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Broom, Clarkson, Lanphier & Yamamoto v. Kountze

United States District Court, D. Nebraska

November 18, 2015

BROOM, CLARKSON, LANPHIER & YAMAMOTO, a Partnership Plaintiff,
v.
EDWARD KOUNTZE, individually and as Personal Representative of the Estate of Denman Kountze, Jr. in Collier County, Florida, Defendant.

ORDER

Thomas D. Thalken United States Magistrate Judge

This matter is before the court on the plaintiff’s Motion to Compel Disclosures, Answers to Interrogatories and Response to Request for Production of Documents (Filing No. 54). The plaintiff filed a brief (Filing No. 56) and index of evidence (Filing Nos. 55 and 57) in support of the motion. The defendant filed a brief (Filing No. 58) and index of evidence (Filing No. 59) in response. The plaintiff filed a brief (Filing No. 60) and index of evidence (Filing No. 61) in reply.

BACKGROUND

This action pertains to the defendant’s alleged failure to pay attorneys’ fees due to the plaintiff. See Filing No. 59-1 - Complaint. The parties entered into an agreement for the provision of legal services on September 15, 2004. Id. at Ex. A - Retainer Agreement. The plaintiff claims it provided legal services requested by the defendant in two separate lawsuits. See Filing No. 59-1 - Complaint ¶ 6. The plaintiff seeks $10, 882.90 in unpaid attorneys’ fees for legal services it provided to the defendant in proceedings in Douglas County District Court, an appeal thereof, and the U.S. District Court of Nebraska (Hitchcock Foundation proceedings). See id.; Filing No. 12 - Rule 26(f) Report p. 3.[1] The plaintiff also seeks $365, 718.86 in unpaid attorneys’ fees for legal services it provided to the defendant in proceedings in Douglas County Court and an appeal thereof (Heirloom Trust proceedings). See Filing No. 59-1 - Complaint ¶ 13; Filing No. 12 - Rule 26(f) Report p. 3. The plaintiff initially filed a complaint to recover unpaid attorneys’ fees from the defendant in Douglas County District Court on September 25, 2013. See Filing No. 59-1 - Complaint. On July 17, 2014, the defendant removed the action to this court on the basis of diversity jurisdiction. See Filing No. 1 -Notice of Removal ¶ 10.

The parties filed their joint Rule 26(f) Report on August 29, 2014. See Filing No. 12. In the Rule 26(f) Report, the defendant stated he intended to challenge the scope of work performed by the plaintiff and the reasonableness of the plaintiff’s bills. Id. at 4-5. Specifically, the defendant claimed the plaintiff failed to perform a number of tasks he requested, the plaintiff never provided itemized bills for services it rendered, the plaintiff’s work was unnecessary, duplicative, and outside the scope of retention, and many entries for which the plaintiff seeks legal fees occurred after the plaintiff withdrew as the defendant’s attorney. Id. On September 2, 2014, the court entered an initial progression order permitting the parties to commence discovery. See Filing No. 13 -Order ¶ 6.

On September 24, 2014, the plaintiff served its first set of requests for admissions, first set of interrogatories, and first set of requests for production of documents. See Filing No. 14 - Certificate of Service. The plaintiff propounded sixty-two numbered requests for admissions. See Filing No. 57-1 - First Requests for Admissions p. 1-9. In general, the plaintiff’s requests sought the defendant to admit the genuineness of dozens of exhibits, including emails to or from the defendant, documents from the Heirloom Trust proceedings, and documents from a Collier County, Florida lawsuit. See generally id. The first set of interrogatories asked the defendant to state his reasons for any requests for admissions he did not unqualifiedly admit, the bases and identity of persons and documents related to the defendant’s defenses set forth in the Rule 26(f) Report, his residences from 2004 to the present, the identity of each private investigator or consultant he hired regarding the Heirloom Trust proceedings, and the damages he claims to have suffered with respect to a motion to set aside a default judgment in Douglas County District Court. See Filing No. 57-14 -First Set of Interrogatories p. 1-4. The plaintiff’s first request for production of documents seeks the defendant to produce any documents identified in each of his answers to interrogatories. See Filing No. 57-15 - First Request for Production of Documents p. 1-3. Production Request No. 2 seeks production of all written communication between the defendant and the plaintiff, “and any other attorneys working on the Heirloom litigation including, but not limited to, Robert Zuber, David Domina’s law firm, Adrian Thomas law firm, Karla Gottschalk, Richard Register, Kathryn Hemenway and including negotiations regarding the ‘global’ settlement thereof .” Id. at 2.

