Potter v. Holmes
OPINION AND ORDER denying 29 Motion to Exclude; granting 34 Motion to Compel ; granting in part 19 Motion to Compel ; denying 20 Motion to Disqualify Counsel ; and denying 25 Motion for Protective Order. Signed by Honorable P. K. Holmes, III on October 14, 2016. (jas) Modified title text on 10/14/2016 (jas).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ALLEN W. POTTER
Case No. 2:15-CV-02260
OPINION AND ORDER
Currently before the Court are Plaintiff Allen Potter’s motion to compel (Doc. 19), Potter’s
motion to disqualify counsel (Doc. 20), Defendant Cassaundra Holmes’s motion for protective
order (Doc. 25), Holmes’s motion to exclude (Doc. 29), Holmes’s motion to compel (Doc. 34),
and the parties’ responses and supporting documents. The Court will address each of the motions
Plaintiff’s Motion to Compel
Potter’s motion 1 seeks “all information regarding the funds spent by [Holmes] individually
and as Trustee for the Trust” to any attorney in representing the trust or Holmes, “including an
itemization of the total billing, payments and source of payments…” (Doc. 19, ¶ 7). Holmes does
not object to producing information about the amount of compensation paid, but does object on
the grounds that “Plaintiff’s counsel requested copies of all attorney fee statements, asked
questions about legal services provided, and asked the Trustee what advice she had received from
her attorney.” (Doc. 21, ¶ 2). Holmes considers this particular information to be subject to
attorney-client privilege and work-product protection. (Id., ¶ 3). Potter contends that this
Local Rule 7.2(a) requires that motions “be accompanied by a brief consisting of a
concise statement of relevant facts and applicable law.” Although Potter failed to comply with
this Rule when filing his motion to compel (Doc. 19) and his motion to disqualify counsel (Doc.
20), the Court will nonetheless consider these motions.
information is not privileged because beneficiaries, including Potter, are entitled to such
information, and because Holmes has filed a counterclaim for damages based on the intentional
tort of improper interference with her contract with a third person. (Doc. 19, ¶¶ 4-5).
Potter is not entitled to detailed invoices because such a request is not reasonable, but is
instead disproportionate to the needs of the case. Fed. R. Civ. Pro. 26(b)(1). As a beneficiary,
however, he is entitled to general billing information so that he can remain reasonably informed
about the administration of the trust. The Court makes this determination based on a beneficiary’s
reasonable entitlement to records, and need not address the privilege claims made by Holmes. 2 A
trust beneficiary “is always entitled to such information as is reasonably necessary to enable him
to enforce his rights under the trust or to prevent or redress a breach of trust.” Salem v. Lane
Processing Trust, 37 S.W.3d 664, 666–67 (Ark. App. 2001) (quoting the Restatement (Second) of
Trusts, § 173 cmt. c (1959)). However, “Arkansas law presumes a trustee has acted in good faith
and places the burden of proof upon those who question his actions and seek to establish a breach
of trust.” Salem, 37 S.W.3d at 667 (citing Gregory v. Moose, 590 S.W.2d 665 (Ark. App. 1979)).
Thus, a beneficiary should be reasonably informed as to what the trustee is paying an attorney, but
absent an articulated need, access to unlimited billing information is not reasonable. See Bell v.
Bank of Am., N.A., 422 S.W.3d 138, 142 (Ark. App. 2012) (“Because the [beneficiaries] were
reasonably informed as to what the [trustee] was paying [the attorney], we cannot say that the
With respect to the privilege issue, the Court notes that the law is unsettled in Arkansas
regarding a beneficiary’s right to discovery of records when a trustee claims attorney-client
privilege. As trustee, Holmes has a duty to keep Potter reasonably informed about the
administration of the trust, but “[t]he drafters of this Code decided to leave open for further
consideration by the courts the extent to which a trustee may claim attorney-client privilege against
a beneficiary seeking discovery of attorney-client communications between the trustee and the
trustee's attorney. The courts are split because of the important values that are in tension on this
question.” Ark. Code Ann. §28-73-813 cmt.
circuit court clearly erred in denying the [beneficiaries’] access to the detailed billing invoices.”);
Salem, 37 S.W.3d at 666 (affirming the denial of a beneficiary’s request for unlimited access to
trust records, where the chancellor found the request to be unreasonable and “noted the [other
beneficiaries’] history of vexatious lawsuits… against [the trustees] and said that she assumed that
[the plaintiff beneficiary] might be acting in concert with them.”).
