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holding seven-month time lag does not support causal link
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No. 95-3195 No. 95-3292
05-27-1997
Lisa MANN, Appellant/Cross-Appellee, v. UNIVERSITY OF CINCINNATI, Robert A. Monast, and Jon D. Clemens, Appellees, University of Cincinnati and Taft, Stettinius & Hollister, Cross-Appellants.
Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.) On Appeal from the United States District Court for the Southern District of Ohio, No. 92-00852; S. Arthur Spiegel, Judge. Synopsis
S.D.Ohio, 824 F.Supp. 1190, 152 F.R.D. 119. AFFIRMED. Procedural Posture(s): On Appeal. Before: SUHRHEINRICH, SILER, and DAUGHTREY, Circuit Judges.
Opinion
PER CURIAM. Plaintiff Lisa Mann, pro se on appeal, appeals the district court's entry of final judgment following a jury verdict for defendants on her claim of sexual harassment against the University of Cincinnati and two teaching assistants. The University and its outside counsel, the Taft law firm, cross-appeal the district court's imposition of sanctions against them.
I. Appeal
A. Facts
Mann was an undergraduate student at the University of Cincinnati in the College Conservatory of Music between 1985 and 1991. On October 29, 1992, she sued under 42 U.S.C. § 1983 and 20 U.S.C. § 1681(a), alleging that two of her former teaching instructors, graduate students Robert Monast and Jon Clemens, had sexually harassed her and then penalized her academically, in violation of her Fourteenth Amendment right to equal protection. She claimed that defendant University of Cincinnati failed to correct these improprieties, in violation of § 1983. Plaintiff also asserted that she was denied a right to education at the University in violation of 20 U.S.C. § 1681. Plaintiff alleged that Monast suggested that they have a sexual relationship, and then verbally abused her after she declined. Plaintiff further claimed that after she terminated the student-instructor relationship, he failed to give her a grade. Clemens also allegedly suggested that she sleep with him and then gave her a poor grade in the course because she refused. Finally, plaintiff alleged that university officials did nothing about the incidents, after she complained to them. Plaintiff sought compensatory and punitive damages. A jury found for defendants. After the district court entered final judgment dismissing Mann's suit, she moved for a new trial. The district court denied it. This appeal follows.
B. Discussion
Plaintiff claims that: (1) the district court should have ordered a new trial on the ground that the verdict was against the weight of the evidence, and (2) that the district court abused its discretion in various rulings.
1. Weight of Evidence
We accord great deference to a district court's denial of a motion for a new trial asserting that the verdict was against the great weight of the evidence. J.C. Wyckoff & Assocs. v. Standard Fire Ins. Co., 936 F.2d 1474, 1487 (6th Cir.1991). A trial court should not set aside the verdict unless it is against the clear weight of the evidence. Id. In other words, it should deny the motion if the verdict that has been reached is reasonable. Id. A verdict is not unreasonable simply because different inferences and conclusions could have been drawn or because other results are more reasonable. Id.
a. Disqualification Motion
The magistrate judge found that when plaintiff filed her belated motion to disqualify, defendants would have been prejudiced by having to switch counsel because outside counsel had already performed considerable work on the case. We give wide latitude to such decisions. United States v. Mays, 69 F.3d 116, 121 (6th Cir.1995), cert. denied, 116 S.Ct. 2504 (1996). In any event, plaintiff failed to preserve that objection for appeal.
a. Monast
Plaintiff's account of events differs drastically from both Monast's and Clemens' testimony. The jury was free to credit their testimony over hers, as it obviously did. Further, the jury could have reasonably concluded that Monast's conduct was not sexual or discriminatory, because the record showed that he was also verbally abusive with other students. As for the "Incomplete" grade he gave her, Monast testified that not only had she refused to complete the class, but she had not completed enough assignments to warrant a grade. Moreover, he offered plaintiff several alternatives for completing the course, but she did not pursue any of them. Finally, Monast denied making any late-night phone calls to plaintiff. The jury obviously believed him.
b. Clemens
Clemens admitted asking Mann if she wanted to have a sexual relationship with him. Clemens explained he was concerned that plaintiff's desire for a sexual relationship might be interfering with her school performance. Moreover, Clemens testified to plaintiff's remarks indicating that plaintiff was interested in him. Plaintiff testified that Clemens, in cahoots with Monast, mocked and embarrassed her. Again, the record reveals that the jury had a sufficient basis to believe either plaintiff or Clemens. It obviously concluded that Clemens had not created a "discriminatorily abusive ... environment." Cf. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Moreover, Clemens explained the low grade he gave her on an assignment and for the semester. In short, the jury had ample ground for concluding that plaintiff failed to prove sexual harassment. The district court did not err in denying the motion for a new trial.
