*1 The above matter came on before the undersigned on December 19, 2007 upon plaintiffs’ motions for Contempt and Sanctions [Docket No. 81], to Compel Discovery and for Attorneys’ Fees, Costs and Sanctions [Docket No. 87], and to Amend for Punitive Damages [Docket No. 100]; and on defendants’ motions for Protective Order [Docket No. 100] and to Strike Plaintiffs’ Reply Briefs [Docket No. 140]. Mikael Merissa, Esq., appeared on behalf of plaintiffs. Jennifer C. Kalvestran, Esq., and Steven H. Silton, Esq. appeared on behalf of defendants.

The Court, being duly advised in the premises, upon all of the files, records, and proceedings herein, and for the reasons stated on the record at the hearing, now makes and enters the following Order.

IT IS HEREBY ORDERED that:

MEMORANDUM

I. MOTION FOR CONTEMPT AND SANCTIONS [Docket No. 81]

In May, 2007, defendants brought a motion to quash subpoenas that had been served by plaintiffs. The subpoenas required non-party employees, including Selamawit Mulugeta, the wife of defendant Abera Mulugeta, to produce employment contracts and documents between the employees and Abera Mulugeta and Selam Hospitality Services. By Order dated June 8, 2007, this Court denied the motion to quash. See Docket No. 76. Plaintiffs re-served the same subpoenas on July 16, 2007. The deadline to answer the subpoenas was July 31, 2007. Selamawit Mulugeta did not provide any response or objection to the subpoenas. After plaintiffs’ counsel requested an answer to the subpoena on several occasions, on October 5, 2007, counsel for defendants wrote plaintiffs’ counsel that the subpoena was invalid because it was not signed, plaintiffs’ counsel did not provide Ms. Mulugeta with a copy of the duties and responsibilities of subpoenaed parties, and plaintiffs’ counsel did not provide payment for the expense Ms. Mulugeta would incur to locate and copy responsive documents. As such, defense counsel contended that Ms. Mulugeta had no obligation to respond to the subpoena. Plaintiffs subsequently brought this motion for contempt and sanctions. [Docket No. 81].

If Ms. Mulugeta did not believe that the subpoena which plaintiffs served on July 16, 2007 met the requirements of Fed. R. Civ. P. 45, then the proper recourse for addressing the invalid subpoena was to file an objection to the subpoena with the court, or to move to quash the subpoena. Ignoring the subpoena for several months was not the proper course of action. Consequently, at the hearing, the Court ordered plaintiffs to re-serve the subpoena on Ms. Mulugeta by December 20, 2007, and ordered Ms. Mulugeta to respond to the subpoena by producing documents or serving objections by December 28, 2007.[1]

*2 Plaintiffs’ motion for attorneys fees was denied as the conduct of both parties was inconsistent with the Federal Rules of Civil Procedure.

II. MOTION TO COMPEL DISCOVERY AND FOR ATTORNEYS’ FEES, COSTS AND SANCTIONS [Docket No. 87] and MOTION FOR PROTECTIVE ORDER [Docket No. 100]

Plaintiffs brought a motion to compel defendant Abera Mulugeta to answer questions related to two separate issues that he was instructed not to answer by defense counsel at his deposition on September 28, 2007. Those topics concerned a document entitled “Contractual Agreement with Tesfaye Gebremariam,” (hereafter referred to as the “Contract”) and alleged interactions between Mulugeta and a woman named Mahder Girma. On the same date plaintiffs brought their motion to compel, defendants moved for a protective order preventing plaintiffs from delving into Mulugeta’s contacts with Girma.

A. Contract

On March 20, 2006, plaintiffs served defendants with their First Set of Interrogatories. Interrogatory No. 5(d) asked defendants to “Identify all contracts oral or written in connection with Best Mart Liquors.” Defendants responded to the Interrogatory on December 4, 2006, and stated that “Pursuant to Fed. R. Civ. P. 33(d), see document produced regarding Mr. Gebremariam’s contract with Best Mart Liquors.” Defendants subsequently produced a document entitled “Contractual Agreement with Tesfaye Gebremariam.” Plaintiffs claimed that they had never seen the document before, and that they believed that defendant Mulugeta had drafted it after the commencement of this lawsuit. Defendants subsequently admitted that the Contract was created after the commencement of litigation as an English language translation of the original contract, and the replication was necessitated by this lawsuit. Def. Mem. in Opp. to Mot. to Compel, p. 10 [Docket No. 38]; Declaration of Abera Mulugeta [Docket No. 39], ¶ 6 (“The contract on my computer is a replica typed in English that was prepared after the lawsuit was started, in order to record the contents of the original Amharic document. The only version of the original was given to Mr. Gebremariam, so I wrote the English version from memory.”). Plaintiffs sought the document in its native format, complete with all metadata. Defendants eventually produced an electronic version on a compact disc; however, the version on the CD was different than the document that had been produced in response to Interrogatory No. 5(d). Subsequently, on April 26, 2007, plaintiffs filed a Motion to Compel the document in its native format with all metadata intact. [Docket No. 25]. By Order dated May 15, 2007, the Court directed defendants to produce the contract in electronic form, including its native format and all metadata. See May 15, 2007 Order, p. 3 [Docket No. 46]. Defendants complied.

