Jostens, Inc. v. Hammons, Jr.
Filing
47
MEMORANDUM OPINION AND ORDER granting in part 41 MOTION to Compel Responses to Discovery Requests filed by Jostens, Inc.. Signed by District Judge Amos L. Mazzant, III on 1/27/2021. (mem)
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 1 of 16 PageID #: 714
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JOSTENS, INC.,
Plaintiff,
v.
JERRY DEAN HAMMONS, JR. and
SANDRA LOUISE ARNOLD HAMMONS,
Defendants.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 4:20-CV-00225
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Compel Responses to Discovery Requests
(Dkt. #41). Having considered the motion and the relevant pleadings, the Court finds that
Plaintiff’s motion should be GRANTED in part.
BACKGROUND
The undisputed evidence reflects the following facts. Plaintiff is a provider of products
and services that commemorate special occasions. Those products include, among other things,
class rings, caps and gowns, yearbooks, and championship rings for sports. Plaintiff has a jewelry
making facility in Denton, Texas. Defendant was formerly employed by Plaintiff as a security
guard working the early morning shift at the Denton, Texas location.
Part of Plaintiff’s jewelry making process involves scrapping certain rings and remaking
them into new rings. At the Denton, Texas facility, Plaintiff maintains an area where it keeps its
scrap. In that area, the scrap is stored in scrap carts, which are locked and contain small openings
that allow the rings to be placed inside. The holes are too small for an adult human hand to fit in.
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 2 of 16 PageID #: 715
In February 2020, surveillance footage showed Defendant using a device with a hook to
reach through the openings in the scrap carts to extract gold rings from the previous day. After
making this discovery, Plaintiff’s employees reviewed prior security footage dating back to
January 2020 and discovered that Defendant had been engaging in this behavior on a daily or near
daily basis since then.
An employee of Plaintiff contacted the Denton Police Department, who advised the
employee to catch Defendant leaving the Denton, Texas facility in possession of stolen scrap.
After observing Defendant taking rings out of the scrap bins on both March 3, 2020 and March 4,
2020, the employee confronted Defendant on March 4. The employee attempted to question
Defendant, but Defendant left the facility before the questioning concluded. Defendant was
arrested that same day shortly after leaving the facility, however, and the Denton Police
Department later discovered approximately $11,000 worth of gold rings in a safe at his house and
approximately $15,000 in cash.
On December 2, 2020, the Court held a telephone conference for a discovery dispute. At
the conference, the Court authorized the parties to file a motion to compel for categories of
documents that may be protected by the Fifth Amendment privilege as either testimonial or
incriminating. On December 9, 2020, Plaintiff filed the present motion (Dkt. #41). On December
23, 2020, Defendants filed their response (Dkt. #44).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding
any non[-]privileged matter that is relevant to any party’s claim or defense….” FED. R. CIV. P.
26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be
discoverable.” FED. R. CIV. P. 26(b)(1).
2
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 3 of 16 PageID #: 716
The Court’s scheduling order requires that the parties produce, as part of their initial
disclosure, “all documents, electronically stored information, witness statements, and tangible
things in the possession, custody, or control of the disclosing party that are relevant to the claim
or defense of any party” (Dkt. #24 at pp. 3–4). Moreover, the Local Rules of the Eastern District
of Texas (“Local Rules”) provide further guidance, indicating that information is “relevant to any
party’s claim or defense [if]: (1) it includes information that would not support the disclosing
party’s contentions; … (4) it is information that deserves to be considered in the preparation,
evaluation or trial of a claim or defense.” LOCAL RULE CV-26(d). It is well established that
“control of discovery is committed to the sound discretion of the trial court.” Freeman v. United
States, 556 F.3d 326, 341 (5th Cir. 2009) (quoting Williamson v. U.S. Dep’t of Agric., 815 F.2d
368, 382 (5th Cir. 1987)).
Rule 37 of the Federal Rules of Civil Procedure allows a discovering party, on notice to
other parties and all affected persons, to “move for an order compelling disclosure or discovery.”
FED. R. CIV. P. 37(a)(1). The moving party bears the burden of showing that the materials and
information sought are relevant to the action or will lead to the discovery of admissible evidence.
Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006). Once the moving party
establishes that the materials requested are within the scope of permissible discovery, the burden
shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly
burdensome or oppressive, and thus should not be permitted. Id.
Federal Rule of Civil Procedure 34 governs requests for production of documents,
electronically stored information, and tangible things. Rule 34 requires responses to “either state
that inspection and related activities will be permitted as requested or state with specificity the
grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). “An
3
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 4 of 16 PageID #: 717
objection [to the entire request] must state whether any responsive materials are being withheld on
the basis of that objection.” FED. R. CIV. P. 34(b)(2)(C). On the other hand, “[a]n objection to part
of a request must specify the part and permit inspection of the rest.” FED. R. CIV. P. 34(b)(2)(C).
After responding to each request with specificity, the responding attorney must sign their
request, response, or objection, certifying that the response is complete and correct to the best of
the attorney’s knowledge and that any objection is consistent with the rules and warranted by
existing law or a non-frivolous argument for changing the law. FED. R. CIV. P. 26(g). This rule
“simply requires that the attorney make a reasonable inquiry into the factual basis of his response,
request, or objection.” FED. R. CIV. P. 26(g) advisory committee’s note to 1983 amendment.
The Federal Rules of Civil Procedure follow a proportionality standard for discovery. FED.
R. CIV. P. 26(b)(1). Under this requirement, the burden falls on courts and parties to consider the
proportionality of all discovery in resolving discovery disputes. FED. R. CIV. P. 26(b)(1) advisory
committee’s note to 2015 amendment. This rule relied on the fact that each party has a unique
understanding of the proportionality to bear on the particular issue. Id. For example, a party
requesting discovery may have little information about the burden or expense of responding. Id.
“The party claiming undue burden or expense ordinarily has far better information—perhaps the
only information—with respect to that part of the determination.” Id.
ANALYSIS
Plaintiff asks the Court to compel the production of “financial records[,] . . . documents
concerning . . . [the] disposition of gold rings and other items taken from [Plaintiff], and
. . . documents concerning the assets [Defendants] have acquired since April 2016” from
Defendant Jerry Dean Hammons, Jr. (Dkt. #41 at p. 4). Specifically, Plaintiff contends that the
Fifth Amendment protection asserted by Defendant does not apply to the discovery requests at
4
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 5 of 16 PageID #: 718
issue. Further, Plaintiff claims that Defendant waived many of his objections “by making
boilerplate over broad, unduly burdensome, and relevant objections (Dkt. #41 at p. 8).
Defendant responds that “[m]any of the requested documents could be used against
Defendant in criminal court” and thus he properly invoked the Fifth Amendment (Dkt. #44 at p.
2). Further, Defendant asserts that “tax returns produced clearly reflect Defendant has legally
obtained the money to purchase all the property in question” (Dkt. #44 at p. 2).
I.
Fifth Amendment Right Against Self-Incrimination
The Fifth Amendment offers protection against compelled self-incrimination so that no
person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V.
The Fifth Amendment “can be asserted in any proceeding, civil or criminal,
administrative or judicial; and it protects against any disclosures which the witness reasonably
believes could be used in a criminal prosecution or could lead to other evidence that might be so
used.” Kastigar v. United States, 406 U.S. 441, 444–45 (1972). “To qualify for the Fifth
Amendment privilege against self-incrimination, a communication must be (1) testimonial in
character, (2) incriminating, and (3) compelled.” United States v. Velasquez, 881 F.3d 314, 337
(5th Cir. 2018) (citing United States v. Hubbell, 530 U.S. 27, 34 (2000)). “In order to be
testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information.” Id. (citing Doe v. United States (Doe I), 487 U.S. 201, 210
(1988)).
Defendant invokes the Fifth Amendment in response to each of Plaintiff’s discovery
requests. However, “[a] party is not entitled to decide for himself whether he is protected by the
fifth amendment privilege.” S.E.C. v. First Fin. Group of Tex., Inc., 659 F.2d 660, 668 (5th Cir.
