Iovino v. Michael Stapleton Associates, LTD.
5:21-cv-00064
| W.D. Va. | Jul 24, 2024Background
- Plaintiff Karen Iovino, a former veterinarian for Michael Stapleton Associates (MSA), alleges unlawful whistleblower retaliation under 41 U.S.C. § 4712 after reporting concerns about MSA’s contract with the State Department.
- MSA counterclaims that Iovino violated a non-disclosure agreement by sharing confidential information.
- This case has been mired in lengthy discovery disputes, particularly about whether Iovino must comply with the State Department’s Touhy regulations to depose current or former MSA employees involved in the federal contract.
- The magistrate judge granted MSA's motion for a protective order, requiring compliance with Touhy regulations for depositions and document discovery regarding official information related to the State Department.
- Iovino objected, arguing that Touhy regulations do not apply to depositions of non-government, private contractor employees and that the protective order unlawfully restricts whistleblower rights.
- The district court overruled Iovino’s objections, affirmed the protective order, and ordered Iovino’s attorneys to show cause why they should not be sanctioned for submitting briefs containing apparently fictitious case citations and misquotations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Touhy regulations to depositions | Touhy should not apply to non-government contractor employees; regulations hinder whistleblower rights | Touhy regulations apply to all employees, including contractors, when official agency information is sought | Touhy regulations unambiguously cover deposition requests regarding official agency information from contractor employees |
| Control over discovery process | State Department's Touhy control infringes on separation of powers and whistleblower access | The court, not the agency, controls discovery; agency refusals can be challenged in court | The court retains ultimate authority; agency Touhy determinations are reviewable by the court |
| Reliance on non-binding precedent (Menocal) | Menocal should be persuasive to exclude Touhy’s reach | Menocal is not binding nor widely followed | Menocal is unpersuasive; no law compels exclusion of Touhy here |
| Sanctions for fabricated citations | Fictitious cases and quotations are immaterial or harmless | Plaintiff’s counsel submitted false or fabricated authority | Ordered plaintiff’s counsel to show cause why they should not be sanctioned under FRCP 11(c) |
Key Cases Cited
- COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269 (4th Cir. 1999) (addressing the scope of agency Touhy regulations for discovery requests)
- United States v. Williams, 170 F.3d 431 (4th Cir. 1999) (confirming government agency authority to promulgate Touhy regulations)
- Smith v. Cromer, 159 F.3d 875 (4th Cir. 1998) (agency control over employee testimony through Touhy)
- Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989) (upholding enforcement of agency Touhy regulations in private litigation)