Nieman v. Hale et al

Filing 65

Memorandum Opinion and Order granting in part and denying in part 44 Motion to Compel; granting in part and denying in part 52 Motion for Protective Order. Discovery due by 2/26/2014. Dispositive Motions due by 3/31/2014. (Ordered by Magistrate Judge David L Horan on 12/26/2013) (twd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JASON LEE NIEMAN,
Plaintiff,
V.
KEITH HALE, ET AL.,
Defendants.

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No. 3:12-cv-2433-L-BN

MEMORANDUM OPINION AND ORDER ON DISCOVERY MOTIONS
Plaintiff Jason Lee Nieman filed a Motion to Compel Discovery Responses of
Defendants Keith Hale and Insurance Search Group (the “Motion to Compel”). See Dkt.
No. 44. Defendants Keith Hale (“Hale”) and Insurance Search Group (“ISG,” and with
Hale, “Defendants”) filed a Response, see Dkt. No. 46, and Plaintiff filed a Reply. See
Dkt. No. 47. Because Plaintiff apparently filed his Motion to Compel prior to receiving
Defendants’ discovery responses and initial production, the undersigned ordered the
parties to confer and file a joint status report (the “JSR”). See Dkt. No. 48. In the order,
the undersigned ordered Plaintiff to “identify each request for production (“RFP” or
interrogatory for which he seeks to compel further information, and ... specifically
explain why he is entitled to relief as to each identified RFP or interrogatory.” Dkt. No.
48 at 3.
On November 6, 2013, the parties filed the JSR. Unfortunately, contrary to the
instructions set forth in the undersigned’s prior order, the parties group multiple RFPs
and interrogatories together and make overarching arguments that make the relief
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that each party seeks in the JSR at times difficult to determine. On November 22,
2013, the undersigned held a telephonic oral argument with Plaintiff and Defendants’
counsel on the pending discovery motions. See Dkt. No. 58.
With the aid of the oral argument, the undersigned will address all RFPs and
interrogatories that appear from the JSR to be at issue. To the extent that any
additional RFPs and interrogatories at issue are not specifically addressed herein,
Plaintiff’s challenges are considered waived for insufficient briefing, and his Motion to
Compel [Dkt. No. 44] is DENIED as to those requests. The RFPs and interrogatories
are addressed below in the order presented by the parties in the JSR.
In addition to the Motion to Compel, Defendants’ Motion for Protective Order
[Dkt. No. 52] is also pending. Because the Motion for Protective Order simply contains
additional briefing as to certain issues raised in the JSR, the undersigned has
considered the Motion for Protective Order, as well as Plaintiff’s Response to that
motion [Dkt. No. 53], in ruling on the Motion to Compel. Consequently, the Motion for
Protective Order [Dkt. No. 52] is GRANTED in part and DENIED in part to the same
extent as the overlapping issues are addressed herein as to Plaintiff’s Motion to
Compel.
Legal Standards
Fed. R. Civ. P. 26(b) allows a party to obtain discovery “regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” FED. R. CIV. P.
26(b)(1). The information sought need not be admissible at trial “if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The
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United States Supreme Court has recognized that the discovery rules “are to be
accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507-508
(1947). The party resisting discovery must show specifically how each request is not
relevant or otherwise objectionable. See McLeod, Alexander, Powel and Apffel, P.C. v.
Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). But the “party asserting a privilege
exemption from discovery” – here, Defendants – “bears the burden of demonstrating
its applicability.” In re Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th Cir. 2001).
Before addressing the applicability of which documents are protected by the
attorney-client privilege, the undersigned must consider whether federal or state law
of attorney-client privilege applies. In a diversity action raising only state law claims,
the Court must apply the state law of attorney-client privilege. See FED. R. EVID. 501.
In a case raising only federal claims over which the Court has federal-question
jurisdiction, federal common law controls any privilege issues. See id.; Willy v. Admin.
Rw. Bd., 423 F3d. 483, 495 (5th Cir. 2005). Here, invoking the Court’s federal-question
jurisdiction under 28 U.S.C. § 1331, Plaintiff asserts a retaliation claim under Title VII
of the Civil Rights Act of 1964 (“Title VII”), as amended; the Texas Commission on
Human Rights Act; and the Illinois Human Rights Act. See Dkt. No. 35. He raises the
same allegations in support of his claim under the federal statute and the state
statutes, see id., and the Court has previously explained that Plaintiff must prove the
same elements to prevail on his claim under each of these statutes, see Dkt. No. 7.
Other Texas federal courts have persuasively reasoned that federal privilege law
applies where a plaintiff raises both federal and state claims and the evidence at issue
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is relevant to both. See Guzman v. Memorial Hermann Hosp. Sys., Civ. A. No. H-073973, at *4-*7 (S.D. Tex. Feb. 20, 2009) (discussing cases). Under the circumstances
here, and for the reasons aptly explained by Judge Rosenthal in Guzman, the Court
concludes that the federal common law of privilege applies in this case.
Representations involving multiple clients with separate counsel call for the
application of what have been called the joint-defense or common-interest doctrine. The
joint-defense or common-interest doctrine extends certain privileges, typically the
attorney-client privilege and work product protection, to documents that are prepared
by parties sharing a common litigation interest that would otherwise not enjoy such
privilege. See FTC v. Think All Publishing, L.L.C., No. 4:07-cv-011, 2008 WL 687456,
at *1 (E.D. Tex. Mar. 11, 2008) (citing Ferko v. NASCAR, 219 F.R.D. 396, 401 (E.D.
Tex. 2003)). “Thus, while the attorney-client and work product privileges are typically
waived upon disclosure to a third party, where that third party ‘share[s] a common
legal interest’ with the producing entity, such production does not waive either
