The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT CUTLER and NANCY WHITE, Case No. 3:18-cv-01692-IM
a married couple, and ROBERT TICE, an
individual, OPINION AND ORDER
Plaintiffs,
v.
TYTUS HARKINS, an individual citizen of
the State of Montana, JASON M. WHITE,
an individual citizen of the State of
Washington, HARTMAN WRIGHT, LLC,
a Washington limited liability company,
HARTMAN WRIGHT GROUP, LLC, a
Colorado limited liability company,
HARTMAN WRIGHT GROUP, LLC, a
Georgia limited liability company,
HARTMAN WRIGHT PROJECT
MANAGEMENT, a Colorado limited
liability company, PLEASANT HILL MHP
HOLDINGS, LLC, an unknown entity, and
ONE SIXTEEN GROUP, LLC, a Georgia
limited liability company,
Defendants.
IMMERGUT, District Judge.
The matter comes before the Court on three motions to compel: Plaintiffs’ Motion to
Compel Answers to Interrogatories by Defendants Jason White (“White”) and Tytus Harkins
(“Harkins”), ECF 94; Plaintiffs’ Motion to Compel the Production of Documents by Defendant
White, ECF 96; and Plaintiffs’ Corrected Motion to Compel the Production of Documents by
Defendant Harkins, ECF 98.1 Plaintiffs’ counsel certifies that he has repeatedly conferred with
counsel for Defendant White and with pro se Defendant Harkins, and that all three motions are
opposed. ECF 94 at 2; ECF 96 at 2; ECF 98 at 2. In all three motions, Plaintiffs seek reasonable
attorney costs and fees for having to bring the motion pursuant to Federal Rule of Civil
Procedure 37(a)(5). ECF 94 at 2; ECF 96 at 2; ECF 98 at 2.
Defendant White through counsel and Harkins proceeding pro se have filed responses to
these motions. See ECF 101, 104, 109, 115. The Court held oral argument on the motions on
August 12, 2021. ECF 113. The Court ordered parties to submit a joint status report (“JSR”)
clarifying the status of discovery by September 8, 2021, ECF 122, and ordered parties to submit
a second JSR identifying and listing any remaining, unresolved issues on which they seek a
1 The Corrected Motion, ECF 98, appears to be a correction of Plaintiffs’ pending motion
to compel against Defendant Harkins, ECF 81. Compare ECF 81 at 2 (seeking complete
productions in response to Request Nos. 1–4, 7–14, and 17), with ECF 98 at 2 (seeking same).
Following the filing of ECF 81, the Court granted a motion by Harkins’s counsel to
withdraw due to an actual conflict. ECF 82. In light of that, the Court noted that it would not
consider the pending motion until new counsel had an opportunity to confer with Plaintiffs and
respond. Id. Harkins has elected to proceed pro se, and Plaintiffs filed this “corrected” motion as
to Defendant Harkins. ECF 98.
The Court treats the corrected motion, ECF 98, as the operative motion to compel the
production of documents as to Harkins. Accordingly, Plaintiffs’ first motion to compel the
production of documents as to Harkins, ECF 81, is DENIED as moot.
ruling from this Court, ECF 129. Parties have timely submitted both reports. ECF 123 (“first
JSR”); ECF 130 (“second JSR”).
The second JSR identifies three broad areas on which the parties seek a ruling: the
organization of documents, the production of documents from additional financial accounts, and
the response to interrogatories. See generally ECF 130. Aside from the interrogatories, this JSR
did not identify specifically which portions of which pending motions remain unresolved. The
Court has endeavored to review the numerous requests at issue across the multiple pending
motions to identify those specific requests which remain outstanding per the second JSR. The
Court’s review, based on the second JSR, indicates that the following portions of the following
motions to compel remain at issue: (1) interrogatories 1 and 2 (ECF 94); and (2) request for
production motions 3, 4, 7, and 12, which relate to requests 3, 4, 9, and 14, respectively (ECF 96,
Ex. 6, at 56, 58, 62, 68; ECF 98, Ex. 6, at 57, 59, 63, 69). Accordingly, this Court limits its
discussion and rulings to these requests and interrogatories and DENIES any other requests as
moot.
The second JSR requests oral argument. ECF 130 at 1. Because the Court has decided
that additional oral argument would not assist in the resolution of this matter, and noting the
opportunity for argument on August 12, 2021, ECF 113, the parties’ requests for additional oral
argument is DENIED. For the following reasons, Plaintiffs’ Motions to Compel, ECF 94, 96, 98,
are GRANTED IN PART and DENIED IN PART.
