LIFETOUCH NATIONAL SCHOOL STUDIOS INC. v. ROLES
Filing
48
MEMORANDUM OPINION AND ORDER granting in part and denying in part 42 Motion to Compel. Signed by Judge Kim R. Gibson on 12/15/2016. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LIFETOUCH NATIONAL SCHOOL
STUDIOS, INC.,
Plaintiff,
v.
ELIZABETH ROLES,
Defendant.
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Case No. 3:15-cv-234
JUDGE KIM R. GIBSON
MEMORANDUM OPINION
In this breach-of-contract case, Defendant Elizabeth Roles (“Roles”) has moved to
compel discovery from Plaintiff Lifetouch National School Studios, Inc. (“Lifetouch”), under
Federal Rule of Civil Procedure 37. (ECF No. 42.) Roles also requests that Lifetouch be ordered
to pay the attorneys’ fees she incurred in connection with her Motion. (Id.) For the reasons
below, Roles’s Motion is GRANTED IN PART and DENIED IN PART.
I.
Factual & Procedural Background
A.
This Case
This case arises out of Roles’s employment with Lifetouch. Lifetouch is a photography
company for which Roles worked as a Territory Manager in and around Cambria County,
Pennsylvania, from July 21, 1998, until July 29, 2014. (ECF Nos. 1 ¶¶ 10-11, 25; 41 ¶¶ 10-11, 25.)
Lifetouch alleges that it fired Roles after an internal investigation revealed that she had been
engaging in conduct that violated her employment agreement. (ECF No. 1 ¶ 25.) Lifetouch
contends, among other things, that Roles had been performing work under Lifetouch’s name
but submitting the resulting photography-production jobs to a third-party production lab rather
than a Lifetouch production lab, and that Roles would then pocket the proceeds. (Id. ¶ 26-27.)
In addition to firing Roles, Lifetouch also initiated legal action against her. Lifetouch
filed a complaint against Roles in this Court at civil action number 3:14-cv-00182. That case is
stayed pending the disposition of a related criminal case, which is being prosecuted by the
Cambria County District Attorney’s Office. (See 3:14-cv-00182, ECF No. 22.) After that civil case
was stayed, Lifetouch filed this case against Roles because Lifetouch had allegedly learned that
Roles had committed new violations of her employment agreement.
(ECF No. 1 ¶ 30.)
Specifically, Lifetouch states in this case that Roles accepted a sales position with a Lifetouch
competitor, Strawbridge Studios, Inc. (“Strawbridge”), and that she solicited Lifetouch
employees and customers. (Id. ¶¶ 30-33, 35-45.) Lifetouch contends that these actions violate
the nonsolicitation and noncompete provisions of Roles’s employment agreement with
Lifetouch. (Id. ¶¶ 56-66.) Roles filed an Answer and Counterclaim, denying that she violated
the nonsolicitation and noncompete provisions of her employment agreement and bringing a
counterclaim against Lifetouch for abuse of process. (ECF No. 23.)
B.
Roles’s Motion for Leave to Amend Her Counterclaim
On September 28, 2016, Roles requested leave to amend her counterclaim. (ECF No. 36.)
At the heart of Roles’s request for leave to amend were two versions of an email chain disclosed
during discovery. The first version, Roles explained in her motion for leave, was produced by
the Northern Cambria School District. (Id. ¶ 12.) The underlying email was sent by Joseph
Kimmel, Superintendent of the Northern Cambria School District, to Nicole Williams, a
Lifetouch employee. (ECF No. 36-1.) Kimmel was responding to a request by Williams for
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information regarding the company that would be doing photography work for Northern
Cambria School District during the 2015 school year and the length of any contract with that
photography company. (Id.) In the first version of the email, Kimmel replies “Strawbridge[,]
No contract.” (Id.)