Mulugeta was deposed on September 28, 2007. During questioning related to the creation of the contract, the following exchange took place:

Merissa Aff., Ex. D, pp. 145-7 (Deposition of Mulugeta).

This line of questioning continued, with defense counsel objecting on the basis that the information was privileged and constituted work product that was done by a client at the instruction of counsel. Id., pp. 147-49. Mulugeta acknowledged that he prepared the document at the instruction of his counsel. Id., 149:15-17.

Plaintiffs now bring the current motion to compel Mulugeta to appear again for deposition to provide answers to the questions he was instructed not to answer at his original deposition. Plaintiffs’ argument is based on three grounds. First, plaintiffs assert that since Mulugeta testified in part as to the communications regarding the creation of the document, he waived any privilege as to the remainder of the communications. Pl. Mem. in Support of Mot. to Compel, p. 4 [Docket No. 89]. Second, plaintiffs contend that the communications lost their privileged nature because of the crime-fraud exception. Id., p. 5. Third, plaintiffs argue that any privilege concerning the contract was waived when defendants produced it as a business record pursuant to Rule 33(d). Pl. Mem. in Further Support of Mot., p. 1 [Docket No. 148].

1. Testimony Regarding the Document

Plaintiffs argue that because Mulugeta testified regarding the agreement, he waived any attorney-client privilege associated with the contract.

“Voluntary disclosure of attorney client communications expressly waives the privilege.” United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998) (citations omitted). See also In re Grand Jury Proceedings Subpoena to Testify to: Wine, 841 F.2d 230, 234 (8th Cir. 1988) (“Voluntary disclosure is inconsistent with the confidential attorney-client relationship and waives the privilege.”). Waiver is generally applicable to “all communications on the same subject matter.” PaineWebber Group, Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d 988, 992 (8th Cir. 1999). The waiver covers any information directly related to that which was actually disclosed. 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2016.2.

Here, the information that Mulugeta disclosed at his deposition prior his refusal to answer questions regarding the Contract was the statement “My lawyer asked me what was the agreement when the three of us sit down the first time when we sit down –.” Merissa Aff., Ex. C., p. 145:14-16. At that point, Mulugeta was interrupted by his attorney, who asserted privilege and instructed Mulugeta to stop talking. Id., 145: 17-19. At the time the objection was interposed, Mulugeta had not revealed the content of any privileged communication between himself and his attorney. Although Mulugeta later admitted that he created the document at the behest of counsel (see id. at 149:15-17), that disclosure did not reveal the content of a privileged communication. Consequently, the Court does not find that Mulugeta’s statements during his deposition regarding his attorney’s role in the development of the Contract waived any attorney-client communications between him and his attorney.

2. Crime-Fraud Exception

*4 Plaintiffs also claim that any attorney-client privilege associated with the Contract was waived under the crime-fraud exception.

Kilpatrick v. King, 499 F.3d 759, 766 (8th Cir. 2007).

“There must be a specific showing that a particular document or communication was made in furtherance of the client’s alleged crime or fraud. Because the attorney-client privilege benefits the client, it is the client’s intent to further a crime or fraud that must be shown. Both the attorney’s intent, and the attorney’s knowledge or ignorance of the client’s intent, are irrelevant.” In re BankAmerica Corp. Sec. Litig., 270 F.3d at 642 (internal citations omitted). “With respect to the quantum of proof, before the crime-fraud exception may be applied, the moving party must ‘make a prima facie showing that the legal advice has been obtained in furtherance of an illegal or fraudulent activity.’ ” In re Green Grand Jury Proceedings, 492 F.3d 976, 982 (8th Cir. 2007) (quoting United States v. Horvath, 731 F.2d 557, 562 (8th Cir. 1984)). The level of proof necessary to justify application of the crime-fraud exception is met where the crime or fraud is established, and there is probable cause to believe that a crime or fraud has been perpetrated. Id. at 983.

Plaintiffs argue that the Contract was produced as a business record in response to an interrogatory, and was represented as the governing contract without qualification. Defendants’ response to Interrogatory No. 5 stated that “Pursuant to Fed. R. Civ. P. Rule 33(d), see document produced regarding Mr. Gebremariam’s contract with Best Mart Liquors.” Merissa Aff., Ex. A. At the time, defendants did not state, as they do now, that that the document was created during the litigation to reflect their understanding of the terms of the oral agreement. See Def. Resp. to Mot. to Compel, pp. 4-5 [Docket No. 126]. Because the Contract was created and produced during the course of litigation, plaintiffs ask this Court to conclude that it was fraudulent and in furtherance of defendants’ scheme to defraud plaintiffs. Pl. Mem. in Support of Mot. to Compel, p. 6.

