Pheasantbrook Home Owners Association v. Travelers Casualty Insurance Company of America
Filing
104
MEMORANDUM DECISION AND ORDER denying 47 Motion to Compel. Signed by Magistrate Judge Paul M. Warner on 2/29/16 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
PHEASANTBROOK HOME OWNERS
ASSOCIATION,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
Case No. 1:14-CV-0056-DN-PMW
v.
Chief District Judge David Nuffer
THE TRAVELERS INDEMNITY
COMPANY
Magistrate Judge Paul M. Warner
Defendant.
Chief District Judge David Nuffer referred this case to Magistrate Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is The Travelers Indemnity Company’s
(“Defendant”) motion to compel Pheasantbrook Home Owners Association (“Plaintiff”) to
produce documents related to its fee retention agreements with all of Plaintiff’s counsel.2
BACKGROUND
In February 2015, Defendant received responses to its request for production.3 The
request for production included the request at issue: “Produce the retention agreements with all
counsel representing [Plaintiff] in the current lawsuit.” Plaintiff objected to the request for
1
See docket no. 48.
2
See docket no. 47 at 1, Exhibit No. 1 at 2.
3
See docket no. 47, Exhibit No. 1.
production claiming it “is irrelevant and immaterial to Travelers’ investigation, and not
reasonably calculated to result in admissible evidence.”4
On February 17, 2015, Plaintiff and Defendant filed a joint motion to extend the deadline
for discovery.5 Subsequently, fact discovery was extended to May 11, 2015, and expert
discovery was extended to July 20, 2015. On May 29, 2015, Plaintiff’s expert witness, Joseph
Hoffman, admitted in his expert report that he is not being compensated on an hourly basis, but
his “compensation, if any, will be determined on the sums . . . received from litigation.”6
On July 17, 2015, Plaintiff and Defendant filed a joint motion to extend the deadline for
expert discovery.7 Subsequently, the deadline for expert discovery was extended to September
21, 2015. On January 11, 2016, Defendant filed the motion at hand. Trial is scheduled to begin
on March 14, 2016.
ANALYSIS
Under rule 26(b) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1). Defendant asserts that the retention agreement is “relevant to the credibility of
[Plaintiff’s] expert witness, Joseph Hoffman” because “Hoffman’s construction company . . .
performed” Plaintiff’s repairs at issue in this case.8 However, Defendant’s motion to compel is
4
Id. at 2.
5
See docket no. 18.
6
Docket no. 30, Exhibit No. 16 at 4.
7
See docket no. 25.
8
Docket no. 47 at 2.
2
clearly untimely. Thus, the question for the court is whether the untimely motion was
substantially justified or harmless. See Clark v. Wilkin, No. 2:06-CV-693 TS, 2008 WL
2388634, at *2 (D. Utah June 11, 2008).
This court concludes that Defendant’s untimely motion was not substantially justified
because Defendant knew that Plaintiff objected to providing the retention agreement seven
months before the close of expert discovery. From a review of the docket, it does not appear
Defendant provides any explanation justifying the lateness of its motion.
Defendant’s untimely motion was not harmless because it runs the risk of misleading the
jury and has the potential to cause undue delay. This court has instructed that fee arrangements
have the “tendency to divert the attention and focus of the case, creating a risk of ‘unfair
prejudice, confusion of the issues, or misleading the jury, or [causing] undue delay, [or] waste of
time.’” Adams v. Gateway, Inc., No. 2:02-CV-106-TS, 2005 WL 4705885, at *2 (D. Utah Nov.
2, 2005) (alterations in original). Discovery of retention agreements should be avoided “unless
necessary.” Id. Defendant’s motion does not adequately explain why the retention agreement is
necessary in this case.
Even if the motion was timely, Defendant should have sought after the information
through other means. “Relevant information need not be admissible at trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.
26(b)(1). Defendant seeks fee arrangement regarding Mr. Hoffman’s expert services should
Plaintiff prevail. While details about Mr. Hoffman’s compensation would have been
discoverable during expert discovery, Defendant now asks the court to liberally construe a
production request that was nearly a year old at the time this motion was filed. Furthermore, it
3
does not appear that ordering the production of the retention agreement with counsel is
reasonably calculated to lead to the discovery of the amount of Mr. Hoffman’s compensation.
And, finally, there is nothing in this order that would prohibit counsel from asking about Mr.
Hoffman’s compensation during cross examination.
Based on the foregoing, Defendant’s motion to compel is DENIED.
IT IS SO ORDERED.
DATED this 29th day of February, 2016.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
4
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