Stoller v. Funk et al

Filing 109

ORDER granting in part 106 Plaintiff's Motion to Compel Discovery of Defendants' Communications with Express Services, Inc.. Signed by Honorable Robin J. Cauthron on 10/1/13. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM H. STOLLER, an individual
and trustee of the William H. Stoller
Trust, for himself and derivatively on
behalf of Express Services, Inc., a
nominal defendant,

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Plaintiff,
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vs.
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ROBERT A. FUNK, an individual and
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trustee of the Robert A. Funk Trust,
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the ROBERT A. FUNK TRUST,
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ROBERT E. FELLINGER, and
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JERI CRAIG, individuals, and EXPRESS )
SERVICES, INC., a Colorado corporation, )
nominal defendant,
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Defendants.
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No. CIV-11-294-C

MEMORANDUM OPINION AND ORDER
Plaintiff has filed a Motion to Compel, seeking disclosure of communications between
ESI and Defendants Fellinger, Funk, and Craig. According to Plaintiff, these Defendants
have refused to disclose communications, relying on the joint defense/common interest
theory discussed herein. As set forth in the Court’s Order resolving Defendant Fellinger’s
Motion to Compel in Case No. CIV-11-1144, Defendants have failed to come forward with
factual evidence on which to base their claim of joint or common defense. While they have
provided some legal argument on the topic, they have failed to apply that law to the facts in
a manner from which the Court can find the doctrine applicable. Thus, to the extent
Defendants are refusing to answer deposition questions or produce discovery on the basis of

the joint defense/common interest doctrine, that objection is overruled.

However,

Defendants and ESI point out that there are other problems with Plaintiff’s discovery, such
as its breadth (“all communications”) and the fact that certain of the documents may be
consistent with the Court’s rulings herein, subject to attorney-client privilege and/or workproduct protection. Additionally, the fact that Plaintiff’s motion* seeks “all communications”
without any temporal or functional limitation makes the motion overbroad.
For the reasons set forth herein, Plaintiff’s Motion to Compel Discovery of
Defendants’ Communications with Express Services, Inc. (Dkt. No. 106) is GRANTED in
part, consistent with the rulings herein.
IT IS SO ORDERED this 1st day of October, 2013.

*

It may be that the actual discovery requests are more limited. However, those
requests were not provided. Certainly, the language of Plaintiff’s motion is overly broad.
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