Spiers v. City and County of San Francisco

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 DACARI SPIERS, Case No. 20-cv-01357-JSC 8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. FOR SANCTIONS 10 CITY AND COUNTY OF SAN Re: Dkt. No. 96 FRANCISCO, et al., — 11 — Defendants. — 12 — 13 On August 10, 2021, the parties reached a settlement in principle, pending approval by the 14 San Francisco Board of Supervisors.1 (Dkt. No. 92; see Dkt. No. 94 at 2.)2 On December 22, 15 2021, Plaintiff filed the instant motion for sanctions. (Dkt. No. 96.) Following a Case 16 Management Conference, the Court ordered Defendants to provide a status report on the issues 17 raised in Plaintiff’s motion. (Dkt. Nos. 100, 103; see Dkt. No. 105.) After carefully considering 18 the parties’ briefing, the Court concludes that oral argument is unnecessary, see N.D. Cal. Civ. 19 L.R. 7-1(b), VACATES the March 3, 2022 hearing, and GRANTS the motion in PART as set 20 forth below. 21 BACKGROUND 22 Plaintiff’s counsel also represents the plaintiff in a related case, Richard v. City and County 23 of San Francisco, Case No. 3:20-cv-04276-JSC. On December 14, 2021, Plaintiff’s counsel 24 deposed Lieutenant Brendan O’Connor in the related case. (Dkt. No. 96-1 ¶ 2.) Lieutenant — 25 — — 26 — 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 11, 13.) 1 O’Connor testified about evidence that was never produced in this case: interviews by Lieutenant 2 O’Connor of Officers Stangel, Martinez, and Cabillo, recorded the day after the incident; text 3 messages; and emails. (Dkt. No. 96-1 ¶¶ 2–3; Dkt. No. 98-1 ¶ 8; Dkt. No. 98-3 ¶ 2.) When 4 Plaintiff’s counsel asked why the evidence had not been produced, Defendants’ counsel 5 maintained that it had been; later, however, Defendants’ counsel agreed that the evidence had 6 never been produced. (Dkt. No. 96-1 ¶ 4; Dkt. No. 98-1 ¶¶ 5–6.) Following the deposition, 7 Plaintiff’s counsel emailed Defendants’ counsel and requested the evidence be produced. (Dkt. 8 No. 96-1 ¶ 5.) On December 16, 2021, counsel met and conferred and Plaintiff’s counsel again 9 requested the evidence. (Id. ¶ 6.) 10 Defendants explain that the interviews of Officer Stangel, Martinez, and Cabillo were part 11 of a confidential San Francisco Police Department Investigative Services Detail (“SFPD ISD”) 12 and San Francisco District Attorney’s Office Independent Investigations Bureau (“SFDA IIB”) 13 file. (Dkt. No. 98-1 ¶ 4; Dkt. No. 98-3 ¶¶ 2–3.) An SFPD representative attests: 14 As a matter of practice, SFPD does not disclose records contained in open SFPD ISD investigations because disclosure of those records 15 may negatively impact the pending criminal investigation or any pending related matters brought by SFDA IIB. SFPD ISD closes its 16 investigations once all proceedings related to the case have concluded. — 17 — 18 (Dkt. No. 98-3 ¶ 4.) Per the policy, “SFPD ISD did not disclose any of the contents of the SFPD 19 ISD file,” including the interviews, “to the City Attorney’s Office during the course of discovery.” 20 (Id. ¶ 5; Dkt. No. 98-1 ¶ 4.) As for the text messages, SFPD solicited documents from Lieutenant 21 O’Connor on July 14, 2021. (Dkt. No. 98-3 ¶ 7.) Lieutenant O’Connor responded the next day, 22 but SFPD did not forward the text messages to Defendants’ counsel because it prioritized other 23 litigation after the parties reached a settlement in principle in August 2021. (Id. ¶¶ 8–9.) 24 Defendants’ counsel obtained the interviews and the text messages for the first time after 25 Lieutenant O’Connor’s deposition. (Dkt. No. 98-1 ¶ 4–6.) Defendants’ counsel produced the text 26 messages to Plaintiff on December 16, 2021, and the interviews on January 4, 2022. (Id. ¶¶ 5–6.) 27 DISCUSSION 1 is well settled” that a district court considering sanctions “may, in its informed discretion, rely on 2 inherent power rather than the federal rules or § 1927.” Fink v. Gomez, 239 F.3d 989, 994 (9th 3 Cir. 2001). Under 28 U.S.C. § 1927 , the Court may require an attorney or litigant “who so 4 multiplies the proceedings in any case unreasonably and vexatiously . . . to satisfy personally the 5 excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 6 U.S.C. § 1927 ; see Wages v. I.R.S., 915 F.2d 1230 , 1235–36 (9th Cir. 1990) (explaining that 7 Section 1927 sanctions can be imposed against unrepresented litigants as well as attorneys). 8 Given that Defendants’ counsel himself was not aware of the evidence until the December 14, 9 2021 deposition and thereafter worked quickly to produce the evidence, the Court finds that 10 sanctions are only potentially appropriate against Defendants. 11 Courts have “inherent authority to impose sanctions for bad faith, which includes a broad 12 range of willful improper conduct.” Fink, 239 F.3d at 992 . “[S]anctions are available if the court 13 specifically finds bad faith or conduct tantamount to bad faith.” Id. at 994 . Conduct tantamount 14 to bad faith may include “recklessness when combined with an additional factor such as 15 frivolousness, harassment, or an improper purpose.” Id. 16 The Court finds that Defendant the City and County of San Francisco, acting through 17 SFPD, engaged in conduct tantamount to bad faith. There is no dispute that Defendant did not 18 disclose the evidence to their own counsel until the December 14, 2021 deposition. And the 19 failure to disclose was not inadvertent; it was part of an admitted SFPD policy. As such, 20 Defendant was at least reckless as to its obligations under the discovery rules. See Milke v. City of 21 Phoenix, No. CV-15-00462-PHX-ROS, 2019 WL 11766079 , at *12 (D. Ariz. July 19, 2019) 22 (“[Plaintiff] did not produce the book in her first responses to the request for production . . . . 23 [She] had no good faith basis for failing to include [it].”). Moreover, the recklessness is combined 24 with the additional factor of an improper purpose. Protecting the integrity of a criminal 25 investigation might be a proper basis to quash or modify a discovery request or to enter a 26 protective order, (e.g., Dkt. No. 69), but it is an improper purpose for refusing to disclose to 27 counsel, Plaintiff, and the Court that discoverable evidence exists at all. See N. Am. Watch Corp. 1 power supported sanctions award, where “appellants represented to the court that they did not 2 have the documents in question” but later produced them). 3 Defendants argue there is no prejudice to Plaintiff because the evidence was produced 4 within three weeks of the deposition and because Plaintiff still wants to proceed with the agreed 5 upon settlement. But Plaintiff’s counsel had a professional obligation to make sure Defendants 6 actually produced the evidence and to review it, lest it change Plaintiff’s settlement position. 7 “Litigation cannot work if a party is free to withhold responsive documents . . . and [later] . . . 8 simply state additional discovery can cure any prejudice.” Milke, 2019 WL 11766079 , at *15; see 9 Henry v. Gill Indus., Inc., 983 F.2d 943, 947 (9th Cir. 1993) (“[Plaintiff] argues that his failure to 10 produce these documents caused [Defendant] no prejudice, but this, even if true, would not 11 establish that his conduct did not violate the discovery rules.”). That the settlement is intact does 12 not change that an abuse of the judicial process occurred. Likewise, the Board of Supervisors’ 13 approval of the settlement, (see Dkt. No. 105-1 ¶¶ 2–3), does not change the work that Plaintiff’s 14 counsel had to perform to obtain the evidence. 15 Accordingly, an award of attorneys’ fees is appropriate. See Fink, 239 F.3d at 991 (noting 16 that inherent power to levy sanctions includes awarding attorneys’ fees). “Because the imposition 17 of attorneys’ fees against a party who abused the judicial process is limited to compensation for 18 the wronged party, the court can shift only those attorney’s fees incurred because of the 19 misconduct at issue.” Lu v. United States, 921 F.3d 850, 860 (9th Cir. 2019) (cleaned up); see 20 Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (explaining that an 21 attorneys’ fees sanction “must be compensatory rather than punitive in nature”). For this reason, 22 Plaintiff’s counsel’s fee request for all discovery work throughout the life of the case is too broad. 23 (Dkt. No. 96-1 at 2–3.) The award is limited to the 5.75 hours of discovery work performed after 24 December 14, 2021, (id. at 3), at the reasonable rate of $400 per hour.3 See Shame on You Prods., 25 Inc. v. Banks, CV 14–03512–MMM (JCx), 2016 WL 5929245 , at *20 (C.D. Cal. Aug. 15, 2016) — 26 — 27 3 The Court does not address Plaintiff’s arguments about excess costs incurred in the related case. 1 (“The only ‘excess’ litigation costs Defendants incurred as a result of [Plaintiff's counsel’s] 2 || conduct were those associated with their efforts to obtain the screenplay between October 27, 3 2014, when the parties made their initial disclosures . . . and December 17, 2014, when the 4 || screenplay was finally produced.”). The 5.75 hours includes work on the motion for sanctions, 5 because Plaintiff's counsel had to meet and confer and then file the motion before Defendants’ 6 || counsel indicated he would produce the evidence. 7 CONCLUSION 8 Plaintiff's motion for sanctions is GRANTED in PART. Defendant the City and County of 9 San Francisco shall pay Plaintiffs reasonable attorneys’ fees of $2,300 within 30 days. The 10 || hearing/status conference scheduled for March 3, 2022 is VACATED. 11 IT IS SO ORDERED. 12 || Dated: March 1, 2022 1 eH ne 5 CQUELINE SCOTT CORL nited States Magistrate Judge — 16 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —