Sackheim v. Lynch
Sackheim v. Lynch
2012 WL 13148817 (W.D. Tex. 2012)
October 4, 2012
Primomo, John W., United States Magistrate Judge
Summary
The court granted defendant's motion to compel plaintiff to provide full and complete responses to defendant's first request for production and first set of interrogatories, which sought ESI. The court also set deadlines for objections to the reliability of an expert's proposed testimony, the completion of all discovery, and the filing of all dispositive motions.
Peggy Lynch SACKHEIM and Patricia Lynch Alderman, Plaintiffs
v.
Tracy June LYNCH, Defendant
v.
Tracy June LYNCH, Defendant
CIV. NO. SA-11-CA-794-FB
United States District Court, W.D. Texas, San Antonio Division
Signed October 04, 2012
Counsel
Charles B. Gorham, Attorney at Law, San Antonio, TX, for Plaintiffs.David P. Strolle, Jr., Law Offices of David P. Strolle Jr., San Antonio, TX, for Defendant.
Primomo, John W., United States Magistrate Judge
ORDER
*1 Before the Court is defendant, Tracy June Lynch's motion to compel (docket no. 33), to which plaintiffs, Peggy Lyn Sackheim (“Sackheim”) and Patricia Lynch Alderman (“Alderman”), have responded (docket no. 35). Additionally, the Court considers the parties' Joint Motion to Abate Filing of Pretrial Materials (docket no. 36). Upon consideration of the motions, response and applicable law, defendant's Motion to Compel is GRANTED, and the parties' Joint Motion to Abate Filing of Pretrial Materials is DENIED.
Background
Plaintiffs, Sackheim and Alderman, and defendant Tracy June Lynch (“Lynch”) are the children of Bobbie S. Lynch. (Docket No. 1, Plaintiffs' Original Complaint, pg. 2). Bobbie Lynch died on March 17, 2000, leaving a written will, which was admitted to probate on December 15, 2000. (Id.). Plaintiffs claim they are beneficiaries under the will and allege that their sister, Lynch, wrongfully took possession of certain assets belonging to the estate. (Id.). Plaintiffs allege Lynch breached her fiduciary duties to plaintiffs while serving as independent executrix from December 15, 2000 to August 25, 2009. (Id. at 23).
Plaintiffs sued defendant on September 26, 2011. (Docket no. 1). On April 26, 2012, defendant served interrogatories and requests for production on plaintiff, Sackheim. At Sackheim's request, the parties then entered into a written agreement requiring Sackheim to file any objections on or before May 29, 2012 and answers and responses on or before June 12, 2012. On May 29, 2012, Sackheim filed objections to all but one of the fifteen requests for production. (Docket no. 33, exh. 1). On or about June 11, 2012, Sackheim filed, subject to her earlier objections, responses to defendant's first request for production and answers to defendant's first set of interrogatories. (Id., exhs. 2 and 3). Sackheim maintains that on July 5, 2012, defendant's attorney inspected Sackheim's documents at Sackheim's attorney's office. Additionally, Sackheim states she produced nine boxes of records, and further, that copies of documents were made and forwarded to defendant on July 24, 2012.
Defendant moves to compel Sackheim to serve full and complete responses to defendant's first request for production and first set of interrogatories. Additionally, defendant seeks to have Sackheim's objections overruled and seeks costs incurred in bringing this motion. Finally, the parties have filed a joint motion to abate part of the scheduling order deadlines.
I. Motion to Compel
A. Requests for Production
Defendant Lynch seeks an order overruling Sackheim's objections to defendant's requests for production, and further, seeks an order compelling full and complete responses. In particular, defendant complains of Request Nos. 1-9 and 11-15. Request Nos. 1-9 and 13-15 are set out below:
REQUEST NO. 1: Please produce all documents, including electronically stored information, upon which your damage calculations, as disclosed in your initial disclosure number 3, were based.
*2 REQUEST NO. 2: Please produce any and all checks, transfer of assets or other payments of any kind or nature that were made by Tracy Lynch between December 15, 2000 and August 25, 2009 that you contend breached any of her fiduciary duties.
REQUEST NO. 3: Please produce any and all documents, including electronically stored information, that contain important information concerning the Estate of Bobbie S. Lynch that Tracy Lynch failed to account for as alleged in paragraph 17 of your original complaint and jury demand.
REQUEST NO. 4: Please produce any and all documents, including electronically stored information, that contain important information concerning the Estate of Bobbie S. Lynch that Tracy Lynch failed to disclose to Plaintiffs as alleged in paragraph 17 of your original complaint and jury demand.
REQUEST NO. 5: Please produce any and all documents, including electronically stated information, that include information concerning Tracy Lynch using her position as independent executrix of the Estate of Bobbie S. Lynch to gain benefits for herself at the expense of Plaintiffs as alleged in paragraph 18 of your original complaint and jury demand.
REQUEST NO. 6: Please produce any and all documents, including electronically stored information, that include information concerning Tracy Lynch placing herself in a position where her self-interest conflicted with her obligations as a fiduciary during the time that Tracy Lynch was the independent executrix of the Estate of Bobbie S. Lynch as alleged in paragraph 19 of your original complaint and jury demand.
REQUEST NO. 7: Please produce any and all documents, including electronically stored information, that include information concerning Tracy Lynch failing to exercise the most scrupulous honesty towards Plaintiffs during the time that Tracy Lynch was the independent executrix of the Estate of Bobbie S. Lynch as alleged in paragraph 20 of your original complaint and jury demand.
REQUEST NO. 8: Please produce any and all documents, including electronically stored information, that include information concerning Tracy Lynch engaging in transactions that were not fair and equitable to Plaintiffs during the time that Tracy Lynch was the independent executrix of the Estate of Bobbie S. Lynch as alleged in paragraph 21 of your original complaint and jury demand.
REQUEST NO. 9: Please produce any and all documents, including electronically stored information, that include information that you contend indicate that Tracy Lynch acted intentionally and with conscious indifference towards the rights of Plaintiffs during the time that Tracy Lynch was the independent executrix of the Estate of Bobbie S. Lynch.
REQUEST NO. 13: Please produce any and all documents, including electronically stored information, that include acts and/or omissions of Tracy Lynch while as independent executrix of the Estate of Bobbie S. Lynch that you contend breached her fiduciary duty and occurred after September 26, 2007.
REQUEST NO. 14: Please produce any and all documents, including electronically stored information, that identify assets that you contend should have been included in the Estate of Bobbie S. Lynch but currently are not.
REQUEST NO. 15: Please produce any and all documents, including electronically stored information, that include information concerning damages that you contend you suffered as a result of any alleged co-mingling of the Estate of Bobbie S. Lynch with the Estate of Wilbur Waldo Lynch.
*3 In response to each of these requests, plaintiff, Sackheim, objected as follows:
Plaintiff objects to [these] request[s] as [...] vague, uncertain, open to speculation, and excessively broad. Plaintiff also objects to [these] request[s] because he is unable to determine with reasonable certainty what he is being called upon to produce. Plaintiff also objects to [these] request[s] because [they] inquire[ ] as to attorney mental processes and trial strategies, and not to specific documents. Plaintiff also object to [these] request[s] because [they] improperly seek[ ] to require a marshaling of evidence by plaintiff. Finally, plaintiff objects to the production of documents except as they are kept in the ordinary course of plaintiffs' business.
Although Sackheim subsequently responded to defendant's requests for production on June 8, 2012, Sackheim's response was “subject to plaintiff's objections.” Further, Sackheim stated in response to each of defendant's requests that “responsive documents may be inspected and copied at the offices of plaintiffs' attorney on reasonable notice during customary business hours. Alternatively, Sackheim will produce a DVD containing digital images of the responsive documents at defendant's cost.”
Rule 34 requires a party to whom the request is directed to respond to each item or category, and state either inspection and related activities will be permitted as requested or an objection to the request, including the reasons. FED.R.CIV.P. 34(b)(2)(B). Further, Rule 34 specifically provides that “[a]n objection to part of a request must specify the part and permit inspection of the rest.” Id., (C). Moreover, the objection must be specific and general boilerplate objections are insufficient. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)(objections to document requests on the ground that they were “overly broad, burdensome, oppressive, and irrelevant” were insufficient)(citations omitted); S.E.C. v. Brady, 238 F.R.D. 429, 436 (N.D. Tex. 2006)(“The burden is on the ‘party who opposes its opponent's request for production to ‘show specifically how ... each [request] is not relevant or how each [request] is overly broad, burdensome or oppressive.’ ’ ”).
