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Hernandez v. City of Vancouver

United States District Court, W.D. Washington, Tacoma

May 11, 2017


          ORDER DKT. #563

          Ronald B. Leighton United States District Judge

         THIS MATTER is before the Court on remand from the Ninth Circuit Court of Appeals [Dkt. #563]. The Court reconsiders whether to impose sanctions on Plaintiff Hernandez's attorney, Thomas Boothe, for intimidating Debra Quinn, an assistant city attorney for Defendant City of Vancouver and a witness in the underlying case. The Court has already found Quinn's account of Boothe's intimidation effort credible (and Boothe's explanation not), and it will not revisit that finding now, five years later. It will instead focus-as directed by the Ninth Circuit- on (1) whether Boothe's actions amounted to witness intimidation, (2) and if so, whether to impose sanctions.

         I. DISCUSSION

         In 2002, Hernandez complained his Vancouver Fire Shop coworkers were discriminating against him. He filed a complaint with the Equal Employment Opportunity Commission. Quinn prepared the City's response. The Commission entered a probable cause finding, and in 2004, Hernandez sued the City of Vancouver and his supervisor for employment discrimination. Quinn waived service and answered for both defendants. Outside counsel then took control of the case, although Quinn's name remained in CM/ECF as an attorney of record. Lead counsel changed hands a couple more times, but ultimately, Robert Christie served as Defendants' lead counsel.

         Quinn was not Defendants' attorney or advocate but a witness and client-representative for the City. Boothe was fully aware of this-he deposed Quinn in April 2006. See Dkt. #578 (Vancouver Brief) at Ex. 1 (Quinn Dep.). He asked about matters an attorney engaged to defend the case would have claimed was work product: her perception of Hernandez during the EEOC process, her involvement in investigating his allegations, her communications with his former counsel, and how she interacted with Human Resources during the investigation. See id.

         Boothe stopped serving the City Attorney's office, serving only Christie Law Group, by January 2011. Defendants identified Quinn as a potential witness in May 2012. Boothe did not object. He prepared his cross-examination of her. See Dkt. #504, Ex. 4 (Boothe's billing records) at 7. At that time, the City's counsel also reminded Boothe he did not have permission to contact Quinn outside of their presence. Boothe's paralegal updated his “Debra Quinn witness outline” on June 7, a few days before the start of trial. See id. at 28.

         At the start of voir dire, the Court identified Quinn as a potential witness. She was introduced as the City's client representative, not its attorney. She sat at defendants' table in that role. Quinn did not participate as an attorney in any aspect of the trial; indeed, the transcripts reveal she never spoke a word in the jury's presence: She did not introduce herself, conduct voir dire, give an opening statement, or examine a witness. She did not argue to the Court.

         On the second day of trial, Boothe stopped Quinn as she was walking into the courtroom after lunch. Alone in the hallway, without City counsel present, he informed Quinn her estranged husband had called him nine months before to inquire whether she and Boothe were having relations, and that he knew the City had held a confidential mock trial. Boothe also told her he knew, from a rumor circulating around the City, she was having an extramarital relationship with the former city manager. Quinn entered the courtroom, and Boothe followed. He said, “I just wanted you to know that before you testify next week.” Dkt. #305 (Contempt Hearing Transcript) (emphasis added).

         Quinn reported Boothe's statements to counsel, and prepared a letter to the Court detailing Boothe's conversation with her. The same morning, the Court received notes from two jurors expressing concern that Boothe was coaching his witnesses:

THE COURT: Please be seated. I have received a couple questions from the jury, or comments.
"Juror No. 5: I notice the prosecuting attorney shaking his head yes or no while looking at the witness during cross-examination. Not sure if it's just in anticipation of knowing the witness or 'signaling' answers to the question."
"Juror No. 4 (Heather Smith): Yesterday during Sue Collins and Arnold's time on the witness stand, the prosecuting attorney, Mr. Boothe, would be sitting while Bob was cross-examining and while everyone's attention was on the witness, he would shake his head yes or no violently and lip yes or no over and over again while making eye contact with the witness, directly after Bob asked his question. On both occasions, the witness answered exactly as the prosecuting attorney had scripted."
Those are the two letters. And then more importantly is a letter I received from Debra Quinn this morning. You better read it, Mr. Boothe.

Dkt. #278 (Mistrial Transcript).

         The Court heard from Boothe and Christie, and declared a mistrial on June 14, 2012.[1] It reasoned Boothe's actions towards Quinn and towards his witnesses had tainted the judicial process adversely:

THE COURT: Please be seated. Ladies and gentlemen, I have, with regret, declared a mistrial, and I want to explain in part why and to say that I am appreciative of the jurors who asked questions and made comments about what they were seeing; and the effect on the trial was noted, ...

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