Cohen et al v. Hansen et al

Filing 63

ORDER Granting 50 Motion to Compel Initial Disclosures and Compel Production of Documents. Defendants shall produce initial disclosures no later than 4/26/13. A discovery and dispute resolution conference is set for 5/7/13 at 09:00 AM in LV Cou rtroom 3B before Magistrate Judge Peggy A. Leen. Parties shall file a joint status report no later than 5/2/13. The deadline for filing motion to amend the pleadings is extended until 6/28/13. Signed by Magistrate Judge Peggy A. Leen on 4/17/13. (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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Plaintiffs,
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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
(Mot Compel - Dkt. #50)

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The court held a hearing on Plaintiffs’ Motion to Compel Initial Disclosures and Document

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Production from Defendants Ross B. Hansen and Northwest Territorial Mint, LLC (Dkt. #50) on April

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16, 2013. The court has considered the Motion, Defendants’ Response (Dkt. #58), Plaintiffs’ Reply

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(Dkt. #61), and the arguments of counsel at the hearing. Robert Mitchell appeared on behalf of the

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Plaintiffs. John Aldrich appeared in person and Dean von Kallenbach appeared telephonically on

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behalf of the Defendants.

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Plaintiffs seek an order compelling the Defendants to serve initial disclosures. On January 18,

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2013, the court held a scheduling conference and directed counsel to make their Rule 26(a)(1)

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disclosures within fourteen days of the hearing. Plaintiffs served Defendants with their initial

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disclosures January 28, 2013. However, as of the date of the hearing, Defendants had not yet served

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theirs. Additionally, Plaintiffs seek an order compelling Defendants to respond to document production

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requests. On February 15, 2013, Plaintiffs served Defendants with Plaintiffs’ first request for

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production of documents relevant to Plaintiffs’ claims and Hansen’s pending motion to dismiss for

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alleged lack of personal jurisdiction and improper venue. At the time the motion to compel was filed,

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Defendants had not yet served responses.

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Defendants filed a short opposition to the motion indicating the request for production requested

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a substantial number of documents. On March 1, 2013, the district judge granted Cohen’s motion to

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amend his complaint to add Steven Firebaugh, a Northwest employee, as a Defendant. Plaintiffs served

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Firebaugh with a request for production of documents similar to the one at issue in this motion on

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March 21, 2013. Defendants represent that Northwest has hundreds of employees, and that examining a

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company’s records including emails for responsive documents, reviewing them for privilege and

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scanning them took a significant amount of time and effort. By the time the opposition to this motion

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was filed, on April 12, 2013, Northwest completed this effort and emailed the Defendants’ responses to

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Plaintiffs’ counsel with a copy of the scanned documents and a privilege log. Counsel for Defendants

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represented that hard copies of the responses and a disk containing the documents would be delivered to

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Cohen’s counsel on Monday, April 15, 2013. Northwest indicates that it has now fully complied with

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Cohen’s request for production of documents and requests that the court deny the motion to compel.

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During oral argument, counsel for Plaintiffs indicated that he had just received the Defendants’

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responses and believed that the document production was incomplete. Plaintiffs requested five forms of

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relief from the court. First, he indicated that the documents he had been able to review referred to

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enclosures and faxes that were not produced with the documents. He inquired and was told that they

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were not available. He therefore requested that the court direct that Defendant Hansen provide a

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declaration that he had made a good-faith effort to search for all responsive documents and produced all

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responsive documents. Second, Firebaugh’s responses to the request for production of documents are

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due April 22, 2013. Counsel for Plaintiffs requested that Firebaugh be ordered to timely respond and

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produce these documents when due.

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Third, Request for Production No. 10 requested financial records relevant to Plaintiffs’ punitive

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damages claims. Hansen and Northwest responded by objecting. Plaintiffs ask that the court deem the

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Defendants’ untimely response a waiver of their right to object. Plaintiffs also request that the court

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find, on the merits, that the financial records are relevant to Plaintiffs’ punitive damages claims because

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there is no dispute the website at issue in this case was set up by the Defendants to discourage the

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Plaintiffs, and has not been taken down despite Plaintiffs’ demands. Fourth, Plaintiff requested that

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either the court conduct an in camera review of thirty documents withheld on the basis of privilege
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listed on Defendants’ privileged document log, or refer the matter to a special master for this purpose.

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Twenty-six of the thirty documents listed on Defendants’ privileged document log involve

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communications before the lawsuit was filed, and involve communications between employees and in-

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house counsel. Counsel for Plaintiffs is doubtful that these communications are genuinely privileged.

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Fifth, Plaintiffs requested that the court extend the April 30, 2013, deadline for filing amendments to

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the complaint until mid-June based on the delay in receiving any discovery responses from the

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Defendants.

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Counsel for Defendants responded that he had worked diligently on providing the responses to
the request for production of documents. The five requests for relief addressed by the Plaintiffs were

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addressed at the hearing for the first time. However, counsel for Defendants responded that he believed

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the document production was complete. If Plaintiffs have any specific concerns about gaps in the

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production, he is happy to confer with the client and respond to Plaintiffs concerns. He had no

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objection to providing a declaration from Mr. Hansen as requested. Counsel for Defendants had hoped

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to provide Defendant Firebaugh’s responses to the request for production on the date due. However,

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Mr. Firebaugh’s mother died last week and he had intended to request a two-week extension. With

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respect to the financial records, Defendants objected to providing them because they are only relevant to

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a punitive damages claim, and Plaintiffs have not come close to making a prima facie case that punitive

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damages are recoverable. Defense counsel has no objection to producing the documents listed on the

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privilege log to the court for in camera review. However, he represented that the documents were

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carefully reviewed and only a small number were determined to be privileged and withheld on this

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basis. Counsel for Defendants had no objection to the request to extend the deadline for filing motions

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to amend the complaint. Finally, counsel for Defendants agreed to serve opposing counsel with

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Defendants’ initial disclosures next week.

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It is undisputed that Defendants did not timely serve their initial disclosures or responses to

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Plaintiffs’ discovery requests. However, the responses have now been served, and the initial

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disclosures should be served by next week. Counsel for Plaintiff has not yet had an opportunity to fully

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review the documents that have been produced to determine whether the disclosures are complete.

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Counsel have also not met and conferred to discuss the adequacy of the privilege log or the propriety of
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the documents withheld. The court advised counsel that with respect to financial records relevant to

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punitive damages the court normally requires parties to serve responsive records after decision of

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dispositive motions if any punitive damages claim survives, but would consider other alternatives

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suggested by the parties. The court will therefore conduct a status and dispute resolution conference in

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approximately three weeks, after Defendant Firebaugh’s responses are due, to address any remaining

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issues and any further requests for relief. The court directed counsel for the parties to meet and confer

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with respect to the issues addressed in the motion and at the hearing, and to be fully prepared to address

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any remaining issues at the status and dispute resolution conference.

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IT IS ORDERED that:
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Plaintiffs’ Motion to Compel Initial Disclosures is GRANTED and Defendants shall
produce initial disclosures no later than Friday, April 26, 2013.

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2.

Plaintiffs’ Motion to Compel Production of Documents is GRANTED.

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3.

A discovery and dispute resolution conference is set for Tuesday, May 7, 2013, at 9:00

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a.m, in Courtroom 3B.
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The parties shall file a joint status report identifying any remaining disputes that require

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the court’s resolution no later than Thursday, May 2, 2013. The joint status report shall

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identify any remaining disputes with sufficient specificity to allow the court to resolve

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the dispute without further motion practice.

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5.

The deadline to file motions to amend the pleadings is extended until June 28, 2013.

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Dated this 17th day of April, 2013.

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______________________________________
Peggy A. Leen
United States Magistrate Judge

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