No. 90-55193.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and REINHARDT, Circuit Judges, and King,* District Judge.

MEMORANDUM**

Assistant U.S. Attorney James Sullivan appeals the district court's decision upholding a magistrate's order sanctioning him for discovery violations. Because the imposition of a sanction was an abuse of discretion in the circumstances of this case, we reverse.

This dispute arose from Sullivan's representation of a federal defendant in a constitutional tort action. Relations between Sullivan and plaintiff's counsel were strained from the beginning. During the course of discovery, plaintiff's counsel moved for an order to compel discovery and for Rule 37 sanctions, alleging that Sullivan provided inadequate responses to the plaintiff's interrogatories and failed to produce an investigative report prepared by the Bureau of Alcohol, Tobacco, and Firearms. The magistrate ordered Sullivan to provide the plaintiff with a copy of the ATF report, rejecting Sullivan's claim of privilege as "untimely" and having been "waived." The magistrate also found that Sullivan's responses to the interrogatories were "incomplete." The magistrate ordered Sullivan to pay the plaintiff $1,500 in attorney's fees. The district court affirmed the magistrate's order.

Federal Rule of Civil Procedure 37(a) permits a party to apply for an order compelling discovery when a party or deponent fails to cooperate in discovery. Subsection (4) provides:

If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

We have held that a party's position is substantially justified if it raises an issue about which reasonable people could differ. Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir.1982). In previous cases discussing the propriety of such sanctions, we have considered whether the record revealed a pattern of discovery abuses by the sanctioned party. See, e.g., Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1411-14 (9th Cir.1990), cert. denied, 111 S.Ct. 1019 (1991); Wanderer v. Johnston, 910 F.2d 652, 653-56 (9th Cir.1990); In re Rubin, 769 F.2d 611, 618-19 (9th Cir.1985); Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir.1981).

The district court in this case imposed the discovery sanction in part for Sullivan's failure to disclose the ATF report. However, Sullivan asserted work product privilege in his Response to Plaintiff's Request to Produce. Sullivan was not required to do more than assert the privilege at that time. See 4A Moore's Federal Practice p 34.07 (1990) ("If [a party] ... wishes to claim a privilege, he must so state"). Sullivan's position that the report was protected by work product privilege was substantially justified. The record reflects that the ATF prepared the report after the plaintiff filed his complaint, and at the request of the U.S. Attorney's Office, to identify and interview potential witnesses in contemplation of the pending lawsuit. The ATF report thus was at least arguably shielded by work product privilege. Fed.R.Civ.P. 26(b)(3); Nishnic v. U.S. Dept. of Justice, 671 F.Supp. 771, 772-75 (D.D.C.) (Dept. of Justice investigative reports, including witness interviews, shielded by work product privilege), aff'd, 828 F.2d 844 (D.C.Cir.1987); United States v. Chatham City Corp., 72 F.R.D. 640, 642-44 (S.D.Ga.1976) (FBI investigative reports and notes of interviews by FBI agents shielded by work product privilege). It was thus an abuse of discretion for the district court to base its sanction upon Sullivan's failure to disclose this report.

The district court also erred in basing its award of sanctions upon Sullivan's interrogatory responses. The plaintiff alleged that these responses were deficient in three respects: (1) Sullivan, rather than the federal defendant himself, had signed the verification of the interrogatory responses; (2) Sullivan's response to interrogatory questions incorporated by reference responses to other interrogatories and the defendant's answer to the complaint; and (3) the defendant's response to an interrogatory question which requested the "text" of any complaint filed against the defendant did not provide that text.

Sullivan's responses to the plaintiff's interrogatories provide an insufficient basis upon which to impose the sanction at issue here. Sullivan's responses may have contained technical deficiencies, but these were neither egregious nor inexcusable. Sullivan filed unverified responses because his client was out of town and subsequently filed properly verified answers upon his client's return. It was not entirely unreasonable to believe that the incorporation method was acceptable. Finally, Sullivan's response stated that while a verbal complaint had been made, no written complaint had been filed against the defendant. Sullivan literally could not provide the written "text" of an oral complaint. The district court made no finding that Sullivan had engaged in abusive discovery tactics and none are apparent to us.

REVERSED.