privilege.” Id. (quoting Ferko, 219 F.R.D. at 401).
The joint-defense or common-interest doctrine applies under federal common law
in the Fifth Circuit to “(1) communications between co-defendants in actual litigation
and their counsel and (2) communications between potential co-defendants and their
counsel.” Santa Fe, 272 F.3d at 710 (internal citations omitted). The joint-defense or
common-interest doctrine “extends the attorney-client privilege to communications
prompted by threatened or actual civil or criminal proceedings and intended to
facilitate representation between potential co-defendants with a common legal interest
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and their counsel.” Autobytel, Inc. v. Dealix Corp., 455 F. Supp. 2d 569, 576 (E.D. Tex.
2006) (citing Santa Fe, 272 F.3d at 710-11). The doctrine “exists to protect
communications between two parties or attorneys that share a common legal interest,”
and, “[f]or example, courts have found that co-defendants, an insurer and an insured,
and a patentee and a licensee share a common legal interest.” Ferko v. NASCAR, 219
F.R.D. 403, 406 (E.D. Tex. 2003). But the “doctrine is to be narrowly construed because,
although policy considerations support its use in some circumstances, it is ‘an obstacle
to truth seeking.’” Think All Publishing, 2008 WL 687456, at *1. For communications
between potential co-parties to be covered by the doctrine, “there must be a palpable
threat of litigation at the time of the communication, rather than a mere awareness
that one’s questionable conduct might some day result in litigation, before
communications between one possible future co-defendant and another ... could qualify
for protection.” Santa Fe, 272 F.3d at 711.
Plaintiff also invokes the crime-fraud exception. ““Under the crime-fraud
exception to the attorney-client privilege, the privilege can be overcome where
communication or work product is intended to further continuing or future criminal or
fraudulent activity.” In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005).
This exception also applies to work-product protections. See In re Grand Jury
Subpoenas, 561 F.3d 408, 411 (5th Cir. 2009). The party seeking discovery of privileged
or protected information bears the burden of establishing a prima facie case that the
attorney-client relationship was intended to further criminal or fraudulent activity. See
Grand Jury, 419 F.3d at 335. To make the necessary prima facie showing for the
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application of the crime-fraud exception, Plaintiff “must produce evidence such as will
suffice until contradicted and overcome by other evidence ... a case which has
proceeded upon sufficient proof to that stage where it will support [a] finding if
evidence to the contrary is disregarded.” Id. at 336 (internal quotation marks omitted).
“Allegations in pleadings are not evidence and are not sufficient to make a prima facie
showing that the crime-fraud exception applies.” Id. The Fifth Circuit has required
that Plaintiff also show “some valid relationship between the work product under
subpoena and the prima facie violation” or that the communication or “[work product]
material reasonably relate[s] to the fraudulent activity.” Id. at 336 n.7 (internal
quotation marks omitted). But, “where there is no discernible limit to the subpoena or
discovery request at issue, a prima facie showing is made if the party seeking the
otherwise privileged materials produces sufficient evidence that during the
attorney-client relationship, the client intended to further a future or ongoing crime
or fraud.” Id. However, “the proper reach of the crime-fraud exception when applicable
does not extend to all communications made in the course of the attorney-client
relationship, but rather is limited to those communications and documents in
furtherance of the contemplated or ongoing criminal or fraudulent conduct.” Id. at 343.
“After the party seeking disclosure meets its prima facie showing that the client
intended to further an ongoing crime or fraud during the attorney-client relationship
such that the crime-fraud exception applies, the only attorney-client communications
and work product materials falling within the scope of the crime-fraud exception are
those shown to hold some valid relationship to the prima facie violation such that they
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reasonably relate to the fraudulent activity.” Id. at 346 (internal quotation marks
omitted).
Defendants’ Motion for Protective Order
Defendants’ Motion for Protective Order provides some additional facts and
arguments as to why Plaintiff’s motion to compel privileged information should be
denied. However, Defendants cite no authority in their motion. Specifically, Defendants
seek to protect: (1) communications between Defendants and their counsel, both in this
action and in another case involving many of the same parties currently pending in the
Central District of Illinois, see Nieman v. RLI Corp., et al, 1:12-cv-01012-JES-JAG
(C.D. Ill.) (the “Illinois Action”); and (2) the identity of John Doe Corp. Because the
issues raised in the Motion for Protective Order are resolved by the undersigned’s
determinations concerning the Motion to Compel, the Motion for Protective Order [Dkt.
No. 52] is GRANTED in part and DENIED in part to the same extent as these issues
are addressed herein as to Plaintiff’s Motion to Compel.
In addition, the undersigned notes that Defendants requested that the
undersigned wait to resolve the privilege issue raised in the Motion for Protective
Order until this issue is resolved in the Illinois Action in order to prevent “a potential
for inconsistent rulings between sister courts.” Dkt. No. 52 at 4. The undersigned has
considered Defendants’ request but determines the requested wait or abatement to be
unnecessary. The Illinois Action and the instant case both involve a Title VII claim by
Plaintiff against Defendants; however, each case is premised on different sets of facts
and circumstances. Although some of the discovery issues are similar, different rulings
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by the Central District of Illinois and the Northern District of Texas may be different
based on the set of facts and circumstances in each case. Moreover, to the extent that
