Thomas v. Bostwick

Filing 131

Order by Magistrate Judge Joseph C. Spero resolving 130 Discovery Letter Brief. Defendant shall produce documents or withdraw argument by 3/26/2015. Plaintiff's reply brief due 4/3/2015.(jcslc2S, COURT STAFF) (Filed on 3/19/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD TODD THOMAS,

Case No. 13-cv-02544-JCS

Plaintiff,
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v.

ORDER REQUIRING DEFENDANT TO
PRODUCE FINANCIAL EVIDENCE

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JAMES S. BOSTWICK, et al.,

Re: Dkt. No. 130

Defendants.

United States District Court
Northern District of California

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Plaintiff Richard Todd Thomas has moved for an award of attorneys’ fees after prevailing

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on his ERISA claim against Defendant James Bostwick. Among the factors that courts consider in

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deciding whether to award attorneys’ fees under ERISA is “the ability of the opposing part[y] to

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satisfy an award of fees.” Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118,

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1121 (9th Cir. 2010) (quoting Hummell v. S. E. Rykoff & Co., 634 F.2d 466, 453 (9th Cir. 1980).

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In his Motion, Mr. Thomas argues that Mr. Bostwick “has a substantial ability to satisfy an award

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of attorneys’ fees.” Mot. (dkt. 104) at 5. Mr. Bostwick responds that he “is not in a position to

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satisfy an award of fees.” Opp’n (dkt. 110) at 3−4.

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The parties have now filed a joint letter disputing whether Mr. Bostwick must respond to

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discovery requests propounded by Mr. Thomas regarding Mr. Bostwick’s financial means. See

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Joint Letter (dkt. 130). “Defendant’s position is that unless and until such time as the Court

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reaches a determination that Plaintiff would otherwise be entitled to an award of attorneys’ fees

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. . . Defendant should be entitled to protect his private financial records and information from the

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individual who embezzled millions of dollars from him.” Id. at 2−3. “Mr. Bostwick suspects the

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Court might find that Thomas is not entitled to a recovery of his attorneys’ fees” for other reasons,

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and therefore believes that the Court may not reach the issue of whether Mr. Bostwick would be

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able to satisfy an award of fees. Id. at 3.

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The parties do not dispute that ability to pay is among the factors that the Ninth Circuit has

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instructed courts to consider in evaluating attorneys’ fees motions brought under ERISA.

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Regardless of Mr. Bostwick’s suspicions as to how this Court will rule on Mr. Thomas’s Motion,

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his ability to pay is one relevant factor, and he cannot simultaneously assert inability to pay yet

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withhold any evidence of that from Mr. Thomas. The Court declines to make a preliminary

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determination without such evidence, potentially requiring a second round of submissions and

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analysis if the Court were to find Mr. Bostwick’s ability to pay relevant to the outcome of the

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motion.

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On the other hand, Mr. Thomas’s exhaustive requests for detailed financial records are
excessive and overly burdensome. The Court therefore ORDERS Mr. Bostwick to produce

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United States District Court
Northern District of California

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the following documents to counsel for Mr. Thomas no later than March 26, 2015:

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Mr. Bostwick’s most recent statements for any bank accounts, investment accounts,

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or other accounts in his name with any financial institution. Mr. Bostwick may redact account

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numbers.

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2.

Mr. Bostwick’s most recent state and federal income tax returns. Mr. Bostwick

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may redact any information not relevant to understanding his income, such as his social security

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number and charitable contributions.

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3.

An itemized list stating the value of each of Mr. Bostwick’s assets exceeding

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$5,000 in value not otherwise documented in the materials listed above, including the value of any

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ownership stake in any corporate entity.

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4.

Any other information on which Mr. Bostwick intends to rely in support of his

argument that he cannot afford to pay an award of attorneys’ fees.

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These documents are to be produced on an attorneys’-eyes-only basis. Counsel may not

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disclose these documents or their contents to anyone, including the parties in this action, except

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the Court and its officers. These documents, and any information contained therein, may not be

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included in any form in any public filing. Any filing referencing these documents or the

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information contained therein shall comply with the procedures for filing under seal set forth in

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Civil Local Rule 79-5.
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As an alternative, Mr. Bostwick may withdraw his argument that he would be unable to

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pay an award of fees, and file notice of such withdrawal no later than March 26, 2015. The

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deadline for Mr. Thomas’s Reply is hereby continued to April 3, 2015.

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IT IS SO ORDERED.
Dated: March 19, 2015
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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United States District Court
Northern District of California

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