United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. ZWART UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
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).
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.
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.
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.
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.
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).
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 ...