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United States of America v. Sierra Pacific Industries

January 10, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
SIERRA PACIFIC INDUSTRIES, ET AL., DEFENDANTS.



ORDER DENYING SIERRA PACIFIC INDUSTRIES' MOTION FOR RECONSIDERATION OF DISCOVERY ORDER

This matter comes before the Court on Defendant Sierra Pacific Industries' ("SPI") Motion for Reconsideration of Discovery Order (Doc. #107). Plaintiff United States of America opposes the motion (Doc. #111).

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 10, 2010, the United States Forest Service invited the public to a series of seven tours of a Forest Service Project on the Plumas National Forest. Michael Schaps ("Schaps"), an associate attorney with Downey, Brand, counsel of record for SPI, attended the public tour, along with other members of the public. During the tour, Schaps communicated with a number of Forest Service employees. At no time did Schaps inform those employees that he was an attorney with the law firm representing SPI in this pending litigation.

Upon learning that Schaps attended the tour and asked questions to Forest Service employees, the United States filed a Motion for Protective Order to Bar Improper Ex Parte Contacts and Produce Evidence of Ex Parte Contracts; And Prohibit Use of Evidence Obtained From Ex Parte Contacts (Doc. #68) before the Honorable Edmund F. Brennan, Magistrate Judge. After extensive briefing and a hearing, Magistrate Judge Brennan granted the United States' Motion for a Protective Order (Doc. #92). SPI now asks this Court to reconsider and set aside Magistrate Judge Brennan's Order.

II. OPINION

A. Legal Standard

28 U.S.C. § 636(b) and E.D. Cal. Local Rule 303 govern the standard for a Motion for Reconsideration. The district court "may reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. 363(b)(1)(A); E.D. Cal. Local Rule 303(f). The standard of review under § 636(b)(1)(A) is highly deferential; see United States v. Abonce-Barrera, 257 F.3d 959, 968-69 (9th Cir. 2001), and does not permit the reviewing court to substitute its own judgment for that of the magistrate judge's. Grimes v. City & County of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991).

B. Magistrate Judge's Opinion

Magistrate Judge Brennan held that Rule 2-100 of the Rules of Professional Conduct of the State Bar of California ("California Rules") was violated by SPI's counsel's communication with Forest Service employees during the August 10, 2010 public tour.

1. Legal Standard

Rule 2-100 is a "no contact rule" which states that "[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 matter, unless the member has the consent of the other lawyer."

Rule 2-100 contains a "public body"/"public officer" exception to the no contact rule. Subsection (C)(1) states that "[t]his rule shall not prohibit communications with a public officer, board, committee, or body." According to a proposed, but not formally adopted, opinion by the California state bar, the public officer exception allows for contact with a represented party or employee if the communication is with:

a person to whom a communication would be constitutionally protected by the First Amendment right to petition the government. Such a person would be one who, for example, has the authority to address, clarify or alter governmental policy; to correct a particular grievance; or to address or grant an exemption from regulation.

Proposed Formal Opinion Interim No. 98-0002. Thus, the Proposed Formal Opinion focuses primarily on the level of the public official's authority to determine whether the public official exception applies. The public officials at issue in the unadopted opinion were line police officers, and they were determined not to be ...


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