Carlson v. City of Delafield et al

Filing 61

ORDER signed by Judge Rudolph T Randa on 04/21/2010 denying 40 Motion to Compel. The Defendants' request for reasonable expenses incurred in defending the motion to compel is GRANTED. The Defendants must submit their claim for such sums no later than 05/10/2010. Carlson may respond to that claim no later than 05/20/2010. The Defendants may file any reply thereto no later than 06/01/2010. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

M A T T H E W D. CARLSON, P l a i n t i f f, v. C IT Y OF DELAFIELD, M I C H E L E DE YOE, JEFF KRICKHAHN, BETH ANN LEONARD, GERALD MAC DOUGALL, and ERV SADOWSKI, Defendants. C a s e No. 08-C-751

DECISION AND ORDER

T h is civil rights action brought pursuant to 42 U.S.C. § 1983, with supplemental s ta te law claims, was filed by the Plaintiff, Matthew D. Carlson ("Carlson"), a former e m p lo ye e of the City of Delafield ("Delafield"), against the Defendants Delafield; Michele De Y o e ("De Yoe"); Jeff Krickhahn ("Krickhahn"); Beth Ann Leonard ("Leonard"); Gerald M a c D o u g a ll ("MacDougall"); and, Erv Sadowski ("Sadowski") (collectively the " D e f en d a n ts " ). The matter is before the Court on Carlson's motion to compel (Docket No. 4 0 ) pursuant to Rule 37(a) of the Federal Rules of Civil Procedure. Motion to Compel C a rls o n seeks an order compelling Delafield to respond to interrogatories n u m b e rs one through nine and to produce numbers two through four of his Interrogatories and

R e q u e st to Produce to Delafield, and compelling De Yoe; Krickhahn; Leonard; MacDougall; a n d , Sadowski to respond to requests to produce numbers one through four addressed to them. T h e Defendants oppose the majority of the grounds of the motion to compel on procedural g ro u n d s and the remainder of the motion on substantive grounds, and request an award of the c o sts and disbursements, and reasonable attorney's fees incurred in responding to the motion. T h e motion was filed on January 12, 2010. The deadline for the completion of d is c o v e ry in the action was January 31, 2010. Thus, the briefing of the motion was not c o m p le te d until after the close of discovery in this action. See Civil Local Rule 7 (E.D. Wis.) (setting forth the briefing schedule for motions other than those for summary judgment).1 M e e t and Confer Requirement T h e Defendants maintain that, with the exception of the attorney-client privilege is s u e pertaining to discussions during closed sessions of the Delafield Common Council on N o v e m b e r 5, and November 19, 2007, Carlson has failed to comply with the requirement that h e meet and confer with them in a good faith effort to resolve the discovery dispute prior to f ilin g the motion to compel. A meaningful and sincere pre-filing conciliatory conference is a requirement of Rule 26(c)(1) of the Federal Rules of Civil Procedure and Civil Local Rule 3 7 .1 of the Eastern District of Wisconsin, amended as Civil Local Rule 37.

The District's Local Rules were amended as of January 26, 2010, and became effective on February 1, 2010. A l th o u g h the motion was filed prior to their amendment, the briefing schedule is unchanged under the 2010 a m e n d m e n t s of the Local Rules. Compare Civil L.R. 7.1 (E.D. W is . 2003) with Civil L.R. 7(b)-(c) (eff. Feb. 1, 2010). T h e r e f o r e , the Court will apply Local Rule 7 as amended in 2010. The amended local rules are available on the District's website, www.wied.uscourts.gov. A copy of the rules w i l l also be provided at no charge by the Office of the Clerk of Court, upon request in person or by mail.

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W ith respect to the limited issues of the attorney-client privilege attendant to the tw o Delafield Common Council November 2007 closed sessions, review of the affidavits of th e parties establishes that the filing of the motion was preceded by a conference between the p arties during which they attempted to resolve the dispute without Court action and were u n a b le to reach an accord. However, the meet and confer requirement was not satisfied as to th e dispute over discovery of e-mails in the Defendants' possession that are ostensibly related to Carlson's claims. The submissions of the parties reflect that counsel for Carlson was belligerent a n d antagonistic at the Carlson deposition. Carlson's counsel terminated the deposition when a n e-mail was produced that he believed should have been produced in response to his d is c o v e ry request for e-mails. The termination of Carlson's deposition was contrary to Rule 30(c)(2) of the F e d e ra l Rules of Civil Procedure, which provides that an objection at the time of the e x a m in a tio n must be noted on the record. Rule 30(c)(2) provides that, notwithstanding any o b je c tio n , the examination still proceeds and the testimony is taken subject to the objection. F u rth erm o re, the written reactions of Carlson's counsel to the e-mail issue were h o s tile . Carlson argues that, notwithstanding the contentious tone of these exchanges, the c o n c i l ia to r y requirement of Civil Local Rule 37.1 was satisfied by the "countless c o m m u n ic a tio n s " on the issue of Carlson's discovery requests in general and, subsequently, " th e exchange of letters, emails and in-person conversations that took place between D e c em b e r 15, 2009[,] and the filing of this motion." (Carlson Reply Br. 1-2.) Carlson relies

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o n decisions issued in this District2 holding that quantitatively fewer communications were s u f f ic ie n t to satisfy the meet and confer requirements of Civil Local Rule 37.1, the predecessor o f current Civil Local Rule 37. See Timbuktu v. Malone, No. 05-C-0492, 2009 WL 497130, a t *2 (E.D. Wis. Feb. 26, 2009) (holding that the plaintiffs' representation that they "made c o n ta c t" with opposing counsel but no discovery demands had been provided was sufficient to satisfy the meet and confer requirement even through the means of communication was not sp e c if ied ); Redmond v. Leatherwood, No. 06-CV-1242, 2009 WL 4066610, at *2 (E.D. Wis. N o v . 20, 2009) (holding that one letter sent to opposing counsel by the pro se plaintiff was su f f icie n t to satisfy the meet and confer requirement where the letter evidenced the desire to re s o lv e the discovery dispute without Court involvement). However, the quantity of communications is not dispositive; ultimately, the c o n te n t and tone of the communications determine whether the attempt to conciliate was s in c e re and, thus, sufficient to satisfy the pre-filing meet and confer requirements. See, e.g., G r o s s v. PPG Indus., Inc., No. 07-CV-982, 2009 WL 159261, at *1 (E.D. Wis. Jan 22, 2009) (ho lding that telephone and e-mail correspondence was insufficient to satisfy the discovery m o tio n meet and confer requirements where the tone of those communications demonstrated a lack of sincere conciliatory effort). In this instance, having considered the content and tone o f the proffered communications, the Court concludes that the conciliatory requirement of the f e d e ra l and local rules requiring that parties attempt to resolve discovery disputes prior to f ilin g a discovery-related motion has not been satisfied as to the e-mail issue. Therefore,

The Court recognizes that district court decisions are not precedential and, therefore, are not binding upon i t . See Flying J, Inc. v. Van Hollen, 578 F.3d 569, 573 (7th Cir. 2009).

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C a rls o n 's motion is denied as to the e-mail issue because he failed to abide by the meet and c o n f er requirements for discovery motions of the Federal Rules of Civil Procedure and the C iv il Local Rules. Discovery Related to November 2007 Delafield Common Council Meetings The sole issue that the Court will address is the attorney-client privilege that re late s to the two November 2007 closed sessions of the Delafield Common Council. As to th o se sessions of the common council, Carlson asks the Court to compel the Defendants to p ro d u c e "information and documents responsive to [Carlson's] request pertaining to various m ee tin g s conducted by the City's Common Council." (Carlson Br. Supp. Mot. Compel 7.) In response to Carlson's discovery request for information relating to those m e e tin g s , the Defendants asserted the attorney-client privilege. (Defs. Opp'n Br. 5.) Carlson c h a ra c ter ize s the Defendants' refusal to comply with his discovery request as a "blanket" d e n ia l to produce such information or documentation because it pertains to closed session m e e tin g s contrary to the Wisconsin Supreme Court's decision in Sands v. Whitnall School D is tr ic t, 312 Wis. 2d 1, 754 N.W.2d 439, 455-56 (Wis. 2008). (Carlson Br. Supp. Mot. C o m p e l 7-8). However, Sands does not foreclose the applicability of "other recognized e v id e n tia ry privileges,"; e.g., the attorney-client privilege, to communications made during c lo s e d session meetings. Sands, 754 N.W.2d at 460. The attorney-client privilege protects c o n f id e n ti a l communications made between attorney and client for the purpose of securing le g a l advice. United States v. BDO Seidman, L.L.P., 492 F.3d 806, 814-15 (7th Cir. 2007).

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H e re , the Defendants assert a privilege in relation to the closed session meetings o n ly to the extent that communications occurred in those meetings that were between attorney a n d client. (Defs. Opp'n Br. 5.) The Defendants' position does not conflict with Sands insofar a s they refuse to disclose communications or produce documents from the common council c lo s e d session meetings on the basis of attorney-client privilege. Carlson contends that the Defendants must be withholding non-privileged m a te ria ls from the closed session meetings simply because the Defendants have not produced a n y materials from those meetings. (Carlson Reply Br. 11.) However, Carlson offers no e v id e n c e in support of such contention. Instead, he urges the Court to infer "an impermissible a b s o l u te privilege concerning the closed session meetings" solely from the Defendants' a s s e rtio n of attorney-client privilege with respect to the communications made in those m e e tin g s . (Id. at 10.) The Court declines to engage in such speculation. Carlson also asks the Court to compel the Defendants to produce a privilege log. R e v iew of the briefs and affidavits of the parties establishes that the Defendants agreed to p ro d u c e a privilege log, but sought to resolve the existing discovery disputes before doing so. (R ya n G. Braithwaite Decl. ¶ 23; Ex. C, 4.) The Defendants have agreed to produce their p riv ile g e log, but were awaiting the resolution of this motion. The Court anticipates that, upon th e ir receipt of this Decision and Order, the Defendants will promptly produce the privilege lo g to Carlson. In light of the foregoing, Carlson's motion to compel is denied.

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R e a s o n a b le Expenses Both parties have requested that the Court award reasonable expenses incurred in conjunction with Carlson's motion to compel. Rule 37(a)(5)(A) through (C) of the Federal R u les of Civil Procedure governs their requests. Generally, the Rule requires that the Court a w a rd to the prevailing party reasonable attorney's fees incurred in filing or defending a m o tio n to compel discovery, unless the motion was "substantially justified" or "other c irc u m s ta n c es make an award of expenses unjust." See Fed. R. Civ. P. 37(a)(5)(A). The p a ra llel language in the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), and in Rule 3 7 indicates that the term "substantially justified" should be interpreted consistently in both p ro v is io n s . See United States v. Kemper Money Market Fund, Inc., 781 F.2d 1268, 1279 (7th C ir. 1986) (citing Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 352 n.7 (D.D.C. 1982)). A p o s itio n taken by a party is substantially justified if it has a reasonable basis in fact and law, a n d if there is a reasonable connection between the facts and the legal theory. See Stewart v. A st r u e , 561 F.3d 679, 683 (7th Cir. 2009) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1 9 8 8 ); Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)). The Defendants are the prevailing party. Carlson's failure to satisfy the meet a n d confer requirements with respect to the e-mail discovery dispute is blatant and lacks a re a so n a b le factual basis. Moreover, Carlson's contention that the Defendants have improperly a ss e rte d the attorney-client privilege lacks a reasonable legal basis ­ it is not justified to a d e g re e that could satisfy a reasonable person that it has a reasonable basis under the c o n tro llin g Wisconsin case law. See Pierce v. Underwood, 487 U.S. 552, 565 (1988).

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C a rls o n 's motion to compel is not substantially justified and, he has not p re se n te d any other circumstances that make an award of expenses unjust. Accordingly, the C o u rt awards to the Defendants the costs and disbursements, and reasonable actual attorney's f e e s incurred defending the motion to compel. The Defendants must submit their itemized claim for such sums no later than M a y 10, 2010, together with supporting documentation. The request for attorney's fees must b e presented in a format that includes the hourly rates of the attorneys who worked on the m o tio n response and provides a sufficient factual basis for the Court to determine the re a so n a b le n e ss of the hourly rates of those attorneys, and the reasonableness of the time that th e y devoted to the response. Additionally, the Defendants must provide legal authority for th e award of any claimed cost or disbursements. Carlson may respond to the Defendants' s u b m is s io n s no later than May 20, 2010. The Defendants may file any reply thereto no later th a n June 1, 2010. NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: Carlson's motion to compel (Docket No. 40) is DENIED.

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T h e Defendants' request for reasonable expenses incurred in defending the m o t io n to compel is GRANTED. The Defendants must submit their claim for such sums no la te r than May 10, 2010. Carlson may respond to that claim no later than May 20, 2010. The D e f en d a n ts may file any reply thereto no later than June 1, 2010. Dated at Milwaukee, Wisconsin this 21st day of April, 2010. BY THE COURT s / Rudolph T. Randa Hon. Rudolph T. Randa C h ie f Judge

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