United Automobile Insurance v. Stucki & Rencher et al

Filing 96

MEMORANDUM DECISION AND ORDER Granting and Denying Defendants' Motions to Compel: 1) Defendants' 73 Motion to Compel Discovery Responses Per the Courts Order and an Order to Show Cause is GRANTED IN PART AND DENIED IN PART as set forth. 2) Defendants' 77 Motion to Compel Full and Complete Responses to Discovery Requests is GRANTED. 3) Defendants' 78 Motion to Compel Supplemental Responses to Discovery Based on UAIC's Deposition Testimony is DENIED. 4) Defendants 79 Motion concerning Richard Parrillo is GRANTED. 5) Attorney fees are GRANTED IN PART as set forth above. 6) All discovery that is part of this order is to be provided within thirty (30) days from the date of this order unless ordered otherwise. Signed by Magistrate Judge Brooke C. Wells on 5/13/19. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UNITED AUTOMOBILE INSURANCE
COMPANY,

MEMORANDUM DECISION AND
ORDER GRANTING AND DENYING
DEFENDANTS’ MOTIONS TO COMPEL

Plaintiff,
v.

Case No. 2:15-cv-834 RJS

STUCKI & RENCHER, LLC; MICHAEL J.
COLLINS

District Judge Robert J. Shelby
Magistrate Judge Brooke Wells

Defendants.

This matter is referred to the undersigned in accordance with 28 U.S.C. 636 (b)(1)(A)
from Judge Robert Shelby. 1 Pending before the court are four motions. 2 The court has
considered the facts and arguments contained in the briefing submitted by the parties. Pursuant
to Local 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 that oral argument would not be helpful or necessary. 3 The Court addresses each of the
motions below.
BACKGROUND
As noted previously, this case is a malpractice action brought by Plaintiff against
Defendants. The facts giving rise to the dispute come from an underlying lawsuit, where
following trial, Plaintiff’s insured was found at fault and a jury awarded a judgment against the

1

Docket no. 16.

2

ECF No. 73, ECF No. 77, ECF No. 78, ECF No. 79.

3

DUCivR 7-4(f).

insured for $936,017.00. 4 United Automobile Insurance Company (UAIC) settled the judgment
and discharged it on behalf of their insured for over $700,000. UAIC also paid the fees and
reimbursed Defendants for the costs associated in bringing the defense in the underlying action. 5
Subsequently, Plaintiff filed the instant case against Mr. Collins and the law firm of Stucki &
Rencher alleging professional negligence/malpractice, negligence, equitable subrogation and
breaches of certain duties and contract. 6
Relevant to the instant motions are two prior orders from the Court. First, on October 2,
2017, the Court granted in part and denied in part four motions for discovery filed by Defendants
that sought responses to certain interrogatories, production of documents and answers to requests
for admission (the October 2nd Order). The Court modified some of the discovery requests
finding them overbroad and permitted others, ordering Plaintiff to answer them. 7 In addition, the
Court denied without prejudice Plaintiff’s motion to quash a subpoena issued to Richard Parillo,
the Chief Executive Officer and Chairman of the Board for Plaintiff. Defendants sought Mr.
Parillo’s deposition and the Court was not convinced his deposition was warranted at that time. 8
Also of note in this discovery order, the Court ordered Plaintiff to “provide affidavits outlining
the details of the searches including the methods used” in a search for policies and manuals
within UAIC. 9
The next order also concerned Mr. Parillo’s deposition (February 23rd Order). This time,
however, Defendants filed a motion to compel Mr. Parrillo’s deposition. The Court considered

4

Complaint p. 3-4, docket no. 2.

5

Id. p. 4.

6

See id. p. 5-44.

7

For details see the Court’s prior order, ECF No. 58 p. 3-9.

8

ECF No. 58, p. 9-11.

9

ECF No. 58, p. 2.

2

the apex doctrine as set forth in two cases from this circuit and denied the motion. 10 The Court
found that Defendants failed to show Mr. Parillo had any unique personal knowledge of the
events in this case or that the information sought by Defendants could not be obtained from other
witnesses. 11 The Court permitted Defendants to renew their motion at a future date.
Now, once again, Defendants bring a series of discovery motions, including another
motion concerning the deposition of Mr. Parrillo.
DISCUSSION
As set forth in the prior order, Federal Rule of Civil Procedure 26 governs Defendants
discovery motions. Rule 26(b) provides in relevant part that
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.” 12
The court turns to each of the motions.
I.

Defendants’ Motion to Compel Discovery Responses Per the Court’s Order and an
Order to Show Cause 13
Defendants seek compliance from UAIC concerning the Court’s October 2nd Order.

Specifically, Defendants cite to a lack of responses to certain interrogatories and requests for
production of documents that allegedly have not been produced. In response, UAIC asserts that

10
See Asarco LLC v. Noranda Min., Inc., No. 2:12-CV-00527, 2015 WL 1924882, at *3 (D. Utah Apr. 28, 2015);
Naylor Farms v. Anadarko OGC Co., 2011 WL 2535067, *1 (D. Colo. June 27, 2011).
11

ECF No. 61, p. 2-3.

12

Fed. R. Civ. P. 26(b).

13

ECF No. 73.

3

these documents “do not exist” or they are being produced. 14 The Court looks at each category
specifically.
A. Request for Production 2, 6, 7 and 13, and Paul Susz’s claims file including emails
with Sandra Covolo, Jan Cook and Collins
UAIC claims it has produced all of the responsive documents to these discovery requests,
but according to Defendants, “it has refused to identify which documents contain the requested
information and there are no documents that appear to be responsive.” 15 Mr. Susz is Plaintiff’s
General Counsel. During his deposition, he testified that only after the adverse judgment was
entered did he review the claims file from the underlying action and have email communications
concerning the matter. Plaintiff states that it has only one claims file for the underlying action,
which has been produced. Defendants complain, however, that UAIC has failed to complete a
privilege log regarding documents in Mr. Susz’s file it is withholding. UAIC asserts the
“identity of the specific documents in that file is privileged attorney work product.” 16
The work product doctrine, as first articulated by the Supreme Court in Hickman v.
Taylor, 17 is codified in F.R.C.P. 26(b)(3). 18 It is designed to balance the demands of the
adversary system by preserving the privacy of an attorney’s preparations for trial while still
allowing discovery by the opposing party. In order for materials to be protected under the
doctrine, they must be “prepared in anticipation of litigation or for trial . . . .” 19 Materials
prepared with mixed purposes, such as a litigation and business purpose, are protected only if

14

Op. p. 1, ECF No. 85.

15

Mtn. p. 2, ECF No. 73.

16

Op. p. 3.

17

329 U.S. 495, 500, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947).

18

See Fed. R. Civ. P. 26(b)(3).

19

Id.

4

“the primary motivating purpose behind the creation of the [materials was] to assist in pending or
impending litigation.” 20 Under Rule 26(b)(3) work product includes documents and “tangible
things” prepared in anticipation of litigation or trial by a party or its representatives including a
“consultant, surety, indemnitor, insurer, or agent. . . .” 21 But, if these representatives are
collecting or compiling information that existed in the regular course of business, protections
under the work product doctrine are questionable. 22 The party resisting discovery on grounds of
privilege or the work product doctrine bears the burden of coming forward with facts that sustain
their claim. 23
Under these principles, the Court is not persuaded that the identity of documents in Mr.
Susz’s file are privileged attorney work product. Instead, it his highly likely that they are the
collecting or compiling of information that existed in the regular course of business. Perhaps
specific content may be privileged, but not their general identity. And, without a privilege log,
neither Defendants or the Court can make a determination regarding privilege. UAIC argues that
it has “not withheld any documents that Susz kept in his file for the underlying action.” 24 Even
if this is true, the Court will still require UAIC to file a privilege log concerning all documents
that are subject to these Requests for Production, including Mr. Susz’s emails with Sandra
Covolo, Jan Cook and Collins. This privilege log is ORDERED to be filed within five business
days from the date of this order.

20

United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp.Emer.Ct.App. 1985).

21

Fed. R. Civ. P. 26(b)(3).

22

See Gulf Oil Corp., 760 F.2d 292.

23
See Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (“A party seeking to assert [a]
privilege must make a clear showing that it applies. Failure to do so is not excused because the document is later
shown to be one which would have been privileged if a timely showing had been made.... The applicability of the
privilege turns on the adequacy and timeliness of the showing as well as on the nature of the document.”); S.E.C. v.
Nacchio, 2007 WL 219966, *4 (D.Colo.2007).
24

Op. p. 3.

5

B. Interrogatories 9 and Request for Production 1, 2, 6, 7, and 13 including payment
report, billing records and summary, and any communication with Impact General
Once again, UAIC claims it has produced all responsive documents, but UAIC has
refused to identify which documents are responsive to the requests. In addition, Defendants
complain that UAIC has failed to produce any documents concerning communications with
Impact General. Impact General is an outside accident reconstruction firm that performed work
in the underlying action. Plaintiff argues any communications it had with Impact General would
be in the claims file that was already produced. Moreover, Impact General responded to
Defendants’ subpoena by producing all the documents it had in its file regarding the underlying
case.
The Court is not convinced that UAIC has fully complied with these requests. UAIC
cannot solely rely on a third party subpoena to meet its discovery obligations. 25 Based on
Defendants representations about the testimony of an employee from Impact General, Lyle
Persch, who testified about emails he sent UAIC, it appears there is still some missing
information with regard to these requests. Defendants are entitled to a more thorough search and
attempt to comply than what it appears UAIC has made to date. The Court ORDERS
supplemental responses to these requests.
C. Interrogatory 7 and Request for Production 6, 7 and 13 including UAIC’s email
communications regarding limits demand, demand for $30,000 and settlement
recommendations
According to Defendants, UAIC has “produced virtually no email correspondence from
any employee.” In the October 2nd Order, the Court ordered Plaintiff “to provide affidavits

25

See In re Independent Service Organizations Antitrust Litigation, 168 F.R.D. 651, 653 (D.Kan.1996) (party
cannot meet its discovery obligations by “sticking its head in the sand and refusing to look for the answer and then
saying it does not know the answer;” a corporation must speak to those employees who may have responsive
information).

6

outlining the details of the searches including the methods used.” 26 This was to include
affidavits about searches made for the alleged missing emails Defendants claim are available, but
yet to be produced. Defendant argues the sworn affidavits have not been produced. Instead,
Plaintiff points to official deposition testimony. Plaintiff claims it searched the entire universe of
email files regarding the underlying action. 27 And, Plaintiff provided 30(b)(6) deposition
witnesses who testified about the searches. Such efforts, according to Plaintiff, should be
sufficient.
Although the Court acknowledges UAIC’s efforts, there continues to be a
misunderstanding. UAIC is to provide written sworn affidavits about its search methods and
results. While 30(b)(6) deposition testimony is helpful, affidavits must still be provided in
accordance with the Court’s prior order. Of note, is Plaintiff’s representation that it “has just
learned” that certain case files are “not complete.” 28 Items from these files, including emails,
will shortly be produced, or listed in an amended privilege log. Such missing information is
support for the continued need for sworn written affidavits from UAIC regarding its searches
including the methods used. These affidavits are to be provided within fourteen (14) days from
the date of this order.
D. Post-verdict information
Post-verdict information was not part of the October 2nd Order and the Court made no
ruling on such information. Notwithstanding a lack of any ruling, under the broad discovery
standards before trial, it seems such information would be relevant or lead to relevant

26

October 2, 2017 Order p. 2, ECF No. 58.

27

Op. p. 4.

28

Op p. 4.

7

information as long as it was proportional to the needs of this case. 29 The Court makes no ruling
on this requested category of information, but ORDERS the parties to use their best efforts in
resolving any disputes concerning such discovery requests.
E. Other requested documents including a current copy of UAIC’s claims file and
billing information
As noted by the parties, it is nearly unbelievable that information such as this does not
exist. At this time the Court is not going to question UAIC’s record keeping practices as strange
as they may seem. However, UAIC is to provide a sworn written affidavit regarding this
information that everything has been produced as claimed, and if it does not have certain
information, such as billing information, then that it does not exist. UAIC is ORDERED to
provide an overview of its record keeping procedures as part of this affidavit.
F. A litigation log and record of consumer complaints, including investigations made
by the Utah department of Insurance Defense
Defendants have sought information regarding litigation that UAIC has been involved in
and a record of consumer complaints. Other litigation information was part of the Court’s
October 2nd Order. As such it is to be produced. Testimony from a 30(b)(6) witness indicating
he was not prepared to testify about such information, but that it could be “easily complied by
looking at UAIC’s litigation log” does not satisfy the Court’s order. UAIC is ORDERED to
respond to Interrogatories 1, 10 and Response for Production 1 as set forth in the Court’s prior
order.
In similar fashion, consumer complaints were also part of the Court’s prior October 2nd
Order. For example, the Court ordered UAIC to answer Request for Production 19 and 20. 30

29

As noted by Defendants, the Court has already set forth what it deems to be the relevant time period for discovery
requests. Post-verdict information fits within that time frame.
30

October 2, 2017 Order p. 8.

8

UAIC is to comply with the Court’s prior order and provide information regarding consumer
complaints including investigations made by the Utah Department of Insurance Defense.
II.

Defendants’ Motion to Compel Full and Complete Responses to Discovery
Requests 31
In this motion, Defendants seek responses to certain Interrogatories. Rather than

answering the Interrogatories directly, UAIC cited to “hundreds of pages of its officers’
deposition testimony.” 32 Defendants argue this “massive designation” does not comply with
Rule 33’s requirement that each “interrogatory must, … be answered separately and fully in
writing under oath.” 33 Defendants assert UAIC’s answers are prejudicial and non-responsive.
In contrast, UAIC argues its answers were proper. Defendants simply seek “information
in the interrogatory responses so they won’t have to look at the referenced testimony.” 34 UAIC
points to Moore’s Federal Practice which states:
[T]he incorporation of outside material by reference in responses to
interrogatories is evaluated on a case-by-case basis, and, as one district court has
held, the judge has discretion to find such a response acceptable. Thus, it may be
acceptable for a response to an interrogatory to refer to answers to other
interrogatories or other discovery in order to avoid unnecessary repetition, but the
referral must be clear and precise. 35
Further the cases cited to by Defendants are inapplicable because they did not require an order by
the court for a responding party to provide sworn testimony regarding document searches.
The Court is persuaded that the answers here, which designate numerous pages of
deposition testimony, are not responsive or within the intent of the Rules. Even Moore’s Federal

31

ECF No. 77.

32

Mtn. p. 2, ECF No. 77.

33

Fed. R. Civ. P. 33(b)(3) (2018).

34

Op. p. 3.

35

7 Moore’s Federal Practice § 33.103 (Matthew Bender 3d ed.).

9

Practice cited to by UAIC states in part that the “referral must be clear and precise.” 36 Moreover,
the fact that the Court required UAIC to provide sworn affidavits regarding its searches does not
sufficiently distinguish this case from those cited to by Defendants. “Incorporation by reference
to a deposition is not a responsive answer” 37 especially when it includes numerous pages. As
such, the Court ORDERS UAIC to answer these Interrogatories “separately and fully in writing
under oath.” 38
III.

Defendants’ Motion to Compel Supplemental Responses to Discovery Based on
UAIC’s Deposition Testimony39
Defendants move to compel UAIC to “supplement interrogatories and requests for

production of documents (RFP) with documents identified by UAIC’s representatives at its
deposition.” 40 According to Defendants, UAIC’s witnesses often identified documents
responsive to discovery requests during their depositions that have not been produced.
Specifically, Defendants move for the following information:
1. Int. 18: Report summarizing all department of insurance complaints made
against UAIC.2
2. RFP. 6, 7, and 13: All files related to the property damage claim for Joanne
Cooper.
3. Int. 7, RFP. 1, 2, 6, and 13: Identification of actuary used in 2011-2014 and
any communications with the actuary related to the underlying claim.
4. Int. 7, RFP. 1, 2, 6, 7, and 13: Any monthly reports made to Sandra Covolo
about the underlying claim.

36

7 Moore’s Federal Practice § 33.103

37

Cont'l Illinois Nat. Bank & Tr. Co. of Chicago v. Caton, 136 F.R.D. 682, 686 (D. Kan. 1991); see also Starlight
Int’l Inc. v. Herlihy, 186 F.R.D. 626, 640 (D. Kan. 1999) (noting that a “party may not properly answer an
interrogatory by referring generically to testimony given upon deposition”).

38

Fed. R. Civ. P. 33(b)(3) (2018).

39

ECF No. 78.

40

Mtn. p. 1, ECF No. 78.

10

5. RFP 21: UAIC’s billing guidelines and the timeframe during which they
were in place.
6. Int. 12 and RFP 1 and 23: Sandra Covolo’s vacation dates in 2013-2014.
7. Int. 7 and RFP 6: Engagement letter with Scott Savage.
8. Int. 28 & RFP 19: UAIC market conduct and financial examinations,
including without limitation the entire files related to such examinations in
Utah. 41
In response, UAIC provides that its 30(b)(6) witness, Covolo testified that she
“believed Plaintiff maintained a computer log of reports of department of insurance
complaints against it and Plaintiff agreed to produce a printout of that log if it could be
located.” 42 UAIC notes it has located the log and is producing a printout of it.
Next, the Cooper property damage claim file has been produced. As to item 3,
UAIC states that it has produced all “non-privileged communications regarding the
underlying claim and none of those communications were with its outside actuary firm” 43
Defendant has not convinced the Court that UAIC did not comply with both these
obligations. As such the requests for this discovery is DENIED.
UAIC claims it has no monthly reports made to Covolo. Next, UAIC looked for
billing guidelines, as Covolo testified that she believed at one time they existed. None
were found and UAIC states it has “no such billing guidelines to produce.” 44
As to item number 6, vacation dates for Covolo, UAIC states that “the supervisor
on vacation at that time was Cook, the claim adjuster’s immediate supervisor, and not

41

Id. p. 2-3.

42

Op. p. 1, ECF No. 86.

43

Id. p. 2.

44

Id.

11

Covolo, to whom Cook reported.” The vacation information for Cook has been provided
and the Court agrees there is nothing in Defendants’ motion to persuade the Court that
Covolo’s vacation time is also needed. Number 6 is satisfied. Savage is Plaintiff’s
counsel in this action and Defendants request the engagement letter with him. The Court
questions the relevance of this letter to the dispute and in any event, such a letter is likely
privileged. If UAIC seeks to claim it as privileged it should be listed on a privilege log.
Finally, as to item 8, UAIC notes that it has produced all market conduct
investigations that it was able to locate. Plaintiff agreed to conduct an additional search
and did locate an additional report that is being produced. Defendants seek an order
making UAIC’s 30(b)(6) witnesses available to depose “regarding any documents or
information provided.” The Court is not convinced that such additional deposition
testimony is needed as testimony has already been given regarding documents. This
request is DENIED.
Accordingly, as to this motion the Court will DENY Defendants’ requests. Much
of the information has been sought for and not found, and that which has been found is
being produced or need not be produced due to a privilege.
IV.

Defendants’ Motion Regarding Richard Parrillo 45
Defendants move the Court for an order prohibiting UAIC from calling its Chief

Executive Officer, Richard Parillo, as a witness, or in the alternative to compel his deposition.
Based on UAIC’s prior assertions that he has no unique personal knowledge, which this Court
has considered in not permitting his deposition thus far, 46 Defendants “agreed not to depose

45

ECF No. 79.

46

See October 2, 2017 Order, ECF No. 58; February 23, 2018 Order, ECF No. 61.

12

Parillo only if UAIC is barred from calling Parillo for any purpose.” 47 If he is going to testify
Defendants seek his deposition and raise essentially the same arguments brought previously.
Defendants, however, do raise a new argument, this Court should reject the Apex doctrine
because no Tenth Circuit opinion adopts the doctrine. In support Defendants point to a case
from this district First American Title Ins. Co. v. Northwest Title Insurance Agency LLC 48 in
addition to other case law. 49
In First American, Magistrate Judge Warner declined to apply the apex doctrine to a
protective order seeking to preclude the deposition of a CEO. Instead, Magistrate Judge Warner
utilized the same Rule 26(c) standards as applicable to any other witness and noted that the
“Tenth Circuit has not adopted the apex doctrine.” 50 As noted in this Court’s prior decisions,
however, there are other cases from the Tenth Circuit, including one from this district, 51 and
another from the District of Colorado, 52 that have applied the apex doctrine. Thus, without any
precedent from the Tenth Circuit Court of Appeals on the apex doctrine, whether the apex
doctrine is applicable in the Tenth Circuit appears to be an open question. In any event, many of
the factors considered in an apex doctrine analysis overlap with a Rule 26(c) analysis. Under

47

Mtn. p. 2, ECF No. 79.

48

2016 U.S. Dist. LEXIS 62526 (D. Utah May 11, 2016).

49
The Court find these authorities unpersuasive. For example, in Horsewood v. Kids “R” Us, 1998 WL 526589, *4
(D. Kan. August 13, 1998), the court considered the length of a continued deposition, a request to limit it to six
hours and a motion to quash the deposition of the vice president over human resources. The court did not analyze the
Apex Doctrine. Similarly, in Pepsi-Cola Bottling Co of Pittsburgh, Inc. v. Pepsico, Inc., 2002 WL 922082, *3 (D.
Kan. May 2, 2002), the court did not explicitly consider the Apex Doctrine and importantly, that court found the
proposed deponents who were executives, both possessed knowledge regarding the project at issue. Here, the Court
has not found that Parillo possessed similar knowledge of the events at issue in the underlying action.
50

First Am. 2016 U.S. Dist. LEXIS 62526 at *2; see also Certain Underwriters at Lloyd’s London v. Garmin Int’l,
Inc., 2012 U.S. Dist. LEXIS 126631, 2012 WL 3879885, at *3 (D. Kan. Sept. 6, 2012) (“This Court finds no Tenth
Circuit opinion that adopts the [apex] doctrine”).
51

See Asarco LLC v. Noranda Min. Inc. 2015 WL 1924882 (D. Utah Apr. 28, 2015).

52
See Naylor Farms, Inc. v. Anadarko OGC Co., 2011 U.S. Dist. LEXIS 68940, 2011 WL 2535067 (D. Colo. June
27, 2011).

13

Rule 26(c)(1) a court “may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” 53 Under an apex doctrine
analysis, a court may consider the burden of attending a deposition and whether such attendance
is a hardship or the oppression created on the deponent and company. 54 And, even in the case
from this district cited to by Defendants where the court declined to apply the apex doctrine and
instead used a Rule 26(c) analysis, the court considered the knowledge of the deponent, which is
also a consideration under the apex doctrine. 55 Finally, under either type of an analysis, it is
clear the party seeking to resist discovery bears the burden to “show specific and particular
factors why discovery should be limited.” 56 It is this burden, and Plaintiff’s contradictory
argument, that in the Court’s opinion, shifts the tide toward Defendants request.
In resisting Defendants motion, Plaintiff contends that Defendants still do not show a
need to depose Parrillo arguing he has no unique knowledge and this Court has already rejected
attempts to depose him twice. Plaintiff is wrong as to its last argument. This Court left open the
possibility of deposing Parrillo in its prior orders. And now, the Court is concerned that Plaintiff
is taking the position that Parrillo has no unique personal knowledge about the underlying case
precluding his deposition, but if needed, Plaintiff may call him at trial as a rebuttal witness,
presumably because he has relevant information. These arguments are “inconsistent with the
fundamental precept of Anglo–American jurisprudence that you cannot have your cake and eat

53

Fed. R. Civ. P. 26(c)(1).

54

See Asarco, 2015 WL 1924882 at *3.

55

See First Am. 2016 U.S. Dist. LEXIS 62526 at *2-*3.

56

digEcor, Inc. v. e.Digital Corp., 2008 U.S. Dist. LEXIS 69931, 2008 WL 4335544, at *2 (D. Utah Sept. 16,
2008); see Naylor Farms, 2011 U.S. Dist. LEXIS 68940, *7, 2011 WL 2535067 (“To avoid any doctrinal confusion,
the Court now unequivocally adopts the burden shifting scheme set forth above and holds that the ultimate burden of
persuasion lies with the executive invoking the apex doctrine.”).

14

it, too:” 57 Plaintiff cannot simultaneously seek to shield Parrillo from a deposition because he
has no unique knowledge, while holding him in reserve as a rebuttal witness based on his
knowledge. Under either Rule 26(c) or the apex doctrine such contradictory positions would not
be permitted. Moreover, UAIC’s argument undermines the burden Plaintiff has to resist the
requested discovery. Thus, the Court will grant Defendants motion to either depose Parrillo or
have Plaintiff agree not to call him at trial. Such a decision is not a sanction as alleged by
Plaintiff. Rather, it is simply the application of a fundamental principle of fairness that furthers
the interests of justice by minimizing surprise at trial. 58 Accordingly, Defendants motion is
GRANTED.
V.

Defendants’ Request for Attorney Fees
As part of the motions brought by Defendants, Defendants seek an award of attorney

fees. 59 The beginning point for determining whether Defendants are entitled to reasonable
expenses, including reasonable attorney fees, in obtaining this order, is Federal Rule of Civil
Procedure 37(a)(5). Federal Rule of Civil Procedure 37(a)(5) provides in relevant part that:
If the motion [to compel] is granted--or if the disclosure or requested discovery is
provided after the motion was filed--the court must, after giving an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including attorney's fees. 60

57

I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 1191 (D.C. Cir. 2003).

58

See e.g., United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988) (noting that the charges must be defined
with “sufficient precision” to allow a defendant to prepare his defense and to “minimize surprise at trial”); Klesch &
Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 523 (D. Colo. 2003) (“[D]iscovery procedures in the Federal Rules
of Civil Procedures seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging
discovery of information.”).
59

See ECF No. 73 p. 8, ECF No. 77 p. 4 and ECF No. 78 p. 3.

60

Fed. R. Civ. P. 37(a)(5)(A).

15

If, however, the “opposing party’s nondisclosure, response, or objection was substantially
justified” or “other circumstances make an award of expenses unjust” then the court “must not
order” such a payment. 61
Here, the Court grants Defendants’ Motion to Compel Discovery Responses Per the
Court’s Order 62 ordering the production of a privilege log, supplemental responses, affidavits
and other discovery. Although the Court declined to order post-verdict information as part of
this motion, the Court finds UAIC was not substantially justified in failing to adequately comply
with the Court’s prior order in its responses. As such, the Court will grant the request for
attorney fees as to this motion in part. Defendants are to submit an affidavit of attorney fees for
this motion excluding the work put into any requests for post-verdict discovery.
Next, the Court also granted Defendants’ Motion to Compel Full and Complete
Responses to Discovery Requests 63 finding citations to numerous pages of depositions improper
and against Plaintiff’s own citation to Moore’s Federal Practice. Accordingly, attorney fees are
granted as to this motion. Defendants are to submit the necessary affidavit of attorney fees.
Finally, the Court denied Defendants’ Motion to Compel Supplemental Responses to
Discovery Based on UAIC’s Deposition Testimony 64 because much of the discovery either has
been produced or is simply not available. No attorney fees are awarded as to this motion. 65

61

Id. at 37(a)(5)(A)(ii) & (A)(iii).

62

ECF No. 73.

63

ECF No. 77.

64

ECF No. 78.

65

Defendants made no request for attorney fees in its motion regarding the deposition of Parrillo.

16

CONCLUSION AND ORDER
For the reasons set forth above the Court HEREBY ORDERS as follows:
1. Defendants’ Motion to Compel Discovery Responses Per the Court’s Order and an
Order to Show Cause is GRANTED IN PART AND DENIED IN PART as set forth
above. 66
2. Defendants’ Motion to Compel Full and Complete Responses to Discovery Requests
is GRANTED. 67
3. Defendants’ Motion to Compel Supplemental Responses to Discovery Based on
UAIC’s Deposition Testimony is DENIED. 68
4. Defendants Motion concerning Richard Parrillo is GRANTED. 69
5. Attorney fees are GRANTED IN PART as set forth above.
6. All discovery that is part of this order is to be provided within thirty (30) days from
the date of this order unless ordered otherwise.
IT IS SO ORDERED.

DATED this 13 May 2019.

Brooke C. Wells
United States Magistrate Judge

66

ECF No. 73.

67

ECF No. 77.

68

ECF No. 78.

69

ECF No. 79.

17