Opinion
Civil No. 97-2068 (DWF/SRN)
June 5, 2001
Charles Selcer Zimmerman, Esq., Barry G. Reed, Esq., J. Gordon Rudd, Jr., Esq., Hart Lawrence Robinovitch, Esq., Zimmerman Reed, Minneapolis, MN.C. Neal Pope, Esq., Teresa Pike Tomlinson, Esq., Wade H. Tomlinson III, Esq., Pope, McGlamry, Kilpatrick Morrison, Columbus, GA.; and Richard H. Gill, Esq., Copeland, Franco Screws Gill, Montgomery, AL., counsel for Plaintiffs.
Margaret K. Savage, Esq., Robert John Pratte, Esq., J. Patrick McDavitt, Esq., Briggs Morgan, Minneapolis, MN.; and Mark Gregory Schroeder, Esq., Alan Hall Maclin, Esq., Neal Thomas Buethe, Esq., and Brent R. Lindahl, Esq., Briggs Morgan, St. Paul, MN., counsel for Defendant Standard Federal Bank.
Lawrence A. Wilford, Esq., and Eldon J. Spencer, Jr., Esq., Leonard, O'Brien, Wilford, Spencer Gale, St. Paul, MN., counsel for Defendant Heartland Mortgage.
James A. O'Neal, Esq. and Amy R. Freestone, Esq., Faegre Benson, Minneapolis, MN.; Joseph A. Strubbe, Esq., Dianne M. Kehl, Esq., and Anthony J. Ashley, Esq., Vedder, Price, Kaufman Kammholz, Chicago, IL., counsel for Defendant ABN AMRO Mortgage Group, Inc.
ORDER AND MEMORANDUM
This matter is before the Court on Defendant Standard Federal Banks' appeal of an order dated March 20, 2001, in which Magistrate Judge Susan Richard Nelson, inter alia, granted Plaintiffs' motion to compel production of documents in response to Document Request No. 22 of Plaintiffs' Second Set of Document Requests and in response to Interrogatory No. 17 of Plaintiffs' First Interrogatory Requests. Plaintiffs oppose the appeal of Defendant. The Court must modify or set aside any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Local Rule 72.1(b)(2). For the reasons stated herein, the Court denies Defendant's appeal and affirms Magistrate Judge Susan Richard Nelson's order of March 20, 2001, in all respects.
Based upon the Court's review of the record, the Court having reviewed the arguments and submissions of the parties, and the Court being otherwise duly advised in the premises, the Court finds that Magistrate Judge Susan Richard Nelson's order is neither clearly erroneous nor contrary to law.
Accordingly, IT IS HEREBY ORDERED that:
1. Magistrate Judge Susan Richard Nelson's order of March 20, 2001 (Doc. No. 268) is AFFIRMED.
MEMORANDUM
There are two standards for a district court's review of an order by a magistrate judge. A nondispositive order may only be reversed if it is "clearly erroneous or contrary to law." See 28 U.S.C. § 636 (b)(1)(A); Fed.R.Civ.P. 72(a). This is an "extremely deferential standard." Reko v. Creative Promotions, Inc., 70 F. Supp.2d 1005, 1007 (D.Minn. 1999). Conversely, if the order concerns a dispositive motion, the district court must review the magistrate judge's decision de novo and "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(a). A motion is dispositive if it removes a claim or defense from litigation.
a. Identification of Trial Witnesses Prior to 30 Days Before Trial.
Standard Federal Bank alleges that Magistrate Judge Nelson's order requires them to identify trial witnesses in advance of the mandatory pre-trial disclosures required under the federal rules and is therefore contrary to law.
Notably, Plaintiffs have alleged that Defendant agreed to supplement their answers to Interrogatory No. 17 without objection. Defendant responded to Interrogatory No. 17 of Plaintiffs' First Set of Interrogatories on January 30, 1998. On September 11, 2000, after a stay of the proceedings was lifted, the parties engaged in a pretrial discovery conference as to the status of Defendant's discovery responses. On January 30, 2001, Plaintiffs filed a motion to compel alleging that Standard Federal had served no supplemental responses to Interrogatory No. 17; at that time, Standard Federal had not yet supplemented its First Interrogatory Response No. 17. On March 12, 2001, a hearing was held before Magistrate Judge Nelson on Plaintiffs' motion to compel interrogatory responses. According to the transcript of the hearing with reference to First Interrogatory No. 17, Magistrate Judge Nelson understood at that time that the parties had agreed to supplement Interrogatory Nos. 14 through 18 of Set One. Again according to the transcript, at the March 12, 2001, hearing, Standard Federal admitted that it had agreed to supplement its First Interrogatory No. 17.
However, the Court declines to reach-and need not reach-the issue of any purported waiver. Rule 26(a)(3) is clear in its meaning. The rule specifically provides that a court may, in its discretion, order disclosure of trial witnesses prior to 30 days before trial in performing its case management responsibilities. The pivotal issues, of course, are prejudice and fairness.
Magistrate Judge Nelson's order requiring Standard Federal to provide a list of trial witnesses prior to 30 days before trial is neither "clearly erroneous" nor "contrary to law." Of course, the same can be said of any similar request made by Defendant of the Plaintiff. For the reasons stated, the order is affirmed.
b. Document Request No. 22, Plaintiffs' Second Set of Document Requests.
Standard Federal asserts that Plaintiffs' Document Request No. 22 seeks documents protected by the work-product doctrine. Standard Federal also alleges that Document Request No. 22 seeks information which cannot lead to discovery of admissible evidence.
From the Court's point of view, it is quite unfortunate, even taking into consideration the stay in this case and disregarding the costs generally associated with such motions, that these discovery issues have gone unresolved for nearly seven months.
Magistrate Judge Nelson's order of March 20, 2001, in which she concluded that communications about "yield spread premium litigation" or "premium practices" are relevant to the claims and defenses in the above-entitled matter, is not "clearly erroneous or contrary to law." Even assuming no assertion by Plaintiffs of any type of conspiracy among lenders, the information sought with respect to such communications is relevant to the claims and defenses in the case. While it is true, as Defendant suggests, that documents prepared in anticipation of litigation are discoverable only upon a showing of substantial need and exceptional hardship, the Court does not have to reach that issue to properly review Magistrate Judge Nelson's decision.
An existing privilege or work-product exemption from discovery must be raised in a proper and specific fashion to justify a refusal to provide discovery. 8 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2016.1 (2d ed. 1994). Thus, parties prepare privilege logs and indexes. In light of Rule 34(b) and its requirement that an objecting party to a document request must state "the reasons for objection," a blanket claim is seldom sufficient. Id.
Although the degree of specificity required with respect to the preparation of a log or index is dictated by the needs of each case, a party resistant to disclosure is obligated to produce some form of privilege log or index. Defendant has failed to demonstrate any underlying facts or circumstances to establish a claim of privilege or work product.
Defendant's generalized assertion of privilege and work product is insufficient to meet the requirements of Rule 26(b)(5). Magistrate Judge Nelson's order requiring Defendant to answer Document Request No. 22 is not "clearly erroneous or contrary to law."
There should be no further delays in answering Interrogatory No. 17 of Plaintiffs' First Interrogatory Request and Document Request No. 22 of Plaintiffs' Second Set of Document Requests. For the reasons stated, United States Magistrate Judge Susan Richard Nelson's order of March 20, 2001, is affirmed in its entirety.