Humphries v. Button

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 SAGE HUMPHRIES, GINA MENICHINO, Case No. 2:21-cv-01412-ART-EJY ROSEMARIE DeANGELO, DANIELLE 5 GUTIERREZ, JANE DOE 100, JULIET DOHERTY, and JANE DOE 200 ORDER 6 Plaintiffs, 7 v. 8 MITCHELL TAYLOR BUTTON and DUSTY 9 BUTTON,

10 Defendants.

11 12 Before the Court is Plaintiff Sage Humphries’ Motion for Sanctions Regarding Unlawfully 13 Obtained Information (the “Sanctions Motion”). ECF No. 77.1 The Court reviewed the Sanctions 14 Motion, Defendants’ Opposition (ECF No. 85), and Plaintiff’s Reply (ECF No. 89). The Court has 15 also considered Plaintiff’s Motion to Supplement the Sanctions Motion. ECF No. 91. 16 I. RELEVANT BACKGROUND 17 The instant litigation commenced in July 2021 when Plaintiffs Sage Humphries and Gina 18 Menichino filed suit against Defendant Mitchell Taylor Button alleging violations of federal and 19 state law. ECF No. 1 at 12-18. Since its inception, the case has been active with numerous motions 20 filed and various parties entering and exiting the litigation, including the addition of Dusty Button 21 as a Defendant. ECF No. 18. For purposes of addressing the Sanctions Motion, the Court does not 22 recite an extended history of the litigation or the current case status. 23 A. Humphries’ Sanctions Motion. 24 The Sanctions Motion revolves around two abuse prevention orders issued on August 15, 25 2017 by the Boston Municipal Court Department of the Trial Court. ECF Nos. 77-3, 77-4. The 26 Boston Court Orders required Defendants to:

27 1 The Sanctions Motion contains several attachments one of which is Exhibit G (FUS). ECF No. 77-8. Filed 1 “[S]urrender any and all personal information to the Boston Police Department pertaining to [Plaintiff Sage Humphries], including electronically stored 2 information, and is not to publish such information.” 3 Id. at 2. In addition, the Boston Court reinforced its warning to Defendants of the consequences of 4 any violation of its order:

5 The defendants are to surrender any and all personal information to the Boston Police Department -- fine if you gave it to Attorney Melcher -- pertaining to the 6 plaintiff, including electrically stored information, and that any such information is not to be published in any way at all. I hope your clients heard me loud and clear… 7 If there is any -- if there is any violation of any part of the order, including that part of the order, your clients will not like the results. I don’t want to sound antagonistic 8 or threatening when I put it in that -- in those terms; I do want your clients to understand the seriousness with which the Court takes the entire order, including 9 the provisions that I’ve set out… 10 ECF No. 77-2 at 65-66. 11 Humphries alleges that in the course of this litigation, Defendants repeatedly violated the 12 Boston Court Orders by using and disseminating a digital copy of Humphries’ iPhone and its data. 13 ECF No. 77 at 9. First, Humphries contends Defendants included text messages in court filings that 14 could only have come from a copy of Humphries’ iPhone that Defendants impermissibly possess.2 15 Id. Second, Humphries asserts Defendants sent text messages to a third party in which they 16 acknowledged the source of the messages was a copy of Humphries’ iPhone. Id. at 9-10. Third, 17 Humphries generally contend that a large portion of the documents turned over by Defendants in 18 discovery come from her iPhone. Id. at 10. Finally, Humphries accuses Defendants of improperly 19 disseminating retained electronic information to the press over the course of the litigation. Id. 20 Humphries argues that throughout the litigation she has “put Defendants on clear notice” that 21 their actions were in violation of the Boston Court Orders. Id. She stated this contention (1) in her 22 Motion to Dismiss Defendants’ Counterclaims (ECF No. 61); (2) in her counsel’s August 12, 2022 23 letter to Defendants’ counsel explaining the violations of the Boston Court Orders and requesting 24 Defendants cease disseminating information obtained from their impermissible possession of a copy 25 of her iPhone (ECF No. 77-9); and (3) on August 31, 2022 at a meet and confer as well as during 26 27 1 the week that followed in which the parties communicated regarding Defendants’ refusal to change 2 strategy relating to their possession of the iPhone (ECF No. 77-11). Id. at 10-11. 