Trenado v. Cooper Tire & Rubber Co.

274 F.R.D. 598, 2011 U.S. Dist. LEXIS 67169, 2011 WL 2517152
CourtDistrict Court, S.D. Texas
DecidedJune 23, 2011
DocketCivil Action No. H-08-0249
StatusPublished
Cited by2 cases

This text of 274 F.R.D. 598 (Trenado v. Cooper Tire & Rubber Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trenado v. Cooper Tire & Rubber Co., 274 F.R.D. 598, 2011 U.S. Dist. LEXIS 67169, 2011 WL 2517152 (S.D. Tex. 2011).

Opinion

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Pending before the court are defendant Cooper Tire & Rubber Company’s (“Cooper”) Filing of Counsels’ Affidavits Related to Attorneys’ Fees (Docket Entry No. 432), Plaintiffs’ Response to Cooper’s Filing of Counsels’ Affidavit Relating to Attorney Fees (Docket Entry No. 434), and Cooper’s Reply in Further Support of Its Filing of Counsels’ Affidavits Related to Attorneys’ Fees (Docket Entry No. 435), all of which were filed in accordance with the court’s Memorandum Opinion and Order (Docket Entry No. 430) granting in part Cooper’s motion for sanctions against plaintiffs’ counsel Hugh N. Smith and his law firm.

The court concluded in its prior opinion and order that the violation of the Amended Protective Order of Confidentiality (“Protective Order”) by Smith and his law firm, although not willful, nevertheless warrants sanctions because of (1) Smith’s awareness of the strongly worded Protective Order combined with the magnitude of the violation, (2) the attorney’s fees and expenses that Cooper incurred investigating the violation and enforcing the Protective Order, and (3) the fact that Smith had previously violated a similar protective order.1 Pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), the court ordered Smith and his law firm to jointly and severally “reimburse Cooper for the attorney’s fees and expenses Cooper incurred in its efforts to identify the violation of the Protective Order at issue and to enforce the Order.”2 As directed by the court, Cooper has filed affidavits setting forth the services for which it seeks to be reimbursed, the time expended, and the reasonable hourly rates sought, together with proof of its expenses.3 Smith responded by arguing that Rule 37(b)(2)(C) does not authorize a court to award sanctions for a violation of a protective order and, alternatively, that Cooper’s evidence supporting its claimed fees and expenses is deficient.4

Federal Rule of Civil Procedure 37(b) authorizes courts to impose sanctions for violations of discovery orders. Rule 37(b)(2)(A) provides a list of possible sanctions, including directing certain facts to be taken as established, striking pleadings, staying proceedings, dismissing the action, and rendering a default judgment. In addition, Rule 37(b)(2)(C) provides that “[ijnstead of or in [600]*600addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.”

A district court “has broad discretion under Rule 37(b) to fashion remedies suited to the misconduct.” Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir.1990). This discretion is subject to certain limitations, however. A party’s violation of a discovery order ordinarily must be committed willfully or in bad faith for the court to award the severest of remedies available under Rule 37(b), such as striking pleadings, entering a default judgment, or dismissing the action with prejudice. Id. at 1021 & n. 2; see also Plasticsource Workers Comm. v. Coburn, 283 Fed.Appx. 181, 184 (5th Cir.2008) (unreported); Chisesi v. Auto Club Family Ins. Co., 374 Fed.Appx. 475, 477 (5th Cir. 2010) (unreported) (dismissal). But the Fifth Circuit does not require a showing of willful or “contumacious” misconduct as a prerequisite to sanctions that are less harsh than a dismissal or default judgment. Chilcutt v. United States, 4 F.3d 1313, 1322, 1323 n. 23 (5th Cir.1993). Awarding attorney’s fees and expenses is viewed by the Fifth Circuit as one of the least severe remedies afforded by Rule 37(b). See id. at 1320 n. 17.

Smith argues that Rule 37(b)(2) “is an inappropriate vehicle to impose sanctions for violation of a protective order.”5 In support of this argument Smith relies on Lipscher v. LRP Publ’ns, Inc., 266 F.3d 1305, 1321-23 (11th Cir.2001), in which the Eleventh Circuit held that Rule 37(b)(2) does not permit a district court to impose sanctions for a violation of a protective order. The Lipscher court stated that Rule 37(b)(2) only applies “when a party ‘fails to obey an order to provide or permit discovery.’ ” Id. at 1323 (quoting Fed.R.Civ.P. 37(b)(2)(A)). The court acknowledged that if a district court, after denying in whole or in part a motion for a protective order, ordered a party or other person to provide or permit discovery pursuant to Rule 26(c), sanctions under Rule 37(b)(2) would be permissible for a violation of the court’s order because such an order would be an order “to provide or permit discovery” within the meaning of Rule 37(b)(2). Id. But the court held that “a Rule 26(c) protective order is not ‘an order to provide or permit discovery,’ and therefore, such orders do not fall within the scope of Rule 37(b)(2).” Id.

Rule 26(c)(1)(B) states that the court may issue a protective order “specifying terms, including time and place, for the disclosure of discovery.” The Protective Order entered in this case (Docket Entry No. 54) “govern[ed] confidential material produced or disclosed by these Defendants or Plaintiff[s] in response to formal or informal discovery conducted in this matter” (¶3); allowed the parties to designate as confidential material “all or any portion of documents, things and information it [sic] produces formally or informally to other parties to this litigation” (¶ 4); addressed the inadvertent production of confidential material (¶¶ 5 and 13); included procedures for objecting to the designation of material produced as confidential (¶ 6); limited access to confidential material (¶ 7); and included provisions for the storage of confidential material (¶ 9), the use of confidential material in depositions and at trial (¶¶ 12 and 14), and the return of confidential material (¶ 15). Even reading Rule 26(c) in the narrow manner adopted by the Lipscher court, the court concludes that the Protective Order in this case was an “order to provide or permit discovery” as that term is used in Rule 37(b)(2).

Moreover, the court does not find the Lipscher court’s narrow reading of Rule 37(b)(2) to be persuasive. The court agrees with the many other courts that have concluded that attorney’s fees and costs, as well as other appropriate sanctions, may be awarded under Rule 37(b)(2) for a violation of a protective order. See, e.g., Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir.1983) (awarding attorney’s fees and costs pursuant to Rule 37(b)(2) for a violation of a protective order); Am. Nat’l Bank & Trust Co. ex rel. Emerald [601]*601Invs. LP v.

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274 F.R.D. 598, 2011 U.S. Dist. LEXIS 67169, 2011 WL 2517152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trenado-v-cooper-tire-rubber-co-txsd-2011.