Golden v. Stein
Golden v. Stein
2020 WL 13553710 (S.D. Iowa 2020)
April 14, 2020
Jarvey, John A., United States District Judge
Summary
The court found that the agreement underlying the “joint defense privilege” could be demonstrated by evidence of multiple persons being represented by the same attorney or any other evidence to demonstrate the existence of coordinated legal efforts, including emails, letters, agreements, and other writings. The court also found that the “joint defense privilege” applied to communications between the plaintiffs and parties other than the defendants in the Underlying Litigation, specifically, third parties and White Zuckerman, which could include emails, letters, agreements, and other writings. The court also found that the plaintiffs had produced all non-privileged information, including emails, letters, agreements, and other writings.
Additional Decisions
GLENN GOLDEN and G2 DATABASE MARKETING, INC., Plaintiffs,
v.
JONATHAN A. STEIN, Defendant.
JONATHAN STEIN, dba Law Offices of Jonathan Stein, Counterclaimant,
v.
GLENN GOLDEN, dba G2 DATABASE MARKETING; and G2 DATABASE MARKETING, INC., Counterclaim Defendants.
JONATHAN STEIN, dba Law Offices of Jonathan Stein, Third-Party Claimant,
v.
WHITE ZUCKERMAN WARSAVSKY LUNA & HUNT, L.L.P., Third-Party Defendant
v.
JONATHAN A. STEIN, Defendant.
JONATHAN STEIN, dba Law Offices of Jonathan Stein, Counterclaimant,
v.
GLENN GOLDEN, dba G2 DATABASE MARKETING; and G2 DATABASE MARKETING, INC., Counterclaim Defendants.
JONATHAN STEIN, dba Law Offices of Jonathan Stein, Third-Party Claimant,
v.
WHITE ZUCKERMAN WARSAVSKY LUNA & HUNT, L.L.P., Third-Party Defendant
No. 4:18-cv-00331-JAJ-CFB
United States District Court, S.D. Iowa, Central Division, CENTRAL DIVISION
Filed April 14, 2020
Jarvey, John A., United States District Judge
OPINION AND ORDER REGARDING THE PARTIES' APPEALS OF A MAGISTRATE JUDGE'S ORDER ON DISCOVERY MOTIONS
*1 This case is a professional malpractice action by the plaintiffs against their former lead counsel in an underlying intellectual property action. The former lead counsel brought counterclaims against the plaintiffs, including a counterclaim for enforcement of an attorney's lien to collect unpaid attorney's fees and costs, and a third-party claim against a company he had hired to provide an expert witness in the underlying action. This action is now before the court on appeals from a magistrate judge's March 4, 2020, Order On Discovery Motions [Dkt. No. 163].
More specifically, the first appeal before the court is the plaintiffs' March 18, 2020, Partial Objection/Request For Reconsideration To Order On Discovery Motions ... LR 72A [Dkt. No. 164], which the plaintiffs corrected the next day by recaptioning their filing as a Partial Appeal From Orders On Discovery Motions ... LR 72A [Dkt. No. 167]. The part of the Order On Discovery Motions to which the plaintiffs object relates to their request for a protective order to preclude the defendant from taking a Rule 30(b)(6) deposition of the corporate plaintiff. The defendant filed his Resistance To Plaintiffs' Partial Objection/Request For Reconsideration To Order On Discovery Motions [Dkt. No. 173] on April 1, 2020. The plaintiffs filed no reply, but they did file an Addendum Providing Transcript For Partial Appeal Of Discovery Order [Dkt. No. 175] on April 2, 2020, providing a transcript of a status conference on February 24, 2020, at which the various discovery motions were argued. For the reasons stated below, the plaintiffs' March 18, 2020, Partial Objection/Request For Reconsideration To Order On Discovery Motions ... LR 72A [Dkt. No. 164], as corrected by their March 19, 2020, Partial Appeal From Orders On Discovery Motions ... LR 72A [Dkt. No. 167], is OVERRULED, and the pertinent part of the magistrate judge's March 4, 2020, Order On Discovery Motions is AFFIRMED.
The second appeal now before the court is the defendant's March 18, 2020, First Objection And Appeal Of Magistrate Judge's March 4, 2020 Order: Granting In Part Motion For Protective Order Against Rule 30(b)(6) Deposition Of Plaintiff G2 Database Marketing Inc. [Dkt. No. 165]. The plaintiffs filed no resistance, but the defendant nevertheless filed a short Reply [Dkt. No. 176] on April 2, 2020. For the reasons stated below, the defendant's March 18, 2020, First Objection And Appeal Of Magistrate Judge's March 4, 2020 Order: Granting In Part Motion For Protective Order Against Rule 30(b)(6) Deposition Of Plaintiff G2 Database Marketing Inc. [Dkt. No. 165] is OVERRULED, and the pertinent part of the magistrate judge's March 4, 2020, Order On Discovery Motions is AFFIRMED.
The third appeal now before the court is the defendant's March 18, 2020, Second Objections And Appeal Of Magistrate Judge's March 4, 2020 Order: Denying Motion To Compel Further Responses To Request For Production Of Documents Number 4 [Dkt. No. 166]. The plaintiffs filed their Response To Defendant Stein's Second Objection [Dkt. No. 169] on March 25, 2020, and the defendant filed his Reply In Support Of Second Objection And Appeal Of Magistrate Judge's March 4, 2020 Order: Denying Motion To Compel Further Responses To RFP #4 [Dkt. No. 174] on April 1, 2020. For the reasons stated below, the defendant's March 18, 2020, Second Objections And Appeal Of Magistrate Judge's March 4, 2020 Order: Denying Motion To Compel Further Responses To Request For Production Of Documents Number 4 [Dkt. No. 166] are OVERRULED, and the pertinent part of the magistrate judge's March 4, 2020, Order On Discovery Motions is AFFIRMED.
*2 As United States Magistrate Judge Celeste F. Bremer stated in the March 4, 2020, Order On Discovery Motions now on appeal, a detailed discussion of the lengthy factual and procedural history of this case and related cases can be found in various decisions. Thus, as in Judge Bremer's Order, the focus, here, is facts related to the present discovery disputes. Indeed, the focus in this decision is still more limited to the challenged parts of Judge Bremer's dispositions of those discovery disputes. The court concludes that it is appropriate to discuss both the background to and the court's analysis of each dispute, in turn. First, however, the court will summarize the appeal procedure and standards for a district judge's review of a magistrate judge's non-dispositive ruling.
Local Rule 72A provides that “objections” to and requests for “review or reconsideration” of magistrate judges' rulings in civil cases must be filed “within 14 days after service of the order” and that “[a] party asserting such objections must arrange promptly for a transcription of all portions of the record the district court judge will need to rule on the objections.” Thus, the first requirement means that the appeals at issue, here, were due on or before March 18, 2020, fourteen days after the March 4, 2020, Order On Discovery Motions at issue. The plaintiffs complied with the second requirement by submitting the transcript of the February 24, 2020, status conference at which the discovery motions were argued.
Although Local Rule 72A states no standard of review, Rule 72 of the Federal Rules of Civil Procedure provides both the 14-day deadline for any appeal and the standard of review for any appeal of a magistrate judge's non-dispositive ruling, as follows:
(a) Nondispositive Matters. When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.
FED. R. CIV. P. 72(a) (emphasis added); see also Ferguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007) (“A district court may reconsider a magistrate judge's ruling on nondispositive pretrial matters where it has been shown that the ruling is clearly erroneous or contrary to law.”).
As the undersigned has explained,
A decision may be “ ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” U.S. v. Yockey, 654 F. Supp. 2d 945, 952 (N.D. Iowa 2009) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)); see also U.S. v. Johnson, 2008 WL 2074119, at *5 (N.D. Iowa May 14, 2008) (“Thus, the clearly erroneous standard of review is deferential .... but a district court may still reject the magistrate judge's report and recommendation when the district court is ‘left with a definite and firm conviction that a mistake has been committed.’ ” (citations omitted)).
Chambers v. N. Am. Co. for Life & Health Ins., No. 4:11-CV-00579-JAJ-CFB, 2016 WL 7427333, at *2 (S.D. Iowa June 13, 2016). This “clearly erroneous” standard is deferential. Id. In contrast, the undersigned has understood that “the ‘contrary to law’ standard permits ‘plenary review as to matters of law.’ ” Ruppert on behalf of Fairmount Park, Inc. Ret. Sav. Plan v. Principal Life Ins. Co., No. 4:07-CV-00344-JAJ-TJS, 2010 WL 11613983, at *3 (S.D. Iowa Mar. 31, 2010) (quoting § 12 Charles Alan Wright, Arthur R. Miller, Richard L. Cooper, Federal Practice & Procedure § 3069, at 355 (2d ed. 1997)).[1]
*3 The court will apply these standards to the challenged parts of Judge Bremer's Order On Discovery Motions.
The Rule 30(b)(6) deposition dispute is the subject of both the appeal by plaintiffs Glenn Golden and G2 Database Marketing, Inc., and the first appeal by defendant Jonathan A. Stein. On February 20, 2020, Stein served a Rule 30(b)(6) Notice to plaintiffs' counsel requesting the deposition of a G2 representative, separate from the deposition of Glenn Golden, as a plaintiff to this action and a party in the Underlying Litigation. Stein's Rule 30(b)(6) Notice identified fifty-three issues as subjects of the examination, and the Rule 30(b)(6) deposition was scheduled for approximately one month after Golden's individual deposition. On February 21, 2020, the plaintiffs filed a Motion for Protective Order, requesting that the court preclude the Rule 30(b)(6) deposition of G2, as it would be duplicative of Glenn Golden's deposition. Stein filed a response that same day.
In the pertinent part of her Order, Judge Bremer concluded as follows:
Because Mr. Golden has not yet been deposed, it is difficult for the Court to determine whether a Rule 30(b)(6) deposition would be duplicative of information given in a deposition in his individual capacity, or otherwise burdensome. But even if the information overlaps, a Rule 30(b)(6) deposition is qualitatively different than a deposition given in an individual capacity. It requires a greater amount of preparation and [is] binding on the corporation in a way that an individual's testimony might not be.
Plaintiffs' Motion for Protective Order is DENIED, insofar as Plaintiffs request that Defendant Stein's Rule 30(b)(6) Notice to G2 Marketing be quashed. (ECF 157). The Court notes Plaintiffs' concern regarding the costs of this additional deposition. Pursuant to Fed. R. Civ. P. 26(c)(1)(C), to avoid harassment or undue burden, the Rule 30(b)(6) deposition of G2 Marketing shall take place upon written questions pursuant to Fed. R. Civ. P. 31. Mr. Golden's deposition in his individual capacity remains scheduled for March 10, 2020. See Leazenby [Construction v. City of Council Bluffs], No. 1:10-cv-00028-CRW-RAW, 2012 WL 12914696, at *2 [(S.D. Iowa. Mar. 22, 2012)] (limiting a corporate representative's second deposition to avoid harassment). Counsel shall continue the meet-and-confer process to resolve or narrow this dispute, and to avoid unnecessary duplication of time. Plaintiffs' Motion for a Protective Order is DENIED in part and GRANTED in part.
Order On Discovery Motions, 17.
The record does not indicate whether or not the parties went forward with Golden's individual deposition as scheduled on March 10, 2020.
The plaintiffs argue that Judge Bremer should have quashed the Rule 30(b)(6) deposition entirely, because it is duplicative of Golden's individual deposition and goes well beyond issues of corporate formalities. They also argue that Judge Bremer's Rule 31 requirements for a deposition on written questions would not appear to provide the relief from burdensomeness that Judge Bremer sought to achieve.
*4 Stein contends that the plaintiffs' purported appeal of this issue is untimely and that plaintiffs failed to respond to his own appeal of this issue. Stein also argues that a Rule 30(b)(6) deposition of Glenn Golden is appropriate, because it is substantially different from an individual deposition in that it requires the deponent to prepare to address the topics identified in the notice and makes the deponent's answers binding on the corporation. Although Stein agrees with the plaintiffs that Judge Bremer's Rule 31 solution is inefficient and ultimately likely to be more expensive, he asserts different relief from that part of Judge Bremer's Order. He seeks a “live” deposition, arguing that such a deposition is appropriate if limited to 7 hours, in conjunction with Golden's individual deposition for another 7 hours, all over three days.
Rule 30(b)(6) of the Federal Rules of Civil Procedure provides for the deposition of a designated representative of an organization, as follow:
(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
FED. R. CIV. P. 30(b)(6) (emphasis added). Rule 31, in turn, provides in pertinent part, “A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6).” FED. R. CIV. P. 31(a)(4).
As district courts in this circuit have recognized, a Rule 30(b)(6) deposition is different from an individual's deposition. As one court explained,
It is true that:
“A deposition pursuant to Rule 30(b)(6) is substantially different from a witness's deposition as an individual.” “The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents.” As a result, an individual deposed under Rule 30(b)(1) but also designated as a corporate representative under Rule 30(b)(6) is often required to appear for a separate seven-hour deposition on behalf of the corporation.
Bison Advisors LLC [v. Kessler, No. 14-cv-3121 (DSD/SER)], 2015 WL 4509158, *2 [(D. Minn. July 24, 2015)] (citations omitted).
Inline Packaging, LLC v. Graphic Packaging Int'l, Inc., No. 15-CV-3183 (ADM/LIB), 2018 WL 9919939, at *6 (D. Minn. Jan. 23, 2018). Furthermore,
“A 30(b)(6) witness testifies as a representative of the entity, his answers bind the entity and he is responsible for providing all the relevant information known or reasonably available to the entity.” Sabre v. First Dominion Capital, L.L.C., [2001 WL 1590544 at *1] (S.D. N.Y., Dec. 12, 2001) (citing 8A Charles A. Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice & Procedure § 2103 (2d ed. 1994)). Moreover, “if the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation. Thus, the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved.” A.I.A. Holdings, S.A. v. Lehman Brothers, Inc. No. 97 Civ. 4978, 2002 U.S. Dist. Lexis 9218, at *15 (S.D. N.Y. May 20, 2002).
*5 Sobolik, Tr. for Sobolik v. Briggs & Stratton Corp., No. CV 09-1785 (JRT/RLE), 2010 WL 11640194, at *7 (D. Minn. June 2, 2010) (quoting DHL Express (USA), Inc. v. Express Save Industries Inc., 2009 WL 3418148 at *1 n. 4 (S.D. Fla., October 19, 2009)).
Courts have recognized that sanctions, including reopening depositions, may be appropriate for a designee's failure to prepare or assertions of lack of knowledge. Equal Employment Opportunity Comm'n v. CRST Int'l, Inc., No. 17-CV-129-LRR, 2018 WL 3552343, at *6 (N.D. Iowa July 24, 2018) (noting that the court had not awarded attorney's fees as a sanction in a case where the designee responded more than 50 times that he “did not know” and had done “basically nothing” to prepare, but that other sanctions were available for improper preparation for or responses to questions in a Rule 30(b)(6) deposition notice); see also FED. R. CIV. P. 30(b)(2). This conclusion reinforces the importance of preparation by the corporation and its designee for a Rule 30(b)(6) deposition, underlining the difference between such a deposition and an individual's deposition.
Nevertheless, courts have also recognized that “[a] a separate deposition of a closely held corporation may not be appropriate where the testimony of the corporate representative would be identical to the testimony given in his or her individual capacity.” Bison Advisors, L.L.C., 2015 WL 4509158, at *2 (citing cases). Thus, for example, a court may limit the length of the part of a deposition designated under Rule 30(b)(6), if at least some of the testimony to be offered would be duplicative of testimony offered in the representative's individual capacity. Id. (holding the magistrate judge properly limited the Rule 30(b)(6) part of a combined deposition to 3.5 hours).
First, the court rejects Stein's contention that the court should ignore the plaintiffs' attempt to “appeal” the Rule 30(b)(6) issue as untimely. The plaintiffs filed “objections” within the time provided by LR 72A and Rule 72(a) and promptly corrected their caption to clarify that the objections were an “appeal” directed to the district judge.[2] The court also rejects the suggestion that Stein's own appeal of the Rule 30(b)(6) issue should be granted based on the plaintiffs' failure to file a response to it.[3] The plaintiffs' own appeal sets out positions contrary to those in Stein's cross-appeal of the Rule 30(b)(6) issue. Thus, the court will consider on their merits both appeals of the ruling on the Rule 30(b)(6) deposition issue.
*6 Turning to the merits, Judge Bremer properly recognized the substantial difference between an individual deposition of Golden and a Rule 30(b)(b) deposition of Golden as G2's corporate representative. Order On Discovery Motions, 17. Like Judge Bremer, the court is not convinced that a separate Rule 30(b)(6) deposition is inappropriate, just because Golden is the most likely Rule 30(b)(6) deponent for G2, a closely-held corporation, where Golden is either the only shareholder or one of only two shareholders and the one actively engaged in the business. See Bison Advisors, L.L.C., 2015 WL 4509158, at *2. The requirements of preparation for and the binding effect of the answers of a Rule 30(b)(6) corporation warrant both depositions, even if some of the testimony offered in the Rule 30(b)(6) deposition might be duplicative of testimony offered in the representative's individual capacity. See Sobolik, 2010 WL 11640194, at *7. Thus, Judge Bremer's refusal to quash the Rule 30(b)(6) deposition in its entirety was neither “clearly erroneous” nor “contrary to law.” FED. R. CIV. P. 72(a); Chambers, 2016 WL 7427333, at *2. That part of the plaintiffs' objections is overruled.
Notwithstanding both parties' objections, the court concludes that Judge Bremer's determination that the Rule 30(b)(6) deposition should be conducted on written questions pursuant to Rule 31 also is neither “clearly erroneous” nor “contrary to law.” Id. Rule 31 expressly provides for the deposition of a “private corporation ... by written questions in accordance with Rule 30(b)(6).” FED. R. CIV. P. 31(a)(4). Even though the parties plainly doubt that this requirement will avoid the expense and burdensomeness that Judge Bremer hoped to avoid, it plainly will save the parties the time and expense of travel for a second deposition. The use of written questions should also eliminate Stein's concerns about a designee's failure to prepare or assertions of lack of knowledge. The extent to which a deposition on written questions otherwise might result in less expense and burden is largely up to the parties, who are reminded to strive for efficiency, economy, and common sense in both propounding and answering questions so as to avoid the necessity of further discovery motions or appeals arising from the Rule 30(b)(6) deposition. Judge Bremer was familiar with the state of discovery in this case and was best able to determine what additional discovery was likely to be necessary or appropriate and in what form. Thus, in this court's view, it would not have been clearly erroneous for Judge Bremer to order no Rule 30(b)(6) deposition, a “live” Rule 30(b)(6) deposition for a full seven hours, a Rule 30(b)(6) deposition of limited duration, or a Rule 30(b)(6) deposition on a specified number of written questions pursuant to Rule 31. Thus, both parties' objections to the Rule 30(b)(6) deposition on written questions pursuant to Rule 31 are overruled.
The part of Judge Bremer's March 4, 2020, Order On Discovery Motions concerning the Rule 30(b)(6) deposition of G2 is affirmed.
On January 22, 2020, Stein moved to compel the plaintiffs to produce documents in response to his Fourth Set of Requests for Production (4th RFPs). Stein's 4th RFPs requested documents identical to the items requested in three subpoenas duces tecum to the three law firms who represented Golden in the Underlying Litigation. Judge Bremer summarized the 4th RFPs, as follows:
Specifically, Defendant Stein requests further responses to the following RFPs:
• RFP Nos. 1–2: “All [documents and communications] relating to the settlement of the Underlying Litigation during the relevant period...”
• RFP Nos. 3–4: “All [documents and communications] relating to the settlement agreement in the Underlying Litigation during the relevant period...”
• RFP Nos. 5–6: “All communications between defendants in the Underlying Litigation (or their counsel) and [Plaintiffs] during the relevant period...” both related and unrelated to the settlement of the Underlying Litigation.
*7 • RFP No. 9: “All communications between [Plaintiffs] and any person relating to Jonathan Stein during the relevant period...”
• RFP No. 10: “All communications between [Plaintiffs] and White Zuckerman relating to Jonathan Stein at any time.”
(ECF 141-1 at 10–12) (emphasis added). Defendant Stein defined the “relevant period” as July 1, 2018, to the present. (ECF 141-1 at 7). He did not request further responses to RFP No. 7, which requested “all non-privileged drafts of the settlement agreement in the Underlying Litigation,” or RFP No. 8, which requested “all documents and communications relating to the damages [Plaintiffs] claim in [their] Complaint.” (ECF 141-1 at 11).
Order On Discovery Motions at 6. Thus, in essence, Stein's 4th RFPs requested three categories of documents: (1) settlement communications between Golden or plaintiffs' counsel and the defendants in the Underlying Litigation or their counsel; (2) communications between Golden or plaintiffs' counsel and third parties regarding Stein; and (3) communications between Golden or plaintiffs' counsel and White Zuckerman concerning Stein. Stein argued that the plaintiffs had “stonewalled” production of documents and delayed Golden's deposition, so that Stein was required to file his 4th RFPs. Stein also requested fees and costs.
On February 5, 2020, the plaintiffs resisted Stein's Motion to Compel and stated that they had produced more than 500 additional documents and communications regarding the settlement of the Underlying Litigation. They objected to Stein's requests as duplicative, cumulative, and burdensome, and asserted that post-settlement communications relating to the settlement are covered by a “joint defense privilege.”
As to RFPs 1 through 6, Judge Bremer ruled as follows:
Plaintiffs' objections that production of the requested documents would be duplicative, cumulative, and burdensome are OVERRULED. Defendant Stein has stated that he is seeking from Plaintiffs non-privileged documents that have not otherwise been produced.
As to Plaintiffs' claims of privilege: “An objection must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). Plaintiffs shall compile a Privilege Log detailing what communications are withheld on this basis by March 10, 2020.
Order On Discovery Motions at 8.
More specifically, as to RFPs 5 and 6, the plaintiffs asserted that communications between their counsel and defendants in the Underlying Litigation are protected by the “joint defense privilege.” Judge Bremer found that the plaintiffs had claimed this privilege in more than one of the Motions then before her and that her findings on the issue would apply to each Motion where the “privilege” was at issue. She also noted that the plaintiffs asserted that the only information that they are withholding are communications between Mr. Wandro and counsel for the defendants in the Underlying Litigation that occurred after the Underlying Litigation was settled and related only to where funds that are subject to Stein's attorney's lien would be deposited.
*8 As to this part of the parties' dispute, Judge Bremer concluded, first,
Plaintiffs had a common legal interest with the UL Defendants [i.e., defendants in the Underlying Litigation], due to the necessity of arranging for the deposit of settlement funds following the settlement of the Underlying Litigation, and due to Mr. Stein's claim for an attorney's lien against settlement proceeds. Mr. Stein asserted that both Plaintiffs and UL Defendant Clear Advantage were attempting to avoid his attorney's lien. Plaintiffs then worked with the counsel for UL Defendants to get the Court's approval for their Settlement amount, and the terms, which included depositing the encumbered funds in a neutral location, so that litigation relating to Mr. Stein's attorney's fees claims could continue. A written agreement between Plaintiffs' counsel and counsel for UL Defendants is not necessary for this privilege to apply. The Court finds that the joint defense privilege applies to communications between Plaintiffs' counsel and counsel for the UL Defendants between the time of settlement (September 2018) and when the funds were deposited with the Court's Registry (October 2019), as Plaintiffs and UL Defendants were engaged in a common goal.
Order On Discovery Motions at 9-10.
Judge Bremer concluded, however, that the plaintiffs were required to provide a privilege log to comply with Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure, by March 10, 2020. She clarified that the plaintiffs were not required to disclose privileged communications in this log, but that they were required to indicate the nature and type of the documents and communications that were not disclosed to Stein. Judge Bremer set a deadline of March 30, 2020, for Stein to file any objection or motion regarding the contents of the privilege log. Judge Bremer then concluded,
The Court finds that beyond what Plaintiffs have provided, as supplemented by any production following the Privilege Log, the balance of Defendant Stein's RFP Nos. 1–6 are not proportional to the needs of this case, and do not need to be produced. Fed. R. Civ. P. 26(b)(1). Plaintiffs assert that they produced all non-privileged items, which is enough to satisfy the Rule 26(b) discovery standard; Plaintiffs cannot produce what they do not have. Defendant Stein's Motion to Compel additional responses as to RFP Nos. 1–6 is DENIED. Defendant Stein shall file any objection or Motion regarding the contents of Plaintiffs' Privilege Log by March 30, 2020.