Here, although Sackheim subsequently produced documents, she did so subject to her prior objections. However, these objections fail to comply with Rule 34 in that they fail to specify what part, if any, of each of the requests set forth above plaintiff continues to object to and what part, if any, plaintiff has responded to. As such, it is impossible to ascertain whether Sackheim has fully and completely responded. See Enron Corp. Savings Plan v. Hewitt, 258 F.R.D. 149, 153, fn. 1 (S.D. Tex. 2009)(citing Drexel Heritage Furnishings, Inc. v. Furniture USA, Inc., 200 F.R.D. 255, 258 (M.D.N.C. 2001)). Additionally, Sackheim's objection that these requests are “vague, uncertain, open to speculation, and excessively broad” is woefully deficient. See McLeod, Alexander, Powel & Apffel, P.C., 894 F.2d at 1485.
Further, to the extent Sackheim has withheld information on the grounds of privilege, Sackheim was required to “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that ... will enable other parties to assess the claim.” FED.R.CIV.P. 26(b)(5)(A)(ii). Here, Sackheim asserts the work product doctrine but fails to comply with the requirements of Rule 26.
*4 Finally, although plaintiff objects that she is being asked to marshal the evidence, Rule 34 provides that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” FED.R.CIV.P. 34(b)(2)(E)(1). In this case, plaintiff has chosen to produce the documents as they are kept in the usual course of business. However, this does not relieve plaintiff of the obligation to respond to each item or category and to either “state that inspection and related activities will be permitted as requested” or “state an objection to the [specific] request, including the reasons.” Accordingly, defendant's motion to compel is GRANTED as to Request Nos. 1-9 and 13-15.[1]
Sackheim also objected to Request No. 11, which states:
Please produce any and all documents, including electronically stored information, that includes communications between you and any third-party concerning the acts and/or omissions of Tracy Lynch during the time that Tracy Lynch was acting as the independent executrix of the Estate of Bobbie S. Lynch.
More specifically, Sackheim objected “to this request to the extent it seeks production of plaintiff's attorney-clientcommunications.” Sackheim offered to confer with defendant in attempt to resolve this discovery dispute and stated that if the parties were unable to resolve their discovery dispute, she would file a motion for protective order “to relieve it of the obligation to produce a privilege log as the compiling of the information for the privilege logwould be unreasonable [sic] burdensome.” Defendant responds that it has agreed to limit this request to exclude Sackheim's attorneys.
A party asserting attorney client privilege must show that: (1) legal advice of any kind was sought; (2) from a professional legal advisor; (3) the communications pertain to this legal advice; (4) the communications were made in confidence by the client; (5) the communications are permanently protected from disclosure by the client or by the legal advisor; and (6) the protection was not waived.” U.S. v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982)(citing 8 J. WIGMORE EVIDENCE § 2292, at 554 (J. McNaughton rev.1961)). Given defendant's concession to amend this request to exclude communications between the plaintiff and her attorney(s), the Court finds plaintiff's objections should be overruled; defendant's motion to compel a complete and full response to request no. 11, as amended, is GRANTED.
Next, the Court considers Sackheim's objection to Request No. 12 which states:
Please produce any and all documents, including electronically stored information, that you intend to present to the jury during the trial of this matter other than those documents presented solely for rebuttal purposes.
This request tracks the language of Rule 26(a)(1)(A)(ii) which provides that “a party must, without awaiting a discovery request, provide to the other parties: ... a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”
*5 Nevertheless, Sackheim maintains this request is improper “because it inquires as to attorney mental processes and trial strategies, and not to specific documents.” However, Sackheim fails to “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that ... will enable other parties to assess the claim.” FED.R.CIV.P. 26(b)(5)(A)(ii).
Plaintiff also argues, without citing any authority, that Rule 26 is inapplicable because “it only addresses initial disclosures ... that plaintiffs have made and to which defendant has made no objection.” Rule 26, sets out a time for objecting to pretrial disclosures, and specifically provides the following:
Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made—except for one under Federal Rule of Evidence 402 or 403—is waivedunless excused by the court for good cause.
FED.R.CIV.P. 26(a)(3)(B). Plaintiff fails to provide the Court with the disclosures it made; accordingly, the Court is unable to ascertain whether an objection should have been lodged. Accordingly, defendant's motion to compel a complete and full response to request no. 12 is GRANTED.
B. Interrogatories
Defendant also seeks to compel Sackheim to provide full and complete answers to the following interrogatories:
Interrogatory No. 1: Please specifically identify, in as much, detail as possible, all of the important informationconcerning the Estate of Bobbie S. Lynch that you contend Tracy Lynch failed to account for and disclose as alleged in paragraph 17 of your original complaint and jury demand.
Interrogatory No. 2: Please specifically identify, in as much detail as possible, including but not limited to the date, each and every instance when you contend Tracy Lynch used her position as independent executrix of the Estate of Bobbie S. Lynch to gain benefits for herself [at] the expense of plaintiffs as alleged in paragraph 18 of your original complaint and jury demand.
Interrogatory No. 3: Please specifically identify, in as much detail as possible including but not limited to the date, each and every occasion when you contend Tracy Lynch placed herself in a position where her self-interest conflicted with her obligations as a fiduciary as alleged in paragraph 19 of your original complaint and jury demand.
Interrogatory No. 4: Please specifically identify, in as much detail as possible including but not limited to the date, each and every occasion when you contend Tracy Lynch failed to exercise the most scrupulous honesty towards plaintiffs as alleged in paragraph 20 of your original complaint and jury demand.
Interrogatory No. 5: Please specifically identify, in as much detail as possible including but not limited to the date, each and every transaction that you contend was not fair and equitable to Plaintiffs as alleged in paragraph 21 of your original complaint and jury demand.
Interrogatory No. 6: Please specifically identify, in as much detail as possible, any and all assets, claims and other items of value that you contend should be a part of the Estate of Bobbie S. Lynch that are currently not a part of the Estate of Bobbie S. Lynch.
*6 Interrogatory No. 7: Please describe, in as much, detail as possible, how you contend you were damaged by the purported acts and omissions of Tracy Lynch while she was acting as the independent executrix of the Estate of Bobbie S. Lynch from December 15, 200[sic] through August 25, 2009 as alleged in your original complaint and jury demand.
Interrogatory No. 8. Please identify, in as much detail as possible including but not limited to the date and check number or other identifying number, each transaction, check or ocher [sic] transfer of money that was made by Tracy Lynch between December 15,2000 and August 25,2009 that you contend violated any fiduciary duty that Tracy Lynch owed to you in connection with the Estate of Bobbie S. Lynch.
Interrogatory No. 9: Please describe, in as much detail as possible including amounts, any and all damages that you contend that you suffered as a result of any co-mingling of the assets of the Estate of Bobbie S. Lynch with assets of the Estate of Wilbur Waldo Lynch.
Interrogatory No. 10: Please identify, in as much detail as possible, any and all acts and/or omissions of Tracy Lynch that occurred between December 15, 2000 and August 25, 2009 that you contend support an award of exemplary damages.
Sackheim responded to each of the above interrogatories as follows:
The answer to [these] interrogator[ies] may be determined by examining, auditing, compiling, abstracting, or summarizing (i) plaintiffs' business records and the documents submitted to special master Gary Davidson and used by him in preparing his report which plaintiffs have produced in response to defendant's request for production of documents, (ii) the pleadings, filed in Cause No. 00-071-PR, The Estate of Bobbie S. Lynch, Deceased, filed in the County Court at Law of Kendall County, Texas, and Cause No. 05-090-PR, The Estate of Wilbur Waldo Lynch, filed in the County Court at Law of Kendall County, Texas, and (iii) the factual allegations set forth in plaintiffs' motion for summary judgment.
Rule 33 requires each interrogatory “to the extent it is not objected to, [to] be answered separately and fully in writing under oath.” FED.R.CIV.P. 33(b)(3). This rule further provides that “[t]he grounds for objecting to an interrogatory must be stated with specificity.” Id., (4). Further, this rule allows a party the option to produce business records in lieu of a response, providing that:
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
FED.R.CIV.P. 33(d)(1), (2).
In the present case, Sackheim did not answer any of the interrogatories “separately and fully in writing” and further, failed to state grounds for objecting to these interrogatories with specificity. Id., (b)(3)(4). Instead, in response to ten separate interrogatories, Sackheim referred defendant to the entire set of pleadings contained in two separate probate cases, the factual allegations contained in plaintiffs' motion for summary judgment, and all of plaintiffs' business records and documents submitted to special master Gary Davidson “and used by him in preparing his report which plaintiffs have produced in response to defendant's request for production of documents.” This is problematic given that Sackheim has sued the defendant for breach of fiduciary duty while defendant was the independent executrix of the Estate of Bobbie S. Lynch. Defendant served as the independent executrix of the Estate of Bobbie S. Lynch for almost nine years. During a large portion of this time, defendant also assisted in running the oil and gas business of her father, Wilbur Waldo Lynch, both before and after his death on July 28, 2005; additionally, defendant served as the independent executrix of her father's estate. As such, defendant states she “engaged in literally thousands of transactions related to the estates of her parents including the oil and gas business.” Consequently, Sackheim's response that defendant can obtain the answers to interrogatories pertaining to the allegations in the present case by “examining, auditing, compiling, abstracting, or summarizing” the numerous documents referred to by Sackheim is wholly insufficient.
*7 Moreover, Sackheim fails to comply with FED.R.CIV.P. 33 (d)(1), (2), which requires Sackheim to specify the records which must be reviewed “in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.” Accordingly, defendant's motion to compel has merit as to plaintiff, Sackheim's Answers to Defendant's First Set of Interrogatories and is GRANTED.
IT IS THEREFORE ORDERED that defendant's motion to compel is GRANTED; Sackheim's objections are overruled and Sackheim is Ordered to provide full and complete answers to defendant's first set of interrogatories and responses to defendant's first requests for production within 15 days from the date of this order.
C. Costs
Finally, defendant seeks $5,000.00 as reasonable expenses incurred as a result of filing its Motion to Compel. Rule 37 provides that if the motion is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” FED.R.CIV.P. 37(a)(5)(A).
Accordingly, plaintiff is ORDERED TO SHOW CAUSE, no later than October 15, 2012, why reasonable expenses incurred in making this motion, including attorney's fees should not be awarded to the defendant.
II. Motion to Abate Filing of Pretrial Materials
On July 20, 2012, the parties filed a joint motion to abate the filing of the pretrial materials in paragraph 4 of the court's scheduling order of April 23, 2012, which requires that the parties file their witness designations, exhibit lists, and Rule 26(a)(2)(B) materials beginning on October 1, 2012. (Docket no. 25). The parties maintained this action was necessary due to pending motions. However, as these matters have now been addressed, the motion to abate would appear to be unnecessary; accordingly, the parties' motion to abate is DENIED.
However, the Court finds that some changes to the Scheduling Order are necessary and consequently, amends the Scheduling Order, entered on April 23, 2012 (docket no. 25), as follows:
4. All parties asserting claims for relief shall file their designation of potential witnesses, testifying experts, and proposed exhibits, and shall serve on all parties, but not file the materials required by FED. R. CIV. P. 26(a)(2)(B)by November 1, 2012. Parties resisting claims for relief shall file their designation of potential witnesses, testifying experts, and proposed exhibits, and shall serve on all parties, but not file the materials required by FED. R. CIV. P. 26(a)(2)(B) by December 3, 2012. All designations of rebuttal experts shall be designated within 15 days of receipt of the report of the opposing expert.
5. An objection to the reliability of an expert's proposed testimony under Federal Rule of Evidence 702 shall be made by motion, specifically stating the basis for the objection and identifying the objectionable testimony, within 30 days of receipt of the written report of the expert's proposed testimony, or within 30 days of the expert's deposition, if a deposition is taken, whichever is later.
6. The parties shall complete all discovery on or before January 7, 2013. Counsel may by agreement continue discovery beyond the deadline, but there will be no intervention by the Court except in extraordinary circumstances, and no trial setting will be vacated because of information obtained in post-deadline discovery.
*8 7. All dispositive motions shall be filed no later than January 28, 2013. Dispositive motions as defined in Local Rule CV-7(h) and responses to dispositive motions shall be limited to 20 pages in length. Replies, if any, shall be limited to 5 pages in length in accordance with Local Rule CV-7(e).
8. The trial date will be determined at a later date by the Court. The parties shall consult Local Rule CV-16(e) regarding matters to be filed in advance of trial. At the time the trial date is set, the Court will also set the deadline for the filing of matters in advance of trial.
It is so ORDERED.
Footnotes
Plaintiff also argues that because defendant did not object to plaintiff's disclosures that defendant cannot rely on Fed.R.Civ.P. 26(a)(1)(A)(iii) to support its position that it is entitled to documents supporting plaintiff's calculations for damages. However, plaintiff's disclosures are not before the Court and it is unclear how defendant's failure to object to plaintiff's initial disclosures would preclude plaintiff from obtaining documents in response to defendant's request for production which are clearly relevant to plaintiffs' claims and/or defendant's defense.