly analogous to the present situation. Here, the Order Amending Protective Order was specifically addressed to the limitation that the documents were to be used "in this litigation only." Order Amending Protective Order, 2006 U.S. Claims LEXIS 418, at *5 n.3. This court found that the order provided a clear directive that PG&E's counsel ignored. (continued...) 9

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C ircu it persuaded that good faith or good intentions were a justification for Aloe Vera's c o u n se l's disobedience. In response to counsel's argument that it was not in violation b e c au s e its proposed order contained safeguards to protect the third party's information, th e Ninth Circuit responded, "Even if this were true, it would be beside the point. Aloe V e ra was bound to follow the district court's directions, not some other course it c o n sid e re d to be just as good." Id. at 965.5 The Aloe Vera court's decision makes clear th a t a "willful" violation of a court order is not one in which a party intends to violate the c o u rt order with an evil motive, but, rather, one in which a party voluntarily takes an a c tio n that he knew or, as in Aloe Vera and here, should have known, to be contrary to th a t order. Sanctions for "willful disobedience of a court order" are often also applied in the c o n te x t of civil contempt citations.6 In Eagle Comtronics, Inc. v. Arrow Communication L a b o ra to rie s (Eagle Comtronics), 305 F.3d 1303 (Fed. Cir. 2002), the Court of Appeals f o r the Federal Circuit issued an opinion regarding what type of conduct constituted a w illf u l disobedience of a court order in this context. In Eagle Comtronics, the court held th a t plaintiff violated the district court's protective order when it knowingly used d e f e n d a n t 's patent application, which had been sealed by protective order, for a use u n related to the lawsuit between the two companies. Id. at 1314. Because the court d e te rm in e d that the protective order was clear and unambiguous on its face and that

(...continued) PG&E Violation Opinion, 79 Fed. Cl. at 747. The analysis by the court in Aloe Vera of America, Inc. v. United States (Aloe Vera), 376 F.3d 960 (9th Cir. 2004), of the irrelevance of plaintiff's counsel's view of the harmlessness of his actions is also instructive for this case. Plaintiff's counsel here argues that sanctions are not appropriate because he made a good faith effort to ensure that the documents would not be seen by anyone other than Chief Judge Damich. See Response to Government's January 9, 2008 Brief Regarding Sanctions or Remedies as Requested in the Court's December 12, 2007 Order (Pl.'s Resp.) 8. Plaintiff's counsel's view of the harmlessness of disclosing the documents only to Chief Judge Damich notwithstanding, the fact is that this action was a violation of the Order Amending Protective Order, and plaintiff's counsel should have known it. Although penalties for contempt and sanctions under the court's inherent authority are not identical, most courts treat them similarly in determining what requirements are necessary to impose them. See F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1137 (9th Cir. 2001) (holding that "[a]lthough contempt and sanctions are not identical, the principles the Supreme Court articulated for cases of contempt in [International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994)], guide our determination of what procedural protections are necessary in imposing sanctions under a court's inherent powers"). 10
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E a g le 's counsel indisputably acted in violation of that order, the Federal Circuit held that th e district court abused its discretion by not imposing sanctions pursuant to its inherent p o w e r to enforce its orders. Id. The offending counsel's mental state was not relevant b e c au s e he voluntarily acted in a manner that he should have known to be contrary to a c o u rt order. Id. Here, as in Eagle Comtronics, the court has determined that the Order A m en d ing Protective Order was clear and unambiguous on its face and that plaintiff's c o u n se l has acted in a manner contrary to that order. See PG&E Violation Opinion, 79 F e d . Cl. at 746-48. In Lion Raisins, Inc. v. United States (Lion Raisins), 64 Fed. Cl. 536 (2005), the C o u rt of Federal Claims found that attorneys for the United States, through the D e p a rtm e n t of Justice (DOJ), had willfully violated a Protective Order such that sanctions w e re appropriate. Lion Raisins, 64 Fed. Cl. at 544. The Lion Raisins Protective Order w a s issued in an Equal Access to Justice Act (EAJA) proceeding. Id. at 537. It "required th e designation as `confidential' and the filing under seal of all documents, including d e p o sitio n s, transcripts, and references to deposition testimony, produced by plaintiff to D O J." Id. Further, the order provided that the termination of the pending litigation "did n o t `relieve the parties from the obligations of maintaining the confidentiality of all d o c u m e n ts , materials, and information deemed confidential and subject' thereto," id., and re q u ire d that, upon termination of the proceeding, all those documents were to be re tu rn e d to counsel for the producing party, id. The Lion Raisins EAJA litigation te rm in a te d on August 20, 2003. Id. at 538. The following year, Lion Raisins was inv o lved in a debarment proceeding before the United States Department of Agriculture (U S D A ). Id. The DOJ successfully used information protected by the Lion Raisins P r o te c tiv e Order in this second proceeding to obtain the entry of a proposed suspension d e c isio n against Lion Raisins. Id. at 539. In discussing the importance of enforcing its p ro te c tiv e order, the court stated, Enforcement of protective orders implicates the rule of law. If, for e x a m p le , the Government were allowed to use what turns out to be a draft o f a document in its possession that was under a protective order[,] . . . the d o o r would be open to conduct that erodes and undermines the protections th a t a protective order puts in place. Id . at 542. The government claimed several defenses, including that it had a different u n d e rs ta n d in g of the Protective Order, that Lion Raisins had waived the protections of the P ro tec tiv e Order, and that it was ignorant of the stipulations of Protective Order when it u s e d the documents. See id. at 542-44. The Court of Federal Claims found these d e f en s e s unavailing. "The Protective Order was clear and unambiguous . . . , and the re c o rd demonstrates clear and convincing evidence to support a finding that the United S ta te s . . . willfully violated the Protective Order by disclosing protected material . . . ." 11

Id . at 544. Again, when an order was clear and unambiguous and counsel acted in a m a n n e r that counsel knew or should have known to be in violation of that order, that a c tio n was determined to be in willful disobedience to a court order. Id. III. Determination of Appropriate Sanctions or Remedies

B a se d upon the facts of this case, it appears that sanctions are appropriate pursuant to both RCFC 16(f) and the court's inherent authority to enforce its own orders. A. R C F C 16

P la in tif f 's counsel's violation falls within the scope of sanctionable activity under R C F C 16. Under that rule, a violation of a court's pretrial orders requires the court to a w a r d the injured party the reasonable expenses incurred as a result, including attorneys' f e es . RCFC 16(f). The only exception to this requirement is if "the noncompliance was s u b s ta n tia lly justified or other circumstances make an award of expenses unjust." Id. The facts in this case are governed by this rule. Here, the court issued its Order A m e n d in g Protective Order on May 14, 2006, prior to and in preparation for trial. See O r d e r Amending Protective Order, 2006 U.S. Claims LEXIS 418, at *1, *13-14. As a p ro te c tiv e order issued pursuant to RCFC 26(c), the order falls within the scope of RCFC 1 6 (c )(6 ) with respect to the entry of orders affecting disclosures and discovery pursuant to R C F C 26. See RCFC 16(c)(6), 26. The Order Amending Protective Order also falls w ith in the scope of RCFC 16(c)(11), with respect to the disposition of pending motions in th is case.7 See RCFC 16(c)(11). Finally, the court had the authority to issue the Order A m e n d in g Protective Order pursuant to RCFC 16(c)(16) because it would "facilitate the ju s t, speedy, and inexpensive disposition of the action." 8 Id. at 16(c)(16). B e c au s e the court had authority to enter the Order Amending Protective Order p u rs u a n t to RCFC 16, it was a pretrial order protected by subsection (f) of that rule. See R C F C 16(f). It has already been determined that counsel for PG&E failed to obey the

The Order Amending Protective Order was issued in response to Pacific Gas & Electric's Second Motion to Compel the Production of Documents Withheld Under the "Deliberative Process" Privilege (PG&E's Second Motion to Compel), Docket No. 231, May 11, 2006. The Order Amending Protective Order ensured that the government would not be prejudiced in other proceedings by having its confidential documents made readily available to SNF plaintiffs in other cases. Order Amending Protective Order, 2006 U.S. Claims LEXIS 418, at *11-12. 12
8

