Broom, Clarkson, Lanphier & Yamamoto v. Kountze

Filing 70

ORDER granting in part and denying in part the plaintiff's 54 Motion to Compel Disclosures, Answers to Interrogatories and Response to Request for Production of Documents. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

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 the plaintiff’s Motion to Compel Disclosures,
Answers to Interrogatories and Response to Request for Production of Documents
(Filing No. 54). The plaintiff filed a brief (Filing No. 56) and index of evidence (Filing
Nos. 55 and 57) in support of the motion. The defendant filed a brief (Filing No. 58) and
index of evidence (Filing No. 59) in response. The plaintiff filed a brief (Filing No. 60)
and index of evidence (Filing No. 61) in reply.

BACKGROUND
This action pertains to the defendant’s alleged failure to pay attorneys’ fees due
to the plaintiff. See Filing No. 59-1 - Complaint. The parties entered into an agreement
for the provision of legal services on September 15, 2004. Id. at Ex. A - Retainer
Agreement. The plaintiff claims it provided legal services requested by the defendant in
two separate lawsuits.

See Filing No. 59-1 - Complaint ¶ 6.

The plaintiff seeks

$10,882.90 in unpaid attorneys’ fees for legal services it provided to the defendant in
proceedings in Douglas County District Court, an appeal thereof, and the U.S. District
Court of Nebraska (Hitchcock Foundation proceedings). See id.; Filing No. 12 - Rule
26(f) Report p. 3.1 The plaintiff also seeks $365,718.86 in unpaid attorneys’ fees for
legal services it provided to the defendant in proceedings in Douglas County Court and
an appeal thereof (Heirloom Trust proceedings). See Filing No. 59-1 - Complaint ¶ 13;
Filing No. 12 - Rule 26(f) Report p. 3. The plaintiff initially filed a complaint to recover
1

All page number references correspond to the numbers assigned when filed in the CM/ECF system.

unpaid attorneys’ fees from the defendant in Douglas County District Court on
September 25, 2013. See Filing No. 59-1 - Complaint. On July 17, 2014, the defendant
removed the action to this court on the basis of diversity jurisdiction. See Filing No. 1 Notice of Removal ¶ 10.
The parties filed their joint Rule 26(f) Report on August 29, 2014. See Filing No.
12. In the Rule 26(f) Report, the defendant stated he intended to challenge the scope of
work performed by the plaintiff and the reasonableness of the plaintiff’s bills. Id. at 4-5.
Specifically, the defendant claimed the plaintiff failed to perform a number of tasks he
requested, the plaintiff never provided itemized bills for services it rendered, the
plaintiff’s work was unnecessary, duplicative, and outside the scope of retention, and
many entries for which the plaintiff seeks legal fees occurred after the plaintiff withdrew
as the defendant’s attorney. Id. On September 2, 2014, the court entered an initial
progression order permitting the parties to commence discovery. See Filing No. 13 Order ¶ 6.
On September 24, 2014, the plaintiff served its first set of requests for
admissions, first set of interrogatories, and first set of requests for production of
documents. See Filing No. 14 - Certificate of Service. The plaintiff propounded sixtytwo numbered requests for admissions.

See Filing No. 57-1 - First Requests for

Admissions p. 1-9. In general, the plaintiff’s requests sought the defendant to admit the
genuineness of dozens of exhibits, including emails to or from the defendant,
documents from the Heirloom Trust proceedings, and documents from a Collier County,
Florida lawsuit. See generally id. The first set of interrogatories asked the defendant
to state his reasons for any requests for admissions he did not unqualifiedly admit, the
bases and identity of persons and documents related to the defendant’s defenses set
forth in the Rule 26(f) Report, his residences from 2004 to the present, the identity of
each private investigator or consultant he hired regarding the Heirloom Trust
proceedings, and the damages he claims to have suffered with respect to a motion to
set aside a default judgment in Douglas County District Court. See Filing No. 57-14 First Set of Interrogatories p. 1-4.

The plaintiff’s first request for production of

documents seeks the defendant to produce any documents identified in each of his
answers to interrogatories.
Documents p. 1-3.

See Filing No. 57-15 - First Request for Production of

Production Request No. 2 seeks production of all written
2

communication between the defendant and the plaintiff, “and any other attorneys
working on the Heirloom litigation including, but not limited to, Robert Zuber, David
Domina’s law firm, Adrian Thomas law firm, Karla Gottschalk, Richard Register, Kathryn
Hemenway and including negotiations regarding the ‘global’ settlement thereof signed
on February 22, 2013.” Id. at 2.
On October 21, 2014, counsel for the defendant, Seth Darmstadter, emailed the
plaintiff requesting an extension to November 14, 2014, to respond to the plaintiff’s
September 24, 2014, discovery requests. See Filing No. 57-20 - Email p. 1. The
plaintiff agreed to the extension. Id. at 2.

