In Iovino v. Michael Stapleton Assocs., Ltd., No. 5:21-cv-00064 (W.D. Va. July 24, 2024), Virginia District Judge Thomas T. Cullen overruled the plaintiff’s objections to the magistrate judge’s granting of the defendant’s motion for a protective order, affirmed the entry of the protective order, and require the plaintiff’s attorneys to show cause why they should not be sanctioned under Federal Rule of Civil Procedure 11(c) for frivolous arguments that included apparent fake case citations.

Case Discussion and Judge’s Ruling

In this case involving claims of unlawful whistleblower retaliation by the defendant (a federal contractor with the State Department that trains explosive detection canines), Judge Cullen began the relevant background by stating:

“For reasons that continue to confound the court, the parties have turned a straightforward case into a protracted discovery battle. Their dispute du jour centers on whether Iovino must comply with the United States Department of State’s (“State Department”) Touhy regulations to depose six current or former MSA employees about information related to MSA’s contract with the agency.”

In the current dispute, the plaintiff sought to depose six current or former MSA employees, under Rule 30(b)(6), about their work on MSA’s contract with the State Department, and the defendant agreed to “move forward promptly with the scheduling of [the] depositions” once the State Department approved the plaintiff’s Touhy request. The plaintiff, however, disagreed with the suggestion that she would need to comply with the Touhy regulations for these depositions and said that there was “no way [she] will agree to a Touhy process for non-government employees of a private contractor.” After the plaintiff’s attorneys refused to submit any such requests, the defendant moved for a protective order that required the plaintiff to comply with the State Department’s Touhy regulations when seeking official agency information through the deposition testimony of current or former MSA or State Department employees. Following an extended briefing period and hearing, Virginia Magistrate Judge Joel C. Hoppe issued a Memorandum Opinion and Order granting MSA’s motion and entering the requested protective order.

The plaintiff noted timely objections to Judge Hoppe’s decision on June 7, 2024, arguing that the protective order should be vacated because his determination that the State Department’s Touhy regulations apply to her deposition requests is contrary to law. As Judge Cullen stated:

“Shockingly, her objections rely, in part, on citations to sources and quotations that appear not to exist. MSA highlighted those mysterious citations in its brief opposing Iovino’s objections…Iovino did not file a reply, leaving unrebutted the allegations of fabricated citations, and her objections are ripe for decision.”

Judge Cullen addressed the plaintiff’s primary objection that Judge Hoppe incorrectly determined her deposition requests are subject to the State Department’s Touhy regulations, as follows: “It is well settled that federal agencies have the power to promulgate and enforce Touhy regulations… Additionally, the plain language of the State Department’s Touhy regulations establish that they cover Iovino’s requests to depose six current or former MSA employees about information they obtained while working on MSA’s contract with the agency. The individuals Iovino seeks to depose are ‘employees’ under the Touhy regulations because they are, or were, contractors with the State Department.”

He also rejected six ancillary objections. Regarding the plaintiff’s objection that the protective order “taken to its logical conclusion … leads to [the] manifestly absurd, unjust result” that the State Department could silence whistleblowers because they would need the agency’s permission to testify, Judge Cullen stated: “Ironically, Iovino’s argument is what seems ‘absurd’ here, as she attempts to give it credibility by citing to a purportedly fictitious case and a non-existent quotation from a Supreme Court decision.”

Noting that “Federal Rule of Civil Procedure 11(c) allows district courts to sanction parties that make court filings for an improper purpose or with frivolous arguments”, Judge Cullen stated: “Here, Iovino’s brief objecting to Judge Hoppe’s ruling cites multiple cases and quotations that the court, and MSA, could not find when independently reviewing Iovino’s sources. Specifically, Iovino cites the following two cases that do not appear to exist: United Therapeutics Corp. v. Watson Labs, Inc.,…and United States v. Mosby…She also cites a Supreme Court opinion and Fourth Circuit opinion that exist, but attributes quotations to those decisions that do not appear in them…And she indicates that Menocal, a decision she puts great weight on in her objections, is a reported opinion at 113 F. Supp. 3d 1125, even though the reporter reference denotes a much earlier decision in the same litigation that had nothing to do with Touhy regulations.”

Noting that “MSA flagged each of these discrepancies in its opposition brief and posited that they were the result of ‘ChatGPT run amok’”, Judge Cullen stated: “Even though Iovino provided the court supplemental authority to support her objections after MSA raised this issue, she puzzlingly has not replied to explain where her seemingly manufactured citations and quotations came from and who is primarily to blame for this gross error. This silence is deafening… Accordingly, to uphold the integrity of these proceedings and understand where the purportedly false references originated, the court will order Iovino’s counsel to show cause why they should not be sanctioned and/or referred to their respective state bars for professional misconduct.”

So, what do you think? Do you agree that plaintiff’s counsel should show cause why they should not be sanctioned? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Hat tip to Ralph Losey for the heads up about the case!

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