Plaintiffs’ theory fails because they have not made a prima facie showing that Mulugeta obtained legal advice to further a crime or fraud. While it is now clear that the Contract was not the written agreement between the parties and was not a business record, as represented by defendants in their answer to Interrogatory No. 5,[2] these facts do not establish fraud, much less probable cause to believe that a crime or fraud has been perpetrated. In other words, apart from plaintiffs’ argument that the Contract was created to further a crime or fraud, there is no evidence in the record to support that argument. Plaintiffs’ attempt to delve into the communications between Mulugeta and his attorneys regarding the Contract based on the crime-fraud exception is denied.

3. Production Under Rule 33(d)

*5 Finally, plaintiffs contend that any privilege associated with the Contract was waived when defendants produced the document during discovery pursuant to Rule 33(d). Pl. Mem. in Further Support, p. 3 [Docket No. 148]. In response, defendants state that any waiver of the protection afforded to the document under the work-product doctrine does not in turn waive the privileged communications between defendants and their attorneys regarding the document. Def. Letter to Mag. Judge, p. 2 [Docket No. 147]. In fact, defendants admit that “[p]laintiffs were entitled to all information requested regarding the [Contract], except those that were privileged.” Id.

“[D]isclosure to an adversary waives work product protection as to items actually disclosed.” Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997) (citing In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir. 1988)). Defendants deliberately disclosed the Contract in response to an interrogatory. The disclosure was not inadvertent, but was intended. See Gundacker v. Unisys Corp., 151 F.3d 842, 848 (8th Cir. 1998) (waiver requires disclosure to an adverse party and intention that the adverse party see the work product). “If documents otherwise protected by the work-product rule have been disclosed to others with an actual intention that an opposing party may see the documents, the party who made the disclosure should not subsequently be able to claim protection for the documents as work product.” 8 Wright and Miller, Federal Practice and Procedure, Civil, § 2024 at 209. As such, work product protection as to the Contract itself was waived when it was produced to plaintiffs.

However, while the document itself is no longer protected from disclosure, it is entirely another matter to subject Mulugeta to questioning that could reveal his attorney’s mental impressions and strategy or communications the attorney had with Mulugeta regarding the Contract. “Not even the most liberal discovery theories can justify unwarranted inquiries into files and mental impressions of an attorney.” Hickman, 329 U.S. at 510. “Rule 26(b)(3) contemplates, however, that even when a party can justify the production of work product documents, the court must protect against the disclosure of the opinions, mental processes and legal theories of an attorney.” United States v. District Council of New York City and Vicinity of United Broth. of Carpenters and Joiners of America, 1992 WL 208284 at *6 (S.D.N.Y. Aug. 18, 1992). Consequently, “a deponent in the course of a deposition may not be asked questions that would reveal expressly his or his lawyer’s mental impressions, conclusions, opinions, or legal theories concerning the litigation.” Diemer v. Fraternal Order of Police, Chicago Lodge 7, 242 F.R.D. 452, 458 n. 9 (N.D.Ill. 2007) (citing Russell v. General Elec. Co., 149 F.R.D. 578, 581 (N.D.Ill.1993) and Barrett Industrial Trucks, Inc. v. Old Republic Insurance Co., 129 F.R.D. 515, 518 (N.D.Ill. 1990)). See also Clute v. Davenport Co., 118 F.R.D. 312, 315-16 (D.Conn. 1988) (work product covers more than physical objects and documents; deposition questions of plaintiff seeking information that would give indirect access to opposing counsel’s trial strategy and preparation need not be answered); Hydramar, Inc. v. General Dynamics Corp., 119 F.R.D. 367, 372 (E.D.Pa. 1988) (work product doctrine circumscribes the scope of depositions upon oral examination); Bercow v. Kidder, Peabody & Co., 39 F.R.D. 357, 358 (S.D.N.Y. 1965) (deponent not required to answer questions on his preparation for a deposition because it was an indirect attempt to ascertain the manner in which counsel was preparing for trial). Nonetheless, “the work product doctrine does not protect against the discovery of relevant non-privileged facts, whether or not they are contained in protected documents or were learned by an attorney.” District Council of New York City and Vicinity of United Broth. of Carpenters and Joiners of America, 1992 WL 208284 at *6 (citing Hickman, 329 U.S. at 501, 507).

*6 As such, the Court finds that plaintiffs are entitled to factual information regarding the Contract. Plaintiffs may therefore re-depose Mulugeta and inquire into such areas as the creation of the Contract, when he prepared the Contract, how he prepared the Contract, what he reviewed or relied upon in preparation of the Contract, who he consulted or spoke to regarding the contents of the Contract and what was discussed (except as to discussions with his attorney), who else was involved in the creation of the Contract, and the substance of his knowledge regarding the Contract.[3] What plaintiffs may not do, however, is ask questions that would seek to elicit communications between Mulugeta and his attorney regarding the Contract or the attorney’s mental impressions, theories, conclusions or opinions. See Ford v. Philips Electronics Instruments Co., 82 F.R.D. 359, 361 (E.D.Pa. 1979) (“Defendant’s counsel shall be given free reign to inquire into the substance of the witness’ knowledge concerning matters relevant to the subject matter of this action. Such inquiry may not, however, include questions that tend to elicit the specific questions posed to the witness by plaintiff’s counsel, the general line of inquiry pursued by plaintiff’s counsel, the facts to which plaintiff’s counsel appeared to attach significance, or any other matter that reveals plaintiff’s counsel’s mental impressions concerning this case.”).