1981). “Rather, this question is for the court to decide after conducting a ‘particularized inquiry,
5
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 6 of 16 PageID #: 719
deciding, in connection with each specific area that the questioning party seeks to explore, whether
or not the privilege is well-founded.’” Id. (quoting United States v. Roundtree, 420 F.2d 845, 852
(5th Cir. 1969) (footnote omitted)). Thus, “a blanket invocation of the [F]ifth [A]mendment
privilege is insufficient to relieve a civil litigant of the responsibility to answer questions put to
him during the civil discovery process and to claim the privilege with respect to each inquiry.” Id
at 669 (collecting cases).
The Fifth Amendment “privilege applies to documents as well as to testimony” and “[u]pon
valid invocation of the privilege, an individual’s potentially incriminating papers are protected
from production.” Nat. Gas Pipeline Co. of America v. Energy Gathering, Inc., 86 F.3d 464, 468
(5th Cir. 1996) (first citing United States v. Davis, 636 F.2d 1028 (5th Cir.), cert. denied, 454 U.S.
862 (1981); and then citing Rogers v. Webster, 776 F.2d 607 (6th Cir. 1985)). The documents
requested by Defendant fall into three categories: (1) financial records, including, but not limited
to, bank statements and tax returns1, (2) documents concerning the disposition of the items
allegedly stolen by Defendants, and (3) documents concerning assets acquired since the alleged
theft in April of 2016. The Court must therefore make the “particularized inquiry” necessary to
determine “whether or not the privilege is well-founded” in “each specific area that [Plaintiff]
seeks to explore.” Roundtree, 420 F.2d at 852.
Plaintiff generally asserts that the Fifth Amendment privilege is inapplicable to its requests
for production. One specific argument offered by Plaintiff is that the sought-after documents do
not fall under the Fifth Amendment’s act of production protection. “To receive Fifth Amendment
protection under the ‘act of production privilege,’ two requirements must be satisfied: (1) [t]he act
of producing the documents must have ‘testimonial aspects’” and “(2) the documents must be self-
1
In the telephone conference held by the Court, the Court ordered Defendant produce tax returns for the years 2016,
2017, 2018, and 2019. Plaintiff does not argue that those tax returns have not been produced.
6
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 7 of 16 PageID #: 720
incriminating.” In re Sambrano Corp., 441 B.R. 562, 566 (Bankr. W.D. Tex. 2010). Because “the
act of production” of documents “may itself implicitly communicate statements of fact,” the Fifth
Amendment generally protects those acts of production that would cause a witness to “admit that
the papers existed, [that the papers] were in [the witness’s] possession or control[] and were
authentic.” Hubbell, 530 U.S. at 36 (collecting cases).
Further, Plaintiff contends that even documents potentially falling within the act of
production doctrine are not protected due to the Fifth Amendment’s foregone conclusion
exception. The foregone conclusion exception applies when the party seeking the production of
potentially incriminating documents already knows the existence and location of the papers.
Fisher v. United States, 425 U.S. 391, 411 (1976). When the existence and location are already
known, the party opposing production of the documents “adds little or nothing to the sum total of
the [party’s] information by conceding that he in fact has the papers.” Id. To properly invoke the
exception, a party must, at minimum, “show[] prior knowledge” of the “existence or the
whereabouts of the documents ultimately produced.” Hubbell, 530 U.S. at 29.
Plaintiff also asserts that “if the documents were not prepared by the defendant, then the
act of production does not apply so long as the production of documents does not confirm their
existence or authenticity” (Dkt. #41 at p. 6). The Court will address the applicability of the act of
production doctrine during its individualized inquiry into the specific categories of documents.
a. Financial Records
Plaintiff seeks Defendant’s financial records, including “statements from any savings,
checking deposit, brokerage or other accounts [Defendant] has maintained from April 2016 to
present” (Dkt. #41 at p. 10).
7
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 8 of 16 PageID #: 721
Defendant did not prepare his bank statements. Rather, financial statements are business
records prepared by the financial institution itself. “Where the preparation of business records is
voluntary, no compulsion is present.” United States v. Doe (Doe II), 465 U.S. 605, 610 (1984).