The second version of the email chain was produced by Strawbridge. (See ECF No. 36
¶ 10.) That version shows that Kimmel’s email was forwarded by another Lifetouch employee,
Joseph Segall, to the President of Strawbridge, Kenneth Strawbridge. (ECF No. 36-2.) However,
in the second version, Kimmel writes “Strawbridge[,] No contract. Beth Roles.” (Id.) Thus, the
name “Beth Roles” suddenly appears in what is purportedly the same email. In Roles’s request
for leave to amend, she explained that both Williams and Kimmel have attested under oath that
they did not include “Beth Roles” in the email. (ECF No. 36 ¶¶ 15-16.) Roles argued that the
conflicting email versions suggested that someone at Lifetouch had altered the email to interfere
with Roles’s employment relationship with Strawbridge, and that this revelation justified leave
to amend her counterclaim.
The Court granted as unopposed Roles’s motion for leave to amend. (ECF No. 39.)
Roles filed her Answer and Amended Counterclaim on October 31, 2016, adding claims of
tortious interference with contractual relations and defamation per se. 1 (See ECF No. 41.)
The proposed Answer and Amended Counterclaim which Roles attached to her request for leave to
amend (ECF No. 36-3) differs from her Answer and Counterclaim as filed (ECF No. 41); the as-filed
version added the defamation per se claim. Although it is doubtful that this difference would have
changed the Court’s ruling, Roles’s counsel should in the future inform the Court if he intends to file
something different than was represented to the Court.
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C.
Roles’s Motion to Compel
On November 10, 2016, Roles moved to compel discovery from Lifetouch pursuant to
Federal Rule of Civil Procedure 37. (ECF No. 42.) Roles also requests that this Court order
Lifetouch to pay the attorneys’ fees she incurred in connection with her Motion to Compel. (Id.)
The bases for Roles’s Motion to Compel are discovery requests related to the conflicting email
versions discussed above.
II.
Legal Standard
Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as “any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” A matter is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence; and . . . the fact is of consequence in
determining the action.”
See Fed. R. Evid. 401.
In determining whether discovery is
proportional to the needs of the case, courts must consider “the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.
26(b)(1). Furthermore, “[i]nformation within [the] scope of discovery need not be admissible in
evidence to be discoverable.” Id. But although the right to discovery under the Federal Rules is
broad, “this right is not unlimited and may be circumscribed.” Bayer AG v. Betachem, Inc.,
173 F.3d 188, 191 (3d Cir. 1999) (citation omitted).
Rule 37 provides the mechanism to compel discovery from a person or party who
refuses to provide discovery. The party moving to compel discovery under Rule 37 bears the
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initial burden of proving the relevance of the material requested. See Morrison v. Phila. Hous.
Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001) (citations omitted). If the movant meets this initial
burden, the burden then shifts to the party resisting discovery to establish that discovery of the
material requested is inappropriate. Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D.
Pa. 1996) (citation omitted). The party resisting discovery must explain with specificity why
discovery is inappropriate; the boilerplate litany that the discovery sought is overly broad,
burdensome, oppressive, vague, or irrelevant is insufficient. See Josephs v. Harris Corp., 677 F.2d
985, 991 (3d Cir. 1982)
If the party resisting discovery claims the right to do so on the basis of privilege, that
party has the burden of proving that a privilege applies. See Conoco, Inc. v. U.S. Dep’t of Justice,
687 F.2d 724, 730 (3d Cir. 1982). Relevant here are the attorney-client privilege and the attorney
work-product privilege. 2 The attorney-client privilege “protects from disclosure confidential
communications made between attorneys and clients for the purpose of obtaining or providing
legal assistance to the client.” In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014) (citation
omitted).
The purpose of the attorney-client privilege is to “encourage full and frank
communication between attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice. Upjohn Co. v. United States, 449
U.S. 383, 389 (1981).
Closely related to the attorney-client privilege is the work-product
There is a question regarding what law governs the contours of these privileges. See Fed. R. Evid. 501
(“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies
the rule of decision.”); see also Fed. R. Evid. 1101(c) (“The rules on privilege apply to all stages of a case or
proceeding.”). The Employment Agreement underlying this dispute contains a choice-of-law provision
which provides that the Agreement “shall be construed and governed by the laws of the State of
Minnesota.” (ECF No. 1-2 at 7.) It is unclear whether this provision applies to claims of privilege, but the
Court finds that it does not need to reach this issue at this time.
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doctrine, which “is designed to protect material prepared by an attorney acting for his client in
anticipation of litigation.” United States v. Rockwell Int’l, 897 F.2d 1255, 1265 (3d Cir. 1990)
(citation omitted).
III.
Analysis
Although Roles provides a detailed chronology of the events leading up to her Motion
to Compel, she is less clear on exactly what discovery she seeks, or on which discovery requests
her Motion is based. (See ECF No. 42 at 8 (“Defendant respectfully requests that Plaintiff be
compelled to produce the information and documents sought by Defendant, as set forth above
. . . .”), 9 (“Defendant respectfully requests that Plaintiff be compelled to provide full and
complete responses to Defendant’s discovery requests, as set forth above . . . .”).) Roles is more
perspicuous in her Reply: 3
Defendant requests that Plaintiff be ordered to produce (1) copies
of August 25, 2015 email in native format from all individuals
within Plaintiff’s organization to whom it was forwarded and/or
sent; (2) Mr. Segall for deposition at a mutually convenient time
and location; and (3) copies of any email authored by Charles
Lantz the production of which Plaintiff has objected based on the
attorney work product doctrine
(ECF No. 45 at 4.)
Thus, the first question is whether Roles has met the initial burden of showing that these
materials are relevant. See Morrison, 203 F.R.D. at 196 (citations omitted). The Court—with
qualifications—holds that Roles has met that burden.
However, Roles’s counsel filed this Reply without leave of Court, which is required under Section II.B.
of this Court’s Practices and Procedures. Going forward, the Court will not entertain filings by Roles’s
counsel that violate this Court’s rules.
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A.
Copies of the August 25, 2015 Email in Native Format From All Individuals
Within Lifetouch’s Organization to Whom It Was Forwarded And/Or Sent
Request number 3 of Roles’s Second Requests for the Production of Documents
requested “[c]opies, inclusive of all metadata, of all documents evidencing the circulation of the
email from Joseph Kimmel to Nichole [sic] Williams, dated August 25, 2015, within Plaintiff’s
computer network.” (ECF No. 42-3 at 4.) Based on Roles’s counterclaims, this information falls
within the scope of relevant material. Roles’s counterclaims are premised on the allegation that
Lifetouch intentionally altered the August 25, 2015 email. Documents illustrating how that
email was circulated within Lifetouch relate to whether Lifetouch did in fact alter the August
25, 2015 email, and—if so—how that alteration occurred. Thus, these documents are relevant
because they have “any tendency to make a fact more or less probable than it would be without
the evidence; and . . . the fact is of consequence in determining the action.” Fed. R. Evid. 501.
The next question is whether Lifetouch has established that discovery of documents
illustrating how the August 25, 2015 email was circulated within Lifetouch is inappropriate. See
Momah, 164 F.R.D. at 417 (citation omitted). In Plaintiff’s Answers and Responses, Lifetouch
objected to this request by stating that
Plaintiff has already produced a copy of the subject email and
does not otherwise have any documents or information that are
responsive to this request. Moreover, the circulation of said email
is protected under the Attorney-Client Privilege and/or the Work
Product Doctrine, as it was circulated amongst counsel. For
purpose of providing Defendant with additional information, the
email had been circulated amongst Charles Lantz, Jim West, and
counsel.
(ECF No. 45 at 4.) However, in Plaintiff’s Response to Defendant’s Motion to Compel (ECF No.
44), Lifetouch appears to have abandoned its privilege arguments; at no point does Lifetouch
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argue that discovery of these documents is inappropriate based on privilege. Instead, Lifetouch
appears to argue that it has already produced enough information regarding the emails.
Lifetouch states that Roles “already has a copy of the email from Segall to Strawbridge,” and
Lifetouch goes on to explain that it has produced PDF versions of the email and the native form
of the email as forwarded from Segall to Strawbridge. Further, Lifetouch argues that “a copy of
that email in native form is not only unreasonable, but not likely to lead to the discovery of
admissible information based on those emails that have already been produced.” 4 (ECF No. 44
at 3.)
These arguments are insufficient to avoid discovery. As an initial matter, the fact that
Roles already has a copy of the August 25, 2015 email has no bearing on whether Lifetouch
altered the email. The relevance of the documents Roles seeks is derived from their circulation
within Lifetouch; a complete picture of how the email was received, discussed, and ultimately
sent—or even discussed after it was sent—would be relevant to Roles’s claims. Thus, the fact
that Roles already has a copy of the email is irrelevant. And Lifetouch’s argument that it should
not have to produce these documents because it already produced a copy of the email from
Segall to Strawbridge is unpersuasive for the same reasons.
This leaves Lifetouch’s argument that production in native format is unreasonable. But
Lifetouch does not explain what about native production would be unreasonable. Furthermore,
Lifetouch specifically agreed “to produce . . . electronic documents in native format” in the
parties’ Rule 26(f) Report. (ECF No. 18 at 4.) Without additional explanation why native
This last response is puzzling. If Lifetouch has already produced the email in native format, then there
should be no dispute as to its production. And it certainly seems contradictory to argue that native
production is “unreasonable” if Lifetouch has already produced the email in native format.
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production of the requested documents would be unreasonable, Lifetouch cannot now avoid
discovery of native documents. Thus, Lifetouch will produce all copies—in native format—of
the August 25, 2015 email between Mr. Kimmel and Ms. Williams circulated within Lifetouch or
any of its agents. 5
B.
Producing Mr. Segall for Deposition at a Mutually Convenient Time and
Location
In Roles’s Reply, she states that the second type of relief she seeks is a court order
compelling Lifetouch to produce John Segall for a deposition at a mutually convenient time and
location. (ECF No. 45 at 4.) The problem with this request is that Roles has not identified a
specific discovery request or deposition notice regarding Segall to which Lifetouch has refused
to respond. In Roles’s initial Motion she states that Lifetouch has “steadfastly refused to
provide any explanation or documents setting forth Mr. Segall’s relationship with Lifetouch
(see objection to Request for Production No. 6).” (ECF No. 42 at 4-5). Roles further explains
that Lifetouch “has refused to produce [Segall] for deposition, [and that Lifetouch has stated]
that he ‘has no information even remotely relevant to the facts of this matter.’” (Id. at 5.)
Request number 6 of Roles’s Second Requests for the Production of Documents
requested “[a]ny and all documents reflecting, memorializing or otherwise setting forth the
nature of the relationship between Plaintiff and John Segall as of September 2015.” In their
response to this request, Lifetouch objected that this information was not likely to lead to the
discovery of admissible information. (ECF No 42-3 at 2-3). As explained above, however, the
crux of Roles’s counterclaims is that Lifetouch altered the August 25, 2015 email. That email
Because Lifetouch does not address its earlier claims of privilege in its Response to Defendant’s Motion
to Compel, and because the Court is without sufficient information to make a determination as to
whether any privilege applies, the Court does not reach the issue of privilege.
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was sent by John Segall. Thus, the nature of Segall’s relationship with Lifetouch—whether he
was an employee, independent contractor, or a senior official within the organization—bears
directly on Lifetouch’s potential liability. The Court therefore holds that documents setting
forth the nature of the relationship between Lifetouch and John Segall as of September 2015 are
relevant and therefore discoverable.
To the extent Lifetouch has not yet disclosed these
documents, Lifetouch is ordered to produce them.
As for Roles’s request for an order compelling Lifetouch to produce Segall for a
deposition, that request is denied. Roles has not established that Lifetouch has refused a
discovery request for Segall’s deposition, or that Lifetouch’s permission is even needed to
depose Segall.
Roles was free to schedule Segall’s deposition without Lifetouch’s—or the
Court’s—permission. 6 See Fed. R. Civ. P. 30(a)(1). And if Segall had refused to attend his
deposition, Roles could have compelled his attendance by subpoena under Rule 45. But Roles
has not established that it is Lifetouch’s responsibility to produce Segall, and the Court will
therefore not issue an order compelling Lifetouch to produce Segall.
C.
Copies of Any Email Authored by Charles Lantz the Production of Which
Lifetouch Has Objected To Based on the Attorney Work-Product Doctrine
The third and final type of relief Roles seeks in her Reply is an order compelling
Lifetouch to produce any email authored by Charles Lantz to which Lifetouch has objected
based on the attorney work-product doctrine. (See ECF No. 45 at 4.) Similar to her request for
an order compelling the production of Segall, however, Roles has not identified a specific
Roles may have been unable to schedule Segall’s deposition because she lacked his contact information
due to Lifetouch’s refusal to provide this information. But that fact would not justify an order compelling
Lifetouch to produce Segall; it would justify an order compelling Lifetouch to provide contact
information for Segall.
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discovery request that seeks emails authored by Charles Lantz. To the extent Roles seeks
clarification that Lifetouch’s claim of privilege with respect to emails written by Charles Lantz is
inappropriate, the Court holds that Lifetouch has failed to meet its burden of proving that a
privilege applies here. See Conoco, 687 F.2d at 730. Lifetouch’s Response to Roles’s Motion to
Compel does not address any claim of privilege, and Lifetouch therefore cannot avoid
discovery of documents authored by Charles Lantz on the basis of privilege. Thus, to the extent
Lifetouch has withheld, on the basis of privilege, materials authored by Charles Lantz which are
responsive to Roles’s discovery requests, Lifetouch will produce those documents.
D.
Attorneys’ Fees
Roles also requests that Lifetouch be ordered to pay the attorneys’ fees she incurred in
connection with bringing her Motion to Compel. Rule 37(a)(5)(A) provides that if a motion to
compel is granted, or the requested discovery is provided after the motion’s filing, “the court
must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated
the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Rule 37(a)(5)(A) further
provides some exceptions to this mandate. The Court must not order this payment if “(i) the
movant filed the motion before attempting in good faith to obtain the disclosure or discovery
without court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R.
Civ. P. 37(a)(5)(A).
Here, Lifetouch argues that its nondisclosure was substantially justified because it was
continuously supplementing its discovery responses. (ECF No. 44 at 4-5.) And Lifetouch
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argues that attorneys’ fees are inappropriate because Lifetouch was only two days late with its
discovery responses and has now produced all information requested.
arguments do not stand up to scrutiny.
(Id.)
But these
Although Lifetouch claims it has produced all
documents requested, it simultaneously argues that production of the August 25, 2015 email in
native format is unreasonable. (Id. at 44.) Ergo, Lifetouch implicitly concedes that it has not
produced all documents requested.
A party is substantially justified in failing to disclose required discovery when a
reasonable person would be satisfied that the parties could differ as to whether the party was
required to comply with the discovery request. Tolerico v. Home Depot, 205 F.R.D. 169, 175
(M.D. Pa. 2002) (citation and internal quotation marks omitted).
“The test of substantial
justification is satisfied if there exists a genuine dispute concerning compliance.” Id. at 175-176
(citation and internal quotation marks omitted); see also Grider v. Keystone Health Plan Cent., 580
F.3d 119, 140 n.23 (3d Cir. 2009) (noting Tolerico’s definition of “substantial justification”).
Principally as to Roles’s request for all native documents illustrating the circulation of
the August 25, 2015 email within Lifetouch, the Court finds there is not a genuine dispute
concerning compliance. These documents were clearly relevant and discoverable; they are at
the heart of Roles’s counterclaims. As explained above, Lifetouch’s objections to the contrary
are unpersuasive.
The Court therefore holds that Lifetouch did not have a substantial
justification in withholding those documents.
Nor has Lifetouch established that other
circumstances make an award of expenses unjust under Rule 37(a)(5)(A)(iii) as it relates to these
documents. Thus, attorneys’ fees for this portion of Roles’s Motion to Compel are proper.
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However, because the Court grants Roles’s Motion to Compel only in part, the propriety
of attorneys’ fees as it relates to the remainder of Roles’s Motion is less clear. Roles has not
established that Lifetouch refused a discovery request for Segall’s deposition, nor has Roles
identified a specific discovery request that seeks emails authored by Charles Lantz.
Furthermore, Roles filed a Reply brief in this case without leave of Court. As such, the Court
finds that—at least as to part of Roles’s Motion—“other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(iii). The Court will therefore award only partial
attorneys’ fees.
IV.
Conclusion
For the foregoing reasons, Roles’s Motion to Compel (ECF No. 42) is GRANTED IN
PART and DENIED IN PART. A corresponding Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LIFETOUCH NATIONAL SCHOOL
STUDIOS, INC.,
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Case No. 3:15-cv-234
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Plaintiff,
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JUDGE KIM R. GIBSON
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v.
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ELIZABETH ROLES,
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Defendant.
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ORDER
NOW, this 15th day of December 2016, upon consideration of Defendant Elizabeth
Roles's ("Roles") Motion to Compel (ECF No. 42) and for the reasons set forth in the
Memorandum Opinion accompanying this Order, it is HEREBY ORDERED as follows:
1.
Roles's request for an order compelling Plaintiff Lifetouch National School
Studios, Inc. ("Lifetouch"), to produce copies of the August 25, 2015 email from
all individuals within Lifetouch to whom the email was forwarded and/or sent is
GRANTED.
Lifetouch will produce all documents regarding the circulation of the August 25,
2015 email from Joseph Kimmel to Nicole Williams within Lifetouch's computer
network. Lifetouch will produce these documents, when applicable, in native
format pursuant to the parties' agreement as stated in their Rule 26(f) Report.
2.
Roles's request for an order compelling Lifetouch to produce Joseph Segall for
deposition at a mutually convenient time and location is DENIED. However,
documents setting forth the nature of the relationship between Lifetouch and
John Segall as of September 2015 are relevant and therefore discoverable. If
Lifetouch has not yet disclosed these documents, Lifetouch will produce them.
3.
Roles' s request for an order compelling Lifetouch to produce copies of any email
authored by Charles Lantz, to which Lifetouch has objected based on privilege, is
DENIED because Roles has not identified a specific document request that seeks
emails authored by Charles Lantz. However, Lifetouch has failed to meet its
burden of proving that a privilege applies to emails authored by Charles Lantz.
Lifetouch therefore cannot avoid discovery of emails authored by Charles Lantz
on the basis of privilege.
Thus, to the extent Lifetouch has withheld, on the basis of privilege, materials
authored by Charles Lantz which are responsive to other discovery requests by
Roles, Lifetouch will produce those materials.
4.
Lifetouch will abide by the scope of discovery of Federal Rule of Civil Procedure
26(b)(l), as elaborated in the Memorandum Opinion accompanying this Order.
5.
Roles's request for attorneys' fees is GRANTED IN PART. Roles shall submit an
affidavit on or before January 6, 2017, detailing the attorneys' fees she incurred
in bringing her Motion to Compel (ECF No. 42) only.
BY THE COURT:
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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