Bernal v. All American Investment Realty, Inc. (479 F. Supp. 2d 1291, 2007)

ORDER (1) AFFIRMING REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTIONS FOR SANCTIONS; AND (2) MODIFYING THE RECOMMENDED REMEDIES

SEITZ, District Judge.

THIS MATTER is before the Court on the Report and Recommendation on Plaintiffs Motions for Sanctions [DE-108], issued by United States Magistrate Judge Chris M. McAliley. Magistrate Judge McAliley’s Report covers two motions: (1) Plaintiffs Motion to Strike Defendants’ Answer and Affirmative Defenses as Sanctions and Enter a Finding of Liability With Trial to be Held on the Issue of Damages [DE-48]; and (2) Plaintiffs Motion for Attorneys’ Fees and Costs Pursuant to 28 U.S.C. § 1927, Federal Rules of Civil Procedure 26(g), 37(a), (b), and (c), and the Court’s Inherent Powers [DE-82], Also before the Court is a request by non-party Chris Kleppin, former counsel to the five entity Defendants and individual Defendant Tariq Hussain, for a hearing regarding his objections to Magistrate Judge McAliley’s Report [DE-121].

The Court has undertaken a de novo review of the record, including a careful review of the transcripts of all hearings before Magistrate Judge McAliley and all filed objections to the Report. The Court shall affirm and adopt all of Magistrate Judge McAliley’s factual findings, as they reflect a neutral summation of the facts that the record more than amply supports. Magistrate Judge McAliley’s legal conclusions are consistent with a correct application of the law to those facts; however, the Court shall slightly modify her recommended remedies.

The Court shall impose monetary sanctions on both Kleppin and Hussain, and shall refer Kleppin to The Florida Bar, the District of Columbia Bar, and the Bar of the Commonwealth of Massachusetts, as well as this District’s Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance. This case shall proceed to trial with the jury being instructed as to two facts: (i) Defendant Hussain and the five entity Defendants are employers subject to the FLSA; and (ii) Hussain employed Plaintiff to work for him and the five entity Defendants. At trial, the Court shall also instruct the jury as to Hussain’s spoliation of evidence and procurement of false evidence, which they may consider in assessing his credibility. The Court may also instruct the jury as to Defendants’ record-keeping obligations, based on Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 683-84, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Finally, the Court overrules both non-party Chris Kleppin’s and Defendants’ objections to the Report, as explained below, with the exception of Defendants’ objection to the entry of final default judgment against them.

1. NON-PARTY CHRIS KLEPPIN

A. Request for New Evidentiary Hearing as to Credibility

Kleppin’s request for another evidentia-ry hearing is denied, as the basis for Judge McAliley’s not crediting his testimony is patent from the hearing transcripts. Magistrate Judge McAliley spent five hearings, consisting of many hours, assessing Klep-pin’s credibility, which included evaluating (1) his opportunity to observe accurately the events about which he testified; (2) his directness (or lack thereof) in answering her questions; (3) his lack of recall of recent, noteworthy events; (4) the contradictions between his testimony and other evidence; and (5) his self-interest in placing himself in the best light possible during court proceedings. (For examples of Kleppin’s testimony which support the lack of credibility finding, see Jan. 12, 2006 Tr. 27-28, 82-88, 102-03, 108-112; Jan. 19, 2006 Tr. 5-18, 44-64, 78-81, 84.)

It is evident from the transcripts that Kleppin did not answer questions directly, consistently had an excuse for his actions, and repeatedly (even conveniently) could not remember details about important, recent facts. Instead of answering Magistrate Judge McAliley’s questions about his own actions, Kleppin tried to divert her attention by launching into details concerning the Plaintiffs allegedly dishonest actions. Further, Kleppin’s answers to questions concerning his legal skills and knowledge of legal rules showed that he has little regard for the Federal Rules of Civil Procedure — either he does not choose to follow the rules, or he is simply so incompetent that he does not know which rules to follow, what they mean, or when to follow them. Given the fact that he was on the law review of his accredited law school, it is difficult to accept the latter option.

Kleppin’s testimony reflects his plan to pursue his view of this case at all costs— without the restraint that comes from independent judgment and professional detachment. Because the Court is adopting Magistrate Judge McAliley’s well-supported credibility findings, there is no legal basis for another evidentiary hearing to repeat the testimony he has already given. Kleppin had ample opportunity to provide truthful testimony to the Court. Therefore, Magistrate Judge McAliley’s determination that he was not credible will not be disturbed.

B. Objections to Report

1. Kleppin’s “mind-set”.

Kleppin’s subjective state of mind is not an issue in Magistrate Judge McAliley’s Report. Magistrate Judge McAIiley applied an objective standard in assessing Kleppin’s conduct in that she considered how a reasonable attorney under the circumstances would have acted. Based on the totality of the circumstances, she concluded that no reasonable attorney in Kleppin’s situation would have behaved the way he did, and that in fact, Kleppin had grossly deviated from reasonable conduct. This Court affirms that conclusion.

It is disappointing that Kleppin’s attorney has chosen to argue that Kleppin’s “missteps” in this case “were the product of inexperience and naiveté.... ” (Kleppin Objs. at 2.) By his own admission to this Court in a proceeding in another case, Kleppin graduated from law school in 1996, and has served as lead trial counsel in six trials in federal court and approximately three trials in state court. He is a named partner in his law firm, and a review of this District’s docket reveals that he has been involved in at least 90 cases in the District. Further, in seeking $400,000 in attorneys’ fees in an overtime case pending in this District, Kleppin signed a sworn affidavit in which he attested that his $875 hourly rate was “commensurate with his knowledge and experience.” (Kleppin Aff. ¶ 5.) Kleppin’s expert witness in that case, attorney Peter T. Maverick, attested to Kleppin’s “excellent legal work” and to his charged rate being commensurate with his experience. (Maverick Decl. ¶ 9.) Kleppin cannot herald his experience and legal skills when it suits him (in trying to recover attorneys’ fees), only to turn around and claim naiveté and inexperience to avoid a sanction for fees.

2. Kleppin’s facilitation/encouragement of Defendant Hussain’s discovery violations.

Despite Kleppin’s protestations to the contrary, the record supports this factual finding. At the January 12, 2006 hearing, Hussain stated that, if a discovery request was not clear to him, he would simply deny the request. Notably, at his deposition, Hussain testified that he denied requests he believed he should not have to answer, because of his view that the lawsuit was “bogus.” He admitted at the January 12th hearing that he never reviewed any documents in his possession in order to answer discovery requests, prior to Magistrate Judge MeAliley’s December 6, 2005 Order compelling discovery. Also, many of Hus-sain’s discovery responses proved false.

