The Volokh Conspiracy
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From Nunes v. Lizza, decided earlier this month by Magistrate Judge Mark Roberts (N.D. Iowa):
Plaintiffs' Motion for Sanctions arises out of Defendants' filing of a brief containing redacted portions of a deposition transcript that could be un-redacted when downloaded…. Defendants filed the redacted brief on August 23, 2021 and were informed by a journalist shortly thereafter that the journalist had been able to "bypass the redactions" due to a technical error when converting the brief from a Microsoft Word document to an Adobe PDF. Defendants immediately took measures to cure the error and informed the Court of the issue; the Court then sealed the brief.
Plaintiffs argue that "Defendants violated the Court's Protective Order and leaked parts of the sealed deposition transcripts of NuStar Farms (Anthony Nunes, III corporate representative), Lori Nunes[,] and Anthony Nunes, Jr." Plaintiffs further allege that this "leak" caused CNN to publish the Counsel's Eyes Only information meant to be redacted in Defendant's brief on air, prejudicing Plaintiffs by "tainting the Jury pool."
Plaintiffs therefore seek two sanctions against Defendants under Federal Rule of Civil Procedure 37(b): (1) that the Court "strike the Defendants' affirmative defense of substantial truth," prohibiting Defendants from raising such defense in the underlying matter, and (2) that the Court award Plaintiffs attorneys' fees and other reasonable expenses. Plaintiffs also ask the Court to enjoin Defendants from any future violations of the Protective Order….
As the Eighth Circuit stated, "[t]he opportunity to be heard is a litigant's most precious right and should sparingly be denied." Sanctions striking pleadings or resulting in dismissal under Rule 37 are appropriate only when three prerequisites are established: "(1) an order [under Rule 37] compelling discovery, (2) a willful violation of the order, and (3) prejudice." However, "[t]he sanction imposed by the district court must be proportionate to the litigant's transgression."
I do not believe sanctions, especially the sanction Plaintiffs seek of striking Defendants' affirmative defense, are warranted or appropriate in this case. I do not find Defendants' redaction error prejudicial to Plaintiffs. I am convinced by Defendants' assertions that the error in redacting Counsel's Eyes Only deposition transcript text from their filing was an inadvertent mistake.
This should come as no surprise to Plaintiffs, as I [had] previously accepted their explanation that their inclusion of information covered by a protective order in a public filing was inadvertent. I found no sanctions to be warranted when Plaintiffs improperly redacted a filing in violation of a protective order in this matter; I will not now sanction Defendants for engaging in what is substantially the same conduct, despite Plaintiffs' insistence I do so. In both instances, there has been no showing that failure to properly redact documents was the product of something other than inadvertence….
[T]here is [also] no basis to award attorney's fees. When Defendants previously sought sanctions in connection with Plaintiffs' redaction errors, I did not award monetary sanctions of attorney's fees or reasonable expenses. To do so when the positions are reversed and now Plaintiffs are seeking sanctions for Defendants' redaction errors would be unjust under the circumstances….
Just as I admonished Plaintiffs to be more careful in their filings to safeguard against any future violations of the Court's orders, I admonish Defendants to do the same. I encourage both parties to exercise caution in all their filings, as a great deal of information in this case is covered by the Protective Order.