Remove the Muzzle and Give Rule 37(b) Teeth: Advocating for the Imposition of Sanctions for Rule 26(c) Protective Order Violations in the Eleventh Circuit

Publication year2015

Remove the Muzzle and Give Rule 37(b) Teeth: Advocating for the Imposition of Sanctions for Rule 26(c) Protective Order Violations in the Eleventh Circuit

Amber M. Bishop

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Amber M. Bishop*


Rule 1 of the Federal Rules of Civil Procedure (Federal Rules) indicates that all the federal rules should be interpreted and administered to secure—as much as is feasible—a "just, speedy, and inexpensive determination [in] every action" before the court.1 Dockets have become increasingly crowded2 while discovery has simultaneously become progressively more expensive, time-consuming, and litigious.3 In an attempt to streamline the discovery process,4 ease the litigating parties' financial burden, and prevent disclosure of potentially embarrassing or financially damaging information, courts turn to protective orders.5

Federal courts have the ability to issue 26(c) protective orders—orders to prevent, prohibit, or limit disclosure or discovery—to protect a party from "annoyance, embarrassment, oppression, or undue burden or expense."6 Since the 1980s, judges have taken a

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much harsher view of sanctions for discovery violations.7 There is much justification for this tough stance on court-order violations: for instance, violations of protective discovery orders can result in the dissemination of confidential information,8 trade secrets, or both, to competitors,9 the public,10 and even potential jurors.11 In response to the very real possibility of financial and business harm, courts often turn to their power to sanction non-compliant parties for violating protective orders to punish and deter such behavior.12 "When parties . . . engage in bad faith conduct, [the] court should . . . rely on the Federal Rules as the basis for sanctions" where possible.13 Rule 37(b)(2) of the Federal Rules of Civil Procedure lists some possible sanctions the court may order if a party fails to obey a discovery order.14

Rule 37(b) "authorizes sanctions for failure to comply with discovery orders."15 There exists, however, a decided lack of consistency within the courts as to whether Rule 37(b) sanctions for violation of discovery orders apply to Rule 26(c) protective orders.16

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The Eleventh Circuit Court of Appeals interprets Rule 37(b)(2) very narrowly and precludes its application to protective order violations;17 other courts interpret the rule much more broadly.18 In jurisdictions where Rule 37 does not apply to protective orders, courts must deter and punish pursuant to other sources of authority.19 These other sources of power potentially limit judges in their punishments.20

Sanctions pursuant to both the court's inherent authority and 28 U.S.C. § 1927 (§ 1927) require detailed findings of bad faith.21 Rule 37(b), on the other hand, requires neither bad faith nor willfulness.22 Because of these very different standards, protective order violations not committed in bad faith may go unpunished in those jurisdictions that do not apply Rule 37(b) to protective order violations.23 This Note proposes that the Eleventh Circuit broaden its narrow

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interpretation of Rule 37(b) to permit Rules-based sanctions of parties who violate protective discovery orders.24

In support of this position, this Note explores the implications of inconsistent sanctions for Rule 26(c) protective order violations.25 Part I examines the court's authority to sanction for court-order violations and that authority's applicability to discovery-order violations.26 Part II discusses discovery protective orders, their purpose, and the consequences of a violation.27 Part III provides an aerial view of Rules 37(b) and 26(c), discussing judicial decisions involving sanctions for protective order violations as they relate to sources of sanction authority.28 Part IV encourages the Eleventh Circuit to impose sanctions for protective order violations using Rule 37(b) in an effort to provide certainty, consistency, and protection for parties before the court.29


During the course of civil litigation in federal courts, certain conduct or behavior may result in sanctions, which serve to provide deterrence and punishment as authorized by the Federal Rules,

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federal statutes, and the inherent authority of the court.30 Litigators use a vast arsenal of tools and strategies, but discovery is the "most often used procedural tool in the kit of the federal court practitioner."31 Discovery violations occur frequently and vary in severity, as do the resulting sanctions.32 When discovery violations or failures occur, "a district court has broad discretion to withhold or impose sanctions, and, where sanctions are imposed, to determine what [those sanctions] will be."33 The authority to impose sanctions for violating court orders is specifically provided for within the Federal Rules, federal statutes, and the inherent authority of the court.34

