United States District Court, N.D. California
ORDER GRANTING IN PART FIRST AMENDED PETITION AS TO PRESERVATION OF EMAILS ONLY
YVONNE GONZALEZ ROGERS, District Judge.
Petitioners Four Directions, Indian People's Action, Sara Plains Feather, and Clifford Bird In Ground ("Petitioners") filed their First Amended Pre-Complaint Petition to Preserve Evidence pursuant to Federal Rule of Civil Procedure 27(a)(1) on November 14, 2014. (Dkt. No. 34, "FAP".) Although the FAP sought additional relief, in their briefing, Petitioners narrowed their request and now seek only an order directing Respondents Committee on Judicial Conduct and Disability of the Judicial Conference of the United States ("the USJCD Committee") and Cathy A. Catterson, in her official capacity as representative of the Office of the Circuit Executive (collectively, "Respondents") to preserve emails uncovered in the Ninth Circuit's investigation of judicial misconduct complaints against now-retired federal Judge Richard Cebull. Respondents have objected to the entirety of the FAP and moved to dismiss it. (Dkt. No. 35.) Through this process, and the Court's inquiry, the Respondents have confirmed that, under Ninth Circuit policy, the subject emails in the Ninth Circuit's investigatory files are to be preserved until January 18, 2019.
The Court, having carefully considered the parties' briefing, arguments, and the relevant legal authorities, ORDERS as follows: given the unusual posture of this case and the Court's broad discretion in fashioning appropriate relief, the Court GRANTS that portion of Petitioners' request for preservation of the emails at issue and ORDERS that Respondents take all necessary steps to preserve the emails at issue, in accordance with Ninth Circuit policy, until January 18, 2019. However, given the breadth of the FAP as pleaded, the Court DENIES the balance thereof, since it fails to establish all elements of Rule 27(a)(1).
A. The Underlying Facts
The following recitation of the facts is drawn from the Memorandum of Decision filed January 17, 2014, by the USJCD Committee on Proceedings In Review of the Order and Memorandum of the Judicial Council of the Ninth Circuit on Judicial Council matter numbers XX-XX-XXXXX and XX-XX-XXXXX.
On March 1, 2012, a Complaint of Judicial Misconduct, Docket No. 09-12-90026, was opened in the Ninth Circuit Judicial Council at the request of Judge Richard Cebull, then Chief District Judge for the District of Montana, under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364 ("the Act") and Rules for Judicial-Conduct and Judicial-Disability Proceedings, 248 F.R.D. 674 (U.S. Jud. Conf. 2008) ("the JCD Rules"). Judge Cebull requested an inquiry regarding his February 20, 2012, transmittal of an email.
This complaint, and other related complaints, arose from a February 2012 incident in which Judge Cebull, using his court email account, forwarded to a number of recipients an email message that made a joke with racial implications involving the President of the United States, Barack Obama. The incident gave rise to substantial public and press outcry, and a call by members of the United States Congress for an investigation and Judge Cebull's resignation. Judge Cebull, in response, sent a letter of apology to President Obama, and asked Ninth Circuit Chief Judge Alex Kozinski to initiate an inquiry into the incident. This inquiry became Complaint XX-XX-XXXXX and was referred to the Ninth Circuit Judicial Council. Chief Judge Kozinski also referred Complaint No. 09-12-90032, filed by Third Circuit Chief Judge Theodore A. McKee and arising out of the same events, for inclusion in the Ninth Circuit Judicial Council's investigation. In accordance with JCD Rule 11(f), Chief Judge Kozinski referred the Cebull and McKee complaints to a five-judge special investigating committee of the Ninth Circuit Judicial Council, which took testimony and reviewed emails, documents, and statistics.
Upon conclusion of the special committee's investigation, on March 15, 2013, the Ninth Circuit Judicial Council issued an order disposing of the complaints. The March 15, 2013 Order detailed the special committee's findings of judicial misconduct. The Ninth Circuit Judicial Council found "hundreds of inappropriate email messages that were received and forwarded from Judge Cebull's court email account, " many of which showed disdain and disrespect based upon race/national origin (African American, Latino, and Native American), religion, sexual orientation, and gender. (USJCD Committee's Memorandum of Decision, dated January 17, 2014 [attaching Ninth Circuit Judicial Council Order and Memorandum filed March 15, 2013], Exh. A to original petition, Dkt. No. 1-3, at 6-7.) The March 15, 2013 Order of the Ninth Circuit Judicial Council found that Judge Cebull's conduct was "prejudicial to the effective administration of the business of the courts' under 28 U.S.C. § 351, " "contrary to the Code of Conduct for United States Judges, " and had violated Canon 2 of the Code of Conduct (judges should "avoid impropriety and the appearance of impropriety") and Canon 5 of the Code of Conduct (prohibiting political activity).
The March 15, 2013 decision included a public reprimand, an order that no new cases be assigned to Judge Cebull for 180 days, and an order that Judge Cebull complete training on judicial ethics, racial awareness, and elimination of bias "[t]o restore the public's confidence that any possible conscious or unconscious prejudice will not affect future decisions." (Ninth Circuit Judicial Council Order and Memorandum, Dkt. No. 1-3, at ¶ 3, p. 15.) The March 15, 2013 Order described Judge Cebull's past email practices, as discovered by the special committee, and "strongly condemn[ed]" them. ( Id. at ¶ 4, p. 16.) The order also condemned Judge Cebull's initial public apology as "insufficient to acknowledge fully or redress his past actions and the totality of his discriminatory emails, " and required that he "issue a second public apology, approved by the Judicial Council" that would "acknowledge the breadth of his behavior and his inattention to ethical and practical concerns surrounding personal email." ( Id. ) In addition, the Ninth Circuit Judicial Council ordered that "[a]ll parties and attorneys involved in cases assigned to Judge Cebull may move to recuse him based on conduct or concerns arising out of this Order or claims related to any of the categories of individuals or groups referenced in the Order." ( Id. at ¶ 5, pp. 16-17.)
Two members of the Ninth Circuit Judicial Council, Chief District Judge Wilken and District Judge Ishii, wrote a concurring statement that "the Judicial Council should request that Judge Cebull voluntarily retire from the judiciary under 28 U.S.C. § 371(a) in recognition of the severity of his violation and the breadth of the public reaction."
Under Rule 20(f), the March 15, 2013 Order was set to be published on May 17, absent any petition for review. Under that same rule, a copy of the order was sent to Judge Cebull and to Chief Judge McKee.
On April 2, before the March 13, 2013 Order was published, the Ninth Circuit Judicial Council announced through its public website that Judge Cebull had decided to retire effective May 3, 2013. On May 3, the Ninth Circuit Chief Judge posted on the court's public website the following announcement: "The [Ninth Circuit] Judicial Council now finds it necessary to review the procedural status and will consider the matter at its next regular meeting, scheduled for June 28, 2013." On May 13, the Ninth Circuit Judicial Council issued an order vacating the March 15, 2013 Order as moot in light of Judge Cebull's retirement, and stating that it would "consider appropriate revisions" at a forthcoming meeting scheduled for June 28, 2013.
On May 16, Chief Judge McKee filed a petition for review asking the USJCD Committee to review the May 13 vacatur. The Ninth Circuit Judicial Council responded to that petition by asserting that an appeal was not proper because its order ...