United States District Court, N.D. California
ORDER GRANTING MOTION FOR PROTECTIVE ORDER RE DKT NO.
A. WESTMORE UNITED STATES MAGISTRATE JUDGE.
26, 2017, Defendants Digital Realty Trust, Inc. and Ellen
Jacobs filed a motion for a protective order against
Plaintiff Paul Somers. (Defs.' Mot., Dkt. No. 242.)
Specifically, Defendants request that Plaintiff be ordered to
abstain from: (1) further contact with Ms. Sarah Schubert --
Defendants' former human resources consultant and a
defense witness -- in connection with the instant case except
through formal judicial process; (2) threatening any
disclosed witness; and/or (3) otherwise engaging in
intimidating or abusive communications with such individuals.
(Defs.' Mot., Dkt. No. 242.)
motion is based on Plaintiff's June 13, 2017 e-mail to
Ms. Schubert, in which Plaintiff writes:
Hello Sarah, Your focus on guilt is understandable. You are
responsible for a great amount of damage to many people's
lives because of what you did to me in 2014. I lost my father
a year ago to suicide in part because my money has been going
to lawyers to fight off Digital Realty. My mother is now
gravely ill and I cannot afford to give her the care she
deserves. It's your fault, Sarah Schubert. You had a duty
to be honest and you failed. You failed as a human being, a
professional and you failed as my friend. I often wonder what
could have possessed you to do what you did.
Your Critical Events memo is false, mean-spirited and
It will be front and center to litigation in Singapore. Ellen
Jacobs testified under oath that you are the author. You
essentially hit all the defamation high notes. Why did you
write those false statements? Did you want to get even with
the universe because you can't give birth? Is your
marriage still so miserable you wished to spread it around
your sadness [sic]? Had you done your job and told the truth,
you could have ended the retaliatory firing which has cost
upwards of $6 million so far and now awaiting the Supreme
Court which required another set of lawyers.
I now have sufficient evidence to prove you willfully defamed
me resulting in losses in the millions of dollars and much
worse than money, you are causing a great deal of pain and
Things will only get better when you are honest about your
guilt and try to repair what it is you damaged so carelessly.
(Schubert Decl., Exh. A, Dkt. No. 242-1.) Ms. Schubert has
also submitted a declaration stating that she wants Plaintiff
to stop contacting her. (Schubert Decl. ¶ 4.)
30, 2017, the presiding judge "lift[ed] the stay for the
limited purpose of allowing the parties to adjudicate the
instant motion, " and referred the motion to the
undersigned. (Dkt. No. 244.) Plaintiff's opposition was
due on July 11, 2017, but Plaintiff did not file an
opposition. The Court deems Defendants' motion for a
protective order suitable for disposition without hearing
pursuant to Civil Local Rule 7-1(b). Having considered the
papers filed by Defendants and the relevant legal authority,
the Court GRANTS the motion for a protective order.
initial matter, Defendants' motion is granted as
unopposed, as Plaintiff failed to file an opposition.
(See Westmore Standing Ord. ¶ 22 ("[t]he
failure of the opposing party to file a memorandum of points
and authorities in opposition to any motion shall
constitute consent to the granting of the motion")
the Court finds that a protective order is necessary based on
Plaintiff's actions. Plaintiff's e-mail to Ms.
Schubert is unacceptable; as Ms. Schubert aptly describes,
Plaintiff's email is "threatening, highly offensive,
and very unwelcome." (Schubert Decl. ¶ 4.) A court
has inherent powers to sanction a party if it "act[s] in
bad faith, vexatiously, wantonly, or for oppressive reasons,
as well as for willful abuse of the judicial processes."
Gomez v. Vernon, 255 F.3d 1118, 1133-34 (9th Cir.
2001) (internal quotation omitted); see also Wharton v.
Calderon, 127 F.3d 1201, 1207 (9th Cir. 1997)
(acknowledging power of the court to issue protective orders
as a sanction "or as necessary to control the courtroom
or proceedings pending before the court"). Here,
Plaintiff has attempted to intimidate a defense witness,
threatening Ms. Schubert with defamation claims
"resulting in losses in the millions of dollars"
and suggesting that "[t]hings will only get better when
you are honest about your guilt . . . ." (Schubert
Decl., Exh. A at 2.) Plaintiff has also attacked Ms. Schubert
personally, attributing her witness statements to her family
situation. The Court will not tolerate such behavior, which
is comparable to that in Teledyne Technologies, Inc. v.
Shekar, No. 15-cv-1392, 2015 WL 5438648 (N.D. Ill. June
17, 2015). There, the district court issued a protective
order after the defendant sent a letter to a third-party
witness, which was addressed not to the witness but the Chief
of Police, accusing the witness of perjury and accepting
bribes to lie to the court, and insulting the witness as a
"felon, " "dirty old salesman, " and
"crazy 82-year old jerk." Id. at *1. The
Court acknowledges that Teledyne is distinguishable
in that the defendant there had threatened other witnesses
with criminal prosecution, whereas here this appears to be
Plaintiff's first direct attack on a third-party
witness.The Court has concerns, however, based on
Plaintiff's failure to comply with past orders and the
content of the communications at issue, that Plaintiff will
not be deterred from engaging in future intimidation of
witnesses should the Court issue a warning instead of a
protective order. (See Dkt. No. 110 at 3 (July 8,
2016 order requiring that Plaintiff "not contact
Defendants directly"); Ashe Decl., Exh. C (September 28,
2016 letter from Plaintiff to Defendant Digital Realty
Trust's general counsel), Dkt. No. 242-2.)
the Court GRANTS Defendants' motion for a protective
order. Plaintiff shall not contact Ms. Schubert in connection
with any matter relating to this case except through formal
judicial process. Plaintiff is also directed not to threaten
any disclosed witnesses, and/or otherwise engage in
intimidating or abusive communications with such individuals.
This order does not prevent Plaintiff from reaching out to
those disclosed ...