The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER DENYING MOTION REQUESTING APPROPRIATE ACTION REGARDING VIOLATIONS OF THE LAW AND RULES COMMITTED BY CHIEF ATTORNEY STEVEN SHERMAN
Plaintiff Joseph Ciampi has filed a Motion Requesting Appropriate Action Regarding Violations of the Law and Rules Committed by Attorney Steven Sherman. Plaintiff alleges that by 22 his actions in this proceeding, Steven Sherman, counsel for Defendants, has violated various California state bar rules, as well as civil and criminal laws. The Court construed Plaintiff's 24 request as a motion for sanctions and held oral argument on June 30, 2011. Although Mr. Sherman 25 has made errors in the course of discovery and motion practice, the Court is not persuaded, based 26 on the evidence and arguments submitted, that Mr. Sherman engaged in misconduct. Accordingly, 27 the Court DENIES Plaintiff's motion.
and seven current and former employees of the Palo Alto Police Department, alleging civil rights 4 violations and state common law claims. Plaintiff's claims arise out of an incident that occurred on March 15, 2008, in which officers of the Palo Alto Police Department used Taser guns to subdue 6 and arrest Plaintiff Joseph Ciampi. The incident was recorded by cameras mounted on the Taser 7 guns used by Defendants Manuel Temores and Kelly Burger, as well as the Mobile Audio Video
On June 15, 2009, Plaintiff Joseph Ciampi filed a Complaint against the City of Palo Alto System (MAV) devices located on Temores's and Burger's patrol cars. These recordings have 9 been the subject of several motions to compel. Plaintiff now alleges that Steven Sherman, counsel 10 for Defendants, has violated various California state bar rules, as well as civil and criminal laws, by falsifying evidence and making misrepresentations during the course of discovery and motion practice in this case. Mr. Sherman denies Plaintiff's allegations of misconduct.
Plaintiff's motion and supplemental motion contain 13 separate allegations against Mr. Sherman. Plaintiff alleges that Mr. Sherman has violated California Business & Professions Code
§ 6068(d) (attorney's duty never to mislead a judge by false statements), § 6068(f) (advancing facts 17 prejudicial to the honor or reputation of a party), § 6106 (attorney dishonesty or moral turpitude), (prohibiting attorneys from seeking to mislead the judge). Accordingly, Plaintiff requests that the Procedure 37(b). Civil Local Rule 11-6(a) provides that "[i]n the event that a Judge has cause to 22 believe that an attorney has engaged in unprofessional conduct, the Judge may" refer the matter to 23 the disciplinary authority of the state where the attorney is licensed to practice, initiate civil or 24 criminal contempt proceedings, or impose other appropriate sanctions. Federal Rule of Civil Procedure 37(b) provides for the imposition of sanctions when a party "fails to obey an order to 26 provide or permit discovery." Fed. R. Civ. P. 37(b)(2)(A). The Court will evaluate each of Plaintiff's allegations in turn.
§ 6128(a) (deceit or collusion by an attorney), and California Rule of Professional Conduct 5-200 Court impose disciplinary sanctions pursuant to Civil Local Rule 11-6(a) or Federal Rule of Civil number on Taser camera V07-065373. In support of this allegation, Plaintiff submits two 4 photographs, allegedly taken on October 20, 2010, and December 17, 2010, of a sticker on the Action ("Ciampi Decl.") Ex. 603, ECF No. 143. In addition to what appears to a warning label, the 7 sticker contains a serial number and bar code. See id. In the December 17, 2010 photo, part of the 8 serial number and bar code appears to be rubbed off. See id. Plaintiff also submits a short video 9 documenting a portion of the December 17, 2010 inspection of the Taser guns and Taser cameras 10 at the Palo Alto police station. Id. Ex. 600. On the video, Mr. Sherman appears to state, "We're
In his first allegation, Plaintiff contends that Mr. Sherman has tampered with the serial V07-065373 Taser camera. See Decl. of Joseph Ciampi ISO Pl.'s Notice Requesting Appropriate going to have to put this [the Taser camera] into an envelope because we're messing up the 12 numbers. Some of it could be my fault from sticking this sticker on the wrong side all day long 13 and pulling it off, but we may be pulling off the number, the ink on it." Id. Ex. 600 at 2:42-56.