Without question, the imposition of sanctions falls squarely in the vast realm of judicial discretion.35 When the court entertains motions for sanctions made pursuant to the Federal Rules, as opposed to the court's inherent power or § 1927,36 the court's interpretation of the

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pertinent rule dictates success or failure.37 Courts are free to rely upon statutory or inherent authority to determine the appropriate sanction for behaviors or sanctions not specifically enumerated in the Federal Rules.38 The United States Supreme Court noted that "the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct,"39 but "[i]n situations where procedural rules [do] prescribe specific sanctions for discovery infractions, reliance on a court's 'inherent power' . . . has been criticized."40 In spite of this criticism, the Eleventh Circuit has affirmed simultaneous sanctions pursuant to § 1927, the Federal Rules, and inherent authority for violations of other types of discovery order violations; yet it finds that Rule 37 does not apply to protective order violations: The Eleventh Circuit therefore imposes sanctions for protective order violations pursuant only to inherent authority.41

Rule 37(b)(2)(C) provides for the payment of reasonable expenses "[i]nstead of or in addition to the orders above, . . . caused by the failure [to comply with discovery orders], unless the failure was substantially justified or other circumstances make an award of

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expenses unjust."42 The Eleventh Circuit has said Rule 37(b)(2)(C) "gives district judges broad discretion . . . guided by judicial interpretation of the rule."43 Is Rule 37(b) truly silent concerning an appropriate remedy for protective order violations, such that judicial reliance upon inherent authority or statutory permission is necessary and appropriate? The answer depends upon the individual court's interpretation of Federal Rule 37(b) and subsequently, the answer to two additional questions: (1) does a protective order "provide or permit" discovery; and (2) does "fail[ing] to obey an order" require willfulness or bad faith?44

A. Breeds of Sanctions: Sources of Authority Not Based in the Federal Rules

Any noncompliance with a court order can be grounds for some form of sanction and although the court has several available sanctioning mechanisms, key differences affect the viability and desirability of each method.45

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1. 28 U.S.C. § 1927

Violation of a court order may result in sanctions pursuant to federal statute—§ 1927.46 The code section provides that "[a]ny attorney . . . in any court of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney's fees reasonably incurred because of such conduct."47 The Eleventh Circuit finds that the statute's "plain language . . . imposes three essential requirements: (1) the attorney must engage in unreasonable and vexatious conduct;48 (2) that conduct must multiply the proceedings; and (3) the amount of the sanction must bear a 'financial nexus to the excess proceedings.'"49

Discovery violations and the resulting motions have the potential to significantly multiply proceedings,50 and thus it seems that § 1927

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could apply.51 Protective orders, when realistically drafted and subsequently followed, "save countless hours of judicial time and substantial litigation costs."52 Litigating violations of these same protective orders wastes judicial resources and increases litigation costs, yet § 1927 has not been applied to protective order violations.53 Section 1927 is further limited in that parties, even pro se parties, cannot be sanctioned under § 1927.54 The statute is singularly applicable to attorneys, leaving willful or vexatious conduct of the parties unpunished.55

Additionally, because § 1927 sanctions are "penal in nature,"56 the statute must be "strictly construed" and detailed findings of bad faith conduct are necessary.57 The first element—unreasonable and vexatious conduct—is a high standard, one that often requires a detailed showing of bad faith.58 Section 1927 is further limited in that the only available sanctions are monetary: the court may award costs, expenses, and attorney's fees.59 On the other hand, sanctions pursuant

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to the Federal Rules or the court's inherent authority provide the courts more of the necessary flexibility and are undoubtedly applicable to the violation of protective court orders.60

2. Inherent Power

Judicial power to sanction pursuant to inherent authority is the "quintessential gap filler," permitting sanctions when no rule or statute governs the precise violative conduct or when a court wishes to exceed the penalties provided for by the rule or statute.61...

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