United States District Court, District of Columbia
Colleen Kollar-Kotelly, United States District Judge.
Colonial Parking, Inc.'s (“Colonial”) 
Emergency Motion to Seal and for Sanctions remains pending
only as to sanctions. Upon consideration of the briefing,
relevant legal authorities, and the record as a whole, the
Court shall GRANT the outstanding sanctions
portion of Colonial's  Emergency Motion to Seal and
for Sanctions. Plaintiffs' counsel, Edward Scallet, is
responsible for paying Colonial's reasonable
attorney's fees and costs for preparing its Emergency
Motion to Seal and for Sanctions, as well as Colonial's
reply brief in support thereof.
briefing of Plaintiffs'  Motion to Amend to Their
Complaint, Plaintiffs submitted a reply attaching exhibits
consisting of two expert reports produced by Defendant
Colonial and one produced by Defendant FCE Benefits
Administrators, Inc. (“FCE”). See
Pls.' Reply in Supp. of Their Mot. to Amend Compl., ECF
No. 72, at 4-5 & n.1. Plaintiffs cited these reports
purportedly to show that Defendants were on notice-during
discovery-of Plaintiffs' new claims contained in the
proposed Amended Complaint. See Id. at 4-5.
public filing drew Defendants' immediate objections based
on the parties'  Stipulated Confidentiality Agreement
and Protective Order (“Protective Order”), which
had been agreed to by Plaintiffs' counsel, including Mr.
Scallet. The cover page and most of the pages within each of
the three expert reports were marked as confidential or
containing confidential information. Nevertheless, Plaintiffs
had filed these reports on the public docket without
conferring beforehand with Defendants, without obtaining a
court order, and without filing an accompanying motion to
Defendants' behest, Plaintiffs filed a motion to strike
the three exhibits on the grounds that Plaintiffs had
“mistakenly” posted “documents . . .
designated by defendants as confidential.” Pls.'
Mot. to Withdraw Exs., ECF No. 73. When that failed to
placate Defendants-even stricken documents are publicly
accessible-Plaintiffs moved to seal all three exhibits and
withdraw their motion to strike. Pls.' Mot. to Seal, ECF
No. 74. The Court withdrew Plaintiffs' motion to strike,
as requested, but denied their motion to seal for failure to
make the requisite showing under United States v.
Hubbard, 650 F.2d 293 (D.C. Cir. 1980). Min. Order of
Sept. 24, 2018. The Court allowed any party to move to seal
based on an appropriate showing under Hubbard.
two Defendants, only Colonial took that opportunity.
Colonial's  Emergency Motion to Seal and for
Sanctions sought to seal Colonial's two expert reports
that Plaintiffs had publicly filed. Upon considering that
motion in light of Hubbard, the Court ruled that
“Colonial ha[d] made a sufficient showing of
confidential business information” in the two reports,
each of which was “expressly designated as
‘CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER.'”
Min. Order of Sept. 27, 2018. Those reports were in turn
placed under seal. The Court expressly deferred a decision as
to Colonial's ancillary request for sanctions.
Id. Plaintiffs nevertheless submitted a response to
the pending sanctions portion of Colonial's motion, in
support of which Colonial filed a reply.
Court later issued a decision as to Plaintiffs' motion to
amend. See Mem. Op., Abraha v. Colonial Parking,
Inc., Civil Action No. 16-680 (CKK), 2019 WL 1506005
(D.D.C. Apr. 5, 2019), ECF No. 79. Although the Court granted
Plaintiffs' motion, the Court did not need to make a
finding as to whether Defendants were on notice of
Plaintiffs' new claims during discovery, because
re-opening discovery for Defendants would mitigate any
prejudice. See Mem. Op., ECF No. 79, at 7.
Accordingly, the Court did not rely upon Colonial's (or
FCE's) expert reports for either the ostensible reason
that Plaintiffs proffered them, or for any other reason.
that background, the Court can return to the outstanding
portion of Colonial's  Emergency Motion to Seal and
for Sanctions, namely the request for two types of sanctions.
First, Colonial asks the Court not to consider the expert
reports when ruling on Plaintiffs' motion to amend.