Compulsion is a necessary element for a valid Fifth Amendment claim, “for the privilege protects
a person only against being incriminated by his own compelled testimonial communications.”2
Fisher, 425 U.S. at 409 (first citing citing Schmerber v. California, 384 U.S. 757 (1966); next
citing United States v. Wade, 388 U.S. 218 (1967); and next citing Gilbert v. California, 388 U.S.
263 (1967)). Because Defendant did not create the financial records, the only potential avenue for
protection comes from the act of production doctrine. The “production of the [records] by
[Defendant] would not authenticate them” because “they were not prepared by [Defendant].”
United States v. Klir, No. S-78-31-CA, 1979 WL 1563, at *2 (E.D. Tex. Dec. 7, 1979). Thus, the
act of production doctrine is inapplicable. The Court is sufficiently satisfied that the production
of the documents has no testimonial aspect that would lend itself to privilege under the Fifth
Amendment. The Court therefore finds that Defendant has no valid Fifth Amendment privilege
over the financial records sought by Plaintiff in Plaintiff’s request for production number two.
b. Documents Concerning Items’ Disposition
Plaintiff also seeks “[a]ll documents and communications concerning the sale, pawn, or
other disposition of any gold rings or other items that [Defendant] took from [Plaintiff] at any point
from April 2016 to the present,” “[a]ll documents evidencing the sale of gold or precious stones
by [Defendant] since April 29, 2016,” and “[a]ll documents or communications concerning
In Fisher, the Supreme Court considered whether the production of an accountant’s workpapers in the taxpayer’s
possession violates the Fifth Amendment—not bank records in the possession of a bank. However, the Court finds
the logic parallel: the records are not Defendant’s, the records were not prepared by Defendant, and the records
“contain no testimonial declarations” made by Defendant. Fisher, 425 U.S. at 409. Further, analogous to the
accountant’s workpapers, the making of the bank records was “wholly voluntary”—thus, by definition, not compelled.
Id.
2
8
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 9 of 16 PageID #: 722
[Defendant’s] transactions with any pawn shops since April 29, 2016” (Dkt. #41, Exhibit 3 at pp.
4; 16–17). In support of its request, Plaintiff asserts that it knew Defendant was pawning the items.
Further, Plaintiff claims that that its knowledge of the existence of the records renders the act of
production doctrine inapplicable under the foregone conclusion exception.3
Similar to financial records, the documents sought by Plaintiff are “business records”
voluntarily prepared by a third party—in this instance, pawn shops. Thus, Defendant must again
rely on the act of production doctrine. Plaintiff knows that the records exist. In fact, Plaintiff has
received verification of the records’ existence from a national database of pawnshop transactions.
Thus, “the existence and location of the papers are a foregone conclusion” and Defendant “adds
little or nothing to the sum total of [Plaintiff’s] information by conceding in fact that he in fact has
the papers.” Fisher, 425 U.S. at 411. Defendant therefore has no valid Fifth Amendment privilege
over the documents sought in Plaintiff’s request for production numbers one, thirty-three, and
thirty-four.
c. Gambling Records
Plaintiff further requests production of “[a]ll documents or communications concerning
[Defendant’s] transactions with any casinos since April 29, 2016,” “[a]ll documents concerning
[Defendant’s] membership in Choctaw Casinos & Resorts Rewards Club or WinStar World Casino
and Resort Club Passport,” “[a]ny win/loss statements available from Choctaw Casinos & Resorts
or WinStar World Casino and Resort,” and “[a]ll documents concerning any visits by [Defendant]
to Choctaw Casinos & Resorts or to WinStar World Casino and Resort since April 29, 2016” (Dkt.
#41, Exhibit 3 at p. 18).
Defendant’s assertion of the Fifth Amendment privilege is broad, and in his response to Plaintiff’s motion, Defendant
merely states that “[c]ertainly, any information [Defendant] provides in response to these requests would be
incriminating” (Dkt. #44 at p. 5).