Order On Discovery Motions at 10-11.
Stein asserts that only the portions of Judge Bremer's ruling quoted above are the portions to which he objects. Nevertheless, the court finds that additional parts of Judge Bremer's ruling are implicated by Stein's second appeal. Therefore, the court will also summarize Judge Bremer's ruling on RFPs 9 and 10.
Stein's RFP 9 sought communications between Golden and any person about Stein. The plaintiffs objected to production of communications between Golden and counsel in this case or the Underlying Litigation, based upon work product and attorney-client privileges. They also stated that they have already produced all non-privileged communications, or that none exist. On this issue, Judge Bremer ruled as follows:
*9 Defendant Stein's Motion to Compel a response to RFP No. 9 is DENIED. Plaintiffs have stated that there are no communications from Golden to any other person relating to Mr. Stein during the relevant period. Plaintiffs continue to assert that they have produced all non-privileged information, and only had discussions with UL Defendants regarding the Underlying Litigation. Defendant Stein's RFP No. 9 that requests copies to Plaintiffs on any correspondence or information from their counsel is overbroad, and not proportional to the needs of this case. Fed. R. Civ. P. 26(b)(1). As explained above, Plaintiffs' objection to producing material protected by the attorney-client privilege and work product privileges is SUSTAINED, subject to Defendant Stein's review of the Privilege Log. By March 10, 2020, Plaintiffs shall provide a Privilege Log identifying material withheld in response to RFP No. 9 due to a claim of privilege. By March 30, 2020, Defendant Stein shall file any Motion to Compel as to material in the Privilege Log for RFP No. 9.
Order On Discovery Motions at 11.
Turning to RFP 10, which sought communications between Golden and White Zuckerman about Stein, Stein argued that the communications were relevant to the plaintiffs' claims of malpractice and excessive billing, because the communications might contain discussions of the quantity, cost, and quality of White Zuckerman's work. The plaintiffs asserted relevance and “joint defense privilege” objections. On this issue, Judge Bremer ruled as follows:
Plaintiffs' objection as to relevance is OVERRULED. Conversations between Plaintiffs and counsel for White Zuckerman regarding White Zuckerman's role as an expert in the Underlying Litigation may be relevant to the instant case. However, those conversations took place during the time-frame that Mr. Stein was counsel for Plaintiffs; it is not clear as to what additional communications are in question. To the extent that Plaintiffs had communications with White Zuckerman as to deposit of the settlement funds, or finalizing the settlement agreement of the Underlying Litigation, Defendant Stein's Motion to Compel as to RFP No. 10 is DENIED. Based upon the information available, Plaintiffs' work product objection is SUSTAINED. By March 10, 2020, Plaintiffs shall provide a Privilege Log identifying material in response to RFP No. 10 withheld due to a claim of privilege. By March 30, 2020, Defendant Stein shall file any Motion to Compel relating to material identified in this Privilege Log.
Order On Discovery Motions at 12.
The record does not reflect whether the plaintiffs filed the required Privilege Log, although it shows that Stein has filed no motion to compel relating to material identified in any Privilege Log by the March 30, 2020, deadline.[4]
Stein makes a multi-pronged attack on Judge Bremer's determinations concerning his 4th RFPs. The court will consider the prongs of that attack, in turn. First, however, the court will address the plaintiffs' argument that Stein's second appeal is “premature.”
The plaintiffs argue that Stein's second appeal is “premature,” because Judge Bremer required them to provide a Privilege Log by March 10, 2020, and gave Stein until March 30, 2020, to file objections or a motion in response to the Privilege Log. They point out that Stein's second appeal was filed on March 18, 2020, before the time for objections to the privilege log had run. The court finds this argument as groundless as Stein's argument that the plaintiffs' appeal on the Rule 30(b)(6) deposition issue was “untimely.” Stein was required to appeal within 14 days of the March 4, 2020, Order On Discovery Motions. See FED. R. CIV. P. 72(a); LR 72A. Had Stein waited to appeal that Order until after his deadline to file any response to the Privilege Log, the plaintiffs could have argued his appeal was untimely, creating a “Catch-22.”
*10 Stein's first argument in support of his second appeal is that the plaintiffs did not raise the “joint defense privilege” in their response to his 4th RFP. He contends that assertions of “attorney-client privilege” and “work product” privilege are not sufficiently specific to invoke the “joint defense privilege.”
Judge Bremer's rejection of this argument and consideration of the “joint defense privilege” was neither “clearly erroneous” nor “contrary to law.” FED. R. CIV. P. 72(a); Chambers, 2016 WL 7427333, at *2. Judge Bremer noted that the “joint defense privilege” (or “common interest privilege”) is “a subset of the work product and attorney-client privileges.” Order On Discovery Motions at 3 and 8. The Eighth Circuit Court of Appeals has also observed that “the common-interest doctrine” “expands the coverage of attorney-client privilege in certain situations.” In re Grand Jury Subpoena Duces Tecum, 112 F.3d 922, 915 (8th Cir. 1997). Similarly, a judge in this district recognized that, if the “common interest privilege” expands the scope of attorney-client privilege, the “common interest” required to expand work-product privilege would be the same. United States v. Dico, Inc., No. 4:10-CV-00503, 2017 WL 9049852, at *4 (S.D. Iowa Mar. 27, 2017).
Judge Bremer also observed, “Plaintiffs claimed this privilege in more than one of the Motions” then before her. Id. at 8. Even though the plaintiffs asserted privileges in somewhat “generic” terms in response to Stein's 4th RFPs, they specified the particular privilege at issue as the “joint defense privilege” in their Resistance To Motion To Compel [Dkt. No. 141] concerning the 4th RFPs, placing Stein on notice of the objection and placing the issue squarely before Judge Bremer. Thus, Judge Bremer properly considered the applicability of the “joint defense privilege.”