repeatedly pulled the slip off and stuck it back on during the inspection of the camera on December
17, 2010. On that day, Mr. Sherman speculated that the removal of the slip, or possibly the 17 repeated handling of the camera, may have rubbed some of the ink off the sticker. At the motion 18 hearing, Lieutenant Sandra Brown, of the Palo Alto Police Department, also stated that the V07-19
065373 Taser, which Defendants believe was not involved in the March 15, 2008 incident,*fn1 had 20 been in use prior to the December 17, 2010 inspection, and that the serial number may have rubbed 21 off in the course of ordinary police work.
have lightened or rubbed off somewhat. However, he states that he did not intentionally tamper 24
It seems that a packing slip had been taped to the Taser camera, and Mr. Sherman had Mr. Sherman does not deny that the serial number on Taser camera V07-065373 appears to with the serial number. The Court agrees that, based on Mr. Sherman's December 17, 2010 2 statement, it appears that once Mr. Sherman noticed that the serial number was rubbing off, he took 3 measures to mitigate the problem. This suggests that rather than tampering with the serial number, 4
Mr. Sherman actually attempted to ensure its integrity. Moreover, both Mr. Sherman and Plaintiff 5 agree that the serial numbers are programmed into the Taser cameras, such that even if the serial 6 number is rubbed off the sticker, it is still possible to identify the Taser cameras with accuracy. For 7 these reasons, the Court finds no merit to Plaintiff's claim that Mr. Sherman sought to mislead the 8
However, the Court advises Mr. Sherman and Defendants that the V07-065373 Taser camera must 10 remain in evidence and be treated with care for the remainder of this case. If the Court learns that Court or tamper with evidence by rubbing off the serial number from Taser camera V07-065373.
the V07-065373 Taser camera has been reissued for use by the police or has not been properly secured in evidence, the Court will consider appropriate sanctions.
MAV recording with a date of last modification of March 15, 2008, the date of the Taser incident.
In his second allegation, Plaintiff states that he requested a copy of Defendant Temores' Plaintiff contends that Mr. Sherman responded to this request by providing a recording with a date 17 of last modification of September 3, 2010, but represented in the discovery response that the 18 recording provided had a date of last modification of March 15, 2008. Plaintiff claims that Mr. Sherman intentionally attempted to deceive Plaintiff regarding the date of last modification, that 20 this deception continued through the discovery process, and that it resulted in a motion to compel.
It seems that when Mr. Sherman originally provided copies of the recording to Plaintiff, he 22 produced them in a file format which records a new "date of last modification" each time a copy is 23 made. However, in order to obtain a copy with the original March 15, 2008 date of last 24 modification, Plaintiff must receive a bit-for-bit replication of the original file, in its original file 25 format. See Order by Judge Grewal Granting Mot. to Compel, ECF No. 115. It appears that Mr. Sherman did not initially produce the MAV recording in its original format because he believed 27 that Mr. Ciampi would not be able to view the recording in that format. However, pursuant to Magistrate Judge Grewal's April 21, 2011 order, Defendants have now produced the MAV recording to Plaintiff in its original format, using a Windows file copying system to create a bit-2 for-bit replication of the original file. he represented that the MAV recording produced had a date of last modification of March 15, It does appear that when Mr. Sherman initially responded to Plaintiff's discovery requests, 2008, and that this representation was incorrect. At the hearing, Mr. Sherman stated that this error 6 occurred because he misunderstood what Plaintiff meant by his request for a recording with a last 7 modification date of March 15, 2008. It also appears that Mr. Sherman and Defendants may not 8 have entirely understood the recording technology at that time. The Court is not convinced that the 9 erroneous representation in the original discovery response was made by Mr. Sherman in an 10 intentional effort to deceive Plaintiff or the Court. The parties have litigated the issue through 11 motions to compel, and it appears that Plaintiff now has the MAV recordings that he seeks Defendants now have a better understanding of both the technology at issue and the information Plaintiff seeks. Thus, there is little justification for future errors of this nature, and the Court will 15 not look favorably on such errors, should they recur.
stating that the watermark on the MAV recordings was proprietary in nature, and therefore
Defendants could not produce to Plaintiff MAV recordings containing the watermark. In his 20 response, Mr. Sherman explains that he did not intend to suggest that the watermark itself was 21 proprietary, but rather that the watermark can only be read or verified using proprietary software.
Plaintiff in his brief. Mr. Sherman's statement reads:
Accordingly, this claim does not provide grounds for sanctions. However, Mr. Sherman and
Plaintiff's third allegation similarly claims that Mr. Sherman made ...