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Fish v. Kobach

United States District Court, D. Kansas

July 25, 2017

STEVEN WAYNE FISH, et al., Plaintiffs,
KRIS KOBACH, Kansas Secretary of State, Defendant.



         This case is before the Court on Defendant Kris Kobach's Rule 72(a) Motion of Judge O'Hara's June 23, 2017, Order (Doc. 362), [1] filed on July 5, 2017. The briefing deadlines for this motion were expedited to facilitate a prompt ruling before the scheduled deposition of Secretary Kobach on August 3, 2017. The matter is now fully briefed and the Court is prepared to rule. As described more fully below, Defendant's motion for review is denied.

         I. Background

         The individual Plaintiffs in this case are United States citizens who attempted to register to vote at the time they applied for a Kansas driver's license. Under a 2011 Kansas Documentary Proof of Citizenship (“DPOC”) law, Plaintiffs' voter registration applications were deemed “incomplete, ” and under a 2015 regulation passed by Kansas Secretary of State Kris Kobach, some of these applications were cancelled in the Kansas voter registration database. On May 17, 2016, the Court issued an extensive Memorandum and Order granting in part Plaintiffs' motion for a preliminary injunction barring enforcement of the Kansas DPOC law until this case could be decided on the merits.[2] The order was effective on June 14, 2016.[3] The Tenth Circuit affirmed that ruling on October 19, 2016, in an extensive opinion.[4]

         Discovery had completed in June 2016, but because the Tenth Circuit's comprehensive opinion clarified the standards that apply to Plaintiffs' claim under § 5 of the National Voter Registration Act (“NVRA”), this Court granted Defendant's motion to reopen discovery. Based on the Tenth Circuit's opinion, the undersigned and presiding United States Magistrate Judge James P. O'Hara permitted additional discovery on two issues:

(1) whether a substantial number of noncitizens have successfully registered to vote in Kansas under the NVRA's attestation-of-citizenship requirement (showing that attestation falls below the minimum necessary for Kansas to carry out its eligibility-assessment and registration duties); and
(2) whether DPOC is the minimum amount of information necessary for Kansas to carry out its eligibility-assessment and registration duties.[5]

         On November 22, 2016, Plaintiffs served their Sixth Request for Production of Documents.[6] This request, as modified during counsel's meet-and-confer discussion, seeks: “all documents and communications regarding potential amendments or changes to the National Voter Registration Act affecting how officials may assess the eligibility of a voter registration applicant” (“Sixth Request”).[7] Plaintiffs moved to compel production of two documents that they argued were responsive to this request: (1) a draft of a possible future amendment to the NVRA that was created by Defendant and shared only with counsel in Defendant's office and Bryan Caskey, who is the head of the Elections Division of the Secretary of State's office (“the draft amendment”); and (2) a document created by Defendant to share with then President-elect Donald Trump referencing a possible amendment to the NVRA, which was photographed by the Associated Press in late November 2016 as Defendant was walking into a meeting with President-elect Trump (“the photographed document”). Defendant refused to produce these documents, asserting that they are beyond the scope of discovery, do not seek relevant information, and are protected by the attorney-client, deliberative-process, and executive privileges.

         On April 5, 2017, Judge O'Hara issued an Order ruling that the Sixth Request was within the scope of discovery, as limited by this Court's order reopening discovery.[8] He ordered the documents be produced for in camera review before ruling on the relevance and privilege arguments. After reviewing the two documents in camera, Judge O'Hara issued a second Order on April 17, 2017.[9] The April 17 Order explained that the documents (in redacted form) are relevant to the issues for which discovery was reopened. He further ruled on Defendant's assertions of privilege, finding none of the asserted privileges apply to these documents. In a footnote, Judge O'Hara pointed to two statements in Defendant's response brief on the motion to compel that “most charitably, can be construed as word-play meant to present a materially inaccurate picture of the documents.”[10] Judge O'Hara reminded Secretary Kobach that in his capacity as counsel of record in this case, he is “an officer of the Court with a duty of candor and a duty not to assert frivolous arguments.”[11] Judge O'Hara ordered Defendant to produce the two documents at issue and left it to Plaintiffs “to decide whether to seek sanctions against defendant.”

         On May 22, 2017, Plaintiffs filed a motion for sanctions based on the misstatements discussed by Judge O'Hara in his April 17 Order. In that motion, Plaintiffs also sought to remove the “confidential” designation from the two documents at issue, and asked the court to order a deposition of Secretary Kobach to answer questions limited to the creation and purpose of the two documents because Plaintiffs did not possess those documents during his earlier depositions. Judge O'Hara granted in part and denied in part Plaintiffs' motion on June 23, 2017.[12] Although Judge O'Hara found that Defendant's misstatements in the earlier brief did not justify sanctions under Fed.R.Civ.P. 37(a)(5), he did exercise his discretion to impose “inherent power” sanctions, and fined Secretary Kobach $1000, to be made payable to the court. Further, Judge O'Hara found that the documents at issue were properly deemed “confidential” under the protective order. Finally, Judge O'Hara granted Plaintiffs' request to reopen discovery for a limited deposition of Secretary Kobach. The deposition is limited to

non-privileged information and evidence pertaining to the draft amendment and the photographed document. The deposition will be held . . . in Room 211 of the United States Court House, 500 State Avenue, Kansas City, Kansas. The undersigned will preside over the deposition and contemporaneously resolve any disputes that arise. The deposition is limited to sixty minutes of testimony on direct examination. As agreed to by plaintiffs, all testimony at the deposition will be subject to the confidentiality provisions of the protective order (i.e., the deposition will not be open to the public).[13]

         Defendant filed a motion to reconsider the imposition of sanctions, arguing that his “lack of clarity” was an unintentional mistake, and the result of a rushed editing process between co- counsel. He also argued that deposing him could pose an ethical problem under Kansas Rule of Professional Conduct 3.7 by potentially disqualifying him from testifying at trial. Judge O'Hara denied the motion, finding that both arguments were inappropriate attempts to raise new arguments on a motion to reconsider that could have been but were not presented in the first instance.[14]

         II. Discussion

         Secretary Kobach now objects to Judge O'Hara's June 23 and July 5, 2017 Orders under Fed.R.Civ.P. 72(a), on two grounds: (1) ordering sanctions based on unintentional misstatements caused by last-minute editing mistakes was erroneous; and (2) permitting his deposition is contrary to law under Tenth Circuit precedent.

         Fed. R. Civ. P. 72 allows a party to provide specific, written objections to a magistrate judge's order. With respect to a magistrate judge's order relating to nondispositive pretrial matters, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate judge's order is “clearly erroneous or contrary to the law.”[15] “The clearly erroneous standard ‘requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'”[16] To the extent Defendant raises new arguments in his motion for review that were not articulated in his response to the motion for sanctions, they are waived.[17]

         A. Sanctions

         In Judge O'Hara's Order granting the original motion to compel, he cited two examples of misstatements by Secretary Kobach in his response to the motion to compel.[18] The first was Defendant's statement that the draft amendment “does not propose to ‘amend or alter' an [sic] ‘eligibility-assessment procedures mandated by the NVRA.'”[19] The second was his statement that “no such document exists, ” demonstrating that Defendant sought an “alternative means of assessing voter qualifications by amending the NVRA.”[20]

         Defendant's response to the motion for sanctions states that “the problem was the result of counsel's apparently inarticulate phrasing, not the result of an intent to mislead or obfuscate. In both sentences, counsel for Defendant was attempting to correct misstatements by Plaintiffs' [sic] in their motion to compel.”[21] Defendant went on to explain how in each instance he was attempting to correct misstatements of fact or law by Plaintiffs, and admitted he “was not as clear as he could have been.” Defendant denied any lack of candor with the Court, and insisted that he was attempting to correct mischaracterizations by Plaintiffs.[22] He stated: “Defendant's counsel can possibly be faulted for a lack of clarity, but not for a lack of candor.”[23]

         Judge O'Hara was not persuaded by Defendant's explanation. As to the first problematic statement, Judge O'Hara observed that the text of the proposed draft amendment in fact would amend the type of information required by the states to assess voter registration applicants' eligibility. As to the second example, Judge O'Hara found that it “gives the strong impression that neither of the two at-issue documents relate to proposals by defendant to amend the NVRA's eligibility-assessment provisions. Upon in camera review of the documents, the undersigned learned this is clearly not the case.”[24] Judge O'Hara would not go so far as to say Defendant “flat-out lied in representing the content of the disputed documents, ” but did find that his justifications for these statements were based on “thinly parsing the wording plaintiffs allegedly used.” He found that “it would have been obvious to any reasonable attorney” that the document request would encompass the documents at issue.

         In his motion for reconsideration, and now in his motion for review, Defendant asserts that his “lack of clarity” in the response to the motion to compel does not rise to the level of sanctionable conduct, and provides a new explanation for this lack of clarity: last-minute editing mistakes. Defendant did not mention editing, page-limitations, or issues with deadlines in his thirty-three page response brief to the motion for sanctions, so his assertion that this is an “expanded explanation” is not well taken. This basis for Defendant's objection is thus waived.

         Even if not waived, the Court does not find that Judge O'Hara committed clear error in imposing a $1000 fine on Defendant for misleading the court. An inherent-power sanction may be appropriate where a party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.”[25] In imposing such sanctions, the court must exercise caution, and comply with due process requirements.[26] Defendant argues that he should not be sanctioned for “an honest mistake, ” that he claims was not intentionally misleading. But Judge O'Hara carefully explained the basis for his finding that Defendant's statements were not merely honest mistakes, but effectively misled the Court about the contents of the documents at issue on the motion to compel-documents that had not yet been submitted to him for in camera review at the time Defendant submitted his brief.[27] Judge O'Hara's finding that Defendant's misstatements are not adequately explained by his assertion that he was merely attempting to correct Plaintiffs' mischaracterizations and did so unclearly, is not clearly erroneous. Judge O'Hara carefully compared the statements, in context, with the documents at issue, and concluded that they were misleading.

         Furthermore, Judge O'Hara's decision on reconsideration was not clearly erroneous. Defendant's insistence that he merely provided an “expanded explanation” for his misleading statements does not persuade the Court that Judge O'Hara erred in declining to consider them. Defendant's original explanation for his misstatements did not mention the editing process. In his thirty-three-page response to the motion for sanctions, he took the position that he was merely responding to Plaintiffs' mischaracterizations. To be sure, he claimed that his statements were not intentional ...

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