SPV-LS, LLC v. Transamerica Life Insurance Company

Filing 305

ORDER denying 237 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 6/28/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SPV-LS, LLC,

4:14-CV-04092-LLP
Plaintiff,

vs.
TRANSAMERICA LIFE INSURANCE
COMPANY,

ORDER ON PLAINTIFF’S AND THIRDPARTY DEFENDANTS’ MOTION TO
COMPEL
DOCKET NO. 237

Defendant and
Third-Party Plaintiff,
vs.
NACHMAN BERGMAN, as Trustee of
The N Bergman Insurance Trust dated
December 18, 2006; MALKA
SILBERMAN, as Successor Trustee of
The N Bergman Insurance Trust dated
December 18, 2006; LIFE TRADING
TRUST, dated August 8, 2007; T-LEG,
LLC, a/k/a TLEG LLC; FINANCIAL
LIFE SERVICES, LLC; SPV II LLC; and
THE REPRESENTATIVE OF THE
ESTATE OF NANCY BERGMAN,
Third-Party
Defendants.

On May 4, 2016, plaintiff SPV-LS LLC and third-party defendants Life
Trading Trust; Financial Life Services, Inc.; and SPV II, LLC (collectively the
Krasnerman Entities), filed a motion to compel the Estate of Nancy Bergman to
conduct a reasonably diligent search of Nancy Bergman’s records in responding

to discovery requests, to produce a privilege log, and to produce medical
authorizations. See Docket No. 237. This motion was not accompanied by any
form of legal memorandum explaining exactly what discovery responses (apart
from the medical authorizations) the movants sought to compel responses to,
explaining the law applicable to the motion, or explaining how the law might be
applied to the facts of this case.
Counsel for movants instead filed a “declaration” with over 250 pages of
documents attached in support of the motion. See Docket No. 238. Fifty-six of
those pages consist of discovery requests and responses thereto. See Docket
No. 238-1 through 238-3. Apparently, movants would have the court sift
through 273 pages of attachments to try to figure out what is in issue, what is
not in issue, what the law is applicable to the issues in dispute, and how that
law should be applied to those disputed issues. That is not how litigation
proceeds here in this district.
The local rules of the District of South Dakota provide explicitly that
every motion raising a question of law must be accompanied by a required
written brief. See DSD LR 7.1B. That brief must contain the movant’s legal
authorities in support of the motion, the Federal Rule of Civil Procedure on
which the movant relies, and the movant’s legal arguments. Id. No such brief
was tendered by movants upon making their motion to compel. After counsel
for the Estate responded in opposition to the motion and pointed out the
absence of the required brief (see Docket No. 250 at p.2), movants did not
remedy the situation by providing a brief with their reply on the motion.
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Instead, they simply submitted another declaration and affidavit from counsel,
both devoid of any discussion of the applicable law. See Docket Nos. 294 &
297.
The court will not do counsel’s work for them. And local counsel is
advised to ensure that future filings made under his name are in compliance
with this court’s local rules.
Having said that, the court notes that Rule 34 of the Federal Rules of
Civil Procedure governs requests for the production of documents and provides
that a party may ask another party to permit copying of documents Ain the
responding party=s possession, custody, or control.@ See FED. R. CIV. P. 34(a)(1).
The concept of documents in a party=s Apossession@ or Acustody@ is clear
enough.
The rule that has developed as to “control” is that if a party Ahas the legal
right to obtain the document,@ then the document is within that party=s
Acontrol@ and, thus, subject to production under Rule 34. See 8A Charles A.
Wright, Arthur R. Miller, & Richard L. Marcus, Fed. Practice & Procedure,
'2210, at 397 (2d ed. 1994). ABecause a client has the right, and the ready
ability, to obtain copies of documents gathered or created by its attorneys
pursuant to their representation of that client, such documents are clearly
within the client=s control.@ American Soc. for the Prevention of Cruelty to
Animals v. Ringling Bros. & Barnum & Bailey Circus, 233 F.R.D. 209, 212
(D.D.C. 2006) (citing Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 501

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(D. Md. 2000); and Poppino v. Jones Store Co., 1 F.R.D. 215, 219 (W.D. Mo.
1940)).
Merely because documents gathered by an attorney are subject to the
client=s control does not, however, automatically mean they are discoverable.
The work product doctrine and the attorney-client privilege still apply and may
be asserted in opposition to discovery, along with the appropriate privilege log.
Ringling Bros., 233 F.R.D. at 211-213. A party claiming a privilege as to
requested discovery has the burden of proving the basis for the application of
the privilege:
When a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to protection
as trial-preparation material, the party must:
(i)

expressly make the claim; and

(ii)

describe the nature of the documents,
communications, or tangible things not produced or
disclosedBand do so in a manner that, without
revealing information itself privileged or protected, will
enable other parties to assess the claim.

See FED. R. CIV. P. 26(b)(5)(A).
The court sets forth the above applicable law in the event this discovery
dispute returns to this court in another filing, this time in compliance with
local rules. The Estate is now on notice as to what documents may be in its
“control” and what burden the Estate must meet in order to assert a claim of
privilege. The court expects the Estate will act in compliance with the above
law in responding to the discovery requests tendered to it. If the Estate’s past
discovery responses are not in compliance with this law, the court strongly
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encourages the Estate to file amended responses that are in compliance. Any
failure to do so will be considered as one factor of many if sanctions are
awarded in connection with a future motion to compel.
Based on the foregoing, it is hereby
ORDERED that the motion to compel without any supporting
memorandum of law filed by plaintiff SPV-LS LLC and third-party defendants
Life Trading Trust; Financial Life Services, Inc.; and SPV II, LLC (Docket No.
237) is hereby denied.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED June 28, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge
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