Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

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1 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN Wisconsin Resources Protection Council, Center for Biological Diversity, and Laura Gauger, Plaintiffs, Flambeau Mining Company, v. Case No. 3:11-cv bbc Defendant. PLAINTIFFS RESPONSE TO DEFENDANT S SUPPLEMENTAL MOTION FOR SANCTIONS On the eve of the deadline for filing dispositive motions, Defendants filed a supplement to its previously-filed motion seeking sanctions claiming that they just learned that one of the Plaintiffs visited the Flambeau Mine site without informing Defendant. In its original and supplemental motion, Defendant claims Plaintiffs should be punished under the Court s inherent sanctioning authority for failing to comply with Rule 34. Defendant s supplement and its original motions lack legal or factual merit and should be denied. First, contrary to its feigned recent discovery that Plaintiffs (like many other members of the public) had been on Defendant s property, Defendant has actually known about Plaintiffs visits since at least September 23, 2011, when Plaintiffs responded to Defendant s first set of discovery; Defendant has had the photographs at

2 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 2 of 12 issue, which it also acquired through Plaintiffs responses to discovery, since October 3, Saul Dec. 3, 4. There is no new information requiring an after-the-fact supplement. Nor was there any reason for the Defendant to rush to the court. Yet, Defendant filed its supplemental motion without abiding by the Court s order requiring the parties to meet and confer before filing a discovery motion. Saul Dec. 6; Dkt # 12, at 4. Defendant s supplemental motion should be denied for this reason alone. Second, there is no merit to Defendant s motion. Again, because Defendant openly advertises its entire property as being open to the public as a recreational area, Defendant s premise that Plaintiffs should not have been there stretches credulity. Simply put, because Plaintiff was on property open to the public at all times Rule 34 does not apply. But even if, assuming arguendo, Rule 34 notice should have been provided, as already briefed in response to the first motion (Dkt # 37), Defendant has not and cannot meet the standard for sanctions to issue under the Court s inherent authority. Adding to its requested relief in its earlier sanctions motion, without alleging Plaintiff acted in bad faith, vexatiously, wantonly or for oppressive reasons, Defendant asks, among ordering other relief, that that the Court should take the following drastic measures: (1) bar Plaintiff Gauger from participating in this case ; (2) exclude all photographs and other evidence obtained by Plaintiffs on or near the [Flambeau Mining Company] property ; and (3) mandate that Plaintiffs reimburse Defendant s counsel for its fees in bringing the sanctions motions. Dkt # 69 (Def s Br.) at 7 (emphasis added). As previously argued, Plaintiffs have not violated Rule 34 and they have not 2

3 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 3 of 12 engaged in any bad faith or wanton conduct that would warrant the Court exercising its inherent authority to sanction. Dkt ## 37, 38. To the contrary, the reason that Defendant knows about the visits is because they were revealed to Defendant by Plaintiffs in response to requests for production, interrogatories and deposition questions. Plaintiffs have met all obligations under the discovery rules. Plaintiff reincorporates its first response and accompanying filings (Dkt ## 37, 38), and provides the further response below and in accompanying declarations as further grounds why Defendant s motion should not be granted. FACTUAL BACKGROUND ON LAURA GAUGER S VISITS TO THE FORMER MINE SITE As reported by Plaintiff Gauger in her sworn responses to interrogatories on September 23, 2011, and in response to deposition questions, Plaintiff Laura Gauger has observed Stream C and/or the former mine site on at least seven occasions before the lawsuit was filed and on the three April 2011 occasions at issue in this motion. Saul Dec. 3; Gauger Dec. 3. On each occasion, Ms. Gauger believed that she was on land owned by Flambeau Mining Company or its parent company, but that the entire area was (and is) open to the public. Gauger Dec. 5; Dkt. # 70-5 (Gauger Dep. Tr.) at 209:3; 211:3; 218:16. According to the Flambeau Mining Company s website and brochure materials promoting the former mine site as free and open to the public year round. Dkt. # 38-3 (Flambeau Mine Company s recreational area brochure) (emphasis in the original); see also Saul Dec. Ex. A (Copper Park Equestrian Trail brochure) ( The trails are open to the public ). As the brochure maps depict, that open area is a 150-acre site. 3

