Hrdlicka v. Bruce

Filing 35

MEMORANDUM OPINION & ORDER: 1. Motion for Leave to Seal 30 is DENIED, and 31 shall be UNSEALED; 2. Motion for Extension of Time to file a Response 32 is GRANTED; 3. Motion to Compel 29 is GRANTED; 4. Bruces Objections to Hrdlickas Confident iality Designations 29 are OVERRULED as moot; and 5. Bruces Motion to Amend the Scheduling Order 29 is GRANTED as follows: Fact Discovery Deadline 7/24/2023. Expert Discovery no later than 7/24/2023. Supplementation Deadline 8/28/2023. D ispositive Motions, Motions in Limine, and/or Daubert Motions Deadline 1/8/2024. e. FINAL PRETRIAL CONFERENCE set for 3/25/2024 at 02:30 PM in FRANKFORT. JURY TRIAL set for 4/9/2024 at 10:00 AM in FRANKFORT, w/ counsel to arrive by 9:30 AM.. Signed by Magistrate Judge Edward B. Atkins on 5/19/2023. (CBD)cc: COR, D

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
CIVIL ACTION NO. 3:21-CV-00033-GFVT-EBA
ERIC HRDLICKA,

V.

PLAINTIFF,

MEMORANDUM OPINION & ORDER

JAMES E. BRUCE,

DEFENDANT.

*** *** *** ***
Plaintiff Eric Hrdlicka took out a personal loan with Lendmark Financial Services, LLC in
July 2020. The loan was secured by his 2007 Chevrolet Silverado, which he totaled later that year.
Hrdlicka’s insurance paid him the value of the Silverado, which Hrdlicka in turn paid toward his
Lendmark loan balance. However, the remaining balance of the loan went unpaid, and the loan
defaulted in January 2021. On January 29, 2021, Defendant James E. Bruce, on Lendmark’s
behalf, filed a collection suit against Hrdlicka in Shelby Circuit Court. Hrdlicka filed a pro se
answer on February 12, 2021.
On March 8, 2021, Bruce filed a Motion for Default Judgment and a Motion for Attorney’s
Fees, erroneously certifying that Hrdlicka had “fail[ed] to plead or otherwise defend against the
action.” [R. 8 at pg. 3; R. 8-5]. The motion was not served upon Hrdlicka. The Shelby Circuit
Court granted default judgment and Bruce’s motion for attorney’s fees on March 24, 2021. Bruce
then proceeded to file for wage garnishment and served it upon Hrdlicka’s employer. Hrdlicka
challenged the garnishment, which Bruce opposed. Ultimately, the Shelby Circuit Court vacated
its entry of default judgment and ordered Lendmark to arbitrate the matter as required by its own
contract. When Lendmark failed to initiate arbitration proceedings, the court ultimately dismissed

the collection suit against Hrdlicka with prejudice.
Hrdlicka filed the instant action against Bruce on August 3, 2021, alleging various
violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the “FDCPA”).
Among those allegations are two remaining claims that Bruce (1) improperly filed for default and
failed to serve him with a copy of the filing in violation of Section 1692f and Section 1692e(5);
and (2) improperly filed for default in violation of Section 1692e(10). [R. 1]; see also [R. 13]
(granting in part and denying in part Bruce’s Motion to Dismiss). As to damages, Hrdlicka alleges
that he is entitled to the costs arising from the state court action, including the attorney’s fees he
incurred as a result of Bruce’s alleged FDCPA violations.
The Court entered a Scheduling Order and discovery commenced on July 15, 2022.
[R. 23]. Now, Bruce moves the Court to compel certain “documents supporting [Hrdlicka’s] claim
for these actual damages, including any contract for legal services, engagement letter, solicitation
letters from his counsel, invoices, time sheets, and proof of payment.” [R. 29 at pg. 2]. Bruce also
objects to Hrdlicka’s designation of various discovery responses as confidential under the Agreed
Protective Order. [Id.]. Finally, Bruce moves to amend the Scheduling Order to allow additional
discovery after the resolution of his Motion to Compel and Objections. [Id.]. This matter has been
fully briefed and is ripe for review.
I.
Rule 26(b)(1) provides that, unless otherwise limited, “[p]arties 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.” Fed. R. Civ. P. 26(b)(1). This language is broadly construed to include
“any matter that bears on, or that reasonably could lead to other matters that bear on, any issue that
is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380,
57 L. Ed. 2d 253 (1978). The scope of discovery, however, is not without limitation. It is “well
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established that the scope of discovery is within the sound discretion of the trial court.” Chrysler
Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981) (citing H. K. Porter Co., Inc. v.
Goodyear Tire and Rubber Co., 536 F.2d 1115 (6th Cir. 1976)). As such, “[a] ruling by the trial
court limiting or denying discovery will not be cause for reversal unless an abuse of discretion is
shown.” Id.
When a party refuses to provide information requested by another party, which is thought
by the requesting party to be within the scope of Rule 26(b), then the requesting party may move
the court to compel disclosure of the requested information. Fed. R. Civ. P. 37(a)(3)(B). Motions
to compel may be filed where a party has failed to (1) provide a mandatory disclosure; (2) answer
or admit an interrogatory or request for admission; or (3) produce discoverable information,
materials, or documents. See generally Fed. R. Civ. P. 37. The party moving to compel discovery
bears the initial burden of proving the relevance of the information sought. See Gruenbaum v.
Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010); see also Fed. R. Civ. P. 26(b)(1),
Advisory Committee’s Note to 2015 Amendment (“A party claiming that a request is important to
resolve the issues should be able to explain the ways in which the underlying information bears on
the issues as that party understands them.”). Should the court determine the matters sought to be
compelled to fall within the scope of Rule 26, the motion shall be granted.
II.
The Court will first address Bruce’s Motion to Compel. [R. 29]. In this case, Bruce served
the following Request for Production of Documents upon Hrdlicka:
If you allege actual damages in the form of attorney’s fees allegedly incurred in the
State Court Action, produce all documents proving the amount of attorney’s fees
allegedly incurred for representation in the State Court Action, including but not
limited to, any engagement letter or contract showing your obligation to pay such
attorney’s fees, all invoices received for such work from the date of engagement
through the date of your Response to this Request for Production of Documents,
and proof of payment of those attorney’s fees.
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[R. 29 at pg. 4; R. 29-1 at pg. 10]. Hrdlicka objected to the request on the basis that it “seeks
documents which are protected by attorney-client privilege.” [R. 29-2 at pg. 4].
After some back-and-forth between the parties, the parties finally entered into an Agreed
Protective Order. [R. 25]. On January 4, 2023, Hrdlicka supplemented his discovery, generally
indicating in his communication to Bruce that the responses are subject to the Agreed Protective
Order, a designation to which Bruce objects. [R. 31]. Hrdlicka did not supplement with any
documents at that time but later avers in his Response that he served redacted copies of documents
subject to Bruce’s motion, thus mooting the motion. [R. 31 & 33].
This Court has jurisdiction by way of federal question jurisdiction, so federal law governs
issues of privilege. Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992). Information is
protected by the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser
in his capacity as such, (3) the communications relating to that purpose, (4) made
in confidence (5) by the client, (6) are at his instance permanently protected (7)
from disclosure by himself or by the legal adviser, (8) unless the protection is
waived.
Reed v. Baxter, 134 F.3d 351, 355–56 (6th Cir. 1998).

Generally, facts related to legal

consultation, employment, clients’ identities, attorney’s fees, and the scope and nature of
employment are not protected by attorney-client privilege. Humphreys, Hutcheson & Moseley v.
Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985).
Courts in this circuit have found parties to have waived their privilege to information when
a party puts the information directly “at issue” in the federal action. See, e.g., S. Coal Sales Corp.
v. RockTenn CP, LLC, Civil Action No. 6: 15-cv-018-DCR, 2016 U.S. Dist. LEXIS 139073, at
*27 (E.D. Ky. Sep. 6, 2016); Robinson v. Wells Fargo Bank, N.A., No. 3:17-cv-261, 2018 U.S.
Dist. LEXIS 37311, at *10 (S.D. Ohio Mar. 7, 2018) (ordering plaintiffs to produce attorney fee
agreement related to underlying foreclosure action when they sought attorney’s fees as actual
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damages); Tullis v. Umb Bank, N.A., No. 3:06 CV 7029, 2011 U.S. Dist. LEXIS 139368, at *24
(N.D. Ohio Dec. 5, 2011) (denying motion to quash subpoena duces tecum for records of billings
received by legal counsel by defendant because attorney-client privilege does not extend to
payment records).
Hrdlicka’s assertion of attorney-client privilege as to Bruce’s Requests for Production is
unavailing. Attorney-client privilege would only apply insofar as the documents, records, or
agreements necessitate the disclosure of communications between Hrdlicka and counsel about
legal advice or strategy. The amount of money paid, or to be paid, by Hrdlicka is generally not
privileged unless he demonstrates an extraordinary circumstance applies. Humphreys, 755 F.2d
1211, 1219. Hrdlicka fails to demonstrate that any circumstance—extraordinary or otherwise—
applies so as to justify protecting the type of discovery that Bruce seeks.
Hrdlicka claims Bruce’s motion is moot because he provided responsive and redacted
documents, but his Response fails to explain the purpose of such redactions or provide legal
support for producing only redacted versions of otherwise discoverable documents. Accordingly,
the Court shall grant Bruce’s motion to compel unredacted documents supporting Hrdlicka’s
asserted attorney’s fees as actual damages and documents itemizing the legal services performed
in the underlying state court action.1
III.
Bruce also objects to Hrdlicka’s designation of certain discovery responses as confidential
pursuant to their Agreed Protective Order. Hrdlicka claims that Bruce’s objections were mooted
after he withdrew their confidentiality designation on March 3, 2023 through correspondence to

It is worth addressing Hrdlicka’s Response, wherein he states he provided Bruce redacted copies of responsive
documents according to the Agreed Protective Order. [R. 33 at pg. 1]. The Agreed Protective Order, however, does
not contain any provision regarding redaction. The parties’ option, to protect the confidentiality of information within
the scope of discovery under Rule 26, is to designate it confidential following the procedure set forth in the Agreed
Protective Order.
1

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Bruce (which neither party provided the Court). [R. 33]. Bruce asserts that his objections are not
mooted because Hrdlicka designated that same March 3 correspondence as confidential.
As Hrdlicka has withdrawn his confidentiality designations as to the supplemental
discovery produced on January 4, 2023, Bruce’s objections are indeed moot. Additionally, Bruce’s
objection to Hrdlicka’s March 3 correspondence being designated as confidential, raised in a
Reply, is not proper because the Court does not consider arguments raised for the first time in a
Reply brief. Bolton v. United States, 2017 U.S. Dist. LEXIS 8855, 2017 WL 325253, at *5 n.4
(E.D. Tenn. Jan. 23, 2017) (noting that “the scope of such a reply is limited to rebuttal of arguments
raised in the response”). Moreover, Bruce has not offered any representation that he has complied
with the Agreed Protective Order, which provides a specific mechanism for challenging a
confidentiality designation:
With respect to any information or document, or portion thereof, that has been
designated “CONFIDENTIAL,” any party may at any time serve a written notice
of objection to such designation. Counsel shall attempt to resolve the dispute
informally. If no agreement can be reached, counsel may move the Court for an
order denying confidential treatment to the documents or information in question.
If such a motion is filed, the documents and/or information shall be kept
confidential pending a ruling on the motion. The party asserting confidentiality has
the burden to prove that the documents and/or information deserve such treatment.
[R. 25 at ¶ 10]. Accordingly, the Court shall overrule Bruce’s objections raised in his initial motion
as moot, and withhold a ruling on any challenges to confidentiality designations until such
challenges are properly brought before the Court.
IV.
Finally, the Court is left with two matters related to the case schedule. First, Hrdlicka filed
a motion for extension of time to file a Response to Bruce’s motion and objections. Bruce did not
file a response, and the Court finds good cause to justify a brief extension of time for Hrdlicka to
respond.
Second, Bruce moves to amend the Scheduling Order in this matter. Hrdlicka does not
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oppose the motion. Given that during the pendency of Bruce’s motion, the discovery deadline
passed, the Court finds good cause for an amendment to the Scheduling Order and a brief extension
of all remaining deadlines.
V.
Having fully considered the matter, and the Court being otherwise sufficiently advised,
IT IS ORDERED that:
1. Bruce’s Motion for Leave to Seal [R. 30] is DENIED, and [R. 31] shall be
UNSEALED;
2. Hrdlicka’s Motion for Extension of Time to file a Response [R. 32] is GRANTED;
3. Bruce’s Motion to Compel [R. 29] is GRANTED;
4. Bruce’s Objections to Hrdlicka’s Confidentiality Designations [R. 29] are
OVERRULED as moot; and
5. Bruce’s Motion to Amend the Scheduling Order [R. 29] is GRANTED as follows:
a. Fact Discovery Deadline – July 24, 2023
b. Expert Discovery – no later than July 24, 2023
c. Supplementation Deadline – August 28, 2023.
d. Dispositive Motions, Motions in Limine, and/or Daubert Motions
Deadline – January 8, 2024
e. Final Pretrial Conference – the Final Pretrial Conference is hereby
scheduled for Monday, March 25, 2024 at 2:30 p.m. in the Courtroom of
the United States Courthouse in Frankfort, Kentucky.
f. No later than thirty (30) days prior to the Final Pretrial Conference,
counsel shall file with the Clerk an original, shall submit a copy to the
Court’s chambers, and shall provide a copy to opposing counsel of the
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following, each to be filed as a separate document:
i.

Pursuant to Rule 26(a)(3)(A)(i), a witness list with a brief summary
of the expected testimony of each witness. Pursuant to Rule
26(a)(3)(A)(ii), the witness list shall be filed separately and include
the designation of those witnesses whose testimony is expected to
be presented by deposition with references to the pages and the
questions to be presented; and, if the deposition was not taken
stenographically, a transcript of the pertinent portions of the
deposition testimony shall be attached to the witness list.

ii.

Pursuant to Rule 26(a)(3)(A)(iii), a list of exhibits intended to be
used at trial. The exhibit list shall be filed separately and contain a
description of each exhibit in sufficient detail to permit adequate
identification thereof, and shall include a list of any demonstrative
and/or summary exhibits to be used at trial (including any to be used
during opening statements).

iii.

Page and line designations of witnesses who will testify by
deposition.

g. No later than fourteen (14) days prior to the Final Pretrial Conference,
counsel shall file:
i.

Written objections, pursuant to Fed. R. Civ. P. 26(a)(3)(B), to the
list of witnesses and exhibits previously filed by any other party.
Counsel shall attach a copy of the challenged exhibit(s) to any
objections filed with the Court. Objections not so disclosed, other
than objections under Rules 402 and 403 of the Federal Rules of
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Evidence, shall be deemed waived unless excused by the court for
good cause shown.
ii.

Objections and counter-designations to deposition testimony.

iii.

Responses to Motions in Limine.

h. No later than ten (10) days prior to the Final Pretrial Conference,
counsel shall file with the Clerk an original, shall submit a copy to the
Court’s chambers, and shall provide a copy to opposing counsel of the
following, each to be filed as a separate document:
i.

A pretrial memorandum containing the following:
A. Succinct statement of the facts of the case;
B. The questions of fact;
C. The questions of law;
D. Expected evidentiary objections;
E. A listing of all pending motions;
F. The status of settlement negotiations and the likelihood of
settlement; and
G. The feasibility of alternative dispute resolution. Comments
regarding the feasibility of alternative dispute resolution
shall include the views of the parties on the method of
resolution

(i.e.,

mediation,

arbitration,

settlement

conference, summary jury trial, etc.).
i.

A copy of the Agreed Proposed Jury Instructions shall also be filed
separately, with supporting authorities. If the parties cannot agree
on certain instructions, counsel shall file with the Clerk, shall submit
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a copy to the Court, and shall provide a copy to opposing counsel of
their separately proposed instructions with supporting authorities.
Failure to submit jury instructions within the time provided
may result in cancellation of the Final Pretrial Conference and
Trial dates.
ii.

An Agreed Statement of the Case suitable for reading to the
prospective jurors on voir dire.

iii.

Proposed voir dire questions for consideration by the Court. It is
the practice of the undersigned to conduct the entire voir dire,
incorporating both general as well as case-specific inquiries. In
conducting voir dire, the Court utilizes both its own questions and
many of those proposed questions submitted by counsel. In addition
to its own voir dire, the Court will allow counsel for both parties a
brief opportunity for follow up questions, and the length of time
permitted for follow up by counsel will be determined at the Final
Pretrial Conference.

iv.

Any motions for ruling by the Court upon any objection made in any
evidentiary deposition to be used at trial on which ruling by the
Court is necessary prior to trial. Any objection within any deposition
which is not so raised specifically (by citation to page number and
question number) for ruling by the Court shall be deemed to be
summarily overruled.

i. At the Final Pretrial Conference, counsel for the parties shall be prepared
to:
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i.

Display to the Court all exhibits intended to be used at trial, which
shall already be pre-marked in accordance with Local Rule 83.10
and numbered in the order in which they will be offered at trial and
provide a court copy of all documentary exhibits.

ii.

Advise the Court that they have displayed to opposing counsel all
exhibits which may be used at trial, including any demonstrative or
summary exhibits.

iii.

Discuss and make possible stipulations of admissibility, or threshold
foundation requirements for admissibility of exhibits, including
authenticity; discuss and make stipulations of fact or law which
would expedite the trial of this action.

iv.

Demonstrate an ability to use the court’s visual presentation system
for any exhibit which will be discussed by a witness or utilized
during opening or closing statements. The system can display
documents, x-rays, photographs, negatives and videos. The
presentation

system

is

designed

to

display

the

exhibit

simultaneously to the parties, the jury, the witnesses, and the Court.
First time users of the system should contact the Court’s Judicial
Assistant to make arrangements to view the system onsite. Although
there is a witness monitor, some witnesses have difficulty reading
from the same, so an extra copy to hand to the witness should be
readily available. A description of the system can be found at
www.kyed.uscourts.gov/court-tech.htm.
v.

Discuss the possibility of settlement.
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j. Court Copies. In addition to the official copies filed with the Clerk of the
Court, the following documents shall be submitted to the undersigned’s
Chambers electronically:
i.

Witness list(s);

ii.

Exhibit list(s);

iii.

Proposed jury instructions;

iv.

Proposed voir dire questions; and

v.

Statement(s) of the case.
A. These documents shall be transmitted in Word Document
format

as

an

email

attachment

to

[e-mail].
k. Jury Trial – this action is hereby set for Jury Trial on April 9, 2024, at the
hour of 10:00 a.m. in the Courtroom of the United States Courthouse in
Frankfort, Kentucky, with counsel to arrive by 9:30 a.m.
l. All other directives shall remain.
Signed May 19, 2023.

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