Wollesen et al v. West Central Cooperative et al
ORDER granting in part and denying in part 169 Motion to Compel, granting in part and reserving ruling in part 172 Motion to Compel (See Order text). Signed by Magistrate Judge Kelly Mahoney on 2/8/2018. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WILLIAM S. WOLLESEN, et. al.,
WEST CENTRAL COOPERATIVE,
This matter comes before the Court on two motions: (1) plaintiff Iowa Plains
Farms’ (“Iowa Plains”) Motion to Compel Against defendants West Central Cooperative,
WestCo Agronomy Company, LLC, and Farmers Cooperative Company d/b/a Landus
Cooperative (collectively “West Central defendants”) and defendants Wixted Pope Nora
Thompson & Associates, LLC, Wixted, Inc., and Eileen Wixted (collectively “Wixted
Pope defendants”) (Doc. 169), and (2) Iowa Plains’ Motion to Compel Against Wixted
Pope defendants (Doc. 172).1 The Wixted Pope defendants timely filed their resistance
(Doc. 181) and the West Central defendants timely filed their resistance (Doc. 180) to
Iowa Plains’ first motion to compel (Doc. 169). Iowa Plains timely filed a single brief
in response to both resistances. (Doc. 189; see Doc. 186 (granting Iowa Plains an
extension of time to file its reply brief)). The Wixted Pope defendants also timely filed
their resistance to Iowa Plains’ second motion to compel (Doc. 172). Doc. 182. Iowa
Plains timely filed its reply brief. (Doc. 191; see Doc. 186 (granting Iowa Plains an
On December 22, 2017, Iowa Plains filed its First Motion to Compel Against the Gardiner
Thomsen Defendants. (Doc. 194). This motion is not contemplated in this Order, and the Court
reserves ruling on this motion.
extension of time to file its reply brief)).
The Court entertained oral argument on these
motions on December 28, 2017 (Doc. 196).2
For the following reasons, Iowa Plains’ Motion to Compel Against West Central
and Wixted Pope (Doc. 169) is granted in part and denied in part and Iowa Plains’
Motion to Compel Against Wixted Pope (Doc. 172) is granted in part and ruling is
reserved in part.
The factual history of this case is complex and need not be recounted in full for
purposes of the instant motions. The Court recognizes that the following synopsis
eliminates many details, however, in the interest of brevity, the facts are as follows:3
Plaintiffs allege that defendants conspired “to hide and conceal the known
fraudulent conduct of Chad A. Hartzler.” Doc. 64 at 2. This conspiracy, plaintiffs
allege, involved devising a story in which plaintiffs and Hartzler, together, engaged in
fraudulent and illegal conduct. Doc. 64. Subsequently, in an attempt to lessen the
repercussions of their own wrongful conduct, certain defendants used plaintiffs as a
scapegoat. Id. at 2. As a result, plaintiffs plead damages in excess of $6 million. Id. at
Although the Honorable C.J. Williams, Chief United States Magistrate Judge, presided over
the hearing, the case was reassigned to the Honorable Kelly K.E. Mahoney, United States
Magistrate Judge, upon Judge Williams’ recusal. (See Doc. 199). The undersigned became
fully apprised of the case and present motions prior to issuing this order and, further, finds that
lacking the benefit of oral argument on the instant motions did not place her or the parties at a
disadvantage in rendering a decision.
Because the instant motions are plaintiffs’ motions to compel and because relevancy is raised
as an issue, the facts set forth are taken from plaintiffs’ Second Amended Verified Complaint
and Jury Demand (Doc. 64), unless otherwise stated. The Court is neither affirming nor
disaffirming any facts set forth in this section. This section is merely meant to provide a
recitation of facts, as plaintiffs claim them, to establish the background of the case and to
ascertain which facts may be relevant to plaintiffs’ claims.
Plaintiffs began purchasing agronomy products from West Central, a collection of
farming companies and their shareholders, on a prepay basis in February 2002. Id. at
14. On June 25, 2007, Iowa Plains Farms became a shareholder of West Central
Cooperative (“West Central”). Id. at 23. Hartzler began working for West Central in
July 2002; plaintiffs claim that Hartzler’s objective was “to increase West Central’s sales
and to improve its competitive position in the agronomy industry” by increasing West
Central’s agronomy sales. Id. at 14. In February 2003, Hartzler allegedly began stealing
seedcorn from West Central and misappropriating it for personal profit. Id. at 17.
Although the exact facts of the multiple alleged misappropriations were varied, plaintiffs
claim that the bulk of these misappropriations involved Hartzler stealing seedcorn from
West Central and selling it to unknowing West Central customers, who paid Hartzler
directly and personally for the seedcorn. Id. In this manner, Hartzler realized a personal
profit on the stolen product.
In 2005, Hartzler was assigned to handle plaintiffs’ accounts with West Central.
Id. at 18. During plaintiffs’ first meeting with Hartzler, Hartzler informed plaintiffs “that
he received product from manufacturers that he could sell for his own benefit (a.k.a.
‘rep. material’).” Id. This statement was not true. Id. at 18-19. From 2005 through
2010, Hartzler sold this “rep. material” to plaintiffs, who paid Hartzler directly and
personally. Id. at 19. Instead of lawfully acquiring the product, Hartzler was stealing
the product from West Central and selling it to plaintiffs for personal gain. Id. Plaintiffs
allege that they had no reason to suspect any illicit activity. Id.
To conceal his fraudulent conduct, plaintiffs claim Hartzler engaged in a practice
known as “lapping,” in which Hartzler would sell the stolen product to plaintiffs for a
personal profit, then enter a receivable on Iowa Plains’ book with West Central. Id. at
29. Thus, Iowa Plains paid Hartzler directly for the product and was also billed for the
same product by West Central. Id. Plaintiffs, however, were unaware that they were
billed twice and only had knowledge of the payment made directly to Hartzler. Id. Iowa
Plains did not pay West Central for the product provided by Hartzler and for which
Hartzler personally received payment. Id. As a result, an ever-increasing deficit in Iowa
Plains’ name was created on West Central’s books. Id. To conceal the deficit, Hartzler
solicited increasing payments from plaintiffs each year; while a portion of the payment
went to Hartzler directly, a portion was applied to the deficit on West Central’s books.
This scheme resulted in a greater deficit being created each time Hartzler
misappropriated product and sold it to plaintiffs for personal gain. See id.
Plaintiffs allege that because Iowa Plains expressly declined to open a credit line
with West Central, West Central should have become aware of Hartzler’s conduct at the
time the deficit first appeared on the books, but instead permitted Hartzler’s conduct to
continue. Id. at 29-30. Plaintiffs further argue that West Central became aware of
Hartzler’s fraudulent conduct in 2007 and, in no case, could West Central have become
aware of the fraudulent conduct any later than January 2009. Id. at 25-26.
On April 20, 2011, Hartzler submitted his resignation, in which he accepted full
responsibility for the alleged malfeasance. Id. at 35. Plaintiffs believe that Hartzler’s
resignation was strategically planned to draw attention away from defendants’ failure to
act with respect to Hartzler’s malfeasance. Id. Shortly thereafter, plaintiffs allege, in an
attempt to cover up Hartzler’s actions, certain defendants suggested to Hartzler that
Hartzler had been bribed by plaintiffs; Hartzler adopted this suggestion and later gave a
sworn statement to the effect that plaintiffs had bribed Hartzler.
Id. at 35-36.
Subsequently, certain defendants pursued a legal action against Iowa Plains Farms in
Story County, Iowa. Id. at 37. That lawsuit (which was filed on May 12, 2011) resulted
in a verdict in favor of the Wollesens and Iowa Plains Farms. Westco Agronomy Co.,
LLC v. Wollesen, No. LACV046817, 2014 WL 5389985 (Iowa Dist. Aug. 7, 2014). The
Supreme Court of Iowa upheld the verdict as it pertained to the Wollesens. Westco
Agronomy Co., LLC v. Wollesen, No. 15-0471, 2017 WL 6545853 (Iowa Dec. 22, 2017).
