United States District Court, D. Maine
ORDER ON CONSOLIDATED MOTION FOR SANCTIONS
JOHN A. WOODCOCK, Jr., District Judge.
For years, Michael Geilenfeld has run organizations in Haiti dedicated to helping disadvantaged Haitian children, and Hearts with Haiti is an organization dedicated to supporting those organizations. Paul Kendrick has become utterly convinced that Mr. Geilenfeld is using these organizations to sexually abuse children and he has broadcast his belief to countless people in an effort to force Mr. Geilenfeld to stop sexually abusing children. Mr. Geilenfeld and Hearts with Haiti have emphatically denied Mr. Kendrick's charges and they have sued Mr. Kendrick to vindicate their reputations and to force Mr. Kendrick to stop repeating his allegations. Recognizing the case entails sensitive information requiring confidentiality during the discovery phase, the Court issued confidentiality orders that prohibit the parties from disseminating information garnered during the discovery process. Charging that Mr. Kendrick violated some of those confidentiality orders, Mr. Geilenfeld and Hearts with Haiti come to the Court to demand sanctions. The Court finds that Mr. Kendrick has in fact violated some of the Court orders, and the Court sanctions him in the amount of attorney's fees and costs that Plaintiffs' counsel incurred in bringing the successful part of the sanctions motion.
A. Hearts with Haiti and Michael Geilenfeld
Hearts with Haiti is a nonprofit corporation with a mission to provide support to disabled and disadvantaged Haitian children. Compl. at 1 (ECF No. 1). Michael Geilenfeld, a resident of Petion-Ville Commune, Port-au-Prince Arrondissement, Republic of Haiti, is the founder and Executive Director of St. Joseph Family of Haiti. Id. ¶ 2. Mr. Geilenfeld has been involved with a number of organizations, including St. Joseph Family of Haiti, St. Joseph's Home for Boys, Resurrection Dance Theater of Haiti, Wings of Hope, Trinity House, and LekOl Sen Trinite, all of which assist with Haitian children in different ways. Id. ¶¶ 7-39. Hearts with Haiti was established in 2001 to support these organizations. Id. ¶¶ 40-42.
B. Paul Kendrick
Paul Kendrick is a resident of Freeport, Maine. Id. ¶ 3. In 2011, Mr. Kendrick became aware of allegations that Mr. Geilenfeld was abusing Haitian children and, firmly believing the allegations to be true, he emailed and published statements that warned about Mr. Geilenfeld's abuse of children to numerous third parties, including benefactors of Hearts with Haiti. Id. ¶¶ 47-67. On or about January 9, 2012, he gave a radio interview in which he repeated these allegations. Id. ¶¶ 69-73.
C. The Hearts with Haiti Lawsuit
Mr. Geilenfeld has steadfastly denied the allegations of his abuse of Haitian children and on February 6, 2013, he and Hearts with Haiti filed suit in this Court against Mr. Kendrick, alleging that he had defamed them, had placed them in a false light, and had tortiously interfered with advantageous business relations, and they sought damages and an injunction against Mr. Kendrick. Id. at 1-20. On March 8, 2013, Mr. Kendrick answered the Complaint, admitting some and denying other allegations, and asserting, among other affirmative defenses, the affirmative defense of truth or lack of falsity. Defenses and Ans. (ECF No. 8).
D. The April 19, 2013 Confidentiality Order
On April 16, 2013, Mr. Kendrick moved the Court to issue a consented-to confidentiality order. Mot. for Confidentiality Order (ECF No. 14) ( Confidentiality Mot. ). In his motion, Mr. Kendrick mentioned that the dispute involved "allegations of child sexual abuse" and he "anticipated that the identity of alleged victims and witnesses will be the subject of extensive discovery." Id. at 1. Furthermore, he noted that "financial and proprietary information will be disclosed and produced in the course of the lawsuit." Id. Mr. Kendrick proposed a confidentiality order, using the Court's Form Confidentiality Order with certain amendments. Id. at 1-2. On April 19, 2013, the Magistrate Judge signed the Consent Confidentiality Order, which consisted of eleven pages of detailed confidentiality provisions. Consent Confidentiality Order (ECF No. 16).