Holmes has not objected to producing the total amount spent from trust assets for attorney’s
fees. Holmes must produce the total amounts billed by and paid to any attorney representing her
as trustee or individually as it relates to this lawsuit and the related state court action. Holmes
must also produce the source of payments made. However, it is not reasonable for Holmes to
produce detailed billing statements because Potter has not articulated an adequate need for these
comprehensive records, and such production is therefore disproportionate to the needs of the
lawsuit. Potter’s motion to compel will be granted in part.
Plaintiff’s Motion to Disqualify Counsel
A party seeking to disqualify opposing counsel bears a heavy burden.
disqualify counsel are subject to particularly strict judicial scrutiny given the potential for abuse
by opposing counsel. Droste v. Julien, 477 F.3d 1030, 1035 (8th Cir. 2007). “A party’s right to
select its own counsel is an important public right and a vital freedom that should be preserved;
the extreme measure of disqualifying a party’s counsel of choice should be imposed only when
absolutely necessary.” Macheca Transp. Co. v. Philadelphia Indem. Co., 463 F.3d 827, 833 (8th
Cir. 2006) (internal quotation and citations omitted). Given its duty to subject these motions to
particularly strict scrutiny, the Court finds Potter’s argument to be insufficient, especially in light
of Potter’s failure to include a brief in support of the just-over-one-page motion.
In his motion, Potter states that Jack Skinner, one of the attorneys for Holmes in this matter,
is a necessary witness because “he can testify as to the advice that he gave to Cassaundra Holmes
in her capacity as Trustee.” (Doc. 20, ¶3). Potter does not otherwise support this assertion in any
way. Arkansas Rule of Professional Conduct 3.7 states that a “lawyer shall not act as an advocate
at a trial in which the lawyer is likely to be a necessary witness” but if disqualification would cause
a substantial hardship on the client, then the Rule does not apply. Holmes argues in her response—
and the Court agrees—that there would be a substantial hardship if Skinner were disqualified
because he has represented the Defendant in her actions as Trustee since 2013, when the state court
case of Fredrick R. Potter v. Cassaundra Holmes v. Thomas Wright and Kevin Wright, 64 CV2013-54 (II), was filed in Scott County Circuit Court. (Doc. 22, ¶ 7). That case, in which the court
similarly denied a motion to disqualify Skinner, involves many of the same facts as are presented
Potter additionally argues that there is a conflict of interest because Skinner represents
Holmes both in her individual capacity and in her capacity as Trustee. Holmes is being sued in
both capacities, and Potter has not produced any authority in support of the argument that this
alone creates a conflict of interest. 3 The Court will deny this motion.
Defendant’s Motion for Protective Order
Holmes’s motion for protective order (Doc. 25) asks the Court to “enter a protective order
In Potter’s motion to disqualify Skinner in the state court action, he also raised a
conflict of interest argument, but as an additional basis alleged that Skinner also represented two
beneficiaries of the trust at issue. Fredrick R. Potter v. Cassaundra Holmes v. Thomas Wright
and Kevin Wright, 64 CV-2013-54 (II), Motion to Disqualify Attorney Jack Skinner (July 10,
2014), accessed on October 11, 2016.
backto=P&case_id=64CV-13-54&begin_date=&end_date=. There, as here, the brief filed by
Potter in support of his motion contained no authority in support of his positions, except for
quoting the Arkansas Rules of Professional Conduct on an issue not raised in the motion in this
case. Id., Brief in Support of Motion to Disqualify Attorney Jack Skinner, pp. 5-9, (July 10,
to preserve her attorney-client privilege, and the work-product of her attorneys, whether it be in
the form of conversations with her attorneys, other attorney-client communications, or in her
billing statements which she receives from her attorneys.” Federal Rule of Civil Procedure
26(c)(1)(G) provides that “[t]he court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense” by “requiring
that a trade secret or other confidential research, development or commercial information not be
revealed or be revealed only in a specified way.” “The burden is therefore upon the movant to
show the necessity of its issuance, which contemplates ‘a particular and specific demonstration of
fact, as distinguished from stereotyped and conclusory statements.’” Gen. Dynamics Corp. v. Selb
Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973) (citing Wright & Miller, Federal Practice and
Procedure: Civil § 2035 at 264-65).
The Court does not believe that good cause has been shown as to why a protective order
should be entered to preserve attorney-client privilege and work-product immunity. The Court has
decided in this order to appropriately limit discovery on billing statements to total billing,
payments, and source of payments. Any outstanding discovery disputes which may invoke the
attorney-client privilege and work-product immunity have not been presented to the Court and the
deadline for doing so has passed. 4 This motion will be denied.
Defendant’s Motion to Exclude
Holmes’s motion to exclude claims that James R. Filyaw has been identified as an expert
This motion was filed on September 2, 2016. The final scheduling order explicitly
states, “[a]ll discovery must be completed no later than August 8, 2016. The parties may conduct
discovery beyond this date if all parties are in agreement to do so; however, the Court will not
resolve any disputes in the course of this extended discovery. All discovery requests and motions
must be filed sufficiently in advance of that date…” (Doc. 25, ¶ 2). While this discovery motion
was filed after the deadline set in the final scheduling order, the Court nonetheless consider its.
witness by Potter, with the intent that Filyaw give “his legal opinions and conclusions about
whether the Defendant’s acts and actions violated Arkansas law regarding trusts and trustees.”
(Doc. 29, ¶ 1). Holmes asks the Court to exclude all of Filyaw’s testimony because his “expert
legal conclusions would usurp the jury’s role as the trier of fact…” (Id., ¶ 2). Experts may not
offer legal conclusions in the guise of opinions. S. Pine Helicopters, Inc. v. Phoenix Aviation
Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003). However, the Court will not exclude Filyaw
from testifying simply because Holmes anticipates the expert witness will offer legal conclusions.
In the event Filyaw’s testimony directs the jury to legal conclusions regarding the issues in this
case, Holmes may object to such testimony at trial.
Defendant’s Motion to Compel
Holmes’s motion to compel 5 asks the Court to order Plaintiff to produce documents
responsive to Defendant’s Request for Production of Documents No. 6 and No. 7, which seek “all
e-mails, letters, correspondence, and materials” between Allen Potter and Fredrick R. Potter sent
from January 3, 2013 to the present. (Doc. 34-1, p. 2). Potter asserts that this correspondence is
irrelevant, will not lead to any admissible evidence, and contains privileged work-product. (Id.).
The Court disagrees, and finds this correspondence to be relevant to the issues presented in
Additionally, Potter’s counsel has not met its burden in proving that work-product
protection is applicable. In a diversity case, federal courts apply federal law to work-product
claims. See Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000). Documents
produced by non-attorneys in anticipation of litigation may be shielded from production by
Although this discovery motion was also filed after the deadline listed in the final
scheduling order, as with the motion for protective order, the Court will consider it.
the work-product privilege. See, e.g., Diversified Indus., Inc., v. Meredith, 572 F.2d 596, 604 (8th
Cir.1977) (“[T]he concept of work product is not confined to information or materials gathered or
assembled by a lawyer.”). The party asserting work-product protection as a bar to discovery carries
the initial burden of proving a factual basis as to why the doctrine is applicable. See In re Grand
Jury Subpoena Duces Tecum, 112 F.3d 910, 925 (8th Cir. 1997). That party “me[ets] its burden
of providing a factual basis for asserting the privilege when it produce[s] a detailed privilege log
stating the basis of the claimed privilege for each document in question, together with an
accompanying explanatory affidavit of its… counsel.” Plaintiff’s counsel has not done so, instead
choosing to simply allege that “[s]ome of the emails, by Defendant’s own admission[,] contain
information between Plaintiff, Fred [Potter], and Fred [Potter’s] attorney regarding the State Court
litigation.” (Doc. 42, ¶ 1). Potter has not met his burden. Thus, the Court will grant this motion.
IT IS THEREFORE ORDERED that Plaintiff Allen Potter’s motion to compel (Doc. 19)
is GRANTED IN PART, to the extent that Defendant Cassaundra Holmes must produce the total
amounts billed by and paid to any attorney representing her as trustee or individually as it relates
to this lawsuit and the similar state court action, and must also produce the source of such
IT IS FURTHER ORDRED that Potter’s motion to disqualify counsel (Doc. 20) is
IT IS FURTHER ORDERED that Holmes’s motion for protective order (Doc. 25) is
IT IS FURTHER ORDERED that Holmes’s motion to exclude (Doc. 29) is DENIED.
IT IS FURTHER ORDERED that Holmes’s motion to compel (Doc. 34) is GRANTED.
IT IS SO ORDERED this 14th day of October, 2016.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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