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o rd e r when he submitted thirty-five of the documents protected by the Order Amending P r o te c tiv e Order to Chief Judge Damich in the Dairyland litigation. PG&E Violation O p in io n , 79 Fed. Cl. at 748. For this reason, the court "may make such orders with re g a rd [to counsel for PG&E's failure to obey the Order Amending Protective Order] as a re just, and among others any of the orders provided in RCFC 37(b)(2)(B), (C), (D)." RCFC 16(f). In addition, the court is required to impose upon counsel for PG&E "the re a so n a b le expenses incurred because of [counsel for PG&E's] noncompliance with this ru le , including attorney's fees, unless the judge finds that the noncompliance was s u b s ta n tia lly justified or that other circumstances make an award of expenses unjust." Id.9 B. In h e re n t Authority

A court also has the inherent authority to sanction a party that willfully disobeys o n e of its orders. Chambers, 501 U.S. at 45. Willful disobedience of a court order occurs w h e n a party acts in a way that it knew or should have known to be contrary to an express o rd e r. See Aloe Vera, 376 F.3d at 962-65. Here, the court entered an order limiting "the d is c lo s u re and/or use of all documents mentioned in this Order to the attorneys for the p la in tif f s in this litigation only." Order Amending Protective Order, 2006 U.S. Claims L E X IS 418, at *5 n.3 (emphasis in original). Nevertheless, counsel for PG&E, while a c tin g as counsel in the Dairyland case, submitted thirty-five of the protected documents a s an appendix to a filing in that case and, in addition, submitted an argument based on th e contents of the protected documents. Def.'s Mot. 6-7; see Reply in Support of D a iryla n d 's Motion to Compel Documents Withheld Under the Deliberative Process and A tto rn e y-C lie n t Privilege, Dairyland, No. 04-106C (Fed. Cl. Mar. 19, 2007). Because counsel for PG&E used these documents in a manner contrary to an e x p re ss court order, he acted in willful disobedience to the Order Amending Protective O rd e r, and it is appropriate to impose sanctions or remedies. Plaintiff states that sanctions a re not appropriate because he "took significant care . . . not to violate the order and not to cause or threaten any harm" by submitting the documents under seal. Pl.'s Resp. 8 (e m p h a s is in original). Further, he contends that sanctions are not appropriate because he " h a d a good faith (though mistaken) belief that submitting the documents under seal . . . d id not constitute `use' of the documents." Id. However, as Aloe Vera, Eagle C o m tro n ic s, and Lion Raisins make clear, the willfulness of disobedience in cases im p o s in g civil sanctions is determined by an objective standard. See Aloe Vera, 376 F.3d a t 966; Eagle Comtronics, 305 F.3d at 1313-14; Lion Raisins, 64 Fed. Cl. at 544. As in

The court analyzes plaintiff's counsel's entitlement to rely on these exceptions below in Part III.C.2. 13

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A lo e Vera, plaintiff's counsel's good intentions and misunderstandings do not justify his a c tin g in direct contravention of this court's order. This court has already concluded that the Order Amending Protective Order was s u f f ic ie n tly clear and unambiguous to support a finding of disobedience. PG&E V io la tio n Opinion, 79 Fed. Cl. at 748. The order provided that the disclosure and use of th e protected documents was limited to attorneys "in this litigation only." Order A m e n d in g Protective Order, 2006 U.S. Claims LEXIS 418, at *5 n.3 (emphasis in o rig in a l). Because the terms of the Order Amending Protective Order were a clear d e p a rtu re from the previous Protective Order (which stated that the documents could be u s e d by "attorneys for plaintiffs in the spent nuclear fuel cases," PG&E Violation O p in io n , 79 Fed. Cl. at 747 (quoting Protective Order)), counsel should have known that s u b m ittin g the documents in a case other than the PG&E case would violate the Order A m e n d in g Protective Order. Further, while counsel does not, in terms, concede that he k n e w or should have known that submitting the protected documents to the Dairyland c o u rt was a violation, his final briefing in this matter does not continue to contest the p o in t. See Pl.'s Resp. passim. It is also clear that counsel voluntarily filed the protected documents with the court in Dairyland. This is not a case in which one protected document was inadvertently s u b m itte d and counsel quickly withdrew it upon learning of his mistake. Here, counsel n o t only submitted thirty-five protected documents subject to the Order Amending P r o te c tiv e Order, he also refused to withdraw them after being notified by defendant that they were protected. PG&E Violation Opinion, 79 Fed. Cl. at 746. It therefore appears th a t counsel for PG&E intentionally and voluntarily performed an act which he should h a v e known to be contrary to the court's Order Amending Protective Order. As in Aloe V e ra , Eagle Comtronics, and Lion Raisins, regardless of plaintiff's counsel's subjective in te n tio n s or beliefs, he violated a clear and unambiguous court order. See Aloe Vera, 3 7 6 F.3d at 966; Eagle Comtronics, 305 F.3d at 1313-14; Lion Raisins, 64 Fed. Cl. at 5 4 4 . Because plaintiff's counsel undisputably acted in violation of a clear and u n a m b ig u o u s court order when he used thirty-five documents protected by the Order A m e n d in g Protective Order in the Dairyland litigation, sanctions are also appropriate p u rs u a n t to the court's inherent power to enforce its own orders.