West Central retained Wixted Pope Nora Thompson & Associates, LLC (“Wixted
Pope”) to serve as West Central’s public relations firm amidst the scandal involving
Hartzler. Id. at 40. At some point, defendant Eileen Wixted was a business partner at
Wixted Pope. The Wixted Pope defendants actively attempted to promote a positive
image for West Central. Id. at 40-41. West Central representatives allegedly delivered
speeches crafted by the Wixted Pope defendants that were intended to restore and promote
West Central’s image by using the Wollesens as a scapegoat for both Hartzler’s theft and
other unrelated losses. Id. at 44. By turning the Wollesens into a scapegoat, the West
Central defendants and the individual defendants were able to escape liability and
accountability at the hands of West Central’s shareholders. Id. Alicia Clancy, as West
Central’s Director of Communications, became involved in the “cover-up” scheme by
making public statements relating to the scheme. Id. at 69. Alicia Clancy, notably, is
not named as a defendant in this action.
Both motions currently under consideration by the Court are motions to compel
and seek discovery that has been withheld based on objections for relevance, attorneyclient privilege, and the work-product doctrine. Though each motion, resistance, and
reply may present a distinct legal issue, the law common to both motions is set forth
Motion to Compel
Federal Rule of Civil Procedure 37(a)(1) provides that a party moving to compel
discovery “must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in
an effort to obtain it without court action.” See also LR 37(a). An exchange of written
communications or a single telephone message will not, by itself, satisfy the
“The meet-and-confer requirement is not an empty
formality.” Williams v. Cent. Transp. Int’l., Inc., No. 4:13-CV-2009 (CEJ), 2014 WL
6463306, at *2 (E.D. Mo. Nov. 17, 2014) (citation and internal quotation marks omitted).
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides:
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 and proportional to
the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1). Rule 26 is “liberal in scope and interpretation” and extends to
matters that “are relevant and reasonably calculated to lead to the discovery of admissible
evidence.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (citation
Whether the discovery sought would be admissible in evidence is
inconsequential when considering a motion to compel discovery. Id. Thus, evidence that
may be inadmissible may properly be discoverable. Id. “[T]here must be at least a
‘threshold showing of relevance’ before requiring a party to disclose ‘information which
does not reasonably bear upon the issues in the case.’” Liguria Foods, Inc. v. Griffith
Labs., Inc., 309 F.R.D. 476, 479 (N.D. Iowa 2015). Once this showing is made, the
burden shifts to the resisting party to show the requested information is not relevant for
Federal Rules of Civil Procedure 33 and 34 state that objections to discovery
requests must be stated with “specificity.” Indeed, the Honorable Mark W. Bennett,
United States District Judge, who is the District Judge presiding over the instant case,
has admonished parties against “asserting boilerplate objections that the discovery sought
is vague, ambiguous, overbroad, unduly burdensome, etc. . . . without specifying how
each interrogatory or request for production is deficient and without articulating the
particular harm that would accrue if the responding party were required to respond to the
proponent’s discovery requests.” Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D.
168, 185 (N.D. Iowa 2017) (alteration in original) (citation and internal quotation marks
Discovery will not be permitted if responding to a specific request would be unduly
burdensome, or if “harm to the person from whom discovery is sought outweighs the
need to the person seeking discovery of the information.” Nachurs Alpine Solutions,
Corp. v. Nutra-Flo Co., No. 15-CV-4015-LTS, 2017 WL 1380460, at *2 (N.D. Iowa
Apr. 17, 2017); see also FED. R. CIV. P. 26(b)(1) (requiring discovery be proportional
to the needs of the case).
This Court has established several factors that may be
considered in assessing whether responding to a discovery request would present an
undue burden: 1) relevance of the requested information; 2) the party’s need for the
discovery; 3) the breadth of the discovery request; 4) the time period covered by the
request; 5) the particularity with which the party describes the requested documents; and
6) the burden imposed. Am. Broad. Cos., Inc. v. Aereo, Inc., No. 13-MC-0059, 2013
WL 5276124, at *7 (N.D. Iowa Sept. 17, 2013).
“The attorney[-]client privilege is based upon the principle ‘that sound legal advice
or advocacy . . . depends upon the lawyer’s being fully informed by the client.’”
PaineWebber Grp., Inc. v. Zinsmeyer Trs. P’ship (PaineWebber), 187 F.3d 988, 992
(8th Cir. 1999) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). “‘The
lawyer-client privilege rests on the need for the advocate and counselor to know all that
relates to the client’s reasons for seeking representation if the professional mission is to
be carried out.’” Upjohn, 449 U.S. at 389 (quoting Trammel v. United States, 445 U.S.
40, 51 (1980)).
When a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to protection as trial-preparation
material, the party must: (i) expressly make the claim; and (ii) describe the
nature of the documents, communications, or tangible things not produced
or disclosed—and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.
FED. R. CIV. P. 26(b)(5)(A); PaineWebber, 187 F.3d at 992. The burden of proving that
the attorney-client privilege applies lies with the party asserting the privilege. Weil v.
Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 25 (9th Cir. 1981).
“The attorney-client privilege extends only to confidential communications made
for the purpose of facilitating the rendition of legal services to the client.” United States
v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984) (emphasis in original). Thus, where an
attorney acts as a business advisor, the attorney-client privilege does not apply. Id.
Likewise, if an attorney works with an outside agent to facilitate the resolution of issues
collateral to the underlying legal matter, the privilege would not apply. See id. (providing
that the attorney-client privilege only applies when in relation to the rendition of legal
services; if an attorney is involved in other matters, those matters do not become
privileged simply by involving an attorney).
“Ordinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, . . . or agent).” FED. R.
CIV. P. 26(b)(3)(A). When a party withholds otherwise discoverable information under
the claim that the information is protected work product, that party must produce a
privilege log describing the nature of the material not produced. FED. R. CIV. P.
26(b)(5)(A); PaineWebber, 187 F.3d at 992. As with the attorney-client privilege, the
party asserting that the work product doctrine applies bears the burden of establishing
that the protection does, in fact, apply. Weil, 647 F.2d at 25.
“The work[-]product privilege is distinct from and broader than the attorney-client
privilege.” In re Green Grand Jury Proceedings, 492 F.3d 976, 980 (8th Cir. 2007)
(citation and internal quotation marks omitted) (noting work-product privilege is based
on an “attorney’s interest in protecting his opinions and thought processes from disclosure
. . . [and] accords the attorney a measure of privacy within which he can candidly
compose his thoughts.”).
At its core, the work-product doctrine shelters the mental processes of the
attorney, providing a privileged area within which he can analyze and
prepare his client’s case. But the doctrine is an intensely practical one,
grounded in the realities of litigation in our adversary system. One of those
realities is that attorneys often must rely on the assistance of . . . other
agents in the compilation of materials in preparation for trial. It is therefore
necessary that the doctrine protect material prepared by agents for the
attorney as well as those prepared by the attorney himself.
United States v. Nobles, 422 U.S. 225, 238-39 (1975).
Plaintiff Iowa Plains’ two pending motions to compel (Docs. 169, 173) will be
discussed in turn. The parties have met the “meet and confer” requirement with respect
to each of these motions.
Motion to Compel Against West Central and Wixted Pope (Doc. 169)
This motion seeks to compel the West Central defendants and the Wixted Pope
defendants to produce certain documents that are currently being withheld as work
product and/or attorney-client privileged material. The Court is tasked with determining
whether the documents located at Bates Numbers 147-165, 1479-1522, 1524-1527, 15311547, 2623-2630, 2632-2639, WIX0243, WIX0245, WIX0247, WIX0251, WIX0252,
and WIX 0286-321 are protected by either the work-product doctrine or attorney-client
privilege. The documents were produced for in camera review pursuant to Court order
and the Court conducted a thorough inspection of the subject documents. The Court
recognizes that the defendants did not claim that both protections apply to every
document; where only one protection is asserted, the Court has analyzed the document
with respect to that protection.
The threshold issue for the Court’s consideration is the purpose for which Wixted
Pope was hired. West Central retained the Wilcox Law Firm to represent West Central
in the underlying Story County action. The Wilcox Law Firm, in turn, retained Wixted
Pope. Although Wixted Pope acted as an agent of the Wilcox Law Firm with respect to
the underlying Story County action, the parties dispute why Wixted Pope was retained.
If Wixted Pope provided services in aid of the litigation, those materials that were
prepared in furtherance of Wixted Pope’s objective will be protected work product.
Plaintiffs argue that Wixted Pope was retained by West Central’s law firm to
“‘maintain stakeholder confidence’ in the aftermath of the Hartzler theft, rather than [to]
assist[ ] West Central’s counsel with trial strategy in the Story County [a]ction.” Doc.
169 at 2. Plaintiffs further assert that the subject “materials are not protected because
they were not prepared to assist West Central’s trial counsel in its trial strategy, but rather
to control how the public perceived Hartzler’s resignation and events in the [Story County
action].” Doc. 169-1 at 3. Should this Court find that the materials are protected work
product or are attorney-client privileged material, plaintiffs urge that these protections
have been waived because the materials were provided to Wixted Pope, a public relations
firm, for public dissemination.
West Central claims that “Wixted Pope’s work for [West Central] related to
managing the public relations relating to Hartzler and the Story County case” and that
the subject documents are protected opinion work product and ordinary work product
because “they reveal mental impressions of [West Central’s] counsel[ ] and were
otherwise created in anticipation of litigation.” Doc. 180 at 3. West Central further
argues that plaintiffs’ argument of waiver is inapplicable because West Central has “only
asserted a work product privilege over documents that were not meant for public
disclosure or over incomplete drafts of documents that were later disclosed to the public.”
Finally, the Wixted Pope defendants state that Wixted Pope was retained “to
provide communications assistance to West Central following West Central’s discovery
of wrongdoing” and that the Wixted Pope defendants were not involved in the decision
to file suit. Doc. 181 at 3. The Wixted Pope defendants go on to state, however, that
“on limited occasion, West Central and its attorneys consulted with and discussed legal
issues with the Wixted [Pope] defendants, before and after trial.” Id. As such, the
Wixted Pope defendants claim that the documents that have been withheld “involve
confidential communications regarding legal issues or trial” and are, therefore,
protected.4 Id. at 4. The Wixted Pope defendants further refute plaintiffs’ claim of
waiver by submitting that plaintiffs’ belief that the withheld documents are “public
relations material” shows a misunderstanding of the contents of the documents. Id.
The Court finds that when Wixted Pope was first retained in May 2011, it was
hired for the purpose of assisting West Central in communicating with its shareholders,
employees, and the public at large. As the litigation progressed, however, Wixted Pope’s
role evolved. Wixted Pope began to take on tasks related to the litigation itself, including
providing input on litigation strategy. Those documents pertaining to Wixted Pope’s
initial role will not be protected work product because they were not prepared in
anticipation of litigation.
Rather, those documents were created for a solely
communicative purpose, separate from the underlying litigation.
In reviewing the
documents, the Court was mindful of the potential applicability of attorney-client
privilege. Those documents created after Wixted Pope’s role evolved, however, may be
protected as work product because these documents could have been prepared in
anticipation of litigation given Wixted Pope’s new role regarding the litigation and
The Court agrees that the withheld documents were not meant for public disclosure
and were not disclosed to the public or a third party that would increase the likelihood of
their public dissemination. Therefore, the Court declines to hold that defendants waived
the protections of either the work-product doctrine or attorney-client privilege.
This motion concerns those documents containing a Bates Number with the “WIX” designation.
Following a review of the subject documents, the Court finds that the following
Bates-Numbered documents are not protected: 2623, 2624, and 2626-2633.
documents reflecting Bates Numbers WIX0243, WIX0245, WIX0247, WIX0251, and
WIX0252 were redacted prior to production, and the Court finds that all redacted
information is protected.
Motion to Compel Against the Wixted Pope Defendants (Doc. 172)
This motion seeks to compel the Wixted Pope defendants to respond to
Interrogatories Number 10, 13, and 18, as well as Request for Production Number 4.
Doc. 172-1 at 4.5
As an initial matter, it is helpful to note that this motion deals with information
requested of the Wixted Pope defendants as defendants independent of West Central. The
importance of this distinction is that the requested discovery addresses the Wixted Pope
defendants’ own litigation in the instant case as opposed to addressing information
obtained by virtue of the Wixted Pope defendants’ relationship with West Central.
Therefore, the attorney-client privilege may apply to those discovery materials requested
in the instant motion because they pertain to the Wixted Pope defendants as defendants
as opposed to as a public relations firm.6
Interrogatory Number 18
Interrogatory Number 18: Identify and describe why Eileen Wixted is no
longer a business partner with Mr. Ms. Pope [sic] and when, why and how
that change occurred.
The Court reserves ruling on the motion with respect to Interrogatories Number 10 and 13.
This analysis is not intended as a determination of privilege with respect to the Motion to
Compel Against West Central and Wixted Pope (Doc. 169). Rather, the Court finds it helpful
to differentiate between the two motions. Regardless of whether the attorney-client privilege
applies to the Motion to Compel Against West Central and Wixted Pope (Doc. 169), the privilege
may apply to the instant motion.
Answer: Defendant objects to this interrogatory as seeking irrelevant
information not reasonably calculated to lead to the discovery of admissible
evidence. Notwithstanding this objection, Defendant states that the
principals of Wixted Pope Nora Thompson began operating independently
and separately in approximately 2006 but did not take steps to correct the
website or formally dissolve until 2017.
Doc. 172-4 at 9. The claims asserted against Wixted Pope are as follows: malicious
prosecution (Count I); breach of fiduciary and other duties to West Central Cooperative
and Westco (Count III); tortious interference with existing and prospective business
relationships (Count V); breach of fiduciary and other duties owed to West Central (Count
VI); and defamation (Count XII). Doc. 64. Plaintiffs also seek punitive damages. Id.
Although the information sought may be relevant to claims asserted against other
defendants, the Court finds it unnecessary to recount those other claims here.
Iowa Plains properly asserts that it, not Wixted Pope, defines the theory of its own
case and that Wixted Pope may not unilaterally determine whether information is
relevant. Sentis Grp., Inc. v. Shell Oil Co., 763 F.3d 919, 925-26 (8th Cir. 2014).
Further, the scope of relevant discovery is broader than the scope of admissibility, as
“discovery is a[n] investigatory tool intended to help litigants gain an understanding of
the key persons, relationships, and evidence in a case and . . . the veracity of those
persons and purported evidence, even if the evidence discovered is later deemed not
admissible.” Id. at 926. However, just as the Wixted Pope defendants may not simply
deem evidence irrelevant, Iowa Plains may not simply assert that it may be relevant. See
Liguria Foods, Inc., 320 F.R.D. at 186-87. This would be nothing more than a “he said,
she said” battle. Notably, the party resisting discovery bears the initial burden of showing
that the discovery sought is irrelevant; the burden then shifts back to the requesting party
to show that the discovery is relevant. Hofer, 981 F.2d at 380.
Further, counsel informed the Court that counsel was not made privy to the exact
circumstances surrounding the decision to no longer operate as business partners. The
Court sees two possibilities with respect to how the Wixted Pope defendants determined
that the requested information was irrelevant.
First, the Wixted Pope defendants
themselves could have informed counsel that the separation was due to differing business
philosophies and that the separation was wholly unrelated to the instant litigation or the
underlying events giving rise to this litigation. If this is the case, the Wixted Pope
defendants’ objection as to relevance would be based on a layperson’s interpretation of
relevance.7 This would be problematic because a layperson’s interpretation of relevance
does not carry the same degree of reliability as an attorney’s interpretation of relevance,
nor is a layperson bound by the same professional conduct requirements as an attorney,
including a duty of candor. As such, the Court is unwilling to accept a layperson’s
interpretation of relevance.
Second, the Wixted Pope defendants could have informed counsel only that the
split was due to differing business philosophies.