B. Mahder Girma

Plaintiffs presented the following facts in support of their motion to compel Mulugeta to respond to deposition questions regarding his relationship with Mahder Girma Kidane. Girma is the younger sister of plaintiff Ejegahu Kidane, and the sister-inlaw of plaintiff Tesfaye Gebremariam. Affidavit of Mahder Girma Kidane, ¶ 1 (Merissa Aff., Ex. F to) [Docket No. 105]. Girma became acquainted with Mulugeta when she applied for a job at Selam Hospitality in 2004. Id., ¶ 2. Girma assisted Gebremariam in the preparations to open the liquor store in St. Cloud, Minnesota. Id., ¶ 4. On one occasion, Girma and Mulugeta went shopping for supplies and Mulugeta bought Girma an expensive pen and told her that he was helping Gebremariam in order to “get” Girma. Id. On another occasion, Mulugeta touched Girma inappropriately and asked her to marry him. Id., ¶ 5. Mulugeta repeatedly called Girma on her cell phone and at home, and she told him numerous times that she was not interested. Id., ¶ 6. Girma moved to St. Cloud and began working at Mulugeta’s gas station with her husband. Id., ¶ 7. She stayed with Gebremariam in a house that he and Girma’s husband rented from Mulugeta. Id. Whenever Mulugeta would go to St. Cloud, he would call Girma in advance and tell her that she was not scheduled to work that day, and would then go to her house and let himself in with his own key. Id. Mulugeta told Girma it was in her family’s best interest if she had a relationship with him, and she refused. Id. She quit working at the gas station, and never received payment from Mulugeta for her work there; instead, he included her pay in her sister’s paycheck. Id. Girma again worked for Mulugeta in August of 2005 to fill in for her sister at Selam Hospitality; he again included her wages in her sister’s paycheck. Id., ¶ 8. Mulugeta kept calling Girma; she told him that she would not have a relationship with him. Id., ¶ 9. A short time later, Mulugeta evicted Gebremariam from Best Mart Liquors. Id., ¶ 9. Mulugeta then told her that if she would have sex with him, he would honor the terms of his agreement with Tesfaye Gebremariam. Id. She refused. Id.

*7 During the deposition of Mulugeta, plaintiff’s counsel attempted to inquire as to his contacts with Girma. Defense counsel instructed Mulugeta not to answer any questions about Girma on the basis that they were irrelevant and harassing. See Kalvestran Aff., Ex. A, pp. 167:15-19 [Docket No. 127].

Plaintiffs now move the Court to require Mulugeta to answer questions regarding his interaction with Girma. The basis for plaintiffs’ argument is that defense counsel’s instruction to Mulugeta not to answer the questions because the questions were irrelevant and harassing was not a proper instruction under Rule 30 of the Federal Rules of Civil Procedure.[4]

Rule 30(c)(2) provides:

Rule 30(d)(3)(A) states:

Defense counsel’s instruction to Mulugeta not to answer the questions regarding Girma was improper on several grounds. First, relevancy is not a basis for instructing a deponent not to answer questions and violated Rule 30(c)(2). See Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1, 6 (D.D.C. 2004) (“directing a witness not to answer a question on the grounds of relevance is a clear violation of the Federal Rules of Civil Procedure (F.R.Civ. P. [Rule 30(c)(2)] ) and sanctionable.”); Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995) (“It is inappropriate to instruct a [deponent] not to answer a question on the basis of relevance.”); Ferrell v. Sparkman, 2007 WL 172516 at *2 (E.D.Tenn. Jan. 18, 2007) (citing cases and finding that “[l]ack of relevance is not a valid objection under Rule 30(d)(1), the predecessor to Rule 30(c)(2), and, as a result, is not an appropriate reason to withhold answers to a question posed during a deposition.”).

Second, while suspending a deposition conducted in bad faith or in a manner that was designed to embarrass Mulugeta for the purpose of presenting a motion under Rule 30(d)(3)(A) is proper, counsel did not do that. Instead of halting the deposition and applying for a protective order either during the deposition or subsequent to the deposition, defense counsel took matters into her own hands and instructed Mulugeta to remain silent, which violated Rule 30(c)(2). See Redwood v. Dobson, 476 F.3d 462, 468 (7th Cir. 2007) (where counsel instructed deponent not to answer questions because they were harassing, Rule 30 was violated because counsel did not advance a claim of privilege; the appropriate response was for counsel to call off the deposition and apply for a protective order); see also 1993 Advisory Comments to former Rule 30(d)(1), now Rule 30(c)(2) (stating that directions to a deponent not to answer are prohibited “except in the three circumstances indicated: to claim a privilege or protection against disclosure (e.g., as work product), to enforce a court directive limiting the scope or length of permissible discovery, or to suspend a deposition to enable presentation of a motion under [Rule 30(b)(3) ]”.).