On November 6, 2014, Darmstadter

requested a second extension, to November 18, 2014, and the plaintiff agreed. Id. at 511.

On November 18, 2014, Darmstadter provided the plaintiff with the defendant’s

responses to the plaintiff’s first requests for admissions. Id. at 17-18. The defendant
responded he was unable to verify whether exhibits contained true copies of emails sent
to or from his email accounts because his email accounts “were victimized by one or
more illegal hackers” and “have been compromised and closed.” See Filing No. 57-13 Response to First Request for Admissions p. 3-6, 8, 10, 12-19. Darmstadter informed
the plaintiff the defendant would “serve the other discovery responses later this week.”
Filing No. 57-20 - Email p. 17-18.
On November 19, 2014, the plaintiff emailed Darmstadter stating, “The agreed
upon extension expired yesterday. We have only received responses to Request for
Admissions and no responses nor objections to other outstanding discovery. The time
for objections to same has expired. Any objections have therefore been waived. We
are thus expecting full answers to the outstanding discovery.” See Filing No. 57-20 Email p. 46.

The plaintiff emailed Darmstadter on December 16, 2014, noting

Darmstadter had not returned the plaintiff’s call to confer about the defendant’s
outstanding discovery responses. Id. at 47. On the same date, Darmstadter replied he
had been covering his partner’s cases due to the death of his partner’s father, and
would send discovery responses “[a]s soon as possible.” Id. at 48.
On January 1, 2015, Darmstadter left the law firm representing the defendant.
See Filing No. 59-2 - Affidavit ¶ 5.

Jeffrey Greenspan entered his appearance as

counsel for the defendant on January 7, 2015. See Filing No. 27 - Application For

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Admission Pro Hac Vice. Darmstadter subsequently withdrew from the case.

See

Filing No. 30 - Order.
On January 6, 2015, the plaintiff emailed both Darmstadter and Greenspan,
stating it “need[ed] a date certain, in the immediate future, for an appropriate response
to outstanding discovery requests if we are going to avoid a request for court
intervention.”

See Filing No. 57-20 - Email p. 49-50.

Greenspan and the plaintiff

agreed the defendant’s outstanding discovery responses would be supplied by January
20, 2015. Id. at 52; Filing No. 59-2 - Affidavit ¶¶ 6-8. On January 19, 2015, the plaintiff
agreed to extend the deadline to January 28, 2015. See Filing No. 59-2 - Affidavit ¶ 9.
On January 28, 2015, the plaintiff emailed Greenspan stating, “Please consider this a
final effort to obtain long overdue outstanding discovery requests without court action.”
See Filing No. 57-20 - Email p. 64.
The defendant served his answers to the plaintiff’s first set of interrogatories on
January 28, 2015. See Filing No. 57-16 - Answers to First Set of Interrogatories p. 19.
The defendant made several general objections, including the first set of interrogatories
were vague, overbroad, they exceeded the maximum number of interrogatories allowed
pursuant to the court’s initial progression order, and the response would be protected by
attorney-client privilege and the work-product doctrine. Id. at 1-2. The defendant also
specifically objected to each of the thirteen interrogatories, but answered Interrogatory
Nos. 1-10 “[s]ubject to and without waiving these objections.” Id. at 3-7. The defendant
also served his responses to the plaintiff’s first requests for production of documents on
January 28, 2015. See Filing No. 57-17 - Reponses to First Request for Production of
Documents p. 11. The defendant objected on the grounds the requested documents
were protected by the attorney-client privilege and the work-product doctrine, the
requests were vague, ambiguous, overbroad, unduly burdensome, irrelevant, and the
documents were already produced, equally obtainable by the plaintiff, or were already in
the plaintiff’s possession. Id. at 1-2. The defendant also served a privilege log. See
Filing No. 57-25 - Privilege Log.
On February 2, 2015, the plaintiff sent an email to Greenspan stating, “We
expected and are entitled to answers to Interrogatories and response to Requests for
Production of Documents - without objections. This was not done. This is an effort to
seek compliance without court intervention.”
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See Filing No. 57-20 - Email p. 66.

Greenspan replied, “[I]n the interest of trying to resolve the issue, can you let me know
specifically which objections you have an issue with so that we can have a meet and
confer about them[?]” Id. at 68. The plaintiff responded on February 3, 2015, it had an
issue with “any and all objections” because the defendant’s objections were untimely
and were therefore waived.

Id. at 71.

