Arthur D. JACKSON, H40738, Plaintiff, v. Matthew TAYLOR, et al., Defendant(s) Case No. 21-cv-03660-SK (PR) United States District Court, N.D. California Signed September 19, 2022 Counsel Arthur D. Jackson, San Quentin, CA, Pro Se. Darby Michelle Williams, Jay Michael Goldman, Michael James Quinn, Office of the Attorney General California Department of Justice, San Francisco, CA, for Defendant(s). Kim, Sallie, United States Magistrate Judge ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR SANCTIONS (ECF No. 52) INTRODUCTION *1 Plaintiff, a prisoner at San Quentin State Prison (SQSP), filed a pro se verified complaint for damages under 42 U.S.C. § 1983 against correctional officers Matthew Taylor and Todan Ascensio. Compl. (ECF No. 1). Plaintiff proceeds on the following claims: (1) sexual harassment or abuse in violation of the Eighth Amendment against Taylor, (2) failure to protect in violation of the Eighth Amendment against Ascencio, and (3) retaliation in violation of the First Amendment against both Taylor and Ascensio. Pending before the Court is Plaintiff's motion for sanctions pursuant to Federal Rule of Civil Procedure 11(c)(1) on the ground that defense counsel “commit[ed] fraud upon the court” in connection with Defendants’ opposition to Plaintiff's January 11, 2022 motion for court intervention in a discovery dispute. ECF No. 52 at 1. Defendants oppose this motion. ECF No. 80. Because the Court finds that defense counsel's statements were indeed misleading, Plaintiff's motion will be GRANTED IN PART. RELEVANT BACKGROUND The instant dispute arises from Defendants’ September 8, 2021 responses to Plaintiff's First Request for Production of Documents. See ECF No. 49-1 at 9–13. The specific request at issue here is Request No. 4, which sought the following: Any and all grievances, appeals, 602's complaints, letters, or any other documents filed by other prisoners or staff and has been received by San Quentin State Prison, Staff, administration, or by the Department of Corrections and Rehabilitation related to claims of sexual assault, misconduct, and/or abuse of inmates by Defendant M. Taylor and Defendant T. Ascencio between January 2016 and August 2021. See ECF No. 49-1 at 11. Defendants asserted a variety of objections to this request before responding, “There are no such records for either Defendant.” Id. at 12. Plaintiff then modified several of his discovery requests so as not to jeopardize institutional security and served a second set of discovery. ECF No. 38 at 3. Defendants again asserted several blanket objections. ECF No. 37-1 at 47. Dissatisfied with Defendants’ responses to his first and second sets of discovery requests, Plaintiff filed a motion to compel on December 2, 2021. ECF No. 37. The Court denied that motion because Plaintiff failed to meet and confer beforehand and because he failed to set forth arguments in response to Defendants’ objections. ECF No. 43. The parties then met and conferred telephonically on January 3, 2022, to discuss discovery issues. Decl. of D. Williams in Supp. of Opp'n to Mot. for Sanctions Ex. A (ECF No. 80-2). Plaintiff remained dissatisfied with Defendants’ discovery responses and filed a motion on January 22, 2022 titled “Request for intervention during discovery event.” ECF No. 49. There, Plaintiff argued that Defendants’ responses to Request No. 4 were inadequate, and they should be compelled to provide further responses. Id. Defendants opposed the motion, claiming that “the first Defendants learned about this particular dispute was when they received Plaintiff's pending motion.” ECF No. 50 at 1. In support of the opposition, defense counsel declared that the parties met and conferred on January 3, 2022, but “Plaintiff did not raise the matter that is the subject of his current pending motion.” ECF No. 50-1 ¶ 2. According to counsel, “Since January 3, 2022, I have not received any new communication from Plaintiff as to any ongoing issue of discovery or requesting to meet and confer.” Id. ¶ 3. Based on these representations, the Court once more denied Plaintiff's motion on the grounds that he did not meet and confer before filing his request and he did not address Defendants’ objections. ECF No. 51. DISCUSSION *2 Plaintiff now moves the Court to sanction Defendants and defense counsel for “committing fraud upon the court” when they claimed they were unaware of Plaintiff's issues with their discovery responses until after he filed his January 22, 2022 discovery motion. As explained below, the Court finds defense counsel's representations misleading both as to the parties’ efforts to meet and confer and as to the date when Defendants “first” learned of Plaintiff's issues with Request No. 4. In Defendants’ opposition to Plaintiff's January 22, 2022 discovery motion, counsel claimed that “Plaintiff did not raise the matter that is the subject of his current pending motion” during the parties’ January 3, 2022 telephonic meet and confer. But in fact, he did raise the matter, as memorialized by defense counsel herself in a letter following that meeting. See Williams Decl. Ex. A (ECF No. 80-2). Regarding Defendants’ responses to Request No. 4, counsel wrote In response to your Request for Production, Item No. 4, I explained to you that, notwithstanding objections made to this request, I specifically researched the existence of the requested items at the institution and through the Office of Legal Affairs (OLA). I explained to you that my search at both levels revealed no records responsive to your request. Id. Defendants were thus aware of Plaintiff's issues with their responses to Request No. 4 well before he filed his discovery motion. In Defendants’ opposition to the pending motion for sanctions, defense counsel explains that her previous representation that Defendants were unaware of any issues regarding Request No. 4 was premised on (a) her understanding that the issue was resolved at the meet and confer, and (b) Plaintiff's failure to inform counsel that he continued to be dissatisfied with Defendants’ responses to that request. Williams Decl. ¶¶ 9-10 (ECF No. 80-1). Neither of these explanations, however, allays the Court's concern that defense counsel played loose with her representations. As to the first explanation, counsel now acknowledges that Plaintiff did raise Defendants’ responses to Request No. 4 at the meet and confer, contradicting her prior sworn declaration that he did not raise the matter. As to the second explanation, Defendants fail to cite to any authority standing for the proposition that a party is required to meet and confer again—or inform counsel of continuing concerns—after an initial meet and confer is unsuccessful. For these reasons, the Court finds that Plaintiff has adequately demonstrated that defense counsel's representations were misleading. Plaintiff brings his motion pursuant to Rule 11, which permits sanctions if a filing is factually misleading.[1] Truesdell v. S. California Permanente Med. Grp., 293 F.3d 1146, 1153 (9th Cir. 2002). However, a party seeking sanctions must first provide notice and a 21-day period for the other party to correct any alleged errors. Fed. R. Civ. P. 11(c)(1). Here, Rule 11 sanctions may not be imposed because there is no indication in the record that Plaintiff provided such notice to Defendants before filing his motion. *3 But that is not the end of the matter. The Court may construe Plaintiff's request as having been brought pursuant to Federal Rule of Civil Procedure 37(b)(2)(A). This rule permits sanctions for failure to obey a discovery order: If a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). But because Plaintiff has not identified a particular discovery order that Defendants are alleged to have violated, sanctions under Rule 37 are also inappropriate. Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (“Rule 37(b)(2)’s requirement that there be some form of court order that has been disobeyed has not been read out of existence; Rule 37(b)(2) has never been read to authorize sanctions for more general discovery abuse.”). Nonetheless, a district court may discipline an attorney for conduct that violates a California Rule of Professional Conduct by way of its local rules of professional conduct. See United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996) (citing Standing Comm. on Discipline v. Ross, 735 F.2d 1168, 1170 (9th Cir. 1984), appeal dism'd & cert. denied sub nom.); see also N.D. Cal. Civ. L.R. 1–4 (“Failure by counsel or a party to comply with any duly promulgated local rule or any Federal Rule may be a ground for imposition of any authorized sanction.”); Chin v. Wal–Mart Stores, Inc., No. 14–cv–02538–TEH, 2014 WL 5465768, at *1–2 (N.D. Cal. Oct. 27, 2014) (citing Civ. L.R. 1–4) (imposing sanctions on attorney for violations of local rules). The Northern District of California's Civil Local Rule 11-4 directs every attorney practicing in this Court to: (1) Be familiar and comply with the standards of professional conduct required of members of the State Bar of California; (2) Comply with the Local Rules of this Court; (3) Maintain respect due to courts of justice and judicial officers; (4) Practice with the honesty, care, and decorum required for the fair and efficient administration of justice; (5) Discharge all obligations to client(s) and the Court; and (6) Assist those in need of counsel when requested by the Court. The Court finds that counsel's misleading statement about Plaintiff's failure to meet and confer does not comply with the obligation to practice “with the honesty, care, and decorum required to for the fair administration of justice.” Pursuant to this authority, the Court finds that defense counsel would benefit from a refresher course on professional conduct. Thus, counsel will be directed to attend two hours of legal ethics courses and to submit a notice of compliance within thirty days from the date of this Order. Counsel for Defendants, Darby Williams, is directed to participate in two hours of continuing education courses in Legal Ethics and to file certification of her participation with this Court. In addition, the Court will allow Plaintiff to submit his previous discovery dispute in a letter brief, if Plaintiff continues to seek the information in Request No. 4. Plaintiff may submit a four-page letter brief to the Court by October 28, 2022. Defendants may submit a four-page letter brief in opposition to the Court by November 4, 2022. There will be no reply and no hearing. *4 IT IS SO ORDERED. Footnotes [1] Rule 11 provides that, by presenting a pleading, written motion, or other papers to the court, an attorney or unrepresented party certifies that to his or her best knowledge, information and belief formed after reasonable inquiry under the circumstances, the paper (1) “is not being presented for any improper purpose;” (2) “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;” (3) “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;” and (4) “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Fed. R. Civ. P. 11(b).