Kleppin shared his client’s view that the lawsuit was “bogus,” and thus, facilitated and encouraged his client’s behavior by failing properly to oversee his client’s discovery efforts. Of particular note, Kleppin signed Hussain’s false responses denying that his companies had ever made use of the interstate mail and telephone systems and nationally chartered banks. As Magistrate Judge McAIiley pointed out, common sense dictates that any company similar to those Hussain owns and operates, no matter how small, would receive or place an out-of-state phone call, receive or send mail out of state, or make a deposit in a nationally chartered bank. That Kleppin did not challenge Hussain’s denial of these inquiries is so unreasonable that it constitutes encouragement of the client’s obstructive behavior.

Moreover, Kleppin admitted that he had never once visited his client’s office. He never knew what documents, if any, his client had reviewed in order to answer discovery requests. Kleppin’s understanding was that Hussain had been “looking for some things,” but he could not say what “things” Hussain had found. At the January 12th hearing, Kleppin attempted to justify Hussain’s behavior, by explaining that he [Kleppin] did not know how specific discovery responses had to be. The likelihood that Kleppin had no familiarity with the rules, given his experience in federal court which included having to pass a test on the rules for admission to the Bar of this Court, is so implausible that the only reasonable conclusion is that he lied to Magistrate Judge McAliley. Kleppin’s conduct was a willful abuse of the discovery process.

3. Kleppin’s role with respect to the Khan affidavit.

To persuade this Court that it should either overlook or deem as appropriate Kleppin’s actions with respect to the Khan affidavit, Kleppin’s counsel argues that an “affidavit is qualitatively different than any other piece of ‘bombshell evidence’ that might surface in a case, because it is under oath,” and therefore “provide[s] some measure of evidentiary support for Mr. Kleppin’s ensuing acts.” (Kleppin Objs. at 4-5) (emphasis in original). Klep-pin cites no legal authority for his position, because there is none. A lawyer can not blindly rely on an affidavit — even if it is signed under oath — once he has information that raises questions about its contents.

Shortly before the lengthy December 6, 2005 hearing that resulted in Magistrate Judge McAliley’s ordering Hussain to respond to numerous discovery requests, Hussain telephoned Kleppin with information that the Plaintiff had allegedly bribed a man named Mohammad Khan for his favorable testimony. Instead of speaking with Khan to gather the facts, Kleppin drafted an affidavit for Khan’s signature on December 5, 2005, solely based on Hus-sain’s recounting of what Khan allegedly knew. When the December 6th hearing demonstrated that Hussain had not been truthful in his discovery responses, Klep-pin still made no effort to speak to Khan to independently investigate the situation. Instead, he allowed Hussain to obtain Khan’s signature on the affidavit. Indeed, even when the signed affidavit Hussain returned to Kleppin showed alterations from the original version Kleppin had prepared, Kleppin did not question his client about the affidavit’s veracity, nor did he question his client or Khan after his December 15, 2005 telephone discussion with Plaintiffs counsel who said that Plaintiff vehemently denied the charges.

A month later, at the January 19, 2006 hearing regarding the Khan affidavit, Kleppin stated that he could not even remember the specific details of his 20-30 minute meeting with his client to discuss Khan’s “bombshell” information. (Jan. 19, 2006 Tr. at 17-18.) Kleppin claimed that he wanted to depose Khan, and even pointed to the deposition notice he issued. But, Kleppin later stated that when Hussain insisted on submitting an affidavit from Khan rather than deposing him, Kleppin did not pursue Khan’s deposition as Hus-sain “wouldn’t take no for an answer.” Acutely aware of the “bad blood” between Hussain and the Plaintiff, of how much Hussain wanted to be rid of this case, the fact that Hussain had not been truthful in his discovery responses, and that Plaintiffs counsel denied the accusations when verbally advised of this “bombshell evidence,” Kleppin did nothing to verify that Hussain’s information about Khan was trustworthy before filing the affidavit.

Although the Khan affidavit accused the Plaintiff of a serious crime she denied committing, the record reflects that Kleppin neither (1) conducted any investigation into the facts, including speaking to or deposing Khan; nor (2) took the matter to the proper authorities. Instead, Kleppin focused only on how to use the affidavit to make the case “go away” for his client. To that end, he attached the affidavit to his response to Plaintiffs December 15, 2005 motion for sanctions and asked for sanctions against the Plaintiff and her lawyers, claiming Plaintiffs motion for sanctions was a “preemptive strike” to avoid the affidavit’s impact — even through Kleppin was aware that Plaintiffs counsel had prepared the sanctions motion prior to learning of the bribery charges. As Magistrate Judge McAliley properly found, Kleppin’s conduct with respect to the Khan affidavit under these circumstances was a reckless and gross deviation from reasonable conduct.

4.Kleppin’s characterization of Plaintiffs sanctions motion as a “preemptive strike. ”

On page 1329, Magistrate Judge McAli-ley’s Report notes that Kleppin’s intentionally false statement was the characterization of the Plaintiffs motion for sanctions as a “preemptive strike to the filing of a Rule 11 Motion by the Defendants, because the Defendants recently came into possession of two important pieces of evidence.” The timeline in the record evidence amply supports the factual finding that Kleppin made a knowing, false statement to the Court in this regard.

5. Kleppin’s assertion of the defense that the Defendants were not engaged in interstate commerce.

Kleppin’s objection that Magistrate Judge McAliley “implicitly criticized Mr. Kleppin for asserting the defense that Defendants were not engaged in interstate commerce ...” misses the point in Magistrate Judge McAliley’s Report. The point is that Kleppin’s approach was to make such a determination unilaterally, rather than to produce documents requested in discovery to support the defense. Ultimately, documentary evidence (ie. the tax returns) showed that Kleppin’s position was not entirely accurate.

6. Magistrate Judge McAliley’s finding that Kleppin had no reasonable basis to believe that Hussain was not the dishonest party.

Kleppin stood by and watched as Hus-sain turned over documents containing Plaintiffs name, showing that she had been paid for work, and other documents showing that at least one of his businesses made enough income to fall within the purview of the FLSA — after Hussain had made representations that no such documents existed. After experiencing the December 6, 2005 hearing, the transcript of which underscores the instances in which Hussain had not been candid with Kleppin during discovery production, Kleppin had did not have a reasonable basis to assert that his client was not the dishonest party.

7. Interrogatory and requests for admission regarding Plaintiffs counsel’s alleged copying of files.

This objection lacks merit. The timing of these discovery requests (the day after Plaintiff filed her December 15, 2005 motion for sanctions for Defendants’ failure to comply with Magistrate Judge McAliley’s December 9, 2005 Order compelling discovery) and their subject matter (whether the Plaintiff knew that her lawyer transferred or copied information from Klep-pin’s computer onto his own) lead to only one reasonable conclusion: Kleppin’s primary purpose in propounding this discovery was to intimidate the Plaintiff, rather than to seek evidence relevant to the issues of liability or damages.

8. Kleppin’s Rule 11 Letter.

Kleppin objects to Magistrate Judge McAliley’s characterization of his Rule 11 letter as “mean-spirited” and unprofessional, noting that “any suggestion ... that a pre-motion ‘Rule 11 letter’ is per se sane-tionable or unprofessional should be rejected.” (Kleppin Objs. at 10.) This objection again misses the point: the content of Kleppin’s letter demonstrates that he believes proper litigation tactics include personal attacks on opposing parties, and counsel. The objection is overruled.

9. Contradictions in Kleppin’s testimony.

This objection is also overruled. Magistrate Judge McAliley properly drew an adverse inference from Kleppin’s various inconsistent statements, dodging of questions, and alleged inability to recall recent events which Kleppin himself considered significant.

10. Kleppin’s representations regarding Defendants’ gross income.

Magistrate Judge McAliley’s conclusion that “Kleppin’s failure to review any of his clients’ financial records before issuing these discovery responses, and repeated argument to the Court that Defendants’ gross annual income fell below the jurisdictional amount, fell short of his obligations under Rule 26(g) and Rule 11(b)” is amply supported by the record evidence as set out in her Report. Kleppin failed to undertake the most basic first step in the performance of his duties as counsel and an officer of the Court, which is to review the records he is relying on.

11. Kleppin’s narrowing of the scope of Defendants’ discovery responses.

As the Report reflects, Kleppin’s deception lay in the failure to share with opposing counsel his restrictive interpretation of the discovery requests. By his own testimony, Kleppin’s involvement in the discovery process was at best cavalier: he chose simply to rely on Hussain’s representations regarding the documents Hussain found and reviewed, without questioning whether or not Hussain had actually searched for all documents in his possession and whether or not Hussain understood the discovery being requested of him. As Magistrate Judge McAliley found, Kleppin “made no reasonable efforts to insure that his client was providing truthful discovery responses.” (Report at 43.)

12. Erroneous answers to requests for admissions.

Civil discovery is designed to force both sides to lay the evidence “on the table,” so that each side has the opportunity to assess the merits of its position. Reasonable and responsible counsel speak with opposing counsel to clarify the scope of discovery and any confusion as to definitions. Further, this Court notified the parties that Magistrate Judge McAliley held a weekly discovery calendar, wherein the parties could address discovery disputes without filing formal motions. Kleppin chose neither of these quick, low-cost mechanisms to resolve discovery questions. To affirm this objection would require the Court to ignore the letter and spirit of the discovery rales and endorse a strained “legal technicality” approach to excuse improper conduct.

13. No evidentiary support for a planned Rule 11 motion.

When asked to identify the evidentiary support he had for Khan’s bribery accusation (which, in turn, would support a potential Rule 11 motion), Kleppin could point only to his belief that the Plaintiff was dishonest, and that Hussain was trustworthy. Kleppin’s only basis for believing that Plaintiff had brought a frivolous lawsuit was the word of a client who, at least by the time of the December 6, 2005 hearing, had proven to be less than trustworthy. Documents bearing Plaintiffs name surfaced, as did income tax returns showing FLSA coverage for at least one of Hussain’s companies. Magistrate Judge McAliley caught Hussain in numerous lies, and showed that he had willfully abdicated his discovery obligations. Although Klep-pin did not file a Rule 11 motion, he had no basis for even threatening to file one. Kleppin’s behavior was willfully abusive and cannot be tolerated.

II. DEFENDANT TARIQ HUSSAIN

The thrust of Defendants’ objections is that the Court should not sanction them by entering a default judgment for their conduct in this matter, because such a sanction is too harsh and is against the strong judicial policy of disposing of matters on then- merits. First, Defendants maintain that their discovery violations were neither willful nor in bad faith, but rather, were caused by Kleppin — who withheld documents, failed to give Hussain proper instructions, made threats of baseless sanctions, propounded irrelevant and intimidating discovery requests, and filed a false affidavit. While Kleppin bears responsibility for his abuse of the justice system in this case, Hussain is also responsible for intentionally disrupting this litigation.

Hussain’s testimony at the discovery hearings and at his deposition reveals his destructive intent. From the beginning, he was angry at being sued, believing this to be a “bogus lawsuit.” As such, he acted on his belief that Plaintiff was not entitled to any discovery. In court, Hussain tried to minimize the extent of his discovery violations by claiming that they were the product of “innocent mistakes” or his failure to understand the questions asked. But, at his deposition, Hussain made quite clear that he intentionally did not answer certain discovery requests because he did not want to answer them: “Sir, I don’t feel I like to answer this question. They are bogus lawsuit they file against me and my corporation.” (See DE-73, Ex. 24, pg. 65-67.) Although Hussain made 11th hour attempts to remedy his discovery violations with supplemental responses, he gave no real explanation for the last minute changes.

Defendants would like to explain away each of Hussain’s discovery violations in isolation, and to place all of the blame for his actions on his lawyer. But, when the totality of the circumstances are considered, the record evidence supports Magistrate Judge McAliley’s conclusion that Hussain was simply not credible. In short, the clear picture is that Hussain’s plan was to frustrate the proceedings by evading discovery requests, hiding documents, and vilifying the Plaintiff and her counsel.

Finally, but most importantly, Hussain procured false evidence. He offered Khan favorable refinancing terms on a home loan in exchange for Khan’s signature on a false affidavit. He also placed false dates on the loan disclosure paperwork he gave to Khan, in an admitted effort to make it appear that he was not offering Khan a bribe. The uncontradicted evidence is that Hussain was the one who sought out Khan and offered him a special deal on a new home loan (about which Khan initially indicated he had no interest), and that, two months later on the eve of a critical hearing, the “bombshell evidence” surfaced.

It was in light of the totality of these circumstances that Magistrate Judge McA-liley considered Khan’s invocation of his 5th Amendment right not to incriminate himself when asked about his statement under oath that Plaintiff bribed him. If the accusations against Plaintiff were true, Khan would have had no reservation about admitting them. Magistrate Judge McAli-ley properly drew the negative inferences that the affidavit was false, and that Hus-sain — who insisted on obtaining Khan’s affidavit rather than deposing him and who offered Khan a financial benefit, which he tried to cover up — knew all along that the affidavit was false. Kleppin certainly should not have filed the affidavit with the Court, but it was Hussain who instigated its procurement and notarization. Magistrate Judge McAliley properly found that Hussain willfully falsified documents and refused to meet his discovery obligations. Hussain’s conduct demonstrates a knowing and intentional abuse of the justice system which cannot be condoned.

