This matter was before the court on September 22, 2010, for hearing on Sierra Pacific Industries' (hereafter "SPI") August 27, 2010 motion for discovery and the United States' August 25, 2010 motion for a protective order. Assistant U.S. Attorneys Kelli Taylor and Todd Pickles appeared on behalf of the plaintiff, the United States. Attorneys William Warne, Mike Thomas, Annie Amaral, and Meghan Baker appeared on behalf of defendant SPI. Attorney Richard Linkert appeared on behalf of the Walker defendants and related trusts.
I. SPI's Motion for Discovery Partially Granted
For the reasons stated on the record, the motion for discovery was partially granted and partially denied. The court granted SPI two days and four hours to depose Joshua White and the same amount of time to depose Dave Reynolds. The court granted SPI an additional ten depositions beyond the number of depositions the parties had already agreed upon,*fn1 as discussed at the hearing. That bench ruling is confirmed by this written order.
II. United States' Motion for Protective Order is Granted
Following extended oral argument, the court submitted for further consideration the United States' motion for a protective order. That motion is now granted.
The United States argues that an attorney for SPI, Michael Schaps, questioned Forest Service employees regarding matters SPI considers relevant to this litigation, and that this contact violated the rules of professional responsibility barring contact with represented parties. It is undisputed that Schaps did communicate with Forest Service employees, and that the communication occurred without notice to or consent from the attorneys representing the United States and without resort to the Federal Rules of Civil Procedure as they pertain to discovery. It is also undisputed that Schaps did not inform those employees that he was an attorney representing SPI in this pending litigation. However, SPI asserts that the communications were protected by the First Amendment and thus did not violate professional responsibility rules.
The United States seeks an order requiring counsel for SPI to produce a list of all of plaintiff's employees who have been contacted by SPI's counsel or persons acting at the direction of counsel, together with the dates of the contacts, and a description of what representations were made by counsel or counsel's agent(s) before the employees were questioned. The United States also requests that counsel for SPI be ordered to produce to the plaintiff the originals and all copies of all notes or other documents that concern or relate to the communications by plaintiff's employees and SPI's counsel and/or agents. The motion also seeks an order requiring SPI's counsel (including those acting on behalf of counsel) to inform any federal employee they contact in the course of this litigation that they are attorneys (or representatives of attorneys) working on behalf of SPI in litigation brought by plaintiff against SPI involving the Moonlight Fire. Finally, the motion seeks an order precluding SPI from using information obtained by the ex parte communications with the Forest Service employees.
A. The Parties' Arguments
The parties have described in the Joint Statement filed September 15, 2010 their respective versions of what occurred. Dckt No. 78 ("Jt. Stmt."). While their characterizations of the contacts in question are sharply at odds, certain key facts regarding the communications with the government's employees are not seriously disputed.
The parties agree that Schaps attended a Forest Service sponsored field trip to a fuel reduction project site on the Plumas National Forest. Id. at 2, 24. It is undisputed that the excursion was open to the public. The Unites States complains, however, that while on the field trip Schaps specifically questioned Forest Service employees about fuel breaks, fire severity, and what contract provisions the Forest Service requires for fire prevention in timber sale projects, and that he did so without disclosing that he was seeking information regarding pending litigation and that he was an attorney representing a party opposed to the government in that litigation. Id. at 4 (citing Tompkins, Garcia, Wood and Suihkonen Declarations). Had he made those disclosures, the government argues, the Forest Service employees could have sought legal counsel before engaging in the communications with and responding to questions by the government's opposing counsel. According to the government's employees, Schaps, again without disclosing his status as opposing counsel, also asked their opinions as to several hypothetical questions concerning these topics. The United States further contends that when the District Ranger specifically asked him if he was representing anyone, Schaps failed to disclose the fact that he was representing SPI in this litigation, and further failed to inform the employees that he considered the issues he was inquiring about relevant to the pending litigation.*fn2 Id. at 4. The United States also asserts that Schaps used his iPhone to record parts of his discussions with the Forest Service employees. Id. at 4-5.
SPI argues that the Forest Service chose to organize the event and to invite the public, including a local news reporter. Id. at 24. SPI notes that the Forest Service identified the topics to be addressed and invited the public's input. Id. SPI contends that its attorney's participation in the event, including his conversations with Forest Service employees, was constitutionally protected activity under the First Amendment. SPI also asserts that its attorney was not required to reveal his status as counsel for SPI and that he was "unconstitutionally interrogated" when Forest Service employees asked him whether he represented anyone. Id at 24-25.
B. Applicable Legal Authority
Local Rule 180(e) states that attorneys before this court must comply with the Rules of Professional Conduct of the State Bar of California (hereafter "California Rules"). Local Rule 180(e) further provides that in the absence of an applicable California standard, the Model code of Professional Responsibility of the American Bar Association may be considered as guidance.
Rule 2-100 of the California rules states: "[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the ...