Next, Stein contends that the “joint defense privilege” fails as a matter of law, for two reasons. First, he points out that Iowa courts have never expressly recognized the privilege. Second, he argues that the plaintiffs cannot meet the requirements of the “joint defense privilege.”
As to the first of these arguments, it is true that, “in a diversity case, such as this, the determination of whether attorney-client privilege applies is governed by state law” and that “Iowa courts have never expressly recognized the ‘common interest’ exception as an exception to waiver of the attorney-client privilege.” Progressive Cas. Ins. Co. v. F.D.I.C., 49 F. Supp. 3d 545, 556 (N.D. Iowa 2014). Nevertheless, the lack of express recognition by Iowa courts does not necessarily preclude this court from considering its applicability in a particular case. See id. (noting that the magistrate judge had considered the “common interest privilege,” in the alternative, even though it was not expressly recognized by Iowa courts). The Iowa courts have never expressly rejected the “joint defense” or “common interest” privilege, and if the highest state court has not addressed an issue, the federal courts may predict what rule the state court would adopt. See, e.g., Pitchblack Oil, LLC v. Hess Bakken Investments II, LLC, 949 F.3d 424, 428 (8th Cir. 2020).
Stein also argues that the “common defense privilege” is inapplicable, because the plaintiffs could have no common legal interest with their former adversaries, the defendants in the Underlying Litigation, or with other third parties. He argues that, at most, they had only a common legal problem, related to his lien for attorney's fees. This argument is also unpersuasive.
*11 As Stein argues, and Judge Bremer recognized,
“A ‘common interest’ doctrine, erroneously called ‘common interest privilege’ or ‘joint defense privilege,’ is an exception to the general rule that voluntary disclosure of confidential, privileged material to a third party waives any applicable privilege,” Sokol v. Wyeth, Inc., No. 07 Civ. 8442(SHS)(KNF), 2008 WL 3166662, *5 (S.D.N.Y. Aug. 4, 2008) (citation omitted). “It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989). It exists “to protect the free flow of information from client to attorney ... whenever multiple clients share a common interest about a legal matter.” Id. at 243–44....
Progressive Cas. Ins. Co. v. F.D.I.C., 49 F. Supp. 3d 545, 557 (N.D. Iowa 2014) (quoting Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, 284 F.R.D. 132, 139 (S.D.N.Y. 2012)).
More specifically,
Obtaining the protections of the common interest doctrine requires a two-part showing. First, the parties exchanging otherwise privileged information must establish “a common legal, rather than commercial, interest.” Sokol, 2008 WL 3166662, at *5. “The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial.” North River Ins. Co. v. Columbia Cas. Co., No. 90 Civ. 2518(MJL)(JCF), 1995 WL 5792 at *3 (S.D.N.Y. Jan. 5, 1995) (citation omitted) (“North River”). For courts to find such a common legal interest, the parties must have come to an agreement, “though not necessarily in writing, embodying a cooperative and common enterprise towards an identical legal strategy.” Lugosch v. Congel, 219 F.R.D. 220, 237 (N.D.N.Y.2003); see, e.g., Schwimmer, 892 F.2d at 243 (examining whether “a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.”); HSH Nordbank, 259 F.R.D. at 72. Courts may look to whether “multiple persons are represented by the same attorney” or any other evidence to demonstrate the existence of “coordinated ... legal efforts.” Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 446, 448 (S.D.N.Y.1995) (quotation omitted).
Second, the parties must establish that any exchange of privileged information was “made in the course of formulating a common legal strategy [,]” and that the parties understood that the communication would be in furtherance of the shared legal interest. Sokol, 2008 WL 3166662, at *5, 7 (“[T]he vital element in establishing that the attorney-client privilege applies is that the communication is made in confidence for the purposes of obtaining legal advice from the attorney.”). One fact courts often consider in assessing this factor is whether an attorney for either party participated in the exchange of privileged information. See, e.g., HSH Nordbank, 259 F.R.D. at 72 (“[C]ounsel for one of the parties was actively engaged in the communications at issue. Thus, this is not a situation where the various non-party lenders and Nordbank discussed subject matter previously discussed with counsel and now seek to assert privilege for that reason alone.”); cf. Walsh v. Northrop Grumman Corp., 165 F.R.D. 16, 18 (E.D.N.Y.1996) (“Salomon wants to protect confidences it shared with its own attorneys and then shared, not with Northrop's attorneys, but with Northrop. To extend the common interest doctrine that far would mean that a party could shield from disclosure any discussions it had with another person about a matter of common interest simply by discussing that matter first with its attorneys.”) (citations omitted).
*12 Progressive Cas. Ins. Co., 49 F. Supp. 3d at 557 (quoting Fireman's Fund Ins. Co., 284 F.R.D. at 139–40).
Contrary to Stein's contention, the fact that the plaintiffs and the defendants in the Underlying Litigation had no common legal relationship, because they were at one time adversaries, does not mean that they necessarily lacked the required “common legal, rather than commercial, interest.” Id. (emphasis added; internal quotation marks and citation omitted). In John Morrell & Co. v. Local Union 304A of United Food & Commercial Workers, AFL-CIO, 913 F.2d 544 (8th Cir. 1990), the Eighth Circuit Court of Appeals recognized that, although certain employees and Morrell had been opposing parties in a suit brought by the employees against their union and Morrell, “[t]he Aguinaga employees and Morrell shared a joint defense privilege by virtue of being aligned on the same side following their settlement and the International Union's cross-claims.” 913 F.2d at 555–56. Similarly, here, once the plaintiffs settled with the defendants in the Underlying Litigation, they could have had a common legal interest, notwithstanding that they were previously adversaries. Judge Bremer's application of the “joint defense privilege” was neither clearly erroneous nor contrary to law on this ground. FED. R. CIV. P. 72(a); Chambers, 2016 WL 7427333, at *2.
