*1 In this putative class action, the named plaintiff, Brian Begley, brings claims of breach of express warranty, negligence, and declaratory and injunctive relief[1] arising from allegedly defective wood products that defendants Windsor Surry Company and Windsor Willits Company (collectively “Windsor”) manufacture and sell. Doc. no. 17. Windsor has moved for a civil contempt order and sanctions[2] (doc. no. 116), asserting that two of Begley's experts relied on confidential documents while preparing their expert reports in violation of a protective order still in effect from a previous putative class action in the Northern District of California. It asks the court to disqualify the experts, strike the expert reports in whole or in part, and award monetary sanctions for fees and costs. Begley objects. Doc. no. 121. For the reasons below, the court denies the motion for contempt and denies the motion for sanctions without prejudice.

On November 25, 2019, Begley's experts, Stephen Smulski and Drew Brown, submitted their expert reports to Windsor. From there, Windsor and Begley present very different versions of events, which the court briefly recounts.

Windsor's Narrative

Following the exchange of expert reports on November 25, Windsor's counsel concluded that Smulski and Brown had relied on confidential material that had been produced in an earlier class action (Cover v. Windsor Surry Company, et al.) filed in the U.S. District Court for the Northern District of California and that allegedly should have been destroyed or returned according to a protective order issued by that court. Windsor maintains that Smulski and Brown explicitly stated, in their reports, that they relied on the confidential material produced in Cover. Two days later, on November 27, Windsor demanded that Begley's counsel and experts confirm that the documents in question had been destroyed, as required by the Cover protective order. Windsor asserts that Begley failed to provide a substantive response to this overture, and that Windsor followed up again on January 4, 2020. It states that in response to the January 4 communication, Begley's counsel represented that the documents had been destroyed but did not state when they were destroyed[3] or provide a certification. Windsor again followed up on February 19, 2020 to request compliance with the protective order and provided certification forms for plaintiff's counsel to sign. It asserts that Begley's counsel refused to sign the certifications and provided only a “vague statement” regarding its destruction of the confidential documents. Doc. no. 116-1 at 12. Windsor further alleges that Begley's counsel failed to “(1) explain when the confidential information was destroyed by each firm, (2) confirm that the confidential information has not been used for any other litigation, and (3) who previously had access to the confidential information.” Id. at 13. On April 17, 2020, Windsor filed this contempt motion.

Begley's Version

*2 Begley, on the other hand, asserts that he made “repeated assurances, in multiple communications, that confidential Cover documents were not being used in this litigation.” Doc. no. 121-1 at 5. He contends that Windsor violated this court's local rules by failing to confer in good faith,[4] see LR 7.1(c), and again affirms that plaintiff's counsel “certified compliance with the protective order from Cover, as required and requested by Windsor, in and around January and February of 2020.” Doc. no. 121-1 at 6. Begley indicates that counsel and their experts “complied with the Cover protective order and destroyed all confidential documents.” Id. at 7. He directly states that “experts Brown and Smulski did not review any confidential documents from Cover in forming their opinions in this action.” Id. Instead, he maintains that “the necessary information, analysis and opinions needed for Brown and Smulski to render their opinions in this matter was already summarized and incorporated in their initial Cover expert report and further explained and expounded upon in their Cover rebuttal reports, deposition testimony and declarations” and that this information “became a part of Brown and Smulski's experience and a fund of their knowledge moving forward.” Id. at 7-8. Smulski and Brown submitted affidavits supporting these assertions. Doc. nos. 121-14, 121-18. Moreover, Begley contends that Windsor filed the expert reports in Cover publicly, and therefore waived any confidentiality arguments as to those reports.

While Windsor frames its motion as one for civil contempt, it also requests sanctions more generally under the court's inherent power to sanction and Fed. R. Civ. P. 37. The court will examine each argument separately, and begins with the contempt issue.

A. Civil Contempt

Windsor seeks a civil contempt order, arguing that Begley's two consulting experts violated a protective order from the Cover court by improperly using confidential materials exchanged during that case. “Pursuant to 28 U.S.C. § 636(e)(6), a magistrate judge does not have authority to issue a civil contempt finding where the case is not before the magistrate judge by consent.” Navitag Techs., Inc. v. Silva, No. 10-mc-92-LM, 2011 WL 3862168, at *2 (D.N.H. Aug. 5, 2011), R&R approved, No. 11-cv-386-JL, 2011 WL 3862154 (D.N.H. Aug. 31, 2011). The statute allows the magistrate judge to “certify the facts that constitute a civil contempt and issue an order to appear before the district court to show cause why the alleged contemnor ‘should not be adjudged in contempt.’ ” CCS Res., Inc. v. Noble Sys. Corp., Civil Action No. 12-11156-RWZ, 2014 WL 12914395, at *15 (D. Mass. Jan. 27, 2014) (quoting 28 U.S.C. § 636(e)(6)). “The magistrate judge also may decline to certify the conduct to the district court for a determination of contempt.” Harnage v. Wu, Civ. No. 3:16CV01543(AWT), 2019 WL 350593, at *2 (D. Conn. Jan. 29, 2019) (internal quotation marks omitted) (quoting Charter Practices, Int'l, LLC v. Robb, No. 3:12CV1768(RNC), 2013 WL 12178172, at *1 (D. Conn. May 22, 2013)).

Before exercising that certification authority, there is a threshold issue the court must address: does this court have the authority to impose civil contempt for alleged violations of the protective order issued by the U.S. District Court for the Northern District of California? Based on the court's review of the case law and the circumstances of this case, it appears that the answer is no.

Both sides give scant attention to this issue, preferring to spar over the merits. Windsor cites seven cases in support of its argument that the court has authority to hold counsel and experts in civil contempt. None of these cases directly address such authority in the context of a party's violation of a protective order issued in another jurisdiction. In Intel Corp. v. Advanced Micro Devices, Inc., the Supreme Court stated that, in determining the proper scope of discovery for use in a proceeding before a foreign tribunal, the district court “might also consider the significance of the protective order” issued by another district court. 542 U.S. 241, 266 n.19 (2004). That statement, set forth in a footnote, is far from a ringing endorsement of Windsor's position. In Four Pillars Enterprises Co. v. Avery Dennison Corp., the Ninth Circuit affirmed a district court's order precluding discovery for use in a foreign court in deference to a protective order from another district. 308 F.3d 1075, 1080 (9th Cir. 2002). However, the court's reasoning focused on the district court's discretion in discovery matters and recognized that the court “was not announcing a rigid rule.” Id. at 1078-79. Most importantly, neither Intel nor Four Pillars addresses a court's contempt power in such circumstances.

*3 Begley, on the other hand, cites cases that strike closer to the target. The Fifth Circuit's decision in In Re Crocker, examined whether a court has the authority to enforce a bankruptcy discharge order issued in another jurisdiction, stating that “[i]t is elementary that the court against which a contempt is committed has exclusive jurisdiction to punish for such contempt.” 941 F.3d 206, 215 (5th Cir. 2019) (alteration in original) (quoting United States v. Barnett, 330 F.2d 369, 385 (5th Cir. 1963)), as revised (Oct. 22, 2019). In Red Nation P'ship v. Kiga, the Ninth Circuit, addressing the plaintiff's request for the district court to enforce an injunction issued in another district, found that “[i]t almost goes without saying that the court against which contempt is alleged to have been committed has exclusive jurisdiction to punish for such contempt.” 51 F. App'x 630, 632 (9th Cir. 2002) (citing Ex parte Bradley, 74 U.S. 364, 371–72 (1869)). While neither case addresses contempt premised on the violation of a protective order, the underlying principle applies in this case.

In the absence of direct authority supporting a contempt order based on the violation of a protective order issued by another federal court, the court will not make such a novel finding here. Thus, the motion for contempt is denied.

B. Sanctions

The court has discretion under Rule 26, Rule 37, and its inherent power to determine the proper scope of discovery and to issue sanctions for violations of court orders. See U.S. ex rel. Duxbury v. Ortho Biotech Prods., L.P., 719 F.3d 31, 37 (1st Cir. 2013) (citation omitted) (stating that “trial court judges exercise broad discretion in managing the scope of discovery”); Poliquin v. Garden Way, Inc., 154 F.R.D. 29, 31 (D. Me. 1994) (citations omitted) (holding that Rule 37 “grants federal courts wide discretion in patterning sanctions to respond to a party's failure to comply with discovery orders,” including protective orders); In re Villa Marina Yacht Harbor, Inc., 984 F.2d 546, 548 (1st Cir. 1993) (citation omitted) (recognizing the court's inherent power “to fashion appropriate sanctions for abuses of the judicial process”). However, the court that issued the protective order is best positioned to fully understand the scope and spirit of the order and to determine whether it has been violated. Importantly, “the court that issues a protective order retains jurisdiction to enforce it, even after the case has closed.” Beebe v. Nutribullet, L.L.C., No. CV 17-0828 DDP (SS), 2019 WL 4261876, at *8 (C.D. Cal. July 3, 2019) (citing cases); see also Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 782 (1st Cir. 1988) (holding that “the district court necessarily had the power to enforce the [protective] order, at any point while the order was in effect, including periods after judgment”). Therefore, “courts typically refrain from enforcing protective orders issued by other courts.” Beebe, 2019 WL 4261876, at *9 (citations omitted); see also Runyon v. Bostik Inc., No. 5:16-cv-02413-RGK-SP, 2017 WL 5988019, at *4 (C.D. Cal. Mar. 28, 2017) (“As the Court has already ruled, however, the Court will not enforce a protective order issued by another judge, in a different case, in a separate judicial district. Plaintiffs may be subject to sanctions for then [sic] use of protected information .... The proper place to bring this potential violation, however, is to the Court that issued the protective order.”); but see Santiago v. Honeywell Int'l, Inc., No. 16-Civ-25359-COOKE/TORRES, 2017 WL 3610599, at *4 n.1 (S.D. Fla. Apr. 6, 2017) (finding that “many courts have been willing to review (as opposed to modify or terminate) Protective Orders for violations, even those issued by another court” because “courts in subsequent actions are better equipped to determine whether a Protective Order runs afoul of any particular issue specific to a different litigation matter” (citations omitted)).

*4 The motion for sanctions in this court is premature. The court will respect principles of comity and refrain from interpreting and enforcing the protective order entered in Cover. In the first instance, Windsor must seek relief in the same court that issued the protective order – the Northern District of California. If that court finds that the protective order was violated, Windsor may then move for sanctions here. Moreover, this court's local rules provide Windsor an opportunity to challenge expert witnesses and related evidence through final pretrial statements and at the final pretrial conference, if the case reaches that stage. See LR 16.2, 16.3. The motion for sanctions is therefore denied without prejudice to refiling after the California court determines whether Begley's experts violated the protective order.

Based on the foregoing reasons, Windsor's motion (doc. no. 116) is denied as to its request for a contempt finding and denied without prejudice as to its request for sanctions.

SO ORDERED.

Begley initially alleged a violation of the New Hampshire Consumer Protection Act, which he later withdrew. See Doc. no. 27-1. He also alleged a breach of the implied warranty of merchantability and requested punitive damages. These were dismissed on Windsor's motion. See Doc. no. 41.

While the motion is framed as a request for a contempt order, it also requests sanctions under the court's inherent power to sanction and Fed. R. Civ. P. 37.

Windsor asserts that the protective order required plaintiff's counsel to return or certify the destruction of all confidential material by June 28, 2018.

In its reply (doc. no. 124), Windsor raises Begley's reference to an email attached to Windsor's motion (doc. no. 116-12) – which Windsor alleges was inadvertently disclosed material covered by the attorney-client privilege and work product protection – as an example of misconduct. On May 1, 2020, Windsor replaced that email with a redacted version. As this argument is not a basis upon which Windsor seeks relief and does not affect the court's ruling on the instant motion, the court need not address it.