Plaintiff seeks documents in this action that were generated in connection with the
Illinois Action, Defendants had the opportunity to – and did – point the Court to
relevant orders in place by the Central District of Illinois. See, e.g., Dkt. No. 52-1.
Plaintiff’s Motion to Compel
RFP Nos. 1, 2, & 17 and Interrogatory Nos. 3, 16, & 23
The undersigned notes that Plaintiff did not follow the procedure outlined in the
undersigned’s Order requiring Plaintiff to address each RFP or interrogatory at issue
individually. It is therefore difficult for the Court to determine the basis of Plaintiff’s
argument that he is entitled to documents called for by these RFPs and interrogatories
or, specifically, what documents and information Plaintiff believes that each RFP and
interrogatory calls for. However, because the parties have lumped this group of RFPs
and interrogatories together, the undersigned will address them in similar fashion.
Defendants respond that they have agreed to supplement their discovery
responses to include production of non-privileged records and notes concerning
Plaintiff’s interest in going to work for both RLI Corp. and John Doe Corp, all
communications between Defendants and Plaintiff concerning Plaintiff’s interest in
going to work for both RLI Corp. and John Doe Corp., and all non-privileged records,
notes, communications that Defendants had with RLI Corp. about Plaintiff,
communications between Defendants and RLI Corp. wherein Defendants submitted
resumes or applications for other individuals that sought employment with RLI Corp.
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in the same capacity sought by Nieman (with redactions as to the identity of any such
candidates), and redacted records evidencing Defendants’ submission of an
employment candidate for John Doe Corp.’s consideration.
Defendants do not agree to produce: (1) communications between Defendants
and RLI Corp. that post-date Plaintiff’s institution of legal proceedings against RLI
Corp; (2) communications between Defendants and their attorneys in either the Illinois
Action or this action; or (3) the identity of John Doe Corp. Defendants also stand by
their objections regarding Interrogatory No. 23, on the grounds that the Interrogatory
is not relevant to any claim or defense and is meant for the purpose of harassment.
Plaintiff asserts the documents at issue must be produced because they are
relevant and (1) the interactions and statements of Hale are directly relevant to his
retaliatory animus as to improperly and illegally disqualifying Plaintiff as to John Doe
Corp.; (2) privilege was waived by intentional disclosure of the detailed billing records
in the Illinois Action; (3) subject to disclosure based on the crime-fraud exception; and
(4) subject to disclosure pursuant to the Faragher/Ellerth doctrine. Plaintiff also
asserts that Defendants’ Motion for Protective Order is untimely.
First, to the extent that Defendants claim that the joint-defense or commoninterest doctrine applies to communications in connection with the Illinois Action,
Defendants must log any withheld communications that post-date March 24, 2011 (the
date that Defendants have put forth as the date when the common interest or joint
defendant commenced) between Defendants’ counsel and RLI Corp. (or RLI Corp.’s
counsel) and provide an adequate showing of the privilege’s or protection’s applicability
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through the joint-defense or common-interest doctrine under the governing law laid out
above. The fact that Defendants and RLI Corp. were being sued by Plaintiff does not
automatically make every communication between or among them privileged. Even
with the parties’ supplemental briefing, see Dkt. Nos. 61 & 62, the Court is not in a
position to make any blanket ruling as to the joint-defense or common-interest issue
– either to find that it does not apply or that it does to such an extent – as Defendants
request – that Defendants need not log any documents that they are withholding from
production. Accordingly, Plaintiff’s Motion to Compel is DENIED without prejudice to
his renewing his challenges to any withheld documents based on Defendants’ privilege
logs.
Next, to the extent that Plaintiff seeks communications between Defendants and
their counsel in either the Illinois Action or this lawsuit on the basis that Defendants
have waived any privilege, Plaintiff’s Motion to Compel is DENIED without prejudice.
The Defendants’ billing records, on which Plaintiff bases his waiver argument, are
already the subject of a protective order in the Illinois Action, which limits their use
to the Illinois Action and states that disclosure of the billing records “shall not
constitute or be deemed a waiver or forfeiture of any claim of privilege or work product
protection.” See Dkt. No. 52-1. The undersigned sees no reason to disturb the Protective
Order entered months ago by the Central District of Illinois. The undersigned
acknowledges that the Seventh Circuit denied Defendants’ motion to seal the billing
records, see 1:12-cv-1012 [Dkt. No. 134-6] (C.D. Ill., filed 10/28/13); however, the
Seventh Circuit’s denial to seal does not, on its own, dictate that Defendants have
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waived the privilege with respect to any attorney-client communications.
In addition, Plaintiff has failed to provide sufficient evidence to establish the
crime-fraud exception. Plaintiff’s allegations do not amount to a prima facie showing
of fraud or contemplated fraud as required by the governing federal common law.
Neither will the Court, at this point, engage in an in camera examination to determine
the applicability of the crime-fraud exception, because Plaintiff has not made a
sufficient showing of a factual basis adequate to support a good faith belief by a
reasonable person that the crime-fraud exception applies. See Grand Jury Subpoena,
419 F.3d at 335-36.
And, although Defendants moved for a protective order after their time to
respond had passed, Defendants put Plaintiff on notice of their intention to withhold
privilege documents in their Objections and Responses to Plaintiff’s First Request for
Production of Documents and Materials. See Dkt. No. 51-4. As such, the undersigned
determines that Defendants preserved their right to assert privilege. See WRIGHT &
MILLER, 8 FEDERAL PRACTICE

AND

PROCEDURE § 2035 (“A party may not remain

completely silent when it regards discovery as improper. If it desires not to ... respond,
it must object properly or seek a protective order....”).
Plaintiff also argues that, “pursuant to the Faragher/Ellerth doctrine, a[n]
employer who seeks to argue that their internal investigation was proper and sufficient
(using it as an affirmative defense) waives any privilege as to the contents of that
investigation.” Dkt. No. 51 at 25. The only categories of documents that could be
affected by application of this doctrine are RLI Corp. documents related to that
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company’s internal investigation in the Illinois Action that Defendants have in their
possession, custody, or control. Although, in the JSR, Defendants fail to address
Plaintiff’s argument regarding the Faragher/Ellerth doctrine, during oral argument,
Defendants confirmed that they have no such documents in their possession, custody,
or control. Accordingly, Plaintiff’s Motion to Compel is also DENIED without prejudice
on this ground.
Finally, Plaintiff’s Motion to Compel is GRANTED with respect to the identify
of John Doe Corporation. Defendants have asserted that Plaintiff seeks the identify of
Joe Doe Corporation for the purpose of harassment, embarrassment, annoyance, and/or
undue burden or expense. Defendants also assert that John Doe Corp. is not a proper
defendant in this action because Defendants did not act as an agent for John Doe Corp.
Plaintiff asserts that John Doe Corp. is a proper defendant or at least a proper party
from which to seek discovery. The undersigned notes that a motion to compel is not the
proper vehicle for determining whether John Doe Corp. is a proper defendant in this
action, and this ruling should not be construed as making such a determination.
Rather, under the “broad and liberal treatment” afforded the discovery rules, the
identify of the corporation from whom Plaintiff sought employment is relevant as it
appears reasonably calculated to lead to the discovery of admissible evidence.
Defendants have not met their burden in demonstrating that this information should
be protected in spite of its apparent relevance.
All relief sought by the Motion to Compel with regard to RFP Nos. 1, 2, and 17
and Interrogatory Nos. 3, 16, and 23 not specifically granted is DENIED.
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RFP No. 3
Plaintiff requests “comparator information” but has no objection to Defendants
redacting the identify of any candidates. Defendants state that they have already
agreed to produce redacted “comparator information” and that they believe this dispute
has been resolved. Because it appears from the JSR and the parties’ representations
at oral argument that the parties have resolved this dispute, Plaintiff’s Motion to
Compel is DENIED as moot with regard to RFP No. 3.
RFP No. 4
Defendants state that they will produce whatever materials or information that
“was provided to him that speaks to the qualifications sought by either RLI Corp. or
John Doe Corp” and that they believe this dispute has been resolved. Because it
appears from the JSR that the parties have resolved this dispute, Plaintiff’s Motion to
Compel is DENIED as moot with regard to RFP No. 4.
RFP No. 5
Defendants state that they will stand on their objections that “the request is
vague and confusing and, as a consequence, is not a narrowly-tailored discovery
request capable of being interpreted to require production of a specific item, thing, or
category of items or things.” Dkt. No. 51 at 28.
The undersigned disagrees that RFP No. 5 is incapable of interpretation and so
overrules the “vague and confusing” objection, which is Defendants’ only stated
objection. Plaintiff’s Motion to Compel with respect to RFP No. 5 is GRANTED, and
Defendants are ordered to produce all documents responsive to RFP No. 5.
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Interrogatory No. 2
Defendants stand by their objections that Interrogatory No. 2 is “overly broad
and unduly burdensome because it requires Defendants to create and provide a lengthy
narrative or otherwise detailed account, witness by witness, of their entire case.” Dkt.
No. 51-3 at 2. Defendants also object to the extent that Interrogatory No. 2 calls for
privileged communications. Nevertheless, Defendants do provide a response to
Interrogatory No. 2, subject to their objections.
The undersigned agrees with Defendants that Interrogatory No. 2 is overly
broad and unduly burdensome and determines that Defendants’ response is sufficient.
The undersigned also sustains Defendants’ objections to the extent that they claim
protection under the attorney-client privilege. Plaintiff’s Motion to Compel is therefore
