Mayhall v. Berman & Rabin, P.A.

Filing 44

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant shall supplement its Rule 26 (a) disclosures and file a copy thereof with the Court on or before Wednesday, August 28, 2013. Plaintiff may supplement her motion for sanctions on or before Septe mber 4, 2013. IT IS FURTHER ORDERED that Defendants motion for extension of time to complete discovery responses is GRANTED. (Doc. No. 41.) Defendant is granted until Wednesday, August 28, 2013, to provide its responses to Plaintiffs First Requests for Production. IT IS FURTHER ORDERED that Defendants motion to quash the deposition subpoena directed to Daniel E. Kuhn or for protective order is DENIED. (Doc. No. 42.) Signed by District Judge Audrey G. Fleissig on 8/21/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CAROLE L. MAYHALL,
Plaintiff,
v.
BERMAN & RABIN, P.A.,
Defendant.

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Case No. 4:13CV00175 AGF

MEMORANDUM AND ORDER
This action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et.
seq., is before the Court on Plaintiff’s motion for sanctions pursuant to Federal Rule of
Civil Procedure 37(a)(3)(A) and Defendant’s motions for an extension of time to respond
to discovery requests and to quash a deposition. Plaintiff asserts that Defendant failed to
file timely Rule 26(a)(1) disclosures, and only made its disclosures after Plaintiff filed a
motion for sanctions. In addition, Plaintiff asserts that Defendant’s disclosures contain
insufficient information to comply with Rule 26. Defendant concedes that its Rule
26(a)(1) disclosures were untimely, but asserts that the motion for sanctions should be
denied because the delinquency was substantially justified.
For the reasons set forth below the Court will reserve ruling on the Plaintiff’s
motion for sanctions until such time as Defendant supplements its Rule 26(a)(1)
disclosures. In addition, the Court will deny Defendant’s motion to quash or in the
alternative for a protective order and grant its motion for extension of time.

Motion for Sanctions
Background
Pursuant to the Case Management Order in this matter the parties were required to
make their Rule 26(a)(1) disclosures on or before May 24, 2013. Defendant failed to file
timely disclosures but asserts that due to an “IT error,” the calendared deadline for the
Rule 26(a)(1) disclosures was deleted from Defendant’s calendar, causing it to miss that
deadline. Plaintiff’s counsel contacted Defendant’s counsel on May 31, 2013, to request
that Defendant make its disclosures immediately. Defendant asserts that it e-mailed the
requested disclosures to Plaintiff on June 4, 2013. Defendant also asserts that the June 4
e-mail included a Draft Protective Order for Plaintiff’s review.
Plaintiff’s counsel asserts that he did not receive the June 4 e-mail or the attached
protective order. Plaintiff’s counsel also points out that although he never received a
copy of the Draft Protective Order, Defendant subsequently submitted it to the Court as a
“stipulated order.” Finally, Plaintiff asserts that the Rule 26 disclosures Defendant
ultimately made were inadequate.
Defendant contends that until it received the motion for sanctions on June 14,
2013, it believed that Plaintiff had received the June 4 e-mail. Defendant now concedes
that Plaintiff never received the June 4 e-mail. It asserts however that this delinquency
should be excused as substantially justified because this second “IT error,” was
“presumably due to an electronics transmission error beyond the knowledge and control
of” Defendant. Doc. No. 33 at ¶ 6.

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Applicable Law
Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was
substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). In determining whether a
Rule 26(a) violation is “substantially justified or harmless,” courts are directed to
consider “(1) the prejudice or surprise to the party against whom the testimony is offered;
(2) the ability of the party to cure the prejudice; (3) the extent to which introducing such
testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.
Rodrick v. Wal–Mart Stores E., L.P., 666 F.3d 1093, 1096-97 (8th Cir. 2012) (internal
citations and quotations omitted); see also Sellers v. Mineta, 350 F.3d 706, 711-12 (8th
Cir. 2003). In making this determination a court need not make explicit findings
concerning the existence of a “substantial justification or the harmlessness.” Id. at 1097.
Under the Federal Rules of Civil Procedure the failure to make a timely disclosure
is equivalent to failure to disclose. Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th
Cir.1998). In addition, an incomplete or evasive disclosure also is treated as a failure to
disclose. See Fed. R. Civ. P. 37 (a) (4). “When a party fails to provide information or
identify a witness in compliance with Rule 26(a). . . the district court has wide discretion
to fashion a remedy or sanction as appropriate for the particular circumstances of the
case.” Wegener v. Johnson, 527 F.3d 687, 692(8th Cir. 2008).

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Discussion
The Court finds Defendant’s explanation for the late disclosures questionable. Generally,
the non-delivery or failure of a party’s e-mail is readily and immediately evident to that
party. At the very least, Defendant’s failure to discover and correct the failed delivery of
the June 4 e-mail in the two week period prior to the filing of the motion for sanctions
indicates a severe lack of attention to the proceedings in this case. But the Court need not
determine whether Defendant’s “IT malfunctions” constitute substantial justification for
its untimely responses because it finds Defendant’s Rule 26(a) responses cursory and
uninformative at best.
The disclosures on file do no more than indicate that Defendant plans to call
“witnesses from Defendant’s firm.” Such responses do not meet the minimum standard
for adequate disclosure under Rule 26(a)(1)(A)(i) and the Court will require Defendant to
supplement them with the information required under the Rule. See Fed. R. Civ. P.
26(a)(1)(A)(i) (requiring parties to disclose “the name and, if known, the address and
telephone number of each individual likely to have discoverable information – along with
the subjects of that information. . . .”).
Inasmuch as Defendant offers no justification for its incomplete, evasive
disclosures the Court also must consider whether a sanction is warranted. On the record
before it the Court cannot determine the degree of prejudice, if any, accruing to Plaintiff
as a result of Defendant’s delinquent and inadequate Rule 26 disclosures. There is no
doubt, however, that this issue has delayed and increased the expense of discovery.
Nevertheless, at this early stage of the litigation, much of the prejudice to Plaintiff will
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likely be cured by Defendant’s prompt supplementation of its responses. Therefore, the
Court will order Defendant to file complete and thorough Rule 26(a) disclosures and will
withhold its ruling on the Plaintiff’s motion for sanctions until such time as Defendant
supplements its evasive disclosures. Plaintiff may supplement her motion for sanctions
within seven (7) days of the filing of Defendant’s supplemental disclosures.
Motion to Quash
Background
Defendant moves to quash a deposition subpoena Plaintiff served on Daniel E.
Kuhn (“Kuhn”). Kuhn is an attorney and former employee of Defendant who represented
Citibank, N.A, in a state court case (“the Citibank case”) that also involved Carole
Mayhall, Plaintiff in this case. The parties agree that Citibank, N.A, represented by
Berman & Rabin, Defendant in this case, obtained in state court a default judgment
against Mayhall for damages and attorney’s fees. Subsequently, Mayhall demonstrated
that in the course of its representation of Citibank, N.A., Berman & Rabin violated
Missouri Supreme Court Rule 74.06(b)(2). As a result of this violation the state court
vacated the award of attorney’s fees.
Defendant objects to Kuhn’s deposition as duplicative because Kuhn also was
deposed in the Citibank case. In the alternative, Defendant asserts that the information
sought from Kuhn is irrelevant and somehow subject to a higher standard of relevancy
because Kuhn is not a party to this case. Plaintiff responds that Defendant lacks standing
to challenge as burdensome or duplicative the deposition subpoenas directed at Kuhn, a
non-party. Plaintiff contends in the alternative, that even if Defendant has standing to
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challenge the relevance of the information sought through the proposed deposition, a
single standard of relevance applies in discovery and Defendant has not sustained its
burden to demonstrate lack of relevance here.
Applicable Law
A party “does not have standing to lodge objections to the issuance of third-party
subpoenas to “protect” the third party from undue burden, inconvenience, and the like.”
Streck, Inc. v. Research & Diagnostic Sys, Inc., No. 8:06CV458, 2009 WL 1562851, at*3
(D. Neb. Jun. 1, 2009). “In general, ‘[a] motion to quash or modify a subpoena duces
tecum may only be made by the party to whom the subpoena is directed except where the
party seeking to challenge the subpoena has a personal right or privilege with respect to
the subject matter requested in the subpoena.’” Smith v. Midland Brake, Inc., 162 F.R.D.
683, 685 (D.Kan.1995); (quoting Mawhiney v. Warren Distrib., Inc., No. 8:05cv466,
2007 WL 433349 at *1, (D. Neb., Feb. 7, 2007), aff'd, 283 Fed. Appx. 424, No. 07–2753
(8th Cir. Jul. 10, 2008); see also Minnesota Sch. Bds Ass’n Ins. Trust v. Emp’rs Ins. Co.
of Wausau, 183 F.R.D. 627, 629 (N. D. Ill. 1999).
“Unless otherwise limited by court order . . . [p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.
R. Civ. P. Rule 26(b) (1). “Relevance” within the meaning of Rule 26(b)(1) is a
considerably broader concept than “relevance” for purposes of trial. See Schoffstall v.
Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (explaining that under Rule 26(b)(1)
“[r]elevant information [for purposes of discovery] need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
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evidence”). But the meaning of “relevancy” with respect to a third party subpoena has
the same broad scope as otherwise permitted under the discovery rules. See, e.g., 8
Charles Wright & Alan Miller, Federal Practice and Procedure § 2452 (3d ed. 2008).
Although the concept of “relevance” is generously construed, the Court has the
power to issue an order to protect a party from “annoyance, embarrassment, oppression,
or undue burden or expense” in connection with a subpoena or other discovery request.
Rule 26(c) (1). The party seeking a protective order must show good cause for its
issuance. Id.
Discussion
The Court agrees that Defendant lacks standing to challenge this third party
subpoena as burdensome or duplicative, because Defendant has not shown that the
proposed deposition is likely to elicit information subject to a privilege or right belonging
to Defendant. Streck, 2009 WL 1562851, at*3; see also Mawhiney, 2007 WL 433349 at
*1. Defendant does, however, have standing to quash the subpoena or move for a
protective order if a third-party subpoena seeks irrelevant information. See Streck, 2009
WL 1562851, at *3;see also Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231
F.R.D. 426, 429 (M.D. Fla. 2005).
However, even if the Court assumes that Defendant has standing to challenge this
subpoena on the grounds of relevance, the Court concludes that Defendant cannot
demonstrate “good cause” because the subpoena seeks relevant information. The fact
that Kuhn also was deposed in another matter to which Plaintiff was a party does not
render this deposition duplicative or irrelevant. As Plaintiff points out this is an entirely
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different lawsuit involving a different defendant, different legal and factual issues and
different affirmative defenses. In addition, there is no indication on the present record
that the information sought is not reasonably calculated to lead to the discovery of
admissible evidence and therefore relevant. See Fed. R. Civ. P. 26(b)(1).
Accordingly,
IT IS HEREBY ORDERED that Defendant shall supplement its Rule 26 (a)
disclosures and file a copy thereof with the Court on or before Wednesday, August
28, 2013. Plaintiff may supplement her motion for sanctions on or before September 4,
2013.
IT IS FURTHER ORDERED that Defendant’s motion for extension of time to
complete discovery responses is GRANTED. (Doc. No. 41.) Defendant is granted until
Wednesday, August 28, 2013, to provide its responses to Plaintiff’s First Requests for
Production.
IT IS FURTHER ORDERED that Defendant’s motion to quash the deposition
subpoena directed to Daniel E. Kuhn or for protective order is DENIED. (Doc. No. 42.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 21st day of August, 2013.

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