Broom, Clarkson, Lanphier & Yamamoto v. Kountze

Filing 141

ORDER denying 129 Domina's motion to quash. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

BROOM, CLARKSON, LANPHIER &
YAMAMOTO, a Partnership,
8:14CV206
Plaintiff,
vs.

ORDER

EDWARD KOUNTZE, individually
and as Personal Representative of
the Estate of Denman Kountze, Jr.,
in Collier County, Florida,
Defendant.
This matter is before the court on a non-party motion to quash (Filing No. 129).
David A. Domina and Domina Law Group PC LLC (collectively Domina) seek to quash
Edward Kountze’s (Kountze) subpoenas for documents and for David Domina to appear
for a deposition.

Domina filed evidence (Filing No. 129-1) attached to the motion.

Kountze filed a brief (Filing No. 132) and an index of evidence (Filing No. 133) opposing
the motion.

Domina did not file a reply.

Broom, Clarkson, Lanphier & Yamamoto

(Broom) did not participate in briefing.

BACKGROUND
Broom initiated this action in an attempt to collect more than $375,000 in
attorney’s fees allegedly due from Kountze for legal services Broom provided in two
Nebraska lawsuits and other matters from 2004 through 2013. See Filing No. 1 - Ex. 1
Complaint ¶¶ 1-37. Kountze generally denies he owes Broom additional fees. See
Filing No. 46 - Counterclaim. Further, Kountze alleges Broom “engaged in a pattern of
overbilling for legal services, and performing work that was unnecessary, excessive,
unauthorized, and/or unreasonable. . . . amount[ing] to a material breach of the
Agreement between the parties.” Id. ¶ 1.
Kountze removed Broom’s lawsuit from the District Court of Douglas County,
Nebraska, on July 17, 2014.

See Filing No. 1.

The court authorized the

commencement of discovery on September 2, 2014. See Filing No. 13. On February
17, 2016, the court entered a third amended scheduling order providing deadlines for

discovery and setting trial. See Filing No. 92. Based on the parties’ suggestion, the
court imposed an April 29, 2016, deadline for “[a]ll interrogatories, requests for
admission and requests for production or inspection, whether or not they are intended to
be used at trial.” Id. ¶ 2(a). Additionally, the deposition deadline for fact witnesses was
June 28, 2016. Id. ¶ 2(b).
On August 5, 2016, Kountze issued two subpoenas on Domina, who provided
legal services to Kountze from 2003 until 2009, including some matters overlapping with
those handled by Broom. See Filing No. 129 - Jorde Decl. ¶ 3 & Exs. 1-2. Kountze
seeks production of:

“All bills, invoices, and statements of account relating to

professional services rendered by Domina Law Group PC LLO on behalf of Edward
Kountze and/or Denman Kountze, Jr. relating to . . . [four listed court proceedings].” Id.
Ex. 1. Additionally, Kountze seeks to depose David Domina stenographically and by
audiotape. Id. Ex. 2. Kountze contends the billing information is relevant to his claims
against Broom for improper billing to show the allocation of responsibility between
Broom and Domina in the underlying litigation, and to determine the extent of
overlapping, and therefore unnecessary, work performed by Broom. See Filing No. 132
- Response p. 2. Kountze notes Broom:
listed Domina as a party with knowledge of the “nature and
extent” of the litigation at issue, including the “hours
expended by Plaintiff, nature and extent of the litigation, the
time and labor required, the scope of Plaintiff’s involvement
and the experience and ability of the Plaintiff and other
attorneys involved in the litigation.”
Id. at 3-4 (quoting Filing No. 133 - Ex. 1 Broom’s Answers to Interrogs. p. 2).
Domina seeks to quash Kountze’s subpoenas because they (1) undermine a
valid attorney’s lien; (2) seek information readily available from a party opponent; and
(3) subject a non-party to significant expense. See Filing No. 129 - Motion p. 4. In the
alternative, Domina suggests the court require Kountze to prepay the costs required for
Domina to comply with the subpoena and deposit the disputed professional fees (those
amounts associated with the attorney’s lien) into an escrow account. Id. at 8. Domina
admits provision of legal services from 2003 until 2009, including some matters
overlapping with those handled by Broom.

See Filing No. 129 - Jorde Decl. ¶ 3.

