Wagner et al v. Circle W Mastiffs et al
Filing
199
ORDER denying ( 183 in case 2:08-cv-00431-GCS-TPK & (168) in case 2:09-cv-00172-GCS-TPK) Motion to Compel. Signed by Magistrate Judge Terence P Kemp on 8/19/2013. Associated Cases: 2:08-cv-00431-GCS-TPK, 2:09-cv-00172-GCS-TPK (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Fredericka Wagner, et al.,
Plaintiffs,
v.
Case No. 2:08-cv-431
Circle W Mastiffs, et al.,
JUDGE SMITH
Magistrate Judge Kemp
Defendants.
Craig W. Williamson,
Plaintiff,
v.
Case No. 2:09-cv-0172
American Mastiff Breeders
Council, et al.,
JUDGE SMITH
Magistrate Judge Kemp
Defendants.
ORDER
This matter is before the Court on a renewed motion to
compel filed by Diane St. Martin, Cameran Pridmore, and Sandy
Taylor.
The motion seeks an order compelling Craig and Jennifer
Williamson and Circle W Mastiffs (the Williamsons) and Fredericka
Wagner and Flying W Farms, Inc. (Ms. Wagner) to produce the
settlement agreement they entered into resolving their claims in
this case.
Only Ms. Wagner and Flying W Farms have filed a
response opposing this motion and the motion now has been fully
briefed.
For the following reasons, the renewed motion to compel
(#183) will be denied.
I.
By order dated May 14, 2013, approximately three weeks
before the moving parties filed their current motion, the Court
denied their first motion to compel production of the settlement
agreement.
In that order, the Court noted that settlement
agreements are subject to discovery upon the general showing of
relevance required by Fed.R.Civ.P. 26.
However, the Court
concluded that the factual record before it was too incomplete to
allow it to make a finding of relevance supporting production of
the agreement.
The moving parties had attempted to demonstrate
the relevance of the settlement agreement as relating to the
issues of Ms. Wagner’s bias and credibility and the issue of
damages generally but set-off in particular.
In denying the
motion to compel, the Court noted that there was no evidence that
Ms. Wagner’s credibility as a trial witness was at issue.
Significant to the Court in reaching this conclusion was Ms.
Wagner’s representation that she was in poor health and would not
be able to participate in any trial of this matter and the moving
parties’ failure to provide any information to the contrary.
The
Court also concluded that, on the current record, there was no
evidence from which it could determine that there was such an
overlap of the Williamson’s claims against the moving parties and
Ms. Wagner that the settlement agreement was relevant to the
issue of damages, specifically the issue of set-off.
In response to the Court’s order, the moving parties have
attempted to refine their arguments on both of these issues and
have come forward with purported evidentiary support for each
one.
With respect to the issue of Ms. Wagner’s bias and
credibility, they now contend that Ms. Wagner will be available
to testify at trial and that, if the Williamsons do not proceed
to depose her as a representative of the AMBC as previously
intended, they will need to depose her in that capacity
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themselves.
In support of this position, they have submitted
affidavits from their counsel, Mr. Hirth, and Diane St. Martin.
The gist of these affidavits is that both Mr. Hirth and Ms. St.
Martin spoke separately with Ms. Wagner in January, 2013, and
neither detected any significant disability as a result of her
strokes.
They also have submitted a copy of a deposition notice
prepared by the Williamsons indicating an intention to depose the
AMBC in December, 2012.
With respect to the issue of the relevance of the settlement
agreement to damages, the moving parties have submitted copies of
Mr. Williamson’s interrogatory responses. Relying on these
responses, they contend that Mr. Williamson considers all of the
parties liable for his remaining state law claims. That is, they
argue that while he may make some specific allegations directed
to Ms. Pridmore’s or Ms. Wagner’s conduct, he makes no
distinction regarding the defendants’ potential liability as a
whole, making double recovery a possibility.
In response, Ms. Wagner contends that the current motion is
nothing more than a request for the Court’s reconsideration of
its previous order without the support of new evidence or
substantive argument. Beyond this, Ms. Wagner essentially
reiterates the arguments set forth in her response to the first
motion. First, she contends that she is no longer a party to
this case and cannot be compelled to provide a copy of the
settlement agreement. Further, she asserts that she remains
unable to travel or to have her deposition taken. In support of
her position this time, she has submitted her own affidavit in
which she states that her condition has declined since speaking
with Mr. Hirth and Ms. St. Martin in January, 2013, and that she
is, in short, simply unable to travel or give testimony in her
current physical and mental state. Finally, she argues that the
settlement agreement has no relevance to the moving parties’
potential liability for damages.
In reply, the moving parties argue that Ms. Wagner’s current
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inability to travel is not necessarily a permanent situation.