*8 Third, defendants did not move for a protective order until November 1, 2007, more than a month after Mulugeta’s deposition, Def. Mot. for Protective Order [Docket No. 100], and even then, did not present a viable basis for seeking a protective order such as bad faith, oppression, or annoyance. Instead, they argued relevance, which is not a ground for relief under Rule 30(d)(3)(A).

Finally, even if relevancy were a proper basis for seeking relief from the Court, which it is not pursuant to Rule 30(d)(3)(A), under Rule 26 of the Federal Rules of Civil Procedure, “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Here, defendants were well aware that plaintiffs believed the reason, or one of the reasons, that Mulugeta terminated the Best Mart Liquors agreement with Gebremariam was Girma’s refusal to engage in a sexual relationship with Mulugeta, and not because Gebremariam breached the agreement.[5] The topic is relevant and reasonably calculated to lead to the discovery of admissible evidence with regard to several of plaintiffs’ claims including claims of breach of contract and breach of fiduciary. Accordingly, plaintiffs’ motion to compel regarding the questions about Mulugeta’s interaction with Girma is granted, and defendants’ motion for protective order on the same basis is denied.[6]

C. Attorneys Fees and Costs

Plaintiffs seek $1500 in attorneys fees and costs associated with bringing the motion to compel the re-deposition of Mulugeta, and request that defendants be required to pay the deposition costs for the second deposition. Pl. Mem. in Support of Mot. to Compel, p. 8. The Court finds that a partial award of attorneys fees and costs is appropriate.

Rule 30(d)(3)(C) permits awarding of expenses under Rule 37(a)(5). Rule 37(a)(5), which addresses motions for an order compelling disclosure or discovery, provides as follows:

For the reasons set forth above, the Court finds that defense counsel’s instruction to Mulugeta during his deposition not to answer any questions regarding Girma was not substantially justified. However, the Court also finds that defense counsel’s instruction to Mulugeta not to answer questions that could implicate the attorney-client privilege was substantially justified. As such, the Court will only award attorneys fees and costs for that portion of the motion addressing Mulugeta’s interaction with Girma, or $750, which represents half of the amount sought by plaintiffs. With regard to plaintiffs’ request that defendants pay for the cost of the second deposition of Mulugeta, the Court denies that request, as these are costs that plaintiffs would have incurred in any event (i.e. had Mulugeta responded to questions regarding the Contract and his relationship with Girma, plaintiffs would have incurred the costs associated with a longer deposition).

III. MOTION TO AMEND FOR PUNITIVE DAMAGES [Docket No. 100]

*9 Plaintiffs move the Court for permission to amend the Complaint to add a claim for punitive damages. [Docket No. 100]. “ ‘In the Federal Courts of this District, the pleading of punitive damage claims, under causes of actions premised upon the law of the State of Minnesota, must generally conform to the requirements of Minnesota Statutes Sections 549.191 and 549.20.’ ” Berczyk v. Emerson Tool Co., 291 F.Supp.2d 1004, 1008 (D.Minn. 2003) (quoting Olson v. Snap Products, Inc., 29 F.Supp.2d 1027, 1034 (D.Minn. 1998) (citations omitted).

Minn. Stat. § 549.191 states, in pertinent part:

A plaintiff need not demonstrate an entitlement to punitive damages per se, but only an entitlement to allege such damages. Berczyk, 219 F.Supp.2d at 1008. In reviewing the evidence in support of a motion to amend under § 549.191, “the Court makes no credibility rulings, nor does the Court consider any challenge, by cross-examination or otherwise, to the Plaintiff’s proof.” Olson, 29 F.Supp.2d at 1034 (citation omitted); see also Swanlund v. Shimano Indus. Corp., Ltd., 459 N.W.2d 151, 154 (Minn.App. 1990) (citation omitted) (“Prima facie evidence is that evidence which, if unrebutted, would support a judgment in that party’s favor.”).

In order to establish entitlement to punitive damages, Minn. Stat. § 549.20 requires the following:

“[U]nder the deliberate disregard standard, the Court is required to search for evidence which is ‘clear and convincing. To be ‘clear and convincing,’ there must be ‘more than a preponderance of the evidence but less than proof beyond a reasonable doubt.’ ” Olson, 29 F.Supp.2d at 1036 (quoting Ulrich v. City of Crosby, 840 F.Supp. 861 868 (D.Minn. 1994) (citation omitted). The mere existence of negligence or of gross negligence does not rise to the level required so as to warrant a claim for punitive damages. See Ulrich, 840 F.Supp. at 868 (citations omitted).

