Petersen v. Bitters et al

Filing 138

ORDER - Defendant Henry's statements at the November 6, 2017 conference shall be deemed as amended responses to Plaintiff's discovery requests. On or before December 4, 2017, Defendant Henry shall produce: a. a complete response to Plaintif f's Request for Production No. 6 ("W-2 forms from 2007 to the present"); b. the statements and documents he was able to obtain from his bank, including but not limited to First National Bank of Omaha, and Wells Fargo Bank; c. a complet e response to Plaintiff's Request For Production No. 24 (any utility or financial account statement showing your current business address as well as your business address as of February 8, 2008), including retrieving documents from his accountan t as may be necessary; and d. a complete response to Plaintiff's Request For Production No. 31 ("the phone number, contact information, address, and name" of Defendant Henry's wife, son, brother, and any other witness). Plaintiff may file a motion to compel regarding Plaintiff's Request For Production No. 9. Defendant Henry shall keep the Court and parties promptly apprised of his address and any address changes for the duration of this litigation. The Clerk's office shall mail a copy of this order to pro se defendant Henry at the address of record. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ESTATE OF JOYCE ROSAMOND
PETERSEN, deceased;
8:16CV183
Plaintiff,
ORDER

vs.
WILLIAM E. BITTERS, ROBERT W.
BOLANDJR., JOHN L. HENRY, and
UNITED FINANCIAL SERVICES,
Defendants.

Plaintiff served requests for admission, requests for production, and
interrogatories on Defendant Henry. Plaintiff was not satisfied with
Defendant Henry’s responses and after conferring with Henry, requested
assistance from the court. Henry does not have a telephone, an email
address, or a stable home address. As such, the court set a hearing for
November 6, 2017 at the Omaha courthouse to discuss the discovery
disputes. At that hearing, the Court heard the parties’ respective arguments
as to each discovery contention. Defendant Henry appeared in-person:
Plaintiff’s counsel appeared by telephone using the court’s conferencing
information.
The November 6, 2017 hearing was recorded and as to the disputed
and outstanding requests for admissions and interrogatories, Defendant
Henry answered the discovery under oath, thereby resolving the disputes.
As to requests for production, the Court finds:
Plaintiff’s Request For Production No. 6 asked Defendant Henry to

“Produce your W-2 forms from 2007 to the present.” Defendant Henry
objected on the grounds of an unspecified privilege. The information is
relevant to prove Defendant Bitters failed to conduct proper due diligence in
investigating Defendant Henry’s ability to repay the $150,000 Promissory
Note to Plaintiff and was thereby negligent, and that Defendant Henry could
have repaid the loan but failed to do so. Despite a fire that destroyed many
documents, Henry’s accountant likely has copies of the requested
information. Defendant Henry’s burden of production is not disproportionate
to the need. Defendant Henry will be required to fully respond to Request
No. 6.
Plaintiff’s Request For Production No. 9 asked Defendant Henry to
“Produce financial statements showing profits and/or revenue for Metro
Audio Dynamics from February 1, 2007 to the present.” Defendant Henry
contended he has no connection to Metro Audio Dynamics, a closely held
corporation owned by Henry’s son. The Court examined a Domestic
Corporation Occupation Tax Report filed by Metro Audio Dynamics with the
State of Nebraska, Secretary of State, for the Tax Reporting Years 20142015 which listed Defendant Henry as Treasurer and officer of Metro Audio
Dynamics. Henry claims under oath that he never knew he was listed as
Treasurer and he has no connection with Metro Audio Dynamics and no
access to its records. The role of Defendant Henry in Metro Audio Dynamics
is a contested issue that the Court will not resolve absent a formal motion to
compel which address both the need and burden of production.
Defendant Henry stated that he had just obtained bank statements
from his bank, First National Bank of Omaha, and that they were in his

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possession. He is willing to provide copies of those statements to Plaintiff’s
counsel and will be ordered to do so.
Plaintiff’s Request For Production No. 31 asked Defendant Henry to
“Produce the phone number, contact information, address, and name of any
witness who has – or might have – information relevant to the allegations in
Plaintiff’s First Amended Complaint.”1 Defendant Henry did not disclose any
names. Defendant Henry’s wife was allegedly the office manager of his
business when Defendant Henry signed the Promissory Note to Plaintiff.
Defendant Henry and his son may have inter-related business interests in
Metro Audio Dynamics, and the son may have moved relevant
documentation (documentation pertaining to Defendant Henry’s business
and dealings prior to 2011) to an uncovered outdoor location where it was
burned. And Defendant Henry’s brother may assisted in moving these
documents. Plaintiff has demonstrated that Defendant’s wife, son, and
brother may possess information relevant to this case. Defendant Henry will
be ordered to provide their contact information in response to Request No.
31.
Plaintiff’s Request For Production No. 24 asked Defendant Henry to
“Produce any utility or financial account statement showing your current
business address as well as your business address as of February 8, 2008.”
Plaintiff seeks information about the business address at which Defendant
Henry received Plaintiff’s check and signed a Promissory Note to Plaintiff in
2008. Defendant Henry utilized the services of an accountant, identified
during the hearing, who may have financial account statements for

1

This request is actually an interrogatory. No documents are requested.

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Defendant Henry’s business. While Defendant will be ordered to respond to
this request, the court is convinced that the best source for obtaining such
information is by subpoena served on Defendant Henry’s accountant; that
even after Defendant Henry responds to this request, Plaintiff will suspect
the response is untrue or incomplete.
In accordance with these findings and the Court’s statements during
the conference call held on November 6, 2017,

IT IS ORDERED:
1)

Defendant Henry’s statements at the November 6, 2017 conference
shall be deemed as amended responses to Plaintiff’s discovery
requests.

2)

On or before December 4, 2017, Defendant Henry shall produce:
a. a complete response to Plaintiff’s Request for Production No. 6

(“W-2 forms from 2007 to the present”);
b. the statements and documents he was able to obtain from his

bank, including but not limited to First National Bank of Omaha,
and Wells Fargo Bank;
c. a complete response to Plaintiff’s Request For Production No. 24

(any utility or financial account statement showing your current
business address as well as your business address as of
February 8, 2008), including retrieving documents from his
accountant as may be necessary; and
d. a complete response to Plaintiff’s Request For Production No. 31

(“the phone number, contact information, address, and name” of
Defendant Henry’s wife, son, brother, and any other witness).
3)

Plaintiff may file a motion to compel regarding Plaintiff’s Request For
Production No. 9.

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4)

Defendant Henry shall keep the Court and parties promptly apprised
of his address and any address changes for the duration of this
litigation.

5)

The Clerk’s office shall mail a copy of this order to pro se defendant
Henry at the address of record.

Dated this 16th day of November, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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