Young v. Dollar Tree Stores, Inc.

Filing 167

ORDER granting in part and denying in part 122 Defendant's Motion to Compel Production and for Contempt of Court. The motion is GRANTED with respect to compelling the disputed documents and the motion is DENIED as to holding deponents in contempt of court. That 130 Plaintiff's Motion for Enlargement of Time to Designate All Experts is GRANTED. Discovery due by 6/20/2012. Dispositive Motions due by 7/2/2012, by Magistrate Judge Michael J. Watanabe on 03/23/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

11-cv-01840-REB-MJW

TAYNA YOUNG, on her own behalf and on behalf of others similarly situated,
Plaintiff(s),
v.
DOLLAR TREE STORES, INC.,
Defendant(s).

ORDER REGARDING
(1) DEFENDANT’S MOTION TO COMPEL PRODUCTION AND FOR CONTEMPT OF
COURT (DOCKET NO. 122)
AND
(2) PLAINTIFF’S MOTION FOR ENLARGEMENT OF TIME TO DESIGNATE ALL
EXPERTS (DOCKET NO. 130)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Defendant’s Motion to Compel Production and
for Contempt of Court (docket no. 122) and Plaintiff’s Motion for Enlargement of Time to
Designate All Experts (docket no. 130). The court has reviewed the subject motions
(docket no. 122 and 130), the responses (docket no. 140 and 145), and the reply
(docket no. 164). In addition, the court has taken judicial notice of the court file and has
considered applicable Federal Rules of Civil Procedure and case law. The court now
being fully informed makes the following findings of fact, conclusions of law and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties

2
to this lawsuit;
2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That at issue in the Defendant’s Motion to Compel Production and
for Contempt of Court (docket no. 122) are e-mail communications
[hereinafter “documents”] sent by Plaintiff’s counsel to the
deponents Cory Candurra, John Combs, Raymond Dery, Maxine
Houston, Katherine (Mullen) Newman, and Carlos Villalobos and
responses thereto;

5.

Defendant argues that such documents are in the possession of
either the deponents or their attorneys, Morgan & Morgan, and
none of these documents are privileged, as they were created prior
to the formation of the attorney-client relationship and therefore are
discoverable;

6.

Defendant served subpoenas upon all of the above-named
deponents to produce documents described Schedule A attached
to docket no. 122. See exhibits A-F. Schedule A requests that the
deponents produce “[a]ll documents evidencing, constituting,
relating or reflecting any communications between you and/or your
counsel and any putative class members, as alleged, concerning
the facts, occurrences or matters set forth in your declaration.” See
exhibits A-F;

3
7.

That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines
the scope of discovery as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the
identity and location of persons who know of any
discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject
matter involved in the action. Relevant information
need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is
subject to the limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain
discovery of ‘any matter, not privileged, that is relevant to the claim
or defense of a party’ . . . may be constrained where the court
determines that the desired discovery is unreasonable or unduly
burdensome given the needs of the case, the importance of the
issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Simpson v. University of Colo.,
220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil
Procedure permit a court to restrict or preclude discovery when
justice requires in order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense. . . .” Id. See Fed. R. Civ. P. 26(b) and (c);

8.

“A document is protected by the attorney client privilege if it reveals

4
a communication between a client and an attorney, made in order
to obtain or deliver legal assistance, that was intended to be treated
as confidential.” Aull v. Cavalcade Pension Plan, 185 F.R.D. 618,
624 (D. Colo. 1998) (citing In re Grand Jury Subpoena, 697 F.2d
277, 278 (10th Cir. 1983)). Furthermore, “[a] document is protected
by the work product privilege if it was prepared in anticipation of
litigation by another party or that party’s representative, and was
intended to remain confidential.” Id. “A party asserting a privilege
has the burden of establishing that the privilege is applicable. . . .
A party asserting waiver of a privilege has the burden of
establishing the waiver.” Id.;
9.

That a failure to assert a privilege or to timely object to requests for
disclosure will result in waiver of the privilege. Prince Lionheart,
Inc. v. Halo Innovations, Inc., 2007 WL 2728343, *5-6 (D. Colo.
Sept. 18, 2007) (attorney-client privilege waived, considering
statements made during deposition and lack of any objection to
same based on attorney-client privilege). It is impermissible to
assert a privilege for the first time in response to a motion to
compel. Sonnino v. University of Kan. Hosp. Auth., 220 F.R.D.
633, 647 (D. Kan. 2004);

10.