3 Humphries cites controlling case law in support of her argument that the Court possesses 4 inherent authority to issue sanctions for litigation misconduct specifically when a party has, in bad 5 faith, violated a court order. Id. at 11 citing Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991); Fink 6 v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1108 (9th 7 Cir. 2002). Humphries contends Defendants have displayed a “brazen” flouting of the Boston Court 8 Orders and that their bad faith conduct necessitates the imposition of sanctions. Id. at 12. Humphries 9 argues even if the Court were to find that Defendants’ conduct was not initially in bad faith, their 10 actions have become willful as Humphries has repeatedly alerted Defendants that their actions are 11 in violation of the Boston Court Orders to no avail. Id. at 12-13. She further argues Defendants’ 12 conduct has spiraled into harassment as the pictures leaked to the press have nothing to do with this 13 litigation and are intended to cause her shame and mental torment. Id. at 13. 14 As a result of Defendants’ misconduct, Humphries requests a Court order requiring 15 Defendants to delete the copy of Humphries’ iPhone and any of her personal data currently in their 16 possession, and to cease publication of such information in this litigation. Id. at 14. In addition, 17 Humphries requests an award of attorneys’ fees and costs relating to the Sanctions Motion. Id. 18 B. Defendants’ Opposition. 19 Defendants oppose the Sanctions Motion arguing they are preserving evidence discovered in 20 their possession after this litigation commenced (something they are required to do), and that 21 evidence was produced in response to Humphries’ discovery requests. ECF No. 85 at 2. Defendants 22 argue the Sanctions Motion is brought as a ploy to prevent Defendants from presenting exculpatory 23 evidence supporting their theory of the case, and the true motive behind the Sanctions Motion is the 24 evolving narrative in the press. Id. Specifically, Defendants argue the nature of the evidence 25 contained on the backup copy of Humphries’ iPhone demonstrates Humphries was in a romantic and 26 consensual relationship with Defendants and not the coercive, illegal relationship asserted in 27 Humphries’ pleadings. Id. at 3-4. 1 Defendants argue Humphries uploaded the backup copy of her iPhone onto an external hard 2 drive belonging to Defendants long before this litigation commenced. Id. at 3. Defendants contend 3 they did not realize they were in possession of the backup copy until they began searching for and 4 preserving evidence related to this case. Id. Defendants assert that after the state court in Boston 5 issued its Orders, they turned over everything they knew they had at that time to Humphries’ counsel. 6 Id. at 4. During discovery in this case, Defendants responded to a broad request for documents that 7 included some of the documents Humphries now contends are covered by the Boston Court Orders. 8 Id. Defendants accuse Humphries of trying to have it both ways: demanding broad swaths of 9 discovery while seeking to deprive Defendants of the ability to adequately defend themselves. Id. 10 at 5. 11 Defendants dispute Humphries’ interpretation of the Boston Court Orders arguing nothing in 12 the text of the Orders prevents them from retaining a copy of the evidence they currently possess. 13 Id. Defendants take issue with Humphries’ request that this Court order the destruction of the 14 material currently in their possession when the state court in Boston did not order destruction, but 15 “surrender” of the materials. Id. at 6. Defendants argue if they had destroyed the evidence at issue, 16 they would be subject to sanctions for spoliation of relevant evidence. Id. at 9. In addition, 17 Defendants argue that the evidence they possessed is relevant to claims made in this litigation by 18 third parties and that they are legally prohibited from destroying such evidence. Id. 19 Defendants point to hypocrisy on Humphries’ part. Id. at 10. Defendants ask the open 20 question of why Humphries has not produced this exculpatory information to Defendants as she 21 should have the original iPhone and its related information in her possession. Id. Relying on the 22 doctrine of unclean hands, Defendants allege that Humphries’ hands are “utterly filthy” as they aver 23 she has not turned over any of the information that she now asks Defendants to destroy. Id. at 10- 24 11. 25 Defendants further dispute that they are in any way responsible for the Daily Mail’s use of 26 photographs. Id. at 12. Defendants repeat the assertions that they were under a legal obligation to 27 produce the documents in discovery, and the fact that the Daily Mail obtained and published 1 Finally, Defendants argue this Court is not the proper forum to consider the kind of motion 2 that Humphries brings. Id. at 7. Defendants contend that the state court in Boston is the only court 3 with jurisdiction to interpret and enforce its orders and, by extension, to hear this Motion. Id. 4 Defendants invoke the Younger abstention doctrine arguing the facts of this case satisfy the four 5 criteria of the Younger test.3 Defendants state: “(1) the Boston Municipal Court proceedings are 6 ongoing as the last orders by that court is continuing in nature, (2) the application of the Abuse 7 Prevention Order is an important state interest, (3) either party could proceed to enforce or object to 8 the Abuse Prevention Order in the state court, and (4) an order from this Court finding the state 9 court’s order defective would have the effect of enjoining that court’s enforcement of its own order.” 10 Id. at 7-8. Defendants ask this Court to abstain from hearing and deciding the Sanctions Motion. Id. 11 at 8. 12 C. Humphries’ Reply. 13 Humphries disputes Defendants’ assertion that she is asking for the “permanent destruction 14 of any relevant evidence.” ECF No. 89 at 4. Instead, Humphries counters she is only trying to 15 prevent additional public dissemination of irrelevant and sensitive information. Id. at 4-5. 16 Humphries contends Defendants’ idea that the word “surrender” somehow did not require them to 17 turn over all electronically stored information in their possession is illogical. Id. at 6. Humphries 18 questions why, if Defendants sought to obtain communications between Humphries and her 19 purported sexual partners, Defendants have not served the appropriate discovery requests on 20 Humphries. Id. at 8-9. Humphries speculates the reason Defendants have not done so is because 21 they already have the information they need and/or want in their possession. Id. at 9, n.1. Humphries 22 argues that Defendants have weaponized the simple process of filing public court documents to 23 shame and intimidate Humphries throughout the litigation. Id. at 9. 24 Humphries questions why—if Defendants are being truthful in their assertions that they did 25 not know they possessed the backup copy of the iPhone until the commencement of this litigation—

