United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. ZWART UNITED STATES MAGISTRATE JUDGE
has moved to compel responses to deposition questions posed
to Defendant Boland, for sanctions, for an order permitting a
second deposition, for an opportunity to file supplemental
responses to Defendants' motions for summary judgment,
and to continue the trial. (Filing No. 208).
deposition was taken on April 16, 2018-the last day for
taking that deposition. During the deposition, counsel
contacted my chambers to discuss ongoing problems, but I was
unavailable until mid-afternoon. Counsel then spoke with
Judge Rossiter, who advised Plaintiff's counsel to bring
the issues before me for resolution. Plaintiff's counsel
then waited over five weeks to file a motion, along with his
55-page brief and a request to continue the trial because of
the pending discovery disputes.
Plaintiff's motion was filed, 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 entered an expedited briefing schedule. The motion
is fully submitted.
following explains, the discovery and sanctions issues raised
in Plaintiff's motion, (Filing No. 208), will be denied.
That portion of Filing 208 which requests a Rule 56(d)
continuance will be addressed by Judge Rossiter.
Boland's deposition, Plaintiff's counsel designated
the following deposition lines and pages for the court's
review: 10:5; 26:14; 39:8; 40:24; 41:20; 43:13; 47:10; 47:24;
48:8; 68:13; 76:1; 138:15; 146:1; & 150:14. (Filing No.
209-1, at CM/ECF p. 5). Gaudet further argues that Zarghouni
improperly coached Boland during the deposition, obstructed
the deposition with threats and speaking objections, and
terminated the deposition before Gaudet's questioning was
Designated Deposition Questions and Improper
asked Boland “You don't know what UFIS, Inc.,
is?” Boland answered, “No.” (Filing No.
209-1, at CM/ECF p. 11, at lines 8:2-4). When Boland later
stated that he knew nothing about that entity, Gaudet asked
how Boland knew it was an entity. When the Boland responded
that Gaudet used “Inc.” as part of the USIF's
name, indicating it was a corporation, Gaudet erroneously
denied using “Inc.” to describe or name UFIS, and
then went on for three pages asking Boland about USIF's
ownership, directors, employees, etc.
of this line of questioning, Gaudet asked Boland about
UFIS's source of income. Zarghouni objected as to
“form. Asked and answered. He has no idea what that
entity is.” Gaudet claims this objection was improper
coaching. (Filing No. 209, at CM/ECF p. 16).
context, Zarghouni's comment that Boland “has no
idea what that entity is” was not coaching, but rather
an attempt to protect the witness from repetitive questions
for which Boland lacked foundation. Once Boland stated he
knew nothing about UFIS, the remaining questions about that
entity were pointless, asked and answered, and harassing.
Zarghouni's objection as to asked and answered and
harassment is sustained.
asked Boland to explain why he failed to produce receipts for
a business trip Boland made to South Dakota in 2015 to speak
with potential clients. Those clients are wholly unrelated to
the promissory note at issue in this case. Zarghouni objected
as to form, and he asked Gaudet to explain why the question
was relevant. Gaudet then purported to instruct Zarghouni on
how depositions work, claiming Zarghouni cannot ask opposing
counsel to clarify how a specific line of questioning is
did not instruct Boland not to answer the questions, and
Gaudet did not explain how the questions were relevant.
Instead, Gaudet contacted my chambers for assistance. Since I
was not available to take the parties' call, Gaudet
continued his questioning on the South Dakota receipt issue,
and Boland answered the questions.
to Gaudet's argument, Zarghouni was not obstructing the
deposition when he asked Gaudet to explain how Boland's
receipts from a 2015 trip to South Dakota are relevant to
above-captioned lawsuit. The court is not, and cannot be, an
on-call referee to resolve discovery disagreements. A judge
is not always available. As such, counsel are encouraged to
confer as professionals acting in good faith regarding
disputes over discovery requests and objections. This
principle applies to not only written discovery, but also
the above-captioned action arises from a 2008 transaction
involving entirely different people, the relevance of
Gaudet's questions regarding Boland's 2015 trip
receipts was highly suspect. Zarghouni did not act improperly
by initiating a dialogue to understand how Gaudet's
questions could be relevant to the issues being litigated.
39:8; Line 40:24; Line 41:20; Line 43:13
asked for the name of a potential client Boland met in Omaha
in March of 2018 based on a referral from Bitters. Boland
responded that he was not going to disclose the name of this
potential business client, and he refused to answer the
question. (Filing No. 209-1, at CM/ECF pp. 41, 44, lines
38:14-39; 41:20). Zarghouni objected on attorney-client
met with the potential clients on two afternoons in March of
2018. When Boland could not recall the specific dates of
those meetings, Gaudet asked if Boland's calendar in his
office down the hall would assist in answering the question.
