Cohen et al v. Hansen et al
Filing
144
ORDER that sanctions in the amount of $1,140.00 are awarded in favor of Plaintiffs and against Defendants. Signed by Magistrate Judge Peggy A. Leen on 12/13/13. (Copies have been distributed pursuant to the NEF - EDS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BRADLEY STEPHEN COHEN, et al.,
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Plaintiff,
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vs.
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ROSS B. HANSEN, et al.,
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Defendants. )
__________________________________________)
Case No. 2:12-cv-01401-JCM-PAL
ORDER
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The court held a hearing on December 3, 2013, to follow up on the status of Defendants’
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compliance with the court’s Order granting Plaintiffs’ Motion to Compel (Dkt. #103). Robert Mitchell
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appeared telephonically on behalf of the Plaintiffs. Dean von Kallenbach appeared telephonically on
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behalf of the Defendants, and Allen Lichtenstein and James DeVoy appeared personally on behalf of
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the Defendants.
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At a hearing conducted October 29, 2013, the court granted Plaintiffs’ motion to compel certain
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discovery responses which were overdue and had not been responded to until after the motion to
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compel was filed. The court indicated that a preclusion sanction would be ordered, and that the court
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would defer a decision on any additional sanctions until Defendants had supplemented their discovery
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responses as ordered so that the court could evaluate the adequacy of the supplemental responses in
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determining what, if any, additional sanctions were warranted.
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Plaintiffs filed a Supplemental Submission (Dkt. #129) requesting attorney’s fees in the amount
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of $4,265.00 for the time spent for an associate at the rate of $285/hr. and the time spent for the partner
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at $425/hr., and travel costs for counsel and the client in the amount of $1,540.60, for a total monetary
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sanction request of $5,805.60. Defendant filed a Supplemental Response to Plaintiffs’ Supplemental
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Submission (Dkt. #131) which argued that the Defendants made a good-faith effort to comply with the
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October 29, 2013 order, had supplemented their responses as ordered, and that no additional sanctions
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were warranted. During the hearing counsel for Plaintiffs withdrew a portion of the amount sought for
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travel costs as counsel appeared telephonically and saved these costs.
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Having reviewed and considered the initial moving and responsive papers, the supplemental
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moving and responsive papers, and the arguments of counsel at both hearings, the court is satisfied that
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Defendants’ made a good-faith effort to comply with the court’s order at the October 29, 2013 hearing.
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However, Defendants did not serve certain of the discovery responses at issue in the motion to compel
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until after the motion was filed, and did not timely file an opposition to the motion to compel. Under
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these circumstances, Rule 37(a)(5) mandates sanctions unless the motion was filed before attempting in
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good faith to obtain the disclosure or discovery without court action, the opposing party’s non-
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disclosure response or objection was substantially justified, or other circumstances make an award of
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expenses unjust. The court finds that Defendants’ opposition to Plaintiffs’ motion to compel
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Defendants to supplement Google Analytics reports on an ongoing basis was substantially justified.
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Although the court ruled against the Defendants, the matter was a discretionary decision, and one which
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requested supplementation not generally required by Rule 26. The court ruled in favor of the Plaintiffs
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in this matter to streamline discovery and trial in the interest of judicial economy.
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Among the issues resolved at the hearing on October 29, 2013, was Plaintiffs’ Responses to
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Defendants’ Second Set of Interrogatories Nos. 1 through 4. During individual Defendant Hansen’s
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deposition, he testified that he contacted a firm and a couple of investigators who allegedly conducted a
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financial investigation of the Plaintiffs. However, he could not recall the name of the firm or the
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identity of the investigators or any contact information. He also testified that a “security guard” referred
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him to the investigators and firm to conduct a financial investigation. Additionally, he testified that he
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contacted “two different brokers” who allegedly did not want to do business with the Plaintiffs and had
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negative things to say about Plaintiffs. Finally, he testified he spoke to tenants who had a negative
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impression about Plaintiffs. However, he could not recall the names or contact information for the
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firm, the investigators, the security guard, the brokers, or the tenants. He testified he believed he could
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find the information in his files. As a result, Defendants served interrogatories requesting the name and
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contact information for the individuals and entities he testified about at his deposition. Hansen
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answered these interrogatories indicating he could not recall the names and contact information of the
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firm, the investigators, the security guard, the brokers, or the tenants. The court indicated that Hansen
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would be required to verify these answers and precluded from offering evidence or testimony at a
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hearing, in support of a motion, or at trial that he communicated with or received information from
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these unknown, unidentified individuals and entities as he testified, but later answered interrogatories
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that he could not recall and did not have the information.
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The court will limit monetary sanctions to four hours of attorney time at the associate’s rate of
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$285/hr. for a total of $1,140 for a routine motion to compel compliance with overdue discovery. The
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court will also disallow the request for travel costs as the court has routinely allowed counsel for both
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sides to appear telephonically.
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IT IS ORDERED that:
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1.
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Sanctions in the amount of $1,140 are awarded in favor of Plaintiffs against Defendants
for the necessity of filing the motion to compel.
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2.
Defendants shall be precluded from calling any witnesses, or offering any evidence on a
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motion, at a hearing, or at a trial that Mr. Hansen or any other officer, director or
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employee or agent of Hansen :
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a.
contacted a firm or investigators who allegedly conducted a financial
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investigation of the Plaintiffs as Mr. Hansen testified under oath during his
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deposition on pp. 78-83;
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b.
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communicated with a “security guard” who Hansen testified referred him to the
investigators;
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c.
communicated with two different brokers Hansen testified at his deposition that
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he spoke with who did not want to do business with Plaintiffs and had negative
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things to say about Plaintiffs as referred to on pp. 118-122 of Hansen’s
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deposition;
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d.
communicated with tenants who allegedly spoke with Hansen regarding the
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Plaintiffs as Hansen testified about under oath during his deposition on pp. 169-
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171.
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Dated this 13th day of December, 2013.
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______________________________________
Peggy A. Leen
United States Magistrate Judge
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