BACKGROUND
This is primarily a securities fraud case under the Oregon Blue Sky Law, ORS Chapter
59. ECF 90 at 10. Plaintiffs assert various claims against Defendants, all alleging that Defendants
raised funds from the Plaintiffs and other investors “based upon a series of false and misleading
statements.” Id. at 2. Plaintiffs allege that Defendants communicated to Plaintiffs that Defendants
“sought to find distressed or undervalued mobile home parks, purchase them using the Plaintiffs’
money, make capital improvements, and then sell them for a profit or refinance the deals within
three years.” Id. at 3. Plaintiffs allege that contrary to Defendants’ representations to Plaintiffs,
Defendants diverted Plaintiffs’ funds for undisclosed purposes, including using some of the
investors’ funds to make Ponzi-like payments to other investors. Id. Plaintiffs allege that the
Individual Defendants in this case “have hidden, diverted, or used the proceeds to enrich
themselves or their family members in the hope the Individual Defendants will not be caught
given the complexity of the web of corporate entities they have strung together.” Id. at 2.
According to Plaintiffs, Plaintiffs’ and other investors’ funds were “diverted into a labyrinth of
some 70 corporate entities . . . and among at least 20 bank accounts.” Id. Plaintiffs seek
economic damages of over $2 million and punitive damages of over $7 million. Id. at 36–38.
LEGAL STANDARDS
Pursuant to Federal Rule of Civil Procedure 26(b)(1), parties may discover any
unprivileged information that is relevant to any party’s claim or defense and proportional to the
needs of the case. Fed. R. Civ. P. 26(b)(1). Pre-trial discovery is “accorded a broad and liberal
treatment.” Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (quoting Hickman v. Taylor, 329
U.S. 495, 507 (1947)).
DISCUSSION
As stated above, Plaintiffs seek various responses to their Requests for Productions and
Interrogatories. See ECF 94, 96, 98. The Court now resolves the three broad areas on which the
parties seek a ruling, as identified in the second JSR. See ECF 130. First, Plaintiffs identify a
dispute regarding the Bates stamping and categorization of documents. Id. at 3–7. Second,
parties dispute the extent to which Defendant is required to produce certain financial records to
Plaintiffs. Id. at 7–12. Finally, Plaintiffs seek responses to Interrogatories 1 and 2. Id. at 12–14.
A. Bates Stamping and Categorization
As explained in the second JSR, Defendants have produced a variety of documents to
Plaintiffs, some of which are Bates stamped, categorized, or neither stamped nor categorized.
Defendants initially produced six production sets between August 2020 and May 2021,
containing 15,461 Bates stamped pages and 13,963 pages of “native” format documents. Id. at 3–
4. On October 1, 2021, Defendants provided Plaintiffs with “a list of the Bates stamped
documents that tie back to Plaintiffs[’] Request for Production for the first 15,461 files.” Id. at 6.
The remaining 13,963 pages of native documents were not so categorized. Id. Plaintiffs
themselves Bates stamped these remaining 13,963 native pages, converted them to PDF format,
and sent those stamped pages to Defendant White. Id. at 4. White represented these documents
would be categorized as of October 22, 2021.
Defendants also produced two “USB thumb drives,” which collectively contain 661,737
data files—one drive contains emails and the other appears to contain the SEC-related
documents except for the SEC witness statements. Id. at 5. As of the submission of the second
JSR, the files contained on the USB drives were Bates stamped but were not categorized. Id. at 6.
It appears counsel for Defendant White has requested assistance is doing so from Plaintiffs’
counsel. Id.
In the first JSR, Defendants represented that “after meaningful conferral [parties] have
agreed that all the Defendant’s original 29,397 documents will be [Bates] stamped and sorted by
Request no later than October 1, 2021.” ECF 123 at 4. Additionally, they agreed that all of the
USB drive documents “will be [B]ates stamped (with the exclusion of QuickBooks databases
and other native format documents that the parties may agree do not require [B]ates numbers)
and sorted by Request no later than October 1, 2021.” Id. at 5. Moreover, Federal Rule of Civil
Procedure 34(b)(2)(E), which addresses the production of documents or electronically stores
information, provides that unless otherwise ordered by the court, “[a] party must produce
documents as they are kept in the usual course of business or must organize and label them to
correspond to the categories in the request . . . [and] a party must produce [electronically stored
information] in a form or forms in which it is ordinarily maintained or in a reasonably usable
form or forms . . . .” Fed. R. Civ. P. 34(b)(2)(E). The uncontradicted information provided in the
second JSR indicates that except for the initial set of 15,461 documents, the remaining
documents contained within the initial production and those on the USB drives have not been
adequately categorized pursuant to either Defendants’ representations to this Court, ECF 123, or
Rule 34(b)(2)(E).
