663 F.3d 1270
D.C. Cir.2011Background
- In Stevens, DOJ attorneys Welch and Morris were found in contempt for failing to comply with a January 21, 2009 order to produce documents related to Agent Joy’s whistleblower complaint.
- The district court ordered production of communications within the DOJ and between DOJ offices, under seal to the court and with a privilege log to the defense.
- The Department limited production and sought reconsideration, arguing privilege/work-product protections; it produced a redacted memorandum and delayed broader disclosure.
- February 13, 2009, the district court held Welch, Morris, Stemler, and Driscoll in contempt; Driscoll’s contempt was later sua sponte withdrawn on February 14, 2009; the others produced the documents the same day.
- The district court lifted the contempt findings as to Stemler, Welch, and Morris on October 12, 2010, finding the contempt purged by belated production and dismissing the case; no sanctions were imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Civil vs. criminal contempt | Welch and Morris: contempt is criminal. | Court treated as civil conduct coercing document production. | Contempt was civil. |
| Rule 42(a) protections | Rule 42(a) required procedural safeguards for criminal contempt. | Not required for civil contempt where coercion suffices. | Rule 42(a) protections not required. |
| Effect of district court remarks | Strong admonitions show punitive intent, indicating criminal contempt. | Remarks do not alter civil nature; relief focused on production. | Remarks did not convert to criminal contempt. |
| Purging and sanctions | Sanctions may be appropriate despite purging. | Purging by production moots the contempt and sanctions. | Contempt purged; no sanctions imposed. |
Key Cases Cited
- Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911) (distinguishes civil vs. criminal contempt by purpose and relief)
- International Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994) (civil contempt for coercion; criminal only for punishment)
- Hicks v. Feiock, 485 U.S. 624 (1988) (reiterates civil/criminal distinction based on relief's character)
- Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) (reprimand language not alone determinative of criminal contempt)
- Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 (1986) (civil contempt can include compensatory aspects; coercive remedies)
- Fannie Mae Securities Litig., v. Bank of Am., N.A., 552 F.3d 814 (D.C. Cir. 2009) (civil contempt framework for document production)
- Cobell Contempt Opinion, 226 F. Supp. 2d 1 (D.D.C. 2002) (extreme language can signal punitive intent, but not always)