3
9
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 10 of 16 PageID #: 723
Notably, the Fifth Amendment privilege “protects an individual from being compelled to
disclose information that could reasonably be expected to furnish evidence needed to prosecute
the claimant for a crime.” Steinbrecher v. C.I.R., 712 F.2d 195, 197 (5th Cir. 1983) (first citing
Kastigar, 406 U.S. at 445; and then citing Hoffman v. United States, 341 U.S. 479, 486 (1951)).
The privilege does not apply to any incriminating disclosure; however, but rather it “applies only
when the possibility of self-incrimination is a real danger, not a remote and speculative
possibility.” Id. “The claimant must be faced with substantial hazards of incrimination from the
information sought, and: ‘The witness is not exonerated from answering merely because he
declares that in doing so he would incriminate himself—his say-so does not of itself establish the
hazard of incrimination.’”
Id. (quoting Hoffman, 341 U.S. at 486).
Defendant offers no
explanation as to how the gambling records are incriminating—rather, he offers a blanket assertion
of the privilege in his response to Plaintiff’s requests for production and seems to abandon the
argument altogether in his response to Plaintiff’s motion to compel. No facts indicate that the
information contained within the gambling records are incriminating. Additionally, even assuming
the Fifth Amendment arguably applied, the records were produced in the course of business by the
casinos—not by Defendant. Requiring Defendant to produce the documents will neither admit
their existence—in fact, Defendant has admitted the records exist by asserting that his winnings
supplied the funds necessary for his purchase of various assets—and location nor implicitly cause
Defendant to authenticate the documents. Rather, “production would express nothing more than
[Defendant’s] belief that the papers are those described” in the requests for production” because
Defendant “did not prepare the papers and could not vouch for their accuracy.” Fisher, 425 U.S.
at 412–13. The Court therefore finds that the records are not protected by the Fifth Amendment
privilege asserted by Defendant.
10
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 11 of 16 PageID #: 724
d. Documents Concerning Assets Acquired
Plaintiff seeks various documents that should “reflect assets [Defendant] has acquired with
the proceeds of the property he took from [Plaintiff]” (Dkt. #41 at p. 14). These records include
“personal financial statements, financial statements for any businesses [Defendant] owns,
documents regarding real and personal property, such as deeds of trust, mortgages, appraisals,
certificates of title, inventories, contracts, receipts, promissory notes, insurance policies, loan
applications, and the like, as well as documents regarding the specific real property, vehicles, and
boats that were the subject of the preliminary ‘asset freeze’ injunction entered in this case” (Dkt.
#41 at p. 15).
“Production of documentary materials created or authenticated by a State or the Federal
Government, such as automobile registrations or property deeds, would seem ordinarily to fall
outside the protection of the [Fifth Amendment] privilege.” Fisher, 425 U.S. at 426 (Brennan, J.,
concurring). Notably, “the Fifth Amendment does not protect the contents of pre-existing,
voluntarily prepared documents” because the protection “does not extend to writing that was not
itself compelled.” United States v. Hubbell, 167 F.3d 552, 567 (D.C. Cir. 1999) (first citing Fisher,
425 U.S. at 409; and then citing Doe II, 465 U.S. at 612, n.10). Further, the act of producing the
documents does not admit the documents exist, admit the documents are in the possession or
control of defendant, or authenticate the documents. Thus, neither the Fifth Amendment, nor its
act of production doctrine, protects the documents sought in Plaintiff’s request for production
numbers four, five, seven through thirty-two, and forty-three through fifty-six.
e. Communications Between Defendant and Third-Party Regarding Sale of
Assets
Plaintiff “seek communications between [Defendant], on the one hand, and any agent
representing him [for] the sale of jewelry or precious stones and/or any person to company to
11
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 12 of 16 PageID #: 725
which [Defendant] sold jewelry or precious stones, on the other hand” (Dkt. #41 at p. 16).
Regarding Defendant’s invocation of the Fifth Amendment, Plaintiff asks the Court to “find that
[Defendant’s] objections are not specific enough” (Dkt. #41 at p. 17).