E. The August 12, 2013 Motion, Mr. Kendrick's Response, and the October 21, 2013 Amended Order
On August 12, 2013, the Plaintiffs moved to amend the confidentiality order on the ground that, even after the filing of the lawsuit, Mr. Kendrick had continued to publish misconduct allegations against the Plaintiffs, against people that he thought were aligned with the Plaintiffs, including benefactors of the Plaintiffs. Pls.' Mot. to Retain Confidential Designations and to Amend the Confidentiality Order (ECF No. 65). The Plaintiffs claimed that Mr. Kendrick was inappropriately using information that they had produced during discovery to "further bully, harass, intimidate, annoy, embarrass, and oppress them and their benefactors." Id. at 1. Mr. Kendrick objected to what he contended was the Plaintiffs' over-inclusive use of confidentiality and argued that they had failed to demonstrate that he had breached the confidentiality order. Def.'s Opp'n to Pls.' "Mot. to Retain Confidential Designations and to Amend the Confidentiality Order" (ECF No. 71).
During this same time, on July 8, 2013, Mr. Kendrick moved to ensure that certain documents that disclosed the identities of victims of sexual abuse remain confidential. Def.'s Mot. to Retain Classified Designation of Certain Docs. (ECF No. 49). On July 29, 2013, the Plaintiffs filed an opposition to Mr. Kendrick's motion. Pls.' Resp. in Opp'n to Def.'s Mot. to Retain Classified Designation of Certain Docs. (ECF No. 60).
On October 21, 2013, the Magistrate Judge issued a decision granting in part and denying in part the Plaintiffs' motion. Mem. Decision on Mots. to Retain Classified Designation (ECF No. 81) ( Am. Confidentiality Order ). In pertinent part, the Magistrate Judge observed:
If the defendant in fact is engaging in the very activity that is the subject of the plaintiffs' claims against him and if he is doing so or is likely to do so using the information that the plaintiffs have provided in discovery, good cause for specifically limiting the defendant's use of discovery material in fact exists.
Id. at 5. In order to prevent abuse of discovery, the Magistrate Judge amended the Confidentiality Order to include the following provision:
15. Use of Discovery. This order forbids the use or disclosure of discovery information by the parties, counsel for the parties, or their experts, for any purpose whatsoever other than to prepare for and present at trial in the above-captioned matter, including any appeal thereof. Information obtained through discovery shall not be used for any publications purposes or disseminated to anyone other than counsel for the parties, the parties-and in the case of the corporate party, a single representative-or their experts.
Id. at 6-7. The Magistrate Judge declined, however, to prohibit defense counsel from providing Mr. Kendrick access to the discovery material because, as he noted, the "ability of the defendant and his counsel to consult during trial preparation is an important concern." Id. at 7. But the Magistrate Judge emphasized:
If and when the plaintiffs present this court with evidence that the defendant has violated the amended confidentiality order, the court will consider imposing a counsel's-eyes-only limitation on any specified documents from the information provided in the plaintiffs' responses to the defendant's discovery requests. Ultimately, of course, violations of this court's orders can lead to a finding of contempt of court.
F. Plaintiffs' First Motion for Sanctions and Order
On December 13, 2013, the Plaintiffs moved for sanctions against Mr. Kendrick. Pls.' Mot. for Sanctions Against Def. for Violation of the Ct.'s Orders (ECF No. 99). The Plaintiffs claimed that Mr. Kendrick disseminated their sealed discovery responses "in furtherance of his campaign to malign Plaintiffs." Id. at 1. On January 3, 2014, Mr. Kendrick filed an opposition to the motion on the ground that the released documents were publicly available on the Court's PACER system. Def.'s Objection to Pls.' Mot. for Sanctions (ECF No. 106).
On March 20, 2014, the Magistrate Judge issued a decision granting the Plaintiffs' motion for sanctions. Mem. Decision on Mot. for Sanctions (ECF No. 144) ( Sanctions Order ). The Magistrate Judge rejected Mr. Kendrick's contention that it was his understanding that the documents were not confidential because they were made available to the public through the Court's PACER system. Id. at 2. The Magistrate Judge observed that the documents themselves had been marked confidential and a motion to seal the documents had been filed with the Court and the Court had granted the motion prior to Mr. Kendrick's publication. Id. The Magistrate Judge found that Mr. Kendrick knew the document had been erroneously placed on PACER. Id. at 2-3. The Magistrate Judge expanded the confidentiality order to include a "counsel's eyes only" provision and he imposed a $1, 000.00 fine against Mr. Kendrick. Id. at 4.
G. Plaintiffs' Second Motion for Sanctions: February 12, 2014
On February 12, 2014, the Plaintiffs filed a second motion for sanctions. Pls.' Mot. to Seal Second Mot. for Contempt and Sanctions Against Def. for Repeated Violation of the Ct.'s Orders Attach. 1 Pls.' Second Mot. for Contempt and Sanctions Against Def. for Repeated Violation of the Ct.'s Orders (ECF No. 128) ( Pls.' Second Mot. ). They claimed that Mr. Kendrick "used separate violations of the confidentiality provisions in order to harass witnesses noticed on Plaintiffs' side, including by bombarding third-party employer representatives of the witness with accusatory emails...." Id. at 1-2. Specifically, they alleged that Mr. Kendrick had harassed, intimidated and bullied a key witness, Jessica Reitz, "by attacking her reputation at her employer, the United States Agency for International Development (USAID)." Id. at 12.
They also asserted that Mr. Kendrick misused his presence in the deposition room by disseminating and widely publicizing "confidential deposition testimony to harass, distract, and disadvantage Plaintiffs and their counsel's preparation for and presentation at the depositions." Id. Specifically, they alleged that Mr. Kendrick published confidential deposition testimony from Jean Viard,  one of the alleged victims, on a blog called "reseaucitadelle.blogspot.com, " which they maintain was the blog of both Mr. Kendrick and a man named Cyrus Sibert. Id.
On March 27, 2014, Mr. Kendrick responded to the second motion for sanctions. Def.'s Mot. to Seal Def.'s Unredacted Opp'n to Pls.' Second Mot. for Sanctions and Two Exs. Attach. 1 Def.'s Unredacted Opp'n to Pls.' Second Mot. for Contempt and Sanctions Against Def. (ECF No. 160). Mr. Kendrick denied having control over Reseaucitadelle.blogspot.com, which he said is Mr. Sibert's blog. Id. at 5. As regards the Plaintiffs' contentions about Ms. Reitz, Mr. Kendrick responded that his actions were based on his "good faith belief that" Ms. Reitz, as a USAID employee, was interfering "with an investigation into allegations of child abuse." Id. at 6-7.
On March 31, 2014, the Plaintiffs contended that Mr. Kendrick admitted at his deposition that he consciously violated the Court's Confidentiality Orders and that he sought to destroy Ms. Reitz's "livelihood and employment at USAID by repeatedly, as many as thirty times per day, disseminating protected discovery information to her colleagues, superiors, and other third parties." Pls.' Reply in Support of Their Second Mot. for Contempt and Sanctions Against Def. for Repeated Violation of the Ct.'s Orders at 2 (ECF No. 164) (emphasis in original). They also claimed that Mr. Kendrick's attempts to distance himself from Cyrus Sibert's website are "disingenuous and misleading." Id. at 3.
H. Plaintiffs' Third Motion for Sanctions: March 19, 2014
On March 19, 2014, the Plaintiffs moved a third time for sanctions against Mr. Kendrick. Pls.' Third Mot. for Contempt and Sanctions Against Def. for Repeated Violation of the Ct.'s Orders (ECF No. 141) ( Pls.' Third Mot. ). In this motion, the Plaintiffs alleged that in continued violation of the Court's confidentiality orders, Mr. Kendrick mass emailed excerpts of an investigative report prepared by Attorney Rosario Rizzo and Investigator Edward Clark (Rizzo Report). Id. at 1-2. They say the report was designated confidential pursuant to the Amended Confidentiality Order and after Mr. Kendrick's attorney inadvertently disclosed it, Mr. Kendrick mass emailed the information to "hundreds of third-party recipients in an effort to further defame and harass Plaintiffs and their supporters." Id. at 2. They also asserted that Mr. Kendrick used discovery information to destroy Jessica Reitz's livelihood. Id. at 2-3.
On April 9, 2014, Mr. Kendrick filed his response to the Plaintiffs' third sanctions motion. Def.'s Mot. to Seal Def.'s Unredacted Opp'n to Pls.' Third Mot. for Sanctions Attach. 1 Def.'s Unredacted Opp'n to Pls.' Third Mot. for Contempt and Sanctions Against Def. (ECF No. 169). Mr. Kendrick asserted that the Plaintiffs have offered "no evidence in support of [their] argument" that Mr. Kendrick violated the confidentiality provisions of the Orders. Id. at 1. Mr. Kendrick explained that once he obtained information that a former board member described an "encounter... with one... guest who discussed the North American Man Boy Love Association" at one of the Haitian orphanages run by Mr. Geilenfeld, he was motivated to release that information. Id. at 2. Regarding Jessica Reitz, Mr. Kendrick once again stated that his actions were based on the "good faith belief that a government employee, who is not a party to this lawsuit, used her position to obtain information about a governmental investigation and then shared that information with the target of that investigation." Id. at 1-2.
On April 14, 2014, the Plaintiffs filed a reply to Mr. Kendrick's response, reiterating their earlier arguments. Pls.' Reply in Support of Their Third Mot. for Contempt and Sanctions Against Def. for Repeated Violation of the Ct.'s Orders (ECF No. 178).
