Berg v. Frobish et al

Filing 247

MEMORANDUM AND ORDER granting in part and denying in part 238 Motion for Protective Order; granting 244 Motion to Supplement Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 5/9/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JERRY BERG,

)
)
Plaintiff,
)
)
vs.
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)
JON L. FROBISH, et al.,
)
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Defendants.
)
______________________________ )

Case No. 12-1123-KHV-KGG

MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
Plaintiff requests a Protective Order from this Court on the grounds that a
letter from defense counsel to neighborhood residents and a later e-mail from
defense counsel to neighborhood residents constitute witness tampering. (Doc.
238.) Plaintiff claims that the letters tell residents that they may not talk to
Plaintiff and “imply” that Plaintiff’s attempts to contact them would be criminal.
With a limited exception, the Court disagrees with this characterization.
The April 30, 2013, letter from defense counsel to neighborhood residents
explains the nature of the pending hearing on Defendants’ Motion for Preliminary
Injunction and advises that some of the residents will be called as witnesses. (Doc.
238-1.) The letter advises residents that they are “under no obligation” to
communicate with Plaintiff. The letter also advises the residents that if Plaintiff

attempts to “antagonize, threaten or interfere” with their participation in the
process, it should be reported and could be considered witness tampering. In no
part of this letter does defense counsel request or advise residents not to speak with
Plaintiff. This letter does not constitute witness tampering.
The second communication is an e-mail dated May 3, 2013, which was
apparently prompted by the filing of another lawsuit by Plaintiff against some of
the same Defendants in this case and against some additional Defendants. (U.S.
District Court for the District of Kansas Case No. 13-1164-EFM.) In this message,
addressed to “The Residents of Cedar Lake,” defense counsel tells the recipients
that another lawsuit has been brought “naming many of you personally.” (Doc.
244-1.) Defense counsel advises that he will be represent the individual
Defendants. He then states “[a]s your representative, I am instructing you not to
communicate with Mr. Berg or his wife for any reason.” (Id.)
This communication is not inappropriate insofar as the non-communication
instruction is limited to defense counsel’s clients. The Court interprets this as the
intent of the message. However, the address of the communication to “Residents”
causes the Court some concern that, although not so intended by defense counsel,
the communication was sent to a broader audience which could interpret the
instruction not to communicate with Plaintiff to apply to those who are not clients.
(“Clients” in this context would include those represented by defense counsel

personally in either case, and persons who are in official positions with corporate
clients.)
To address this concern, the Court Orders that defense counsel send the
following communication to residents of the neighborhood who are not “clients”:
To the Residents of Cedar Lake: We are the attorneys
for Cedar Lakes Village Condominium Association and
other corporate and individual Defendants in two
lawsuits with Jerry Berg. We are preparing for a hearing
on our Motion for Protective Order, which is set for May
21, 2013. Mr. Berg is also preparing for that hearing.
You may be called as a witness, either by us or by Mr.
Berg. Mr. Berg may attempt to communicate with you
about the lawsuits or that hearing. The Court has ordered
that we advise you that you may, but are not required to,
communicate with Mr. Berg or anyone else concerning
that matter.
This communication shall be sent to the necessary individuals in the same manner
as the May 3, 2013, e-mail on or before Monday, May 13, 2013. Thus, Plaintiff’s
“Motion for Protective Order” (Doc. 238) is GRANTED in part and DENIED in
part as set forth above. Plaintiff’s related motion to supplement the underlying
Motion for Protective Order (Doc. 244) is GRANTED.

IT IS SO ORDERED.
Dated at Wichita , Kansas, this 9th day of May, 2013.
s/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge