Kerr v. Borough of Petersburg et al

Filing 45

ORDER granting 24 Plaintiff's Motion to Compel; granting in part and denying in part 27 Defendants' Motion to Compel. See Order for details. Signed by Judge Sharon L. Gleason on 8/27/2024. (JDS, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

JAMES KERR,
v.

Plaintiff,

BOROUGH OF PETERSBURG, et al.,

Case No. 1:23-cv-00008-SLG

Defendants.
ORDER RE TWO PENDING MOTIONS
Before the Court are two pending motions:
At Docket 24 is Plaintiff’s Motion to Compel Production of Documents or,
Alternatively, for In Camera Review. Defendants responded in opposition to the
motion at Docket 28 to which Plaintiff replied at Docket 29.
At Docket 27 is Defendants’ Motion to Compel Plaintiff to Provide Complete
Discovery Responses. Plaintiff responded in opposition to the motion at Docket 30
to which Defendants replied at Docket 31.
Plaintiff’s Motion to Compel
Most of the discovery initially sought by this motion has since been
provided. 1 All that remains outstanding now are (1) whether the Court should order
production of the Kerr privilege log, or alternatively, undertake an in camera review

1

See Docket 29 at 1-2.

of those documents; and (2) whether Plaintiff is entitled to an award of reasonable
attorney’s fees for having to file the motion to compel.
The Court finds that in camera review of the documents identified in the Kerr
privilege log is warranted. Given that the Superior Court determined that the vast
majority of the documents withheld in the Koenigs case were discoverable and that
held that the asserted privileges were inapplicable, this Court’s review of the
withheld documents in this litigation is likewise warranted. Defendants’ assertion
that Plaintiff failed to confer about his concerns with the Kerr privilege log is not
persuasive; rather, the Court agrees with Plaintiff’s assertion that the extensive
and unsuccessful conferrals about the Koenigs log sufficed for purposes of the
conferral requirement.

The Court further finds that Plaintiff is entitled to his

reasonable fees and costs incurred in the filing of this motion and may make
application to the Court within seven days of the date of this order, to which
Defendants may respond within 7 days thereafter. No reply shall be filed unless
requested by the Court. Defendant shall submit to the Court the documents
identified in the Kerr privilege log for in camera review within 7 days of the date of
this order.
Defendants’ Motion to Compel
1. Interrogatory No. 1. This Interrogatory asks Plaintiff to identify the date
he first had contact with Northern Justice Project, LLC. Plaintiff objects
on the basis of relevance, and notes that Plaintiff has acknowledged that
Case No. 1:23-cv-00008-SLG, Kerr v. Borough of Petersburg, et al.
Order on Two Pending Motions
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he had consulted with a different attorney about this case before
contacting Northern Justice. The Court agrees with Plaintiff that in these
circumstances, the relevance of the date of Plaintiff’s initial contact with
his current counsel is not relevant to the claims and defenses in this
litigation. Therefore, the motion is DENIED as to this interrogatory.
2. Interrogatory No. 2 and Request for Admission No. 10
These discovery requests seek information on whether Plaintiff is
receiving financial assistance from a third party for the payment of
attorney’s fees in this case.

Plaintiff objects to these requests as

irrelevant and outside the scope of discovery allowed under Rule 26. The
Court finds that it would be relevant information if a witness testifying in
this case was providing financial assistance to Plaintiff, and therefore
GRANTS this portion of the motion to compel solely as to the
identification of any such witnesses, on either Plaintiff’s or Defendants’
witness list, and orders a response on that one topic within 7 days of the
date of this order. But the Court rejects Defendants’ request for the
disclosure of all third party litigation funders as not relevant to proving the
claims or defenses in this case; the Court agrees with the line of cases
Plaintiff cited holding that such requests before trial are premature where
those requests would not produce evidence relating to the substantive

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Order on Two Pending Motions
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claims or defenses. 2 However, this order does not preclude Defendants
from seeking by motion in limine to restrict any David and Goliath
arguments of counsel at trial. 3
3. Requests for Production Nos. 3 and 7
These requests seek production of Plaintiff’s communication with a nonparty, Don Koenigs, about this lawsuit and/or the Koenigs lawsuit.
Plaintiff’s sole objection is relevance. The Koenigs litigation is closely
related to this litigation, as Mr. Koenigs sought the disclosure of a variety
of documents relevant to the claims and factual allegations raised in this
case.

Plaintiff responds that Mr. Koenigs “is merely a Petersburg

resident” who made a public records request and was “simply exercising
[the] fundamental right [of] a citizen to access government records.” 4 The
Court finds that Plaintiff’s communications with Mr. Koenigs, both about
this case and the related public records case, could well contain relevant
information related to Plaintiffs’ assessment of his claims and the
defenses, as well as information as to his damages. As such, the portion
of the motion is GRANTED and any such communications between these
two litigants is relevant in this action and shall be produced within 7 days
2

See Docket 30 at 7, n. 25 and n. 26 (listing cases).

See, e.g., Mason v. Professional Transportation, Inc., 2020 WL 7043554, at *2 (D. Montana,
Dec. 1, 2020).
3

4

Docket 30 at 9.

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Order on Two Pending Motions
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of the date of this order.
The Court further finds that Defendants, having been partially successful
on their motion, are entitled to 50% of their reasonable fees and costs
incurred in the filing of this motion and may make application to the Court
within seven days of the date of this order, to which Plaintiff may respond
within seven days thereafter. No reply shall be filed unless requested by
the Court.
DATED this 27th day of August 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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Order on Two Pending Motions
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