Bogosian et al v. Rhode Island Airport Corporation (T.F. Green Airport) et al

Filing 77

MEMORANDUM AND ORDER (portions redacted) DENYING #47 Sealed Motion for Sanctions. So Ordered by Judge Mary M. Lisi on 6/5/2015. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
GREGG BOGOSIAN and THADOSHA
BOGOSIAN and A.B.,
a minor child, by and through her parents
and natural guardians, Gregg Bogosian and
Thadosha Bogosian,
Plaintiffs
v.

C.A. No. 14-080-ML

RHODE ISLAND AIRPORT CORPORATION
(T.F. GREENE AIRPORT); OFFICER STEPHEN E.
REIS; SERGEANT CHARLES E. HALL;
OFFICER JOHN KINGSTON; and OFFICER
JOHN DOE,
Defendants

MEMORANDUM AND ORDER
The matter before the Court is the Defendants’ motion for
sanctions against the Plaintiff, Gregg Bogosian (“Bogosian”) for
alleged violations of a protective order issued by this Court on
March 31, 2014 (the “Protective Order,” Dkt. No. 10). For the
reasons set forth herein, the Defendants’ motion is DENIED.
I.

Factual Background and Procedural History
This case arose from an incident that took place at the T.F.

Greene Airport (the “Airport”) on the afternoon of July 31, 2012.
Although the parties disagree about the exact sequence and details
of the events, there are some facts that appear undisputed. On that

1

day, Bogosian drove his car to the Airport, where he dropped off
his wife, daughter, and mother-in-law at the departure area on the
upper level. Bogosian left the departure area briefly, and then
returned to that area to wait for his wife and daughter to reemerge from the Airport terminal. At some point, Bogosian was told
by Airport police that he could not remain in the departure area’s
clearly marked loading and unloading zone. Bogosian then proceeded
to the arrival area at the lower level of the Airport, where he
again parked in a marked loading and unloading zone. Shortly after
his arrival, Bogosian was approached by a uniformed Airport police
officer. Bogosian was unresponsive to the officer’s inquiry and,
when asked to produce his license and registration, he did not do
so; instead, Bogosian called 911 on his cell phone. Bogosian was
subsequently placed under arrest and escorted to the Airport police
station. He was charged with obstruction of justice and disorderly
conduct and he was given a traffic ticket. The traffic violations
were

subsequently

dismissed

based

on

Bogosian’s

good

driving

record. The criminal charges were dismissed on December 6, 2012.
On January 14, 2014, Bogosian filed a nine-count complaint
(the “Complaint”) in Rhode Island state court, alleging, inter
alia, wrongful arrest and assault and battery (Dkt. No. 1-2).
Because the Complaint also contained allegations of illegal search
and seizure in violation of the Fourth Amendment, the case was
removed by the Defendants to this Court on February 11, 2014.

2

Following a Rule 16 conference, the parties proceeded to
discovery pursuant to a pretrial scheduling order issued on March
7, 2014 (Dkt. No. 7). On March 20, the parties filed a joint motion
for

entry

of

a

protective

order

(Dkt.

No.

9)

to

protect

confidential information produced during discovery from unnecessary
disclosure. The motion was granted on March 21, 2014 (Dkt. No. 10).
On March 31, 2015, following certain events, the Defendants
filed

a

motion

for

sanctions

against

Bogosian

for

alleged

violations of the Protective Order (Dkt. No. 47) pursuant to Fed.
R. Civ. P. 37(b)(2)(A). Bogosian objected to the Defendants’ motion
(Dkt. 54), to which the Defendants filed a reply (Dkt. 57). The
Court conducted an evidentiary hearing on the matter on April 29,
2015 and May 8, 2015, after which it took the Defendants’ motion
under advisement.
II.

Standard of Review
Pursuant to Rule 37, the court may impose a variety of

sanctions against a party for violation of a discovery order,
including the entry of a default judgment against the disobedient
party. Fed. R. Civ. P. 37(b)(2)(A). Such sanctions may be imposed
by the Court “both to penalize the particular noncompliance and to
deter others from engaging in the same tactics.” AngioDynamics,
Inc. v. Biolitec AG, 780 F.3d 429, 435 (1st Cir. 2015); Companion
Health

Services,

Inc.

v.

Kurtz,

675

F.3d

75,

84

(1st

Cir.

