ClearOne v. RSM US LLP
MEMORANDUM DECISION AND ORDER denying 43 Motion for Short Term Discovery re: Interrogatories 12 and Requests for Production 1011; denying 44 Motion for Short Term Discovery re: RSM Hong Kong. Signed by Magistrate Judge Dustin B. Pead on 12/15/17 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CLEARONE, INC., an Utah Corporation,
MEMORANDUM DECISION AND ORDER
DENYING PLAINTIFF’S SHORT-FORM
Case No. 2:16-cv-00736-DN-DBP
RSM US LLP, an Iowa limited liability
District Judge David Nuffer
Magistrate Judge Dustin B. Pead
This matter was referred to the court under 28 U.S.C. § 636(b)(1)(A). (ECF No. 42.) The
Complaint alleges accounting malpractice, breach of contract, and equitable claims for relief.
(See ECF No. 29.) Plaintiff ClearOne, Inc. (“ClearOne”), filed two short-form discovery
motions. The first, filed October 26, sought to compel information about Defendant RSM US,
LLP’s (“RSM”), prior conduct evidencing a lack or failure of conflict controls regarding other
clients. (ECF No. 43). The second motion, filed October 27, seeks to compel information from
RSM’s affiliate in Hong Kong. (ECF No. 44). RSM responded to both motions and requested an
opportunity to further brief the issues. (ECF Nos. 45–46). The court ordered additional briefing
on the October 26 motion from both parties, which they provided. (ECF No. 51; see ECF Nos.
53, 55). The court also ordered RSM to provide a supporting declaration for its response to the
October 27 motion; RSM complied. (ECF No. 52; see ECF No. 54). The court appreciates the
parties’ thoughtful briefing on the issue. The court did not hear oral argument.
October 26 motion regarding internal controls
a. Parties’ arguments
ClearOne’s motion seeks to compel responses to interrogatories and requests for
production of documents related to any instances during the last six years in which RSM
discovered its independence was impaired or that a client or regulator alleged it was impaired.
(ECF No. 43.) ClearOne contends the information is probative of whether RSM acted
negligently in discovering the disqualifying conflict in this case and the extent of RSM’s
negligence. (Id.) ClearOne also believes the items requested may establish RSM’s routine
practice as described in Federal Rule of Evidence 406. (Id.)
RSM contends the discovery sought is not relevant to whether RSM acted negligently in
its dealings with ClearOne. (ECF No. 45). RSM also argues the information sought would be
inadmissible even under Rule 406. (Id.) Finally, RSM suggests the discovery is disproportionate
to the needs of this case, particularly in light of the impact on third-party confidentiality. (Id.)
b. ClearOne’s October 26 motion seeking information about a lack or failure of
controls regarding RSM’s other clients will be denied because the request
falls outside the permissible scope of discovery. 1
The information sought is not sufficiently relevant or proportional to warrant discovery.
The court must limit the extent of discovery when the material sought is privileged, or it is not
“relevant to a party’s claim or defense and proportional to the needs of a case . . . .” Fed. R. Civ.
P. 26(b)(1) & (b)(2)(C)(iii). Neither party cites to any binding authority addressing the relevance
of the materials at issue. RSM cites a number of persuasive authorities that suggest the audit
In its reply, ClearOne abandons its Rule 406 argument as a basis for its motion to compel. (ECF
No. 55 at 12 n.4). Accordingly, the court does not address it.
materials of one client are not relevant to questions about audits performed for another client.
See, e.g., Colonial BancGroup Inc. v. PriceWaterhouseCoopers LLP, No. 2:11-CV-746, 2015
WL 13604390, at *2–3 (M.D. Ala. Dec. 4, 2015) (concluding the relevance of information
related to clients other than plaintiff “tenuous at best”). ClearOne has not identified a case in
which a court granted discovery under the circumstances presented here. 2 The court is not
otherwise aware of a case that favors ClearOne’s position. Accordingly, the court will evaluate
ClearOne’s motion based on the plain language of Rule 26, exercising its broad discretion.