Nevertheless, Domina alleges Kountze failed to pay Domina more than $100,000 in
professional fees, which are the subject of two state court lawsuits now consolidated on
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appeal. Id. ¶ 8. Domina contends a valid attorney’s lien, pursuant to Neb. Rev. Stat.
§ 7-108, exists to prevent disclosure of Kountze’s papers pending payment of the
outstanding fees or resolution of the appeal. Id. ¶ 9. Domina alleges compliance with
the subpoenas would cost $11,175 based upon the estimated time required by an
archivist, an accountant, and an attorney, in addition to David Domina’s deposition and
preparation time. Id. ¶¶ 11-13.
Kountze argues production would not violate a lien, Domina is the best source for
complete production, and little burden exists for the minimal discovery sought. See
Filing No. 132 - Response. Kountze denies the attorney’s lien is valid or applies to the
documents sought. Id. at 3, 9. First, Kountze states the lawsuits filed by Domina were
dismissed for failure to timely serve summons. Id. at 5 (Filing No. 133 - Ex. 5 Dismissal
Order). Second, Kountze states he does not seek his entire “file” or papers; he seeks
only “copies of legal bills that were created by Domina and allegedly issued to Kountze.”
Id. at 3, 9. Third, Kountze argues Domina has an ethical duty to provide the billing
documents even if production does impede a lien. Id. at 3, 9-11. Kountze argues, even
assuming he or Broom have the documents, the federal rules permit him to obtain the
complete set of narrowly tailored billing documents from Domina and depose David
Domina in support of the counterclaims. Id. at 7-8. Kountze contends simply locating
and providing the bills themselves creates no undue burden. Id. at 8. Kountze asserts
David Domina’s deposition as a fact witness entitles him to only statutory fees, rather
than his standard billing rate or the rate of an expert witness. Id. at 12.

ANALYSIS
A party to a federal lawsuit may obtain documents relevant to the matter through
discovery as authorized by the Federal Rules of Civil Procedures. The federal rules
require the court to impose limits on the parties’ time to complete discovery, including
discovery sought through Rule 45 from non-parties. See Fed. R. Civ. P. 16(b)(3). The
April 29, 2016, written discovery deadline and June 28, 2016, fact witness deposition
deadline set by the court in this case included all discovery from parties and nonparties.

See Filing No. 92.

Kountze does not address the untimeliness of his

subpoenas served in August 2016. However, the court notes Domina previously filed a
motion to quash on April 20, 2016, which motion was withdrawn when Kountze
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withdrew an April 11, 2016, subpoena. See Filing Nos. 97 and 112. Based on the
ongoing discovery inquiries, the court finds good cause exists for an extension of time to
complete this discovery.
As an initial matter, Rule 26(a) applies to the discovery sought in a federal civil
lawsuit. See Fed. R. Civ. P. 26(b)(1); 34(a) and (c). “Parties 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). “Broad discovery is an
important tool for the litigant, and so ‘[r]elevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.’” WWP, Inc. v. Wounded Warriors Family Support, Inc., 628
F.3d 1032, 1039 (8th Cir. 2011) (alteration in original) (quoting Fed. R. Civ. P.
26(b)(1)). Accordingly, relevant information includes “any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in
the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Generally,
the court has authority to limit the scope of discovery. Roberts v. Shawnee Mission
Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003).
The federal rules authorize the court to limit discovery that is “unreasonably
cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive.”

Fed. R. Civ. P. 26(b)(2)(C)(i).

Moreover, the court may also limit discovery after considering “the importance of the
issues at stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit.” Fed. R. Civ. P. 26(b)(1).
In addition, Rule 45 generally requires a non-party to produce requested
documents and appear for a deposition. However, the Federal Rules of Civil Procedure
provide a mechanism for a subpoenaed person to challenge the requirements of a
subpoena. Fed. R. Civ. P. 45(c). Specifically,
On timely motion, the court for the district where compliance
is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a
party’s officer to travel more than 100 miles from
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where that person resides, is employed, or regularly
transacts business in person. . .;
(iii) requires disclosure of privileged or other protected
matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(c)(3)(A).
In accordance with these rules, the court will weigh the relevance and relative
importance of the discovery sought with the burden placed on the non-party.
Kountze has met his burden of demonstrating the relevance of the discovery
sought. The subpoenas seek information bearing on the counterclaims about whether
Broom, Domina’s co-counsel, properly billed Kountze based on the allocation of legal
work and other factors. Further, the requests seek production limited to billing records
for only those legal proceedings involving both attorneys. Domina fails to show any
superfluous additional matters contained in the billing records for the same time period
should be redacted. Additionally, while Domina suggests the records were already
provided to Kountze, contemporaneous with his legal representation, and may also be
in Broom’s possession, Kountze need not rely on his own (or Broom’s) possibly
incomplete records. Domina fails to substantiate how production of the limited billing
records or David Domina’s deposition creates an undue burden in terms of resources or
as a violation of a lien.

The court will not determine whether Domina has a valid

attorney’s lien with respect to Kountze’s papers, nor does the court intend to undermine
any such lien. The court finds the billing documents fall outside the purview of the
statutory attorney’s lien. Moreover, Kountze and Domina may confer to lessen the
demands on David Domina’s time by providing production in advance of any deposition
and providing more detailed notice about the deposition’s topic areas.

For these

reasons, Domina’s motion will be denied. Upon consideration,

IT IS ORDERED:
Domina’s motion to quash (Filing No. 129) is denied.
Dated this 11th day of October, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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