4 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 4 of 12 There are no areas identified on the map that are off-limit to the public. Id. The areas that Ms. Gauger visited were all contained within that public area. Id.; Gauger Dec. 5. Ms Gauger has never observed any no trespassing postings or other signage that would indicate a carved out non-public area. Gauger Dec. 6. ARGUMENT I. Rule 34 does not prohibit the informal discovery of information conducted by Plaintiffs Implicit in Defendant s motion is the erroneous assumption that formal discovery is the only discovery allowed. To the contrary, however, conducting formal discovery is optional under the federal rules they do not preclude other, informal, discovery. [W]hile the Federal Rules of Civil Procedure have provided certain specific formal methods of acquiring evidence from recalcitrant sources by compulsion, they have never been thought to preclude the use of such venerable, if informal, discovery techniques.... Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983) (referring to an ex parte interview of a witness). Nothing in the rules preclude a party from gathering information through informal discovery, such as Freedom of Information Act requests, interviewing third parties, or viewing public areas. See e.g., Mid-Atlantic Recycling Techs., Inc. v. City of Vineland, 222 F.R.D. 81, 85 (D.N.J. 2004) ( The fact that a party is able to avail itself of a state statute and obtain public documents that are related to a simultaneous litigation does not conflict with Rule 26. ); Amarin Plastics v. Maryland Cup Corp., 116 F.R.D. 36, 38 (D. Mass. 1987)( Informal witness interviews are not encompassed by Rule 26 ); Grabau v. Target Corp., 2008 U.S. Dist. LEXIS 20238, *7 (D. 4

5 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 5 of 12 Colo. Feb. 29, 2008) (refusing to exclude evidence acquired through visits to public areas in Target stores). Parties to litigation routinely obtain material and information relevant to the proceeding by methods beyond the discovery process. State ex rel. Lank v. Rzentkowski, 141 Wis. 2d 846, 854 (Wis. Ct. App. 1987). As described in response to the original motion, according to the Flambeau Mine s tourism brochure: The 150-acre site, once home to the historic Flambeau Mine, today has been reclaimed to allow the land to serve as a recreational resource for the community and its visitors. The site is free and open to the public year round, from dawn to dusk. Dkt # 38-3 (Flambeau Mine recreational area brochure) (emphasis in the original). The 150-acre site is mapped on the brochure, without any limitation of access. The brochure welcomes individuals to the wetlands, denoted on the site map in blue, to include the Biofilter and other wetlands on the site. See id. It also includes trails south of Copper Park Lane that cross Stream C. Saul Dec. 5 and Ex. A. While Plaintiffs noted in their first response brief that if their testifying expert intended to visit the Biofilter for purposes of collecting evidence, that visit may require a Rule 34 inspection request (Dkt # 37 (Pls Br.) at 7), the entire 150 acres is open to the public, such a request would not be necessary. Nonetheless, Plaintiffs expert did not go into the Biofilter (see Dkt # 37) and Plaintiff Gauger stayed in those areas open to the public according to Defendant s own advertising materials. Gauger Dec. 5. 5