The plaintiff and Greenspan discussed the

waiver issue in subsequent emails between February 3 and 4, 2015. Id. at 73-78.
The plaintiff served the defendant with its second set of interrogatories and
second request for production of documents on January 9, 2015. See Filing No. 57-18 Second Set of Interrogatories p. 3; Filing No. 57-29 - Second Request for Production of
Documents p. 3. On February 3, 2015, the plaintiff agreed to extend the deadline to
February 26, 2015, for the defendant to respond to the second set of written discovery.
See Filing No. 57-20 - Email p. 73.
On February 11, 2015, the parties filed a joint motion to modify the case
schedule. See Filing No. 33 - Joint Motion. According to the joint motion, the parties
had been “working diligently” to gather documents and answer written discovery, but
due to the high volume of responsive documents, the parties agreed additional time was
required to complete written discovery. Id. ¶¶ 4, 8. The court granted the parties an
extension until June 30, 2015, to complete written discovery. See Filing No. 34 - Order.
On February 24, 2015, the parties agreed to extend the defendant’s deadline
until March 5, 2015, to respond to the plaintiff’s second set of written discovery.

See

Filing No. 57-20 - Email p. 91. On March 3, 2015, Greenspan emailed the plaintiff he
had been working with Google to attempt to gain access to email accounts that had
been compromised, and upon gaining access to the accounts, the defendant would
supplement his answers to the first set of written discovery. Id. at 92. The plaintiff
agreed to “hold off” on the defendant’s responses to the second set of requests for
production and second set of interrogatories. Id. at 93. On May 1, 2015, Greenspan
and the plaintiff agreed the defendant would provide supplemental responses to the first
set of written discovery on May 25, 2015. Id. at 99. On May 6, 2015, Greenspan and
the plaintiff agreed the supplemental responses would be due May 28, 2015. Id. at 102.
On June 2, 2015, the defendant provided supplemental responses to the
plaintiff’s first request for admissions (Filing No. 57-26), first set of interrogatories (Filing
No. 57-27), and first request for production of documents (Filing No. 57-28). On June
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23, 2015, the defendant served his answers to the plaintiff’s second set of
interrogatories (Filing No. 57-23) and response to the plaintiff’s second request for
production of documents (Filing No. 57-24). The defendant provided over 15,000 pages
of digital documents in his supplemental responses to the first request for production.
See Filing No. 59-2 - Affidavit ¶ 15. The defendant has produced over 30,000 pages of
digital documents in total. Id. ¶ 21.
On June 23, 2015, the court granted the defendant leave to file a counterclaim.
See Filing No. 44 - Order. On June 24, 2015, the defendant filed a counterclaim for
breach of contract on the bases the plaintiff: overcharged him and engaged in a pattern
of overbilling for legal services and performing unnecessary, excessive, unauthorized,
and unreasonable work; failed to advise him of the “exorbitant” amount of fees that
would result from the courses of action taken in the Hitchcock Foundation proceedings
and Heirloom Trust proceedings; failed to advise him of the low chances of success in
each proceeding; billed him for personal work performed after the termination of the
professional relationship; performed excessive legal research; and failed to properly
research and advise him of the law resulting in superfluous and unsuccessful motions
and appeals. See Filing No. 46 - Counterclaim ¶ 49.
On July 10, 2015, the plaintiff emailed Greenspan stating the defendant’s
supplemental responses and answers to the plaintiff’s first set of discovery were
inadequate.

See Filing No. 57-21 - Email p. 1.

The plaintiff again asserted the

defendant’s objections were not timely and the privilege log did not comply with the
court’s initial progression order. Id. at 1-3. On July 23, 2015, Greenspan sent a letter to
the plaintiff in response. See Filing No. 57-22 - Letter. Greenspan maintained the
defendant provided full and complete responses, despite the objections.

Id. at 1.

Greenspan recognized deficiencies in the privilege log and stated he would provide an
amended privilege log with supplemental document production within fourteen days. Id.
at 1-2. On August 6, 2015, the defendant served second supplemental answers to the
plaintiff’s first set of interrogatories (Filing No. 57-29), second supplemental responses
to the plaintiff’s first request for production (Filing No. 57-30), supplemental response to
the plaintiff’s second set of interrogatories (Filing No. 57-31), and an amended privilege
log (Filing No. 57-32).