III. APPROPRIATE SANCTIONS

A. Attorneys ’ Fees

On March 16, 2007, this Court held a conference in this case, to address certain issues related to Magistrate Judge MeAli-ley’s Report and Recommendation and the objections thereto. At the conference, the Court ordered Plaintiffs counsel, Mr. Cas-sata, to file the documentation concerning his time and associated fees with respect to all matters reasonably flowing from the December 21, 2005 response to Plaintiffs motion for sanctions, the hearings thereon, and all responses and objections filed in connection with Magistrate Judge MeAli-ley’s Report and Recommendation. The Court noted that this should be the same documentation/assessment he used in settlement negotiations with Kleppin. The Court also ordered Mr. Cassata to produce for the Court’s in camera review a copy of the settlement agreement between Kleppin and the Plaintiff, regarding Kleppin’s potential attorneys’ fees liability to the Plaintiff. Mr. Cassata complied with the Court’s Order, and this Court has reviewed the documents he filed.

The Court finds that Kleppin and Hus-sain each should be sanctioned for half of the attorneys’ fees incurred relating to (1) preparation for and attendance at the December 6, 2005 hearing; (2) preparation of Plaintiffs motion for sanctions relating to Defendants’ failure to comply with Magistrate Judge MeAliley’s December 6, 2005 Order; (3) the attorney time spent addressing Defendants’ response to Plaintiffs motion for sanctions; (4) preparation for and attendance at the January 12 and 19, and February 3 and 17, 2006 hearings; and (5) preparation of Plaintiffs responses to Magistrate Judge MeAliley’s February 21, 2006 Order to Show Cause [DE-85], These attorney’s fees would not have been incurred but for Kleppin’s and Hussain’s conduct, described above. Any lesser sanction would fail to punish adequately the intentional violations and would not ensure future compliance with Court orders and rules of Court. Sanctions are imposed against Kleppin pursuant to 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11(b)(1) and (3), and this Court’s inherent power to regulate litigation and to sanction litigants and their counsel for abusive practices. Sanctions are imposed against Hussain pursuant to this Court’s inherent power to do so.

B. Non-Monetary Sanctions

Defendants maintain that striking their answer and entering a default judgment on liability is too severe of a sanction. The Court agrees with this objection and finds that a more nuanced sanction is appropriate, given the genuine issues as to the terms and conditions of Plaintiffs employment.

This case will proceed to trial on liability. However, to address the attempted fraud upon the Court, the Court will instruct the jury that certain facts are deemed established. These facts include, without limit: (1) Hussain and the five entity Defendants are all employers subject to the provisions of the FLSA; and (2) Hussain employed Plaintiff to work for him and the five entity Defendants. Thus, the only issues left for trial are how many hours Plaintiff worked, the period of time she worked, whether she worked more than 40 hours per week, and whether or not she was compensated appropriately for any and all hours over 40 per week. In addition, the Court will give the jury a spoliation of evidence instruction and will instruct the jurors that, in considering Hussain’s credibility, they may consider that he knowingly obtained an affidavit to use in Court that falsely accused the Plaintiff of a serious crime and that he falsely dated documents so that it would not appear that he was offering a bribe for that affidavit. If applicable, the Court will also give an instruction regarding Defendants’ record-keeping obligations, based on Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 683-84, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Accordingly, it is hereby

ORDERED that:

(1) The findings of fact and conclusions of law set forth in Magistrate Judge McA-liley’s Report and Recommendation [DE-108] are AFFIRMED and ADOPTED as an Order of this Court;

(2) The Court overrules non-party Chris Kleppin’s and Defendants’ objections to the Report, with the exception of Defendants’ objection to entry of default judgment on liability;

(3) The Court modifies Magistrate Judge McAliley’s recommended remedies, as follows:

(a) Plaintiffs Motion to Strike Defendants’ Answer and Affirmative Defenses as Sanctions and Enter a Finding of Liability With Trial to be Held on the Issue of Damages [DE-48] is DENIED, but as a sanction for Defendant Hussain’s conduct in this case, the Court will instruct the jury that the following facts have been established:

(i) Tariq Hussain and the five entity Defendants are employers subject to the overtime provisions of the FLSA; and

(ii) Tariq Hussain employed Plaintiff to work for him and the five entity Defendants;

(b) As part of the sanction, the Court shall instruct the jury on Hussain’s spoliation of evidence and procurement of false evidence, which they may consider in assessing his credibility. The Court will also instruct the jury as to Defendants’ record-keeping obligations, if applicable;

(4) Plaintiffs Motion for Attorneys’ Fees and Costs [DE-82] is GRANTED:

(a) As discussed above, the Court finds that Kleppin and Hussain each should be sanctioned for half of the attorneys’ fees incurred relating to (i) the discovery abuses that necessitated preparation for and attendance at the December 6, 2005 hearing; (ii) preparation of Plaintiffs motion for sanctions relating to Defendants’ failure to comply with Magistrate Judge McAliley’s December 6, 2005 Order; (iii) the attorney time spent addressing Defendants’ response to Plaintiffs motion for sanctions; (iv) preparation for and attendance at the January 12 and 19, and February 3 and 17, 2006 hearings; and (v) preparation of Plaintiffs responses to Magistrate Judge McAliley’s February 21, 2006 Order to Show Cause [DE-85];

(b) This matter is REFERRED to Magistrate Judge McAliley to determine the reasonableness of the fees and costs set forth in DE-146 (re-filed at DE-147, due to apparent legibility problems), as well as to determine Hussain’s ability to pay his portion of the fees and costs she deems reasonable; and

(5) The Court shall refer this Order and Magistrate Judge McAliley’s Report and Recommendation to The Florida Bar, the District of Columbia Bar, and the Bar of the Commonwealth of Massachusetts, as well as this District’s Ad Hoc Committee on Attorney Admissions, Peer Review and Attorney Grievance for their review and for any and all action as to Chris Kleppin that they deem appropriate.

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTIONS FOR SANCTIONS

McALILEY, United States Magistrate Judge.

Diana Bernal filed this action under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (FLSA), in June 2005, claiming that Defendants failed to pay her minimum and overtime wages and her last six weeks of compensation. Defendants filed a motion to dismiss the complaint [DE 19], which was denied [DE 29], and the parties proceeded to discovery. In the parties’ Joint Scheduling Report [DE 26], and at subsequent hearings before this Court, Defendants took the position that they never employed Plaintiff and that, in any event, the Defendants were not subject to the FLSA, as they had not engaged in activities that substantially affected interstate commerce.

