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Estate of Petersen v. Bitters

United States District Court, D. Nebraska

June 20, 2018

ESTATE OF JOYCE ROSAMOND PETERSEN, deceased; Plaintiff,
v.
WILLIAM E. BITTERS, ROBERT W. BOLAND JR., JOHN L. HENRY, and UNITED FINANCIAL SERVICES, Defendants.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE

         Plaintiff has moved for an order 1) granting sanctions and adverse inferences against Defendants William Bitters and Robert W. Boland and their counsel for non-compliance with the court's discovery order; 2) striking their affirmative defenses and allegations; 3) granting a Rule 56(d) continuance for responding to their motions for summary judgment; and 4) extending the case progression schedule and trial date by 90 days. (Filing No. 215).

         Plaintiff's motion was filed on June 5, 2018. The pretrial conference was scheduled to be held on June 12, 2018, with trial set for June 25, 2018. Absent a deviation from the local rules, (see NEGen R. 1.1(c)), Plaintiff's motion would not be fully submitted prior to the pretrial conference. The court therefore continued the pretrial conference and trial by two weeks, and it entered an expedited briefing schedule on Plaintiff's motion. (Filing No. 217). The Filing 215 motion is now fully submitted.

         As the following explains, Plaintiff's motion requesting adverse inferences and sanctions, (Filing No. 215), will be denied. That portion of Filing 215 which requests a Rule 56(d) continuance will be addressed by Judge Rossiter.

         FACTUAL BACKGROUND

         Plaintiff's lawsuit was initially filed in the United States District Court for the Eastern District of Texas on December 1, 2014, and it was transferred to this district on April 25, 2016. (Filing No. 58). The extensive procedural history of this lawsuit was outlined in my prior order, Filing No. 181, which is incorporated herein by reference. That history will be repeated only as necessary to explain the court's ruling on Plaintiff's pending motion.

         Based on the parties' proposals as stated in the Rule 26(f) Report, this court entered a final progression order on February 10, 2017, (Filing No. 127), which set a November 1, 2017 written discovery deadline, and a November 30, 2017 deposition deadline. Then Plaintiff waited seven months to begin discovery- serving no written discovery requests until September 19, 2017. At that time, Plaintiff served 34 Requests for Admission, 102 Requests for Production, and 33 Interrogatories on Defendants Bitters and Boland. During a conference call held on October 24, 2017, the case progression deadlines were extended at the parties' request. The written discovery deadline was extended to December 1, 2017, with a deposition deadline of February 9, 2018, with a June 25, 2018 trial setting. (Filing No. 128).

         Discovery disputes arose between Plaintiff and all Defendants. As to Defendants Bitters and Boland, the court entered an extensive order on February 5, 2018, which set a March 2, 2018 for serving responses or supplemental responses as ordered. (Filing No. 160). Defendants Bitters an Boland served discovery responses on March 2, 2018, and supplemental responses on March 6, 2018, (Filing No. 216, at CM/ECF p. 6), and they timely moved for summary judgment on March 20, 2018. (Filing Nos. 182 & 184). They were deposed on April 16, 2018, the deadline for conducting depositions.

         The June 25, 2018 trial and June 12, 2018 pretrial conference settings were chosen after conferring with counsel for Plaintiff and Defendants Bitters an Boland. Despite these looming deadlines and the pending summary judgment motions, Plaintiff's counsel waited until June 5, 2018 to file the current motion, (Filing No. 215), and a 103-page supporting brief, therein requesting that the summary judgment rulings and trial be continued pending a ruling on the issue of adverse inferences and sanctions.

         The central focus of Plaintiff's arguments is Bitters' (and, to a far lesser extent, Boland's) alleged failure to describe how they searched for responsive documents or answers before responding to the discovery, and Plaintiff's belief that requested documents remain undisclosed and Defendant' answers and responses are therefore untruthful or, at the very least, incomplete.

         The court's February 5, 2018 order required Defendants Bitters and Boland to perform a more in-depth search for information responsive to Plaintiff's discovery requests and provide an affidavit describing those efforts. In the affidavit, they were to explain how they conducted the additional search, including the persons contacted, and whether they searched electronically stored information (ESI), including what was searched; who conducted the search; how it was conducted; and what was found.

         Bolands' affidavit states, in essence, that he knows nothing about the transaction underlying this case, so there were no paper or ESI records to search. In addition to providing information relevant to only specific discovery requests, Bitters' affidavit states that as to paper records:

I recently spent approximately 3 days personally reviewing my paper records, and I located no written communications to or from Joyce Petersen, Bill Skoggins, or John Henry, and I also located no written records or documents pertaining to Joyce Petersen, Bill Skoggins, John Henry, or the promissory note from John Henry to Joyce Petersen among those paper documents in my possession.

(Filing No. 216-2, at CM/ECF p. 12, ¶ 4).

         As to ESI, Bitters' affidavit states:

22. I have email accounts through AOL, Hotmail, Yahoo, Gmail. I have not used the Yahoo account for approximately 12 years. I have approximately 7, 500 to 8, 000 total email messages combined through these accounts, most of which have nothing to do with this case and which may contain sensitive financial information for other clients. I consulted all of my email accounts using specific search terms in an attempt to identify communications relevant to this case and responsive to Plaintiff's discovery requests.
23. I first performed a search across all of my email accounts using the search terms "John Henry", "John L. Henry", "JSJ", and "Allianz". None of the searches identified any email communications to or from John Henry. However, I did identify communications from Allianz which contained as attachments documents pertaining to John Henry, and these documents have been produced herein. I have no written or electronic communications, and have never had any written or electronic communications, to or from John Henry regarding the promissory note.
24. I also performed a search of my email accounts using "Joyce Petersen", "Joyce Scoggins", "Petersen-Scoggins", "Petersen Scoggins", and "Joyce Peterson" as search terms. This search uncovered two email messages from Sharon Miller, Joyce Petersen's accountant, both dated April 15, 2013. I also located emails communications with Jilynn Wall dated November 21, 2013 and November 29, 2017. I am ...

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