United States District Court, D. Idaho
TREVIS D. PETERSON, Plaintiff,
PATRICK J. MURPHY, Acting Secretary of the Army, UNITED STATES ARMY CORPS OF ENGINEERS, Agency, Defendants.
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S
MOTION FOR PROTECTIVE ORDER (Dkt. 39) PLAINTIFF'S AMENDED
MOTION FOR PROTECTIVE ORDER (Dkt. 40) PLAINTIFF'S MOTION
FOR ADDITIONAL SETTLEMENT CONFERENCE AND SANCTIONS (Dkt. 41)
DEFENDANT'S CROSS-MOTION FOR A PROTECTIVE ORDER,
SANCTIONS, AND DISCOVERY (Dkt. 44)
Honorable Ronald E. Bush Chief U.S. Magistrate Judge
before the Court are Plaintiff's Motion for Protective
Order (Dkt. 39), Plaintiff's Amended Motion for
Protective Order (Dkt. 40), Plaintiff's Motion for
Additional Settlement Conference and Sanctions (Dkt. 41), and
Defendant's Cross-Motion for Protective Order, Sanctions,
and Discovery (Dkt. 44). Having carefully considered the
record, heard oral argument on January 16, 2018, and
otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
Trevis D. Peterson (“Peterson”) alleges his
employer, Defendant United States Army Corps of Engineers
(“USACE”), engaged in unlawful age discrimination
and unlawful retaliation, both in violation of the Age
Discrimination in Employment Act of 1991, 29 U.S.C.
§§ 621-634. See generally Am. Compl. (Dkt. 2.)
According to Peterson, the USACE wrongfully failed to promote
him from his position as a maintenance worker at the Albeni
Falls Dam in Oldtown, Idaho. Id. at ¶¶ 1,
10. His retaliation claim was dismissed on summary judgment
(Dkt. 56), but his age discrimination claim remains pending.
February 15, 2017, a judicial settlement conference was held
before U.S. Magistrate Judge Candy W. Dale. (Dkt. 30.) Prior
to that conference, Judge Dale issued a routine order
regarding various logistics relating to the conference. (Dkt.
23.) Among other things, the order required the personal
presence of both Peterson and of a USACE representative with
“full settlement authority.” Id. at
¶ 3. Among those attending the conference on USACE's
behalf were Ryne Linehan (“Linehan”), the highest
ranking USACE employee at Albeni Falls Dam, and counsel James
Schaefer, Assistant United States Attorney for the District
of Idaho. The case did not settle. (Dkts. 30, 35.)
moves for an order requiring an additional settlement
conference and sanctioning USACE for bad faith in the
February 2017 conference, alleging that USACE violated Judge
Dale's order by failing to bring a representative with
full settlement authority. Mem. ISO Plf.'s Mot. for
Add'l Settlement Conf. and Sanctions (Dkt. 41-1). Based
on declarations Linehan provided to Peterson's counsel,
Peterson contends that Linehan did not have full settlement
authority to settle the case. Id. at 2.
regard, Linehan stated as follows:
Although I have never been involved in the Agency's case
strategy regarding Mr. Peterson's case I was ordered, by
my supervisor COL Buck, to attend a mediation session in the
Peterson case. Before the mediation session I read the court
order. The court order required that I be given “full
settlement authority” to settle the case. I was not
given “full settlement authority.” When I asked
COL Buck, in writing, for “full settlement
authority” I was told, by the Agency's attorney,
James Schafer, that I did not have the authority to settle
the case. Instead Mr. Schafer informed me that he (Schafer)
would be making the decisions about the case. At no time did
Mr. Shafer tell me that he (Schafer) represented me. No.
other Agency lawyer has told me that I was represented by
Agency attorneys on the Trevis Peterson case or in any other
capacity. At no time did any agency employee, Mr. Schafer, or
any other agency lawyer, tell me that I had the power to make
the agency resolve Mr. Peterson's case. At no time did
any Agency lawyer or supervisor tell me that I “spoke
for” the Agency. At no time did any Agency lawyer or
supervisor tell me that I could not have contact with Mr.
