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In Re Attorney Lynn Hubbard Iii

October 24, 2012

IN RE ATTORNEY LYNN HUBBARD III,
RESPONDENT.



The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court

ORDER DENYING IN PART AND GRANTING IN PART RESPONDENT'S ) MOTION FOR DISCOVERY ) [ECF No. 19]

I. INTRODUCTION

On October 1, 2012, Respondent Attorney Lynn Hubbard ("Hubbard") filed a Motion for Discovery in the above-entitled matter in accordance with the September 18, 2012 Minute Order of the Honorable M. James Lorenz. [ECF Nos. 17, 19.] Petitioner, the Standing Committee on Discipline of the United States District Court of the Southern District of California ("Standing Committee"), filed its opposition to the motion on October 15, 2012. [ECF No. 22.] As ordered by Judge Lorenz on September 18, 2012, the motion was referred and taken under submission by the Honorable William McCurine, Jr., upon receipt of the Standing Committee's opposition brief. [ECF No. 17.] After careful consideration of the parties' briefing, the Court DENIES IN PART AND GRANTS IN PART Respondent's Motion for Discovery.

II. BACKGROUND

On August 9, 2012, the Standing Committee filed a Petition under Civil Local Rule

83.5(e), requesting the Court issue an Order to Show Cause to Hubbard requiring him to show cause why he should not be found to have engaged in unprofessional conduct and suspended from the practice of law in the United States District Court of the Southern District of California for one year. [ECF No. 1.] The Standing Committee contends Hubbard misled the Court and opposing counsel about the death of his client, who also happened to be his mother, in connection with settling an Americans with Disabilities Act matter before Magistrate Judge William V. Gallo. [ECF Nos. 1, 22.] Specifically, the Standing Committee alleges in Count One of the Petition that: (1) Hubbard sent opposing counsel a settlement agreement purportedly signed by his mother on December 9, 2009 without disclosing his mother died on November 13, 2009; and (2) misled the Court and opposing counsel at a February 25, 2010 settlement conference into believing his mother signed the settlement agreement before she died. [ECF No.1, at pp. 2-3.] Counts Two and Three of the Petition allege Mr. Hubbard led opposing counsel to believe his mother was alive at the time signed settlement documents were submitted to opposing counsel . [ECF Nos. 1, 22.]

On August 31, 2012, the Standing Committee filed a statement in conjunction with the hearing on the District Court's Order to Show Cause. [ECF No. 7.] In the hearing statement, the Standing Committee explained its Petition was supported by the entire court file in the underlying case, including the findings of Judge Gallo's June 13, 2011 Order after Order to Show Cause; therefore, no formal discovery was needed by the parties. Id. at 7:15-19. In addition, the Standing Committee indicated it did not intend to file dispositive motions before a hearing on the merits of its Petition. Id.

On October 1, 2012, Hubbard filed the instant Motion for Discovery. [ECF No. 19.] In the motion, Hubbard argues it is necessary for him to depose the percipient witnesses to the February 24, 2010 settlement conference because it was unrecorded. Specifically, Hubbard contends his right to due process requires the deposition of: (1) Judge Gallo, (2) opposing counsel in the Plaza Bonita matter*fn1 - David Peters, and (3) Judge Gallo's law clerk in order to develop facts for impeachment as well as to establish the context in which Hubbard's allegedly misleading statements were made. Id. at 2:8-15.

In the Standing Committee's opposition brief, filed October 15, 2012, it argues the depositions Hubbard seeks are unnecessary, would result in the collection of cumulative undisputed facts and would only seek to delay the case. The Standing Committee also notes that although the February 25, 2010 settlement conference before Judge Gallo was not recorded, the October 12, 2010 hearing on Judge Gallo's Order to Show Cause as to why Hubbard should not be sanctioned for his alleged misconduct in the Plaza Bonita matter was reported. At the OSC hearing, Judge Gallo made a detailed record of the misrepresentations made by Hubbard and indicated the misrepresentations were compiled from notes Judge Gallo made during the settlement conference. [See Case No. 3:09cv01581-JLS-WVG at ECF No. 200, at 4:22-5:2.] Following the October 12, 2010 OSC hearing, the parties were allowed to submit supplemental briefs for the Court's consideration. On June 13, 2011, Judge Gallo issued a sanctions order and again identified statements which the Court found misleading and explained why the Court found them misleading. [See Case No. 3:09cv01581-JLS-WVG at ECF No. 218.] On June 23, 2011, Hubbard filed written objections to Judge Gallo's sanctions order with the U.S. District Judge presiding over the Plaza Bonita case, the Honorable Janis L Sammartino. The Standing Committee argues Hubbard expressly admitted in his objections brief to Judge Sammartino that he made the three statements on which Count One of the Petition is based.*fn2 As a result, the Standing Committee contends no additional facts need to be developed, only argument concerning the reasonableness of Judge Gallo's impressions upon hearing the statements (arguments which Hubbard would be free to make without additional evidence). The Standing Committee urges the Court to deny Hubbard's request for the depositions of Judge Gallo, his law clerk and opposing counsel in the Plaza Bonita matter.

III. STANDARD OF REVIEW

Under Civil Local Rule 83.5(e), entitled "Original Disciplinary Investigations and Proceedings Initiated in This Court", a disciplinary "proceeding must be governed by the Fed. R. Civ. P." The Ninth Circuit has noted that where a local rule makes the Federal Rules of Civil Procedure applicable to disciplinary proceedings, Rule 26(b) of the Federal Rules of Civil Procedure is made applicable and the district court lacks the authority to bar discovery summarily. See Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist. Of California v. Yagman, 55 F.3d 1430, 1435, fn. 8 (9th Cir. 1995).

Accordingly, as directed by Local Rule, the Court must apply the Federal Rules of Civil Procedure to this matter, including Rule 26(b), which governs the scope and limits of discovery in this disciplinary proceeding. Rule 26(b)(1) states:

"Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial ...


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