United States District Court, D. Nebraska
BROOM, CLARKSON, LANPHIER & YAMAMOTO, a Partnership, Plaintiff,
EDWARD KOUNTZE, individually and as Personal Representative of the Estate of Denman Kountze, Jr., in Collier County, Florida, Defendant.
D. Thalken United States Magistrate Judge.
matter is before the court on a non-party motion to quash
(Filing No. 129). David A. Domina and Domina Law Group PC LLC
(collectively Domina) seek to quash Edward Kountze's
(Kountze) subpoenas for documents and for David Domina to
appear for a deposition. Domina filed evidence (Filing No.
129-1) attached to the motion. Kountze filed a brief (Filing
No. 132) and an index of evidence (Filing No. 133) opposing
the motion. Domina did not file a reply. Broom, Clarkson,
Lanphier & Yamamoto (Broom) did not participate in
initiated this action in an attempt to collect more than
$375, 000 in attorney's fees allegedly due from Kountze
for legal services Broom provided in two Nebraska lawsuits
and other matters from 2004 through 2013. See Filing No. 1 -
Ex. 1 Complaint ¶¶ 1-37. Kountze generally denies
he owes Broom additional fees. See Filing No. 46 -
Counterclaim. Further, Kountze alleges Broom “engaged
in a pattern of overbilling for legal services, and
performing work that was unnecessary, excessive,
unauthorized, and/or unreasonable. . . . amount[ing] to a
material breach of the Agreement between the parties.”
Id. ¶ 1.
removed Broom's lawsuit from the District Court of
Douglas County, Nebraska, on July 17, 2014. See Filing No. 1.
The court authorized the commencement of discovery on
September 2, 2014. See Filing No. 13. On February 17, 2016,
the court entered a third amended scheduling order providing
deadlines for discovery and setting trial. See Filing No. 92.
Based on the parties' suggestion, the court imposed an
April 29, 2016, deadline for “[a]ll interrogatories,
requests for admission and requests for production or
inspection, whether or not they are intended to be used at
trial.” Id. ¶ 2(a). Additionally, the
deposition deadline for fact witnesses was June 28, 2016.
Id. ¶ 2(b).
August 5, 2016, Kountze issued two subpoenas on Domina, who
provided legal services to Kountze from 2003 until 2009,
including some matters overlapping with those handled by
Broom. See Filing No. 129 - Jorde Decl. ¶ 3 & Exs.
1-2. Kountze seeks production of: “All bills, invoices,
and statements of account relating to professional services
rendered by Domina Law Group PC LLO on behalf of Edward
Kountze and/or Denman Kountze, Jr. relating to . . . [four
listed court proceedings].” Id. Ex. 1.
Additionally, Kountze seeks to depose David Domina
stenographically and by audiotape. Id. Ex. 2.
Kountze contends the billing information is relevant to his
claims against Broom for improper billing to show the
allocation of responsibility between Broom and Domina in the
underlying litigation, and to determine the extent of
overlapping, and therefore unnecessary, work performed by
Broom. See Filing No. 132 - Response p. 2. Kountze notes
listed Domina as a party with knowledge of the “nature
and extent” of the litigation at issue, including the
“hours expended by Plaintiff, nature and extent of the
litigation, the time and labor required, the scope of
Plaintiff's involvement and the experience and ability of
the Plaintiff and other attorneys involved in the
Id. at 3-4 (quoting Filing No. 133 - Ex. 1
Broom's Answers to Interrogs. p. 2).
seeks to quash Kountze's subpoenas because they (1)
undermine a valid attorney's lien; (2) seek information
readily available from a party opponent; and (3) subject a
non-party to significant expense. See Filing No. 129 - Motion
p. 4. In the alternative, Domina suggests the court require
Kountze to prepay the costs required for Domina to comply
with the subpoena and deposit the disputed professional fees
(those amounts associated with the attorney's lien) into
an escrow account. Id. at 8. Domina admits provision
of legal services from 2003 until 2009, including some
matters overlapping with those handled by Broom. See Filing
No. 129 - Jorde Decl. ¶ 3. Nevertheless, Domina alleges
Kountze failed to pay Domina more than $100, 000 in
professional fees, which are the subject of two state court
lawsuits now consolidated on appeal. Id. ¶ 8.
Domina contends a valid attorney's lien, pursuant to Neb.
Rev. Stat. § 7-108, exists to prevent disclosure of
Kountze's papers pending payment of the outstanding fees
or resolution of the appeal. Id. ¶ 9. Domina
alleges compliance with the subpoenas would cost $11, 175
based upon the estimated time required by an archivist, an
accountant, and an attorney, in addition to David
Domina's deposition and preparation time. Id.
argues production would not violate a lien, Domina is the
best source for complete production, and little burden exists
for the minimal discovery sought. See Filing No. 132 -
Response. Kountze denies the attorney's lien is valid or
applies to the documents sought. Id. at 3, 9. First,
Kountze states the lawsuits filed by Domina were dismissed
for failure to timely serve summons. Id. at 5
(Filing No. 133 - Ex. 5 Dismissal Order). Second, Kountze
states he does not seek his entire “file” or
papers; he seeks only “copies of legal bills that were
created by Domina and allegedly issued to Kountze.”
Id. at 3, 9. Third, Kountze argues Domina has an
ethical duty to provide the billing documents even if
production does impede a lien. Id. at 3, 9-11.
Kountze argues, even assuming he or Broom have the documents,
the federal rules permit him to obtain the complete set of
narrowly tailored billing documents from Domina and depose
David Domina in support of the counterclaims. Id. at
7-8. Kountze contends simply locating and providing the bills
themselves creates no undue burden. Id. at 8.
Kountze asserts David Domina's deposition as a fact
witness entitles him to only statutory fees, rather than his
standard billing rate or the rate of an expert witness.
Id. at 12.
to a federal lawsuit may obtain documents relevant to the
matter through discovery as authorized by the Federal Rules
of Civil Procedures. The federal rules require the court to
impose limits on the parties' time to complete discovery,
including discovery sought through Rule 45 from non-parties.
See Fed.R.Civ.P. 16(b)(3). The April 29, 2016, written
discovery deadline and June 28, 2016, fact witness deposition
deadline set by the court in this case included all discovery
from parties and non-parties. See Filing No. 92. Kountze does
not address the untimeliness of his subpoenas served in
August 2016. However, the court notes Domina previously filed
a motion to quash on April 20, 2016, which motion was
withdrawn when Kountze withdrew an April 11, 2016, subpoena.
See Filing Nos. 97 and 112. Based on the ongoing discovery
inquiries, the court finds good cause exists for an extension
of time to complete this discovery.
initial matter, Rule 26(a) applies to the discovery sought in
a federal civil lawsuit. See Fed.R.Civ.P. 26(b)(1); 34(a) and
(c). “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). “Broad discovery is
an important tool for the litigant, and so ‘[r]elevant
information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the
discovery of admissible evidence.'” WWP, Inc.
v. Wounded Warriors Family Support, Inc., 628 F.3d 1032,
1039 (8th Cir. 2011) (alteration in original) (quoting
Fed.R.Civ.P. 26(b)(1)). Accordingly, relevant information
includes “any matter that bears on, or that reasonably
could lead to other matter that could bear on, any issue that
is or may be in the case.” Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351 (1978). Generally, the
court has authority to limit the scope of discovery.
Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358,
361 (8th Cir. 2003).
federal rules authorize the court to limit discovery that is
“unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less
burdensome, or less expensive.” Fed.R.Civ.P.
26(b)(2)(C)(i). Moreover, the court may also limit discovery
after considering “the importance of the issues at
stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in