On December 6, 2005 this Court held a discovery conference noticed by Plaintiff, who sought to compel discovery from Defendants. At the conclusion of a several-hour discovery hearing the Court granted Plaintiffs motion and ordered Defendants to produce various categories of discovery no later than December 12, 2005. [DE 46]. When Defendants failed to fully comply with that order, Plaintiff filed her first motion for sanctions [DE 48] and requested a hearing on that motion. [DE 47]. Although Plaintiff was justifiably frustrated with Defendants’ mishandling of their discovery obligations, the remedy sought by that motion — striking Defendants’ answer and affirmative defenses and entering a default judgment on liability — was excessive. Had Defendants’ misconduct remained limited to the discovery violations of record at the time Plaintiff filed her first motion, this Court would have denied Plaintiffs motion.

Unfortunately, Defendants’ and their attorney’s misconduct mushroomed. Defendant Tariq Hussain, with his attorney’s advice, continued to engage in discovery violations. Worse, in hopes that the case would be dismissed, Hussain solicited a false affidavit from a third party that made the scandalous accusation that Plaintiff offered that third party $6,000 in exchange for giving false testimony that Plaintiff had in fact worked for Defendants. As it turned out, Plaintiff never sought to bribe the affiant. To the contrary, it was Hus-sain who offered the affiant a financial incentive in exchange for the false accusatory affidavit.

The Defendants’ misconduct multiplied when their attorney, Chris Kleppin, without reasonable inquiry as to the truth of the affidavit, filed it with the Court in his response to the motion for sanctions and relied on it to urge this Court to deny that motion and further, to “severely sanction” Plaintiff and her counsel. In the process Kleppin also improperly threatened to seek sanctions against Plaintiff and her attorney under Federal Rule of Civil Procedure 11. Further, Kleppin issued highly improper discovery requests to Plaintiff in an obvious attempt to intimidate Plaintiff and her counsel into dismissing the lawsuit. As these events unfolded, Defendants continued to violate their discovery obligations.

In light of the wide-ranging nature of Defendants’ and Kleppin’s misconduct, and the seriousness of the recommended sanctions, this Court undertakes a very careful review of the record.

I. Background

At all material times Defendant Hussain was the owner of the five corporate defendants. Hussain operated those businesses out of an office in Sunrise, Florida. All American Investment Realty, Inc. was a real estate brokerage firm, and All American Mortgage Bank, Inc., was a mortgage company. LTDS Petroleum, Inc., LTDAS Petroleum, Inc., and LaBelle Petroleum, Inc. operated gas stations in South Florida.

In her Complaint, Plaintiff alleged she was employed by the Defendants from February 2003 until April 1, 2005. [DE 1, ¶ 13]. Plaintiff claimed that her duties were clerical or secretarial in nature, and that she reported directly to Hussain and regularly worked more than 40 hours a week, but was paid a flat $200 in cash weekly. [DE 1, ¶¶ 17-21]. In their Answer Defendants denied, among other things, that Plaintiff ever worked for Defendants and that this Court had subject matter jurisdiction over this matter. [DE 33].

A. The December 6, 2005 discovery conference

Plaintiff sought the Court’s intervention on a number of discovery issues at the December 6, 2005 discovery conference. Some of those discovery issues are recounted here.

As Plaintiffs counsel explained at that conference, his discovery demands mostly focused on two issues: (1) whether Plaintiff had in fact worked for Defendants and (2) whether Defendants were covered by the FLSA. [DE 56, p. 8]. Thus, in her request for production number 1, Plaintiff requested any evidence that Defendants had paid money to Plaintiff. [DE 56, p. 9]. In their October 12, 2005 response, Defendants Hussain and All American Investment Realty responded that they had two cancelled checks, for $500 and $750, that they would produce at a “place and time mutually convenient .to the parties.” [DE 56, pp. 10-11]. Plaintiffs counsel wrote Kleppin on two occasions and had at least one telephone conversation asking to be sent a copy of promised discovery, including the two checks. [DE 73, n. 9], Approximately one hour before the December 6, 2005 discovery conference, defense counsel faxed a copy of those two checks to Plaintiffs counsel. [DE 56, pp. 9, 11-13]. At the discovery conference, the Court advised Kleppin that a nearly two-month delay in producing two checks- — and the eleventh-hour production only when a hearing had been set — was unacceptable. Id.

In document request number 3, Plaintiff sought all loan applications or requests for appraisal of real property Defendants processed for clients. [DE 56, p. 13]. Plaintiff alleged that as part of her duties for Defendants, she assisted in preparing these documents for clients of the real estate brokerage firms, and that those documents she worked on should bear her name. [DE 56, pp. 13-14], Plaintiff wished to inspect these documents to see if she might identify any with her name, thereby supporting her claim that she had worked for Defendants. [Id],

All Defendants responded with blanket objections; Defendant Hussain provided a supplemental response that he did not have any responsive documents. [DE 56, p. 14], Doubting there were no responsive documents, Plaintiff raised the issue at the discovery conference. Kleppin responded that he had directed Hussain to look through the documents for any that had Plaintiffs name, as he believed only they were relevant. [DE 56, p. 15]. He argued that documents without her name should not be produced because they contained confidential information. [DE 56, pp. 15-16],

As it turns out, the morning of the discovery conference Hussain brought the requested files to his lawyer’s office. [DE 56, p. 16]. It was thus clarified that Hus-sain’s supplemental response that he had no responsive documents was false. Apparently he had given this response at the direction of Kleppin, who unilaterally narrowed the document request to only those documents with Plaintiffs name. At the discovery conference the Court ordered that no later than December 12, 2005 Plaintiffs counsel be given access to all loan applications and requests for appraisal. [DE 56, pp. 19-20, 39; DE 46, ¶ 1],

Interrogatories were issued to all corporate Defendants asking for their gross revenue for the past four years. These interrogatories were directly relevant to the Defendants’ assertion that they were not subject to enterprise coverage under the FLSA. After making boilerplate objections, each corporate defendant responded: “The Defendant’s gross revenue was less than $500,000 in each of the last four years.” [DE 107]. Hussain signed each of these interrogatory responses. Although these interrogatories asked each Defendant to explain how it arrived at its answer, including its calculations, no such information was provided in their responses.

In a related document request, number 8, Plaintiff asked each corporate Defendant for its tax returns for the prior four years. [DE 107]. Again, that inquiry was met with boilerplate objections and the contention that tax returns should not be produced because they are confidential. [DE 107]. At the discovery conference, Kleppin repeatedly advised the Court that his clients insisted they had each earned annual gross revenues of less than $500,000 for the years in question, and therefore were not subject to enterprise coverage under the FLSA, implying that they should not have to produce their returns. [DE 56, pp. 23, 27; DE 83, pp. 17-18]. The Court ordered Defendants to produce the tax returns. [DE 56, pp. 29-31; DE 46, ¶ 2],

In a number of different discovery requests Plaintiff sought any documents that bore Plaintiffs name or referred to Plaintiff. These requests sought to explore Defendants’ denial that Plaintiff worked for them. Other than the two cancelled checks, Defendants denied the existence of any responsive documents.

Following the December 6, 2005 discovery conference, the Court issued a written order memorializing its ore tenus orders entered at the conference, and establishing December 12, 2005 as the deadline for compliance. [DE 46]

B. Plaintiffs initial motion for sanctions

On December 15, 2005, Plaintiff filed a notice of, and requested a hearing on, Defendants’ non-compliance with orders issued at the discovery conference, [DE 47], Plaintiff also filed a Motion to Strike Defendants’ Answer and Affirmative Defenses as Sanctions. [DE 48]. In that motion, Plaintiff urged this Court to invoke its inherent authority to sanction Defendants for their failure to meet discovery obligations.

Plaintiff specifically complained that Defendants’ repeated assertions that their annual gross income for the past four years was less than $500,000 had been proven false, at least in part. Specifically, on December 12, 2005, the corporate Defendants produced tax returns for 2002 and 2003; LTDS Petroleum, Inc.’s tax returns for those two years reflected gross annual income in excess of $500,000. [DE 48, p. 5]. In further contradiction to these tax returns, in a supplemental interrogatory answer served the same day, LTDS Petroleum Inc. swore that its gross revenue was less than $500,000 for those same years. [DE 48, p. 6]. Plaintiff argued that the production of these tax returns established that LTDS Petroleum, Inc., and Hussain as its principal, misled this Court and Plaintiff on this central issue.

Plaintiffs motion for sanctions also focused on Defendants’ repeated denials that they possessed any documents with Plaintiffs name, as. subsequent discovery had proven this false.

One of the many orders issued at the December 6, 2005 discovery conference compelling the production of discovery directed Defendants All American Investment Realty and All American Mortgage Bank to identify each HUD-1 statement in their possession created between October 1, 2002 and May 2005. [DE 46, ¶ 6; DE 56, pp. 53-57], In response, All American Investment Realty produced a list of persons for whom it had HUD-1 statements, including two bearing Plaintiffs name. [DE 48, p. 9; Ex. 4]. Thus, in her initial motion for sanctions, Plaintiff correctly argued that the revelation of those two documents established the falsity of All American Investment Realty’s earlier sworn statements that it had no documents bearing Plaintiffs name.

Relying on these instances of discovery misconduct, Defendants’ repeated use of blanket and bad-faith objections, and what Plaintiff characterized as a general pattern of discovery abuses, Plaintiff asked this Court to sanction Defendants by entering a default judgment on liability.

C. Defendants’ memorandum in response

Defendants’ response to Plaintiffs motion for sanctions (“response”) ventured well beyond the discovery issues raised in Plaintiffs motion. It falsely accused Plaintiff of serious criminal conduct, and accused her lawyer of unethical conduct. Defendants also threatened to seek Rule 11 sanctions against Plaintiff and her counsel, and urged the Court to sanction them both.

Kleppin authored the response. [DE 66, p. 48]. He characterized Plaintiffs motion as being “filed in bad faith, and warrant[ing] that the Plaintiff and her counsel both be severely sanctioned.” [DE 50, p. 2] (emphasis added). Using contorted reasoning that lacks any support in the record, Kleppin characterized Plaintiffs motion as a “preemptive strike to the filing of a Rule 11 Motion by the Defendants, because the Defendants recently came into the possession of two important pieces of evidence”: (1) a transcript of a message left on Hussain’s home answering machine by Plaintiffs husband, Rizwan Ahmed, in which he “threaten[ed] to seriously harm Hussain” and (2) the affidavit of Mohammad J. Khan, which was attached as an exhibit to the memorandum. [DE 50, pp. 2-3]. As Kleppin explained in the response, Khan, in his affidavit, accused Plaintiff of attempting to bribe Khan to falsely testify that Plaintiff had in fact worked for Defendants. [DE 50, p. 3]. Kleppin wrote: “It is obvious, in light of such evidence, that the Plaintiff is seeking a default judgment through a sanctions motion, so that the Plaintiff does not have to confront such evidence.” [DE 50, p. 3].

1. The Khan affidavit

While there is much about Defendants’ response that is objectionable, the filing of the Khan affidavit, and the manner in which Kleppin urged the Court to act upon that affidavit, causes the greatest concern.

The two-page affidavit, dated December 8, 2005, consists of three paragraphs. The first is rather typical: Khan swears that the statements are “true and correct to the best of my knowledge, and I have personal knowledge of the statements made herein.” [DE 50, Ex. 2, ¶ 1],

In the second paragraph Khan states he has known Hussain for about two years. He states that on one occasion, in May, 2004, he was in Hussain’s office for a mortgage transaction, at which time Plaintiff was also present. While there Khan “expressed anger toward Mr. Hussain because of the interest rate and terms in one of the documents.” Khan also had a conversation with Plaintiff about Pakistani clothing and food. [DE 50, Ex. 2, ¶ 2]. The final paragraph reads, in its entirety:

I have never seen or spoken to Diana Bernal until she called me on my telephone approximately last week of October, 2005 and then again last week of November, 2005. On both occasions, Diana Bernal inquired whether I was upset with Mr. Hussain. Diana Bernal suggested that Mr. Hussain somehow ripped me off on the business transaction discussed in the preceding paragraph. Bernal further told that Mr. Hussain treated her and Rizwan Ahmed terribly. Diana Bernal, both times, offered me sum of $6,000 if I were agree in Court to testify that Ms. Bernal was an employee of Mr. Hussain. Both times, Because I am an honest, I declined Ms. Bernal’s offer.

[DE 50, Ex. 2, ¶ 3] (emphasis added). The affidavit was notarized.

2. The telephone messages

In addition to the Khan affidavit, Klep-pin attached to his response a Hindi-to-English translation of a six-minute tape recording. The translator’s certificate indicates that the translation was procured by the law firm of Boreth, Ceaser & Klep-pin and was completed on December 15, 2005. [DE 50, Ex. 1], In his response, Kleppin states that the translations are of messages left by Ahmed (Plaintiffs husband) on Hussain’s telephone answering machine. [DE 50, p. 2], The translation does not identify the speaker or recipient, nor does it identify a date when the telephone messages were purportedly recorded. [DE 50, Ex. I]. The messages are angry and consist mostly of very crude language. In his memorandum Kleppin quotes the transcript at some length and states: “these messages were left shortly after Mr. Hussain informed Mr. Ahmed that he was no longer going to utilize his services as an independent contractor because of what Mr. Hussain describes as illegal and unethical business dealings that Mr. Ahmed was engaging in; the transcript clearly shows a man [Plaintiffs husband] who is completely bent on revenge and guided by unbridled hate.... ” [DE 50, pp. 2-3].

