United States District Court, D. Rhode Island
GREGG BOGOSIAN and THADOSHA BOGOSIAN and A.B., a minor child, by and through her parents and natural guardians, Gregg Bogosian and Thadosha Bogosian, Plaintiffs,
RHODE ISLAND AIRPORT CORPORATION (T.F. GREENE AIRPORT); OFFICER STEPHEN E. REIS; SERGEANT CHARLES E. HALL; OFFICER JOHN KINGSTON; and OFFICER JOHN DOE, Defendants.
MEMORANDUM AND ORDER
MARY M. LISI, District Judge.
The matter before the Court is the Defendants' motion for sanctions against the Plaintiff, Gregg Bogosian ("Bogosian") for alleged violations of a protective order issued by this Court on March 31, 2014 (the "Protective Order, " Dkt. No. 10). For the reasons set forth herein, the Defendants' motion is DENIED.
I. Factual Background and Procedural History
This case arose from an incident that took place at the T.F. Greene Airport (the "Airport") on the afternoon of July 31, 2012. Although the parties disagree about the exact sequence and details of the events, there are some facts that appear undisputed. On that day, Bogosian drove his car to the Airport, where he dropped off his wife, daughter, and mother-in-law at the departure area on the upper level. Bogosian left the departure area briefly, and then returned to that area to wait for his wife and daughter to re-emerge from the Airport terminal. At some point, Bogosian was told by Airport police that he could not remain in the departure area's clearly marked loading and unloading zone. Bogosian then proceeded to the arrival area at the lower level of the Airport, where he again parked in a marked loading and unloading zone. Shortly after his arrival, Bogosian was approached by a uniformed Airport police officer. Bogosian was unresponsive to the officer's inquiry and, when asked to produce his license and registration, he did not do so; instead, Bogosian called 911 on his cell phone. Bogosian was subsequently placed under arrest and escorted to the Airport police station. He was charged with obstruction of justice and disorderly conduct and he was given a traffic ticket. The traffic violations were subsequently dismissed based on Bogosian's good driving record. The criminal charges were dismissed on December 6, 2012.
On January 14, 2014, Bogosian filed a nine-count complaint (the "Complaint") in Rhode Island state court, alleging, inter alia, wrongful arrest and assault and battery (Dkt. No. 1-2). Because the Complaint also contained allegations of illegal search and seizure in violation of the Fourth Amendment, the case was removed by the Defendants to this Court on February 11, 2014.
Following a Rule 16 conference, the parties proceeded to discovery pursuant to a pretrial scheduling order issued on March 7, 2014 (Dkt. No. 7). On March 20, the parties filed a joint motion for entry of a protective order (Dkt. No. 9) to protect confidential information produced during discovery from unnecessary disclosure. The motion was granted on March 21, 2014 (Dkt. No. 10).
On March 31, 2015, following certain events, the Defendants filed a motion for sanctions against Bogosian for alleged violations of the Protective Order (Dkt. No. 47) pursuant to Fed.R.Civ.P. 37(b)(2)(A). Bogosian objected to the Defendants' motion (Dkt. 54), to which the Defendants filed a reply (Dkt. 57). The Court conducted an evidentiary hearing on the matter on April 29, 2015 and May 8, 2015, after which it took the Defendants' motion under advisement.
II. Standard of Review
Pursuant to Rule 37, the court may impose a variety of sanctions against a party for violation of a discovery order, including the entry of a default judgment against the disobedient party. Fed.R.Civ.P. 37(b)(2)(A). Such sanctions may be imposed by the Court "both to penalize the particular noncompliance and to deter others from engaging in the same tactics." AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429, 435 (1st Cir. 2015); Companion Health Services, Inc. v. Kurtz, 675 F.3d 75, 84 (1st Cir. 2012)(Noting that "the goal of a sanction is both to penalize wrongful conduct and to deter future similar conduct by the particular party and others who might be tempted to such conduct in the absence of such a deterrent.'")(internal citation omitted).
The First Circuit has provided a non-exhaustive list of substantive and procedural factors to be considered in determining a motion for sanctions. They include (1) severity of the discovery violations, (2) legitimacy of the party's excuse for failing to comply, (3) repetition of violations, (4) deliberateness of the misconduct, (5) mitigating excuses, (6) prejudice to the other party and to the operations of the court, and (7) adequacy of lesser sanctions. AngioDynamics, Inc. v. Biolitec AG, 780 F.3d at 435 (citing Vallejo v. Santini-Padilla, 607 F.3d 1, 8 (1st Cir.2010)).In addition, "[p]ertinent procedural considerations include whether the offending party was given sufficient notice and opportunity to explain its noncompliance or argue for a lesser penalty." Vallejo v. Santini-Padilla, 607 F.3d at 8 (quoting Malloy v. WM Specialty Mortgage, 512 F.3d 23, 26 (1st Cir.2008) (per curiam)). The party seeking the imposition of sanctions bears the burden of proof. See 8A C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2291, at 716 (2d ed. 1994).
III. The Protective Order
Under the Protective Order, the parties are entitled to (1) designate as "CONFIDENTIAL" any document or material which a party believes to contain confidential information, and (2) designate as "ATTORNEYS EYES ONLY" any document or material which a party believes to contain "highly confidential, highly sensitive personal information, trade secrets, or other sensitive and/or security information." Protective Order at 1 (Dkt. No. 10). The disclosure of information and/or material designated as "CONFIDENTIAL" or "ATTORNEYS EYES ONLY" is strictly limited to the parties, their attorneys, and certain other individuals directly involved in the litigation process in their professional capacity. The two documents at issue in this motion are the resume of Defendant Sergeant Charles E. Hall ("Sergeant Hall") and the transcript of his December 15, 2014 deposition, both of which were marked "CONFIDENTIAL."
IV. The Parties' Positions
According to the Defendants, on January 24, 2015, around 3:00 a.m., Bogosian contacted a Martha's Vineyard police department where Sergeant Hall had been employed more than thirty years previously. Bogosian asked a number of questions about a 1981 incident during Sergeant Hall's employment there. In the course of a telephone conversation with Officer Dustin Shaw ("Officer Shaw"), a police officer in that department, Bogosian disclosed information which, the Defendants assert, was contained in Sergeant Hall's resume and/or the transcript of his deposition,  both of which had been designated "CONFIDENTIAL." Officer Shaw advised Bogosian to call back during normal business hours ...