Zarghouni instructed Boland not to go to his office to review
the calendar. (Filing No. 209-1, at CM/ECF p. 43, lines
40:24). Bitters introduced Boland to the potential client
prior to the first meeting, but he was not present at the
meeting itself. Boland discussed confidential information
with the client regarding legal work Boland could provide on
the client's behalf. Bitters attended the meeting with
the client on the second day. Boland refused to answer
whether the client paid a retainer to Boland. Zarghouni
objected on attorney-client privilege, instructing Boland not
to answer the question. Boland did not answer the question.
(Filing No. 209-1, at CM/ECF pp. 46, lines 42:17-43:18).
attorney-client privilege protects confidential disclosures
made by a client to an attorney to obtain legal
representation, but it generally does not apply to client
identity and fee information. United States v.
Sindel, 53 F.3d 874, 876 (8th Cir. 1995). However, the
privilege protects even client identity if in the context of
other information already known, revealing the identity would
necessarily disclose confidential communications; that is,
the client's identity was the “last link” in
disclosing confidential communications imparted during
attorney-client communications. Sindel, 53 F.3d at
only explanation provided for not disclosing the identity of
Boland's client occurred during counsel's
conversation with Judge Rossiter. Zarghouni explained that
Boland's potential client “is a well-known person
and currently involved in a major audit, and he did not want
to disclose his identity.” (Filing No. 209-1, at CM/ECF
p. 9, lines 87:20-22). This limited record does not support a
finding that the identity of Boland's March 2018 client
contact, and whether that potential client ever paid a
retainer, was privileged information. Instructing Boland not
to answer based on the attorney-client privilege was not
was also not sanctionable. The Federal Rules of Civil
Procedure, including those rules governing the imposition of
sanctions, must be construed and administered to secure the
just, speedy, and inexpensive determination of every action.
Fed. R. Civ. P 1. Here, Plaintiff's counsel states he was
asking questions to discover whether Bitters and Boland were
partners, or implied partners, regarding the loan Plaintiff
extended to Defendant Henry and alleged financial reports and
representations to Plaintiff regarding payments on that loan.
(Filing No. 209, at CM/ECF pp. 50-53). The promissory note at
issue was signed on February 14, 2008. (Filing No. 99, at
CM/ECF p. 5, lines 5-7). Plaintiff passed away on October 20,
2013. (Filing No. 99, at CM/ECF p. 2, lines 6-7). While
Plaintiff's complaint alleges that “[a]s the sole
legal officer in his partnership with Bitters, Boland knew or
should have known about the account statements that Bitters
issued through their partnership to Ms. Peterson and other
investors, ” (Filing No. 99, at CM/ECF p. 10-11,
¶35), Boland did not know Bitters prior to 2012, (Filing
No. 209-1, at CM/ECF p. 15, lines 12:13-22), and never knew
Plaintiff or Defendant Henry-the parties to the promissory
note at issue. (Filing No. 209-1, at CM/ECF p. 157, lines
the deposition questions at issue, Boland's meeting with
a prospective client in Omaha three months ago is not
relevant to the claims presented in this litigation.
“Some threshold showing of relevance must be made
before parties are required to open wide the doors of
discovery and to produce a variety of information which does
not reasonably bear upon the issues in the case.”
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th
even if assumed to be marginally relevant for the purposes of
discovery only, asking Boland to identify a prospective
client he met with in 2018, to review his office calendar to
determine the specific dates of those meetings, and to state
whether he received a retainer fee-and certainly permitting
any new deposition to obtain answers-is highly
disproportionate to the needs of the case and the issues
being litigated. (Fed. R. Civ. P 26(b)(1)). This is
particularly true where Plaintiff's counsel has been
litigating for over three years and has already billed
Plaintiff's estate more than $100, 000 in attorney fees
to recover on a $150, 000 promissory note.
argues Zarghouni improperly instructed Boland not to review
his office calendar to answer Gaudet's questions
regarding the dates of Boland's March 2018 meetings with
the Omaha prospective client. Gaudet is incorrect. Boland was
not a Rule 30(b)(6) witness. As such, he was not
required to prepare for the deposition, and he not
required to review any documents before or during
the deposition to provide answers. Moreover, once a document
is reviewed during a deposition to refresh recollection, any
privilege as to the document-or at least the document portion
reviewed-is generally deemed waived. Napolitano v. Omaha
Airport Auth., 2009 WL 1393392, at *4 (D. Neb. May 11,
2009). Boland was not required to encounter that risk by
reviewing his ...