I. Plaintiffs' Fourth Motion for Sanctions: July 3, 2014
On July 3, 2014, the Plaintiffs filed a fourth motion for sanctions. Pls.' Fourth Mot. for Contempt and Sanctions Against Def. for Additional Violations of the Ct.'s Orders (ECF No. 220) ( Pls.' Fourth Mot. ). In this motion, the Plaintiffs allege that on June 18, 2014, "excerpts of confidential discovery deposition transcripts were erroneously filed on the" Court docket without seal and that when the error was discovered, defense counsel quickly moved to correct the error. Id. at 2-3. However, the Plaintiffs claimed that when Mr. Kendrick came upon the deposition excerpts, he "immediately and repeatedly mass e-mailed excerpts of these transcripts to hundreds of Plaintiffs' benefactors to harass, intimidate, and malign Plaintiffs' benefactors and further interfere with Plaintiffs' advantageous relationships with them." Id. at 3. They also asserted that he placed these transcripts on his website. Id.
On July 23, 2014, Mr. Kendrick responded. Def.'s Objection to "Pls.' Fourth Mot. for Contempt and Sanctions Against Def. for Additional Violations of the Ct.'s Orders" (ECF No. 223). Mr. Kendrick insisted that he "did nothing unlawful or unethical when he re-published already publicly filed redacted material, following the lead of the Plaintiffs and after the Court had already permitted the filing." Id. at 1-2. Mr. Kendrick explained that the subject of the fourth motion was excerpts from the depositions of two Haitian victims, neither of whom requested confidentiality. Id. at 2. Mr. Kendrick asserted that the Plaintiffs violated the confidentiality order by designating as confidential both depositions even though such a designation required good cause. Id. He also pointed out that on May 2, 2014, he had objected to the Plaintiffs' confidentiality designations and on June 4, 2014, the Plaintiffs themselves had made public excerpts from one of the depositions. Id. at 3-4. Furthermore, Mr. Kendrick maintained that defense counsel had not "erroneously" filed excerpts of one of the depositions; instead, he said that defense counsel was merely following the Plaintiffs' lawyers' filing practices. Id. at 6-7. He also accused the Plaintiffs of selective filing of excerpts that favor their side of the controversy but objecting to excerpts that are unfavorable. Id. at 8.
The Plaintiffs filed their reply on August 6, 2014. Pls.' Reply in Support of Their Fourth Mot. for Contempt and Sanctions Against Def. (ECF No. 225). They asserted that Mr. Kendrick "concedes that he repeatedly mass e-mailed protected discovery information in violation of the provisions of the Court's amended Order which restricts dissemination of discovery only to use in case preparation and trial" and that "[h]e offers no explanation or excuse for the violations." Id. at 1. They contended that in one of his emails in which he discussed the Plaintiffs' fourth motion for sanctions, he wrote: "Blah, blah, blah... more smoke and mirrors." Id. The Plaintiffs argued that if Mr. Kendrick had wished to challenge their confidentiality designations, he should have come to Court, rather than ignore the designation. Id. at 1-2.
J. The September 12, 2014 Dismissal
In September 2014, it appeared that this bitter dispute was heading to trial. The Court placed the matter on a trial list for October 7, 2014, the parties filed pretrial memoranda, and the Magistrate Judge held a final pretrial conference on September 12, 2014. See Trial List (ECF No. 231); Def.'s Pretrial Mem. Pursuant to Local Rule 16.4 (ECF No. 234); Pls.' Final Pretrial Mem. (ECF No. 235); Report of Final Pretrial Conf. and Order (ECF No. 246). As it appeared that the sanctions motions would be eclipsed by trial, the Magistrate Judge dismissed the pending motions without prejudice. Order on Mots. for Sanctions (ECF No. 241).
K. Michael Geilenfeld is Arrested and Imprisoned in Haiti
On September 23, 2014, counsel for the Plaintiffs informed the Court that Haitian authorities had arrested Mr. Geilenfeld in Haiti and he was in prison. Oral Mot. to Continue (ECF No. 260). This news caused the trial scheduled to begin October 7, 2014 to be continued. Oral Order Granting Mot. to Continue Trial for 90 Days (ECF No. 261).
L. The September 26, 2014 Consolidated Motion
The continuance revived the earlier-filed sanctions motions and, in order to expedite the resolution of those motions and to narrow the areas of contention, the parties agreed to file a consolidated motion, setting forth the principle arguments of both sides. The consolidated pleading was filed on September 26, 2014. Pls.' Consolidated Second, Third, and Fourth Mots. for Sanctions and Findings of Contempt Against Def. (ECF No. 266) ( Pls.' Consolidated Mot. ). After some discussion, Mr. Kendrick through counsel informed the Court that he wished to ...