United States District Court, D. Nevada
VALERIE P. COOKE, Magistrate Judge.
Before the court is the motion of defendant, Otis Elevator Company ("Otis"), to show cause why Stephen Carr ("Dr. Carr") should not be held in contempt of court (#52). On February 4, 2014, this court issued an order and concluded that the alleged misconduct of Dr. Carr does not warrant criminal contempt and construed the motion for order to show cause as a motion under LR IA 4-1 (#80). The also court set a briefing schedule for the parties to file supplemental points and authorities, and Dr. Carr opposed (#81) and Otis replied (#s 82 & 83). This order follows.
I. History and Procedure
The underlying action in this case is for personal injury damages that plaintiff, Jayna Carter ("plaintiff") alleges she sustained while a guest at Circus Circus Hotel in January 2010 (#1). Plaintiff alleges that while riding in the hotel elevator, it came to an abrupt halt, and she remained in the elevator for about thirty minutes before being evacuated. Plaintiff sued the hotel and Otis for negligence and related claims as a result of this incident.
Plaintiff's counsel retained Dr. Carr as an expert witness concerning the elevator incident. The parties entered into a stipulated confidentiality agreement, which the court approved (#25). The confidentiality agreement acknowledged that expert witnesses for the parties would likely be required to review confidential documents, and there are two specific provisions relevant here:
7. Each expert, agent, consultant, or other represent-tative who is permitted by any attorney for the parties to view, examine, scan or otherwise inspect the documents subject to this confidentiality agreement shall agree in writing to be bound by this agreement. A copy of this confidentiality agreement shall also be delivered to each of the above-listed persons by the attorneys for the parties.
9. All documents produced subject to this confidentiality agreement, and any copies, lists or summaries thereof, shall be returned within thirty days after trial and/or other final resolution of the above-entitled action to the party who produced the documents, unless such documents or other items cannot be returned as a result of the party's introduction of such documents or items as evidence at trial, or unless such documents or items are otherwise unavailable for return.
(#25) (emphasis in the original).
On December 19, 2012, Dr. Carr received confidential documents from Otis, and he signed an affidavit by which he agreed to be bound by the terms of the parties' confidentiality order. Dr. Carr attested that "upon the resolution of this case, I herewith agree to return to Joseph Benson, Esq. copies of all confidential documentation previously provided including any copies, list, or summaries thereof. I specifically agree not to shred and/or dispose of any such confidential documents" (#53-2, Ex. 2; Aff. of Dr. Carr).
The parties successfully settled the case on April 24, 2013, and the court ordered that the confidential materials exchanged be returned to Otis's counsel not later than May 24, 2013 (#53, Hamilton Aff., para 6). Dr. Carr then sent a letter to Mr. Benson and Otis's counsel, Mr. Hamilton, dated May 6, 2012, in which Dr. Carr enclosed a REM printout from the case, as well as his affirmation that he kept no copies (#53-3, Ex. 3). Mr. Hamilton then wrote to Mr. Benson and acknowledged receipt of copies of the REM data, but also requested the return of other confidential data identified in the letter (#53-3. Ex. 4). In response, Dr. Carr sent the following email to all counsel on May 18, 2013:
On 3 May 2013 I mailed the only physical copy of the REM data that I had been given along with a statement affirming that I had kept no copies. A copy of this statement is attached.
There were no other materials worthy of anything more than a trip to the trash can and everything else was discarded weeks ago.
(#53-5, Ex. 5).
Dr. Carr was also retained as an expert witness against Otis in a 2011 state court case filed in Washoe County District Court, Joseph and Rosemary Bria v. Zante, Inc. dba Sands Regency Hotel Casino; Herbst Gaming, Inc., and Otis Elevator Co., Case No. CV11-00800 (#53, para. 10). Mr. Hamilton also served as counsel for Otis in the state court action, and the state court approved the identical confidentiality agreement, which required expert witnesses to return confidential documents within thirty days of resolution of the case (#53-6, Ex. 6). Dr. Carr did not abide by the confidentiality agreement and instead signed an affidavit re: disposal of confidential information and attested as follows:
4. That on or about August 20, 2012, I was informed that this matter had been resolved and the confidential information previously provided would not be needed for further use; and thereupon, I shredded and/or disposed of all said ...