Plaintiffs’ proposed Second Amended Complaint seeks to allege punitive damages as to their claims of breach of contract, promissory estoppel, conversion, unjust enrichment and constructive trust, breach of fiduciary duty, negligent misrepresentation, and fraudulent misrepresentation. See Proposed Second Amended Complaint, attached as Pl. Reply Mem. in Support of Mot. to Amend, Ex. A [Docket No. 132]. On the other hand, plaintiffs indicated in their supporting memorandum that they were only seeking to assert punitive damages as to their tort claims, and that they should “be allowed to amend their contract claims to assert a claim for punitive damages because the breach of contract was accompanied by the independent tort of breach of fiduciary duty.” Pl. Mem. in Support of Mot., p. 17 [Docket No. 106]. Thus, it is not clear whether plaintiffs are indeed asking permission to add claims of punitive damages for their claims of promissory estoppel and unjust enrichment and constructive trust, as neither claim sounds in tort. Nevertheless, as plaintiffs have pled punitive damages in connection with these two claims in the proposed Second Amended Complaint, (see proposed Second Amended Complaint, ¶¶ 38, 54), the Court will assume they are seeking punitive damages for these claims as well.

*10 Before this Court evaluates the merits of plaintiffs’ motion to add a claim for punitive damages, it must first determine whether a claim for punitive damages can be asserted in connection with a contract claim or a claim for promissory estoppel. As plaintiffs recognize, under Minnesota law, there can be no punitive damages for a breach of contract claim unless that claim is accompanied by an independent tort.

Molenaar v. United Cattle Co., 553 N.W.2d 424, 428 (Minn.App. 1996). Similarly, this Court concludes that in order allege punitive damages in connection with a promissory estoppel claim, plaintiffs must plead and prove the existence of an independent tort. Cf. Deli v. University of Minnesota, 578 N.W.2d 779, 783 (Minn.App. 1998) (finding that in order to recover emotional distress damages in connection with a promissory estoppel claim, plaintiff was required to plead and prove the existence of an independent tort because promissory estoppel is a contract-based claim). “Promissory estoppel is an equitable doctrine that implies a contract in law where none exists in fact.” Javinsky v. Commissioner of Admin., 725 N.W.2d 393, 398 (Minn.App. 2007) (citing Martens v. Minn. Min. & Mfg. Co., 616 N.W.2d 732, 746 (Minn. 2000). “[R]emedies available in contract law are also available under the doctrine of promissory estoppel.” Chester Creek Technologies, Inc. v. Kessler, 2007 WL 3589 at *4 (Minn.App. 2007) (citing Restatement (Second) of Contracts § 90 cmt. d (1981)). See also Walser v. Toyota Motor Sales, U.S.A., Inc.; 43 F.3d 396, 401-402 (8th Cir. 1994) (damages for promissory estoppel are within the court’s discretion; court is not required under Minnesota law to limit the remedy in promissory estoppel cases to out-of-pocket expenses); C.L.D. v. Wal-Mart Stores, Inc., 79 F.Supp.2d 1080, 1087 (D.Minn. 1999) (citing Deli, 578 N.W.2d at 783) (finding promissory estoppel sounds in contract and damages on a promissory estoppel claim are limited to those that would be recoverable on a claim for breach of contract.); Cohen v. Cowles Media Co., 479 N.W.2d 387, 390 (Minn. 1992) (awarding same damages on promissory estoppel claim as available to plaintiff in breach of contract action).

Here, plaintiffs have asserted a claim for breach of fiduciary duty. Minnesota case law recognizes that punitive damages are available for breach of fiduciary duty where the plaintiff is entitled to actual or compensatory damages. See Minnesota Timber Producers Assn’s Inc. v. American Mutual Ins. Co., 766 F.2d 1261, 1267-68 (8th Cir. 1985); Jacobs v. Farmland Mutual Insurance Company, 377 N.W.2d 441, 444 (Minn. 1985); Evans v. Blesi, 345 N.W.2d 775, 780 (Minn.App. 1984). Plaintiffs have requested monetary damages in addition to other forms of relief. See First Amended Complaint, p. 17 [Docket No. 16]. Consequently, because plaintiffs have alleged the independent tort of breach of fiduciary duty, the Court finds that plaintiffs may seek to add a claim of punitive damages in connections with their breach of contract and promissory estoppel claims.

*11 The thrust of defendants’ response to plaintiffs’ motion to amend their complaint to add a claim for punitive damages is four-fold. First, they argue that plaintiffs cannot make out a prima facie showing of breach of fiduciary duty. Def. Resp. to Pl. Mot. to Amend, pp. 9-10. [Docket No. 128]. However, based on the very same facts and arguments made by defendants in their motion for summary judgment, (see Def. Mem. in Support of Mot. for Summary Judgment, pp. 14-16 [Docket No. 122] ), District Judge Paul Magnuson denied defendants’ motion for summary judgment in this case, finding that all of plaintiffs’ claims were viable, including the breach of fiduciary duty claim. See Order dated January 31, 2008 [Docket No. 166]. Accordingly, defendants’ argument that plaintiffs cannot make out a breach of fiduciary duty claim is without merit.

Second, defendants argue that any information relating to any alleged solicitation of an affair or sexual relationship with Girma is irrelevant to the issues in this suit and cannot be considered in connections with plaintiffs’ motion to add a claim for punitive damages. See Def. Resp. to Pl. Mot. to Amend, p. 10. This Court has already determined that the alleged conduct of Mulugeta with respect to Girma is relevant to the claims in this suit and thus, defendants’ relevancy argument is rejected.

Third, defendants maintained that plaintiffs had not submitted any probative evidence that defendants issued false tax documents or otherwise paid them incorrectly. Id. However, by rejecting defendants’ motion for summary judgment on plaintiffs’ FSLA and MFLSA claims, (see Def. Mem. in Support of Mot. for Summary Judgment, pp. 10-11), Judge Magnuson determined that the facts that plaintiffs had provided in support of these claims were sufficiently probative to defeat defendants’ motion. See January 31, 2008 Order, pp. 2, 6 [Docket No. 166]. As such, defendants arguments to the contrary cannot form for the basis for denying plaintiffs’ motion to add a claim for punitive damages.

Finally, defendants generally contend that the evidence submitted by plaintiffs in support of their motion falls far short of what is required to establish that defendants acted maliciously, or with willful disregard for the rights of other. See Def. Resp. to Pl. Mot. to Amend, p. 8. This Court disagrees.

The Court finds that the evidence presented by plaintiffs makes out a prima facie showing that Mulugeta showed deliberate disregard for the rights of plaintiffs. According to plaintiffs, when they immigrated to the United States in 2002, they were sponsored by Mulugeta. Affidavit of Tesfaye Gebremariam, ¶ 2 [Docket No. 110]. Plaintiffs lived with Mulugeta for the first couple of months after arriving in the United States, and came to know and trust Mulugeta as a father figure and mentor. Id., ¶ 3.

Gebremariam worked at Selam Hospitality from July of 2002 to February of 2003, and was paid every two weeks with a sealed envelope filled with cash. Id., ¶¶ 5-6. Gebremariam got a second job at HMS Host in October of 2002, and for the first time, received a pay stub showing the number of hours worked and rate paid. Id., ¶¶ 8-9. He asked Mulugeta why Selam employees did not receive the same types of paychecks, and he said that different businesses did things differently. Id., ¶ 9. For his job at Selam, Gebremariam asked Mulugeta to pay him with a proper paycheck like he received at HMS Host, and Mulugeta refused. Id., ¶ 12. Relatives of Gebremariam arrived in the United States and began working at Selam; they did not receive proper paychecks, either. Id., ¶¶ 15, 17. In December of 2004, plaintiffs began looking into the process of buying their own home, and learned they would need to show proof of income through W-2s or tax returns. Id., ¶ 17. They asked Mulugeta for the forms, and Mulugeta repeatedly told them that they did not need the forms. Id., ¶ 18. Eventually, Mulugeta gave Gebremariam’s wife a false Form 1099 for the year 2004, and Gebremariam a false W-2 for the year 2002. Id., ¶¶ 18-19. Plaintiffs also asked Mulugeta for six months of pay stubs so they could qualify for a mortgage; Mulugeta never provided them. Id., ¶ 21.

*12 In 2004, plaintiffs had saved $20,000 to purchase a home, and asked Mulugeta for advice on how to go about purchasing a house. Id., ¶ 22. A couple of months later, Mulugeta approached plaintiffs and informed them that he had a business opportunity that could benefit plaintiffs. Id. Instead of using the money they had saved to buy a home, Mulugeta told them they could open a liquor store on Mulugeta’s property in St. Cloud, Minnesota. Id. Mulugeta stated that he needed a tenant to rent the property, and asked plaintiffs to be his tenant and open the store. Id. Mulugeta explained that he had already obtained the liquor license, and the $20,000 that plaintiffs had saved would be sufficient to start the business. Id. Mulugeta suggested $2,000 per month in rent, and told plaintiff that they would not be required to pay rent until the business became profitable. Id., ¶ 23. Mulugeta also proposed that plaintiffs pay the liquor store’s gas and electric bills, Mulugeta would provide additional financing when necessary for business expenses, including stocking the store with inventory, and Mulugeta would transfer the liquor license to plaintiffs’ names. Id., ¶ 25. Plaintiffs accepted the offer; Gebremariam quit the job he had held for three years, and moved to St. Cloud and rented an apartment from Mulugeta. Id., ¶ 27. Gebremariam quickly spent the $20,000 he had saved. Id., ¶ 29. Mulugeta set up a business line of credit for the liquor store, and the principal, interest and chargers were paid by plaintiff. Id. Gebremariam also began to help at Mulugeta’s gas station in St. Cloud, which was on the same property. Id., ¶ 31. After the second month of business, the liquor store became profitable and Gebremariam began paying $2,000 per month for rent. Id., ¶ 33. Gebremariam also paid the electricity for the liquor store, but Mulugeta said that he also had to pay forty percent of the electricity bill for the entire premises, including the gas station. Id. Gebremariam first refused, and then agreed because he felt he had no choice. Id.