Further, they argue that the Court must find a disability at the
time of trial in order for deposition testimony to be used and no
trial has been scheduled in this case. Additionally, they
suggest that Ms. Wagner could be deposed by telephone for
purposes of trial. With respect to the issue of damages, the
moving parties argue that, in addition to the potential for setoff relating to the Williamson’s state court claims, a right to
set-off also may exist if the Williamson’s are awarded attorneys’
fees under the Lanham Act.
II.
As the Court explained in its previous order, the general
principles involving the proper scope of discovery under
Fed.R.Civ.P. 26 are well known.
The Federal Rules of Civil
Procedure authorize extremely broad discovery.
United States v.
Leggett & Platt, Inc., 542 F.2d 655 (6th Cir. 1976), cert. denied
430 U.S. 945 (1977).
Therefore, Rule 26 is to be liberally
construed in favor of allowing discovery.
Indemnity, 88 F.R.D. 191 (S.D. Ohio 1980).
Dunn v. Midwestern
Any
matter that is relevant, in the sense that it reasonably may
lead to the discovery of admissible evidence, and is not
privileged, can be discovered.
The concept of relevance
during discovery is necessarily broader than at trial, Mellon
v. Cooper-Jarrett, Inc., 424 F.2d 499 (6th Cir. 1970), and
"[a] court is not permitted to preclude the discovery of
arguably relevant information solely because if the
information were introduced at trial, it would be
'speculative' at best."
Coleman v. American Red Cross, 23
F.3d 1091, 1097 (6th Cir. 1994).
Information subject to disclosure during discovery need
not relate directly to the merits of the claims or defenses
of the parties.
Rather, it may also relate to any of the
myriad of fact-oriented issues that arise in connection with
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the litigation.
340 (1978).
Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
On the other hand, the Court has the duty to
deny discovery directed to matters not legitimately within
the scope of Rule 26, and to use its broad discretionary
power to protect a party or person from harassment or
oppression that may result even from a facially appropriate
discovery request.
(1979).
See Herbert v. Lando, 44l U.S. 153
Additionally, the Court has discretion to limit or even
preclude discovery which meets the general standard of relevance
found in Rule 26(b)(1) if the discovery is unreasonably
duplicative, or the burden of providing discovery outweighs the
benefits, taking into account factors such as the importance of
the requested discovery to the central issues in the case, the
amount in controversy, and the parties’ resources.
Fed.R.Civ.P. 26(b)(2).
See
Finally, the Court notes that the scope
of permissible discovery which can be conducted without leave of
court has been narrowed somewhat by the December 1, 2000
amendments to the Federal Rules.
Rule 26(b) now permits
discovery to be had without leave of court if that discovery “is
relevant to the claim or defense of any party ....”
Upon a
showing of good cause, however, the Court may permit broader
discovery of matters “relevant to the subject matter involved in
the action.”
Id.
There is no question that “‘[t]he proponent of a motion to
compel discovery bears the initial burden of proving that the
information sought is relevant.’” Guinn v. Mount Carmel Health
Systems, 2010 WL 2927254, *5 (S.D. Ohio July 23, 2010) quoting
Clumm v. Manes, Case No. 2:08–cv–567 (S.D.Ohio May 27, 2010)
(King, J.); see also Berryman v. Supervalu Holdings, Inc., 2008
WL 4934007 (S.D. Ohio Nov.18, 2008) (“At least when the relevance
of a discovery request has been challenged the burden is on the
requester to show the relevance of the requested information.”)
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(internal citation omitted).
When the information sought appears
to be relevant, the party resisting production has the burden of
establishing that the information either is not relevant or is so
marginally relevant that the presumption of broad disclosure is
outweighed by the potential for undue burden or harm.
See
Vickers v. General Motors Corp., 2008 WL 4600997, *2 (W.D. Tenn.
September 29, 2008).
A.
Relevance as to Bias and Credibility
As the Court previously explained, settlement agreements
frequently are found to be discoverable in order to allow the
requesting party to explore issues of bias and credibility with
respect to witnesses.
See, e.g., Cadlerock Joint Venture, L.P.
v. Royal Indemnity Company, 2012 WL 443316 (N.D. Ohio Feb. 10,
2012) (settlement agreement relevant to testifying witnesses’
credibility and bias); Goodyear Tire and Rubber Co. v. Dow
Deutschland GMBJ & Co. OHG, 2009 WL 3614959 (N.D. Ohio Oct. 28,
2009); Tanner v. Johnston, 2013 WL 121158, at *5-6;
Transportation Alliance Bank, Inc. v. Arrow Trucking Co., 2011 WL
4964034, *2 (N.D. Okla. October 19, 2011)(settlement agreement
relevant for purposes of exploring bias and credibility of
important fact witness); see also Thomas & Marker, 2008 WL
3200642, at *2 (requesting party insisted employees of settling
party would be called to testify at trial and settle agreement
found relevant on issue of their credibility).
