BLUE CROSS AND BLUE SHIELD OF RHODE ISLAND v. JAY S. KORSEN and IAN D. BARLOW C.A. No. 09-317L United States District Court, D. Rhode Island Signed June 23, 2011 Counsel R. Daniel Prentiss, R. Daniel Prentiss, P.C., Providence, RI, for Blue Cross and Blue Shield of Rhode Island. Alan R. Tate, Jenny C. Williford, Tate Latham & Durant, Christy B. Durant, Law Offices of Patrick J. Quinlan, Providence, RI, D. Brian Hufford, Pro Hac Vice, Zuckerman Spaeder LLP, Robert J. Axelrod, Pro Hac Vice, Pomerantz LLP, New York, NY, for Jay S. Korsen and Ian D. Barlow. Almond, Lincoln D., United States Magistrate Judge MEMORANDUM AND ORDER *1 Pending before me for determination (28 U.S.C. § 636(b)(1)(A); LR Cv 72(a)) are Plaintiff's Motion to Compel Defendant Korsen to provide more responsive answers to Interrogatories and to produce requested documents (Document No. 73) and Defendant Korsen's Cross-motion for Sanctions under Rule 37(a)(5)(B), Fed. R. Civ. P. (Document No. 76-1). A hearing was held on June 20, 2011. After considering the parties’ submissions and arguments, these Motions are resolved as follows: A. Sanctions While the efforts to resolve this discovery dispute “without court action” (Fed. R. Civ. P. 37(a)(1)) were lacking, both sides share some blame and Defendant Korsen has not shown that Plaintiff's actions warrant sanctions. Plaintiff served its discovery requests on March 4, 2011. Rather than seeking additional time to respond, Defendant Korsen responded on April 4, 2011 primarily with boilerplate objections. Plaintiff's counsel raised the issue of the sufficiency of Defendant Korsen's responses in an email dated April 23, 2011 and in a “meet and confer” letter dated April 27, 2011 which asked for a response by May 3, 2011 as to “whether you will provide the discovery as requested without the necessity of motion practice.” It is undisputed that Defendant Korsen's counsel did not respond to the email or to the letter by May 3, 2011 as it requested. He did not ask opposing counsel for more time or indicate to him if further responses were under consideration. While Plaintiff's counsel was quick on the trigger in moving to compel on the afternoon of May 4, 2011, Defendant Korsen's counsel made no effort to head that off with prompt and constructive communication. Defendant Korsen's counsel responded after the Motion to Compel with a substantive letter dated May 6, 2011 and Amended Discovery Responses on May 17, 2011. However, these communications did not resolve the majority of this discovery dispute. Ideally and with the benefit of hindsight, Defendant Korsen's counsel should have sent Plaintiff's counsel an email or telephoned him before May 3, 2011 and told him he planned to review the issues raised and prepare Amended Responses, and, alternatively, Plaintiff's counsel should have sent Defendant Korsen's counsel an email or telephoned him prior to pulling the trigger on a motion to compel. If either had happened, the parties and the Court would likely have wasted much less time and resources on this dispute. In the end, I cannot conclude on this record that Plaintiff's counsel did not at least attempt in good faith to confer with Defendant Korsen's counsel about this dispute prior to filing a Rule 37 Motion and thus Defendant has not established grounds to sanction Plaintiff under Rule 37(a)(5), Fed. R. Civ. P. Accordingly, Defendant Korsen's Cross-motion for Sanctions (Document No. 76-1) is DENIED. B. Interrogatories 1. Numbers 1-4. These ask Defendant Korsen to identify certain financial accounts and real estate holdings. Defendant objects primarily on relevance grounds.[1] Plaintiff seeks the information in an effort to track the payments it made to Defendant Korsen to an identifiable account or asset. Here, Defendant Korsen has argued (Document No. 13-2 at p. 16), and the Court has agreed (Document No. 53 at p. 17), that Plaintiff's potential recovery under ERISA is limited to equitable restitution. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) (describing equitable restitution as the imposition of a constructive trust or equitable lien on particular, traceable assets). Under Fed. R. Civ. P. 26(b)(1), a party may obtain discovery regarding any non-privileged matter that is relevant to a claim or defense in the action, i.e., reasonably calculated to lead to the discovery of admissible evidence. While Plaintiff faces an uphill battle in tracing and identifying particular assets from what was likely a commingled business operating account, it is at least entitled to some preliminary level of discovery to determine if it has any potential, good faith claim for equitable restitution. Plaintiff is not required, at this early stage in discovery, to accept Defendant Korsen's self-serving representations about the use and nature of his business operating accounts. Accordingly, Defendant Korsen's objections are overruled, and Plaintiff's Motion to Compel More Responsive Answers to Interrogatories 1-4 is GRANTED. *2 2. Interrogatory No. 5. Plaintiff's Motion to Compel is GRANTED in part. Defendant Korsen shall supplement his answer as to any responsive oral and telephonic communications and, as to the “missing” email from Defendant Korsen to Omega, Defendant Korsen's counsel shall confirm to Plaintiff that the email is not presently recoverable and summarize the efforts made to locate such email. 3. Interrogatory No. 6. Plaintiff's Motion to Compel is DENIED as moot. 4. Interrogatory No. 7. Plaintiff's Motion to Compel is GRANTED in part. Defendant Korsen shall produce the names and last known addresses of anyone employed by him during the “Relevant Time Period.” C. Document Requests Defendant Korsen shall serve an Amended Response on Plaintiff which specifically identifies the documents produced in response to each of Plaintiff's individual requests. See Local Rule Cv 34(b). Further, as to any documents withheld, or portions of documents redacted on privilege grounds, Defendant Korsen shall produce a privilege log in accordance with Rule 26(b)(5)(A), Fed. R. Civ. P. Finally, as to Requests 7-9, Defendant Korsen shall confirm that he is not in possession, custody or control of any responsive “recordings” or “transcripts of recordings” other than those already produced. Conclusion Plaintiff's Motion to Compel (Document No. 73) is GRANTED in part and DENIED in part as specified herein. Defendant Korsen shall provide any further responses required by this Order within twenty (20) days. Defendant Korsen's Cross-motion for Sanctions (Document No. 76-1) is DENIED. SO ORDERED Footnotes [1] To the extent Defendant Korsen has any privacy concerns as to this information, those concerns are presumably addressed by the parties’ Assented Confidentiality Order entered by the Court on April 21, 2011. (Document No. 72).