DENIED with respect to Interrogatory No. 2.
RFP No. 6
Plaintiff demands that Defendant Hale swear, under penalty of perjury, that he
has never had any conversations or communications with John Doe Corp. or any of its
employees or agents. See Dkt. No. 51 at 29. Defendants agree to provide such sworn
proof that he “never, ever communicated with John Doe Corp. about Nieman.” Id.
Because it appears from the JSR that the parties have resolved this dispute, Plaintiff’s
Motion to Compel is DENIED as moot with regard to RFP No. 6.
RFP No. 7
Contrary to the undersigned’s prior order requiring the JSR, Plaintiff groups
this RFP with other interrogatories; therefore, it is difficult to determine exactly what
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Plaintiff is seeking and pursuant to what basis. Nevertheless, Defendants’ only
objections to RFP No. 7 appear to be that it is duplicative of other requests and is
vague. The undersigned disagrees that RFP No. 5 is incapable of interpretation and so
overrules the vagueness objection. And an objection that a request is duplicative
provides no basis, without more, not to respond – particularly where Defendants must
can simply reference the corresponding response to the allegedly duplicative request
to answer this request. Therefore, to the extent that Defendants have in their
possession, custody, or control any documents responsive to RFP No. 7 that they have
not yet produced, they must produce such documents.
Interrogatory No. 12
Contrary to the undersigned’s prior order requiring the JSR, Plaintiff groups
this interrogatory with other requests; therefore, it is difficult to determine exactly
what Plaintiff is seeking and pursuant to what basis. Nevertheless, Defendants have
agreed to supplement or amend their interrogatory answer to include additional
information that Plaintiff seeks. Defendants further state that they believe the parties
have resolved any dispute regarding Interrogatory No. 12 by agreement. Because it
appears from the JSR that the parties have resolved this dispute, Plaintiff’s Motion to
Compel is DENIED as moot with regard to Interrogatory No. 12.
RFP Nos. 12 & 14
Contrary to the undersigned’s prior order requiring the JSR, Plaintiff groups
these two RFPs together; therefore, it is difficult to determine exactly what Plaintiff
is seeking for each RFP and pursuant to what basis. Defendants respond that, to their
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knowledge, Plaintiff “never applied for a position of employment with Hale.” Although
inartfully worded, it appears that Plaintiff seeks all of his employment applications
that he provided to Hale for the position with the John Doe Corp. as well as
employment applications that others provided to Hale for the position with John Doe
Corp. To the extent that Defendants have in their possession, custody, or control any
responsive documents to RFP No. 12 that they have not already produced in connection
with another request, Defendants are ordered to produce such documents, with
redactions of personal identifying information where appropriate for any comparator
information.
Likewise, to the extent Defendants have in their possession, custody, or control
any responsive documents to RFP No. 14 that they have not already produced in
connection with another request, Defendants are ordered to produce such documents,
with redactions where appropriate for any comparator information.
RFP Nos. 16 & 18
Contrary to the undersigned’s prior order requiring the JSR, Plaintiff groups
these two RFPs together; therefore, it is difficult to determine exactly what Plaintiff
is seeking for each RFP and pursuant to what basis. Defendants respond that RFP
Nos. 16 and 18 are duplicative of other requests and vague. Defendants also assert that
they have offered to produce information that may resolve the dispute – although
Defendants do not specify the information to which they refer – and state that they
believe the dispute regarding RFP Nos. 16 and 18 has been resolved. It is unclear to
the undersigned what information Defendants have offered and why they believe the
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dispute regarding these RFPs has been resolved. Therefore, to the extent Defendants
have in their possession, custody, or control any responsive documents to RFP Nos. 16
and 18 that they have not already produced in connection with another request,
Defendants are ordered to produce such documents.
RFP No. 19
Defendants respond that they “will produce any communications in his
possession that he received (whether directly or indirectly) from the government or
regulatory entities identified by Nieman.” Dkt. No. 51 at 35. Defendants further state
they believe the parties have resolved their dispute concerning RFP No. 19. The
