Osborn et al v. Brown et al
MEMORANDUM DECISION AND ORDER granting in part and denying in part 65 Motion to Compel re John McCall. Signed by Magistrate Judge Evelyn J. Furse on 4/19/13 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JARED OSBORN and VANESSA OSBORN,
MEMORANDUM DECISION AND
Case No. 2:12-cv-00775-TC-EJF
CHARLES CRAIG BROWN; CC BROWN
District Judge Tena Campbell
LAW, LLC; WILFORD T. LEE; WT LEE &
ASSOCIATES; JOHN MCCALL; CHAD
Magistrate Judge Evelyn J. Furse
GETTEL; KASEY RASMUSSEN; UTAH
LITIGATION COUNSELORS; JL MARTIN
LAW GROUP; CENTURY LAW;
LAW; and DOE DEFENDANTS 1 through 20,
Before the Court is Plaintiffs Jared Osborn and Vanessa Osborn’s Motion to Compel re
Defendant John McCall.1 (ECF No. 65.) The Court finds the meet and confer sufficient under
the circumstances of the dispute. The Court has carefully considered the Motion and
Memoranda submitted for and against Plaintiffs’ Motion and now GRANTS IN PART and
DENIES IN PART that Motion.2
District Judge Tena Campbell referred this case to the undersigned Magistrate Judge
under 28 U.S.C. section 636(b)(1)(A) on December 14, 2012. (ECF No. 42.)
Pursuant to Civil Rule 7-1(f) of the United States District Court for the District of Utah
Rules of Practice, the Court elects to determine the motion on the basis of the written
memoranda and finds oral argument unnecessary.
A. General Objections
Mr. McCall’s first general objection, that he filed a Motion to Stay Discovery, is moot,
given the Court denied the Motion on February 12, 2013. (ECF No. 57.)
Mr. McCall’s second general objection, that Plaintiffs should not have discovery because
he has filed a Motion for Judgment on the Pleadings, is not well-founded, given the pendency of
such a motion does not automatically stay discovery. However, on April 8, 2013, the Court
dismissed the complaint against Mr. McCall with leave to re-plead all but the first two causes of
action. (ECF No. 85.) Rule 26(b)(1) permits parties to “obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).
Because Plaintiffs’ claims against Mr. McCall are not currently part of the case, the Court will
not consider those claims in making its decision. Instead, the Court will consider whether the
discovery sought concerns any nonprivileged matter relevant to any of Plaintiffs’, Charles Craig
Brown’s, CC Brown Law’s, Wilford T. Lee’s, WT Lee and Associates’, Kasey Rasmussen’s,
Utah Litigation Counselors’, JL Martin Law Group’s, Century Law’s, LegalSupportline.com’s,
and Sentry Law’s claims or defenses. If the requested information is relevant to any of these
claims or defenses, the Court will allow the discovery to go forward.
Mr. McCall’s third through eleventh general objections reflect a disapproved “‘practice
of asserting a general objection “to the extent” it may apply to particular requests for
discovery.’” Swackhammer v. Sprint Corp., 225 F.R.D. 658, 660–61 (D. Kan. 2004) (citation
omitted). Accordingly, the Court strikes these objections.
Mr. McCall’s twelfth general objection, that he does not concede relevancy or materiality
by responding to discovery, is not an objection.
Mr. McCall’s thirteenth general objection, that the answers and production “are based on
McCall[‘s] knowledge to date and documents collected by McCall to date,” is not an objection
and attempts to alleviate Mr. McCall of his obligations under the Federal Rules of Civil
Procedure. Upon service with document production requests, a party has thirty days to respond
by written response and production of documents with respect to everything in that party’s
possession, custody, and/or control. Fed. R. Civ. P. 34(a)(1) & (b)(2)(A). If a party needs more
time, it must obtain a stipulation from the requesting party or a court order. Fed. R. Civ. P.
34(b)(2)(A). As Mr. McCall obtained neither, he may not, by way of general objection, extend
his time for response. If Mr. McCall finds documents at a later date, the Rules provide the
method for supplementing discovery and the standard for determining whether a party can
introduce such later produced materials/answers at trial. Fed. R. Civ. P. 26(e) & 37.
B. Requests for Production
Request No. 1 seeks documents referred to in Mr. McCall’s initial disclosures. Mr.
McCall’s obligation to produce documents in response to this request began at the time of the
disclosure. Any objection to this request only delays the case. As Mr. McCall now asserts he
lacks not only possession but also custody and control over the identified documents, he should
identify the document(s) along with a statement of who has them, and state as part of the
interrogatory answer that he lacks possession, custody, or control. Mr. McCall’s objection that
the Plaintiffs already have such documents may be well founded but neither the Plaintiffs nor the
Court know to what documents Mr. McCall refers. Mr. McCall must identify such documents.
Similarly, the Court cannot rule on Mr. McCall’s objection that others have the requested
documents which Plaintiffs can obtain just as easily without further information. The Court
would need to know the burden on Mr. McCall of producing such documents as compared to the
burden on the Plaintiffs. Furthermore, Mr. McCall’s claim that some of the requested documents
fall under the attorney-client or work product privilege makes little sense in the context of this
document request. Mr. McCall’s initial disclosures consist of those documents he “may use to
support [his] claims or defenses.” See Fed. R. Civ. P. 26(a)(1)(A)(ii). Either Mr. McCall has no
intention of using privileged materials in his defense, or he intends to use them and thus has an
obligation to disclose them. The Court strikes this objection. Similarly, Mr. McCall objected to
production of his initial disclosures because he claims they request documents protected under
the Fifth Amendment Privilege. Again, if Mr. McCall intends to use documents in his defense
he must disclose them at the outset of the case. Furthermore, to assert Fifth Amendment
privilege in civil litigation, the claimant must do so with particularity. United States v. Schmidt,
816 F.2d 1477 (10th Cir. 1987); N. River Ins. Co. v. Stefanou, 831 F. 2d 484, 487 (4th Cir. 1987).
Mr. McCall has not done so here. The Court orders Mr. McCall to amend his response to
Request No. 1 to conform to the Court’s ruling.
Request No. 2 seeks all compensation or payment documents made to Mr. McCall or on
his behalf by CC Brown Law, WT Lee & Associates, or other law firm. With the claims against
Mr. McCall personally dismissed, this request is no longer relevant to any of the claims or
defenses as currently pled. The Court denies the Motion to Compel as to Request No. 2.
Request No. 3 seeks the terms of Mr. McCall’s association with CC Brown Law, WT Lee
& Associates, or any other law firm, including his responsibilities. Without the claims against
Mr. McCall personally, the terms of his association and his responsibilities at either CC Brown
Law or WT Lee & Associates remains relevant to the existing claims and defenses. The request
sweeps too broadly when it seeks all such documents from any firm with which Mr. McCall has
associated. With respect to his objections that the request calls for documents not in his
possession, custody, or control, the obtainability of such documents, or the Fifth Amendment
privilege, Mr. McCall must amend his response to Request No. 3 as set forth in Request No. 1.
If such documents receive protection from the attorney-client privilege or work product doctrine,
Mr. McCall must make such claim through a privilege log.
Request No. 4 seeks the identity of every law firm for which Mr. McCall provides
services. With the claims against Mr. McCall personally dismissed, this request is no longer
relevant to any of the claims or defenses as currently pled. The Court denies the Motion to
Compel as to Request No. 4.
Request Nos. 5 and 8 seek documents relating to any U.S. or Utah governmental
investigation of Mr. McCall or CC Brown. As Mr. McCall may be a witness in the case and the
allegations against CC Brown stand, the Court finds these documents relevant to the existing
claims and defenses. In response to Mr. McCall’s claim of over breadth, the Plaintiffs note the
limit on the request to investigations since January 2010. Mr. McCall has offered no basis to
consider the request unduly burdensome. With respect to his objections that the request calls for
documents not in his possession, custody, or control, the obtainability of such documents, or the
Fifth Amendment Privilege, Mr. McCall must amend his response to Request Nos. 5 and 8 as set
forth in Request No. 1. If such documents receive protection from the attorney-client privilege
or work product doctrine, Mr. McCall must make such claim through a privilege log.
Request No. 6 seeks communications relating to the Osborns or this case. Mr. McCall
appears to have withdrawn his objections except those based on his Fifth Amendment Privilege,
the attorney-client privilege or work product doctrine. To claim such privileges Mr. McCall
must invoke the Fifth Amendment as set forth in Request No. 1 and provide a privilege log for
the remainder. Mr. McCall must amend his response to conform with his representations.
Request No. 7 seeks documents identifying every person Mr. McCall has an agreement or
understanding with concerning referral of clients on foreclosure relief or mortgage loan
modification and the terms of compensation. Without the claims against Mr. McCall personally,
the identity of entities Mr. McCall refers clients to and the compensation for those referrals
exceeds the scope of relevance for the pending case. However, the identity of entities Mr.
McCall refers clients to and the compensation for those referrals while associated with either CC
Brown Law or WT Lee & Associates or on behalf of either CC Brown Law or WT Lee &
Associates remains relevant to the existing claims and defenses as it may lead to discoverable
evidence concerning the RICO claims.
Request No. 9 seeks advertisements or solicitations on Mr. McCall’s behalf. Mr. McCall
appears to have withdrawn his objections except the one based on over breadth regarding entities
beyond CC Brown Law. Without the claims against Mr. McCall personally, only advertisements
or solicitations on his behalf by or for either CC Brown Law or WT Lee & Associates remain
relevant to the existing claims and defenses. Mr. McCall must amend his response to conform
with his representations.
Request Nos. 10 and 14 seek all documents concerning CC Brown Law, WT Lee, WT
Lee & Associates, Utah Litigation Center, or Chad Gettel. Because the Court also dismissed the
claims against Mr. Gettel, the Court finds the document request to him, in his individual
capacity, not relevant to any of the claims or defenses currently pled. The Court also finds that
the request for all documents concerning the named entities sweeps too broadly. The mere
assertion of a RICO claim does not make every document related to an alleged co-conspirator
relevant. Any attempt by the Court to narrow this request to relevant documents results in a
request duplicative of other requests already set forth. The Court will permit the Plaintiffs to
withdraw and reformulate this request.
Request No. 11 seeks documents identifying the employees of CC Brown Law. Mr.
McCall appears to have withdrawn his objections except over breadth and unduly burdensome.
Mr. McCall undercut his claim, however, by asserting he has not located any responsive
documents. If he cannot locate any such documents the request cannot be unduly burdensome.
As to over breadth, the Court disagrees; the identities of employees of CC Brown Law are
relevant because the people working for CC Brown Law may have information that could lead to
the discovery of admissible evidence. Mr. McCall must amend his response to conform with his
Request No. 12 seeks documents identifying the clients of CC Brown Law. The Court
finds the objection based on attorney-client privilege well-founded at this time. Mr. McCall’s
knowledge of CC Brown Law’s clients would appear to derive from privileged interactions. If
Mr. McCall did find any relevant documents to this request he should provide a privilege log, but
that log should not reveal client identities. Furthermore, the request seems overbroad to the
extent it seeks the identities of clients unrelated to mortgage and foreclosure services.
Request No. 13 seeks training and employee manuals for any law firm with which Mr.
McCall has associated himself. Without the claims against Mr. McCall personally, the manuals
of all entities with which Mr. McCall has associated exceed the scope of relevance for the
pending case. However, the manuals of CC Brown Law or WT Lee & Associates remain
relevant to the existing claims and defenses. To the extent Mr. McCall wishes to claim the Fifth
Amendment privilege with respect to the requested documents, he must do so with particularity,
as set forth in Request No. 1. Mr. McCall’s opposition appears to have abandoned his other
The Court GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion to Compel
(ECF No. 65). The Court ORDERS Mr. McCall to produce all responsive documents
immediately, along with amended responses, and a privilege log.
DATED this 19th day of April, 2013.
BY THE COURT:
Evelyn J. Furse
United States Magistrate Judge
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