Kirshner v. Uniden Corp. of America, 87-5838

Citation842 F.2d 1074
Decision Date18 March 1988
Docket NumberNo. 87-5838,87-5838
Parties, 10 Fed.R.Serv.3d 441, 10 Fed.R.Serv.3d 921 Don KIRSHNER, Plaintiff-Appellee, and Schumaier, Roberts & McKinsey, Appellant, v. UNIDEN CORPORATION OF AMERICA, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Gregory A. Long, Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for appellant.

Frederick L. McKnight, Jones, Day, Reavis & Pogue, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON, FERGUSON and BEEZER, Circuit Judges.

ALARCON, Circuit Judge:

The law firm of Schumaier, Roberts & McKinsey (Schumaier) is counsel for Don Kirshner (Kirshner), the plaintiff in the underlying action for personal injuries. Schumaier challenges the district court's authority to enter a protective order requiring Schumaier to return to defendant Uniden Corporation of America (Uniden) certain documents, protected by the attorney-client privilege, that Schumaier obtained through discovery in a separate action filed by another of Schumaier's clients against Uniden. Schumaier also contends that the district court's imposition of sanctions denied Schumaier due process.

We begin with a recitation of the pertinent facts. We then address two preliminary matters raised by Uniden: We grant Uniden's motion to strike portions of Schumaier's Excerpts of Record; and we reject Uniden's argument that our previous denial of Schumaier's Petition for Writ of Mandamus bars Schumaier from challenging the protective order on this appeal.

On the merits of Schumaier's appeal, we hold that the district court abused its discretion in issuing a protective order purporting to restrict the use of documents obtained in a separate action. Accordingly, we vacate the protective order. We further find that the district court erred in imposing sanctions against Schumaier. We also deny Uniden's request for sanctions on appeal.

I. PERTINENT FACTS

Schumaier, appearing pro hac vice, and Michael W. Weinstock (Weinstock), a sole practitioner in Los Angeles, filed this products liability action on Kirshner's behalf against Uniden on September 10, 1985. On May 27, 1986, Uniden filed a motion for a protective order requiring Schumaier to return to Uniden certain documents in Schumaier's possession, which documents were allegedly protected by Uniden's attorney-client privilege. Uniden's motion also sought to prevent Schumaier from using the contested documents for any purpose.

Schumaier had not obtained the contested documents through discovery in the Kirshner action but apparently through discovery in Gearhart v. Uniden Corp., an action filed in the United States District Court for the Eastern District of Missouri. Schumaier represented Gearhart in that action. Schumaier asserts, and Uniden does not dispute, that at the time Uniden moved for the protective order in this action, Kirshner was not seeking discovery from Uniden.

Uniden based its motion for the protective order in this matter on a discovery ruling by Chief Judge Manuel L. Real of the Central District of California in a separate action entitled Michaels v. Uniden Corp. In support of its motion for a protective order in this action, Uniden asserted that in Michaels, Judge Real had ruled that the same contested documents were protected by Uniden's attorney-client privilege.

Prior to moving for a protective order, Uniden's counsel requested that Schumaier return the contested documents based on Judge Real's order in Michaels. Schumaier refused to return the documents, contending that the court in Michaels had merely denied plaintiff's motion to compel further answers to questions propounded during the deposition of Harold A. Ducote, Jr., Uniden's former general counsel. Schumaier insisted that the court in Michaels had neither examined the contested documents nor declared them to be privileged.

The Proof of Service attached to Uniden's motion for a protective order indicates that both Weinstock and Schumaier were served by mail on May 23, 1986. Weinstock admitted that he received a copy of the notice and motion. Schumaier alleges that it did not receive a copy of the notice and motion. Neither Weinstock nor Schumaier filed written opposition to the motion for a protective order in the Kirshner action.

On June 13, 1986, realizing that no opposition had been filed, Uniden filed and served a supplemental memorandum requesting sanctions against Weinstock and Schumaier "under Central District Rules 7.6 and 27.1, 28 U.S.C. Sec. 1927, and the inherent powers of the Court." Schumaier received notice of the request for sanctions at its Missouri offices on Saturday, June 14, 1986, two days before the scheduled date for the hearing on Uniden's motion.