To the extent that Defendants have not already done so, the Court ORDERS Defendants
to properly sort these remaining documents by request no later than December 1, 2021. If
defense counsel requires Plaintiffs’ counsel’s assistance to do so, and Plaintiffs’ counsel provides
such assistance, the Court will consider Plaintiffs’ request for reasonable fees.
B. Production of Financial and Other Documents
1. Financial Accounts
Plaintiffs contend that Defendants have willfully failed to provide numerous documents
including records from over eighty financial accounts undisclosed to Plaintiffs and sworn SEC
statements, which were omitted from the USB drive containing the SEC production. ECF 130 at
5, 7. Plaintiffs argue that they “have identified the accounts and made the Defendants aware of
these accounts in writing,” but Defendants refuse to produce these documents. Id. at 7. Plaintiffs
argue that, and Defendants do not appear to contradict that, Defendants White and Harkins are
signatories to the accounts, have a legal right to obtain documents from the accounts, and control
the accounts. Id. at 9–10. However, Defendants failed to provide these documents in response to
Plaintiffs’ requests. Id.2
The Court’s review of the pending motions indicates that this dispute centers on motions
3, 4, and 7, which relate to requests 3, 4, and 9, respectively. ECF 96, Ex. 6, at 56, 58, 62; ECF
98, Ex. 6, at 57, 59, 63.
a. Motion Three (Request No. Three)
Plaintiffs’ third request was: “FINANCIAL RECORDS—All Documents and ESI in
Your Care, Custody, or Control relating to FINANCIAL RECORDS for accounts identified in
your responses to Interrogatories 1 and 2.” ECF 96, Ex. 6, at 56; ECF 98, Ex. 6, at 57.
White’s response initially was that he would “produce bank records for the listed
accounts to the extent he is able to locate and/or obtain them with reasonably diligent efforts.”
ECF 96, Ex. 6, at 56. Harkins provided the same response. ECF 98, Ex. 6, at 57. In their motion
to compel, Plaintiffs states that White and Harkins committed to answering the interrogatories
once a protective order had been put in place and such a protective order was put in place. Id. at
58; ECF 96, Ex. 6, at 57. However, Plaintiffs contends that neither Defendant has fully
responded to the interrogatories or this request. ECF 96, Ex. 6, at 57–58; ECF 98, Ex. 6, at 58–
59. In response to the motion to compel, White states that he “recently provided those
responses.” ECF 104 at 3. Harkins responds that “Defendants HAVE completed the delivery of
documents as requested.” ECF 115 at 2.
2 Defendant Harkins asserts that all relevant financial documents are contained on the
USB drives. ECF 130 at 10.
b. Motion Four (Request No. Four)
Plaintiffs requested: “PAYMENTS AND TRANSFERS FROM BUSINESS ENTITIES –
All DOCUMENTS and ESI in your Care, Custody, or Control that evidence payments and/or
transfers of funds or assets to YOU from a business entity or as a result of the activities of a
business entity of which you are an owner, member, employee, and/or board member, including
without limitation HARTMAN WRIGHT relating to the SUBJECT SECURITIES.” ECF 96, Ex.
6, at 58; ECF 98, Ex. 6, at 59.
White’s initial response was that that he would “produce documents sufficient to show
payments and/or transfers of funds involving business entities only to the extent the payments
and/or transfers directly relate to Plaintiffs and/or funds from Plaintiffs.” ECF 96, Ex. 6, at 59.
Harkins’s initial response was the same. ECF 98, Ex. 6, at 60. Plaintiffs’ motion, ECF 96, and
White’s response, ECF 104, largely focus on the existence of QuickBooks records. It appears
from the second JSR that these QuickBooks records have since been produced. ECF 130 at 5
(stating the SEC drive contains “58 QuickBooks data files plus other QuickBooks supporting
files”). However, these records appear to be password protected, such that Plaintiffs are unable to
access them. See ECF 135, Second Scannell Decl., at 3.
c. Motion Seven (Request No. Nine)
Plaintiffs’ ninth request was: “TRANSACTIONS – DOCUMENTS and ESI related to all
financial transactions related to HARTMAN WRIGHT relating to the SUBJECT SECURITIES.”
ECF 96, Ex. 6, at 62; ECF 98, Ex. 6, at 63.
Both White and Harkins initially responded by directing Plaintiffs to their responses to
request 4 and that “[n]o additional responsive documents will be produced.” ECF 96, Ex. 6, at
62; ECF 98, