Evantigroup, LLC v. Mangia Mobile, LLC

Filing 165

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs cross-motion to compel the production of documents and deposition of Crystal Huff [Doc. # 126 ] is granted. Crystal Huff is ordered to produce all documents responsive to plaintiffs subpoen a by January 31, 2013, and to appear for a deposition at a mutually agreeable time and place. IT IS FURTHER ORDERED that defendants joint motion to quash plaintiffs subpoena to Mueller Prost PC [Doc. # 135 ] is denied. Mueller Prost PC is ordered to produce all documents responsive to plaintiffs subpoena by January 31, 2013. IT IS FURTHER ORDERED that defendant Mangia Mobiles motion to compel plaintiffs responses to requests for production and answers to interrogatories [Doc. # 113 ] is denied as to interrogatory 19 and is otherwise moot. Signed by District Judge Carol E. Jackson on 1/11/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EVANTIGROUP, LLC,
Plaintiff,
vs.
MANGIA MOBILE, LLC et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 4:11-CV-1328 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on (1) plaintiff’s cross-motion to compel the
production of documents and deposition of Crystal Huff; (2) defendants’ joint motion
to quash plaintiff’s subpoena to Mueller Prost PC; and (3) defendant Mangia Mobile’s
motion to compel plaintiff’s responses to requests for production and answers to
interrogatories. Memoranda have been filed in response to each motion, and the issues
have been fully briefed.
Plaintiff’s Cross-Motion to Compel
On September 21, 2012, plaintiff served Ms. Huff with a subpoena to produce
documents and appear for deposition. On September 25, 2012, Ms. Huff filed an
objection to and motion to quash the subpoena, arguing that it did not provide her a
sufficient amount of time for compliance. On October 4, 2012, plaintiff filed a crossmotion to compel the production of documents and deposition of Ms. Huff. Ms. Huff
did not respond to the motion to compel, but on October 11, 2012, counsel for
defendants filed a memorandum in opposition to the motion. Defendants’ counsel does

-1-

not represent Ms. Huff in this litigation and does not have standing to oppose the
plaintiff’s efforts to secure her compliance with the subpoena. Ms. Huff has now had
more than three months to gather documents responsive to the subpoena and prepare
for deposition. Accordingly, the plaintiff’s cross-motion to compel will be granted.
Defendants’ Joint Motion to Quash
The plaintiff issued a subpoena to Mueller Prost PC, an accounting firm used by
the defendants, requesting production of various accounting documents. The
defendants oppose the subpoena, arguing that it violates the accountant-client
privilege, was not timely, and does not allow reasonable time to comply. The only
argument that the Court finds necessary to address is the issue of accountant-client
privilege.
Missouri recognizes a confidential accountant-client privilege. Mo. Rev. Stat. §
326.322. However, this privilege does not exist under federal law; and in a
fundamentally federal proceeding, the court may not recognize a state-created
privilege. United States v. Margaritas Mexican Rest., Inc., 138 F.R.D. 566, 568-69
(W.D.Mo. 1991) (citing Couch v. United States, 409 U.S. 322, 335 (1973)). In the
instant case, the Court has exercised federal question jurisdiction over the Lanham Act
claim asserted in the complaint and supplemental jurisdiction with respect to the state
law claims.
Defendants cite to Rule 501 of the Federal Rules of Evidence in support of their
argument that the accountant-client privilege should apply in this case. Rule 501 states
that “in civil actions and proceedings, with respect to an element of a claim or defense
as to which State law supplies the rule of decision, the privilege . . . shall be
-2-

determined in accordance with State Law.” Defendant argues that because plaintiff’s
second amended complaint is “overly dependant [sic] on Missouri law,” the Missouri
accountant-client privilege should apply.
The Eighth Circuit has not provided a definitive answer on how to apply Rule 501
to cases in which both federal and state claims are raised. However, courts have
generally applied federal privilege law if the material sought is relevant to both federal
and state claims. See e.g. Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir.
2005); Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000); Hancock v. Dodson, 958 F.2d
1367, 1373 (6th Cir. 1992); Hancock v. Hobbs, 697 F.2d 462, 466 (11th Cir. 1992).;
One court has specifically taken the view that federal privileges should always govern
in the discovery stage. Hanson v. Allen Memorial Hospital, 141 F.R.D. 115, 121 (S.D.
Iowa 1992) (“[I]n federal question cases where pendent state law claims are raised,
the federal law of privileges should govern all claims of privilege raised in the litigation
– at least where the issue is the discoverability of evidence.”). The decisions in these
cases are likely driven by the fact that the inherent nature of evidentiary privileges
works to exclude relevant evidence and discourage the judicial fact-finding function,
thereby causing them to be disfavored and narrowly construed. See United States v.
Nixon, 418 U.S. 683 (1974).
The claims against the defendants in this case involve common issues of fact and
law and the material sought is relevant to both the federal and state claims. For
instance, the federal and state trademark claims share identical elements and all facts
revolve around defendants’ use of the “Mangia” name. The Court does not agree with
defendants’ contention that Missouri state law is the source of the rule of decision in
-3-

this case.

Because there is no federal law-based accountant-client privilege, the

motion to quash the subpoena issued to Mueller Prost PC will be denied.
Defendant Mangia Mobile’s Motion to Compel
The third discovery matter in dispute relates to defendant Mangia Mobile’s
motion to compel plaintiff’s responses to requests for production and answers to
interrogatories.
Mangia Mobile argues that plaintiff has failed to produce or has not fully
produced certain documents in response to its first request for production, specifically
items 6, 10, 11, 15, 19, 20, 21, 23, 27, 28, and 29. Plaintiff states that it has fully
produced the documents requested for items 10, 15, 20, 21, 23 and 28 and that no
other non-privileged documents exist.
Plaintiff states that it believed it had produced all documents responsive to
request 6, but “[c]ounsel has since further investigated and determined that
proprietary software exists for its daily records and will gladly produce its daily records
in their original electronic format.” Plaintiff also states that documents responsive to
request 27 that were inadvertently omitted will be produced.
Plaintiff states that it produced all documents responsive to request 11 that were
in its possession, and that it is in the process of obtaining additional non-privileged
documents that are in the possession of a law firm. With respect to request 19,
plaintiff states that it will fully produce all documents related its expert report on
damages.

Additionally, plaintiff states that it is in the process of acquiring the

documents responsive to request 29 and will produce them.

-4-

In its motion, Mangia Mobile also argues that plaintiff has provided evasive and
incomplete answers to interrogatories 2, 3, 14, and 19 of defendant’s first set of
interrogatories. With respect to all but interrogatory 19, plaintiff has agreed to provide
answers or produce responsive documents. The Court finds interrogatory 19
burdensome in that it asks plaintiff to produce every communication between plaintiff
and defendant. Since this information is equally available to Mangia Mobile, the Court
will not require plaintiff to answer the interrogatory.
For the foregoing reasons,
IT IS HEREBY ORDERED that plaintiff’s cross-motion to compel the production
of documents and deposition of Crystal Huff [Doc. # 126] is granted. Crystal Huff is
ordered to produce all documents responsive to plaintiff’s subpoena by January 31,
2013, and to appear for a deposition at a mutually agreeable time and place.
IT IS FURTHER ORDERED that defendants’ joint motion to quash plaintiff’s
subpoena to Mueller Prost PC [Doc. #135] is denied. Mueller Prost PC is ordered to
produce all documents responsive to plaintiff’s subpoena by January 31, 2013.
IT IS FURTHER ORDERED that defendant Mangia Mobile’s motion to compel
plaintiff’s responses to requests for production and answers to interrogatories [Doc.
#113] is denied as to interrogatory 19 and is otherwise moot.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 11th day of January, 2013.

-5-