6 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 6 of 12 Because Plaintiffs, as any other member of the public, have been invited onto the Defendant s property from dawn to dusk, Rule 34 does not apply: The typical situation in which a Rule 34 request for a site inspection is served is where the requesting party seeks access to an opponent's premises where, absent the lawsuit, the requesting party would have no right to enter that premises. For example, a plaintiff suing a defendant for theft of trade secrets may seek to inspect the defendant's facility to observe the manufacturing process, with an eye toward determining what (if any) elements of the plaintiff's alleged trade secret process are being used. In the ordinary course of business, the plaintiff would not have a right to enter the defendant's facility and to inspect the manufacturing process. But, in the context of a lawsuit, Rule 34 provides a mechanism for plaintiff to have access to the defendant's premises, under conditions set by the Court. This case does not fit that Rule 34 model because, even absent the lawsuit, Hinsdale had a right to enter upon the premises, to examine the premises, and to document what it found. Hinsdale did not need an order under Rule 34 to gain access to the property; Hinsdale had that right under the lease agreement.... And, we do not find anything in the language or history of Rule 34 that would allow MONY to use the rule as a sword, to strip Hinsdale of its contractual right to enter upon the premises. MONY Life Ins. Co. v v. Hinsdale Mgmt. Corp., 2002 U.S. Dist. LEXIS 10771, *9-*10 (N.D. Ill. June 5, 2002). Whether a contractual right or a public right of access by invitation, Rule 34 is not a bar to the informal discovery conducted by Plaintiffs. Those courts to consider the intersection of public places and Rule 34 have sided with the Plaintiffs here. Rodriguez v. County of Stanislaus, 2010 U.S. Dist. LEXIS , *7 (E.D. Cal. Nov. 1, 2010) ( This Court finds Plaintiff's experts could properly inspect the subject area - a public railroad crossing at Claribel Road and Terminal Avenue - without the necessity of a formal notice of inspection. ); Grabau v. Target Corp., 2008 U.S. Dist. LEXIS 20238, *7 (D. Colo. Feb. 29, 2008) ( Taking into account the intention and 6

7 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 7 of 12 reason behind the [Rule 34], the rule arguably does not apply when the opposing party does not control access to the property such as when the property is open to the public. ); Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 n.2 (9 th Cir. 2008) (noting that the district court declined to strike evidence produced from unauthorized visits to public areas in defendant s stores). Defendant erroneously cites to Rule 34 as a limiting provision in the discovery rules. Rather, Rule 34 is designed to permit the broadest sweep of access. Morales v. Turman, 59 F.R.D. 157, 158 (E.D. Tex. 1972) (quoting Wright & Miller, Federal Practice and Procedure 2206, at 607 (1970)). But, by opening a door to broader access than a party would otherwise have, Rule 34 does not close other doors to collecting evidence that a party has outside of the Rule. Here, Plaintiffs did not request entry upon land under Rule 34(a) because they were not required to. Plaintiffs stayed on public areas on the former Flambeau Mine site/recreational area. There was no violation of Rule 34 (or any other rule). Thus, there is no basis for sanctions. 2. Defendant has demonstrated no basis for the Court to invoke its inherent authority to sanction. District courts have inherent authority to impose sanctions with restraint and discretion on a party that acts in bad faith, vexatiously, wantonly or for oppressive reasons. U.S. v. Fidelity & Deposit Co., 986 F.2d 1110, 1120 (7 th Cir. 1993) (citing Chambers v. NASCO, Inc., 501 U.S. 32, (1991)). The authority does not extend to this situation in which the Defendant alleges that Plaintiff should have given notice to enter public areas owned by Defendant. Even assuming arguendo that Defendant is correct 7

8 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 8 of 12 that a Rule 34(a) request should have been submitted, sanctions would still not be warranted because Plaintiffs engaged in no fraudulent or bad faith conduct. See Grochocinski v. Mayer Brown Rowe & Maw LLP, 2011 U.S. Dist. LEXIS *13 (N.D. Ill. June 30, 2011) ( Mere negligence, however, is not enough; the imposition of sanctions under a federal court's inherent authority requires fraudulent or dilatory conduct, or a showing of bad faith. (citing Kovilic Constr. Co. v. Missbrenner, 106 F. 3d 768, (7 th Cir. 1997)). Ms. Gauger believed she was in the public areas and was not purposefully trying to thwart the rules of discovery. Gauger Dec. 5. There has been no bad faith, vexatious, wanton or oppressive conduct by Plaintiffs. The Seventh Circuit has stated a district court deciding whether to impose sanctions for discovery violations should consider: (1) the prejudice or surprise to the party against whom the evidence is being offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date. Judson Atkinson Candies, Inc., v. Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7 th Cir. 2008) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). Here, Defendant improperly asks the Court to use its inherent powers to sanction Plaintiffs for the alleged discovery dispute without making an effort to show that any of these factors have been met nor could it demonstrate the factors, if that effort had been made. There has been no attempt to hide evidence or otherwise thwart the purpose of the discovery rules to avoid surprise at trial. Discovery is ongoing and no trial deadlines were affected. Plaintiffs gave the photographs to the Defendant in response to document requests, they described the 8