S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010). The court
considers the cases RSM cites only for their persuasive value.
Here, the court finds the discovery sought is not relevant to this matter. Alternatively, to
the extent the material sought has marginal relevance, it is disproportionate to the needs of this
case. ClearOne asserts the discovery is relevant to whether RSM’s internal controls meet the
requisite duty of care, whether RSM acted reasonably under the circumstances, and the
timeliness of RSM’s discovery of independence issues. (ECF No. 55 at 5–6). Yet the proposed
discovery does not seek information about any of these issues as they relate to ClearOne. Instead,
ClearOne seeks to discover failures and negligence affecting third parties. Yet RSM’s negligence
affecting a separate client does not make it any more or less likely that RSM met any duty of
care ClearOne describes, acted reasonably, or acted timely under the circumstances in this case.
ClearOne never explains how the proposed discovery bears on the likelihood of these issues.
The case most in ClearOne favor involved a peculiar circumstance that arise during expert
discovery. See Williamson v. PricewaterhouseCoopers, No. 602106/2004, 2007 WL 7113002
(N.Y. Sup. Feb. 21, 2007). Yet even ClearOne acknowledges that court initially denied discovery.
See Williamson v. PricewaterhouseCoopers, 2006 WL 6544389 (N.Y. Sup. Nov. 13, 2006).
ClearOne suggests that RSM acted willfully if it knew of other independence issues prior to
discovering the independence issue that led it to withdraw the ClearOne audit. This argument has
superficial logical appeal, but it does not hold up under scrutiny. First, the pertinent issue bearing
on RSM’s willfulness as it relates to ClearOne is when RSM learned of its disqualifying conflict
with ClearOne. The cases RSM cites support the court’s conclusion. As the Middle District of
Alabama noted, the few courts to address this issue have found “audits are unique and no two are
alike . . . .” Colonial BancGroup at *3 (quoting Williamson v. PricewaterhouseCoopers LLP,
2006 WL 6544389, at *3-5 (N.Y. Sup. Nov. 13, 2006)); see Cal. Pub. Employees Retirement Sys.
v. Arthur Andersen LLP, No. 2:97-cv-1899, ECF No. 302 at 2-4 (D. Ariz. June 9, 2009). Given
the idiosyncratic nature of audits, including the varied reasons an auditor may find it lacks
independence, the court finds this rationale persuasive.
Additionally, even crediting the requested materials as being marginally relevant, that
relevance is outweighed by the cost borne, in part, by third parties for whom RSM has performed
its professional services. The court finds ClearOne’s requests disproportionate because
production of much of the material sought will intrude into confidential matters of other clients.
While such confidentiality concerns may be ameliorated through protective orders, they cannot
be eliminated. These concerns outweigh ClearOne’s interest in the discovery it seeks here.
Ultimately, the question before the court is whether RSM was negligent in its dealings with
ClearOne. That question can best be answered with information about RSM’s and ClearOne’s
relationship, without resort to other client information. Even to the extent the information is
marginally relevant, the privacy interests of third parties outweigh ClearOne’s need for the
information. This reasoning is also supported by the persuasive authorities RSM cites. See
Colonial BancGroup at *5 (discussing privacy interests of other clients). To the extent RSM’s
other clients have elected not to pursue litigation themselves, that decision may be motivated, at
least in part, by a desire to keep the disqualification and the reasons for it confidential. To the
extent any such entities have elected to pursue litigation for an alleged impairment of RSM’s
independence, as ClearOne does, the facts are public (unless some important privacy interest has
prevented public disclosure).
ClearOne attempts to distinguish the authority RSM cites, but its attempts miss the mark.
ClearOne attempts to distinguish RSM’s authority by characterizing the information it seeks as
different from the information sought in the persuasive authority. ClearOne contends it seeks
evidence of prior problems with RSM’s controls to ensure independence. ClearOne contends the
cases that RSM cites all considered discovery regarding the manner in which a defendant
performed an audit. (ECF No. 55 at 7). The court finds this to be a distinction without a
difference. The information sought still lacks substantial relevance and intrudes into privacy of
third parties. Regardless of the particular manner in which ClearOne believes RSM breached its
professional duty, ClearOne seeks information related to other clients, as did the parties in the
cases RSM cites. Although different in minor respects, the discovery ClearOne seeks still injects
similar, if not identical, unnecessary and irrelevant issues. Rather than answering questions about
RSM’s actions in this case, the material sought invites speculation about whether RSM has
committed other bad acts related to other clients. Additionally, the discovery will further confuse
the issues in this case because the court will be forced to conduct mini trials about whether other
related incidents involving RSM’s alleged lack of independence had merit. ClearOne seeks
information about alleged violations of RSM’s duty of independence without regard to merit.
(See ECF No. 44, Ex. 1). The information sought would obscure the issues in this case and invite
improper speculation about RSM’s conduct in the case at bar based on its conduct with other
clients. For all of the foregoing reasons, ClearOne’s October 26 motion will be denied.
October 27 motion regarding RSM’s Honk Kong affiliate
a. Parties’ arguments
ClearOne’s motion seeks production of certain information in the possession of RSM’s
Hong Kong affiliate. (ECF No. 44). ClearOne contends that RSM’s objection that the
information is not within its possession, custody, or control, because RSM has the authority or
ability to obtain the documents. (Id.)
RSM contends ClearOne bears the burden to show RSM has the ability to control its
Hong Kong affiliate to succeed on the motion to compel. (ECF No. 46). RSM contends ClearOne
cannot meet its burden because RSM and its Hong Kong affiliate are separate corporate entites
operating under a single brand, without access to one another’s document or email systems.
b. ClearOne’s October 27 motion seeking information about RSM’s Hong Kong
affiliate will be denied because RSM does not have the ability or authority to
obtain the information ClearOne seeks
The court will deny the October 27 motion because RSM provided a declaration
indicating it does not have possession, custody, or control, over the records ClearOne seeks. As
noted in the cases ClearOne cites, discovery of information possessed by a nonparty may be
“appropriate to the extent that [the responding party] has the practical ability and authority to
obtain relevant and discoverable information.” Braun v. Medtronic Sofamor Danek, Inc., No.
2:10-CV-1283, 2013 WL 30155, at *8 (D. Utah Jan. 2, 2013), objections sustained on other
grounds, No. 2:10-CV-1283, 2013 WL 1842290 (D. Utah May 1, 2013); see S2 Automation LLC
v. Micron Tech., Inc., No. CIV 11-0884, 2012 WL 3656454, at *33 (D.N.M. Aug. 9, 2012).
Nonetheless, these cases recognize that corporate affiliates may not have the legal or practical
ability to obtain documents from one another. For example, in the S2 Automation case on which
Clear One relies, the District of New Mexico required a party claiming it could not produce
documents held by a foreign affiliate to file an affidavit from a corporate official confirming that
claim. 2012 WL 3656454 at *33. Here, the court required RSM to provide a similar declaration.
In its declaration, RSM’s Assistant General Counsel states that RSM and its Hong Kong
affiliate are independent members of an associate that shares branding and trademarks. (ECF No.
54, Ex. 1). Neither entity is a subsidiary of the other, nor do they operate under common control.
(Id.) Consequently, RSM does not have access to its Hong Kong affiliate’s books, records, or IT
systems. (Id.) Accordingly, the court will deny ClearOne’s request. RSM cannot comply with the
extensive discovery requests regarding its Hong Kong affiliate because it does not have the
ability or authority to search the necessary books and records, or to compel its Hong Kong
affiliate to respond.
Based on the foregoing, the court hereby,
DENIES ClearOne’s Short Form Discovery Motion re: Interrogatories 1–2 and Requests for
Production 10–11 (ECF No. 43); and
DENIES ClearOne’s Short Form Discovery Motion re: RSM Hong Kong (ECF No. 44).
Dated this 15th day of December 2017.
Dustin B. Pead
United States Magistrate Judge
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