Colonial's Mem. at 7. The Court acquiesces to that
request because the Court found it unnecessary to rely on the
reports. Second, Colonial requests the sanction of
attorney's fees and costs for the trouble of filing its
presently pending motion and its reply. Id.;
Colonial's Reply at 3. For the reasons that follow, that
sanction is justified.
of the Court's inherent authority, the Court may
“fashion an appropriate sanction for conduct which
abuses the judicial process.” Goodyear Tire &
Rubber Co. v. Haeger, 137 S.Ct. 1178, 1186 (2017)
(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45
(1991)) (internal quotation marks omitted). One such abuse is
the “willful disobedience of a court order.”
Chambers, 501 U.S. at 45 (quoting Alyeska
Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S.
240, 258 (1975)) (internal quotation marks omitted). The
Court has the discretion to grant a compensatory award of
attorney's fees and costs expended by a counter-party in
response to that behavior. Id.; Goodyear Tire
& Rubber Co., 137 S.Ct. at 1186. Willful
disobedience is among the “narrowly defined
circumstances” in which the monetary sanction may be
assessed against the offending party's counsel himself.
Chambers, 501 U.S. at 45 (quoting Roadway
Express, Inc. v. Piper, 447 U.S. 752, 763-66 (1980);
citing Alyeska Pipeline Serv. Co., 421 U.S. at 258)
(internal quotation marks omitted).
reply in support of their motion to amend, and their
subsequent pleadings focused on the confidential expert
reports, have demonstrated willful disobedience of a court
order and are subject to sanction. First, Plaintiffs violated
the Protective Order. The reply brief attached expert reports
that were clearly marked as confidential. The Protective
Order established a process for any challenge to
confidentiality designations or public record use of
Without written permission from the Producing Party or a
court order secured after appropriate notice to all
interested persons, a Receiving Party may not file in the
public record in this Action any Confidential Information
received from the Producing Party without first seeking to
file it under seal. . . .
. . . A designation of confidentiality may be challenged upon
motion. . . . Pursuant to Federal Rule of Civil Procedure
26(c) . . . in the event a Party challenges another
Party's or non-Party's confidential designation,
counsel will make a good faith effort to resolve the dispute
prior to bringing a motion challenging the designation of
Discovery Materials as Confidential. . . .
Order ¶¶ 8, 11. Plaintiffs did not abide by any
aspect of that process before posting the expert reports.
Yet, Plaintiffs were clearly aware of confidentiality issues.
The very footnote in their reply brief that identifies the
expert reports in accompanying exhibits expressly observes
that one of FCE's expert reports is not included
“because FCE has designated it as
confidential.” Pls.' Reply in Supp. of Their
Mot. to Amend Compl., ECF No. 72, at 5 n.1 (emphasis added).
Plaintiffs were also aware of the appropriate procedures for
dealing with material designated as confidential, for they
indicate that “plaintiffs will file [that expert
report] and a motion to seal if the Court believes
that to be necessary.” Id. (emphasis added).
The Court does not understand why Plaintiffs posted other
reports on the open docket that are unmistakably marked
confidential. After the fact, Plaintiffs try to create a safe
harbor for their counsel's own determination that certain
documents designated by Defendants as containing Confidential
Information-as defined in the Protective Order-do not contain
Confidential Information. See Pls.' Opp'n at
7. But such an exception would eviscerate the protections
under the Protective Order. The Court granted Colonial's
motion to seal its expert reports based on the representation
and appearance that Colonial's expert reports contained
varying amounts of confidential business information.
See, e.g., Colonial's Mem. at 5. Any arguments
Plaintiffs may have had that such information was not
confidential should have been resolved with Colonial prior to
shifting the issue to the Court by Plaintiffs'
inappropriate public filing.
Plaintiffs' disobedience of the Protective Order was
willful. They indicated in their motion to strike that filing
the expert reports was a mistake. Pls.' Mot. to Withdraw
Exs., ECF No. 73. Already this representation was suspect
based on the aforementioned footnote demonstrating an
awareness of confidentiality issues with the expert reports.
But then Plaintiffs reversed course in their opposition to
Colonial's motion to seal and for sanctions. No. longer
did they represent their action as a mistake. Rather,
Plaintiffs described a calculated decision to proceed with
their own “good faith” assessment that the three
posted reports did not contain confidential information.
Pls.' Opp'n at 7 & n.3. This brazen about-face
risks running afoul of Federal Rule of Civil Procedure 11,
but because Colonial does not argue those grounds for
sanctions, the Court shall not consider Rule 11 any further.
It is enough to find that Plaintiffs have violated ...