Jenkins v. Miller et al

Filing 665

OPINION AND ORDER granting in part and denying in part 582 Motion to Compel Defendants Liberty Counsel, Inc. and Rena Lindevaldsen to Produce AT&T Records; granting in part and denying in part 591 Revised Second Motion to Compel Defendants Liberty Counsel, Inc. and Rena Lindevaldsen to Comply with Plaintiffs' First Requests for Production; denying 608 Renewed Cross-Motion for Sanctions. Signed by Judge William K. Sessions III on 3/24/2021. (law)

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JANET JENKINS, ET AL.,
Plaintiffs,
v.
KENNETH L. MILLER ET AL.,
Defendants.

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Case No. 2:12-cv-184

ORDER RE: PLAINTIFFS’ REVISED SECOND MOTION TO COMPEL DEFENDANTS
LIBERTY COUNSEL, INC. AND RENA LINDEVALDSEN TO COMPLY WITH
PLAINTIFFS’ FIRST REQUESTS FOR PRODUCTION AND MOTION TO COMPEL
DEFENDANTS LIBERTY COUNSEL, INC. AND RENA LINDEVALDSEN TO
PRODUCE AT&T RECORDS AND RENEWED CROSS-MOTION FOR SANCTIONS
(ECF 591, 582, 608)
Plaintiff Janet Jenkins (“Jenkins”) has brought suit
against several individuals and organizations, alleging that
they kidnapped and conspired to kidnap Isabella Miller-Jenkins
(“Isabella”). Jenkins asserts claims of commission of, and
conspiracy to commit, an intentional tort of kidnapping and
conspiracy to violate civil rights under 42 U.S.C. § 1985(3).
Before the Court now are two motions to compel and a crossmotion for sanctions. On September 14, 2020 the Court ruled on
Plaintiffs’ second motion to compel. ECF No. 563. The Court
ordered Defendants to submit an affidavit describing their
efforts to comply with discovery requests and listing their use
of ESI terms, and asked Plaintiffs to submit a revised motion to

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compel after the submission of this affidavit, identifying the
areas still missing as well as parts of the privilege log they
considered to be inadequate. Defendants filed the affidavit, ECF
No. 580, and Plaintiffs proceeded to file these two motions to
compel, ECF Nos. 582, 591. The parties each asked for sanctions
to be imposed. ECF Nos. 591, 608. The Court held two hearings
discussing the discovery issues between the parties and allowed
them to submit supplemental briefing. The Court has considered
all of the parties’ written submissions as well as the parties’
remarks during the hearings on December 21, 2020 and March 8,
2021. For the reasons set forth below, the Court grants in part
and denies in part Jenkins’ second motion to compel (ECF No.
591), and grants in part and denies in part Jenkins’ motion to
compel Liberty counsel, Inc. and Rena Lindevaldsen to produce
AT&T records (ECF No. 582). The Court also denies the crossmotion for sanctions.
I.

Legal Standard

Federal Rule of Civil Procedure 26(b)(1) states that:
Scope in General. Unless otherwise limited by court order,
the scope of discovery is as follows: 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
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admissible in evidence to be discoverable.
Id.; see also SEC v. Rajaratnam, 622 F.3d 159, 181 (2d Cir.
2010). Federal district courts have broad discretion in deciding
motions to compel. See Grant Cent. P’ship, Inc. v. Cuomo, 166
F.3d 473, 488 (2d Cir. 1999). "[A]s in all matters relating
to discovery, the district court has broad discretion to
limit discovery in a prudential and proportionate way." EM Ltd.
v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012).
"Discovery rules are to be accorded a broad and liberal
treatment . . . to effectuate their purpose that civil trials in
the federal courts no longer need be carried on in the
dark." Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170 (2d
Cir. 2003) (internal quotation marks omitted). Yet,
[A] district court [may] limit [t]he frequency or extent of
use of the discovery methods otherwise permitted under [the
federal] rules if it determines that (1)
the discovery sought is unreasonably cumulative or
duplicative, or more readily obtainable from another
source; (2) the party seeking discovery already has had
ample opportunity to obtain the information sought; or (3)
the burden or expense of the proposed discovery
outweighs its likely benefit.
In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d
Cir, 2003) (citing Fed. R. Civ. P. 26(b)(2)). “The party
seeking discovery bears the initial burden of proving
the discovery is relevant, and then the party
withholding discovery on the grounds of burden [or] expense . .
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. bears the burden of proving the discovery is in fact . .
. unduly burdensome and/or expensive." Citizens Union of New
York v. Attorney General of New York, 269 F. Supp. 3d 124, 139
(S.D.N.Y. 2017).  
II.

Analysis
A. Renewed Second Motion to Compel
i.

Further Document Searches

At this time, Defendants have gone through two separate
searches with respect to Jenkins’ first requests for production.
Initially, Defendants searched for Janet, Lisa, and Isabella’s
full names, and Jenkins objected to this search. At its December
hearing, the Court instructed Defendants to undergo another
search of one of the search strings suggested by Jenkins (Lisa
AND Janet) AND NOT (“Lisa Miller” or “Janet Jenkins” or
“Isabella Miller” or “Isabella Miller-Jenkins”), and to submit
an affidavit describing the process of the search.
On January 7, 2021, Defendants’ attorney Horatio G. Mihet
submitted an affidavit. ECF No. 630. In the affidavit, Mihet
said that before the hearing he performed one of the search
strings suggested by Plaintiffs: (Lisa AND Janet) AND NOT (“Lisa
Miller” or “Janet Jenkins” or “Isabella Miller” or “Isabella
Miller-Jenkins”). He said that there were over 5,000 hits, and
he spent seven and a half hours going through them and every
relevant document had already been produced or privilege-logged.
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He then performed a new search: (Lisa AND Janet AND Isabella)
AND NOT (“Lisa Miller” or “Janet Jenkins” or “Isabella Miller”
or “Isabella Miller-Jenkins”). This search produced 1,610 hits,
and 1,459 were false positives. Of the 151 left, 84 were
communications that post-dated the filing of this lawsuit.1 The
remaining 67 had all been produced or privilege-logged. Going
through these required 37 hours of staff and attorney time.
Mihet further wrote that “Liberty Counsel’s document production
was comprehensive and complete, irrespective of the ESI search
terms used. This is why using additional search terms at this
juncture does not reveal any un-produced or un-logged documents.
. . . This is why Defendants are confident . . . that Defendants
have produced all relevant, non-privileged documents in their
custody, possession or control.” Id. at 5. Jenkins responds that
she does “not have access to Defendants’ email accounts to test
the adequacy of their proposals, and Defendants cannot get off
scot-free just because Plaintiffs’ initial proposals seem
unworkable.” Jenkins asks for more searches of different
combinations with nicknames and key terms (such as Izzy, or
their aliases (Lydia / Sarah), and Vermont, visitation, and
Virginia).

The Court notes that Jenkins has pointed out that Defendants
could easily limit their searches within Outlook to the relevant
dates.
1

5 

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The Court will not order Defendants to undergo further
searches with varying terms. Spending more time on these
searches does not appear to be proportional to the needs of the
case, especially where Defendants have represented that they are
confident they have produced all of the records within their
possession. "Generally, a party's good faith averment that the
items sought simply do not exist . . . should resolve the issue
of failure of production since one cannot be required to produce
the impossible." Mason Tenders Dist. Council of Greater New York
v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 42 (S.D.N.Y.
2016) (citations and internal quotation marks omitted).
However, the Court orders Defendants Liberty Counsel, Inc.
and Rena Lindevaldsen to run two additional rounds of searches.
(1) Defendants must run the date searches listed on pages 7-9 of
ECF No. 632; (2) the Court orders Defendants to search for
Lisa’s email addresses within the body of their emails, ECF No.
632 at 5. With regard to these two additional searches, the
Court finds that Jenkins appears to have made a compelling
showing that a Rule 26 proportionality analysis should allow for
discovery. Additionally, the Court orders Defendants to provide
Jenkins with an affidavit containing a list of all of the email
accounts they searched, as well as the exact calendar accounts
searched for RFPs 36 and 48. Without this information, Jenkins

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will be unable to understand where potential gaps in her
knowledge lie.
ii.

Privilege Logs

The Court has reviewed the privilege logs, and agrees with
Jenkins that several descriptions must be edited to add more
specificity. The Court advises Defendants that the Court has
already decided that communications between these parties are
relevant to the claim, ECF No. 395 at 6-7, and that if nonprivileged communications are mixed in with the privileged
communications, then the documents must be redacted and
produced. Defendants cannot withhold an entire document if only
one part of it is privileged. As the Court wrote in its Order on
Plaintiffs’ motion to compel on October 29, 2019:
Plaintiffs seek this information for the important purpose
of supporting allegations that Defendants communicated with
Lisa Miller regarding the conspiracy to kidnap Isabella,
and to demonstrate the nature and evolution of their
relationship. ECF 380 at 3. This is a key factual inquiry
in this case, which cannot be supported without the use of
non-public information procured through the discovery
process.
ECF No. 395 at 9. With this warning in mind, the Court has
reviewed the privilege log and finds that certain entries must
be edited to provide more specific descriptions.2

The Court advises Defendants that even though it has singled
out certain entries in this Order, all entries must comply with
the Order and Defendants should make sure that they have not
used clever wording in other entries to keep out relevant,
unprivileged documents.
2

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No.

Document Type

82

Correspondence

83

Correspondence

103

Correspondence

104

Correspondence

Current Subject
Description
Email correspondence
requesting advice
and providing
information and
instructions to
counsel regarding
visitation issues in
custody litigation

Email correspondence
requesting advice
and providing
information and
instructions to
counsel regarding
visitation issues in
custody litigation
Email correspondence
chain advising
client of potential
outcomes and
requesting
information and
instruction from
client.

Email correspondence
chain further
advising client of
potential outcomes
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Court Order
Vague as to subject
matter of the
advice. For
example, if the
“advice” would have
supported
allegations that
Defendants
communicated
regarding the
conspiracy to
kidnap Isabella,
this is
insufficient.
Same.

This entry is
vague, especially
as to what
potential outcomes
are being discussed
(i.e., is there a
link to the alleged
kidnapping?). There
must be enough
information to
allow Jenkins to
raise an objection
based upon the
crime-fraud
exception to the
attorney-client
privilege, if such
an exception would
be applicable.
Same.

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105

Correspondence

106

Correspondence

108

Correspondence

109

Correspondence

110

Correspondence

and requesting
client intention and
instructions.
Email correspondence
chain further
advising client of
potential outcomes
and requesting
client intention and
instructions.
Email correspondence
chain further
advising client of
potential outcomes
and requesting
client intention and
instructions.
Email correspondence
chain confirming
client intentions
and instructions,
and advising client
of potential
outcomes and legal
consequences of
same.
Email correspondence
chain confirming
client intentions
and instructions,
advising client of
potential outcomes
and legal
consequences of
same, and receiving
further instructions
and questions from
client
Email correspondence
chain confirming
information and
instructions from
client regarding
visitation and
confirming advice to
client regarding
potential outcomes
9 

Same.

Same.

Same.

Same.

Same.

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126

Correspondence

and legal
consequences of same
Email correspondence
providing counsel
with instructions
for representation
in custody
litigation and
requesting
information and
advice from counsel.

Vague as to subject
matter of
information and
advice. For
example, if the
“advice” would tend
to demonstrate that
Lisa Miller is
crossing a line
between asking
advice on custody
representation and
asking advice on
kidnapping, this is
insufficient.

See ECF No. 618-3.
B. Motion to Compel Production of AT&T Records
Jenkins has also moved to compel Liberty Counsel, Inc. and
Rena Lindevaldsen to produce telephone records that AT&T gave to
them. The records disclose the date, time, and duration of calls
and text messages between certain phone numbers one year before
and after the kidnapping at issue, but do not disclose the
substance of the calls or texts. There are 7,508 pages of call
and text-message logs for two Liberty Counsel phone numbers and
two Lindevaldsen phone numbers, and Defendants have possession
of the logs but object to making specific redactions because of
their volume. Defendants worry that the records could be used to
“reveal the identity of clients, donors, constituents and
others, which are privileged from disclosures, as well as the
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constitutionally protected activities of [Defendants] which have
nothing to do with this case.” Initially Jenkins agreed to
provide this list, but then decided she wanted the full records.
The parties also dispute the potential privacy and First
Amendment roadblocks in the way of producing the AT&T records.
Defendants say they would be willing to produce either: (1) the
records for any telephone numbers connected to the case that
Jenkins provides in a list, or (2) the entire records, with the
first six digits of all calls and texts redacted. ECF No. 600 at
18. Jenkins argues that both of these proposals would require
“Plaintiffs’ attorneys to repeatedly reveal to Defendants their
thought processes and theories about the case every time they
need to ask about additional numbers or when justifying any
number’s relevance.” At the hearing on March 8, 2021, counsel
for Jenkins explained to the Court that they absolutely would
not misuse the records, and would view them subject to a
protective order. Counsel for Jenkins listed several potential
uses for the cellphone records, including comparing them against
other cellphone records from known parties to identify new
intermediaries and locate possible landline numbers.
The Court disagrees with Defendants that counsel for
Jenkins wishes to obtain these records for the sole purpose of
“harassing” Defendants. However, the Court disagrees with
Jenkins that the vast amount of records requested is
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proportional to the needs of the case. See Mortg. Resolution
Servicing, LLC v. JPMorgan Chase Bank, No. 15-civ-0293
(LTS)(JCF), 2016 WL 3906712, at *3 (S.D.N.Y. July 14, 2016)
(discussing importance of proportionality of discovery after
2015 amendment to Fed. R. Civ. P. 26(b)(1)); see also Osucha v.
Alden State Bank, NO. 17CV1026V, 2019 WL 6783289, at *2
(W.D.N.Y. Dec. 12, 2019) (same). The Court discussed Jenkins’
need for the records at length during the March 8, 2021 hearing,
and determined that though Jenkins has shown why records
associated with certain numbers are relevant, the entirety of
the records requested is more akin to a fishing expedition. See
Williams v. Fire Sprinkler Assocs. Inc., No. 15-CV-3147, 2017 WL
1155771, at *2 (E.D.N.Y. Mar. 27, 2017) (“The party seeking
discovery must make a prima facie showing that the discovery
sought is more than merely a fishing expedition.” (quoting
Barbara v. MarineMax, Inc., No. 12-CV-368, 2013 WL 1952308, at
*2 (E.D.N.Y. May 10, 2013))). The entire cellphone records of
numbers interacted with within the time frame of two years, for
four people, is a discovery request large enough that the Court
finds it to be burdensome and an abuse of the discovery process.
The Court orders that Jenkins be allowed access to the relevant,
proportional cellphone records by the alternate method of
submitting a list of names or numbers based upon a good faith
determination that such records are linked to the case to
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Defendants, who must then produce all phone records for those
numbers/names within the two years. At the hearing on March 8,
2021, Defendants agreed to this compromise. Jenkins has since
moved to ask the Court to clarify that she be allowed to submit
both lists of names and cellphone numbers to Defendants, so that
she can receive records for names she cannot associate a number
with and vice-versa. ECF No. 658. Defendants have asked the
Court that Plaintiff only be allowed to ask for names and
associated phone numbers that have been identified to have a
reasonable connection. ECF No. 659. The Court orders that
Jenkins be allowed to submit a list of names or numbers based
upon a good faith determination that such records are linked to
the case to Defendants, who must then produce all phone records
for those numbers/names within the two years.
C. Renewed Cross-Motion for Sanctions
In her revised motion to compel, Jenkins also argued that
Defendants’ “sluggish, bad-faith conduct warrants sanctions.”
ECF No. 591. Jenkins asked for sanctions including that the
Court hold that Defendants have waived privilege claims over
withheld documents, that the Court give adverse-inference
instructions, and that the Court preclude Defendants from making
certain arguments. Defendants then renewed their own crossmotion for sanctions against Plaintiffs for “continually filing
unnecessary and unmerited discovery motions, based on deceptive
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narratives and fabrications.” ECF No. 608. Defendants argued
that their discovery responses were not “sluggish” but were in
fact faster than Plaintiffs’, that their searches were complete
and comprehensive, and that there was no spoliation of evidence.
They argue that they should not be sanctioned, but that
Plaintiffs should be sanctioned for filing their revised motion
to compel, which Defendants say was senseless, needless and
meritless.
The discovery issues raised by this case have been complex
in nature, and the parties have requested extensive guidance
from this Court in their resolution. At this time, the Court
does not see fit to impose sanctions on either party. The Court
does not find that Defendants’ responses or the time spent in
making those responses rises to a sanctionable level of badfaith or purposeful sluggishness. Nor does the Court find that
Plaintiffs should be sanctioned for filing their revised motion
to compel, even though they did not confer before filing,
because the Court specifically instructed Plaintiffs to submit
such a motion. ECF No. 563.
III. Conclusion
For the reasons set forth below, the Court grants in part
and denies in part Jenkins’ revised second motion to compel (ECF
No. 591), and Jenkins’ motion to compel Liberty Counsel, Inc.

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and Rena Lindevaldsen to produce AT&T records (ECF No. 582) and
the Court denies the cross-motion for sanctions (ECF No. 608).
DATED at Burlington, in the District of Vermont, this 24th
day of March, 2021.

/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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