26 3 Defendants cite Ninth Circuit guidance regarding the four factors to be considered in a Younger abstention analysis: “[A] district court must abstain from adjudicating an issue in a civil action where the state proceedings: (1) are 27 ongoing; (2) implicate important state interests; (3) provide an adequate opportunity to raise federal questions; and (4) 1 they did not alert Humphries’ counsel to this revelation and discuss next steps. Id. at 10. Humphries 2 states “Defendants surely knew once they discovered the copy of Sage’s iPhone backup that their 3 continued possession of that backup might violate the Boston Court’s clear order.” Id. Humphries 4 lambasts Defendants saying that they took no precautionary measures; rather, they published the 5 materials they knew they were not entitled to retain. Id. Humphries also questions the “unclean 6 hands” argument made by Defendants pointing out they have never asked for many of the materials 7 that are at issue here. Id. at 10-11. 8 Finally, Humphries argues this Court has jurisdiction to grant the relief sought. Id. at 11. 9 Humphries contends she is not seeking the imposition of criminal penalties or civil contempt upon 10 Defendants; instead, she is asking the Court to use its inherent powers to ensure the litigation 11 proceeds in a good faith manner that does not serve as a tool to undermine Humphries’ privacy 12 rights. Id. Humphries also disputes the applicability of the Younger doctrine. Id. Humphries argues 13 (1) there is no ongoing litigation in the state court in Boston, (2) there is no important state interest 14 at stake since this dispute is between private citizens, and (3) the state court in Boston is not impeded 15 in any way from performing its judicial functions. Id. at 11-12. 16 II. DISCUSSION

17 A. This Court Has Jurisdiction Over the Sanctions Motion. 18 Courts within the Ninth Circuit are empowered to take judicial notice of proceedings in other 19 courts that are “within and without the federal judicial system, if those proceedings have a direct 20 relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 21 F.2d 244, 248 (9th Cir. 1992) (internal citations and quotation marks omitted). Federal Rule of 22 Evidence 201 allows district courts to judicially notice a fact that is not subject to reasonable dispute 23 because it can be accurately and readily determined from sources whose accuracy cannot be 24 reasonably questioned. It is a general rule that most matters involved in the discovery process are 25 “left to the sound discretion of the district judge.” Asea, Inc. v. Southern Pacific Transportation Co., 26 669 F.2d 1242, 1247 (9th Cir. 1981) (citation omitted); DFR Apparel Co., Inc. v. Triple Seven 27 Promotional Products, Inc., Case No. 2:11–cv–01406–APG–CWH, 2014 WL 1268689, at *1 (D. 1 Nev. Mar. 26, 2014) (“Courts have broad discretionary power to control discovery ….”), citing Little 2 v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 2014). 3 Here, the Boston Court Orders have a direct and substantial correlation to the matters at issue 4 in the Sanctions Motion as well as this litigation. Under its well-established power to oversee 5 discovery, the Court takes judicial notice of the Orders issued by the Boston Municipal Court and 6 finds the scope of the Court’s jurisdiction encompasses the narrow form of relief sought by 7 Humphries. 8 Further, Younger abstention is inapplicable. The Ninth Circuit instructs federal courts are 9 forbidden “from unduly interfering with pending state court proceedings that implicate ‘important 10 state interests.’” Potrero Hills Landfill, Inc., 657 F.3d at 881 citing Middlesex County Ethics Comm. 11 v. Garden State Bar Ass’n, 457 U.S. 423 (1982). A review of the four requirements that must be 12 met, reveal no basis for abstention. There is nothing filed with this Court demonstrating Boston 13 Municipal Court proceeding be presently ongoing (albeit Humphries states she “intends to enforce 14 her rights under the abuse prevention orders in Massachusetts …” (ECF No. 89 at 11)). The issues 15 presented in this case are not state interest, but even if they are, the Boston state court proceedings 16 do not provide an adequate opportunity to raise federal questions as the matter in that court was far 17 more limited than what is presently alleged. Finally, nothing in this federal court action will enjoin 18 the Boston Court proceeding or have the practical effect of doing so. In sum, the Court concludes 19 that Younger abstention is not warranted here.

