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Waste Management of Washington v. Kattler

United States Court of Appeals, Fifth Circuit

January 14, 2015

WASTE MANAGEMENT OF WASHINGTON, INCORPORATED, Plaintiff--Appellee,
v.
DEAN KATTLER, ET AL., Defendants, MICHAEL A. MOORE, Appellant

Appeal from the United States District Court for the Southern District of Texas.

For WASTE MANAGEMENT OF WASHINGTON, INCORPORATED, Plaintiff - Appellee: Holly Harvel Williamson, Litigation Counsel, William Michael Reed, Hunton & Williams, L.L.P., Houston, TX.

For MICHAEL A. MOORE, Appellant: G. Luke Ashley, Thompson & Knight, L.L.P., Dallas, TX.

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

OPINION

Page 337

PRISCILLA R. OWEN, Circuit Judge.

This appeal arises from a contempt proceeding ancillary to the merits of the underlying case. Michael A. Moore, the attorney for Dean Kattler, the defendant in the proceedings below, appeals the imposition

Page 338

of sanctions following a finding that Moore was in civil contempt. Moore contends that he was not afforded procedural due process and that the district court abused its discretion by finding him in contempt. We vacate the contempt finding and sanctions.

I

In the underlying litigation, Waste Management, Inc. (WM) sued Kattler, a former employee, for misappropriating confidential business information, and for violating the terms of his employment agreement by accepting a job with Emerald Services, Inc. (Emerald), an alleged WM competitor.

Shortly after the onset of litigation, WM sought a temporary restraining order (TRO) to enjoin Kattler from disclosing WM's confidential information, and requiring Kattler to produce images of all electronic devices that might contain such information. On December 12, 2012, the district court issued a TRO directing Kattler to " produce to Waste Management images of all electronic devices used by Kattler . . . except for the electronic devices used and/or owned by Kattler at Emerald," and to " produce to a third-party forensics expert, to be agreed upon by the Parties, images of all electronic devices used by Kattler. . . at Emerald." Eight days later, the district court issued a preliminary injunction that modified the TRO by requiring Kattler to produce all personal devices to WM within two days (by December 22), and expanded the definition of " personal devices" to include all of Kattler's devices, except those devices " provided to Mr. Kattler by Emerald." This enlargement occurred despite the fact that the parties had discussed with the court the importance of preventing the disclosure of attorney-client-privileged information present on devices that were now to be produced directly to WM.

Because the order failed to address the attorney-client-privilege concerns, Moore argued that Kattler should not be compelled to produce certain devices. Moore also disputed, based on Kattler's representations, the existence of a certain SanDisk-brand USB thumb drive sought by WM. After it became clear Kattler would not produce those devices, WM moved for a show-cause hearing as to why Kattler should not be held in contempt. The district court granted this motion and ordered " that Defendant appear for a hearing" to be held on January 22, 2013.

At the hearing, one of the issues was whether Kattler was required to produce his iPad for inspection. Moore argued that Kattler complied with the court's orders despite not producing the iPad because it was a personal device and because it contained information protected by the attorney-client privilege. The district court disagreed that the iPad could be considered " personal" under the preliminary injunction, and ordered that the device be produced to WM. Notably, the court spoke in terms of the device itself, rather than an image of its content. The court recognized Moore's valid privilege concerns and stated Kattler would not waive the privilege by producing the iPad, but indicated Kattler still had to produce it. Moore also represented to the court that Kattler could not produce the SanDisk thumb drive WM was requesting because Kattler had never owned such a drive. The court declined to hold Kattler in contempt but did issue an order requiring that all parties comply with his orders, " whether written or pronounced from the Bench."

Following the hearing, Kattler informed Moore that he now recalled owning at least one SanDisk thumb drive. Moore consulted a ...


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