To properly invoke the Fifth Amendment privilege, a party must “object with specificity
to the information sought from him,” which, in turn, “permits the district court to rule on the
validity of his claim of privilege.” S.E.C. v. First Fin. Group of Tex., Inc., 659 F.2d 660, 668 (5th
Cir. 1981). “[A] blanket invocation of the [F]ifth [A]mendment privilege is insufficient to relieve
a civil litigant of the responsibility to answer questions put to him during the civil discovery
process and to claim the privilege with respect to each inquiry.” Id. at 669 (collecting cases).
However, a blanket assertion of the Fifth Amendment privilege does not necessarily mean that a
person simply reiterated the same objection to every question. Rather, a party “must present
himself with his records for questioning, and as to each question and each record elect to raise or
not to raise the defense.” Roundtree, 420 F.2d at 852. Once a party elects whether or not to raise
the defense as to each request posed, “[t]he district court may then determine by reviewing [the
party’s] records and by considering each question whether, in each instance, the claim of selfincrimination is well-founded.” Id. (collecting cases). In the instant case, Defendant has chosen
to invoke the privilege as to each request for production. Thus, the Court cannot say that the
invocation was “blanket” for Fifth Amendment purposes.
Defendant’s objection is not specific enough for the Court to make the finding that the
privilege is well-founded. The lack of specificity does not, however, equate to an unequivocal
waiver of the privilege—the Court must still make a “particularized inquiry” on the applicability
of the privilege. See First Fin. Group of Tex., Inc., 569 F.2d at 668. The Court will therefore
12
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 13 of 16 PageID #: 726
require Defendant produce the documents over which he asserts the Fifth Amendment privilege as
to Plaintiff’s requests for production numbers thirty-six and thirty-seven.
II.
Waived Objections
Plaintiff argues that Defendant “waived several objections by making boilerplate over
broad, unduly burdensome, and relevance objections” (Dkt. #41 at p. 8). In support, Plaintiff
invokes Federal Rule of Civil Procedure 34’s specificity language and asserts that Defendant’s
objections do not meet the requirements as laid out in the rule.
The Court agrees that Defendant has waived several objections by making boilerplate
objections. A response to a request for production “must either state that inspection and related
activities will be permitted as requested or state with specificity the grounds for objecting to the
request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). Further, “[a]n objection must state
whether any responsive materials are being withheld on the basis of that objection” and “[a]n
objection to part of a request must specify the part and permit inspection of the rest.” FED. R. CIV.
P. 34(b)(2)(C). “The party resisting discovery ‘must show specifically . . . how each [request] is
not relevant or how each question is overly broad, burdensome or oppressive.’” Tsanacas v.
Amazon.com, Inc., No. , 2018 WL 324447, at *2 (quoting McLeod, Alexander, Powel & Apffel,
P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).
Plaintiff sent Defendant fifty-six requests for production. In response, Defendant asserted
essentially one objection4:
This request invades Defendant’s right of privacy, is impermissibly overbroad and,
therefore, oppressive, burdensome, and irrelevant to the subject matter of this action
in that it seeks disclosure of personal and private information. This answering
Defendant’s financial statements and/or tax returns are not relevant to the subject
matter of the pending action. The Fifth Circuit recognizes a public policy against
unnecessary public disclosure of tax returns. The Court may only order their
Because the Court analyzed Defendant’s repeated Fifth Amendment objection above, it will only discuss the
remaining objections offered by Defendant.
4
13
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 14 of 16 PageID #: 727
production if they are relevant and where the requesting party shows a compelling
need for the same, which is a higher standard than regular discovery requests.
Defendant’s financial condition is likewise irrelevant. Although financial condition
may be relevant to the pursuit of punitive damages[,] Plaintiff does not claim
punitive damages here. This answering Defendant exercises his general right of
privacy in his financial information.5
(Dkt. #41, Exhibit 3).
Defendant claims that the objections “used common words which are commonly used in
responses to requests that require a person to retrieve documents possibly not currently in their
possession and to produce six (6)6 years of said documents i.e., bank records and statements” (Dkt.
#44 at p. 4).
“Boilerplate” includes language produced in “standardized text” or “ready-made or allpurpose language.”