C.

A p p ro p ria te Remedies or Sanctions

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1.

D e f e n d a n t's Requests for a Return of All Documents and Bar Against Their F u t u re Use

D e f e n d a n t has asked that the court impose three remedies or sanctions: 1) to r e q u ir e counsel for PG&E to return or certify the destruction of all protected documents, 2 ) to bar PG&E from using any of the protected documents in future proceedings in this c a se , and 3) to award recovery of all costs, including attorneys' fees, incurred due to P G & E 's violation. Def.'s Br. 3-4. As authority for its first request, defendant cites K ra m e r v. Boeing Co., 134 F.R.D. 256, 258-59 (D. Minn. 1991) (holding that counsel for K ra m e r must return or destroy all documents disclosed under a protective order), and for its second request defendant cites Coleman v. American Red Cross, 979 F.2d 1135, 1141 (6 th Cir. 1992) (holding that Coleman could use certain information to bring a new and s e p a ra te suit, even though that information was discovered subsequent to a violation of th e court's protective order). See Def.'s Br. 3. However, as plaintiff's counsel asserts in P la in tif f 's Response, neither authority is sufficient to support defendant's requests. See P l.'s Resp. 4-6. Kramer does not adequately support defendant's first request because, in th a t case, the terms of the protective order actually mandated a return or destruction of all p ro te c te d documents following litigation. Kramer, 134 F.R.D. at 257. Here, the Order A m e n d in g Protective Order contains no such provision. See Order Amending Protective O rde r, 2006 U.S. Claims LEXIS 418, passim. Coleman fails to support defendant's s e c o n d request, to bar the use of the documents in all subsequent litigation, because the is s u e in that case focused on information gained as a result of a violation. Coleman, 979 F .2 d at 1136. Here, the documents in question were already available to plaintiff, albeit u n d e r protection of the Order Amending Protective Order. Further, although it stated in d ic ta that a court could bar the use of certain documents for the violation of a protective o rd e r, the Coleman court did not adopt such a measure itself. Id.10 R C F C 16(f) allows for remedies as provided by RCFC 37(b)(2), see RCFC 16(f), w h ic h includes prohibiting a party from introducing designated matters in evidence, R C F C 37(b)(2)(B). This authority would therefore expressly cover defendant's second re q u e st, to bar the use of the documents in future litigation, and implicitly allow for the f irs t. If plaintiff is not allowed to use the documents in this case, and the protective order f o rb id s him from using them elsewhere, plaintiff would no longer have a need to retain

In Defendant's Reply to Plaintiff's Response to the Court's Order, Dated December 12, 2007, Regarding Sanctions or Remedies for Plaintiff's Violation of the Court's May 14, 2006 Protective Order (Def.'s Reply), defendant also relies upon the court's broad authority to enforce its orders as a basis for imposing the first two requested remedies. Def.'s Reply 3. It appears to the court that, while it does have the authority to impose either of these sanctions or remedies pursuant to RCFC 16 or its inherent power, the court believes it is most appropriate in this case to impose sanctions or remedies under RCFC 16 only. 15

