Amann v. Office of the Utah Attorney General et al

Filing 224

MEMORANDUM DECISION SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS OBJECTIONS. See order. Signed by Judge Jill N. Parrish on 1/25/22. (alf)

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FILED
2022 JAN 25
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
PAUL G. AMANN,
Plaintiff,

MEMORANDUM DECISION AND
ORDER SUSTAINING IN PART AND
OVERRULING IN PART
PLAINTIFF’S OBJECTIONS

v.
OFFICE OF THE UTAH ATTORNEY
GENERAL; SEAN REYES; BRIDGET
ROMANO; CRAIG BARLOW; SPENCER
AUSTIN; TYLER GREEN; and DANIEL
WIDDISON,

Case No. 2:18-cv-00341-JNP-DAO
Judge Jill N. Parrish

Defendants.
Plaintiff Paul G. Amann sued the Office of the Utah Attorney General (“OAG”), Utah
Attorney General Sean Reyes, Bridget Romano, Craig Barlow, Tyler Green, and Daniel Widdison
(collectively, “Defendants”), alleging violations of the Utah Protection of Public Employees Act,
UTAH CODE §§ 67-21-1 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., among other claims. Before the court are Amann’s objections to the magistrate judge’s
orders denying his motion to compel the deposition of Sean Reyes (ECF No. 180); finding his
motion to compel Defendants to produce a privilege log moot and awarding attorney’s fees to
Defendants (ECF No. 184); and awarding attorney’s fees to Defendants for the expenses associated
with defending against his motion to compel subpoena responses (ECF No. 185). ECF No. 187.
The court SUSTAINS Amann’s objections to the magistrate judge’s orders denying his
motion to compel the deposition of Reyes (ECF No. 180) and awarding attorney’s fees to
Defendants for the expenses associated with defending against Amann’s motion to compel
subpoena responses (ECF No. 185). The court OVERRULES Amann’s objection to the magistrate

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judge’s order finding his motion to compel production of Defendants’ privilege log moot and
awarding attorney’s fees to Defendants (ECF No. 184).
BACKGROUND
In August 1998, OAG hired Paul Amann as an attorney. Amann served in that role until
December 2, 2016, at which time OAG terminated Amann’s employment. Amann subsequently
sued OAG and Attorney General Sean Reyes, Chief Civil Deputy Attorney General Bridget
Romano, Criminal Deputy Craig Barlow, Chief Criminal Deputy Spencer Austin, Solicitor General
Tyler Green, and Assistant Attorney General Daniel Widdison,1 alleging violations of the Utah
Protection of Public Employees Act, UTAH CODE §§ 67-21-1 et seq., and unlawful retaliation in
violation of Title VII, 42 U.S.C. §§ 2000e et seq., among other claims.
On May 29, 2018, the court, pursuant to 28 U.S.C. § 636(b)(1)(A), referred the case so that
a magistrate judge would hear and determine all nondispositive pretrial matters. Three such matters
are at the core of the present dispute.
First, on July 30, 2021, Amann moved the magistrate judge to compel the deposition of
Sean Reyes. To demonstrate Reyes’s knowledge of and involvement in Amann’s termination,
Amann attached various exhibits to his motion, including letters regarding Amann’s termination
on which Reyes was copied and a text message that Reyes sent to his campaign manager, Alan
Crooks, on September 7, 2016—the day before Romano sent Amann a Notice of Intent to
Terminate Employment—in which Reyes wrote, “Amann reneged on our deal so he wants to ‘burn
us to the ground,’” and Crooks responded, “Amann Really??!! What an idiot!” ECF No. 157-2.

The positions listed are those in which the individuals served during the times relevant to
Amann’s claims.
1

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Defendants opposed Amann’s motion and attached to their opposition a declaration from
Romano, in which she testified that it was Green—and not Reyes—“who reviewed the evidence
supporting the allegations in the Notice of Intent and determined that Mr. Amann’s employment
should be terminated for cause.” ECF No. 160-1 at 3. Attached to Romano’s declaration was an
email chain between Romano and Reyes in which Romano attached Amann’s reply to the Notice
of Intent to Terminate and recommended that Reyes designate Tyler Green to review the evidence
and make a final determination regarding whether Amann should be terminated. Reyes replied,
“Let’s discuss a little more but I think Tyler would be a good choice.” Id. at Ex. 2.
On August 9, 2021, Amann filed another nondispositive motion, this time requesting that
the court compel Defendants to produce a privilege log identifying all of the documents that they
were withholding on the basis of privilege. The following morning, Defendants’ counsel provided
Amann’s counsel with a copy of an eleven-page privilege log. Defendants’ counsel expressed
surprise that the motion had been filed because they had not communicated with Amann’s counsel
about the log since a telephone call in mid-July, during which they had informed Amann’s counsel
that they expected to produce the log by July 23, but that it was a lengthy task. Indeed, “[a]t no
time prior to August 9 did [Amann’s] counsel inform [Defendants] that [Amann] was about to file
a motion if AGO did not produce the privilege log by a certain date.” ECF No. 195 at 6. Defendants
requested that Amann’s counsel withdraw her motion to compel production of the privilege log,
but Amann’s counsel did not respond to that request. Accordingly, Defendants filed an opposition
to Amann’s motion.
On August 9, 2021, Amann also filed a motion to compel Defendants to respond to a
subpoena that was served in April 2021. The subpoena sought production of communications
concerning Amann from Reyes’s personal email addresses and cell phone. In the motion, Amann’s