6

The plaintiff filed the instant motion on August 25, 2015, seeking an order
compelling the defendant to answer the plaintiff’s first set of interrogatories (Filing No.
57-14), to produce the documents requested in the plaintiff’s first request for production
of documents (Filing No. 57-15), and to answer the plaintiff’s second set of
interrogatories (Filing No. 57-18). See Filing No. 54 - Motion p. 1. The plaintiff also
requests sanctions including attorney’s fees and costs, and the striking of any and all
related defenses asserted by the defendant. Id. at 3.
The plaintiff asserts the defendant has waived all objections to the first set of
discovery, including attorney-client privilege objections, by failing to timely serve
objections and by putting privileged attorney-client communications at issue. See Filing
No. 56 - Brief p. p. 2-5, 9. The plaintiff seeks an order compelling the defendant to
answer interrogatories and produce all documents without objections.

Id.

The

defendant maintains he has fully answered all interrogatories and provided the plaintiff
with over 30,000 pages of digital documents responsive to the plaintiff’s requests. See
Filing No. 58 - Response p. 8.

The defendant argues the only information and

documents withheld relate to privileged communications between the defendant and
attorneys other than the plaintiff.

Id.

Therefore, the primary issue the court must

resolve is whether the defendant has waived all objections based on attorney-client
privilege.

ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.” 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). Mere
speculation that information might be useful will not suffice; litigants seeking to compel
discovery must describe with a reasonable degree of specificity, the information they
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hope to obtain and its importance to their case. See Cervantes v. Time, Inc., 464 F.2d
986, 994 (8th Cir. 1972).

Once the requesting party meets the threshold relevance

burden, generally “[a]ll discovery requests are a burden on the party who must respond
thereto. Unless the task of producing or answering is unusual, undue or extraordinary,
the general rule requires the entity answering or producing the documents to bear that
burden.” Continental Ill. Nat’l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D.
682, 684-85 (D. Kan. 1991) (citation omitted).
The party opposing a motion to compel has the burden of showing its objections
are valid by providing specific explanations or factual support as to how each discovery
request is improper. St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198
F.R.D. 508, 511-12 (N.D. Iowa 2000) (objecting party has the burden to substantiate its
objections). The party resisting discovery has the burden to show facts justifying its
objection by demonstrating that the time or expense involved in responding to
requested discovery is unduly burdensome. See Wagner v. Dryvit Sys., Inc., 208
F.R.D. 606, 610 (D. Neb. 2001). This imposes an obligation to provide sufficient detail
and explanation about the nature of the burden in terms of time, money, and procedure
required to produce the requested discovery. See id.

1.

First Set of Interrogatories
a.

Failure to Timely Object

Generally, “[t]he responding party must serve its answers and any objections
within 30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). “A
shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.”
Id. “Each interrogatory must, to the extent it is not objected to, be answered separately
and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). If an objection is made, “[t]he
grounds for objecting to an interrogatory must be stated with specificity. Any ground not
stated in a timely objection is waived unless the court, for good cause, excuses the
failure.” Fed. R. Civ. P. 33(b)(4). “If stipulations to extend the time stated in Federal
Rules of Civil Procedure 33, 34, and 36 for responses to discovery would interfere with
court imposed discovery deadlines, motion deadlines, or trial dates, the stipulations are
effective only upon court order.” NECivR 29.1. “All other discovery stipulations are

8

effective when the parties file a written stipulation signed by all parties that specifies the
agreed upon change.” Id.
The plaintiff argues all the defendant’s objections to the plaintiff’s first set of
interrogatories are waived because they were not made within thirty days. See Filing
No. 56 - Brief p. 2. There is no legitimate dispute the defendant failed to comply with its
obligation to timely respond or object to the first set of interrogatories. The plaintiff
served its first set of interrogatories on September 24, 2014.

See Filing No. 14 -

Certificate of Service. Emails between counsel for the defendant and the plaintiff reflect
the plaintiff agreed to extend the response deadline to November 18, 2014. See Filing
No. 57-20 - Email p. 1-11. The defendant did not serve his answers and objections to
the plaintiff’s first set of interrogatories on November 18, 2014. The defendant did not
serve his initial answers and objections to the first set of interrogatories until January 28,
2015. See Filing No. 57-16 - Answers to First Set of Interrogatories p. 19. Because the
defendant did not timely serve his answers and objections, his objections to the first set
of interrogatories are waived unless the court finds good cause to excuse the failure.
A court has wide discretion in determining whether to excuse a party’s waiver.
Cargill, Inc. v. Ron Burge Trucking, Inc., 284 F.R.D. 421, 426 (D. Minn. 2012). The
defendant argues good cause exists to excuse his failure to timely object to the first set
of interrogatories because he made a good faith effort to comply with deadlines and
maintained constant communication with opposing counsel regarding the status of the
discovery responses. Filing No. 58 - Response p. 9-11. Emails reflect the parties
agreed to November 18, 2014, as the deadline for the defendant to respond to the first
set of discovery.