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th e documents and their return or destruction would be proper to ensure no further m is u s e . Likewise, in Chambers, the Court notes the broad discretion a court has in e n f o rc in g its orders pursuant to its inherent authority, stating, "outright dismissal of a la w s u it . . . is a particularly severe sanction, yet within the court's discretion. . . . Consequently, the `less severe sanction' of an assessment of attorney's fees is u n d o u b te d ly within a court's inherent power as well." Chambers, 501 U.S. at 45 (internal c ita tio n omitted). If the court's inherent authority allows for the dismissal of a case, in h e re n t authority would appear a fortiori to allow for an order to return documents co v ere d by a protective order or an order barring the use of those documents in future litig a tio n . However, the fact that the court has the authority to invoke these sanctions or re m e d ie s does not mean that they are appropriate in this case. As counsel for PG&E p o in ts out in his Response, "there is no need for a further remedy or sanction to forestall f u rth e r violations of this Court's order." Pl.'s Resp. 4 (emphasis added). This appears to b e correct for several reasons. First, Chief Judge Damich has already granted the g o v e rn m e n t's motion to strike the protected documents from the record in Dairyland. Id. a t 1. Second, counsel for PG&E has assured the court that he will not use the documents f o r any purpose outside of this litigation. Id. at 4. For these reasons, the threat of the d o c u m e n ts being used in other SNF litigation no longer exists. In addition, as counsel for P G & E points out, "[T]he first option . . . has no real effect standing alone . . . . PG&E w o u ld be free to seek the documents again in future proceedings, and the Court p re su m a b ly would order their release again for the same reason it ordered the release of th e documents the first time." Id. Therefore, it appears that defendant's first request se e k in g a return or destruction of all protected documents is both unnecessary and could p o s s ib ly lead to future duplicative litigation. The court therefore declines to order the f irs t requested remedy. D e f en d a n t's second request, to bar the future use of the documents in the current litig a tio n , also appears inappropriate in the circumstances of this case. The court has a lre a d y determined that plaintiff had a substantial need for the protected documents. PG&E Order to Compel, 71 Fed. Cl. at 215. To bar the use of the documents in future p roc ee d ing s in this case, should it return on remand, could prejudice PG&E. The court d o e s not believe that the PG&E plaintiff should be punished for actions its counsel took w h ile representing another client in another case. To bar the documents from future litig a tio n in this case would do precisely that. For this reason, the court declines to order d e f e n d a n t's second requested remedy. 2. D e f en d a n t's Request for Expenses, Including Attorneys' Fees, Arising from V io la tio n 16

W h i le the court agrees with plaintiff's counsel that no remedies or sanctions are n e e d ed to forestall future violations, Pl.'s Resp. 4, the court believes that sanctions or rem ed ies are required to redress the past violation. The court therefore finds defendant's th ird request, for recovery of expenses flowing from plaintiff's counsel's violation of the O rd e r Amending Protective Order, including attorneys' fees, see Def.'s Br. 3-5, a p p ro p ria te in this case. RCFC 16(f) mandates that the court require counsel for PG&E to pay the reasonable expenses incurred due to his noncompliance, including attorneys' f e e s, unless that noncompliance was substantially justified or other circumstances would m a k e that award unjust. See RCFC 16(f). While not directed specifically at RCFC 16, c o u n s e l for PG&E argues that these exceptions should, in fact, apply. See Pl.'s Resp. 7-8. Counsel for PG&E asserts that he had a good faith belief that submitting the documents u n d e r seal was not "use" and therefore not a violation. Id. at 8. Further, counsel asserts th a t he took significant care not to cause any harm and states that no serious public or p riv a te harm was caused. Id. The court examines these arguments in turn. F irs t, plaintiff's counsel contends that he was substantially justified in disobeying th e court order because of his mistaken belief that his actions did not constitute a "use," a n d were therefore not a violation. Id. However, the court has already determined that th e Order Amending Protective Order was clear and unambiguous and that counsel s h o u ld have known that using the documents in any manner other than as counsel for P G & E in this litigation would be a violation. PG&E Violation Opinion, 79 Fed. Cl. at 7 4 7 . While counsel "is not happy about the Court's conclusion," Pl.'s Resp. 2, he does n o t put forward any argument that might show why his misunderstanding was justified o th e r than the one already disposed of in this court's previous decision, see PG&E V iolatio n Opinion, 79 Fed. Cl. at 747-48. In In re Baker, 744 F.2d 1438 (10th Cir. 1984), th e Tenth Circuit stated: "It is clear from the language and the context in which this a m e n d m e n t to [FRCP 16(f)] was enacted that neither contumacious attitude nor chronic f a ilu re is a necessary threshold to the imposition of sanctions. The intent is to impose the s a n c tio n where the fault lies." Id. at 1440.1 1 Accordingly, the fact that plaintiff's counsel m a y not have acted with an improper intent is not a substantial justification for his v io latio n of the Order Amending Protective Order. Because plaintiff's counsel should h a v e known that his actions violated the Order Amending Protective Order, and he has n o t put forward any justifications for his actions other than those disposed of in the p re v io u s decision, plaintiff's counsel was not substantially justified in his noncompliance f o r the purposes of RCFC 16(f).

Although In re Baker, 744 F.2d 1438 (10th Cir. 1984) is focused on FRCP 16 rather than RCFC 16, the two rules are virtually identical in relevant part. The court therefore relies on persuasive authority interpreting FRCP 16. See supra Part II.A. n.3. 17

11

C o u n s e l' s second argument is that an award of sanctions would be unjust because n o serious public or private harm was caused by his violation. Pl.'s Resp. 8. However, there was harm done, both to the court and to defendant. The first harm was the harm d o n e to the court. Any time a court's order is violated and the court does not redress that v io la tio n , its authority is undermined and its ability to enforce its orders weakened. To a v o id that result, the court is given several tools to remedy violations of its orders, in c lu d in g RCFC 11, 16(f), and 37. And, if these tools do not reach the violation, the c o u rt may rely on its inherent power. This is necessary "so as to achieve the orderly and e x p e d itio u s disposition of cases." Chambers, 501 U.S. at 43 (quoting Link, 370 U.S. at 6 3 0 -6 3 1 ). In addition, judicial resources have been wasted in proceedings to enforce the O rd e r Amending Protective Order. Such a waste of judicial resources is precisely what R C F C 16 sought to alleviate. See In re Baker, 744 F.2d at 1441 (stating that RCFC 16 is m e a n t to deal with "the matter most critical to the court itself: management of its docket a n d avoidance of unnecessary burdens on the tax-supported courts, opposing parties or b o th."). T h e re has also been harm to defendant. Counsel for PG&E states that "the harm or threa tene d harm from the violation has already been eliminated by Chief Judge Damich's o rd e r, [so] no additional `sanction' is warranted." Pl.'s Resp. 8. It is true that the Chief J u d g e 's order avoided certain harm which could have been visited on defendant in the D a iryla n d litigation. However, defendant was forced to file motions in both the D a irylan d case and in this case to ensure that such harm was avoided and to vindicate its p ro p e r reliance on this court's order. See Def.'s Mot. passim. In filing and supporting thes e motions, defendant incurred costs and expenses, including attorneys' fees. Def.'s B r. 3-4. Because none of these expenses would have been necessary had counsel for P G & E complied with the Order Amending Protective Order, these expenses are harms s u f f ere d by defendant as a result of plaintiff's counsel's violation. Because harm was in f lic te d upon both the court and defendant, it is not unjust to impose sanctions for p la in tif f 's counsel's noncompliance with the court's Order Amending Protective Order. Therefore, because counsel's actions were not substantially justified and it would not be u n ju st to award sanctions, the court is required under RCFC 16(f) to impose sanctions in the amount of the reasonable expenses incurred due to plaintiff's counsel's n o n c o m p lia n c e, including attorneys' fees. In the alternative, an award to defendant of a tto rn e ys ' fees incurred as a result of plaintiff's counsel's violation of the Order A m e n d in g Protective Order is appropriate pursuant to the court's inherent power to e n f o rc e its own orders. Because plaintiff's counsel's actions fall within the category of ca ses in which a court can impose attorneys' fees pursuant to its inherent power, d e f e n d a n t 's third request appears appropriate. However, shortly after authorizing the use o f inherent powers in Chambers, the court warned, "[b]ecause of their very potency, in h e re n t powers must be exercised with restraint and caution." 501 U.S. at 44. For this rea so n , "when . . . conduct . . . could be adequately sanctioned under the Rules, the court 18

o rdin arily should rely on the Rules rather than the inherent power." Id. at 50. The court th e re f o re relies on RCFC 16, because RCFC 16, by its terms, governs the facts of this c a se . 3. D e p a r tm e n t of Justice (DOJ) is a Proper Recipient of Attorneys' Fees