2. Other Rulings
b. Peremptories
The district court's decision to allow defendants to share six peremptory challenges while giving plaintiff only four was well within its discretion. 28 U.S.C. § 1870; Fed.R.Civ.P. 47(b). Clemens and Monast were differently situated. The jury could have found for one or both, while exonerating the University. See Goldstein v. Kelleher, 728 F.2d 32, 37 (1st Cir.1984) (holding that district court did not abuse discretion by giving extra peremptory challenges to defendants who "ha[ve] even colorably different interests"). Any error would be harmless anyway, because defendants actually used only one of their peremptory challenges. That is three less than plaintiff, and she did not use all four of her peremptories. See Mills v. GAF Corp., 20 F.3d 678, 679 n. 2 (6th Cir.1994).
c. For Cause Dismissal
The district court was not required to dismiss for cause the juror who was on the same board of directors as one of Taft's tax lawyers. Cf. Cox v. Treadway, 75 F.3d 230, 239 (6th Cir.), (district court's refusal to dismiss venireperson who was related to two DEA agents was not error), cert. denied, 117 S.Ct. 78 (1996). In any event, plaintiff did not move to strike this venireperson for cause and therefore forfeited the issue. Marks v. Shell Oil Co., 895 F.2d 1128, 1129 (6th Cir.1990).
d. Evidentiary Rulings
The district court did not err in preventing plaintiff from learning that defense counsel had inspected her medical records since plaintiff was not seeking additional relief for invasion of privacy or deprivation of her constitutional right to privacy. In fact, it does not appear from the record that the court explicitly barred her from doing so. Nor did the court err in not preventing defendants' psychological expert from testifying simply because she had earned her degrees at the University of Cincinnati, a fact which goes to her credibility. The expert's review of a newspaper article discussing stalking charges Mann filed against another woman was of the type of information allowed by Fed.R.Evid. 703 (experts may consider any information "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject...."). Finally, we hold that the district court did not err in allowing defendants to introduce plaintiff's employment history, that she lived with her grandparents rather than her mother, testimony regarding the fire and the car wreck. United States v. Hawkins, 969 F.2d 169, 174 (6th Cir.1992).
II. Cross-Appeal
A. Facts
Defendants and their outside counsel, the Taft law firm, were sanctioned for their conduct in reviewing plaintiff's medical records on file at the University Health Services. The magistrate judge held that the University and defense counsel violated plaintiff's constitutional right of privacy, plaintiff's physician-patient privilege, and both the spirit and letter of Fed.R.Civ.P. 45, by voluntarily producing and examining subpoenaed documents before the date specified in the subpoena for compulsory production. See 824 F.Supp. at 1195-1203. The magistrate judge prohibited defendants and their counsel "from examining subpoenaed records prior to the return date of the subpoena," and further required them to "provide at least fourteen days notice to opposing counsel on all future subpoenas, absent exigent circumstances." He also barred defendants from using either Dr. Kindel's file or the Student Health Services' file (with the exception of a one-page report by Dr. Hani Abdulla) for any purpose. 824 F.Supp. at 1206. The magistrate judge ordered the University and Taft to pay jointly $2,500 plus costs to plaintiff for violation of her rights. The district court upheld the magistrate's analysis regarding plaintiff's right to privacy and Rule 45. 152 F.R.D. at 127; see also 152 F.R.D. at 120 n. 1 (disagreeing with his treatment of physician-patient privilege). The court also adopted the sanctions imposed. On appeal, defendants maintain that all three of the magistrate judge's rulings are wrong. They also question the court's authority to sanction.
The district court adopted the factual findings of the magistrate judge, after a hearing on plaintiff's motion for a protective order and for sanctions. See Mann v. University of Cincinnati, 152 F.R.D. 119 (S.D. Ohio 1993) (district court opinion; quoting 824 F.Supp. 1190, 1192-95 (S.D. Ohio 1993) (magistrate judge's opinion)). They are lengthy; we therefore incorporate them by reference here.
