Opinion
Civil Action No. 3:98-CV-2918-L
January 14, 2002
ORDER
Before the court is Defendant Bruce M. Friedman's Objections to Order on Motions to Compel, filed January 18, 2000. Defendant Bruce Friedman ("Defendant" or "Friedman") seeks reconsideration of the magistrate judge's order dated January 10, 2000, granting Plaintiff's motions to compel, and directing him to answer Plaintiff's interrogatories, to produce documents responsive to Plaintiff's request for production, and to answer questions propounded at his deposition. For the reasons stated, Friedman's objections are overruled, and reconsideration of the magistrate judge's order is denied.
Plaintiff State Farm Insurance Company ("Plaintiff") filed this action on December 14, 1998 against Friedman and other individuals and entities, asserting claims under federal law, namely Title 18, United States Code, Sections 1962(c) and (d) and 1964, and common law fraud. Friedman is an attorney who is licensed to practice law in California and Texas. Plaintiff alleges in its complaint that Defendant, along with others, fraudulently procured more than $2,000,000 from it in connection with fraudulent bodily injury and property damage claims based upon deliberately caused automobile collisions.
In August 1999, Plaintiff initiated discovery against Friedman by serving him with interrogatories and requests for production of documents. Relying on the Fifth Amendment privilege, Friedman has refused to answer Plaintiff's interrogatories, produce the requested documents, and answer several questions propounded at his deposition on October 15, 1999. On December 6, 1999, Plaintiff filed its Motion to Compel Interrogatory Answers and Documents Responsive to Request for Production and Motion to Compel Answers to Questions Propounded at Deposition. On January 6, 2000, the magistrate judge conducted a hearing on Plaintiff's motions. Friedman, who is proceeding in this litigation pro se, did not appear. On January 10, 2000, the magistrate judge granted Plaintiff's motions, and issued an order directing Friedman to answer the interrogatories propounded in Plaintiff's Interrogatories and to produce all documents responsive to Plaintiff's Requests for Production by February 4, 2000. The magistrate judge further ordered Friedman to appear for the continuation of his deposition on February 18, 2000, at 9:00 a.m., at the law offices of Plaintiff's counsel to answer all questions not subject to privilege. On January 18, 2000, Friedman filed his objections to the magistrate judge's January 10th order. On January 26, 2000, Plaintiff filed its response to Friedman's objections. On February 4, 2000, pursuant to Defendant's request, the court issued an order staying discovery against him until further order of the court.
A motion to compel is a nondispositive, pretrial discovery motion. See Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). The court is authorized under 28 U.S.C. § 636 to reconsider a magistrate judge's order on any pretrial, nondispositive matter where it has been shown that the order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A)("A judge of the court may reconsider any [nondispositive] pretrial matter . . . where it has been shown that the magistrate's order is clearly erroneous or contrary to law."); see also Castillo, 70 F.3d at 385. This statutory provision is echoed in Rule 72, Fed.R.Civ.P., which provides that "[t]he district judge to whom the case is assigned shall consider such objections [to the magistrate judge's order] and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a).
Friedman objects to the magistrate judge's January 10th order on several grounds. First, Friedman objects to the magistrate judge's finding that he improperly asserted the Fifth Amendment privilege in response to Plaintiff's Interrogatories and at his deposition on October 15, 1999. According to Friedman, he has been advised by the United States Attorney's Office that he is the target of an ongoing criminal investigation involving the alleged staging of automobile accidents in California and Texas. Friedman contends that because the instant action is based upon the exact same set of alleged facts and circumstances as those relating to the criminal investigation, anything he says in this case could potentially expose him to criminal liability. This argument, however, has been seriously eroded with the passage of time because Friedman has not been indicted in the related criminal case. Indictments were handed down in that case in January 1999. Since then, the court has tried the underlying criminal case, and Friedman was neither a party nor witness in the case. Based upon these facts, there is virtually no chance that Friedman will be indicted in the related criminal case.
The magistrate judge found that Friedman's assertion of the Fifth Amendment privilege was made in a blanket fashion to discovery requests that did not call for an answer or documents that he could reasonably believe would subject him to criminal liability. Having reviewed Plaintiff's Interrogatories and Request for Production, as well as those questions propounded at Friedman's deposition that are the subject of Plaintiff's motion to compel, the court cannot say that the magistrate judge's finding was clearly erroneous or contrary to law.
Second, Friedman contends that the magistrate judge abused her discretion by ordering him to appear for his deposition at the offices of Plaintiff's counsel in Arlington, Texas. Friedman states that he is a sole practitioner in the full time practice of law in Los Angeles, California, where he permanently resides, and that he no longer practices in Texas. Friedman further states that he is in bankruptcy and cannot afford the time or expense of traveling to Texas for his deposition, as it would impose a tremendous hardship. Friedman argues that since Plaintiff's counsel will probably be returning to California to take the deposition of his wife, Sharon Friedman, and others, counsel could arrange to take his deposition at that time. Plaintiff's counsel, however, initially traveled to California to take Friedman's deposition, and he objected to answer many questions propounded by Plaintiff. Given Defendant's conduct and the expenses incurred by Plaintiff, the court sees no benefit in requiring Plaintiff to incur expenses caused by Friedman's unjustified conduct. In any event, Plaintiff states that no further depositions are scheduled to be taken in California.
The magistrate judge found that Friedman improperly asserted the Fifth Amendment privilege to several questions propounded at his deposition, and that he failed to produce any documents requested in the duces tecum attached to his deposition notice, except for his driver's license, even though the deposition had been scheduled by agreement at least six weeks prior to the deposition date. Because of Defendant's conduct, Plaintiff will now have to reexamine him on matters that should have been resolved in the first instance. Based on the record before her, the court cannot say that the magistrate judge abused her discretion by ordering Friedman to appear in Texas for the continuation of his deposition at the offices of Plaintiff's counsel.
Third, Friedman contends that the magistrate judge abused her discretion when she ordered that he pay sanctions in the amount of $5,280.15, and that failure to comply with her order would lead to the imposition of further sanctions, including contempt. Defendant contends that the sanctions imposed in this case are excessive, unjust and imposes undue hardship on him. This is so, says Friedman, because he is financially unable to retain counsel to represent him in this litigation. According to Friedman, his inability to retain counsel places him at a distinct disadvantage because he cannot be present in court, and has no one to appear on his behalf, to respond to opposing counsel's arguments or otherwise defend his position. That the magistrate judge offered to conduct the hearing on Plaintiff's motions by telephone conference, however, militates against this argument. The record is devoid of any evidence which shows that Friedman desired or made attempts to have the hearing conducted by telephone conference call; that he objected to the scheduled hearing date, or that he informed the magistrate judge that he would not be able to attend the hearing. In addition, although Friedman contends that he is in bankruptcy, there is no documentation in the record, such as a declaration or affidavit, suggestion of bankruptcy or some other notice of bankruptcy, to support this assertion. Equally unavailing is Defendant's argument that the magistrate judge abused her discretion when she admonished that he would be subject to the imposition of further sanctions if he failed to comply with her order, as such action is clearly authorized under Fed.R.Civ.P. 37(b).
Fourth, Friedman objects to Plaintiff's claimed expenses and the total amount awarded by the magistrate judge as costs, contending that Plaintiff failed to timely file an affidavit or declaration in support of its request for sanctions and the propriety and amount of expenses claimed. In this regard, Friedman argues that Plaintiff's affidavit in support of its request for sanctions was filed after the motions to compel were granted in "clear violation of the rules," and he was therefore denied an opportunity to challenge Plaintiff's claimed expenses. While Plaintiff concedes that the affidavit was filed after the motions to compel were granted, it implies that Friedman has waived any right to complain now since he lodged no objection to the affidavit prior to entry of the magistrate judge's order. The court agrees. Moreover, Defendant lodges no specific objection to any expense claimed by Plaintiff, and has therefore failed to show that the amount awarded was improper or unreasonable.
Lastly, Friedman contends that certain Defendants have filed motions for protective order regarding discovery based upon the pending criminal investigation, and that if such motions are granted, any stay of discovery should apply to all parties, including himself. The protective orders requested by those Defendants (Rita Margusov, Michael Merlin, Bella Shpitsek, and Isaak Shpitsek, all of whom were indicted) were not for an indefinite period of time. Rather, those Defendants requested that civil discovery be stayed until completion of their criminal proceedings. Unlike them, however, Friedman was never indicted, and has not otherwise shown that he is entitled to protective relief. In any event, discovery has been stayed against Friedman pending resolution of the instant objections, see Court's Order dated February 4, 2000, which essentially makes this argument moot.
Given the state of the record and evidence before the magistrate judge at the time she made her ruling, the court cannot say that it was clearly erroneous or contrary to law. In addition, the court finds that the magistrate judge did not abuse her discretion in ruling on Plaintiff's motions to compel. For the reasons stated, Friedman's objections are overruled, and reconsideration of the magistrate judge's order dated January 10, 2000 is denied.
Friedman is hereby directed to provide Plaintiff's counsel with complete answers to the interrogatories propounded in Plaintiff's First Set of Interrogatories to Bruce M. Friedman by February 4, 2002. Friedman shall also produce to Plaintiff's counsel all documents responsive to the requests made in Plaintiff's First Set of Document Requests to Bruce Friedman on or before February 4, 2002.
Friedman shall make himself available for deposition no later than February 8, 2002, and answer completely the questions to which he objected and answer all other relevant questions or those which are reasonably calculated to lead to the discovery of admissible evidence. Friedman's deposition shall take place at the offices of Plaintiff's counsel, Kassabian Doyle, P.C., 1521 North Cooper, Suite 650, Arlington, Texas 76011, unless Plaintiff and Friedman expressly agree in writing to conduct it in California.
The pretrial conference scheduled in this case for January 31, 2002 at 11:00 a.m. is hereby reset to February 15, 2002 at 9:00 a.m. The trial of this matter will commence on February 20, 2002 at 9:00 a.m.
Failure to comply with this order will subject the offending party to the full range of sanctions set forth in Fed.R.Civ.P. 37(b), (c) (d).
It is so ordered.