Kleppin asserted that Plaintiffs counsel, Dion J. Cassata had at one time admitted that Plaintiffs husband left these voice mail messages, but later retracted that admission. [DE 50, p. 3]. Kleppin then asked:

Undersigned counsel requests that the Court simply hold an evidentiary hearing in which it hears the audiotape of the threatening messages on the answering machine and hears the voice of Mr. Ahmed at the hearing, and compare [sic] the voice on the tape to the voice of Mr. Ahmed, and determine [sic] whether he indeed left the message.

[DE 50, p. 3]. The Court declined to engage in this voice comparison. [DE 55, ¶3].

3. The discovery issues

After this discussion of the telephone messages and Khan’s accusation of bribery, the memorandum turned to a review of the underlying issues in the case. [DE 50, pp. 3-5]. It stated that Hussain ran his real estate and mortgage companies out of his Sunrise, Florida office, but that none of his petroleum companies conducted any business from that office. It further stated that Hussain did not meet Plaintiff until late 2003 (later than when Plaintiff claims she began her employment with Defendants), when Plaintiffs husband, Ahmed, began to work as an independent contractor for Hussain’s two real estate companies. During this time Ahmed was often present in Hussain’s office, where Plaintiff would visit several times a week and bring lunch to her husband. Ahmed worked with Hussain until May 2005, when Hussain ended the relationship:

Mr. Hussain had to end the relationship between Mr. Ahmed and him because of what Mr. Hussain describes as illegal and unethical practices of Mr. Ahmed with respect to real estate transactions. Once Mr. Hussain informed Mr. Ahmed that he could no longer utilize his services, Mr. Ahmed became enraged and violent, leaving the expletive-filled, threatening messages described above. It is Mr. Hussain’s assertion that Mr. Ahmed is behind the filing of the instant lawsuit, and the intention of the lawsuit is to extract revenge on Mr. Hussain.

[DE 50, pp. 4-5]. According to Hussain, Plaintiff performed “two incidents of casual labor for one of the ‘All American’ companies for $500 and $750, in late 2004,” which is documented by the two cancelled checks produced in discovery. [DE 50, p. 5]. Otherwise, Hussain claimed, Plaintiff never worked for Defendants.

After laying this and other brief groundwork as to the “facts” of this case, Kleppin turned to the discovery issues at hand. [DE 50, p. 5]. As for the two belatedly produced HUD-1 forms bearing Plaintiffs name, Kleppin noted that none of the other documents produced by Defendants bore Plaintiffs name. [DE 50, p. 6]. Further, the two documents with Plaintiffs name were prepared for a real estate transaction Plaintiff had engaged in for her own benefit, and thus were not evidence that she was employed by Defendants. [DE 50, p. 7], Kleppin assumed responsibility for the non-production of the HUD-1 forms when he wrote “Mr. Hussain was instructed by undersigned counsel that the relevant forms to this case were those that could possibly show that Plaintiff worked for him....” [I'd]. Kleppin nevertheless acknowledged that “technically” the HUD-1 forms fall under “a very broad discovery request.” [DE 50, p. 7], He characterized Defendants’ failure to timely produce these two documents as an “oversight, because the focus of the case was on documents showing Plaintiff worked there” [DE 50, p. 8], and argued that the sanctions sought by Plaintiff were excessive for such a discovery violation.

As for the 2002 and 2003 LTDS Petroleum, Inc. tax returns that showed gross revenues in excess of $500,000, Mr. Hus-sain “apologize[d] about being wrong about the one gas station’s gross revenue.” [DE 50, p. 8]. Responding to Plaintiffs call for sanctions, Kleppin made several arguments all to the effect that, in the end, this evidence would not show Defendants are covered by the FLSA, and again argued that the sanctions sought were far too harsh. [DE 50, pp. 8-9]. Then returning to his original theme, Kleppin wrote:

The Plaintiffs Motion is completely without merit, and its filing warrants that the Plaintiff and her counsel be sanctioned. The Plaintiffs Motion is filed in bad faith for several reasons: 1) the actual discovery abuses that the Plaintiff portrays are either false, disingenuous, or grossly exaggerated; and 2) the existence of evidence which tends to show that the Plaintiff has ulterior bad faith motives to bring the lawsuit.

[DE 50, p. 9] (emphasis added). In a further attack on Plaintiffs counsel, Klep-pin wrote:

In this case, the Defendants did not do anything that warrants sanctions, but rather the discovery violations, the accusations of perjury, lying, and so forth are completely overblown, grossly exaggerated, or fabricated by Mr. Cassata.

[DE 50, p. 13](emphasis added).

Kleppin then put forth an analysis of enterprise and individual coverage under the FLSA. [DE 50, pp. 14-17]. He concluded that the Defendants are not “engaged in interstate commerce” and that Plaintiff did not work for the one defendant gas station that at that point had been shown to have reported gross revenues in excess of $500,000 for a two-year period. Kleppin wrote:

Undersigned counsel, as part of the Rule 11 process, asked Mr. Cassata to explain how the Plaintiff worked for the gas station 35 miles away, and he refused to respond to that letter. The Defendants are not filing that letter with the Court because the 21-day period has not yet elapsed. Accordingly, Plaintiff cannot establish enterprise coverage. Therefore, there is no subject matter jurisdiction over this matter.

[DE 50, p. 17](emphasis added).

4. The conclusion

Kleppin concluded his response memorandum with this paragraph:

While discovery is certainly not over, and Mr. Khan is set for deposition in early January, 2006, and will certainly be vigorously examined by Plaintiffs counsel, and while Plaintiff has denied the allegations contained in Mr. Khan’s Affidavit, and while neither undersigned counsel nor Mr. Cassata can say for sure who is lying and who is telling the truth because neither one of them were in the Sunrise, Florida business office at the relevant times, it appears from the evidence adduced thus far that it is not Mr. Hussain who is the dishonest party. It hardly seems to be coincidental that the Plaintiff would file the instant Motion the day that her counsel learns of the transcript of the tape-recorded messages and the Affidavit of Mohammad J. Khan. It appears that this Motion was filed with the Court as a preemptive strike to a filing of a sanctions motion by the Defendants, and to obfuscate the glaring lack of subject matter jurisdiction as set forth [in this memorandum],

[DE 50, p. 18](emphasis added). As is explained below, Khan’s bribery accusation was false, Kleppin had no reasonable basis to state “it is not Mr. Hussain who is the dishonest party,” and Kleppin’s threat of Rule 11 sanctions was baseless, as was his assertion that Plaintiffs motion was a “preemptive strike to a filing of a sanctions motion by the Defendants.”