Plaintiff's counsel also argues that the award of attorneys' fees would not be p ro p e r in this case because it is the role of the DOJ to litigate such matters, and that DOJ th e re f o re fails to incur attorneys' fees. Pl.'s Resp. 7. Counsel for PG&E states, "Not o n ly has the government failed to cite a case, but undersigned counsel is aware of none, in w h ic h the [DOJ] was allowed to `recover' non-existent attorneys' fees as a result of a n o th e r parties' [sic] violation of a protective order." Id. While counsel may be correct th a t there is no precedent for the DOJ's recovery of attorneys' fees specifically for a n o th e r party's violation of a protective order, there are numerous examples of cases in w h ich the United States has recovered attorneys' fees incurred due to an opponent's f a ilu re to follow court orders. See, e.g., United States v. City of Jackson, 359 F.3d 727, 7 3 2 -3 4 (5th Cir. 2004) (award of attorneys' fees to United States following opposing p a rty's civil contempt citation); United States v. Big D Enters., Inc., 184 F.3d 924, 935-36 (8 th Cir. 1999) (award of attorneys' fees to United States for opposing party's FRCP 37 v iolatio n ). For example, in Alaska Pulp Corp. v. United States, 41 Fed. Cl. 611 (1998), th e Court of Federal Claims awarded the United States its reasonable expenses, including a tto rn e ys ' fees, incurred on account of plaintiff's failure to produce a deponent according to a discovery order. Id. at 616-17. IV. C o n c lu s io n

P la in tif f contends that "[i]t is a basic tenet of our judicial system that punishment sh o u ld fit the crime." Pl.'s Resp. 2. The court agrees. But the contention is irrelevant to th is case. There is no "crime" here and therefore no "punishment." There has been, h o w e v e r, a problem created by a voluntary violation of a protective order. RCFC 16 is d e sig n e d to address precisely the type of problem created by plaintiff's counsel. In the c irc u m s ta n c e s of this case, the court is required to impose the sanctions it mandates. Pursuant to the court's authority under RCFC 16(f), counsel for PG&E is ordered to pay th e reasonable expenses incurred by the United States, including attorneys' fees, because o f the failure of counsel for PG&E to comply with the Order Amending Protective O rd e r.1 2 The value of the attorneys' fees will be measured by the reasonable number of

12

Because counsel for PG&E committed the violation in his capacity as counsel for (continued...) 19

h o u rs worked multiplied by the prevailing market rate, that is "those prevailing in the c o m m u n ity for similar services by lawyers of reasonably comparable skill, experience, a n d reputation." Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). Plaintiff's counsel and defendant shall endeavor to stipulate to those costs, e x p e n se s, and attorneys' fees and, if they so agree, shall file a joint statement listing the am o u n t of such items with the court no later than July 25, 2008. Should plaintiff's c o u n se l and defendant be unable to agree, defendant shall file with the court a bill of its c o sts , expenses, and attorneys' fees, together with any necessary explanation or s u p p o rtin g documentation thereof,1 3 on or before August 8, 2008. Plaintiff's counsel s h a ll then file his response no later than August 25, 2008. Following a determination of s u c h costs and fees, an appropriate order will be entered in this matter.

IT IS SO ORDERED. s/ Emily C. Hewitt EMILY C. HEWITT Judge

(...continued) another client, these sanctions are not to be passed on to PG&E, but paid by counsel himself. RCFC 16(f) allows this arrangement, stating that "the judge shall require the party or the attorney representing the party . . . to pay the reasonable expenses incurred . . . ." RCFC 16(f) (emphasis added). It would not be appropriate in this situation to require PG&E to pay costs resulting from a violation of an order of this court that its attorney committed while in the service of another client. Such documentation, which will most likely consist of typical billing records, must "be in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and the need for the service, and the reasonable fee to be allowed." Martin v. United States, 12 Cl. Ct. 223, 227 (1987). 20
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