B. Discussion
1. Constitutional Privacy Right
The lower courts held that the medical records at issue were of such a private and personal nature that plaintiff enjoyed constitutional protection. This Court has consistently rejected such constitutional claims, however. See J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir.1981) (concluding that "the Constitution does not encompass a general right to nondisclosure of private information"; juveniles had no privacy right in their social histories prepared by state probation authorities); Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir.1994) (rejecting inmate's claim that his constitutional right to privacy was violated by the disclosure of his HIV infection to a corrections officer; citing DeSanti ); Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir.1995) (holding that unauthorized release of rape victim's medical records did not rise to level of breach of right recognized as "fundamental" under Constitution; following DeSanti and Wigginton ). The imposition of sanctions cannot be based upon this basis.
2. Physician-Patient Privilege
Although the district court rejected the magistrate judge's conclusion that the Sixth Circuit would recognize a physician-patient privilege, see 152 F.R.D. at 120 n. 1, we address the question for the sake of completeness. In answering this question, we look to the federal common law of privilege. Fed.R.Evid. 501; Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir.1992). The magistrate judge erred in concluding that the Sixth Circuit would recognize a doctor-patient privilege under federal common law. Contrary to the magistrate judge's opinion, Hancock expressly holds that federal courts do not recognize a federal physician-patient privilege. Id. at 1373. See also Patterson v. Caterpillar, Inc., 70 F.3d 503, 506-07 (7th Cir.1995) (same). Because no privilege exists in the federal courts, this likewise cannot be the peg on which to impose sanctions.
In fact, the magistrate judge, "invite[d] defendants to appeal this ruling so that the Sixth Circuit may speak with specificity regarding the constitutional privacy right and the doctor-patient privilege associated with medical records under the circumstances existing in this case." 824 F.Supp. at 1198.
3. Rule 45
The magistrate judge held that although defendants' attorney and the University properly issued a Rule 45 subpoena, they improperly obtained the records and violated Rule 45. Defendants argue that under Rule 45 lawyers obviously cannot require the custodians of documents to produce those documents ahead of schedule, but that it does not bar the custodians from choosing to do so. We need not decide today exactly how Rule 45 applies in every hypothetical case, because in this case it cannot be disputed that the University and defendants' attorney knew that plaintiff wished to assert a privilege over her medical records, and therefore should have known that she had standing to challenge the subpoena, regardless of her ultimate success. See 9A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2459 (1995) (noting that "[o]rdinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action unless the party claims some personal right or privilege with regard to the documents sought"). By seeking signed medical releases from plaintiff, defendants' attorney initially communicated her shared belief in plaintiff's putative right to assert a doctor-patient privilege. At some point however, defendants' attorney apparently decided that plaintiff had no privilege to assert and that there were no remaining impediments to defendants' viewing the medical records. The problem is that she failed to reveal this change of heart to plaintiff's counsel, so that plaintiff could develop other possible strategies for protecting the medical records. The deception began when defense counsel served a copy of the subpoena (which assumes that the documents are beyond the control of the requesting party) on plaintiff's counsel, but did not send along the ex parte letter served on the records custodian informing the custodian that she could turn the documents over early. This had the not unpredictable effect of depriving plaintiff of an opportunity to utilize the mechanism available in Rule 45 for objecting on grounds of privilege in clause (c)(2)(B)(iii). To top it off, defense counsel went and looked at the documents, not even waiting for early, voluntary, ex-parte compliance. When plaintiff's counsel described the nature of the dispute to the magistrate judge during their telephone conference on plaintiff's motion for a protective order and to quash the subpoena, defendants' attorney made no mention of the fact that she had already reviewed the documents in question. Defendants' attorney remained silent when the magistrate judge ordered plaintiff to review the documents, produce those to which she had no objection, and turn over to the court for in camera review those to which she wanted protected, i.e. those that she did not want anyone else to see. Although defendants' attorney had stated in her responsive pleading that she had already viewed the documents (which the magistrate judge did not receive prior to the telephone conference), her silence at critical points in the telephone conference can only be characterized as material omissions. Defendants' deception went undiscovered until Mann went to the University Health Services and was informed by the records custodian that defense counsel had already seen and copied her medical records. Under these circumstances, we agree that, at a minimum, defendants violated the spirit of Rule 45. This is true even though, as we have just held, plaintiff ultimately could not have prevented defendants from viewing the documents based on either a physician-patient privilege or constitutional right. As the magistrate judge put it: "Whether the privacy or privilege claim is valid is not the question. When a colorable claim is asserted, it is the court which must resolve the issue not the attorney seeking discovery." 824 F.Supp. at 1201. Here defendants' attorney created the false impression that she was complying with the discovery schedule set up by Rule 45, but then subverted that procedural scheme when she: (1) sent an ex parte letter seeking early compliance, (2) viewed and copied the records with no notice to plaintiff or her attorney, thereby depriving plaintiff of an opportunity to challenge the subpoena, and (3) remained strangely silent during the telephone conference called by the magistrate judge to establish procedures for protecting the documents. The discovery rules exist to facilitate the exchange of relevant information between litigants; they were not meant to be tools of deception. That is precisely how defendants' attorney used them here, and in the process, wasted the time of the court and the parties. Given this conclusion, we need not address defendants' other objections to the lower court's rulings regarding Rule 45.
Read literally, Rule 45(a)(1)(C) seems to mean simply what it says: the person subpoenaed must produce the specified documents "at" the time and place specified, not before and not after. One could argue that use of the term "at" instead of "on or by" or "on or before" said date intends production at a precise moment in time, as opposed to a period of compliance up and until a certain date. As defendants point out, most of the time early production of the documents is not a problem, because the person subpoenaed is the only person with standing to contest the subpoena and he or she has no objections. However, because of the possibility of objections, which Rule 45 clearly contemplates, and accounts for, it would also appear that a set date is necessary to establish a time frame for filing those objections. Other parts of the rule confirm this interpretation: subsection (b)(1) requires that prior notice of any commanded production of documents and things or inspection of premises before trial "shall be served on each party in the manner prescribed by Rule 5(b)." See 5A James W. Moore, Moore's Federal Practice, ¶ 45.05[3] (1995) ("This provision [ (b)(1) ], added in 1991, affords other parties the opportunity to object to the production or inspection, or to serve a subpoena requiring additional production at the same time and place." (citing Committee Note of 1991)).
Although plaintiff does not have a substantive right in the physician-patient privilege under federal common law, she does under Ohio law. See Ohio Rev. Code § 2317.02(B)(1). Hospital records containing privileged communications are included within the privilege. State v. McKinnon, 525 N.E.2d 821 (Ohio 1987). The privilege is, however, subject to exceptions, including the situation where patient turns litigant. See O.R.C. § 2317.02(B)(1)(a)(iii) (stating that the testimonial privilege does not apply "[i]f a civil action ... is filed by the patient"). However, even that waiver of privilege is limited. See § 2317.02(B)(3)(a) (providing that physician "may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to him by the patient in question in that relation, or his advice to the patient in question, that related causally or historically to physical or mental injuries that are relevant to issues in the ... civil action").
Defendants also object to the magistrate judge's requirement that subpoenas must provide at least 14 days' notice to opposing counsel, absent exigent circumstances. 824 F.Supp. at 1206. Defendants are correct that Rule 45(a)(1)(C) allows the lawyer issuing the subpoena to select the return date, subject only to the requirement that he or she "take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Fed.R.Civ.P. 45(c)(1) (emphasis added). However, the rule must be read as a whole. Rule 45(c)(2)(B), which states that the person commanded to produce documents "may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service," file objections. Implicit in the rule then is the assumption that in general, more than 14 days' notice will be provided. See generally 9A Wright & Miller, § 2463 (noting that "fourteen-day objection period only applies to subpoenas demanding the production of documents or the inspection of premises"). What binds the issuing attorney to this assumption of reasonableness is his signature on the subpoena. See generally 1991 Advisory Committee Notes ("Necessarily accompanying the evolution of this power of the lawyer as officer of the court is the development of increased responsibility and liability for the misuse of this power. The latter development is reflected ... in the requirement imposed by paragraph (3) of this subdivision that the attorney issuing a subpoena must sign it."). In short, to the extent the magistrate judge's opinion holds that Rule 45 "requires" at least fourteen days notice to opposing counsel, he was incorrect, both because the rule does not explicitly set a time and only addresses notice on the subject of the subpoena. However, to the extent that the magistrate judge deemed fourteen days to be the measure of reasonableness, he was correct. In any event, for the right to object to have any meaning, notice of counsel must be simultaneous with notice to the subject of the subpoena. This hardly places an extra burden on the issuing attorney. In all events, this issue is moot.
4. Sanctions
The nonmonetary sanctions are now moot, as they restricted the conduct of defense counsel in this case.