From there, counsel could have
extrapolated that the “differing business philosophies” were unrelated to the instant
litigation. Without knowledge of those differing business philosophies, however, counsel
would have no way of determining that the business philosophies were truly unrelated to
the instant litigation. For example, Ms. Wixted’s partner could have disagreed with how
Eileen Wixted conducted the project for West Central. This very well could give rise to
a difference in business philosophies, but this difference would be relevant to the instant
litigation given the claims asserted against the Wixted Pope defendants. Regardless of
whether the first scenario or the second occurred when the Wixted Pope defendants were
preparing their answers to the interrogatories, the Court cannot find that counsel had
sufficient information to determine relevancy and, as shown above, relying on a
layperson’s interpretation of relevance would give rise to a host of additional issues.
The Wixted Pope defendants have failed to meet their burden of showing
irrelevance. They provided a boilerplate objection in their answer to the interrogatory
The Court has no reason to believe that any of the Wixted Pope defendants are licensed attorneys
or have any legal training.
and further explained in their resistance that the principals of Wixted Pope Nora
Thompson began operating independently in 2006 because of “different business
philosophies.” Doc. 182 at 6-7. This adds nothing to the discussion of why the principals
formally split in 2017. As a result, the Court simply lacks the information to find that the
Wixted Pope defendants have met their burden of showing irrelevance. Accordingly, the
Wixted Pope defendants are directed to fully answer Interrogatory Number 18. The
Wixted Pope defendants may, of course, seek to exclude from trial any evidence they
believe is irrelevant by any appropriate means they deem necessary.
Request for Production Number 4
Request for Production Number 4: The calendar, datebook, Outlook
calendar and/or any similar items that show any or all of Eileen Wixted’s
professional appointments during the period from May 1, 2011 through
September 30, 2011.
Response: Defendant objects to this request as overly broad.
Notwithstanding this objection, Defendant states that any meetings related
to this litigation would be reflected in the materials previously produced.
Defendant is in the process of searching Eileen Wixted’s Outlook calendar
and will supplement this response with any responsive materials if
Doc.172-5 at 2.
The materials requested in Request for Production Number 4 are not overly broad.
Rather, the request targets a limited time period at the heart of plaintiffs’ claims. It is
highly unlikely that Ms. Wixted used an infinite number of means to document her
professional appointments during this five-year period. Instead, it is likely that Ms.
Wixted used a limited number of mechanisms to track her professional appointments—
mechanisms she should be able to readily identify and which Iowa Plains likely cannot.
As a result, this request is narrowly tailored.
However, the Wixted Pope defendants cannot produce that which does not exist.
The Wixted Pope defendants have represented that the requested information is believed
to have been destroyed when the Wixted Pope defendants switched to a new computer
system a number of years ago and that the switch and any resulting destruction were not
done for any improper purpose. If the requested information does exist, the Wixted Pope
defendants are directed to produce it to Iowa Plains. If, however, the information has
been destroyed or is otherwise unavailable, the Wixted Pope defendants are directed to
provide Iowa Plains with a sworn certification to that effect. As with any other alleged
discovery violation, Iowa Plains is free to seek any relief it deems appropriate and proper.
Plaintiff Iowa Plains’ motion to compel against the West Central defendants and
Wixted Pope defendants (Doc. 169) is granted in part and denied in part. The West
Central defendants are directed to produce the documents at Bates Numbers 2623, 2624,
and 2626-2633 by February 22, 2018. The remaining documents (unredactd portions
of the documents at Bates Numbers WIX0243, WIX0245, WIX0247, WIX0251, and
WIX0252) need not be disclosed.
Plaintiff Iowa Plains’ motion to compel against the Wixted Pope defendants (Doc.
172) is granted in part (as to Interrogatory Number 18 and Request for Production
Number 4) and ruling is reserved in part (as to Interrogatories Number 10 and 13). The
Wixted Pope Defendants are directed to fully answer Interrogatory Number 18 and
respond to Request for Production Number 4 by February 22, 2018. The Court will
issue a separate order on the remaining portions of the motion to compel (regarding
Interrogatories Number 10 and 13).
IT IS SO ORDERED this 8th day of February, 2018.
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