United States District Court, D. Alaska
Russel Holland United States District Judge
for Clarification and for Sanctions 
reference to any applicable federal or local rule, plaintiff
moves for clarification of the court's order of June 4,
2018,  and for the imposition of sanctions
against defense counsel for allegedly misleading the court.
The motion is opposed. Oral argument has not been requested
and is not deemed necessary.
moved to compel defendants to answer Interrogatory No.
By Interrogatory No. 5, plaintiff sought to discover whether
or not defendants had conducted any surveillance of plaintiff
or his activities. In responding to this interrogatory,
defendants objected that any response would be subject to the
work product privilege. In their response, and although doing
so was not germane to the work product issue before the
court, defense counsel represented to the court that
“[t]o date, no surveillance photos or videos have been
taken of plaintiff[, ]” and that “[h]ere, there is
no reason to determine whether the content of any
surveillance is privileged because no surveillance currently
exists.” As explained in the court's order of
June 4, 2018,  the court concluded that the fact of
whether surveillance had been undertaken was not privileged
work product. Defendants were ordered to answer Interrogatory
No. 5 which, in due course, they did, advising that:
Yes. Surveillance of Myers was conducted on Thursday,
December 15, 2016. Myers was observed leaving his home in the
morning and driving towards the Port of Port Townsend,
Washington. No photos or videos were taken of Myers.
Additional surveillance was conducted on 12/19/2016 and
12/21/2016 but no observations of Myers were
order of June 4, 2018, the court also ruled that
“[p]laintiff is not entitled to be informed prior to
defendants conducting any surveillance in the
future. It is the latter provision which plaintiff
seeks to have “clarified.” In opposing
clarification, defendants state that: “the Court made
it equally clear that defendants must supplement their answer
to Interrogatory No. 5 should additional surveillance be
undertaken.” While the court deems its above-quoted
ruling to be clear and unambiguous, defendants' response
to the request for clarification in fact addresses a related
matter which the court's June 4, 2018, order did not
address. At this point, it is clear that defendants have read
into the June 4 order a requirement that they must supplement
their answer to Interrogatory No. 5 in the event that
additional surveillance is undertaken. That is a fair
extension of the court's June 4 order and, in his reply,
plaintiff accepts that extension of the order. Thus, no
clarification of the court's June 4 order is needed.
would have the court impose sanctions upon defense counsel in
the amount of $1, 000 based upon plaintiff's contention
that defense counsel deliberately misled the court and
plaintiff in defendants' response by which they opposed
plaintiff's motion to compel an answer to Interrogatory
No. 5. In opposing plaintiff's motion for sanctions,
defendants' counsel characterized plaintiff's motion
as “insufferable” and states that plaintiff
“does not know” whether he is making a Federal
Rule 11 or a Federal Rule 37(a) motion. Defense counsel's
tone is inappropriate. However, plaintiff has failed to tell
the court which federal rule he relies upon. But defense
counsel could hardly have been misled as to the fact that
Federal Rule 11(b) addresses the subject of representations
made by attorneys in the course of litigation.
Defendants' further argument - that plaintiff's
motion for sanctions is procedurally improper - is well
taken. Federal Rule 11(c)(2) provides that a motion for
sanctions may not be filed or presented to the court if the
matter challenged by the motion for sanctions is withdrawn or
appropriately corrected within 21 days. Here, plaintiff's
motion for sanctions was dated and filed June 18, 2018.
Plaintiff's certification of service certifies that the
motion was electronically filed and therefore served
via the court's CM/ECF system on the same 18th
day of June, 2018. For failure to comply with Rule 11(c)(2),
plaintiff's motion for sanctions is denied.
light of what follows, the court will not entertain a motion
for attorney fees in connection with this motion.
out above, defense counsel's response to plaintiff's
motion to compel discovery expressly represented that
“no surveillance currently exists.” Quite apart
from the fact that counsel for plaintiff believes that he was
misled by defense counsel, the court's discussion in its
order of June 4, 2018, of the matter of whether or not there
had been any surveillance, shows that the court believed that
defense counsel had represented that there had been no
surveillance. We now know that there had in fact been
counsel concludes his opposition to plaintiff's motion
for sanctions with the argument that he “had a good
faith basis for making [defendants'] work product
objection.” There has never been, and the instant
motion for sanctions does not suggest, that defendants'
work product objection was made in bad faith.
Defense counsel fails to address the merits of
plaintiff's contention that both he and the court were
misled by defense counsel's statements (as to a matter
collateral to the work product issue) that no surveillance
had taken place.
the court's view that this matter is not worth pursuing.
However, if plaintiff elects to pursue the matter, the court
will entertain plaintiff's properly filed motion for Rule
11 sanctions based upon Rule 11(b), Federal Rules of Civil
Procedure, and Rule 3.3(a)(3), Alaska Rules of Professional
Docket No. 36.