On Monday, June 16, 1986, the district court held a hearing on Uniden's motion for a protective order. Weinstock and counsel for Uniden attended the hearing; Schumaier did not. At the close of the hearing, the district judge granted Uniden's motion for a protective order. The court further imposed sanctions jointly and severally on Weinstock and Schumaier in the amount of $5,946.25 "as costs for the seeking of the order."

II. PRELIMINARY MATTERS
A. Uniden's Motion to Strike

Uniden has moved to strike Schumaier's Opening Brief, portions of its Excerpts of Record, and its Designation of Record on Appeal on the ground that Schumaier has included within the excerpts certain materials not properly part of the record on appeal.

Fed.R.App.P. 10(a) provides as follows: "Composition of the Record on Appeal. The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases." This court's Rule 10-2 provides, in pertinent part: "Pursuant to FRAP 10(a), the complete record on appeal consists of: ... (b) the district court clerk's record of original pleadings, exhibits and other papers filed with the district court ('clerk's record')." Ninth Cir.R. 10-2.

Papers not filed with the district court or admitted into evidence by that court are not part of the clerk's record and cannot be part of the record on appeal. See United States v. Walker, 601 F.2d 1051, 1054-55 (9th Cir.1979) (affidavits that "were not part of the evidence presented to the district court" would not be considered on appeal); Panaview Door & Window Co. v. Reynolds Metals Co., 255 F.2d 920, 922 (9th Cir.1958) (striking from record an exhibit that had been attached to appellant's trial court memorandum of points and authorities and a document that had been marked for identification, neither of which had been received in evidence); Watson v. Rhode Island Ins. Co., 196 F.2d 254, 255-56 (5th Cir.1952) (granting motion to strike documents that were tendered as exhibits to brief on appeal but that had not been offered in evidence below).

Schumaier does not dispute that it never filed or submitted to the court below the Declaration of David R. Buchanan, Excerpts of Record (ER) 236-39. The Declaration, therefore, is not part of the record on appeal and must be stricken.

Schumaier did not file the documents that appear at ER 263-88 and 293-341. None of these documents are listed on the district court's docket sheet. Schumaier notes, however, that each of these documents was an exhibit to Schumaier's Petition for Writ of Mandamus previously filed in this court, which Petition and exhibits were served on the district court judge. Accordingly, Schumaier argues, these documents "were before the United States District Court before it entered the final judgment from which this appeal is taken" and were properly included in the Excerpts of Record.

Papers submitted to the district court after the ruling that is challenged on appeal should be stricken from the record on appeal. See Walker, 601 F.2d at 1055 ("We are here concerned only with the record before the trial judge when his decision was made.") (emphasis added); Heath v. Helmick, 173 F.2d 156, 156-57 (9th Cir.1949) (striking from record on appeal papers that were filed in district court after judgment from which appeal was taken) ("The cause must be tried here upon the record made at the original trial.").

Schumaier's written objections to the proposed order were submitted to the district court prior to the entry of the protective order. The contested portions of the Excerpts of Record, however, were not served on the court until July 15, 1986, one month after the hearing on the motion and one week after entry of the protective order.

The only case cited by Schumaier to support its position, Love v. Royall, 179 F.2d 5 (8th Cir.1950), is distinguishable. In that case, the Eighth Circuit denied plaintiff's motion to strike defendant's supplemental record on appeal, which contained papers from a separate court proceeding instituted by plaintiff. Id. at 7. In Love, however, unlike in the present case, the contested papers had been "before the District Court on the argument of the motion to dismiss the complaint...." Id.

In short, the contested portions of Schumaier's Excerpts of Record were neither filed with the district court, considered by the court, nor even before the court when it entered the order that Schumaier now challenges on appeal. We, therefore, strike the papers (ER 236-39, 263-88 and 293-341) from the record and give them no consideration in adjudicating this appeal. See Watson, 196 F.2d at 256 (court refuses to consider grounds for reversal evidenced in documents that have been stricken from record on appeal); Heath, 173 F.2d at 157 (court gives no consideration to stricken materials in disposing of appeal). Uniden's motion to strike is denied in all other respects.

B. Schumaier's Petition for Writ of Mandamus

On August 19, 1986, Schumaier...

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