Boilerplate, Merriam-Webster Collegiate Dictionary (11th ed. 2007);
Boilerplate, Black’s Law Dictionary (10th ed. 2014). Defendant used the above objection—or a
shortened variation thereof—on fifty-three of his fifty-six responses. In fact, the objections that
utilize the entire paragraph have the exact same grammatical error and substantive flaw in each. 7
Though Defendant does shorten the objection when financial statements are not at issue, the
language remains the same: “This request invades Defendant’s right of privacy, it is impermissibly
overbroad and, therefore, oppressive, burdensome, and irrelevant to the subject matter of this
action in that it seeks disclosure of personal and private information” (Dkt. #41, Exhibit 3).
5
Defendant asserts this objection, or a shorter variation thereof, in fifty-three of the fifty-six requests. Two of the
three requests that Defendant asserted a different objection to are not at issue—namely, request numbers one and
forty-two. In its analysis, therefore, the Court will address the third request, number twenty-seven, separate and apart
from the other fifty-three.
6
Defendant asserts the documents sought go back six years. The Court cannot find a request for any document
produced earlier than April 26, 2016—a little less than five years ago.
7
The grammatical mistake is the period originally inserted in the position where the Court has substituted a comma.
The substantive flaw is where Defendant asserts Plaintiff is not seeking punitive damages when Plaintiff is, in fact,
seeking them.
14
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 15 of 16 PageID #: 728
Defendant’s objection falls squarely within the definition of “boilerplate.” Importantly,
the objections do not “state with specificity the grounds for objecting to the request.” FED. R. CIV.
P. 34(b)(2)(B). Defendant’s non-compliance with Rule 34 therefore results in a waiver of the
posed objections.
One objection—a response to request number twenty-seven—does not contain the
boilerplate language. Rather, Defendant asserts that the request “is unduly burdensome in that it
requests documents or information equally available to both parties” (Dkt. #41, Exhibit 3 at p. 14).
However, Defendant did not specify “how the discovery requests [are] unduly burdensome in
terms of time, expense, or procedure.” Presbyterian Manors, Inc. v. Simplexgrinnell, L.P., No.
09-2656-KHV, 2010 WL 4942110, at *2 (D. Kan. Nov. 30, 2010). In fact, Defendant “provided
the court with no information about the burden involved in responding” to request number twentyseven. Id. The Court therefore finds Defendant’s unduly burdensome argument unpersuasive.
Further, “even if a document is publicly available . . . a party must still disclose it under Rule
26(a)(1)(A) to provide notice of evidence central to its claims or defenses.” Martino v. Kiewit
New Mexico Corp., 600 F. App’x 908, 911 (5th Cir. 2015). Thus, the Court overrules Defendant’s
objection as to request number twenty-seven.
Ultimately, the Fifth Amendment only potentially applies to one category of documents
sought by Plaintiff—communications between Defendant and either any agent representing him
or any person or company to which Defendant sold jewelry or precious stones. Defendant is
therefore required to produce the documents sought in request numbers thirty-six and thirty-seven
to the Court so the Court may conduct an in-camera review of the documents and determine if the
privilege asserted is well-founded.
Further, Defendant waived the boilerplate over broad,
15
Case 4:20-cv-00225-ALM Document 47 Filed 01/27/21 Page 16 of 16 PageID #: 729
burdensome, oppressive, or relevancy objections made in response to fifty-six of fifty-nine
requests. Finally, the Court overrules Defendant’s objection to response number twenty-seven.
CONCLUSION
It is therefore ORDERED that Plaintiff’s Motion to Compel Responses to Discovery
Requests (Dkt. #41) is hereby GRANTED in part as detailed in this Order.
Defendant must therefore produce documents in response to Plaintiff’s request for
production numbers one, four, five, seven through thirty-two, thirty-three, thirty-four, thirty-eight
through forty-one, and forty-three through fifty-six within fourteen days of this Order.
It is further ORDERED that Defendant produce the documents over which Defendant
asserts the Fifth Amendment privilege regarding responses to Plaintiff’s request for production
.
numbers thirty-six and thirty-seven to the Court for an in camera review within seven days of this
Order so that the Court may determine the applicability of the Fifth Amendment privilege asserted
by Defendant.
IT IS SO ORDERED
SIGNED this 27th day of January, 2021.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?