Hassebrock v. Bernhoft et al
Filing
158
ORDER GRANTING IN PART 106 Motion to Vacate ; DENYING 120 Motion for Disclosure; GRANTING IN PART AND DENYING IN PART 122 Motion to Compel; GRANTING 129 Motion to Compel; DENYING 131 Motion for Sanctions; DENYING 133 Motion ; DENYIN G AS MOOT 134 Motion to Compel; DENYING 135 Motion to Stay; DENYING AS MOOT 144 Motion to Clarify; GRANTING 148 Motion to Compel; DENYING 154 Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge Donald G. Wilkerson on 5/15/14. (sgp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
and)
)
)
)
Plaintiffs,
)
)
v.
)
ROBERT G. BERNHOFT, THE BERNHOFT)
LAW FIRM, SC, ROBERT BARNES, JOHN)
C. NOGGLE, TIM D. BREWER, and JOHN)
)
C. NOGGLE, INC.,
)
)
Defendants.
ORVIL DUANE HASSEBROCK
EVELYN HASSEBROCK,
Case No. 3:10-cv-679-JPG-DGW
ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are a number of Motions that were the subject of an
in-person discovery dispute conference held on May 14, 2014. At the conference, Plaintiff
appeared by counsel, D. Craig Hughes, and Defendants Robert G. Bernhoft and The Bernhoft Law
Firm, SC (“Bernhoft Defendants), also appeared by counsel, Daniel J. Trueden. No other party
appeared (the disputes did not involve other parties and they were each excused from attending).
For the reasons set forth at the hearing and below, the following is hereby ORDERED:
1.
The Motion to Vacate the Settlement Conference (ECF 106) filed by the Bernhoft
Defendants is GRANTED IN PART. The Bernhoft Defendants indicate that a settlement
conference with respect to the claims against them would be futile. Accordingly, they are not
required to attend the settlement conference set for June 17, 2014. However, Plaintiffs and the
remaining Defendants shall appear.
2.
The Motion to Disclose Expert Witness without Report (ECF 120) and Motion for
Page 1 of 5
Extension of Time to Complete Discovery and Extend Deadline for Expert’s Rule 26 Report (ECF
154) filed by Plaintiff are DENIED. In both of these Motions, the first filed before and the
second filed after the May 10, 2014 discovery deadline, Plaintiffs seek to disclose their expert
without the necessary report, as required by Federal Rule of Civil Procedure 26(a)(2)(B).
In this particular matter, the Court did not enter a scheduling order that would set forth the
deadlines for disclosing and deposing expert witnesses. Instead, this Court merely set forth a
discovery deadline. Rule 26(a)(2)(D)(i) provides that expert disclosures (which includes a report)
must be produced “at least 90 days before the date set for trial or for the case to be ready for trial”
unless the Court sets forth a different deadline (or there is a stipulation by the parties). The
presumptive trial month in this matter is September, 2014. Ninety days prior to that month is June
3, 2014. Plaintiffs indicate that they will serve the expert report by the end of May, 2014.
The Local Rules of this Court provide, however, that all discovery shall be concluded
within 115 days prior to the first day of the presumptive trial month (i.e. May 10, 2014). See
Local Rules, Timetable and Deadlines Under Federal Rules and Civil Justice Reform Act. With
respect to the practices of this Court, Plaintiffs generally disclose their experts first and then
Defendants disclose their experts. After these disclosures, the depositions of experts are taken.
In general, the time period for expert disclosures spans four months, from the date the Plaintiff’s
expert is disclosed to the date that Defendant’s expert is deposed.
Plaintiffs first sought “permission” to name an expert, without providing a report, in a
Motion dated April 9, 2014 – prior to the discovery cut-off but not within the practical deadline for
Plaintiffs’ expert disclosure (ECF 120). The purported reason for this procedure was the Internal
Revenue Services’ delay in providing “transcripts for tax years 1994-2008.”
While these
transcripts may be necessary for an expert report, Plaintiffs do not elaborate as to the necessity of
2
the transcripts. Plaintiff also represented that the reports would be prepared “well before the
discovery cutoff.” The reports were not served before the discovery cutoff; and, in fact, Plaintiffs
seek an extension of the expert disclosure deadline (ECF 154).
In this second motion, Plaintiffs seek an extension for “good cause shown” and note the
“unforeseen and unexpected delay in providing an expert report.” At this point in the litigation,
however, good cause is insufficient; instead, Plaintiffs must show excusable neglect.
Fed.R.Civ.P. 6(b). In their motion, Plaintiffs indicate that there are voluminous documents that
required review. This is not extraordinary. At the hearing, Plaintiffs changed tact and indicated
that the reason why expert disclosure is delayed is because of financing: they couldn’t afford an
expert. This also does not show excusable neglect. The discovery deadline in this matter was set
on January 17, 2014 – at that time Plaintiffs should have determined their ability to retain an
expert, not on the eve of the discovery deadline. For these reasons, the deadline for disclosing
experts will not be extended.
3. The Motion to Compel (ECF 122) filed by the Bernhoft Defendants is GRANTED IN PART
and the additional Motions to Compel (ECF 129 and 148) are GRANTED. These discovery
requests were made prior to the discovery cutoff and seek documents related to Plaintiff’s criminal
tax case, the Semper Libera investment, the Lost Fork Trust I, files maintained by Plaintiff’s
criminal defense attorney, Daniel Goggin, and bank account and investment account statements
from 1998 to the present. Plaintiffs state that they have given Defendants all documents in their
possession with respect to the Semper Libera investments and the criminal tax case. As to the
Lost Fork Trust I, Plaintiffs state that these documents are irrelevant. The Court finds that they
are relevant in determining mitigation of damages (which include payment of interest and
penalties to the IRS) and because the trust was used to evade paying taxes. Plaintiffs further argue
3
that because Defendants were not retained until 2005, bank/investment statements from 1998 are
not relevant. Again, these documents may be relevant to the issue of mitigation; however,
Plaintiffs shall only be required to produce documents from 2000 to the present.
Therefore, Plaintiffs are ORDERED to turn over to Defendants any documents in their
possession or control related to the Semper Libera investment, Plaintiff’s criminal tax case, and the
Lost Fork Trust I by May 30, 2014. Plaintiffs are further ORDERED to produce to Defendants
any bank or investment/brokerage statements for accounts which they own, control, or have access
to by May 30, 2014. Finally, Attorney Goggin is hereby ORDERED to provide Defendants with
the entire case file, including all work product, communications, documents, or other materials
related to his representation of Orvil Duane Hassebrock in the case styled: United States of
America v. Orvil Duane Hassebrock, Case No. 09-cr-30080 (S.D. Ill.). Again, Plaintiffs have
placed the circumstances related to his criminal case at issue in his complaint and they are central
to defenses and damages.
4. The Motion for Relief from the April 16, 2014 Order (ECF 133) and the Motion to Stay (ECF
135) filed by Plaintiffs are DENIED. This Court does not find that any of the factors contained in
Rule 60(b) would necessitate reconsidering the April 16, 2014 Order. The Court finds that
Plaintiff’s criminal tax evasion case and the representation therein are intertwined and relevant to
the claims and defenses in this pending matter.
5. Plaintiffs have withdrawn the Motion to Compel (ECF 134). It is accordingly DENIED AS
MOOT.
6. Plaintiffs’ Motion to Clarify (ECF 144) is DENIED AS MOOT.
7. The requests for sanctions and attorney fees contained in Plaintiffs’ Motion for Sanctions
(ECF 131) and Defendants’ Motion (ECF 122) are DENIED. Each party has engaged in actions
4
that could have been avoided had the parties contacted chambers to schedule a discovery dispute
conference. Such a conference would have obviated the need to file Motions and strain judicial
(and the parties’) resources. No sanctions or attorney fees will be issued at this time. The Court
suggests that the parties attempt to cooperate and that, in the event that cooperation is not possible,
they immediately contact the Court for a resolution of any further discovery disputes. As
indicated at the hearing, Mr. Bernhoft shall make himself available for a deposition to occur on
May 23, 2014 in Austin, Texas (either at his offices or the offices of the court reporter, or at
another mutually convenient location). If this date is unworkable, the parties may agree on
another date; barring any such agreement, the parties should contact chambers if there is a dispute
as to the timing of the deposition.
In summary:
1. The Motion to Vacate (ECF 106) is GRANTED IN PART.
2. The Motion to Disclose Expert Witness without Report (ECF 120) is DENIED.
3. The Motion to Compel (ECF 122) is GRANTED IN PART and DENIED IN
PART
4. The Motion to Compel (ECF 129) is GRANTED.
5. The Motion for Sanctions (ECF 131) is DENIED.
6. The Motion for Relief (ECF 133) is DENIED.
7. The Motion to Compel (ECF 134) is DENIED AS MOOT.
8. The Motion to Stay (ECF 135) is DENIED.
9. The Motion to Clarify (ECF 144) is DENIED AS MOOT.
10. The Motion to Compel (ECF 148) is GRANTED.
11. The Motion for Extension of Time (ECF 154) is DENIED.
IT IS SO ORDERED.
DATED: May 15, 2014
DONALD G. WILKERSON
United States Magistrate Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?