Brakebill et al v. Moncier et al (TV2)
Filing
228
MEMORANDUM AND ORDER denying 86 Motion to Bifurcate. Signed by Magistrate Judge C Clifford Shirley, Jr on 11/14/14. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JACK F. BRAKEBILL, et al.,
Plaintiffs,
v.
HERBERT MONCIER, ESQ., et al.,
Defendants.
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No. 3:14-CV-105-TAV-CCS
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Plaintiffs’ Motion to Bifurcate Discovery on Plaintiffs’ Damages
and to Limit Use of Attorney Billing Records [Doc. 86]. The Court heard oral arguments on this
motion on October 9, 2014, and the Court has considered the parties’ filings on this issue, [see
Docs. 86, 92, 95]. The Court finds that the Motion to Bifurcate Discovery on Plaintiffs’
Damages and to Limit Use of Attorney Billing Records is now ripe for adjudication, and for the
reasons stated herein, it is DENIED.
I.
POSITIONS OF THE PARTIES
Plaintiffs move the Court to enter an order bifurcating discovery on the issue of
Plaintiffs’ damages. Consistent with bifurcation, Plaintiffs move the Court to delay production
of Plaintiffs’ attorneys’ billing records offered to prove Plaintiffs’ damages – and to delay any
discovery related thereto – until Defendant Herbert Moncier’s1 dispositive motions have been
adjudicated. Further, Plaintiffs move the Court to limit use of the billing records and any related
discovery “strictly to the issue of Plaintiffs’ damages.” [Doc. 86 at 9].
In support of their position, Plaintiffs argue that in “light of Defendant[’s] hardened
position that Plaintiffs’ have filed a frivolous action that cannot withstand either a motion to
dismiss or a motion for summary judgment, and that abstention is mandatory in the alternative,
there is no need to litigate the issue of Plaintiffs’ damages until those preliminary matters are
addressed by the Court.” [Id. at 6].
Plaintiffs also argue the billing records at issue are extremely detailed and contain
sensitive information.
Plaintiffs are especially concerned that any billing records that are
provided to Defendant in this case will be used in related cases currently pending in state court.
[Id. at 3]. Plaintiffs acknowledge that portions of the records that are protected by the attorneyclient privilege or are protected by the work-product doctrine could be redacted from the
production provided to Defendant. However, Plaintiffs assert that, despite any redactions, “an
enormous wealth of information will remain in those hundreds of billing records that go directly
to Plaintiffs’ strategy, discussions with counsel, and the actions of counsel in the State cases that
can cause extreme prejudice to Plaintiffs when disclosed.” [Id.].
Defendant responds that the Plaintiffs are the author of their own problems. Defendant
maintains that, if the Plaintiffs did not want to participate in discovery in this case, they should
not have filed the case. Defendant argues that the billing records are relevant to the substance of
Plaintiffs’ claim that Defendant violated 42 U.S.C. § 1983, not just Plaintiffs’ damages, because
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When the Motion to Bifurcate Discovery on Plaintiffs’ Damages and to Limit Use of Attorney Billing Records
[Doc. 86] was initially filed, there were three defendants in this case: J. Michell Brakebill-Wilkerson, James J.
Wilkerson, Jr., and Herbert S. Moncier. The Plaintiffs have now dismissed their claims against J. Michell BrakebillWilkerson and James J. Wilkerson, Jr.
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Plaintiffs claim that Defendant violated constitutional rights by depleting their resources through
frivolous litigation. [Doc. 92 at 3].
II.
ANALYSIS
“Trial courts have broad discretion and inherent power to stay discovery until preliminary
questions that may dispose of the case are determined.” Gettings v. Building Laborers Local 310
Fringe Benefits Fund, 349 F.3d 300, 304 (6th Cir. 2003) (quoting Hahn v. Star Bank, 190 F.3d
708, 719 (6th Cir.1999)). “Limitations on pretrial discovery are appropriate where claims may
be dismissed ‘based on legal determinations that could not have been altered by any further
discovery.’” Gettings, 349 F.3d at 304 (quoting Muzquiz v. W.A. Foote Memorial Hosp., Inc.,
70 F.3d 422, 430 (6th Cir.1995)).
The law of this Circuit speaks to staying, or bifurcating, discovery where dispositive legal
determinations may eliminate the need for discovery. Consistent with this standard, Plaintiffs
argue that the motion to dismiss pending in this case may eliminate the need for discovery.
Additionally, Plaintiffs argue that the information contained in the billing records and other
discovery related to attorneys’ fees should be kept confidential and, therefore, a stay or
bifurcation is appropriate. The Court will address each of these contentions in turn.
A.
Dispositive Legal Determinations
As noted by the Plaintiffs, the Defendant maintains that the Plaintiffs’ claims are not
viable and, alternatively, that the Court must abstain from litigating the claims under a variety of
doctrines.
This point is uncontested.
The Plaintiffs contend that the Court should delay
discovery of any attorney billing records until these issues are adjudicated.
However, cases in which bifurcation of discovery is permitted often involve specific,
unambiguous theories in favor of dismissal, Williams v. Owensboro Bd. of Educ., 2009 WL
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3210649, at *1 (W.D. Ky. Sept. 30, 2009), or claims in which a particular adjudication or finding
is a condition precedent to analysis of a second component, see Smith v. Allstate Ins. Co., 403
F.3d 401, 407 (6th Cir. 2005) (“Because the merits of the bad faith claim depended on whether
the limitations provision was valid, it was reasonable for the court to resolve the validity question
before allowing the bad faith claim to proceed.”). The theories underlying Defendant’s motions
for dismissal and/or abstention and their application are not so clear-cut in this case.
Specifically, the Plaintiffs’ claims that the Defendant injured Plaintiffs and violated their
constitutional rights through malicious prosecution and frivolous litigation appears to move the
attorneys’ fees issue from an issue exclusively tied to damages to a potential substantive
component of Plaintiffs’ claims. Thus, the undersigned is not prepared to find that “legal
determinations [on these issues] could not have be[] altered by any further discovery.” See
Gettings, 349 F.3d at 304.
Parties often agree, or the Court will sometimes order, discovery bifurcated in cases
where billing records are only relevant to a statutory award of attorneys’ fees following a
favorable adjudication – for example, in a case under the Fair Debt Collection Practices Act.
However, the Court cannot say that the attorneys’ fees issue and discovery of billing records in
this case are analogous to discovering financial information for the sole purposes of a statutory
award of attorneys’ fees as in such cases.
Accordingly, the Court finds that it is not appropriate to exercise its discretion and
inherent power to stay discovery of the billing records until preliminary questions that may
dispose of the case are determined.
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B.
Confidentiality and Privacy Concerns
The Plaintiffs devote the majority of their argument to the position that discovery of the
billing records should be delayed to prevent dissemination of the confidential or private
information contained therein. As the Plaintiffs have acknowledged, any information that is
protected pursuant to the attorney-client privilege or the work-product doctrine may be redacted
from production, so long as it is accompanied by an appropriate privilege log. Thus, the issue
before the Court is whether discovery should be bifurcated to protect information that is not
privileged but is otherwise sensitive.
The Court has considered the parties’ positions, both as presented in this motion and as
presented in the Plaintiffs’ previous request for a protective order governing discovery in this
case. After thorough deliberation, the Court modified a proposed protective order and entered a
revised Protective Order in this case on November 12, 2014. To the extent the Court found the
Plaintiffs’ concerns about disclosure of information in the state court cases to be well-founded,
the Court included provisions in the Protective Order that will protect sensitive information in
this case from disclosure in the pending state court cases. Thus, the Court finds that the
Protective Order [Doc. 225], entered November 12, 2014, appropriately addresses the Plaintiffs’
concerns about disclosure of the billing entries and related discovery. With the Protective Order
in place, the Court finds that the Plaintiffs’ concerns about disclosure are nullified and cannot
serve as a valid basis for bifurcating discovery of the billing records and related discovery, at this
juncture.
Accordingly, the Court finds that it is not appropriate to exercise its discretion and
inherent power to stay discovery of the billing records based upon privacy and confidentiality
concerns.
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III.
CONCLUSION
Based upon the foregoing, the Court finds that the Plaintiffs’ Motion to Bifurcate
Discovery on Plaintiffs’ Damages and to Limit Use of Attorney Billing Records [Doc. 86] is not
well-taken, and it is DENIED.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge
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