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John Ernst Lucken Revocable Trust v. Heritage Bankshares Group, Inc.

United States District Court, N.D. Iowa, Western Division

March 31, 2017



          C.J. Williams, Chief United States Magistrate Judge.


         The 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. (Doc. 46).


         Plaintiffs 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).

         In an 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).

         The 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).

         On 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. (Doc. 43-9).


         Rule 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 be discoverable.

Fed. R. Civ. P. 26(b)(1).

         Rule 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 omitted) (unreported).

         The 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)).


         The 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 ...

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