Stein also argues that Judge Bremer erred in concluding that that the plaintiffs and the defendants in the Underlying Litigation had a common legal interest. Stein argues that Judge Bremer is wrong, because the plaintiffs and the defendants in the Underlying Litigation had only a common legal problem, but not an identical legal interest. Stein asserts that the plaintiffs' economic and legal position would have been to defeat his attorney's lien, or at least to limit it as much as possible, while the defendants in the Underlying Litigation had no legal or economic interest in the validity of his attorney's lien, so long as their total liability did not exceed the full settlement amount. This court is not convinced that Judge Bremer's characterization of the “common legal interest” is either clearly erroneous or contrary to law. FED. R. CIV. P. 72(a); Chambers, 2016 WL 7427333, at *2. Applicability of the “joint defense privilege” is not defeated by different ultimate economic interests but turns on the presence of a “common legal interest,” even if they key consideration is that the legal interest “be identical, not similar, and be legal, not solely commercial.” Progressive Cas. Ins. Co., 49 F. Supp. 3d at 557 (citations omitted). Judge Bremer was not wrong to conclude that, even if their ultimate economic goals were different, or that, even if they had some additional, different legal goals, the plaintiffs and the defendants in the Underlying Litigation did share an identical legal interest “due to the necessity of arranging for the deposit of settlement funds following the settlement of the Underlying Litigation, and due to Mr. Stein's claim for an attorney's lien against settlement proceeds.” See Order On Discovery Motions at 9.
*13 Thus, Judge Bremer properly concluded that the “joint defense privilege” was applicable to the plaintiffs and the defendants in the Underlying Litigation, at least to the extent of concluding that those entities had a “common legal interest.”
Next, Stein argues that the plaintiffs failed to prove the “joint defense privilege,” because they did not submit any evidence whatsoever of any joint defense agreement. He argues that such a privilege cannot arise simply as a matter of law or by implication, so it is defeated where the plaintiffs did not submit a declaration identifying any letter, agreement, email chain, or other writing that was the joint defense agreement or that demonstrated any agreement was ever reached. Stein argues that there must be an express agreement; counsel's argument is not enough. Again, the court is not persuaded that Judge Bremer's ruling that the necessary agreement existed was clearly erroneous or contrary to law. FED. R. CIV. P. 72(a); Chambers, 2016 WL 7427333, at *2.
First, the court finds that Judge Bremer correctly concluded that the agreement underlying a “joint defense privilege” does not have to be written, and Stein agrees with that much of her ruling. Progressive Cas. Ins. Co., 49 F. Supp. 3d at 557 (“For courts to find such a common legal interest, the parties must have come to an agreement, though not necessarily in writing, embodying a cooperative and common enterprise towards an identical legal strategy.” (citation and quotation marks omitted)). What Stein ignores is what Progressive Casualty Insurance Company teaches about how such an agreement is shown. That decision explains, “Courts may look to whether multiple persons are represented by the same attorney or any other evidence to demonstrate the existence of coordinated ... legal efforts.” Id. (citations and quotation marks omitted). The record in the Underlying Action and the record in this case are replete with evidence of the plaintiffs and the defendants in the Underlying Action using coordinated legal efforts to obtain a judicial determination of how to safeguard or secure funds from their settlement representing the proper amount of Stein's attorney's lien, so that their settlement could be consummated. Indeed, the irony is not lost on the court of Stein's arguments that the plaintiffs and the defendants in the Underlying Litigation were acting “hand in glove” while he also argues that there is no evidence that they had an agreement to pursue a common legal strategy.
Thus, Judge Bremer properly concluded that the “joint defense privilege” was based on the required agreement.
Stein's penultimate argument is that, even if this court finds that there is some type of “joint defense agreement” concerning communications between the plaintiffs and the defendants in the Underlying Action, that privilege would not cover communications between the plaintiffs and third parties about Stein or communications between the plaintiffs and White Zuckerman, as they are not claimed to be part of the “joint defense agreement.” He also argues that documents and communications between July 1, 2018, and September 27, 2018, would not be covered by the “joint defense privilege,” because Stein was still the plaintiffs' attorney during that time. Again, the court is not persuaded that Judge Bremer's ruling about the scope of protection afforded by the “joint defense privilege” or any other basis for her denial of Stein's Motion To Compel was clearly erroneous or contrary to law. FED. R. CIV. P. 72(a); Chambers, 2016 WL 7427333, at *2.
*14 First, the court finds that Judge Bremer properly applied the “joint defense privilege” to communications between the plaintiffs and parties other than the defendants in the Underlying Litigation, specifically, third parties and White Zuckerman. As to RFP 9, concerning communications from the plaintiffs to any other person relating to Stein during the relevant period, Judge Bremer held only that “Plaintiffs' objection to producing material protected by the attorney-client privilege and work product privileges is SUSTAINED, subject to Defendant Stein's review of the Privilege Log.” Order On Discovery Motions at 11. This ruling merely recognized the possibility of communications between the plaintiffs and other third parties protected by the “joint defense privilege,” after Judge Bremer noted that the plaintiffs had stated that there are no communications from the plaintiffs to any other person relating to Stein during the relevant period, and the plaintiffs had asserted that they had produced all non-privileged information. Id. Concerning communications with White Zuckerman, Judge Bremer concluded, “To the extent that Plaintiffs had communications with White Zuckerman as to deposit of the settlement funds, or finalizing the settlement agreement of the Underlying Litigation, Defendant Stein's Motion to Compel as to RFP No. 10 is DENIED.” Id. at 12. Where White Zuckerman's fees were part of the total amount covered by Stein's lien, White Zuckerman would also share with the plaintiffs an identical legal interest due to the necessity of arranging for the deposit of settlement funds following the settlement of the Underlying Litigation and due to Stein's claim for an attorney's lien against settlement proceeds. See id. at 8 (finding that the plaintiffs had claimed this privilege in more than one of the Motions then before the court and that her findings on the issue would apply to each Motion where the “privilege” was at issue).
Second, Stein assumes that the “joint defense privilege” is the sole reason that Judge Bremer denied his Motion To Compel concerning his 4th RFPs, but it was not. Judge Bremer held that, apart from privileged items, “the balance of Defendant Stein's RFP Nos. 1–6 are not proportional to the needs of this case, and do not need to be produced,” and that “Plaintiffs cannot produce what they do not have.” Order On Discovery Motions at 10. She also concluded that “Plaintiffs continue to assert that they have produced all non-privileged information,” so that, as to RFP 9, “request[ing] copies to Plaintiffs on any correspondence or information from their counsel is overbroad, and not proportional to the needs of this case.” Id. at 11. Again, the court does not find this conclusion clearly erroneous or contrary to law. FED. R. CIV. P. 72(a); Chambers, 2016 WL 7427333, at *2. As previously mentioned, Judge Bremer was familiar with the state of discovery in this case and was best able to determine what additional discovery was likely to be necessary or appropriate and in what form.