See Filing No. 57-20 - Email p. 1-11.

On November 18, 2014,

Darmstadter provided the plaintiff with only the defendant’s responses to the first
request for admissions and stated he “will serve the other discovery responses later this
week.”

Id. at 17.

The defendant apparently did not serve the other discovery

responses later that week, and on December 16, 2014, the plaintiff emailed
Darmstadter noting he had not returned the plaintiff’s call to confer about the
defendant’s outstanding discovery responses. Id. at 47. Darmstadter replied he had
been covering his partner’s cases due to the death of his partner’s father and would
send discovery responses “[a]s soon as possible.” Id. at 48. Darmstadter subsequently
withdrew from the case at the beginning of January 2015, without providing answers
9

and objections to the first set of interrogatories. See Filing No. 30 - Order. Once
Greenspan took over representation of the defendant in January 2015, he and the
plaintiff agreed to subsequent extensions for the defendant to provide his outstanding
discovery responses. See Filing No. 57-20 - Email p. 52; Filing No. 59-2 - Affidavit ¶¶ 68.

Although the plaintiff agreed to further extensions, with which the defendant

ultimately complied, the plaintiff continued to take the position the defendant’s
objections were waived as of November 19, 2014. See Filing No. 57-20 - Email p. 6678. The defendant provides no explanation or excuse for his inability to timely respond
to the plaintiff’s interrogatories in November 2014. Counsel for the defendant did not
request a further extension from the plaintiff or the court prior to the November 18,
2014, deadline, or explain why he did not serve the defendant’s answers and objections
to interrogatories at that time.

The plaintiff actively sought responses from the

defendant, but until January 2015, the defendant provided little in the way of
communication with the plaintiff regarding the status of discovery.

Thus, the court

concludes the defendant has not established good cause to excuse the waiver of
objections to the first set of interrogatories.

The court orders the defendant to

supplement his answers to the first set of interrogatories without objections.

b.

Privileged Communications at Issue

In addition to the defendant’s waiver for failure to timely serve answers to
interrogatories, the plaintiff argues the defendant further waived attorney-client privilege
objections by putting privileged attorney-client communications at issue. See Filing No.
56 - Brief p. 5-6. “In [a] diversity case, [federal courts] apply federal law to resolve work
product claims and state law to resolve attorney-client privilege claims.” Baker v.
General Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000). Under Nebraska law:
A client has a privilege to refuse to disclose and to prevent
any
other
person
from
disclosing
confidential
communications made for the purpose of facilitating the
rendition of professional legal services to the client (a)
between himself or his representative and his lawyer or his
lawyer's representative, or (b) between his lawyer and the
lawyer's representative, or (c) by him or his lawyer to a
lawyer representing another in a matter of common interest,
or (d) between representatives of the client or between the
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client and a representative of the client, or (e) between
lawyers representing the client.
Neb. Rev. Stat. § 27-503(2). “A communication is confidential if not intended to be
disclosed to third persons other than those to whom disclosure is in furtherance of the
rendition of professional legal services to the client or those reasonably necessary for
the transmission of the communication.” Neb. Rev. Stat. § 27-503(1)(d). No privilege
exists for “a communication relevant to an issue of breach of duty by the lawyer to his
client or by the client to his lawyer.”

Neb. Rev. Stat. § 27-503(4)(c).

“The party

asserting attorney-client privilege has the burden of proving that the information sought
is protected.” Nebraska ex rel. Stivrins v. Flowers, 729 N.W.2d 311, 316 (Neb. 2007).
A party may waive the attorney-client privilege by placing communications between
lawyer and client into issue. See Nebraska v. Roeder, 636 N.W.2d 870, 876 (Neb.
2001). The party asserting the attorney-client privilege impliedly waives it through his
own affirmative conduct when:

