Conlin v. Law Office of Kirk A. Cullimore
Conlin v. Law Office of Kirk A. Cullimore
2019 WL 13260016 (D. Utah 2019)
March 8, 2019
Pead, Dustin B., United States Magistrate Judge
Summary
The court granted Plaintiff's motions to compel Defendants to provide all documents, communications, and other materials responsive to Plaintiff's discovery requests, as well as revise their responses to reference the Bates number of each produced document. The court also allowed financial discovery related to Plaintiff's punitive damages claim, but limited it to Defendants' current financial condition.
Kaylee CONLIN, an individual, Plaintiff,
v.
LAW OFFICE OF KIRK A. CULLIMORE, a limited liability company, and Kirk A. Cullimore, Defendants
v.
LAW OFFICE OF KIRK A. CULLIMORE, a limited liability company, and Kirk A. Cullimore, Defendants
Case No. 2:17-cv-01213
United States District Court, D. Utah, Central Division
Filed March 08, 2019
Counsel
John D. Morris, Lauren N. DeVoe, Morris DeVoe, Midvale, UT, for Plaintiff.Alex B. Leeman, John A. Snow, Parsons Behle & Latimer, Salt Lake City, UT, Derek J. Barclay, Law Offices Of Kirk A. Cullimore, Draper, UT, for Defendants.
Pead, Dustin B., United States Magistrate Judge
RULING & ORDER
*1 On February 14, 2019, Plaintiff Kaylee Conlin filed her: (1) First Motion to Compel Defendants’ Responses to First Set of Discovery Requests (ECF No. 88); and (2) Second Motion to Compel Defendants’ Responses to Plaintiff's Second Set of Discovery Requests. (ECF No. 89.) Both motions were filed pursuant to Federal Rule of Civil Procedure 37and the local short form discovery rule. Fed. R. Civ. P. 37(a)(3)(B); DUCivR 37-1.
Plaintiff's Motion To Compel First Set of Discovery Requests
On February 6, 2019, Defendant Law Office of Kirk A. Cullimore (Law Office) provided amended responses to Plaintiff's discovery requests. Plaintiff raises the following concerns regarding Defendant Law Office's discovery responses:
a. Every response to a request for production includes one or more objections, but fails to indicate whether responsive material was withheld based on the lodged objection(s);
b. The response to Request for Production No. 1 cites a large span of Bates numbered documents, many of which are not responsive to Request for Production No. 1;
c. The response to Request for Production No. 4 states that, aside from the video that would be produced subject to a protective order, no responsive material exists, despite the fact that the Cullimore Defendants previously produced materials that appear to be responsive. See (CLF0277-CLF0279 and CLF0282-CLUF0285);
d. The response to Request for Production No. 8 is devoid of any documentation supporting the Cullimore Defendants’ contention that the U.S. Department of Housing and Urban Development or the Utah Antidiscrimination and Labor Division have approved any forms the Cullimore Defendants created, nor does it include all of the communications of correspondence between the Cullimore Defendants and an agent of either the foregoing agencies and/or opposing counsel Plaintiff believes exists;
e. The response to Request For Production No. 9 cites a large span of Bates numbered documents, many of which are non-responsive to Request for Production No. 9;
f. The relevance objection to Request For Production No. 10 was not withdrawn as agreed and nothing was produced; and
g. No Bates numbers are cited in response to Request For Production No. 13, no emails regarding the forms at issue in this case were produced, the response is limited to 2014 without any basis and attachments to emails that Mr. Snow previously agreed to produce do not appear to have been produced.
See (ECF No. 88-1, Exhibit 1, ¶34 (a-g)).
On February 6, 2019, Defendant Kirk A. Cullimore (Kirk Cullimore) responded to Plaintiff's discovery requests. Plaintiff raises the following concerns as to Defendant Kirk Cullimore's discovery responses:
a. Every response to a request for production includes one or more objections but fails to sufficiently indicate whether responsive material was withheld based on the lodged objection(s);
b. The response to Request for Production No. 1 cites a large span of Bates numbered documents, many of which are not responsive to Request for Production No. 1;
*2 c. The response to Request to Production No. 3, in addition to requiring a protective order before production of a video, does not acknowledge responsive PowerPoint slides already produced at Bates Nos. CLF0239-CLF0273;
d. The response to Request for Production number 4 states “Cullimore has not prepared articles, blogs, videos, audio recordings, podcasts, social media posts, or similar material, except one video provided to clients as part of their legal representation by the Firm” but does not acknowledge articles, copyrighted by the Firm, produced at Bates numbers CLF077-CLF0279 and CLF0282-CLF0285;
e. The response to Request for Production No. 8 indicates that no responsive communications pre-dating the current lawsuit (2:17-cv-01213-TC-DBO) exist and that every responsive communication that has occurred during this lawsuit is protected by the joint defense privilege, but there are no corresponding entries on the joint privilege log;
f. Nothing is produced in response to Request for Production No. 9 and it is unclear whether anything responsive exists; and
g. The response to Request for Production No. 10 fails to reference any Bates numbered documents, and after my review of the produced documents, it appears not all responsive emails related to forms at issue in this case (or similar forms) have been produced.
See (ECF No. 88-1, Exhibit 1, ¶35 (a-g)).
Defendants Law Firm and Cullimore (collectively Cullimore Defendants) object to Plaintiff's motions to compel arguing “each pertinent Response specifically identifies what is being produced, and what is not being produced and why.” (ECF No. 96 at 2.) Second, Defendants indicate that the responsive documents identified all fall within the broad scope of the discovery requests and may be further narrowed at deposition. Third, a “belief” that other responsive material or emails may exist does not lead to the conclusion that such materials do exist, and all emails are self-identifying, as kept in the ordinary course of business.
The word limit implemented under the short form rule restricts a party's ability to provide comprehensive argument on numerous discovery disputes. This is because the short form practice is designed to expeditiously address disputes for which the parties have worked diligently to narrow the issues. Such is not the case here. Yet, given the nature of the disputes, the court does not believe additional briefing would be beneficial. See DUCivR 37-1(7)(C). Accordingly, upon review, Plaintiff's First Motion To Compel is GRANTED IN PART (ECF No. 88), as follows:
1. Within seven (7) days of the entry of this Order, the Cullimore Defendants must identify and provide all documents, communications, and other materials responsive to Plaintiff's First Set of Discovery Requests to The Law Offices of Kirk A. Cullimore, L.L.C., and Law Offices of Kirk A. Cullimore, LLC's Response to Plaintiff's First Set of Discovery Requests. All such materials shall be provided to Plaintiff's counsel with corresponding Bates numbers referenced in response to each Request for Production. If, however, all information has previously been produced, the Cullimore Defendants shall verify in writing that all responsive material has either been produced or is listed on a privilege log provided to Plaintiff and that no additional responsive material exists; and
*3 2. Within seven (7) days of the entry of this Order, the Cullimore Defendants must revise their responses in order to reference the Bates number of each produced document that is responsive to a specific discovery request. If all documents provided “fall within the broad scope of the request,” Defendants shall so indicate.
3. Plaintiff's request for attorneys fees and costs incurred in compelling Defendants’ responses is DENIED at this time. See Fed. R. Civ. P. 37(5)(A).
Plaintiff's Motion To Compel Second Set of Discovery Requests
Plaintiff raises claims under the Federal Fair Housing statute. (ECF No. 2.) In relevant part, the statute states, “if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may award to the plaintiff actual and punitive damages.” See 42 U.S.C. § 3613(c)(1). Plaintiff's second set of discovery seeks financial information related to her punitive damages claim. (ECF No. 89-1, Exhibit 4.)
Defendants object to Plaintiff's entire second set of discovery requests (ECF No. 97) arguing: (1) financial discovery should be deferred pending resolution of Defendants’ motion for summary judgment (ECF No. 93); and (2) Plaintiff's discovery requests seek more information than is necessary.
In general, “[w]hen a punitive damages claim has been asserted by the plaintiff, a majority of federal courts permit pretrial discovery of financial information of the defendant without requiring plaintiff establish a prima facie case on the issue of punitive damages.” EEOC v. Body Firm Aerobics, Inc., 2006 U.S. Dist. 36624, *9-10 (citing Mid Continent Cabinetry, Inc. v. George Koch Sons. Inc., 130 F.R.D. 149, 151 (D. Kan. 1990) (citing cases)). Given the general rule and the plain language of the fair housing statute, the court is not inclined to halt financial discovery pending resolution of Plaintiff's motion for summary judgment. That said, the court agrees that the scope of discoverable financial information should be limited to Defendants’ “current financial condition”. Roberts v. C.R. Eng., Inc., 2018 U.S. Dist. LEXIS 41139, *7 (D. Utah 2018) (citing Accountable Health Sols., LLC v. Wellness Corporate Sols., LLC, 2017 U.S. Dist. LEXIS 119532, *12) (limiting scope “of discoverable financial information relevant to the issue of punitive damages to the defendant's most recent annual reports and current financial statements.”). Defendants do not identify which discovery requests, if any, they consider to be outside the scope of their current financial condition.[1] As a result, Plaintiff's Second Motion to Compel is GRANTED IN PART (ECF No. 89), as follows:
1. Within seven (7) days of the entry of this Order, the Cullimore Defendants must identify all documents, communications and other materials responsive to Plaintiff's Second Set of Discovery Requests to the Law Offices of Kirk A. Cullimore, L.L.C., and Plaintiff's Second Set of Discovery Requests to Kirk A. Cullimore, and provide such responsive materials to Plaintiff's counsel with corresponding Bates numbers reference in response to each Request for Production;
*4 2. Within seven (7) days of the entry of this Order, the Cullimore Defendants must verify in writing that all material responsive to Plaintiff's Second Set of Discovery Requests to the Law Offices of Kirk A. Cullimore, L.L.C., and Plaintiff's Second Set of Discovery Requests to Kirk A. Cullimore has either been produced or listed on a privilege log provided to Plaintiff and no additional responsive material exists; and
3. Plaintiff's request for attorney fees and costs incurred in compelling Defendants’ responses is DENIED at this time. See Fed. R. Civ. P. 37(5)(A).
SO ORDERED this 8th day of March, 2019.
Footnotes
If Defendants object to a request on the grounds that it seeks information outside the scope of their current financial condition, they must raise and discuss the specific discovery request(s), in conjunction with this court's ruling, in a meet and confer with counsel prior to raising any remaining issues with the court. DUCivR 37-1(a)(4).