undersigned notes that Defendants do not urge or renew any objections to RFP No. 19
and that the category of documents that they agree to produce is narrower that what
Plaintiff has requested. Because Defendants make no objections in the JSR to RFP No.
19, Defendants are ordered to produce all documents responsive to RFP No. 19,
although, as Plaintiff himself acknowledged during oral arguments, in response to this
or any other request, Defendants need not produce any documents that they received
from Plaintiff.
RFP Nos. 21 & 24
Contrary to the undersigned’s prior order requiring the JSR, Plaintiff groups
these two RFPs together; therefore, it is difficult to determine exactly what Plaintiff
is seeking for each RFP and pursuant to what basis. Plaintiff specifically demands
privileged information and repeats his waiver arguments previously discussed herein
in connection with RFP Nos. 1, 2, and 17 and Interrogatory Nos. 3, 16, and 23. Plaintiff
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does not articulate what documents he is seeking; rather, Plaintiff appears to argue
that he is entitled to all of Defendants’ privileged communications in both the Illinois
Action and this action. In addition to the waiver arguments that Plaintiff made
previously, Plaintiff also notes that Defendants did not object to these RFPs on the
basis of privilege in their objections and responses. See Dkt. No. 51-4 at 10, 11.
Defendants stand by their prior objections to these RFPs, which include assertions that
these RFPs are duplicative of RFP No. 1, vague, and equally available to Plaintiff.
Defendants also assert attorney-client privilege for the first time in the JSR.
The undersigned determines that Defendants’ failure to assert privilege in their
responses and objections is excused; Plaintiff should have been on notice of Defendants’
assertion of privilege based on Defendants’ objection that RFP Nos. 21 and 24 were
duplicative of RFP No. 1, for which Defendants asserted privilege. In any case, RFP
Nos. 21 and 24 are duplicative of RFP No. 1, and Plaintiff’s Motion to Compel with
respect to these requests is therefore DENIED in part on that basis. But Defendants
should produce, if any, non-privileged documents responsive to RFP Nos. 21 and 24
that have not been produced in connection with another request, although Defendants
need not produce any documents that they received from Plaintiff. Any responsive
privileged documents are governed by the undersigned’s ruling on privilege outlined
above.
RFP No. 26 and Interrogatory No. 20
Contrary to the undersigned’s prior order requiring the JSR, Plaintiff groups
this RFP and Interrogatory together; therefore, it is difficult to determine exactly what
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Plaintiff is seeking for each requests and pursuant to what basis. Defendants state that
they have produced “the records in his possession that would reflect reference checks
made by him in connection with Nieman’s desire to work with RLI Corp. Hale is not
in possession of any other documents that would seem to be responsive to this request.
If Nieman is seeking some other sort of information, Defendants contend that Nieman’s
briefing herein is insufficient and that his objections make clear that the discovery
requests are no clear. See Dkt. No. 51 at 43.
The undersigned disagrees that RFP No. 26 and Interrogatory No. 20 are
unclear, particularly in light of Plaintiff’s lengthy description of his requests in the
JSR. See id. at 42-43. Therefore, to the extent that Defendants have documents and/or
information responsive to RFP No. 26 and/or Interrogatory No. 20 that they have not
produced, Defendants are ordered to produce such responsive documents and/or
information.
RFP No. 27
Defendants respond that RFP No. 27 is duplicative of other requests, including
RFP No. 1, and reiterates their objections as to privilege. Plaintiff re-urges his waiver
arguments and notes that Defendants failed to assert privilege as to RFP No. 27 in
their responses and objections.
The undersigned agrees that RFP No. 27 appears to be duplicative of other
requests; however, Defendants should produce, if any, non-privileged documents
responsive to RFP No. 27 that have not been produced in connection with another
request. Any responsive privileged documents are governed by the undersigned’s ruling
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on privilege outlined above.
Interrogatory Nos. 13 & 14
Defendants re-urge their objections that these interrogatories are harassing and
irrelevant. Defendants also “note[] that the only other litigation to which he has been
a party are those cases (including regulatory matters) filed by Nieman.” Dkt. No. 51
at 46. Defendants’ objections are overruled. Defendants are ordered to fully respond
to Interrogatory Nos. 13 and 14; however, to the extent that the only responsive
information relates to proceedings instituted by Plaintiff, Defendants may stand on
their current responses.
RFP Nos. 34 & 35 and Interrogatory No. 22
Contrary to the undersigned’s prior order requiring the JSR, Plaintiff groups
this RFP and Interrogatory together; therefore, it is difficult to determine exactly what
Plaintiff is seeking for each requests and pursuant to what basis. Defendants re-urge
their objections but offer to provide sworn proof of the amounts paid “to all of his legal
counsel in the various lawsuits filed by Nieman.” Dkt. No. 51 at 48. The undersigned
agrees with Defendants’ objection that the various requests at issue are not relevant.
Plaintiff’s argument in the JSR focuses entirely on issues related to the Illinois Action.
Plaintiff has not demonstrated how Defendants’ costs incurred in the Illinois Action are
relevant to the instant case. Accordingly, Plaintiff’s Motion to Compel as to RFP No.
34 and Interrogatory No. 22 are DENIED. To the extent that Defendants are seeking
damages associated with the costs of this lawsuit, Defendants’ offer to provide sworn
proof of the amounts paid in this action, in addition to their promise to supplement
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their response in their responses and objections, see Dkt. No. 51-4 at 15, is sufficient
at this time.
Interrogatory No. 5
Plaintiff claims that he is entitled to have Defendants back up their affirmative
defenses with “at least some facts,” given that Defendants “have failed to even provide
a legitimate non-discriminatory, non-retaliatory reason for permanently blacklisting
Plaintiff.” Dkt. No. 51 at 49. Defendants stand on their objection that Interrogatory No.
5 is the type of “blockbuster” interrogatory rejected by Grynberg v. Total S.A., Inc., No.
3-cv-1280, 2006 WL 1186836, at *5-*7 (D. Colo. May 3, 2006). The undersigned agrees
with the reasoning in Grynberg. Grynberg states:
Whatever may be said for the virtues of discovery and the liberality of the
federal rules, which perhaps all courts recognize, there comes at some
point a reasonable limit against indiscriminately hurling interrogatories
at every conceivable detail and fact which may relate to a case....
Indiscriminate use of blockbuster interrogatories, such as these, do not
comport with the just, speedy, and inexpensive determination of the
action. To require answers to them would more likely cause delay and
unreasonable expense of time, energy, and perhaps money.
Grynberg, 2006 WL 1186836, at *6. And, as other authorities have advised, “a party
cannot ordinarily be forced to prepare its opponent’s case.” 8B WRIGHT, MILLER &
MARCUS, FED. PRAC. & PROC. § 2174 (3d ed. 2013). Accordingly, Plaintiff’s Motion to
Compel with respect to Interrogatory No. 5 is DENIED.
Interrogatory No. 9
Defendants re-urge their objections that Interrogatory No. 9 is “overly broad,
vague, and confusing.” Dkt. No. 51-3 at 6. Defendants also argue that Interrogatory No.
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9 is a “blockbuster” interrogatory requiring Defendants to “provide a narrative account
of his case.” The undersigned disagrees with Defendants that Interrogatory No. 9
requires a narrative account of their case. Interrogatory No. 9 is clearly relevant, and
Plaintiff is entitled to know about documents that would have been produced had they
not been destroyed. Defendants are not required to make an extensive investigation
in responding to this interrogatory; however, Defendants “should provide relevant facts
reasonably available to [them].” 8B WRIGHT, MILLER & MARCUS, FED. PRAC. & PROC.
§ 2174 (3d ed. 2013). To the extent described herein, Plaintiff’s Motion to Compel with
respect to Interrogatory No. 9 is GRANTED in part and otherwise DENIED.
Interrogatory No. 18
Defendants re-urge their objections, which include that the interrogatory “is
harassing and does not seek relevant evidence,” is duplicative of other interrogatories,
and is a “blockbuster” interrogatory. Defendants also provide a partial answer to the
interrogatory, stating that “the only individuals to participate on Defendants’ behalf
in Plaintiff’s various other litigation or regulatory matters is Keith Hale.” Dkt. No. 51-3
at 10. The undersigned determines that Defendants should also provide an answer as
to “all individuals who were notified of, or provided any information about, the
Plaintiff’s internal or external allegations, complaints, concerns [sic] charges” and how
such communications were made. Defendants’ objections are otherwise sustained as
to Interrogatory No. 18. As such, Plaintiff’s Motion to Compel with respect to
Interrogatory No. 18 is GRANTED in part and DENIED in part.

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Conclusion
As specifically described above, Plaintiffs’ Motion to Compel [Dkt. No 44] is
GRANTED in part and DENIED in part.
For the reasons explained above, Defendants’ Motion for Protective Order [Dkt.
No. 52] is GRANTED in part and DENIED in part to the same extent as the
overlapping issues have been resolved in connection with Plaintiff’s Motion to Compel.
Defendants must produce all additional documents or information and any
privilege log required by this order by January 23, 2014.
In recognition of the deadlines set herein and the impending discovery-related
deadlines, the Court hereby sua sponte extends the following deadlines set forth in its
Initial Scheduling Order [Dkt. No. 34]:
•

All dispositive motions must be filed by March 31, 2014.

•

All discovery must be initiated in time to be completed by February 26, 2014.

•

Any motion to compel discovery or for a protective order must be filed by
February 5, 2014.

•

Any other motions that are related to discovery but do not seek to compel or
avoid as-yet uncompleted depositions, service of discovery responses, or
production of documents or electronically stored information must be filed by
February 26, 2014.

•

A party must file a motion not otherwise covered by the Court’s Initial
Scheduling Order [Dkt. No. 34] by no later than March 31, 2014.

Other than insofar as a deadline has been extended herein, the deadlines, parameters,
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limitations, and requirements set forth in the Court’s Initial Scheduling Order [Dkt.
No. 34] remain in effect.
SO ORDERED.
DATED: December 26, 2013

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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