United States District Court, N.D. Iowa, Western Division
THE JOHN ERNST LUCKEN REVOCABLE TRUST, and JOHN LUCKEN and MARY LUCKEN, Trustees, JOHN LUCKEN, MARY LUCKEN, Plaintiffs,
HERITAGE BANKSHARES GROUP, INC., et al., Defendants.
Williams, Chief United States Magistrate Judge.
matter before the Court is plaintiffs' motion to compel
discovery from defendants Heritage Bankshares Group, et al.
(Doc. 43). On February 8, 2017, plaintiffs filed a motion to
compel discovery, stating that defendants did not adequately
respond to plaintiffs' request for production of
documents and request for specific documents under several
requests for production. Plaintiffs request the imposition of
sanctions in the form of additional depositions outside the
discovery period. Defendants resist plaintiffs' motion.
filed this lawsuit on January 14, 2016. (Doc. 1). On April
27, 2016, the Court adopted the parties' agreed-upon
scheduling order that, among other things, set the deadline
for discovery as February 15, 2017. (Doc. 14). The Court
later amended this order pursuant to plaintiffs' motion
for a protective order seeking to prevent the deposition of
William Peterson and release of his files, claiming attorney
client privilege and work product protection. (Doc. 31). The
order denying that motion also extended the deadline for
plaintiffs' response to defendants' second request
for production as it related to Mr. Peterson's documents.
(Doc. 44). The Court entered another order granting a motion
to extend deadlines for depositions to March 15, 2017, but
denied any extension of the deadlines for written discovery
other than that previously ordered for response to
defendants' second request for production. (Doc. 45).
attempt to confer and resolve the discovery disputes that
have arisen and are the subject of this motion to compel,
plaintiffs initially sent a letter to defendants on October
25, 2016. (Doc. 43-3). In the letter, plaintiffs attempted to
confer about responses to plaintiffs' first request for
production of documents (Doc. 43-1) that plaintiffs felt were
inadequate such as responses by defendants stating,
“Defendant [sic] produced these documents as part of
initial disclosures, ” but where defendants did not
reference bate numbers. (Doc. 43-3, at 1). In this letter,
plaintiffs also requested many of the specific documents
plaintiffs now request the Court compel defendants to
produce. Id., at 2. Plaintiffs requested documents
under RFP Nos. 3.1, 3.3, 3.5-9, 4, and 7-9, which are all
addressed in plaintiffs' current motion to compel
discovery. (Doc. 43-3, at 2-4; Doc. 43).
parties subsequently met in person on November 7, 2016,
regarding the discovery dispute. (Doc. 43-4). Defendants
followed this meeting with a letter on November 21, 2016,
claiming that some of the documents requested by plaintiffs
were privileged and would not be disclosed, but were
indicated in defendants' privilege log. (Doc. 43-4, at
1-2). Plaintiffs do not challenge the privilege of these
documents in their current motion. (Doc. 43). Defendants'
letter stated in response to the specific RFPs noted by
plaintiffs that defendants had either provided the documents,
did not possess them, or would inquire further with their
client to locate the requested documents. (Doc. 43-3).
February 1, 2017, plaintiffs advised defendants in an email
that they found defendants' responses continually
deficient and anticipated filing a motion to compel no later
than February 6, 2017. (Doc. 43-6). On February 6, 2017,
defendants submitted to plaintiffs their third supplemental
response to plaintiffs' first request for production of
documents. (Doc. 43-8). On February 8, 2017, plaintiffs filed
the instant motion. (Doc. 43). Plaintiffs included an
affidavit from attorney Daniel Shuck, who has now withdrawn
with permission from the Court from the case, stating that
plaintiffs in good faith conferred personally with
defendants' counsel before filing this motion to compel.
26(b)(1) of the Federal Rules of Civil Procedure provides:
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 admissible in evidence to
Fed. R. Civ. P. 26(b)(1).
26(b) is widely acknowledged as “liberal in scope and
interpretation, extending to those matters which are relevant
and reasonably calculated to lead to the discovery of
admissible evidence.” Hofer v. Mack Trucks,
Inc., 981 F.2d 377, 380 (8th Cir. 1992) (internal citation
omitted). Also, in the context of discovery the standard of
relevance is “broader” than in the context of
admissibility. Id. (citing Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340 (1978)). Yet “[s]ome
threshold showing of relevance must be made before parties
are required to open wide the doors of discovery and to
produce a variety of information which does not reasonably
bear upon the issues in the case.” Id. Rule
401 of the Federal Rules of Evidence reads: “[e]vidence
is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the
action.” Fed.R.Evid. 401. A discovery request
“should be considered relevant if there is any
possibility that the information sought may be relevant to
the claim or defense of any party.” Catipovic v.
Turley, No. C11-3074, 2013 WL 1718061, at *2 (N.D. Iowa
Apr. 19, 2013) (internal quotation marks and citation
burden of making a threshold showing of relevance is on the
party requesting discovery. See Seger v. Ernest-Spencer
Metals, Inc., No. 8:08CV75, 2010 WL 378113, at *2 (D.
Neb. Jan. 26, 2010). When a requesting party makes a
threshold showing of relevance, then the burden shifts to the
party objecting the motion to compel. See Continental
Illinois Nat. Bank & Trust Co. of Chicago v. Caton,
136 F.R.D. 682, 684-85 (D. Kan. 1991) (“All discovery
requests are a burden on the party who must respond thereto.
Unless the task of producing or answering is unusual, undue
or extraordinary, the general rule requires the entity
answering or producing the documents to bear that
burden.”) (internal citation omitted). The party
objecting has the burden to “substantiate its
objections.” St. Paul Reinsurance Co. v. Commercial
Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000)
(internal quotation marks and citation omitted). A mere
statement by the objecting party that the “request for
production was overly broad, burdensome, oppressive and
irrelevant is not adequate to voice a successful
objection.” Id. (internal quotation marks and
citation omitted). Instead, the objecting party must prove
that the “requested documents either do not come within
the broad scope of relevance defined pursuant to Fed.R.Civ.P.
26(b)(1) or else are of such marginal relevance that the
potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.”
Id. (quoting Burke v. New York City Police
Dept., 115 F.R.D. 220, 224 (S.D. N.Y. 1987)).
MEET AND CONFER REQUIREMENT
meet and confer requirement set out in Federal Rule of Civil
Procedure 37(a) requires the parties meet and confer about
discovery disputes before they request judicial intervention
in the form of a motion to compel. Fed.R.Civ.P. 37(a)(1).
See also Local Rule 37(a) (“An exchange of
written communications or a single telephone message will
not, by itself, satisfy the requirements of this
section.”); Robinson v. Potter, 453 F.3d 990,
995 (8th Cir. 2006) (“Before the court can rule on a
motion, the parties must demonstrate they acted in good faith
to resolve the issue among themselves.”). As described
above, the parties conferred through letter and email
communications on multiple occasions about the specific
requests for production that plaintiffs now request the Court
to compel in their motion. Additionally, the parties had an