Calfee v. Graham
| Decision Date | 21 September 2015 |
| Docket Number | No. 2:14-cv-01395-JAM-AC,2:14-cv-01395-JAM-AC |
| Court | U.S. District Court — Eastern District of California |
| Parties | DAVID W. CALFEE, III, Plaintiff, v. WILLIAM K. GRAHAM, et al., Defendants. |
On September 16, 2015, the court held a hearing on plaintiffs' motion to compel. Frank Crum appeared on behalf of plaintiff David W. Calfee, III; and Jason J. Sommer appeared on behalf of the subpoenaed witnesses James V. Nolan, Gardner Janes Nakken Hugo and Nolan ("Gardner Janes"), and Hansen Kohls Sommer & Jacob, LLP ("Hansen Kohls") (collectively "the Witnesses"). James V. Nolan was also present at the hearing. On review of the motions, the documents filed in support and opposition, upon hearing the arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
FACTUAL BACKGROUND
Plaintiff, an attorney, seeks to collect from defendants, his former clients, unpaid fees and costs advanced in a state court matter, Young J. Paik, et al. v. Richard T. Treon, et al., Case No. PT09-320 (Yolo Cnty. Super. Ct.) ("Underlying Lawsuit"). ECF No. 1 at 24; ECF No. 20-1 at 2. The Underlying Lawsuit was a single cause of action for malicious prosecution against James V.Nolan, Gardner Janes, William K Graham, Thomas P. Church, Michele A. Church, and Michael U. Sbrocco, III. ECF No. 1 at 2; ECF No. 20-1 at 2. Plaintiff represented William K Graham, Thomas P. Church, Michele A. Church, and Michael U. Sbrocco, III in the Underlying Lawsuit, while James V. Nolan and Gardner Janes were represented by Jason Sommer and his firm, Hansen Kohls. Id. Plaintiff obtained a judgment of dismissal in the Underlying Lawsuit on April 13, 2010. ECF No. 20-1 at 2. Plaintiff asserts that at the conclusion of the matter in July 2010, the unpaid balance of plaintiff's attorneys' fees and advanced costs totaled $91,602. Id. Plaintiff has asserted his claims against defendants in order to retrieve these costs. Id. The court's jurisdiction rests on diversity. ECF No. 1 at 1.
Plaintiff filed his original complaint on June 11, 2014. ECF No. 1. On August 20, 2014, defendant William K. Graham filed an answer. ECF No. 5. On September 5, 2014, plaintiff and defendant Graham filed a joint statement. ECF No. 6. In the parties' joint statement plaintiff stated that he had so far been unable to serve the remaining defendants despite repeated attempts. Id. Accordingly, plaintiff requested additional time to serve the remaining defendants. Id. On September 10, 2014, the court issued a scheduling order granting plaintiff's request, with a discovery deadline of September 10, 2015, and dispositive motions deadline of October 7, 2015. ECF No. 7.
The remaining defendants filed answers on October 10, 2014, identical to defendant Graham's. ECF Nos. 11-13. On August 14, 2015, plaintiff and the Witnesses filed a joint statement regarding the pending discovery dispute. ECF No. 18. Plaintiff, however, had not filed a properly noticed motion at that point. Accordingly, on August 17, 2015, the court ordered plaintiff to file a properly noticed motion to compel in accordance with Local Rule 251. ECF No. 19. On the same day, plaintiff filed a properly noticed motion to compel, requesting that the court compel the Witnesses to produce documents responsive to subpoenas issued on June 19, 2015. ECF No. 20. Along with his motion plaintiff re-submitted the joint statement. Id. On September 2, 2015, Hansen Kohls filed an opposition to plaintiff's motion, claiming it was never served with plaintiff's motion and opposing it based on the joint statement. ECF No. 22.
According to the joint statement, plaintiff seeks the billing records and payment documents from the Underlying Lawsuit for James V. Nolan and Gardner Janes. ECF No. 20-1 at 2. Plaintiff asserts that these documents are relevant to defendants' claim that the amount plaintiff charged them for representation in the Underlying Lawsuit was exorbitant. Id. Specifically, defendants have stated that James V. Nolan and Gardner Janes were charged a fraction of the amount that defendants were charged for representation in the Underlying Lawsuit. Id. Plaintiff served the subpoena requesting these documents upon the Witnesses by July 13, 2015, on June 19, 2015. Id. The subpoena requested the following documents:
On July 6, 2015, Jason Sommer of Hansen Kohls served plaintiff with objections to his subpoena. Id. at 2-3. The Witnesses objected to production of the requested documents based on the contention that the documents are (1) protected by attorney client privilege and the work product doctrine; (2) protected by both the U.S. Constitution's and the California Constitution's right to privacy; and (3) not reasonably calculated to lead to the discovery of admissible evidence. Id. at 5-9. The Witnesses also assert that production of the requested documents would be unduly burdensome. Id. at 9-11.
Plaintiff's attorney sent a meet and confer letter to Jason J. Sommer and James V. Nolan narrowing the scope of discovery and responding to their objections on July 9, 2015. Id. at 3. On July 21, 2015, Sommer responded by letter with an explanation for why he believed he still could not produce the requested documents. Id. In his letter, Sommer asserted that the information sought was protected by James V. Nolan and Gardner Janes' rights to privacy. Id. In addition, Sommer claimed that the information sought was neither admissible nor was it likely to lead to the discovery of admissible evidence. Id. On July 29, 2015, plaintiff's attorney conferred with Sommer and Nolan over the phone. Id. When the telephone conference did not resolve the dispute, they agreed to prepare a joint statement. Id.
Generally, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Fed. R. Civ. P. 26(b)(1). Under Rule 45, any party may serve a subpoena commanding a third party to produce documents. Fed. R. Civ. P 45(a)(1)(A)(iii). A person commanded to produce documents may serve a written objection to the subpoena. Fed. R. Civ. P 45(d)(2)(B). If the commanded person withholds subpoenaedinformation under a claim that it is privileged, the person must (1) expressly make the claim, and (2) describe the nature of the withheld documents in a manner that will enable the parties to assess the claim. Fed. R. Civ. P. 45(e)(2)(A). The serving party may, at any time, on notice to the commanded person, move the court for an order compelling production. Fed. R. Civ. P. 45(d)(2)(B)(I).
Fed. R. Civ. P. 26(b)(1). Generally, the scope of discovery under Rule 26(b)(1) "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters 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). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The court must limit discovery when "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(C)(iii). The court may also limit the extent of discovery to protect a party or person from annoyance, embarrassment, oppression, undue burden or other improper purposes. Fed. R. Civ. P. 26(c)(1), 26(g)(1)(B)(ii).
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