Second Linehan Decl. ¶ 5 (Dkt. 39-2 Ex.
Peterson asserts that Linehan's lack of full settlement
authority means USACE violated Judge Dale's order
regarding the settlement conference. Memo ISO Plf.'s Mot.
for Add'l Settlement Conf. and Sanctions 5 (Dkt. 41-1).
Accordingly, Peterson argues, a new settlement conference
should be held, and USACE must have a representative with
full settlement authority. Id. Peterson also
requests an award of his fees and costs associated with the
first settlement conference and with bringing the motion for
an additional settlement conference. Id.
opposes Peterson's motion, arguing that (1) it met Judge
Dale's requirement by bestowing the settlement authority
it could properly extend, to AUSA Schaefer; (2) Judge Dale
was aware of and did not object to Schaefer's limited
settlement authority; and (3) the limits on settlement
authority were not a barrier to any possible, but unrealized,
settlement. Def.'s Opp. to Plf.'s Mot. for Add'l
Settlement Conf. and Sanctions 4 (Dkt. 43). Further, USACE
alleges that the contact with Linehan and the acquisition of
his declarations by Peterson's counsel constituted
ethical violations because such contacts were unauthorized ex
parte communication with a represented person, given
Linehan's role with USACE. Id.
parties seek protective orders tied to Linehan's
declarations. Plf.'s Mot. for Prot. Order (Dkt.
Def.'s Cross-Mot. for a Prot. Order, Sanctions, and
Discovery (Dkt. 44) (“Def.'s Cross-Mot.”).
Linehan's first declaration, dated June, 27, 2017,
details allegations of age discrimination at USACE separate
and apart from those Peterson alleges. Plf.'s Mem. ISO
Mot. for Prot. Order 2 (Dkt. 39); see also generally Linehan
Decl. (Dkt. 39-2 Ex. B). On June 28, 2017, Peterson's
counsel Matthew Z. Crotty (“Crotty”) disclosed
the declaration to AUSA Schaefer. Crotty Decl. ¶ 3 (Dkt.
39-2). Two days later, Schaefer sent Crotty (and Crotty's
co-counsel) a letter alleging that Crotty had
“engag[ed] in prohibited ex parte communications with
Mr. Linehan.” Id.; see also Letter from
Schaefer to Crotty et al, dated June 30, 2017) (Dkt. 39-2 Ex.
A). The letter demanded that Crotty immediately cease
unauthorized communications with USACE employees and that
Crotty produce “a complete record of [his]
communications with current USACE employees regarding the
subject matter of this case.” In response, Crotty
obtained from Linehan a second declaration detailing some of
the circumstances of the contacts and communications between
Crotty and Linehan. Second Linehan Decl. (Dkt. 39-2 Ex. C).
Crotty also moved for an order to protect Peterson (via
Crotty) from having to disclose the information Schaefer
demanded in the letter.
record shows that Linehan and Crotty first interacted in
November 2016, when Linehan contacted Crotty to ask about
whether Crotty could represent Linehan against USACE. Crotty
Decl. ¶ 6 (Dkt. 39-2); Second Linehan Decl ¶ 3
(Dkt. 39-2 Ex. C). Linehan subsequently contacted Crotty in
April 2017 to inquire again about possible representation.
Crotty Decl. ¶ 7 (Dkt. 39-2); Second Linehan Decl.
¶ 3 (Dkt. 39-2 Ex. C). Neither set of interactions
resulted in Crotty agreeing to represent Linehan.
Nonetheless, Peterson's motion for a protective order is
based on Crotty's contention that Linehan was a
prospective client under the Idaho Rules of Professional
Conduct (“IRPC”); that, therefore, Linehan's
communications with Crotty are privileged under IRPC 1.18(b);
and, finally, that Crotty would violate IRPC 1.18(b) by
disclosing the communications to Schaefer.
other side, USACE moves for a protective order, sanctions,
and limited discovery related to what it perceives as a
violation of IRPC 4.2, which prohibits counsel from engaging
in unauthorized ex parte communications with certain
constituents of an organization represented by counsel in the
matter. USACE seeks the following:
(1) a protective order prohibiting Plaintiff's counsel
from engaging in further unauthorized ex parte communications
with USACE constituents;
(2) the exclusions from evidence of Ryne Linehan's
(3) the disqualification of Matthew Z. Crotty as
Plaintiff's counsel in this case; and (4) limited
discovery necessary for Defendant to assess both the scope of
Plaintiff's counsel's violations of Rule 4.2 and
whether additional sanctions are warranted.
Def.'s Cross-Mot. 3 (Dkt. 44). USACE additionally seeks
an order from the Court disqualifying Crotty's co-counsel
Michael B. Love (“Love”) and Thomas G. Jarrard
(“Jarrard”), if they “participated in,
approved, and/or were aware of the ex parte
communications.” Id. at 4.
Court heard oral argument on the above-described motions on
January 16, 2018. Based on the arguments made at the hearing,
the Court concluded that it would be necessary to review the
records of communications with Linehan (and communications
regarding communications with Linehan). Therefore, the Court
ordered Crotty to produce for in camera review all
communications and office notes regarding Linehan, including
communications between counsel. (Dkts. 57, 58.) 395 pages
were timely provided to the Court and the Court has reviewed
these documents. Given the context of the dispute and the
fact that the Court ordered that the documents be submitted
for in camera review, the Court does not summarize or
describe these documents other than as necessary to support
this memorandum decision and order.
Peterson's Motion for an Additional Settlement Conference
and Sanctions Is Denied.
January 29, 2018, while Peterson's motion for an
additional settlement conference and sanctions was pending,
Peterson filed a Joint Written Statement Indicating How the
Parties Intend to Proceed. (Dkt. 59.) That filing indicated
that “[t]he parties do not desire to pursue further
mediation/settlement negotiations, and request that the Court
schedule a trial setting conference.” Id. This
joint statement moots Peterson's motion to the extent it
seeks an additional settlement conference.
Peterson's motion also seeks sanctions for USACE's
alleged failure to bring a representative with full
settlement authority to the settlement conference. Mem. ISO
Mot. for Add'l Settlement Conf. and Sanctions 4-5 (Dkt.
41-1). This request is based on the declaration of Linehan in
which he says he had less than “full settlement
authority.” Second Linehan Decl. ¶ 5 (Dkt. 39-2
is no basis on this record to award Peterson his costs and
fees or to impose any other sanctions against USACE relating
to the February 2017 settlement conference. At the outset,
the Linehan declaration on which Peterson relies does not
support the premise that USACE violated Judge Dale's
pre-settlement conference order. Linehan says that AUSA
Schaefer said to Linehan that Linehan did not have the
authority to settle the case; rather, “he (Schafer)
would be making the decisions about the case.”
Id. Such a statement from Linehan does not indicate
that Schaefer lacked the authority required by Judge
Dale's order. Indeed, USACE argues that AUSA Schaefer
did, in fact, have authority to settle the case, subject to
agency regulations which constrained the extent of such
authority and which were discussed with Judge Dale at the
beginning of the conference. Def.'s Opp. to Plf.'s
Mot. for Add'l Settlement Conf. and Sanctions 4 (Dkt.
43). Judge Dale's Order provided that “[e]ach party
to such settlement conference shall be represented by counsel
authorized to participate in settlement negotiations.”
Order ¶ 2 (Dkt. 23). It further provided that
“[i]n the case of … governmental entities
… a representative for every party with full
settlement authority must be personally present at the
settlement conference.” Id. ¶ 3. Nothing
in the Order states the representative with full settlement
authority could not be the government's attorney.
Peterson argues that USACE was required to come to the
settlement conference with unlimited settlement authority,
presumably in the form of dollars, but USACE has placed in
the record evidence showing that Schaefer came to the
settlement conference with the full[est] settlement
authority, and the power to settle within that amount, that
the agency could send with him. In that setting, the Court is
not persuaded that there has been a violation of Judge
Dale's settlement conference order.
however, Peterson's allegation that USACE violated the
pre-conference order relies exclusively on information
provided by Linehan. As described to follow, the Court
concludes that it was ethically improper for Peterson's
counsel to acquire and use that information in the manner
employed. It would, of course, be untenable to award the
requested relief sought by Peterson when the source of the
information used to seek such relief came from improper
USACE argues that the limits on AUSA Schaefer's
settlement authority did not prevent the parties from
reaching a settlement. Id. Schaefer echoed this
notion in a filed declaration. Schaefer Decl. ¶ 6(e)
(Dkt. 43-1). At the hearing on this matter, AUSA Schaefer
argued that the barrier to settlement was not the monetary
limit on his authority but, rather, that he perceived a
significant weakness in Peterson's case related to
causation. He claimed he acted in good faith by appearing and
participating with what he believed to be adequate settlement
authority based on his evaluation of the merits of
Peterson's case. He claimed to have listened carefully,
even changing his perspective on some matters, but ultimately
concluding that USACE's settlement offer should not be
raised. The nature of such statements are, of course,
inherently subjective, and come from counsel for the
Defendants. There is nothing unusual in that, for purposes of
sorting through the instant dispute. Neither is there
anything in the record or the Court's assessment of
Peterson's arguments to suggest what Schaefer has to say,
even if subjective and made from the view of counsel for the
defendants, is untrue.
Court concludes that Peterson has not shown that USACE
violated Judge Dale's order. Therefore, no sanctions are
Legal Standard Applicable to Pending Protective Order Motions
parties move for protective orders. Peterson frames the
authority to grant his motion as arising from Federal Rule of
Civil Procedure (“FRCP”) 26. Plf.'s Mem. ISO
Mot. for Prot. Order 6 (Dkt. 39). USACE does not expressly
state the authority for its motion, but the motion title
references “protective order” and it seeks
“limited discovery necessary for Defendant to assess
both the scope of Plaintiff's counsel's violations of
Rule 4.2 and whether additional sanctions are
warranted.” Def.'s Cross-Mot. 1, 3 (Dkt. 44).
Hence, the Court also considers USACE's motion under FRCP
that rule, “[a] party or any person from whom discovery
is sought may move for a protective order in the court where
the action is pending. . . . The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
FRCP 26(c)(1). Further, “[i]f a motion for a protective
order is wholly or partly denied, the court may, on just
terms, order that any party or person provide or permit
discovery.” FRCP 26(c)(2).
the relief sought does not fit within the parameters FRCP 26.
Protective order motions brought under FRCP 26 are
appropriate where “discovery is sought.” But, per
FRCP 26(b)(1), the scope of discovery does not extend beyond
“nonprivileged matter that is relevant to any
party's claim or defense.” The dispute at issue in
the instant motions relates to the propriety of Crotty's
communications with Linehan, not the content of such
communications. Neither party has shown that this dispute is
relevant to a particular claim or defense. To begin, the
instant motions arose based on a letter from AUSA Schaefer to
Peterson's counsel. The letter was not a discovery
request under the FRCP, no “discovery is sought,
” and therefore FRCP 26 does not apply. Moreover, the
letter was sent June 30, 2017 - more than four months after
discovery in this matter closed on February 3, 2017. Am.
Sched. Order (Dkt. 19).
does not mean, however, that the parties' protective
order motions will be summarily denied. There have been
allegations of ethical misconduct levied by USACE against
opposing counsel, and the Court must address those
allegations squarely if it is proper to do so.
considering such matters, the Court begins from its
“inherent authority to suspend or disbar lawyers”
deriving from “the lawyer's role as an officer of
the court which granted admission.” In re Snyder, 472
U.S. 634, 643 (1985); see also McCallum v. CSX Transp., Inc.,
149 F.R.D. 104, 108-109 (M.D. N.C. May 4, 1993) (citing
Snyder and relying on federal district court's inherent
power rather than FRCP 26 when presented with an ethical
issue raised under the same rule of professional conduct at
issue in the instant case).
described supra, attorneys practicing before a court of the
District of Idaho, including members of the bar as well as
attorneys admitted pro hac vice for a specific matter,
“must familiarize themselves with and comply with the
Idaho Rules of Professional Conduct of the Idaho State Bar
and decisions of any court interpreting such rules.”