2012)(Noting that “the goal of a sanction is both to penalize

3

wrongful conduct

and

to

deter

future

similar

conduct

by

the

particular party and others ‘who might be tempted to such conduct
in the absence of such a deterrent.’”)(internal citation omitted).
The First Circuit has provided a non-exhaustive list of
substantive and procedural factors to be considered in determining
a motion for sanctions. They include (1) severity of the discovery
violations, (2) legitimacy of the party's excuse for failing to
comply, (3) repetition of violations, (4) deliberateness of the
misconduct, (5) mitigating excuses, (6) prejudice to the other
party and to the operations of the court, and (7) adequacy of
lesser sanctions. AngioDynamics, Inc. v. Biolitec AG, 780 F.3d at
435

(citing

Cir.2010)).In

Vallejo

v.

addition,

Santini–Padilla,
“[p]ertinent

607

F.3d

procedural

1,

8

(1st

considerations

include ‘whether the offending party was given sufficient notice
and opportunity to explain its noncompliance or argue for a lesser
penalty.” Vallejo v. Santini–Padilla, 607 F.3d at 8 (quoting Malloy
v. WM Specialty Mortgage, 512 F.3d 23, 26 (1st Cir.2008) (per
curiam)). The party seeking the imposition of sanctions bears the
burden of proof. See 8A C. Wright, A. Miller & R. Marcus, Federal
Practice and Procedure § 2291, at 716 (2d ed. 1994).
III.

The Protective Order
Under the Protective Order, the parties are entitled to (1)

designate as “CONFIDENTIAL” any document or material which a party
believes to contain confidential information, and (2) designate as

4

“ATTORNEYS EYES ONLY” any document or material which a party
believes to contain “highly confidential, highly sensitive personal
information, trade secrets, or other sensitive and/or security
information.” Protective Order at 1 (Dkt. No. 10). The disclosure
of information and/or material designated as “CONFIDENTIAL” or
“ATTORNEYS EYES ONLY” is strictly limited to the parties, their
attorneys, and certain other individuals directly involved in the
litigation

process

in

their

professional

capacity.

The

two

documents at issue in this motion are the résumé of Defendant
Sergeant Charles E. Hall (“Sergeant Hall”) and the transcript of
his December

15,

2014 deposition,

both

of which

were

marked

“CONFIDENTIAL.”
IV.

The Parties’ Positions
According to the Defendants, on January 24, 2015, around 3:00

a.m., Bogosian contacted a Martha’s Vineyard police department
where Sergeant Hall had been employed more than thirty years
previously. Bogosian asked a number of questions about a 1981
incident during Sergeant Hall’s employment there. In the course of
a telephone conversation with Officer Dustin Shaw (“Officer Shaw”),
a police officer in that department, Bogosian disclosed information
which, the Defendants assert, was contained in Sergeant Hall’s

5

résumé and/or the transcript of his deposition1, both of which had
been designated “CONFIDENTIAL.”

Officer Shaw advised Bogosian to

call back during normal business hours when he could speak to the
records clerk regarding past employees. Transcript from 04/29/15
Evidentiary Hearing (TR I) 63:21-24. It is undisputed that Bogosian
never called back.
Officer

Shaw,

concerned

about

the

nature

of

the

call,

conducted an internet search on Bogosian and Sergeant Hall and,
when he learned of the pending litigation, he informed the Rhode
Island Airport Police about the call. In addition, he prepared an
incident report on the event. The Defendants, after repeated
attempts to confer with Bogosian’s counsel, filed the instant
motion, seeking (1) a hearing to question Bogosian about the extent
of

the

information

disclosure,

and

(2)

attorneys’

fees

for

investigating the nature of Bogosian’s disclosures.
Bogosian, in objecting to the Defendants’ motion, asserts that
he obtained information concerning Sergeant Hall’s past employment
in

2012,

prior

to

imposition

of

the

Protective

Order

and,

therefore, excepted therefrom. Pltfs’ Obj. at 4 (Dkt. No. 53).
Bogosian further asserts that he located the information “through
internet searches and various newspaper articles, all of which are

1

Although the deposition took place on December 15, 2014, the
transcript was not made available to the parties until January 5,
2015.

6

accessible

to

the

general

public

and

are

therefore

public

knowledge.” Id. He also notes that the résumé was not designated as
“CONFIDENTIAL” when it was first produced in discovery, but only
when it was attached as an exhibit to Sergeant Hall’s deposition,
taken on December 15, 2014. In support of his objection, Bogosian
submits photocopies of several newspaper clippings about the 1981
events that occurred on Martha’s Vineyard; an affidavit in which
Bogosian reiterates that he obtained the information about Sergeant
Hall in 2012; a number of Rhode Island newspaper articles in which
reference is made to Sergeant Hall’s employment in East Providence
(and which are entirely unrelated to the motion); and affidavits
from Bogosian’s prior attorneys who confirm that they did not
provide their client with copies of Sergeant Hall’s deposition
transcript (only one of the attorneys makes the same assertion with
respect to the résumé).
V.

The Evidentiary Hearing
1. Officer Shaw’s Testimony2
Officer

Shaw,

whose

testimony

was

clear,

concise,

and

unequivocal, recounted that he received a call from Bogosian on
January 24, 2015 at 2:50 a.m. TR I at 60:13-22. Bogosian inquired

2

To allow Officer Shaw to return to his post, his testimony was
presented about halfway through Bogosian’s direct examination. For
ease of following the hearing, Officer Shaw’s testimony is
summarized first.

7

whether Sergeant Hall had been employed by the department in the
early 1980s. TR I 63:8-19. According to Shaw, Bogosian stated that
he was doing a background check for employment purposes. TR I 64:24.

Bogosian

then

made

reference

toœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœ

œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœand he disclosed
a number of details of that incident to Sergeant Hall. TR I 64:866:10. Upon inquiry by Officer Shaw, Bogosian represented that he
was working

for

“Rhode

Island,”

and,

when

asked

to

responded with “Federal Government.” TR I 69:22-70:14.

clarify,
Bogosian

told Officer Shaw that he had a relative with the Massachusetts
State Police who was also looking into Sergeant Hall’s background.
TR I 70:15-25. Bogosian also related to Officer Shaw that he had
Sergeant Hall’s résumé.

TR I 71:25-72:12.

Officer Shaw described Bogosian as appearing suspicious in
nature, and evasive when asked a question. TR I 71:17-24. Shortly
after the call concluded, Officer Shaw prepared an incident CAD
[computer assisted dispatch] report. TR I 61:11-63:4.

Because he

was concerned about Bogosian’s behavior on the phone, Officer Shaw
also performed a Google search on Bogosian’s name and found the
information regarding litigation involving the T.F. Greene airport.
TR I 73:6-12.

Given the early morning hours of the call and the

type of questions posed by Bogosian, Officer Shaw then contacted
the Airport Police Department and advised that department of what
had transpired. TR I 73:12-17.

8

2.

Bogosian’s Testimony

According to Bogosian, he obtained three newspaper articles
œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœwhen Bogosian researched the
background of the Defendant police officers after he was arrested
at the Airport on July 31, 2012. TR I 6:3-16.

Bogosian was unable

to state from which newspaper any of the articles were taken. He
maintained that they came from “the archives,” TR I 6:22-25,
could not clarify which archives he meant,

but

nor could he recall

whether he had found them on the internet, which search engine or
search terms he may have used, or whether he received the articles
from the Providence Public Library. TR I 7:1-20:23; Transcript from
05/08/15 Evidentiary Hearing (“TR II”) 64:11-65:19. According to
Bogosian, he obtained printed copies of the clipped articles from
the internet where they had been uploaded by someone. Bogosian then
printed the articles from a computer other than his own, possibly
the Providence Public Library computer. TR I 20:11-23.
As to handwritten dates on all three articles, Bogosian stated
that he did not know who had written them, but that the articles
were as they appeared on the internet. TR I 21:3-20.

Bogosian

conceded that he had no records as to how he found the articles in
2012. TR I 21:24-22:16. According to Bogosian, he gave the articles
to his former attorneys in or about March or April 2015 or,
possibly, prior to Sergeant Hall’s deposition in December 2014. TR

9

I 23:7-25:9. Bogosian also stated that his former attorneys never
brought to his attention that the Defendants had expressed a
concern about Bogosian’s early morning call to Officer Shaw. TR I
28:19-23.
Bogosian made the call to Sergeant Hall’s former employer on
Martha’s Vineyard on January 24, 2015, at around 3:00 a.m., three
days after an unsuccessful settlement conference in the case. TR I
33:4-21. According to Bogosian, notwithstanding his statement in an
affidavit to the contrary, he did not know that Sergeant Hall had
been deposed on December 15, 2014, about six weeks before the call.
TR I 36:15-37:17.
Bogosian’s

version

of

the

late

night/early

morning

call

differed significantly from that testified to by Officer Shaw and
set forth in the incident report3 Officer Shaw prepared within an
hour of talking to Bogosian. Exh. F. Bogosian “absolutely” denied
telling

Officer

Shaw

that

he

investigation of Sergeant Hall,

was

conducting

a

background

TR I 42:18-24, although he also

expressed that he was allowed to “research the background of people
that falsely arrested me.” TR I 45:11-21. Although Bogosian denied
having made certain statements to Officer Shaw, he did reluctantly

3

Bogosian described the police report as “false” and stated that,
although he had not yet done so, he intended to do something in
response to that. TR I 42:5-15.

10

concede that he had discussed with Officer Shawœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœ
œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœ. TR I
46:25-53:7.
Bogosian was adamant that he had never seen Sergeant Hall’s
résumé, TR I 55:2, although he allowed that he may have seen it
attached to the Defendants’ motion for sanctions. TR I 56:22-25. He
also denied telling Officer Shaw that he had a copy of the résumé.
TR I 57:3-5.
objection

In his affidavit submitted in support of his

to

acknowledged

the
that

Defendants’
he

was

motion

first

made

for

sanctions,

aware

of

the

Bogosian
résumé

in

September 2014, when it was produced in discovery, but he took the
position that the résumé was not subject to the protective order.
TR I 57:6-23; Exh. B ¶¶ 12, 13.
Bogosian denied telling Officer Shaw that he, Bogosian, had a
family member in the Massachusetts State Police who would look into
Sergeant Hall’s background or that he had talked to anyone else in
law enforcement about the matter. TR II 22:8-19. Bogosian also
denied representing to Officer Shaw that he worked for the Federal
Government, although he maintained at the evidentiary hearing that
he had been an employee of the Federal Government at some point. TR
II 25:24-27:2.
VI.

Discussion

The Defendants seek sanctions against Bogosian for allegedly
violating the March 31, 2014 Protective Order put in place in this

11

litigation. The motion is based on Bogosian’s early morning phone
call to another police department where Bogosian, in an apparent
attempt to gather information about Sergeant Hall, disclosed a
number of facts that were contained in Sergeant Hall’s résumé
and/or the transcript of his deposition. Both of those documents
had been marked “CONFIDENTIAL” and were subject to the Protective
Order.
he

had

On his part, Bogosian, who denies much of the conversation
with

Officer

Shaw,

insists

that

any

information

he

disseminated was the result of conducting internet research through
which he located a number of newspaper articles available to the
public.
As noted by this Court at the conclusion of the evidentiary
hearing in this matter, Bogosian’s conduct as well as the evasive
nature of his testimony give the Court pause. Bogosian flatly
denied making statements that Officer Shaw, a police officer
unconnected with this litigation, testified to and which he also
set forth in his official police report and his sworn affidavit.
The Court also expressed its doubts about Bogosian’s motivation in
making a 3:00 a.m. inquiry, yet not calling back during business
hours as he was advised to do by Officer Shaw.
Nevertheless, even if the Court were to credit only Officer
Shaw’s version of the events, there is no conclusive proof that
Bogosian was in actual possession of the transcript and/or the
résumé when he made that call. All the details Bogosian discussed

12

with Officer Shaw can be found in the newspaper clippings which
Bogosian

purportedly

located

in

the

course

of

his

internet

research. In light of Bogosian’s inability to recall how, when, and
where he found those articles, the Court has some concerns about
the source of the materials and the methodology of Bogosian’s
research. The Defendants, however, have the burden in this matter,
and there was no testimony establishing that the research described
by Bogosian could not have yielded the results he claims to have
located. Accordingly, the Court is unable to conclude that the
conversation Bogosian had with Officer Shaw was the result of a
violation of the Protective Order.
Conclusion
For the reasons stated herein, the Defendants’ motion for
sanctions is DENIED. The Plaintiff is admonished, however, that he
is to maintain confidentiality of any and all documents or other
materials that are marked “CONFIDENTIAL” in this case.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
June 5, 2015

13