Without articulating the source of his power, the magistrate judge ordered sanctions. 824 F.Supp. at 1203-05. Invoking the Federal Rules of Civil Procedure generally and its inherent authority, the district court affirmed and adopted these sanctions. 152 F.R.D. at 127. Defendants argue that because no particular rule authorizes sanctions here, the sanctions rest entirely on the "inherent powers" of federal courts, and that such power is unavailable here because no bad faith was shown. It is well settled that courts have inherent authority to impose sanctions on a party and attorney for bad faith conduct during the course of litigation. Chambers v. NASCO, Inc., 501 U.S. 32, 43-50 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66 (1980); Ray A. Scharer & Co. v. Plabell Rubber Prods., Inc., 858 F.2d 317, 320-21 (6th Cir.1988); Shimman v. International Union of Operating Engineers, Local 18, 744 F.2d 1226, 1230 (6th Cir.1984) (en banc). We review a district court's award of sanctions for abuse of discretion. Chambers, 501 U.S. at 55. Before any such sanction may issue, the trial court must find that the conduct at issue "constituted or was tantamount to bad faith." Roadway Express, 447 U.S. at 767; Scharer, 858 F.2d at 321-22. A "mistake" would not meet the requirements for sanctions. Scharer, 858 F.2d at 322. Defendants claim that neither the magistrate judge nor the district court made a finding of bad faith and that the record does not support such a finding. Defendants seize upon the magistrate judge's statement that "it has not been demonstrated that the University or defendants' counsel have done anything illegal or unethical; nor have they disobeyed a Court order." 824 F.Supp. at 1205. Defendants' recitation of an isolated passage is a red herring; the inherent authority to sanction exists for situations where a party or attorney's conduct is not covered by one of the other sanctioning provisions. See Chambers, 501 U.S. at 50 (noting that if bad-faith conduct during course of litigation can be adequately sanctioned under the Rules, the court should ordinarily rely on the Rules rather than its inherent power, though it may certainly do so in its informed discretion). To say that the magistrate judge did not make the requisite findings is to ignore the very core of the magistrate's findings that defendants "violated both the letter and the spirit of the discovery rules in general and Rule 45 in particular" by the issuance of the ex parte communication suggesting early compliance. 824 F.Supp. at 1202. In the magistrate judge's view, 6 [t]he statements of defendants' attorney and University counsel to the effect that they unilaterally determined that plaintiff's attorney had sufficient time to file a motion by the morning of April 6, 1993 is indicative of the overly aggressive style of litigation they practiced, which is deserving of sanctions. Defendants' attorney knew plaintiff's attorney would not be prepared by April 6 to oppose the subpoena, because he told her on April 1 that he needed until April 9 to resolve the issue. The ex parte instruction to the subpoena recipient to produce the records before the deadline indicates an intent to deprive Ms. Mann of her opportunity to challenge the subpoena. Defendants' attorney's failure to advise plaintiff's attorney that she would examine the records on April 6 strongly supports the conclusion that she did not intend to provide him with an opportunity to object. Indeed, in her brief she argued she was not required to notify him. (Doc. 10, p. 3). The failure of defendants' attorney and University counsel to advise plaintiff's attorney that the records had already been examined after they learned he had contacted the Student Health Services on April 6 indicates that they knew they had done something improper. .... There is no justification for defendants' attorney secretly travelling to the Student Health Services on April 6, 1993, reviewing Ms. Mann's medical records before Ms. Mann had a reasonable opportunity to object, and sharing the information with University counsel. 824 F.Supp. at 1202-03. See also id. at 1204 ("Furthermore, defendants' attorneys have shown no professional respect for their opponent's right to limit improper discovery."). The district court, for its part, stated: Based on the facts of this case, we conclude, without any hesitation, that this is exactly one of those "appropriate" cases warranting "the most severe in the spectrum of sanctions." .... Consequently, in an effort to deter the Defendants and others for [sic] engaging in such harmful and improper conduct—conduct for which the Defendants have shown not the slightest remorse—as well as to compensate the Plaintiff, and as a punitive measure, we hereby ORDER the Defendants and their attorneys to pay Ms. Mann $2,500. Furthermore, with respect to the Plaintiff's Application for Award of Attorney's Fees and the Defendants' Objections, we conclude that the Plaintiff's additional request for $3,307.45 for the costs associated with preparing and arguing the Plaintiff's motions for protective order and to quash subpoena, is also reasonable in light of the outrageous and inexplicable conduct in which the Defendants have engaged in this case. 152 F.R.D. at 127. These findings are more than "tantamount" to a finding of bad faith on the part of defendants; they are explicit findings of bad faith. For the foregoing reasons, the judgment of the district court in Appeal No. 95-3195 is AFFIRMED; and the judgment of the district court in Appeal No. 95-3295 is also AFFIRMED. SILER, Circuit Judge, concurring in part and dissenting in part. 7 I concur in the majority opinion's conclusion that the appeal by the plaintiff Lisa Mann should be affirmed. However, I respectfully dissent from the majority opinion's conclusion that the cross-appeal by the University of Cincinnati and counsel should be affirmed. Initially, I agree with the conclusions of the majority that there is no constitutional right of privacy or a physician-patient privilege involved here. My dissent only goes to the authority of the court to sanction the University and its counsel under the facts of this case. In reaching this conclusion, I do not approve of the conduct of defense counsel, because I feel that it is uncivil. However, uncivil conduct not amounting to a violation of the rules of the court or not rising to the level of unprofessional conduct, contemptuous conduct, or deliberate delaying of the proceedings is not sanctionable. The conduct which justifies sanctions according to the majority was the ex parte letter served on the records custodian, counsel's viewing and copying the records after the subpoena was served, and silence on the part of defense counsel during the telephone conference pertaining to the motion by the plaintiff for a protective order. First, I do not think that we should fashion a rule that counsel cannot have ex parte communications with a potential witness, especially one who is employed by the client. In this case, the one to whom the communication was addressed was an employee of the University of Cincinnati, represented by counsel in this case. Second, if the records custodian was going to deliver the documents anyway, the viewing or copying of the documents by counsel on the day following the service of the subpoena seems to be immaterial. For instance, if the records custodian had delivered the records to defense counsel on Wednesday, April 7, 1993, before plaintiff's counsel filed his motion for a protective order and to quash, the documents still would have been provided to counsel without violating Rule 45. But Rule 45 was never violated at all. The majority indicates that defendants violated the "spirit of Rule 45." However, Rule 45 does not require the custodian of the records to hold the documents for a specified time period before delivering them to counsel, nor does it mandate that counsel refrain from accepting them until after opposing counsel can object. If we sanction a party for violating the spirit of the rule without violating the language of the rule, we are essentially rewriting the rule, which would be a mistake on our part. Now, perhaps counsel should have advised the court during the telephonic conference that she had copied and retained the health records of the plaintiff. Nevertheless, counsel did not lie to the court in response to a question either by the court or by opposing counsel as to whether she had copies of the records. The failure on the part of counsel to advise the magistrate judge that such records had been obtained did not delay the court, as counsel for the plaintiff would probably have filed the motion to quash and to return the copied records, had he known defense counsel possessed the records. 8 The district court sanctioned the University and counsel under its inherent authority for bad faith conduct during the course of litigation. The defendants, as the majority asserts, claim that neither the magistrate judge nor the district court found bad faith, and that is correct. However, I agree with the majority that bad faith is implied in the opinion of the district court. It is insufficient under law for bad faith to be implied before sanctions are imposed; the court must make an explicit finding that there was bad faith. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980); Ray A. Scharer & Co. v. Plabell Rubber Prods., Inc., 858 F.2d 317, 321 (6th Cir.1988). Nevertheless, I would find as a matter of law that the conduct by defense counsel and the University did not constitute bad faith which would give rise to any sanctions against them. They did not violate any right of privacy or a privilege. They did not violate Rule 45. I disagree with the majority's conclusion that counsel's conduct "wasted the time of the court and the parties," because the motion to quash would have been heard, anyway. Finally, there is no evidence in the record that counsel received any special advantage for trial by viewing these records. This case does not present circumstances that approximate the egregious facts in cases cited by the majority and Mann to uphold the sanctions imposed. For instance, in Chambers v. NASCO, Inc., 501 U.S. 32, 41 (1991), the conduct was: (1) acts of fraud, (2) filing false and frivolous pleadings, and (3) using tactics of delay, oppression, harassment and massive expense to "reduce [the] plaintiff to exhausted compliance." Moreover, in Roadway Express, Inc., 447 U.S. at 754-56, the conduct was counsel's failure to follow court orders and deliberately delaying the resolution of the case. Finally, in the two cases from this circuit, sanctions were not warranted in Shimman v. International Union of Operating Engineers, Local 18, 744 F.2d 1226, 1238 (6th Cir.1984) (en banc); and the district court did not follow the correct procedure in effecting sanctions in Ray A. Scharer & Co., 858 F.2d at 321-22. I would hold that it was an abuse of discretion for the court to impose sanctions under the circumstances of this case. Therefore, I would REVERSE the order imposing sanctions upon the University and its counsel.