D. Kleppin’s abusive discovery requests

As this Court later learned, before Cas-sata represented Plaintiff in this case he was employed by defense counsel — he was an associate at Glasser, Boreth, Cesar & Kleppin from October 2003 until February 2005. [DE 51, p. 2 n. 2], In May, 2005, three months after his departure from the firm, Plaintiff contacted and retained Cas-sata as her attorney. [DE 51, p. 4 n. 6]. Cassata, on behalf of his newly constituted law firm, filed this lawsuit in June, 2005.

Plaintiff faxed her initial motion for sanctions to defense counsel on Thursday December 15, 2005. The following Monday, Kleppin issued this interrogatory to Plaintiff:

Did your lawyer, Mr. Cassata, ever copy the hard-drive or transfer the hard-drive of Mr. Kleppin’s computer onto some sort of disc or CD-ROM, at any time during or after Mr. Cassata’s employment with Mr. Kleppin’s law firm?

[DE 51, p. 4, Ex. 2], In addition, Kleppin issued the following requests for admission:

1. Admit or deny that Mr. Cassata transferred or copied the information on Mr. Kleppin’s computer hard-drive onto another hard-drive during or after his employment with Mr. Kleppin’s law firm.

2. Admit or deny that Mr. Cassata transferred or copied the information on Mr. Kleppin’s computer hard-drive onto some sort of disc or CD-rom, at any time during or after his employment with Mr. Kleppin’s law firm.

3. Admit or deny that Mr. Cassata transferred or copied the information on Mr. Kleppin’s computer hard-drive and that he has the information that was contained on that hard-drive at a point in time in his possession, custody, or control.

4. Admit or deny that Mr. Cassata, when he worked for Mr. Kleppin, asked him on more than one occasion if he could have access to Mr. Kleppin’s computer database.

[DE 51, p. 4, Ex. 3]. Plaintiff brought this discovery to the attention of the Court in her reply in support of her initial motion for sanctions. [DE 51], After inquiry at a hearing on January 12, 2006 [DE 83, pp. 75-90], the Court issued a protective order directing Plaintiff not to respond to this discovery. [DE 83, p. 84, DE 63, ¶ 6],

In response to the Court’s questions about the propriety of these inquiries, Kleppin said: “I don’t know what the big deal is.” [DE 83, p. 81]. By way of explanation, Kleppin stated that a motion by Plaintiff for entry of a default judgment, filed early in the case after Defendant had been tardy in responding to the Complaint, was identical to motions for default Kleppin had drafted. [DE 83, p. 77]. The same was true for the complaint, according to Kleppin, and for a subpoena issued by Plaintiff. [DE 83, pp. 77-78]. Kleppin said it was an obvious “copy and paste job.” [DE 83, p. 78]. Kleppin further relayed that when he served the Complaint, Cassata sent a settlement demand that sought attorneys’ fees in an amount Kleppin believed excessive. [DE 83, pp. 75-78]. If Cassata admitted to taking copies of pleadings when he left Kleppin’s law firm, Kleppin reasoned, the Court might find that Cassata simply copied Kleppin’s pleadings, and reduce the time and corresponding fees Cassata claimed for drafting those pleadings. [DE 83, p. 80]. Thus, Kleppin argued, these questions were relevant to a claim of attorneys’ fees by Plaintiff, in the event she later prevailed in the lawsuit.

Plaintiff however, was far from prevailing in the lawsuit. At that point little, if any, documentation had been produced to prove she worked for any Defendant, and Defendants continued to argue vociferously that they were not even subject to the FLSA and that the lawsuit was baseless. Thus, when the discovery was served, Plaintiffs recovery of attorneys’ fees was not an issue; Kleppin’s inquiry had nothing to do with the merits of the lawsuit. More to the point, Plaintiff could not have known whether her attorney, months before she met him, took copies of documents when he left his former employer. Klep-pin acknowledged as much, stating: “I think she could get that knowledge from her attorney.” [DE 83, pp. 79, 85],

Kleppin’s timing in issuing this discovery cannot be overlooked. He did so immediately after Plaintiff filed her motion for sanctions and coincidental with his letter threatening Cassata with Rule 11 sanctions — but many months after Cassata’s allegedly inflated settlement demand. When asked, Kleppin denied that the discovery was a response to Plaintiffs sanctions motion, and explained that he was “simply procrastinating” in conducting discovery. [DE 83, p. 84].

This Court can conclude only that Klep-pin’s inquiries were designed to intimidate both Cassata and Plaintiff. The clear message was that Kleppin and his law firm believed Cassata had taken documents from the firm without its authorization, possibly even after Cassata left that firm. These questions strongly suggest Klep-pin’s firm might bring legal or ethics charges against Cassata. By putting these inquiries in the form of discovery requests to Plaintiff, the clear intent was to make Plaintiff aware of these accusations. The Court can conceive of no purpose for making Plaintiff aware of this other than to intimidate her, and her lawyer, from vigorously prosecuting her lawsuit.

In sum, Kleppin’s discovery requests sought information beyond the scope of this lawsuit and beyond Plaintiffs personal knowledge. He clearly misused the discovery rules to suggest to Plaintiff that her attorney engaged in illegal or unethical conduct in a matter entirely unrelated to this lawsuit.

E. Kleppin’s “Rule 11 letter”

As already noted, in his response to the initial motion for sanctions Kleppin stated he was prepared to file a motion for sanctions under Rule 11 against Cassata. (“The Plaintiff has filed this Motion as a preemptive strike to the filing of a Rule 11 Motion by the Defendants.... ” [DE 50, p. 2], “Undersigned counsel, as part of the Rule 11 process, asked Mr. Cassata to explain how the Plaintiff worked for a gas station 35 miles away, and he refused to respond to that letter. The Defendants are not filing that letter with the Court because the 21-day period has not yet elapsed.” [DE 50, p. 17](emphasis added)). At a later hearing, Kleppin confirmed that, by making these statements in his response memorandum, he advised the Court and Plaintiff he would file a motion for sanctions under Rule 11. [DE 66, pp. 58-60, 78].

The letter referred to in Kleppin’s response was written by Kleppin to Cassata on December 16, 2005, the day after Klep-pin received Plaintiffs initial motion for sanctions. [DE 66, pp. 141^42; DE 51, Ex. 1], The letter began with Kleppin’s request that Cassata dismiss the lawsuit “because the Plaintiff cannot establish