On October 21, 2014, counsel for the defendant, Seth Darmstadter, emailed the plaintiff requesting an extension to November 14, 2014, to respond to the plaintiff’s September 24, 2014, discovery requests. See Filing No. 57-20 - Email p. 1. The plaintiff agreed to the extension. Id. at 2. On November 6, 2014, Darmstadter requested a second extension, to November 18, 2014, and the plaintiff agreed. Id. at 5-11. On November 18, 2014, Darmstadter provided the plaintiff with the defendant’s responses to the plaintiff’s first requests for admissions. Id. at 17-18. The defendant responded he was unable to verify whether exhibits contained true copies of emails sent to or from his email accounts because his email accounts “were victimized by one or more illegal hackers” and “have been compromised and closed.” See Filing No. 57-13 -Response to First Request for Admissions p. 3-6, 8, 10, 12-19. Darmstadter informed the plaintiff the defendant would “serve the other discovery responses later this week.” Filing No. 57-20 - Email p. 17-18.

On November 19, 2014, the plaintiff emailed Darmstadter stating, “The agreed upon extension expired yesterday. We have only received responses to Request for Admissions and no responses nor objections to other outstanding discovery. The time for objections to same has expired. Any objections have therefore been waived. We are thus expecting full answers to the outstanding discovery.” See Filing No. 57-20 -Email p. 46. The plaintiff emailed Darmstadter on December 16, 2014, noting Darmstadter had not returned the plaintiff’s call to confer about the defendant’s outstanding discovery responses. Id. at 47. On the same date, Darmstadter replied he had been covering his partner’s cases due to the death of his partner’s father, and would send discovery responses “[a]s soon as possible.” Id. at 48.

On January 1, 2015, Darmstadter left the law firm representing the defendant. See Filing No. 59-2 - Affidavit ¶ 5. Jeffrey Greenspan entered his appearance as counsel for the defendant on January 7, 2015. See Filing No. 27 - Application For Admission Pro Hac Vice. Darmstadter subsequently withdrew from the case. See Filing No. 30 - Order.

On January 6, 2015, the plaintiff emailed both Darmstadter and Greenspan, stating it “need[ed] a date certain, in the immediate future, for an appropriate response to outstanding discovery requests if we are going to avoid a request for court intervention.” See Filing No. 57-20 - Email p. 49-50. Greenspan and the plaintiff agreed the defendant’s outstanding discovery responses would be supplied by January 20, 2015. Id. at 52; Filing No. 59-2 - Affidavit ¶¶ 6-8. On January 19, 2015, the plaintiff agreed to extend the deadline to January 28, 2015. See Filing No. 59-2 - Affidavit ¶ 9. On January 28, 2015, the plaintiff emailed Greenspan stating, “Please consider this a final effort to obtain long overdue outstanding discovery requests without court action.” See Filing No. 57-20 - Email p. 64.

The defendant served his answers to the plaintiff’s first set of interrogatories on January 28, 2015. See Filing No. 57-16 - Answers to First Set of Interrogatories p. 19. The defendant made several general objections, including the first set of interrogatories were vague, overbroad, they exceeded the maximum number of interrogatories allowed pursuant to the court’s initial progression order, and the response would be protected by attorney-client privilege and the work-product doctrine. Id. at 1-2. The defendant also specifically objected to each of the thirteen interrogatories, but answered Interrogatory Nos. 1-10 “[s]ubject to and without waiving these objections.” Id. at 3-7. The defendant also served his responses to the plaintiff’s first requests for production of documents on January 28, 2015. See Filing No. 57-17 - Reponses to First Request for Production of Documents p. 11. The defendant objected on the grounds the requested documents were protected by the attorney-client privilege and the work-product doctrine, the requests were vague, ambiguous, overbroad, unduly burdensome, irrelevant, and the documents were already produced, equally obtainable by the plaintiff, or were already in the plaintiff’s possession. Id. at 1-2. The defendant also served a privilege log. See Filing No. 57-25 - Privilege Log.

On February 2, 2015, the plaintiff sent an email to Greenspan stating, “We expected and are entitled to answers to Interrogatories and response to Requests for Production of Documents - without objections. This was not done. This is an effort to seek compliance without court intervention.” See Filing No. 57-20 - Email p. 66. Greenspan replied, “[I]n the interest of trying to resolve the issue, can you let me know specifically which objections you have an issue with so that we can have a meet and confer about them[?]” Id. at 68. The plaintiff responded on February 3, 2015, it had an issue with “any and all objections” because the defendant’s objections were untimely and were therefore waived. Id. at 71. The plaintiff and Greenspan discussed the waiver issue in subsequent emails between February 3 and 4, 2015. Id. at 73-78.

The plaintiff served the defendant with its second set of interrogatories and second request for production of documents on January 9, 2015. See Filing No. 57-18 -Second Set of Interrogatories p. 3; Filing No. 57-29 - Second Request for Production of Documents p. 3. On February 3, 2015, the plaintiff agreed to extend the deadline to February 26, 2015, for the defendant to respond to the second set of written discovery. See Filing No. 57-20 - Email p. 73.

On February 11, 2015, the parties filed a joint motion to modify the case schedule. See Filing No. 33 - Joint Motion. According to the joint motion, the parties had been “working diligently” to gather documents and answer written discovery, but due to the high volume of responsive documents, the parties agreed additional time was required to complete written discovery. Id. ¶¶ 4, 8. The court granted the parties an extension until June 30, 2015, to complete written discovery. See Filing No. 34 - Order.

On February 24, 2015, the parties agreed to extend the defendant’s deadline until March 5, 2015, to respond to the plaintiff’s second set of written discovery. See Filing No. 57-20 - Email p. 91. On March 3, 2015, Greenspan emailed the plaintiff he had been working with Google to attempt to gain access to email accounts that had been compromised, and upon gaining access to the accounts, the defendant would supplement his answers to the first set of written discovery. Id. at 92. The plaintiff agreed to “hold off” on the defendant’s responses to the second set of requests for production and second set of interrogatories. Id. at 93. On May 1, 2015, Greenspan and the plaintiff agreed the defendant would provide supplemental responses to the first set of written discovery on May 25, 2015. Id. at 99. On May 6, 2015, Greenspan and the plaintiff agreed the supplemental responses would be due May 28, 2015. Id. at 102.

On June 2, 2015, the defendant provided supplemental responses to the plaintiff’s first request for admissions (Filing No. 57-26), first set of interrogatories (Filing No. 57-27), and first request for production of documents (Filing No. 57-28). On June 23, 2015, the defendant served his answers to the plaintiff’s second set of interrogatories (Filing No. 57-23) and response to the plaintiff’s second request for production of documents (Filing No. 57-24). The defendant provided over 15, 000 pages of digital documents in his supplemental responses to the first request for production. See Filing No. 59-2 - Affidavit ¶ 15. The defendant has produced over 30, 000 pages of digital documents in total. Id. ¶ 21.

On June 23, 2015, the court granted the defendant leave to file a counterclaim. See Filing No. 44 - Order. On June 24, 2015, the defendant filed a counterclaim for breach of contract on the bases the plaintiff: overcharged him and engaged in a pattern of overbilling for legal services and performing unnecessary, excessive, unauthorized, and unreasonable work; failed to advise him of the “exorbitant” amount of fees that would result from the courses of action taken in the Hitchcock Foundation proceedings and Heirloom Trust proceedings; failed to advise him of the low chances of success in each proceeding; billed him for personal work performed after the termination of the professional relationship; performed ...


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