Third, Stein argues that Judge Bremer applied the “joint defense privilege” to bar production of documents from July 1, 2018, to September 27, 2018. She did not. Rather, she stated,
The Court finds that the joint defense privilege applies to communications between Plaintiffs' counsel and counsel for the UL Defendants between the time of settlement (September 2018) and when the funds were deposited with the Court's Registry (October 2019), as Plaintiffs and UL Defendants were engaged in a common goal.
Order On Discovery Motions at 9-10. The court agrees with Judge Bremer that the period covered by the “joint defense privilege” did not begin on the date Stein was terminated as plaintiffs' counsel; rather, it began at the point where the plaintiffs had settled with the defendants in the Underlying Action, September 18, 2018, by which time Stein had already asserted his attorney's lien presenting the plaintiffs and the defendants in the Underlying Action (and subsequently third parties and White Zuckerman, as explained, above) with the necessity of a common legal interest or strategy to safeguard the funds covered by Stein's lien while achieving consummation of the settlement. Furthermore, as explained, above, Judge Bremer overruled Stein's Motion To Compel answers to his 4th RFPs for the period prior to settlement of the Underlying Litigation on grounds other than the “joint defense privilege.”
Finally, Stein argues that he needs the documents he seeks in his 4th RFPs for trial, because they are essential to prove his claim that the plaintiffs were working with their former adversaries to defeat his attorney's lien, demonstrating that the plaintiffs' malpractice claim is a pretext. Stein has not presented any persuasive argument that his supposed need for the evidence demonstrates that any part of Judge Bremer's ruling on his 4th RFPs was clearly erroneous or contrary to law. The plaintiffs cannot produce what they do not have and need not produce what Judge Bremer found was privileged, or would be unduly burdensome, disproportionate to the needs of the case, or overbroad.
*15 Therefore, Stein's objections to the part of Judge Bremer's Order On Discovery Motions pertaining to his 4th RFPs are overruled, and Judge Bremer's Order is affirmed.
Upon the foregoing,
IT IS ORDERED that
1. the plaintiffs' March 18, 2020, Partial Objection/Request For Reconsideration To Order On Discovery Motions ... LR 72A [Dkt. No. 164], as corrected on March 19, 2020, by recaptioning it as a Partial Appeal From Orders On Discovery Motions ... LR 72A [Dkt. No. 167], is overruled, and the pertinent part of the magistrate judge's March 4, 2020, Order On Discovery Motions is affirmed;
2. the defendant's March 18, 2020, First Objection And Appeal Of Magistrate Judge's March 4, 2020 Order: Granting In Part Motion For Protective Order Against Rule 30(b)(6) Deposition Of Plaintiff G2 Database Marketing Inc. [Dkt. No. 165] is overruled, and the pertinent part of the magistrate judge's March 4, 2020, Order On Discovery Motions is affirmed;
3. the defendant's March 18, 2020, Second Objections And Appeal Of Magistrate Judge's March 4, 2020 Order: Denying Motion To Compel Further Responses To Request For Production Of Documents Number 4 [Dkt. No. 166] are overruled, and the pertinent part of the magistrate judge's March 4, 2020, Order On Discovery Motions is affirmed.
DATED this 14th day of April, 2020.
Footnotes
Judges in this district agree with these characterizations of the standards. See, e.g., J.S.X. Through D.S.X. v. Foxhoven, No. 4:17-CV-00417-SMR-HCA, 2018 WL 4701870, at *2 (S.D. Iowa July 20, 2018) (Rose, J.) (“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed. An order is contrary to law if it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” (citations and quotation marks omitted)); Marchionda v. Embassy Suites Franchise, LLC, No. 4:15-CV-00479-JEG-SBJ, 2017 WL 11179924, at *1 (S.D. Iowa Mar. 15, 2017) (Gritzner, J.) (“The clear error standard comes into play when the reviewing court is left with a definite and firm conviction that a mistake has been committed.” (citations and quotation marks omitted)); Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1042–43 (S.D. Iowa 2010) (Pratt, J.) (“A ruling is clearly erroneous where the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. An order is contrary to law if it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” (citations and internal quotation marks omitted)).
The plaintiffs filed what they identified as “objections” and a request for “reconsideration” within the fourteen days provided by Rule 72(a) and LR 72A. Furthermore, while Rule 72A is entitled “Appeals From Rulings Of United States Magistrate Judges In Civil Cases,” the body of the rule never uses the word “appeal,” but refers, instead, to “objections,” “review,” and “reconsideration.” LR 72A (emphasis added). Likewise, Rule 72(a) refers to the filing of “objections” not an “appeal” to the district court. FED. R. CIV. P. 72(a). The only difference LR 72A makes between “review” of “objections” by a magistrate judge or by the district court judge is the requirement that a party file the transcript in the latter case. The plaintiffs did file the relevant transcript in support of their “appeal,” but Stein did not in support of either of his “appeals.” Moreover, without changing the substance of any argument, the plaintiffs amended the pertinent filing the very next day—that is, the day after the fourteen days had run—to describe it as a “Partial Appeal From Orders On Discovery Motions ... LR 72A,” so that the amendment is simply a matter of clarification, not a recasting of their objections.
Although LR 72A states, “Any response to the objections [to a magistrate judge's order] must be filed within 14 days after service of the objections,” it does not state or suggest that the lack of a response means that the objections should be granted. LR 7(b) provides, in part, “If no timely resistance to a motion is filed, the motion may be granted without notice,” but objections to a magistrate judge's order are not “motions.”
Judge Bremer also rejected Stein's request for attorney's fees and costs incurred as a result of his Motion To Compel responses to his 4th RFPs, because she concluded that “the Plaintiffs' objections to Defendant Stein's RFPs required assessment by the Court on the issues of privileges and scope of discovery; Plaintiffs have not failed or refused to answer discovery requests without imposing appropriate objections.” Order On Discovery Motions at 12. Stein does not appeal Judge Bremer's denial of an award of attorney's fees and costs.