Settlement
agreements also have been found subject to discovery when there
is the potential for a witness to testify in person at trial.
See, e.g., Meharg v. I-Flow Corporation, 2009 WL 3032327, *6
(S.D. Ind. Sept. 18, 2009).
On the other hand, courts have found
a confidential settlement agreement not to be relevant to the
issue of bias or credibility where there is a stated intention
not to call particular witnesses at trial or no indication that
particular witnesses will testify.
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See, e.g., In re Flat Glass,
2013 WL 1703864, at *1; Pamlab, L.L.C. v. Rite Aid Corporation,
2006 WL 186199 (E.D. La. Feb. 7, 2006).
In denying the original motion to compel, the Court,
acknowledging the significance of Ms. Wagner’s role in these
consolidated cases, noted that the moving parties were free to
renew their motion should circumstances change and should it
become apparent that Ms. Wagner was going to provide live
testimony at some future date such that her bias and credibility
may be at issue.
The moving parties, however, have failed to
demonstrate any change in circumstances in the three weeks
between the Court’s ruling and the filing of their renewed
motion.
First, the affidavits submitted by Mr. Hirth and Ms. St.
Martin suggesting that Ms. Wagner is not in ill health as she
contends can only be characterized as something far less than
credible medical evidence.
Certainly, the moving parties could
have had no serious expectation that the affidavits were entitled
to be afforded any weight by the Court on the issue of Ms.
Wagner’s health conditions.
Further, Ms. Wagner’s appearance at
deposition or trial remains nothing more than speculation as of
the renewed
motion’s filing.
The copy of the deposition notice
indicating that the Williamsons’ intended, at least in December,
2012, to depose the AMBC does not persuade the Court otherwise.
Moreover, the Court also finds it significant that the moving
parties have not suggested, let alone demonstrated, that they
will be prejudiced if they are unable to obtain the settlement
agreement until once Ms. Wagner’s live testimony is scheduled,
assuming it ever is.
Consequently, the motion to compel will not
be granted on this ground.
B.
Relevance as to Damages
The moving parties also continue to argue that the
settlement agreement is relevant to the issue of damages or, more
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specifically, a set-off analysis.
In denying their original
motion, the Court noted that the moving parties had not set forth
facts about the potentially overlapping claims that would show,
or even make likely, that conduct engaged in by Ms. Wagner could
form the basis for any claim against them, or that Ms. Wagner’s
and their actions necessarily combined to produce a single
injury.
The interrogatory responses from Mr. Williamson that the
moving parties now have provided may be viewed as some evidence
that potentially overlapping claims exist here.
However,
assuming that the settlement agreement is relevant to the issue
of damages and particularly a set-off analysis, the moving
defendants have not demonstrated why disclosure of the settlement
agreement is required now.
Other courts in similar circumstances have delayed
disclosure of settlement agreements until after trial because
set-off is not an issue to be addressed until after the entry of
a verdict.
See, e.g., In re Flat Glass Antitrust Litigation,
2013 WL 1703864 (W.D. Pa. April 19, 2013); King County, Wash. v.
IKB Deutsche Industriebank AG, 2012 WL 3553775 (S.D.N.Y. August
17, 2012); Anderson v. Ford Motor Co., 2010 WL 4156256 (E.D. Pa.
October 20, 2010)(citing Dutton v. Todd Shipyards, 2009 U.S.
Dist. LEXIS 107936, at *2-3 where “[t]his court ruled that
disclosure of settlements should be deferred until after the
entry of the judgment when the court would entertain a
defendant’s set-off argument”); Polston v. Eli Lilly and Co.,
2010 WL 2926159, *2 (D.S.C. July 23, 2010); see also Bottaro v.
Hatton Assocs., 96 F.R.D. 158, 160 (E.D.N.Y. 1982)(“...
settlement would not be evidence relevant to any issue ... other
than the ministerial apportionment of damages, a mathematical
computation which the Court rather than the jury will perform.”).
As explained by the Court in In re Flat Glass, “[a]lthough the
extent of Defendant’s liability is certainly relevant to
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potential settlement, relevance to settlement negotiations is not
relevant to the subject matter of the action, as contemplated by
the applicable rules and standards.”
Id. at *1.
the reasoning of the above cases persuasive.
The Court finds
Further, as with
the issues of bias and credibility, the moving defendants have
not suggested nor demonstrated that they will be prejudiced if
they do not have access to the settlement agreement prior to any
requirement of a set-off calculation.
Consequently, the motion
to compel disclosure of the settlement agreement will not be
granted on this ground.
Nothing in this ruling, however, is
intended to foreclose the opportunity to seek disclosure of the
settlement agreement at the appropriate time as it relates to the
issue of set-off.
III.
For the foregoing reasons, the renewed motion to compel
(#183) is denied.
IV.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.3.
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/s/ Terence P. Kemp
United States Magistrate Judge
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