Money Mailer, LLC v. Wade Brewer

Filing 285

ORDER granting in part and denying in part Plaintiff's 240 Motion to Compel Discovery. Money Mailer's request for an award of attorney's fees is DENIED. Signed by Judge Robert S. Lasnik.(MW)

Case 2:15-cv-01215-RSL Document 285 Filed 06/03/20 Page 1 of 5

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8

MONEY MAILER, LLC,
Plaintiff,

9
10
11
12

v.
WADE G. BREWER,

NO. C15-1215RSL
ORDER GRANTING IN PART
PLAINTIFF’S MOTION TO
COMPEL

Defendant.

13
14
15

This matter comes before the Court on Money Mailer’s motion to compel discovery. Dkt.

16

# 240. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the

17

Court finds as follows:

18
19
20
21
22

Money Mailer seeks information, including the recipients, amounts, and purposes of
payments made by Brewer’s franchise, copies of all checks written on behalf of the franchise,
and copies of Brewer’s personal tax returns from 2009 to the present, to confirm its suspicion
that Brewer ransacked the franchise, using it as his personal piggy bank while failing to pay

23

debts the franchise was accruing. Brewer argues that the way he operated the franchise is

24

irrelevant to any claim or defense in this litigation now that he has abandoned his claim for lost

25

profits. The Court has already found, however, that Money Mailer is entitled to discover facts

26
27
28

related to the cause of the franchise failure. Dkt. # 255 at 2. If, for example, Brewer acted
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL - 1

Case 2:15-cv-01215-RSL Document 285 Filed 06/03/20 Page 2 of 5

1

inequitably in siphoning funds out of the franchise, it may impact the availability of rescission as

2

a remedy1 and/or may help defeat Brewer’s claim that Money Mailer misrepresented the nature

3

and profitability of the franchise. Brewer’s relevance objection is overruled.

4
5

Brewer also opposes the motion to compel on the grounds that Money Mailer exceeded

6

the number of interrogatories allowed, that obtaining bank copies of all checks written on behalf

7

of the franchise would be prohibitively expensive, and that his personal tax returns are irrelevant

8

and protected from disclosure.

9
10
11
12

A. Number of Interrogatories
Brewer argues that interrogatories seeking information regarding the witnesses and facts
that support each enumerated allegation of his counterclaim should be counted as multiple

13

interrogatories. For example, Interrogatory No. 2 seeks the identity of all persons and a

14

description of all facts related to Brewer’s allegation that Money Mailer charged excessive rates

15

for five different services. Brewer asserts that the inquiry should be counted as five (or perhaps

16
17
18
19

ten) separate interrogatories. Dkt. # 243 at 12. The Court disagrees. Federal Rule of Civil
Procedure 33(a)(1) states “a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” The Advisory Committee Notes make clear that

20

“[p]arties cannot evade this presumptive limitation through the device of joining as ‘subparts’

21

questions that seek information about discrete separate subjects.” Advisory Committee Notes of

22

1993. An interrogatory subpart is not considered “discrete” or “separate” if it is “logically or

23

factually subsumed within and necessarily related to the primary question.” Trevino v. ACB

24
25
26
27
28

1

The Court declines Brewer’s invitation to assume or presume that he is “less in the wrong”
without being fully apprized of the facts. Dkt. # 243 at 8.
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL - 2

Case 2:15-cv-01215-RSL Document 285 Filed 06/03/20 Page 3 of 5

1
2
3

American, Inc., 232 F.R.D. 612, 613 (N.D. Cal. 2006) (citation omitted).
The primary question at issue in Interrogatory No. 2 is “what is the basis for your
contention at Dkt. 12, ¶ 1.4?” While courts are not in agreement as to whether an inquiry

4
5

regarding persons with knowledge is distinct from an inquiry regarding supporting facts or

6

whether a list of topics necessarily entails multiple inquiries, the Court finds that, in the

7

circumstances presented here, Interrogatory No. 2 is a single interrogatory because the subparts

8

are subsumed within the primary question regarding the basis for Brewer’s counterclaim

9
10
11
12

allegation. See Synopsys, Inc. v. ATopTech, Inc., 319 F.R.D. 293, 297 (N.D. Cal. 2016)
(“Subparts asking for facts, documents, and witnesses relating to a primary contention or
allegation are logically or factually related, and thus should be construed as subsumed in the

13

primary question.”). The Court has no doubt that the analysis could yield a different outcome if

14

the subparts are not tied together with reference to a single, underlying inquiry. But, for purposes

15

of this motion, Interrogatory Nos. 2, 3, 12, 13, and 14 are each one interrogatory.

16
17
18
19

B. Undue Burden
Brewer has provided substantial information regarding his franchise’s finances, including
a list of persons to whom compensation was paid, a 41-page list of checks written in the first

20

quarter of 2015, and a 165-page printout of the franchise checking account register for the entire

21

franchise period. Dkt. # 241-3 and # 241-4. The second and third documents show the payee, the

22

amount paid, and a notation regarding the purpose of the payment. Brewer has also produced the

23
24
25
26
27
28

franchise’s bank statements (which apparently do not show the recipient or purpose of the
checks).
Money Mailer is not satisfied with the production. It has identified a discrepancy in the
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL - 3

Case 2:15-cv-01215-RSL Document 285 Filed 06/03/20 Page 4 of 5

1

descriptive notation related to a March 31, 2015, payment to Brewer and would like detailed

2

account notations throughout the franchise period, not just for the first quarter of 2015.

3

The Court finds that the single discrepancy identified by Money Mailer - that the check

4
5

list describes a $20,000 payment to Brewer as “Professional Fees” and “AIM related Federal

6

Income Taxes” (Dkt. # 241-3 at 41) whereas the checking register calls the same payment

7

“Shareholder Distributions: 2012 . . .” (Dkt. # 241-4 at 163) does not justify the compelled

8

production of hard copies of all checks written on behalf of the franchise. The faces of the actual

9
10
11
12
13

checks likely show only the date, payee, amount, and possibly a brief notation in the memo line,
exactly the information provided in the checking register. Money Mailer offers no indication of
what more it hopes to discover by compelling Brewer to pay $5.00 for every check the franchise
ever wrote, especially where it has identified only a single discrepancy.

14

The Court will, however, required Brewer to obtain and produce a copy of the $20,000

15

check that was written on the franchise’s account on March 31, 2015, to state clearly the total

16
17
18
19

amount paid to him each calendar year from the franchise’s accounts, and to produce any and all
“Check Detail” registers for the remainder of the franchise period.
C. Personal Tax Returns

20

Money Mailer has reason to suspect that the franchise’s accounting systems may have

21

understated the amount of money transferred from the franchise to Brewer. As a check on the

22

stated amount, Brewer shall produce his personal income tax returns from 2011 to 2015. The

23

returns are subject to the Protective Order entered by the Court on June 10, 2016.

24
25
26
27
28

For all of the foregoing reasons, Money Mailer’s motion to compel is GRANTED in part
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL - 4

Case 2:15-cv-01215-RSL Document 285 Filed 06/03/20 Page 5 of 5

1

and DENIED in part. Money Mailer’s request for an award of attorney’s fees is DENIED.

2
3

Dated this 3rd day of June, 2020.

A

4

Robert S. Lasnik
United States District Judge

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL - 5