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counsel stated that, before filing the motion, she spoke with Defendants’ counsel on the phone on
July 13, 2021, and “asked if Defendants would reconsider the objection to producing Mr. Reyes’
personal emails, but they have not.” ECF No. 164 at 2 n.1. In addition, to support his motion,
Amann attached multiple emails from Reyes’s personal email accounts in which Amann was
mentioned, as well as a text message that Reyes sent on December 7, 2016, to Parker Douglas,
OAG’s chief of staff. In the text message, Reyes wrote, in part, “This job has stopped being fun
for me six months ago. I’m so tired, I can’t tell you. Maybe it’s because I’m sick in my room still
drafting documents when I need to be sleeping, we’ve got a crapload of people gunning for us
from all sides, and my own generals (the people I trust most and rely on most) are causing me
more stress than Paul A and Jason Hanks.” ECF No. 164-6. Defendants opposed the motion.
On September 27, 2021, the magistrate judge heard oral argument on these three motions.
The magistrate judge denied without prejudice Amann’s motion to compel Reyes to sit for a
deposition (ECF No. 180), denied as moot Amann’s motion to compel production of Defendants’
privilege log and awarded attorney’s fees associated with opposing that motion to Defendants
(ECF No. 184), and granted in part and denied in part Amann’s motion to compel the production
of communications concerning Amann from Reyes’s personal email addresses and cell phone
(ECF No. 185). The magistrate judge also awarded to Defendants attorney’s fees associated with
the latter motion.
Amann objects to all of these decisions, except for the magistrate judge’s decision to grant
in part and deny in part his motion to compel production of communications from Reyes’s personal
email addresses and cell phone. ECF No. 187.

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LEGAL STANDARD
“Under Federal Rule of Civil Procedure 72(a), a district court is required to consider timely
objections to a nondispositive order from a magistrate judge and modify or set aside any part of
the order that is clearly erroneous or is contrary to law.” Vivint, Inc. v. Alarm.com, Inc., No. 2:15cv-392, 2020 U.S. Dist. LEXIS 141702, at *15 (D. Utah Aug. 6, 2020) (internal quotation marks
and alterations omitted); see also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider
any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s
order is clearly erroneous or contrary to law.”). “The ‘clearly erroneous’ standard under Rule 72(a)
applies to factual findings,” Vivint, Inc., 2020 U.S. Dist. LEXIS 141702, at *15 (citation omitted),
and it “requires that the reviewing court affirm unless it ‘on the entire evidence is left with the
definite and firm conviction that a mistake has been committed,’” Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). “The ‘contrary to law’ standard permits ‘plenary review as to matters of law,’”
Cooper v. Noble Casing, Inc., Nos. 15-cv-1907-WJM-CBS, 16-cv-2799-WJM-CBS, 2017 U.S.
Dist. LEXIS 223227, at *13–14 (D. Colo. Oct. 27, 2017) (quoting 12 Charles Alan Wright et al.,
Federal Practice & Procedure § 3069 (2d ed., Apr. 2016 update)), and “[a] magistrate judge’s
order is contrary to law if it ‘fails to apply or misapplies relevant statutes, case law or rules of
procedure,’” Hawkins v. Ghiz, No. 2:18-cv-00466-DBB-JCB, 2021 U.S. Dist. LEXIS 19484, at *3
(D. Utah Jan. 29, 2021) (citation omitted).
ANALYSIS
I.

Amann’s Motion to Compel the Deposition of Sean Reyes (ECF No. 157)
Amann moved to compel the deposition of Sean Reyes. The magistrate judge denied this

motion without prejudice, finding that, although “Mr. Amann presented evidence that Attorney

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General Reyes had some personal knowledge of the investigation and termination, . . . Mr. Amann
has not shown a deposition of Attorney General Reyes is essential to his case, where he has
presented no evidence of Attorney General Reyes’ direct involvement in his termination and
alternative sources of information are available.” ECF No. 180 at 2. Amann objects to the
magistrate judge’s order denying his motion to compel Reyes’s deposition, arguing, in essence,
that such a deposition is essential to ascertain the degree of Reyes’s involvement in the
investigation and termination of Amann, and that he has produced sufficient evidence of Reyes’s
involvement to justify deposing Reyes.
In response, Defendants argue that the magistrate judge’s decision was neither clearly
erroneous nor contrary to law because the magistrate judge applied the proper standard when she
evaluated the motion and “properly concluded Amann failed to meet [that] test, observing that
‘information regarding the reasons for Mr. Amann’s termination can be obtained from alternative
sources, including Ms. Romano and Mr. Green.’” ECF No. 195 at 2–3 (citation omitted).
Defendants further argue that the magistrate judge’s order is also supported by caselaw because
“[n]one of the evidence [Amann] provided with his motion to compel disputes the testimony that
General Reyes was not the decisionmaker.” Id. at 3. Moreover, Defendants contend that Amann’s
argument that he cannot get evidence of Reyes’s involvement without deposing him is
unconvincing because he can ask—and has asked—others about Reyes’s involvement in his
termination. Defendants assert that “[d]espite the extensive discovery [already] conducted by
[Amann], he has found no evidence showing General Reyes was directly involved in firing [him].”
Id. at 5. The court disagrees and concludes that the magistrate judge’s order was clearly erroneous
and contrary to law.

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As the magistrate judge properly noted, district courts in the Tenth Circuit “have required
parties seeking to depose high-ranking government officials to ‘demonstrate whether (1) the
official has first-hand knowledge related to the claim being litigated[,] (2) the testimony will likely
lead to the discovery of admissible evidence, (3) the deposition is essential to the party’s case, and
(4) the information cannot be obtained from an alternative source or via less burdensome means.”
FTC v. Nudge, LLC, No. 2:19-cv-00867-DBB-DAO, 2020 U.S. Dist. LEXIS 218269, at *6 (D.
Utah Nov. 20, 2020) (quoting White v. City & Cnty. of Denver, No. 13-cv-01761, 2014 U.S. Dist.
LEXIS 95987, at *7 (D. Colo. July 10, 2014)). The court concludes, however, that the magistrate
judge misapplied that test to the facts of this case. See Hawkins, 2021 U.S. Dist. LEXIS 19484, at
*3.
First, the magistrate judge correctly noted that Amann has presented evidence that Reyes
had personal knowledge of the investigation into Amann’s conduct and Amann’s ultimate
termination. ECF No. 180 at 2. However, contrary to what the magistrate judge’s decision suggests,
the evidence of Reyes’s personal knowledge of—and interest in—Amann’s situation is far more
than a few emails regarding Amann’s investigation and termination on which Reyes was copied.
Specifically, Amann produced a text exchange between Reyes and Alan Crooks, Reyes’s campaign
manager, in which Reyes wrote, “Amann reneged on our deal so he wants to ‘burn us to the
ground.’” ECF No. 157-2. Crooks responded, “Amann Really??!! What an idiot!” Id. This
exchange occurred on September 7, 2016. The following day, September 8, 2016, Romano “issued
Plaintiff Paul Amann a letter titled ‘Notice of Intent to Terminate Employment.’” ECF No. 160-1
at 2.
Moreover, Defendants produced an email chain between Reyes and Romano in which
Romano attached Amann’s reply to the Notice of Intent to Terminate Employment and

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recommended that Reyes designate Tyler Green to consider Amann’s response, rather than Reyes
considering the response himself. Reyes responded, “Let’s discuss a little more but I think Tyler
would be a good choice.” ECF No. 160-1 at Ex. 2.
Furthermore, there is evidence that, after Amann’s employment with OAG was terminated
on December 2, 2016, Reyes sent a text message to Parker Douglas, OAG’s chief of staff, on
December 7, 2016, in which he wrote, in part: “This job has stopped being fun for me six months
ago. I’m so tired, I can’t tell you. Maybe it’s because I’m sick in my room still drafting documents
when I need to be sleeping, we’ve got a crapload of people gunning for us from all sides, and my
own generals (the people I trust most and rely on most) are causing me more stress than Paul A
and Jason Hanks.” ECF No. 164-6 (emphasis added).
This evidence not only suggests that Reyes “has first-hand knowledge related” to Amann’s
claims, see Nudge, 2020 U.S. Dist. LEXIS 218269, at *6 (citation omitted), but also raises the
reasonable inference that Reyes had an interest in how Amann’s situation was resolved. Although
Reyes may not have been the ultimate decisionmaker who signed Amann’s termination letter, this
evidence raises the reasonable inference that Reyes was involved in OAG’s decision to terminate
Amann. At minimum, it appears that Reyes played a role in selecting Green to review Amann’s
response to the Notice of Intent to Terminate Employment, see ECF No. 160-1 at Ex. 2, and that
the Amann situation caused Reyes stress, see ECF No. 164-6.
Moreover, Reyes’s testimony will likely lead to the discovery of admissible evidence. As
described above, there is evidence that suggests that Reyes played—at least to some degree—a
role in Amann’s termination. Reyes’s testimony is likely to lead to a fuller picture of the
circumstances surrounding Amann’s termination, which is highly relevant to Amann’s claims.
Indeed, as head of OAG, Reyes’s testimony may be particularly relevant. In addition, because

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Reyes is a party to this lawsuit, Reyes’s personal involvement in the investigation into and ultimate
termination of Amann is at issue. Reyes’s testimony will likely lead to the discovery of admissible
evidence regarding the degree of his involvement.
Based on the evidence described above, the court “is left with the definite and firm
conviction that” Reyes’s deposition is essential to Amann’s case and that the information cannot
be obtained from an alternative source. See Ocelot, 847 F.2d at 1464 (citation omitted).
Specifically, Reyes’s testimony is likely essential to establish a full and complete picture of the
circumstances surrounding Amann’s termination, including the degree to which Reyes was
involved. In addition, as suggested previously, the evidence that has already been produced
suggests that Reyes had an interest in how Amann’s situation was resolved. The extent of that
interest and the impact—if any—that it had on Amann’s termination are likely essential to Amann’s
case. It may be a mere coincidence, but the court notes that Reyes’s text messages to his campaign
manager, in which Reyes stated that “Amann reneged on our deal,” ECF No. 157-2 (emphasis
added), and to OAG’s chief of staff, in which Reyes intimated that Amann was causing him stress,
ECF No. 164-6, both closely coincided in time with Romano’s decision to issue the Notice of
Intent to Terminate Amann’s Employment and Green’s decision to terminate Amann, respectively.
Reyes is likely the only source who can fully explain the connection—if any—between the text
messages and the adverse employment actions taken against Amann, and Reyes is definitely the
only source who can provide the complete picture of the degree to which he was involved in
Amann’s termination.
Accordingly, the court concludes that the magistrate judge’s order denying Amann’s
motion to compel Reyes’s deposition was clearly erroneous and contrary to law, and that Reyes
should be compelled to sit for a deposition. The court’s conclusion is not affected by its review of

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Stagman v. Ryan, 176 F.3d 986 (7th Cir. 1999), on which Defendants heavily rely. In Stagman, the
Seventh Circuit affirmed the district court’s conclusion that deposing the attorney general “would
serve no useful purpose” in a 42 U.S.C. § 1983 case in which the plaintiff was dismissed from the
Attorney General’s Office. Id. at 994. In reaching that conclusion, the Seventh Circuit noted that,
although the affidavit on which the plaintiff relied suggested that the attorney general, “at most,
approved or condoned the decision” to dismiss the plaintiff, the affidavit “did not contradict the
assertion that [the attorney general] was not personally involved in the evaluation and decision to
fire” the plaintiff. See id. Moreover, the plaintiff presented no evidence that the attorney general
was even aware of his union-related activities, which were at the center of his claims. Id.
Here, the situation is far different. The evidence not only establishes that Reyes knew of
Amann’s termination—which is at the center of his claims—but also suggests that Reyes had a
personal interest in the resolution of Amann’s situation. Although the degree of Reyes’s personal
involvement in Amann’s termination is unclear, the evidence that has been produced thus far raises
a reasonable inference that Reyes was personally involved at least to some extent. Therefore, the
court concludes that Stagman is not directly on point, and that the current situation, based on the
reasonable inferences that can be drawn from the evidence that has already been produced, is more
analogous to cases in which courts have permitted high-ranking government officials to be
deposed. See, e.g., Nudge, 2020 U.S. Dist. LEXIS 218269, at *8–9; P.J. v. Utah, No. 2:05-cv-739,
2007 U.S. Dist. LEXIS 110535, at *7 (D. Utah May 2, 2007).
While the court is sensitive to the inconvenience and burden that this places on Reyes, the
evidence that has been produced thus far suggests that “this is not a run-of-the-mill case in which
the attorney general has very limited involvement.” P.J., 2007 U.S. Dist. LEXIS 110535, at *9.

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Therefore, the court orders Reyes to sit for an oral deposition in this matter. The deposition shall
last no longer than four hours, absent a showing of good cause that a longer deposition is necessary.
II.

Amann’s Motion to Compel Production of Defendants’ Privilege Log (ECF No. 163)
Amann moved to compel the production of Defendants’ privilege log and requested that

Defendants pay his attorney’s fees incurred in relation to the motion. ECF No. 163. Because
Defendants produced the privilege log the morning after the motion was filed, the magistrate judge
denied the motion as moot, and she also awarded attorney’s fees to Defendants, finding that
Amann’s counsel failed to meaningfully meet and confer before filing the motion and failed to
withdraw the motion upon Defendants’ production of the privilege log. Amann objects to the
magistrate judge’s order, arguing that “[t]he magistrate judge erred in finding his motion was moot
and awarding Defendants their fees in responding to the motion.” ECF No. 187 at 4. The court
addresses both arguments in turn.
A. Whether the Motion to Compel Was Moot
Amann argues that the magistrate judge erred when she concluded that his motion to
compel the privilege log was moot because he “considered the log [Defendants] produced to be
deficient.” Id. at 5–6. Amann contends that “it violates the principle of judicial efficiency to require
him to file a new motion to address the deficient privilege log Defendants provided in response to
his motion seeking the privilege log.” Id. at 8. Accordingly, the magistrate judge should have
“consider[ed] Mr. Amann’s argument that the privilege log was deficient,” and should not have
ruled that the motion was moot. Id. Amann further argues that his motion was not moot because
he “believed he was still entitled to his fees as requested in the motion, because he had to file the
motion to get Defendants to finally provide the log.” Id. at 5–6.

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In response, Defendants argue that the magistrate judge’s order was neither clearly
erroneous nor contrary to law because Defendants did, in fact, produce the privilege log the
morning after Amann filed his motion to compel, and Amann “did not file a motion challenging
the deficiency of the privilege log.” ECF No. 195 at 9. “Thus,” according to Defendants, “that
issue was not before [the magistrate judge].” Id. Defendants do not directly address whether—
even though they had produced the privilege log—Amann’s request for attorney’s fees rendered
his motion a live controversy.
The court agrees with Defendants that the alleged deficiency of Defendants’ privilege log
was not before the magistrate judge. Indeed, the motion before the magistrate judge was Amann’s
motion to “compel[] Defendants to produce their privilege log.” ECF No. 163 at 1. Because the
motion was filed before Defendants produced their privilege log, the motion obviously did not
raise any concerns regarding the adequacy of the log. Because the issue was not raised in Amann’s
motion and it appears that Amann attempted to raise the issue for the first time at oral argument,
the magistrate judge properly refused to hear Amann’s argument on that issue, because “raising an
issue for the first time at oral argument affords the opposing party an inadequate opportunity to
address it.” See Cannon v. Trammell, 796 F.3d 1256, 1267 (10th Cir. 2015) (internal alterations
and citation omitted). Thus, the court determines that the magistrate judge’s conclusion that
Amann’s motion to compel was moot—despite Amann’s concerns regarding the adequacy of what
was produced—was neither clearly erroneous nor contrary to law.
Moreover, Amann’s contention that the magistrate judge erred when she denied his motion
as moot when she still needed to resolve his request for attorney’s fees is unavailing. As detailed
in the order finding Amann’s motion to compel moot, the magistrate judge did, in fact, consider
the issue of attorney’s fees on the merits. The magistrate judge denied Amann’s request for

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attorney’s fees—and awarded attorney’s fees to Defendants—because, in part, “Mr. Amann’s
counsel failed to meaningfully confer before filing the motion to compel on August 9.” ECF No.
184 at 2. Accordingly, even though the magistrate judge stated that she denied the motion to compel
“as moot,” id. at 1, she did not treat the issue of attorney’s fees as such. See generally id. Thus,
Amann’s argument that the magistrate judge should not have denied his motion as moot is
groundless because, with respect to the issue of attorney’s fees, the magistrate judge did not treat
the motion as moot and denied it on the merits.
B. Whether Defendants Should Have Been Awarded Attorney’s Fees
Amann further argues that the magistrate judge erred in awarding attorney’s fees to
Defendants because (1) Amann’s counsel did, in fact, meaningfully meet and confer with
Defendant’s counsel before filing the motion; (2) the magistrate judge misapplied Federal Rule of
Civil Procedure 37; and (3) Defendants incurred the attorney’s fees improperly because they
violated Utah’s procurement statute when they hired Ray Quinney & Nebeker to represent them.
The court addresses each of these arguments in turn.
i.

Failure to Meet and Confer

The District of Utah’s local rules require parties to “make reasonable efforts to resolve a
discovery dispute . . . before seeking court assistance.” DUCIVR 37-1(a)(1). In awarding attorney’s
fees to Defendants, the magistrate judge concluded that Amann failed to comply with this
requirement. Specifically, the magistrate judge concluded that “Mr. Amann’s counsel failed to
meaningfully confer before filing the motion to compel on August 9[, 2021]” because although
Amann’s counsel allegedly “had attempted for many months to obtain the privilege log” and had
threatened to file a motion to compel if the log was not produced by July 12, 2021, Amann’s
counsel “continued to discuss production of the privilege log after that date” and, at no time during

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these continued discussions, did she “indicate [that] she intended to file a discovery motion.” ECF
No. 184 at 2. The magistrate judge further concluded that “[t]his failure [was] compounded by the
fact that Mr. Amann failed to withdraw the motion after the privilege log was produced.” Id. at 2–
3.
Amann argues that the magistrate judge’s conclusion is erroneous because “Mr. Amann
had been asking for the privilege log, which Defendants had a duty to provide without request, for
eight months,” and “there is no duty to continue to wait for production of a document ten months
overdue . . . , particularly when it could be important to upcoming depositions.” ECF No. 187 at
5–7. In addition, Amann contends that “there is significance to the fact that Defendants finally
provided the log the morning after Mr. Amann filed the motion . . . . [T]he timing of Defendants’
production suggests they were holding on to the log until Mr. Amann finally took steps to compel
them to provide it.” Id. at 7.
In response, Defendants assert, in part, that “[a]t no time prior to August 9”—when Amann
filed the motion to compel—“did [Amann’s] counsel inform [Defendants] that [he] was about to
file a motion if [Defendants] did not produce the privilege log by a certain date.” ECF No. 195 at
6. Although Defendants’ counsel told Amann’s counsel during a mid-July telephone call that they
expected to produce the log by July 23, Defendants’ counsel explained that “it was a lengthy task
given the number of attorneys who were AGO custodians and the need to carefully review for
attorney-client privileged communications and work product.” Id. Defendants contend that, at the
time the motion was filed, there had been no further communication about the privilege log, and
that they were continuing to work on the log and were about to produce it.
“The meet and confer requirement adheres to all motions to compel and is not dispensed
with based upon the passage of time or prior communications addressing similar issues.” Am.

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Charities for Reasonable Fundraising Regul., Inc. v. O’Bannon, No. 2:08-cv-00875, 2015 U.S.
Dist. LEXIS 103814, at *4–5 (D. Utah Aug. 5, 2015). “Rather, a meaningful meet and confer
contemplates that the parties make a genuine effort to determine ‘precisely what the requesting
party is actually seeking; what responsive documents or information the discovering party is
reasonably capable of producing; and what specific, genuine objections or other issues, if any,
cannot be resolved without judicial intervention.’” Id. at *4 (citation omitted). Indeed, “parties do
not satisfy the conference requirements simply by requesting or demanding compliance with the
requests for discovery. . . . They must deliberate, confer, converse, compare views, or consult with
a view to resolve the dispute without judicial intervention.” Jackson v. Dollar Gen. Store, No. 2:11cv-00726-TC-DBP, 2014 U.S. Dist. LEXIS 17159, at *4 (D. Utah Feb. 10, 2014) (quoting
Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999)).
Here, the court concludes that the magistrate judge’s determination that Amann’s counsel
failed to meaningfully meet and confer before filing the motion to compel was neither clearly
erroneous nor contrary to law. Because Amann’s counsel did not communicate with Defendants’
counsel about the privilege log between the mid-July telephone call and when she filed the
motion—including to inform Defendants’ counsel about the impending motion—the magistrate
judge’s conclusion is not clearly erroneous. The court is not left with the “definite and firm
conviction” that Amann’s counsel genuinely attempted to “deliberate, confer, converse, compare
views, or consult with a view to resolve the dispute without judicial intervention” before filing the
motion. See Jackson, 2014 U.S. Dist. LEXIS 17159, at *4 (citation omitted). Moreover, the length
of time that Amann was forced to wait for the privilege log to be produced does not change the
court’s conclusion. See O’Bannon, 2015 U.S. Dist. LEXIS 103814, at *4–5. Although Amann may
be correct that Defendants would not have produced the privilege log if the motion had not been

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filed, that does not excuse Amann’s counsel’s failure to meet and confer and, at minimum, give
Defendants one final opportunity to produce the log before filing the motion.
ii.

Failure to Apply Federal Rule of Civil Procedure 37 Correctly

Amann further argues that, even if he failed to meaningfully meet and confer before filing
the motion, “the magistrate judge erred in awarding fees to Defendants as the non-moving party,
because the relevant rules simply do not provide for such a remedy.” ECF No. 187 at 7. According
to Amann, Federal Rule of Civil Procedure 37(a)(5)(A) addresses the current situation, because
Defendants provided the “requested discovery”—the privilege log—“after the motion was filed.”
Amann contends that, in such circumstances, the producing party must pay the movant’s attorney’s
fees, unless the movant failed to adequately meet and confer before filing the motion. Amman
asserts that in no instance, though, does Rule 37 “provide that a court may award fees to the nonmoving party if that party provides the requested discovery after a motion was filed.” ECF No.
187 at 8.
In response, Defendants argue that Amann fails to account for the remainder of Rule 37,
which provides that, if the motion is denied, the court is permitted “to order the movant to pay the
party who opposed the motion its reasonable expenses incurred in opposing the motion, including
attorney’s fees.” ECF No. 195 at 9 (citing FED. R. CIV. P. 37(a)(5)(B)). Defendants contend that,
because the magistrate judge denied the motion as moot, the magistrate judge’s decision to award
attorney’s fees to Defendants was not contrary to law. The court agrees.
Federal Rule of Civil Procedure 37(a)(5) “governs the award of fees and expenses in
connection with motions to compel.” Presbyterian Manors, Inc. v. SimplexGrinnell, L.P., No. 092656-KHV, 2010 U.S. Dist. LEXIS 126390, at *1 (D. Kan. Nov. 30, 2010). Rule 37(a)(5)(A)
provides that “[i]f the motion is granted—or if the disclosure or requested discovery is provided

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after the motion was filed—the court must . . . require the party . . . to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” (Emphasis added.) However,
“the court must not order this payment if . . . the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court action.” FED. R. CIV. P. 37(a)(5)(A)(i).
Moreover, “[i]f the motion is denied, the court . . . must . . . require the movant . . . to pay the party
or deponent who opposed the motion its reasonable expenses incurred in opposing the motion,
including attorney’s fees.” FED. R. CIV. P. 37(a)(5)(B).
Here, after Amann filed the motion to compel production of the privilege log, Defendants
produced the log. Thus, under Rule 37(a)(5)(A), Defendants ordinarily would be required to pay
Amann’s “reasonable expenses incurred in making the motion, including attorney’s fees.”
However, because the magistrate judge concluded that Amann failed to meaningfully meet and
confer before filing the motion—and, as discussed above, this conclusion is not clearly
erroneous—Amann was precluded from recovering any attorney’s fees. See FED. R. CIV. P.
37(a)(5)(A)(i). Accordingly, the magistrate judge appropriately did not award attorney’s fees to
Amann.
Rather than withdrawing his motion upon production of the privilege log2—as Defendants’
counsel requested—Amann persisted. The magistrate judge subsequently denied the motion as
moot, and also denied Amann’s request for attorney’s fees, finding that Amann failed to adequately

If Amann had withdrawn his motion to compel after the privilege log was produced, he still could
have pursued attorney’s fees related to the motion. See Wager v. G4S Secure Integration, LLC, No.
1:19-cv-03547-MKV-KNF, 2021 U.S. Dist. LEXIS 16448, at *12–13 (S.D.N.Y Jan. 28, 2021)
(noting that, in the Southern District of New York, “it is common and accepted practice for litigants
to file separate applications for attorneys’ fees and costs under Rule 37(a)(5)(A) after prevailing
on a motion to compel”). However, because the magistrate judge concluded that Amann failed to
meaningfully meet and confer before filing the motion, such an application likely would have been
denied.
2

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meet and confer before filing the motion. Accordingly, under Federal Rule of Civil Procedure
37(a)(5)(B), Defendants were entitled to their “reasonable expenses incurred in opposing the
motion, including attorney’s fees.” Thus, the magistrate judge’s order awarding such attorney’s
fees to Defendants was not contrary to law.3
iii.

Defendants’ Attorney’s Fees Were Incurred Improperly

Amann further argues that “an additional basis for not awarding Defendants their fees . . .
is that Defendants have incurred those fees improperly.” ECF No. 187 at 8. Specifically, Amann
argues that Defendants violated Utah’s procurement statute when they hired Ray Quinney &
Nebeker to represent them in this matter. Amann contends that “Defendants should not be awarded
fees incurred through self-dealing, in violation of the procurement statute.” Id. at 9. In response,
Defendants assert, in part, that this alleged impropriety “is not part of [Amann’s] complaint nor
did [Amann] raise it in his motion,” and that “[t]his discovery motion is not the time or place for
[Amann] to raise such assertions.” ECF No. 195 at 9 n.4. The court agrees.
“It is well-settled that an objecting party generally may not raise new issues that were not
presented to the magistrate judge.” Africano v. Atrium Med. Corp., No. 17-cv-7238, 2020 U.S.
Dist. LEXIS 177096, at *6 (N.D. Ill. Sept. 3, 2020) (citing cases); see also Rodriguez v. Pataki,
293 F. Supp. 2d 313, 315 (S.D.N.Y. 2003) (“The Court denies Plaintiffs’ and Defendant’s requests
contained in their objections for rulings on issues not addressed by [the magistrate judge]. The

Rule 37(a)(5)(B) does provide that “the court must not order [payment of attorney’s fees to the
party opposing the motion] if the motion was substantially justified or other circumstances make
an award of expenses unjust.” Although the magistrate judge did not explicitly consider whether
this exception applies to the current situation, because the magistrate judge concluded that the
motion was moot, that it should have been withdrawn, and that Amann’s counsel failed to
meaningfully meet and confer before filing the motion—and, indeed, awarded attorney’s fees to
Defendants—the court concludes that the magistrate judge determined that the exception does not
apply and also concludes that such a conclusion is neither clearly erroneous nor contrary to law.
3

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Court has referred all discovery disputes in this case to [the magistrate judge] and he is in the best
position to review them in the first instance.”). Because this issue has not been presented to the
magistrate judge, the court declines to review it here. Moreover, the court agrees with Defendants’
contention that this is not the proper venue to raise such an objection. Indeed, in reviewing
Amann’s objection to the magistrate judge’s order awarding attorney’s fees to Defendants, the
court views its task as quite narrow. Specifically, the court is merely considering whether, based
on the relevant facts and law, the magistrate judge’s decision to award attorney’s fees to
Defendants—regardless of who their attorneys are or how they hired their attorneys—was clearly
erroneous or contrary to law. The court concludes that it was not.
In sum, the court overrules Amann’s objections to the magistrate judge’s order awarding
attorney’s fees related to the motion to compel (ECF No. 163) to Defendants.
III.

Amann’s Motion to Compel Production of Reyes’s Communications (ECF No. 164)
Amann moved to compel “Defendants to respond to a subpoena served in April 2021,

seeking Defendant Reyes’ communications regarding Mr. Amann from his personal email
addresses and from his personal cell phone.” ECF No. 164 at 1–2. The motion was granted in part
and denied in part by the magistrate judge. ECF No. 185. Specifically, because Defendants
represented “that [they] produced all responsive text messages about Mr. Amann from Attorney
General Reyes’ personal phone,” the magistrate judge denied Amann’s request for cell phone
communications as moot. Id. at 3. However, because Amann produced an email from one of
Reyes’s personal email accounts that “addresses a matter directly relevant to Mr. Amann’s claims,”
the magistrate judge ordered that the email account be searched for any emails sent or received
between December 2013 and March 2017 containing the terms “Amann” or “Paul.” See id. at 4.
In addition, the magistrate judge awarded Defendants their “attorney[’s] fees in responding to the

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motion based on Mr. Amann’s counsel’s complete failure to confer before filing the motion.” Id.
at 1. Amann objects to the magistrate judge’s decision to award attorney’s fees to Defendants.
Amann argues that the magistrate judge erred in multiple ways: (1) the magistrate judge’s
conclusion that “Amann’s counsel admitted she made no attempt to meet and confer” before filing
the motion “ignores footnote 1 in the motion, which describes Mr. Amann’s counsel’s attempt to
meet and confer on the issue”; (2) “if the magistrate judge found Mr. Amann’s efforts to confer on
this issue inadequate, the court could deny Mr. Amann his attorneys’ fees in bringing the motion,
but the rules do not provide a basis for awarding attorneys[’] fees to the nonmoving party when
they did not prevail on the motion”; and (3) if the magistrate judge was invoking Federal Rule of
Civil Procedure 37(a)(5)(C), which governs when a motion to compel is granted in part and denied
in part, “Mr. Amann should be awarded some of his fees for the part of the motion he prevailed
on.” ECF No. 187 at 10.
In response, Defendants argue that “[h]ad [Amann’s] counsel adequately met and conferred
before filing the [motion to compel], she would have understood that AG Reyes’ text messages
from his personal phone had already been produced to [Amann]. Furthermore, counsel for the
parties would have had the opportunity to attempt to resolve the dispute over the personal emails
prior to seeking court intervention.” ECF No. 195 at 10. Moreover, Defendants contend that, even
taking Amann’s counsel’s alleged efforts to meet and confer at face value, they are insufficient
because DUCivR 37-1(a)(2) requires, “[a]t a minimum,” a “prompt written communication sent
to the opposing party,” and the footnote to which Amann’s counsel points details only a telephone
call. Furthermore, Defendants argue that, because the motion was granted in part and denied in
part, Federal Rule of Civil Procedure 37(a)(5)(C) governs and, accordingly, it was within the
magistrate judge’s discretion to “apportion the reasonable expenses for the motion.” See ECF No.

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195 at 10–11. Defendants contend that “in light of [the magistrate judge’s] denial of part of the
motion, [Amann’s] failure to meet and confer, and his pattern of doing so,” the magistrate judge
apportioned the fees entirely to Defendants. See id. at 11.
First, the court agrees with Defendants that, taking Amann’s counsel’s contentions at face
value, she did not adequately meet and confer before filing the motion to compel. As stated
previously, the District of Utah’s local rules require the parties to “make reasonable efforts to
resolve a discovery dispute . . . before seeking court assistance.” DUCIVR 37-1(a)(1). “At a
minimum, those efforts must include a prompt written communication sent to the opposing party,”
which specifies various aspects of the discovery dispute. DUCIVR 37-1(a)(2). Here, Amann points
to footnote 1 of his motion, which states that, “[i]n a phone call between the parties’ counsel on
July 13, 2021 on a wide range of discovery issues, Mr. Amann’s counsel . . . asked if Defendants
would reconsider the objection to producing Mr. Reyes’ personal emails, but they have not.” ECF
No. 164 at 2 n.1. Because Amann’s admittedly limited efforts to meet and confer before filing the
motion at issue did not include any written communication, the court finds that the magistrate
judge’s conclusion that Amann failed to adequately meet and confer before filing the motion was
neither clearly erroneous nor contrary to law.
Moreover, the court agrees with Defendants that Federal Rule of Civil Procedure
37(a)(5)(C) governs because the magistrate judge granted in part and denied in part the motion.4
Rule 37(a)(5)(C) provides that “[i]f the motion is granted in part and denied in part, the court may
. . . apportion the reasonable expenses for the motion.” Although it is possible that the magistrate

Accordingly, the court disregards Amann’s argument that “the rules do not provide a basis for
awarding attorney[’]s fees to the nonmoving party when they did not prevail on the motion,” ECF
No. 187 at 10, because Defendants did, in fact, prevail, in part, on the motion. Thus, Rule
37(a)(5)(C) governs the current situation, rather than Rule 37(a)(5)(A).
4

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judge intentionally apportioned all of the expenses in Defendants’ favor, the court is not convinced.
Indeed, the magistrate judge repeatedly stated that Defendants were entitled to an award of
attorney’s fees because “Mr. Amann’s counsel failed to meet and confer.” See ECF No. 185 at 1,
3, 4–5. At no point does the magistrate judge indicate that she considered the extent to which
Amann prevailed on the motion when she decided to award attorney’s fees to Defendants.5
Accordingly, the court concludes that the magistrate judge’s decision to award all of the attorney’s
fees to Defendants was contrary to law because the magistrate judge’s order either “fail[ed] to
apply or misapplie[d]” the relevant law. See Hawkins, 2021 U.S. Dist. LEXIS 19484, at *3 (citation
omitted).
Thus, the court “finds that the most sensible approach is to return this matter to the
Magistrate Judge for further proceedings.” See Benson v. Hartford Life & Accident Ins. Co., No.
2:10-cv-275-TS, 2010 U.S. Dist. LEXIS 107603, at *2 (D. Utah Oct. 5, 2010). Specifically, the
court instructs the magistrate judge to “apportion the reasonable expenses for the motion” between
Amann and Defendants. See FED. R. CIV. P. 37(a)(5)(C) (emphasis added). In deciding how to
apportion such expenses, the magistrate judge should certainly consider Amann’s failure to meet
and confer before filing the motion, see, e.g., Wager, 2021 U.S. Dist. LEXIS 16448, at *8 (noting
that, in the Second Circuit, “in determining whether to award expenses under Rule 37(a)(5)(C),
courts must consider the three exceptions listed under Rule 37(a)(5)(A),” one of which is a failure

The magistrate judge granted in part and denied in part the motion “[f]or the reasons stated at the
hearing [that was held on the motion] and explained” in the written order. ECF No. 185 at 1.
Admittedly, it is possible that the magistrate judge explained her decision to apportion all of the
attorney’s fees to Defendants—in spite of the fact that Amann’s motion was granted in part—at
the hearing. Although the hearing was approximately three hours long, only the first 48 minutes of
the hearing were recorded. The court has reviewed this recording, but it does not contain any
argument or discussion relevant to the current issue. Accordingly, the court treats the written order
as the complete explanation for the magistrate judge’s decision.
5

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to adequately meet and confer), but it should also consider the extent to which Amann’s motion
was successful, see Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., No. 2:11-CV03471-KJM-AC, 2017 U.S. Dist. LEXIS 114293, at *14 (E.D. Cal. July 20, 2017) (citing cases
that apportioned fees under Rule 37(a)(5)(C) and noting that “[i]nstead of supporting a rigid
formula, these cases stand for the proposition that courts aim to roughly approximate the movant’s
level of success in apportioning fees”). Moreover, because Defendants opposed Amann’s motion—
rather than voluntarily producing Reyes’s personal emails—the magistrate judge should account
for the extent to which additional meeting and conferring would have, realistically, been productive
and obviated the need for court intervention.
CONCLUSION AND ORDER
The court rules as follows:
1.

The court SUSTAINS Amann’s objection to the magistrate judge’s order denying
Amann’s motion to compel the deposition of Sean Reyes (ECF No. 180).

2.

The court OVERRULES Amann’s objection to the magistrate judge’s order finding
Amann’s motion to compel production of Defendants’ privilege log moot and
awarding attorney’s fees to Defendants (ECF No. 184).

3.

The court SUSTAINS Amann’s objection to the magistrate judge’s order awarding
to Defendants attorney’s fees related to Amann’s motion to compel subpoena
responses (ECF No. 185).

As a result, the court ORDERS that fact discovery be reopen for 30 days from the entry of
this order for the sole purpose of conducting Reyes’s deposition and, if Amann so elects, reissuing
a subpoena to the Utah Department of Public Safety that fully complies with Federal Rule of Civil
Procedure 45, see Memorandum Decision and Order Overruling Plaintiff’s Objection to

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Magistrate Judge’s Order Granting Non-Party Utah Department of Public Safety’s Motion to
Quash Subpoena.
DATED January 25, 2022.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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