9 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 9 of 12 timing of the visits in their interrogatory response, and they testified about the visits in deposition. Saul Dec. 3,4; Dkt # Certainly, there is no prejudice or surprise to the Defendants. Failing to even address the relevant legal standards for sanctions and yet seeking the harshest of sanctions, Defendant s motion appears aimed only to harass and cause Plaintiffs to unnecessarily expend resources on responding to motions for sanction. Even if the Court were to find that some sanction were appropriate, the sanction must be proportionate to the gravity of the offense. Montano v. City of Chicago, 535 F.3d 558, 563 (7 th Cir. 2008). Defendant s request for sanctions are severe and harsh: bar[ring] Plaintiff Gauger s participation (while not clear, Plaintiffs take this to mean the equivalent of dismissing her from the action); excluding otherwise appropriate evidence; and awarding defendant attorney fees and costs. See Dietrich v. Northwest Airlines, Inc., 168 F.3d 961, 964 (7 th Cir. 1999) (warning that dismissal must be treated as the ultimate sanction ); Johnny Blastoff Inc. v. Los Angeles Rams Football Co., 1998 U.S. Dist. LEXIS 11919, *58 (W.D. Wis. June 24, 1998) (shifting fees to the other party is limited to instances in which a party has practiced fraud upon the court, delayed or disrupted the litigation, hampered enforcement of a court order or defiled the very temple of justice. (quoting Chambers, 501 U.S. at 46)); Grabau v. Target Corp., 2008 U.S. Dist. LEXIS at *7 (finding that failing to request an inspection under Rule 34 was not a basis for excluding evidence). Given the extent of the alleged misconduct that is, Ms. Gauger s taking photographs of the mine site from what she believed to be public areas because Defendant advertises it as public any of Defendant s requested 9

10 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 10 of 12 sanctions would be disproportionate. Defendant s demands for drastic sanctions are unsupported by law or facts. Consequently, they must be rejected. The request for sanctions the original and the supplemental should be denied. CONCLUSION For the all the reasons set forth above, Plaintiffs respectfully request the Court to deny Defendant s motion for sanctions in its entirety. Dated this 29 th day of November, MCGILLIVRAY WESTERBERG & BENDER LLC /s/ Pamela R. McGillivray James N. Saul Christa O. Westerberg David C. Bender Pamela R. McGillivray McGillivray Westerberg & Bender LLC 211 S. Paterson Street, Suite 302 Madison, WI (Ph) (Fax) saul@mwbattorneys.com westerberg@mwbattorneys.com bender@mwbattorneys.com mcgillivray@mwbattorneys.com Marc D. Fink, Attorney CENTER FOR BIOLOGICAL DIVERSITY 209 East 7 th St. Duluth, MN (218) mfink@biologicaldiversity.org Daniel Mensher Staff Attorney PACIFIC ENVIRONMENTAL ADVOCACY CENTER Lewis & Clark Law School SW Terwilliger Blvd. 10

11 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 11 of 12 Portland, OR (503) Counsel for Wisconsin Resources Protection Council, Center for Biological Diversity, and Laura Gauger 11

12 Case: 3:11-cv bbc Document #: 71 Filed: 11/29/11 Page 12 of 12 Certificate of Service I hereby certify that on November 29, 2011, I caused a copy of the foregoing and its accompanying filings to be served on the following via the Court s ECF system: DeWitt Ross & Stevens S.C. Harry E. Van Camp Henry J. Handzel Timm P. Speerschneider Scott M. Paler Cari Anne Rendlund hvc@dewittross.com hjh@dewittross.com tps@dewittross.com sxp@dewittross.com car@dewittross.com Dated November 29, s/ Pamela R. McGillivray 12