LOL Finance Company v. Johnson et al

Filing 103

MEMORANDUM AND ORDER regarding the ongoing discovery disputes with FNBO, ordering FNBO's docuemnt production, and outlining FNBO's discovery responsibilities and deadlines. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

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LOL Finance Company v. Johnson et al Doc. 103 IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA L O L FINANCE COMPANY, ) ) Plaintiff, ) ) v. ) ) R O B E R T P. JOHNSON, individually and, ) K E R I J. MALOLEY, individually and, ) JO H N DOE, ABC COMPANY, FIRST ) N A T IO N A L BANK OF OMAHA, and ) P A U L JOHNSON & SONS CATTLE CO.,) Inc ., ) ) D e f e n d a n ts . ) ) 4 :0 9 C V 3 2 2 4 M E M O R A N D U M AND ORDER T his matter is before the court on plaintiff LOL Finance Company's ("LOL Finance") M otion For Sanctions (filing no. 83) and Third Party Defendant/Cross Claimant, Maverick F ee ders, Inc.'s (Maverick Feeders) Motion for Additional Sanctions (filing no. 89) against defendan t First National Bank of Omaha (FNBO). A hearing was held on the pending motions before the undersigned Magistrate Judge on A ugust 9th, 2010. The record reveals, and counsel for FNBO does not dispute, the following f a c ts : · F N B O did not participate in the Fed. R. Civ. P. 26(f) planning meetings or rep o rt, despite the repeated attempts by the other parties to include FNBO's co u n sel in the planning process. The Rule 26(f) report was filed on March 22, 2 0 1 0 (filing no. 50). The final progression order in this case was issued April 6 , 2010 (filing no. 51). L O L Finance served its First Requests for Production of Documents on March 2 3 , 2010. · Dockets.Justia.com · M an d ato ry disclosures pursuant to Fed. R. Civ. P. 26(a) were due April 9, 2010. F N B O did not serve the mandatory disclosures until August 6, 2010 (filing no. 98) M av erick Feeders served its First Requests for Production of Documents on F N B O on April 14, 2010. C o mmu n icatio n between counsel regarding the outstanding issues with the R eq u ests for Production and mandatory disclosures occurred on the following d a t e s: · · · · · · · · A p ril 27, 2010 (fax from LOL Finance to FNBO); M ay 5, 2010 (email from LOL Finance to FNBO); M ay 14, 2010 (letter from LOL Finance to FNBO requesting co n feren ce ); M ay 21, 2010 (letter from Maverick Feeders to FNBO requesting p rod uction and mandatory disclosures); M ay 25, 2010 (conference between LOL Finance and FNBO) Ju n e 2, 2010 (email from Maverick to FNBO requesting update on m an datory disclosures and production); Ju n e 4, 2010 (email and conference call between Maverick Feeders and F N B O ); Ju ne 8, 2010 (email from Maverick Feeders to FNBO requesting a firm d ate for discovery responses). · · E ach of the above requests either produced no response from FNBO or was met w ith unfulfilled assurances from FNBO's counsel that the production would o ccu r without further delay. · L O L Finance filed a Motion to Compel on June 9, 2010 (filing no. 55). FNBO resp o n d ed by brief on June 28, 2010, arguing some of the requested documents w ere subject to the attorney/client privilege and that FNBO's records were being sea rch ed for other non-privileged documents (filing no. 66). M av e ric k Feeders filed a Motion to Compel, including a request for attorneys fees, on June 28, 2010 (filing no. 67). T h e undersigned Magistrate Judge entered an order on July 14, 2010 requiring F N B O to produce mandatory disclosures and documents to LOL Finance by J u ly 24, 2010 (filing no. 79). The order also instructed FNBO to produce a · · 2 p riv ileg e log for any documents for which it claimed protection under the attorne y/client privilege. · T h e undersigned Magistrate Judge entered order on July 22, 2010 requiring the p ro d u ctio n of mandatory disclosures and documents to Maverick Feeders by A u g u st 3, 2010 (filing no. 82). The order granted Maverick Feeders an award o f reasonable attorneys' fees and expenses incurred in the preparation of its M otion to Compel. L O L Finance filed a second Motion to Compel and Request for Sanctions on Ju ly 28, 2010, alleging FNBO had not complied with the July 14, 2010 order (filing no. 83). M av erick Feeders filed a second Motion to Compel and Request for Further S an ctio n s on August 3, 2010, alleging FNBO has not complied with the July 22, 2 0 1 0 order (filing no. 89). Maverick Feeders filed an affidavit is support of its p rev iou sly granted request for attorneys' fees ($1,391.25) (filing no. 95). F N B O filed its mandatory disclosures on August 6, 2010 (filing no. 98) and began producing documents responsive to LOL Finance's and Maverick Feeders' resp ectiv e requests for production of documents on August 9, 2010. · · · A t the hearing held today, FNBO's counsel disclosed FNBO continues to withhold "20 or so" emails on the basis of attorney/client privilege, though no privilege log has ever been c re a te d and served on the parties. FNBO's counsel accepts full and complete responsibility for FNBO's substantially unjustified and dilatory responses to discovery. She explains she failed to prepare discovery responses on behalf of her client due to the press of other matters, her failure to request help from others within her firm, and underlying health issues. FNBO's failure to timely raise attorney/client and work product objections justifies a finding that these protections from discovery have been waived. IT IS ORDERED: 1. F N B O shall file with this court, by 12:00 p.m (noon) on August 10, 2010, the "2 0 or so" emails between FNBO employee Chris Kalkowski and others for w h ich FNBO is claiming protection under the attorney/client privilege or work 3 p ro d u ct doctrine. The filing shall be made under seal, and supported by a p riv ileg e log or other evidence the court should consider when it conducts an in camera review of the documents to determine whether FNBO may avoid produ ction of the documents. 2. B y 5:00 p.m. on Wednesday, August 11, 2010, FNBO must complete the follow ing actions: a. P ro d u ce all remaining documents subject to LOL Finance's and M av erick Feeders' respective First Requests for Production of D o c u m e n ts ; P ro vid e FNBO's "contact history reports" for the three month time p erio d missing from its prior production responses, or provide a reaso n ab le explanation to LOL and Maverick as to why this information sh ou ld not be ordered produced;. P ro d u ce the information redacted from documents FNBO has produced to LOL Finance and Maverick Feeders, or provide to LOL and Maverick a reasonable explanation as to why the redacted portions should not be p ro d u c e d ; b. c. 3. B y 5:00 p.m. on Wednesday, August 11, 2010, attorney J.P. Sam King or an o th er experienced attorney admitted to practice in federal court, shall enter an appearance and begin assisting FNBO's current counsel with FNBO's represe ntatio n in this case. The new counsel shall make prompt and reasonable effo rts to become familiar with the issues and facts of this case. W ithin fourteen (14) days of the date of this order, the following actions must b e completed: a. T h e parties will discuss and attempt to reach a resolution regarding the n ecessity and scope of any supplemental depositions of the previously d e p o se d employees of Paul Johnson & Sons Cattle Co. Any su p p lemen tal deposition will be limited to new matters raised by or w ithin documents produced by FNBO after the depositions were co n d u cted . To the extent any supplemental depositions are needed due to FNBO's dilatory discovery responses, FNBO will be responsible for the reasonable costs and expenses of these supplemental depositions. If the parties reach an agreement regarding supplemental depositions, 4. 4 they shall file a joint stipulation reflecting that agreement on or before A u g u st 25, 2010. b. C o u n sel for LOL Finance, Maverick Feeders and FNBO will discuss and attemp t to reach a resolution on LOL Finance's and Maverick Feeders' resp ectiv e motions for fees, including those for the preparation of the M o tio n s to Compel and the attendance at the related hearing on the m atter. If the parties reach an agreement on fee sanctions, they shall file a joint stipulation reflecting that agreement on or before August 25, 2010. 5. If the discussions mandated in Paragraphs 4(a) & (b) of this order do not result in an amicable resolution, the parties shall file the appropriate motions on the o u ts ta n d in g issues no later than twenty-one (21) days from the date of this o rd er. With respect to any motions regarding attorneys' fees, the motion shall b e accompanied by an affidavit describing, in detail, the time spent by the atto rn ey in preparation of the motions and attendance at the hearing and the amo un t of requested fees and expenses. T o facilitate expediting the future discovery processes, any additional d o cu m ents produced by FNBO should be forwarded, after a reasonable review, immed iately from counsel to the requesting party on an ongoing basis rather th an withholding documents in an attempt to compile the responses for into a sin g le set. L O L Finance's and Maverick Feeder's respective motions for entry of default o r default judgment are denied without prejudice. However, the court will close ly monitor FNBO's future participation and conduct in this case and will rev isit the possible default sanction if needed. 6. 7. DATED this 9th day of August, 2010. B Y THE COURT: s/ Cheryl R. Zwart United States Magistrate Judge 5

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