20 B. Defendants’ Disclosure of Documents on Humphries’ iPhone Was a Willful Violation of the Boston Municipal Court Orders. 21 22 The Supreme Court in Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), delivered the 23 definitive summary of the bases on which a federal court may levy sanctions under its inherent 24 power. The Court reiterated the federal courts’ inherent power to levy sanctions, including attorneys’ 25 fees, for “willful disobedience of a court order ... or when the losing party has acted in bad faith, 26 vexatiously, wantonly, or for oppressive reasons....” Id. at 766 (internal quotation marks and 27 citations omitted). A district court’s inherent power to levy sanctions is “both broader and narrower 1 The content and meaning of the Boston Court Orders are clear. Defendants were instructed 2 to “surrender any and all personal information to the Boston Police Department pertaining to 3 [Humphries], including electronically stored information, and … not to publish such information.” 4 ECF No. 77-3 at 2.4 The state court reiterated its Order stating that “any such information is not to 5 be published in any way at all.” ECF No. 77-2 at 65-66. The Court finds no ambiguity in the 6 meaning of these statements. 7 Defendants claim they dutifully complied with the Boston Orders as they turned over 8 everything they had that was encompassed by the Orders to Humphries’ state court counsel. ECF 9 No. 85 at 4. Defendants contend they did not realize the information that is the subject of the instant 10 Sanctions Motion was in their possession until the commencement of this litigation and upon their 11 searching for and gathering of evidence that might be needed. Id. at 3. Defendants assert the copy 12 of Humphries’ iPhone in Defendants’ possession was uploaded by Humphries prior to the unraveling 13 of the relationship between Humphries and Defendants. Id. 14 The Court does not agree with Defendants’ arguments. First, that Humphries allegedly 15 downloaded the content of her iPhone onto a hard drive belonging to Defendants before the Boston 16 Municipal Court issued its Orders is irrelevant to compliance with those Orders. There is nothing in 17 the plain text of the Orders (or that may be implied from the text) that refers to an exception for 18 information voluntarily provided by Humphries at any time, let alone before the Orders were issued. 19 Second, Defendants’ argument that the Boston Court Orders “[do] not prohibit the Buttons from 20 possessing a copy of the documents” is unpersuasive. Id. at 5. The text of the Orders demonstrates 21 retention of Humphries’ iPhone or its contents would violate those Orders. Indeed, a contrary 22 interpretation would defeat the intended purpose of an abuse prevention order. 23 Third, Defendants point to the legal duty for a party both before and during pending litigation 24 to preserve evidence. Id. at 8 citing Patton v. Wal-Mart Stores, Inc., Case No. 2:12-cv-02142-GMN- 25 VCF, 2013 WL 6158467, at *6 (D. Nev. Nov. 20, 2013). The Court does not dispute the duty to 26 preserve evidence; however, that duty does not excuse Defendants’ actions in this litigation. 27 1 Defendants state they discovered their possession of materials at issue after this litigation started and 2 did not disclose documents until they were requested by Humphries. Id. at 9. But the Boston Court 3 Orders did not cease to be effective once this litigation commenced. That is, upon discovery of the 4 materials, Defendants should have contacted Humphries (through counsel) to discuss the discovery 5 and potential surrender of the materials with provision for appropriate future use in this litigation. If 6 agreement could not be reached, the assistance of the Court should have been sought. However, 7 there is no basis for simply ignoring the Boston Court Orders. This principle applies equally to 8 Defendants’ arguments that the information relates to claims made by third parties. Id. at 9-10. 9 Nothing in the Boston Court Orders made an exception for any future hypothetical litigation. 10 Fourth, Defendants’ arguments that Humphries exhibited bad faith and unclean hands in 11 discovery are not germane to the instant Sanctions Motion. Id. at 10-12. If Defendants believe that 12 Humphries is acting in bad faith, Defendants should seek relief from the Court. Fifth, Defendants’ 13 dispute over how certain information wound up in the hands of certain press outlets is irrelevant. Id. 14 at 12-13. Defendants acknowledge they filed material on the public docket that was covered by the 15 Orders issued by the Boston Municipal Court. Id. at 13. 