Gebremariam approached Mulugeta and asked him to transfer the liquor store license as he had previously promised. Id., ¶ 34. After Gebremariam asked many more times, Mulugeta told him that he would have the necessary documents drafted. Id. In July or August of 2005, Mulugeta told Gebremariam that he had the paperwork drafted to transfer the liquor license. Id., ¶ 35. The paperwork was in English, and because he did not read English, Gebremariam wanted an Amharic translation. Id. Gebremariam drove to St. Paul to get the document translated, and learned that the document did not transfer the liquor license as promised, but instead was a lease agreement inconsistent with their earlier agreement. Id. Gebremariam did not agree to the new terms, and tried to negotiate with Mulugeta. Id., ¶ 36. Mulugeta told Gebremariam that if he refused to sign the lease, he would evict him. Id. Mulugeta also pressured Gebremariam by telling him he had to sign a one -year lease on the apartment Gebremariam rented from Mulugeta; since Gebremariam worked such long hours, it was difficult for him to find a new apartment. Id., ¶ 37. Mulugeta knew Gebremariam had an old car that could not withstand the commute from St. Paul to St. Cloud. Id. Gebremariam finally found a new apartment after commuting back and forth for over two weeks. Id.

After Gebremariam refused to sign the lease for the liquor store, on August 28, 2005, Mulugeta called Gebremariam at his home in St. Paul, and told him he was going to have an inventory done of the liquor store the next morning. Id., ¶ 38. When Gebremariam arrived at the liquor store early the next morning, he found that Mulugeta had let himself and the inventory person into the store and that the inventory was almost finished. Id., ¶ 38. The results indicated the worth of the inventory to be $44,000. Id., ¶ 38. Mulugeta wrote Gebremariam checks amounting to $22,000, and told him to leave the store or he would call the police. Id., ¶ 39. Gebremariam took the money because he had no insurance, no business and no job. Id., ¶ 39.

Shortly after he was evicted from the store, Gebremariam discovered that Mulugeta had been stalking his sister-in-law, Girma, for months and had been pressuring her to have a sexual relationship with him. Id., ¶ 40. Shortly after Girma rejected Mulugeta’s “one last chance” to accept his offer, Mulugeta evicted Gebremariam from the liquor store. Id., ¶ 40. Mulugeta then approached Girma again and told her that he would honor the original contract with Gebremariam if she would change her mind. Id., ¶ 40.

After he filed this suit, Mulugeta sent people to tell Gebremariam that he would have him deported, and that he would tell immigration officials that he was no longer Gebremariam’s sponsor. Id., ¶ 42. Current and former employees of Mulugeta also told Gebremariam that Mulugeta pressured them to sign papers saying they would not cooperate or participate in the lawsuit, and threatened that he would report them to immigration officials if they refused. Id., ¶ 43. Mulugeta also fired Gebremariam’s wife, brother, and sister-in-law, and Gebremariam’s brother-in-law Zeinu when he refused to sign a letter removing Zeinu’s name from this lawsuit. Id., ¶ 44.

*13 Accepting plaintiffs’ allegations as true for the purpose of the motion, this evidence, if established, shows that Mulugeta exploited plaintiffs’ inexperience and eagerness to succeed as new American residents for his own monetary gain. Mulugeta sponsored plaintiffs’ immigration, and upon their arrival, determined their employment, livelihood and living arrangements. When plaintiffs had saved enough money to purchase a house, they asked Mulugeta to provide them with W-2 forms and pay stubs, and Mulugeta refused to provide that information in violation of federal and state wage laws. This endangered plaintiffs’ citizenship status and subjected them to potential tax liabilities.

Knowing that plaintiffs had saved money for a house and had approached him for advice on buying a house, Mulugeta instead talked them into using their savings to set up a liquor store on property that he owned, again for his own monetary gain. Based on oral agreement reached between Mulugeta and Gebremariam, Gebremariam set up the store, stocked it, ran it, paid the electricity and gas bills for it, and made payments toward the business line of credit set up by Mulugeta. After Gebremariam repeatedly asked Mulugeta to transfer the liquor license to him as they had agreed, Mulugeta provided Gebremariam with documentation that he said was for that purpose, but instead it was a lease agreement inconsistent with that which Mulugeta had promised Gebremariam. As soon as plaintiffs attempted to negotiate the terms of the lease, Mulugeta took whatever property plaintiffs had in the liquor store without discussion, negotiation, or adequate notice. Any compensation Mulugeta provided to Gebremariam was an amount determined by Mulugeta alone. Mulugeta used Gebremariam’s savings to set up the liquor store, and when Gebremariam tried to enforce his oral agreement with Mulugeta, Mulugeta summarily evicted him and threatened to call the police if he returned. These actions present prima facie evidence that Mulugeta acted in deliberate disregard of plaintiffs’ rights.

Finally, Mulugeta’s unwanted advances toward Gebremariam’s sister-in-law Girma, accompanied by the threat that refusing him would be detrimental to her family, along with Mulugeta’s firing of Gebremariam’s family members, lend further support to plaintiffs’ contention that Mulugeta acted in deliberate disregard for the rights of plaintiffs.

In sum, plaintiffs have presented prima facie evidence to support a claim for punitive damages against defendants.[7]

IV. MOTION TO STRIKE PLAINTIFFS’ REPLY BRIEFS

The Court denied defendants’ motion to strike plaintiffs’ reply briefs at the hearing. This Court’s practice, as set forth in its pretrial scheduling order, is to permit the filing of reply briefs.