(1) assertion of the privilege was a result of some

affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act,
the asserting party put the protected information at issue by making it relevant to the
case; and (3) application of the privilege would have denied the opposing party access
to information vital to his defense. Id. “‘Fairness is an important and fundamental
consideration in assessing the issue of whether there has been a waiver of the lawyerclient privilege.’” Id. (quoting League v. Vanice, 374 N.W.2d 849, 856 (Neb. 1985)).
The plaintiff claims the defendant waived all attorney-client privilege objections
because he raised as a defense the plaintiff’s breach of its duties during its
representation of the defendant. See Filing No. 56 - Brief p. 3-4. In the defendant’s
counterclaim, he alleges the plaintiff breached its duties to him by overcharging and
overbilling him, performing unnecessary, unauthorized, and excessive work, failing to
advise him of the “exorbitant” amount of fees resulting from the plaintiff’s representation
and his low chances of success, and failing to properly research and advise him of the
law. See Filing No. 46 - Counterclaim ¶ 49. Similarly, in the Rule 26(f) Report, the
defendant claimed the plaintiff failed to perform a number of tasks he requested, the
plaintiff never provided itemized bills for services it rendered, the plaintiff’s work was
unnecessary, duplicative, and outside the scope of retention, and many entries for
which the plaintiff seeks legal fees occurred after the plaintiff withdrew as the
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defendant’s attorney. See Filing No. 12 - Rule 26(f) p. 4-5. The defendant does not
dispute communications between him and the plaintiff are at issue and the attorneyclient privilege is waived with respect to those communications. See Filing No. 58 Response p. 11. The defendant’s allegations in his counterclaim and the Rule 26(f)
Report clearly place protected communications between him and the plaintiff at issue,
and therefore the court finds the defendant has waived any claim of attorney-client
privilege to those communications, in addition to his waiver for failure to timely serve his
answers.
However, the defendant continues to assert the attorney-client privilege with
respect to certain communications between him and other attorneys who also
represented him in the Heirloom Trust proceedings and Hitchcock Foundation
proceedings. Id. at 13. The court concludes the defendant’s privileged communications
with attorneys other than the plaintiff are not vital to the plaintiff’s defense against the
defendant’s defenses and counterclaims. See Roeder, 636 N.W.2d at 876 (holding
implied waiver of attorney-client privilege occurs where application of the privilege would
deny the opposing party access to information vital to his defense). For example, the
defendant claims he directed the plaintiff to file a motion to disqualify, which the plaintiff
failed to do. See Filing No. 12 - Rule 26(f) Report p. 5. Communications between the
defendant and the plaintiff would reveal whether the defendant requested the plaintiff to
take such action, and the plaintiff’s itemized bills or communications with the defendant
would reflect whether it acted upon the request. Resort to privileged communications
with the defendant’s other attorneys is not necessary for the plaintiff to defend against
the defendant’s claim. The defendant’s other defenses and counterclaims similarly deal
with the plaintiff’s actions or inaction and billing during its representation of the
defendant.

Such allegations only implicate privileged communications between the

defendant and the plaintiff, and not privileged communications with the defendant’s
other counsel. The court therefore concludes the defendant did not waive attorneyclient objections with all his attorneys by putting his communications with the plaintiff at
issue.

This conclusion does not affect the court’s determination above that the

defendant waived all objections for failure to timely serve his answers.

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c.

Adequacy of Answers

The defendant contends the plaintiff’s arguments regarding his answers to
interrogatories are moot because he has fully answered. See Filing No. 58 - Response
p. 14. Although it is common practice for a party to respond to discovery requests
subject to and without waiving objections, such responses prevent the requesting party
from knowing whether all information has been provided. See Green v. Sunset Fin.
Servs., Inc., 2012 WL 931976, at *2 (D. Neb. Mar. 20, 2012). See also Taylor-Shaw
v. Bestway Rent-to-Own, 2010 WL 2998796, at *3 (E.D. Ark. July 28, 2010). Although
the defendant appears to have fully answered the first set of interrogatories, the court
orders he supplement his answers to the extent necessary in light of the court’s
conclusion he has waived all objections by failing to timely serve them.

2.

First Request for Production of Documents
a.

Failure to Timely Respond

The defendant objected to plaintiff's first request for production of documents on
the bases of attorney-client privilege and the work-product doctrine. See Filing No. 5717 - Response to First Request for Production of Documents; Filing No. 57-25 Privilege Log. As with the objections to the first set of interrogatories, the defendant’s
response and objections to the plaintiff’s first request for production of documents were
not made within thirty days as provided for in Fed. R. Civ. P. 34(b)(2)(A). Rule 34 does
not have an objection waiver provision like Rule 33(b)(4) pertaining to responses to
interrogatories.

Nevertheless, a failure to make a timely objection to a request for

production may result in waiver of otherwise valid objections. See Kansas-Nebraska
Natural Gas Co. v. Marathon Oil Co., 109 F.R.D. 12, 24 (D. Neb. 1983). “[W]aiver of
privilege is a serious sanction most suitable for cases of unjustified delay, inexcusable
conduct, and bad faith.” Cargill, Inc. v. Ron Burge Trucking, Inc., 284 F.R.D. 421,
426 (D. Minn. 2012) (quoting Ayers v. Cont’l Cas. Co., 240 F.R.D. 216, 223 (N.D.
W.Va. 2007)). “[W]ith respect to at least the attorney-client and work product privileges,
a court may but need not consider a privilege waived when a party fails to timely raise
the objection.” Carlson v. Freightliner L.C.C., 226 F.R.D. 343, 363 (D. Neb. 2004).
Some courts are “particularly reluctant to find waiver of privilege objections unless truly

13

warranted because of the important policies served by the attorney-client privilege and
work-product doctrine.” Mills v. Iowa, 285 F.R.D. 411, 413 (S.D. Iowa 2012).
Due to the duration of the parties’ professional relationship and the nature of the
underlying lawsuits spanning several years, the amount of documents responsive to the
plaintiff’s requests were voluminous. The parties agreed in a joint motion they had been
“working diligently” to gather documents, but due to the high volume of responsive
documents, the parties agreed additional time was required to complete written
discovery. See Filing No. 33 - Joint Motion ¶¶ 4, 8. The defendant has produced over
30,000 pages of digital documents. See Filing No. 59-2 - Affidavit ¶ 21. Moreover, for a
period of time the defendant was unable to access several email accounts containing
responsive documents due to his claims of “hacking,” about which he kept the plaintiff
apprised. In consideration of the above, the court concludes waiver of the defendant’s
attorney-client and work-product privilege objections to the plaintiff’s first request for
production is not warranted for the defendant’s failure to timely respond.

b.

Adequacy of the Privilege Log

The plaintiff argues the defendant’s amended privilege log in response to the
plaintiff’s first request for production of documents does not comply with the court’s
initial progression order and therefore he has waived all objections. See Filing No. 56 Brief p. 8. The court’s order provides:
If any document is withheld from production or disclosure on
the grounds of privilege or work product, the producing party
shall disclose the following information about each such
document withheld: a description of the document withheld
with as much specificity as is practicable without disclosing
its contents, including (a) the general nature of the
document; (b) the identity and position of its author; (c) the
date it was written; (d) the identity and position of its
addressee; (e) the identities and positions of all persons who
were given or have received copies of it and the dates
copies were received by them; (f) the document’s present
location and the identity and position of its custodian; and (g)
the specific reason or reasons why it has been withheld from
production or disclosure.
See Filing No. 13 - Order p. 2. The defendant’s amended privilege log contains the
following categories:

Bates Start, Bates End, Date, From, Recipients, CC,
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Title/Document Description, Reason for Withholding, and Custodian. See Filing No. 5732 - Amended Privilege Log. The defendant’s amended privilege log notes whether
named recipients or senders are attorneys. Id. For example, one entry in the amended
privilege log describes an “[e]mail chain re: motion practice in Florida Probate
proceedings.” Id. at 6. The email chain, dated October 20, 2008, was “from” Edward
Kountze and the recipient was Richard D. Cimino - Attorney. Id. The plaintiff asserts
such entry is inadequate because it fails to provide the general nature of the document
and does not disclose the author of the email or list any other parties in the email chain.
See Filing No. 56 - Brief p. 8. The court finds the logical meaning of the term “from” is
that such person is the author, in compliance with the initial progression order. Further,
the defendant provided other recipients of “email chains” in the “CC” column where
applicable. The defendant explains the privilege log as follows:
Where an email chain is listed in the privilege log, only the
most recent communication (i.e. the “top” of the email chain)
is being designated as privileged. The privilege log provides
every individual who received the “top” of the email chain.
The “bottom” of the email chain is either separately
privileged and listed in a separate entry in the privilege log,
or is responsive and was produced to Plaintiff.
See Filing No. 58 - Response p. 17. The court concludes the defendant’s amended
privilege log is sufficiently detailed and describes each communication with as much
specificity as possible without disclosing its contents in compliance with the initial
progression order. Therefore the defendant did not waive its claims of attorney-client
privilege by failing to produce an adequate privilege log.

c.

Privileged Communications at Issue

The plaintiff further argues the documents in the defendant’s amended privilege
log relate to the defendant’s claim the plaintiff breached its duty to the defendant and
therefore are not protected by the attorney-client privilege. See Filing No. 56 - Brief p.
9. For example, Request No. 2 seeks:
All e-mails, documents or written communication between
Defendant and . . . any other attorneys working on the
Heirloom litigation including, but not limited to, Robert Zuber,
David Domina’s law firm, Adrian Thomas law firm, Karla
Gottschalk, Richard Register, Kathryn Hemenway and
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including negotiations regarding the “global” settlement
thereof signed on February 22, 2013.
See Filing No. 57-15 - First Request for Production of Documents p. 2. As addressed
above, the defendant’s allegations in his counterclaim and the Rule 26(f) Report clearly
place communications between him and the plaintiff at issue, and therefore the
defendant has waived any claims of attorney-client privilege to those communications.
However, the defendant did not place all communications with all other attorneys at
issue and did not waive his claim of attorney-client privilege to those communications.
The motion to compel further responses to the first request for production of documents
is therefore denied.

3.

Second Set of Interrogatories
The plaintiff argues the defendant’s answers to Interrogatory Nos. 14, 15, 19, and

20 were inadequate and unresponsive.

See Filing No. 56 - Brief p. 9-10.

These

interrogatories relate to the defendant’s responses to the plaintiff’s first request for
admissions wherein he repeatedly responded he was unable to verify whether certain
exhibits contained true copies of emails sent to or from his email accounts because his
email accounts “were victimized by one or more illegal hackers” and “have been
compromised and closed.”

See Filing No. 57-13 - Response to First Request for

Admissions p. 3-6, 8, 10, 12-19.

Interrogatory Nos. 14, 15, 19, and 20 ask the

defendant when his emails were compromised, which email accounts were
compromised, the identity of persons with access to his computer and email accounts,
and address and locations where his computers were located at the time of the alleged
hacking and six months before that date.

See Filing No. 57-18 - Second Set of

Interrogatories p. 1-2.
In the defendant’s supplemental answers to the second set of interrogatories, he
identifies four Gmail email accounts and one Yahoo email account that were
“compromised at different times between 2004 and 2014.” See Filing No. 57-31 - Supp.
Answers to Second Set of Interrogatories p. 3. The defendant further answered he
regained access to these email accounts in March 2015 “after consulting with
employees of Google and Yahoo.” Id. at 5. The defendant provided supplemental
responses to the plaintiff’s first request for admissions on June 2, 2015. See Filing No.
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57-26 - Supplemental Response to Request for Admissions p. 22. In the defendant’s
supplemental responses to the plaintiff’s first request for admissions, he no longer
asserted his email had been hacked nor asserted he was “unable” to verify the
genuineness of emails sent to or from his accounts. Id. at 3-20. Rather, the defendant
admitted requested exhibits were true copies of emails to or from him. Id. at 5-13.
Where the defendant did not admit a document was a true and correct copy, he
provided explanations unrelated to the hacking in his second supplemental answers to
Interrogatory No. 1. See Filing No. 57-29 - Second Supp. Answers to First Set of
Interrogatories p. 3-6. Because the defendant has admitted the requested emails were
true and correct copies or provided explanations unrelated to the email hacking, the
plaintiff’s motion to compel answers to the second set of interrogatories is denied as
moot.

4.

Sanctions
The plaintiff’s motion also seeks an imposition of sanctions. See Filing No. 54 -

Motion p. 1. The court may order sanctions against a party if that party, “after being
properly served with interrogatories under Rule 33 or a request for inspection under
Rule 34, fails to serve its answers, objections, or written response.” Fed. R. Civ. P.
37(d)(1)(A). Sanctions may include any reasonable costs or attorney’s fees incurred in
having to bring a motion to compel. Fed. R. Civ. P. 37(d)(3). Sanctions may also
include prohibiting the party from supporting designated defenses.

Fed. R. Civ. P.

37(b)(2)(A)(ii). With regard to motions to compel discovery responses, under Federal
Rule of Civil Procedure 37(a)(4)(C), “If the motion is granted in part and denied in part,
the court . . . may, after affording an opportunity to be heard, apportion the reasonable
expenses incurred in relation to the motion among the parties and persons in a just
manner.” The Advisory Committee Notes to the 1970 Amendments to Rule 37 indicate
that, on many occasions, “the dispute over discovery between the parties is genuine,
though ultimately resolved one way or the other by the court. In such cases, the losing
party is substantially justified in carrying the matter to court.”

See Fed. R. Civ. P.

37(a)(4) advisory committee notes (1970). “[T]he rules should deter the abuse implicit
in carrying or forcing a discovery dispute to court when no genuine dispute exists.” Id.

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“A district court has wide latitude in imposing sanctions for failure to comply with
discovery[.]” Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994).
Although based on the defendant’s conduct, the plaintiff filed a motion to compel,
the court finds the defendant's initial responses to discovery were, in part, substantially
justified. The court granted the plaintiff’s motion to compel only in part and found the
defendant’s objections and responses to certain discovery to be sufficient. Under the
circumstances, the court finds the imposition of sanctions are not warranted and will not
assess sanctions against either party with regard to the plaintiff’s motion to compel.
Upon consideration,

IT IS ORDERED:
The plaintiff’s Motion to Compel Disclosures, Answers to Interrogatories and
Response to Request for Production of Documents (Filing No. 54) is granted in part and
denied in part as set forth in this Order.
ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.
Dated this 18th day of November, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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