16 Despite all of the above, the Court does share Defendants’ concerns regarding Humphries’ 17 request for an order requiring “Defendants to delete Sage’s iPhone backup (and any other personal 18 data of Sage’s they illegally possess) and not to publish or use such information, including in this 19 litigation, including at trial.” ECF No. 77 at 14. Indeed, in her Reply, Humphries seems to retreat 20 and agree that “permanent destruction of any relevant evidence” is not required. ECF No. 89 at 4. 21 Instead, she asks “that only relevant materials are produced in this action and that only non- 22 confidential materials are subject to public disclosure.” Id. at 4, 8. 23 The Court finds there is nothing in the Orders issued by the Boston Municipal Court requiring 24 the material at issue is to be destroyed. Further, Defendants indicate that their theory of the case will 25 require the use of information and documents at issue. ECF No. 85 at 3-4. However, Defendants’ 26 cannot continue possession of the materials. The Boston Court Orders are clear that these materials 27 are not to be in Defendants’ possession. Because the Boston Municipal Court is entitled to preclusive 1 this proceeding. See Southeast Resource Recovery Facility Authority v. Montenay International 2 Corp., 973 F.2d 711, 714 (9th Cir. 1992). This decision “is mandated by the fundamental purposes 3 of the full faith and credit statute, the promotion of comity and the conservation of judicial 4 resources.” Id. citing Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 84 (1984); Allen 5 v. McCurry, 449 U.S. 90, 95–96 (1990) citing Worldwide Church of God v. McNair, 805 F.2d 888, 6 890-92 (9th Cir. 1986). 7 Based on the foregoing, the Court finds Defendants must turn over all materials in their 8 possession, custody or control, including electronically stored information, that relates in any way 9 to the materials addressed by the Boston Court Orders. The delivery of materials must be to 10 Humphries’ current counsel within thirty (30) days of the date of this Order. No copies shall be 11 retained by Defendants. No use of the materials, if any, in the future is to be filed on the docket of 12 this case unless under seal. No other publication of such materials is to occur unless permitted by 13 Court order. Defendants may, however, as they deem appropriate, seek production of information 14 and materials they previously turned over or that is turned over in accordance with this Order for use 15 in defense of the claims asserted. Such production must be made under a strict confidentiality order. 16 Use of the materials must comply with this Order. If production is objected to, the parties may bring 17 the issue to the Court for resolution. Indeed, discovery closes on March 29, 2023. ECF No. 96 at 1. 18 This gives the parties ample time to continue the discovery process and, if necessary, bring disputes 19 regarding the use of documents and information to the Court’s attention. 20 III. ORDER 21 IT IS HEREBY ORDERED that Plaintiff Sage Humphries’ Motion for Sanctions Regarding 22 Unlawfully Obtained Information (ECF No. 77) is GRANTED in part and DENIED in part. 23 IT IS FURTHER ORDERED that Defendants must within thirty (30) days of the date of this 24 Order deliver to Humphries’ current counsel all materials in their possession, custody or control, 25 including electronically stored information, that relates in any way to the materials addressed by the 26 Boston Court Orders. No copies of such information is to be retained by Defendants. No use of the 27 materials, if any, in the future is to be filed on the docket of this case unless under seal. No other ] IT IS FURTHER ORDERED that Defendants’ surrender of all materials to Humphrie 2 || counsel does not preclude future use of such information in Defendants’ defense of this actio 3 || provided, however, that use must either be agreed upon or approved by the Court. 4 IT IS FURTHER ORDERED that Humphries’ counsel’s request for an award of fees at 5 || costs associated with bringing the Sanctions Motion is GRANTED. 6 IT IS FURTHER ORDERED that Humphries’ counsel must submit a memorandum of fe 7 || and costs associated with bringing the Sanctions Motion detailing the activities, hours spent ( 8 || tenths of hours), and the rate charged by each attorney and non-attorney who worked on the Moti 9 || and related filings. Appropriate redactions from billing records for attorney client privilege and/ 10 |} work product may be made for the public filing with non-redacted copies of such records filed und 11 |} seal. Humphries’ counsel shall submit its memorandum within fourteen (14) days of this Orde 12 || Defendants have 14 days to file a response, if any is desired. No reply shall be permitted. 13 IT IS FURTHER ORDERED that Plaintiff Sage Humphries’ Motion to Supplement Moti 14 || for Sanctions (ECF No. 91) is DENIED as moot. 15 DATED this 1st day of December, 2022. 16 17 18 FLAYNal ad : / 19 UNITEDSTATES MAGISTRATE JUDGE

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