That deponents Cory Candurra, John Combs, Raymond Dery,
Maxine Houston, Katherine (Mullen) Newman, and Carlos
Villalobos as well as Plaintiff through counsel could have raised the

5
attorney-client privilege or the work product privilege: (1) when the
subpoenas were issued; (2) at the commencement of their
respective depositions; (3) during the depositions, while the parties
conferred regarding the documents at issue; or (5) at any time prior
to Plaintiff’s Response (docket no. 145) filed on March 1, 2012, to
the subject motion (docket no. 122). The Plaintiff and deponents
did not raise the attorney-client privilege or the work product
doctrine until the Plaintiff’s Response (docket no. 145) was filed
with the court on March 1, 2012. The deponents and Plaintiff have
failed to raise timely objections and therefore Plaintiff has waived
both the attorney-client privilege and the work product privilege as
to the documents at issue in this subject motion (docket no. 122).
Furthermore, I find that the disputed documents are those
responsive to Morgan & Morgan’s initiated original solicitation email to deponents and thus constitute mere general information
supplied by third parties and are not subject to the attorney-client
privilege. Further, I find that the disputed documents are not
protected under the work product privilege since these documents
“do not reflect counsel’s opinions or investigative or litigation
strategies.” See Callaway v. Papa John’s USA, Inc., 2010 WL
4024883, *7 (S.D. Fla. Oct. 12, 2010). Lastly, I find that the
disputed documents are probative and relevant to the issue of class
certification, the parties’ claims and defenses, and to the credibility

6
of the witnesses. For all of these reasons, the subject motion
(docket no. 122) should be granted in part and denied in part as
stated below;
11.

That as to Plaintiff’s Motion for Enlargement of Time to Designate
All Experts (docket no. 130), Plaintiff seeks an extension of time to
designate experts, arguing that Defendant has refused and/or failed
to give relevant data to Plaintiff in the ordinary course of discovery
necessary for Plaintiff to identify and/or retain an appropriate expert
regarding liability and/or damages issues. Specifically, Plaintiff
argues that Defendant has refused to provide any class data,
including the names and contact information for similarly-situated
Assistant Store Managers, or information that could be used to
ascertain and/or extrapolate class damages. See paragraph 4 of
the subject motion (docket no. 130);

12.

That the deadline to complete discovery is April 20, 2012, and the
deadline to file dispositive motions is June 20, 2012. See
Scheduling Order (docket no. 48). The trial preparation conference
is set on September 14, 2012, and the jury trial is set on October 1,
2112. See Judge Blackburn’s Trial Preparation Conference Order
(docket no. 46); and

13.

That additional time to designate experts should be allowed in this
case, and neither party would be prejudice by allowing additional
time to designate experts, and therefore Plaintiff’s Motion for

7
Enlargement of Time to Designate All Experts (docket no. 130)
should be granted.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Defendant’s Motion to Compel Production and for Contempt of
Court (docket no. 122) is GRANTED IN PART AND DENIED IN
PART. The motion is GRANTED with respect to compelling the
disputed documents and the motion is DENIED as to holding
deponents in contempt of court;

2.

That deponents Cory Candurra, John Combs, Raymond Dery,
Maxine Houston, Katherine (Mullen) Newman, and Carlos
Villalobos shall fully comply and produce to Defendant Dollar Tree
Stores, Inc., all documents responsive to Schedule A attached to
the issued subpoenas to the deponents on or before April 9, 2012;

3.

That under the facts and circumstances of this case, it would be
unjust to award expenses pursuant to Fed. R. Civ. P. 37(a)(5)(A)(iii)
as to Defendant’s Motion to Compel Production and for Contempt
of Court (docket no. 122), and therefore each party shall pay their
own attorney fees and costs for this motion (docket no. 122); and

4.

That Plaintiff’s Motion for Enlargement of Time to Designate All
Experts (docket no. 130) is GRANTED. The deadline to designate

8
experts is extended to April 20, 2012. The deadline to designate
rebuttal experts is extended to May 21, 2012. The discovery cut off
date is extended to June 20, 2012. The dispositive motions
deadline is extended to July 2, 2012. The Rule 16 Scheduling
Order (docket no. 48) is amended consistent with this Order. Each
party pay their own attorney fees and costs for this motion (docket
no. 130).
Done this 23rd day of March 2012.

BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE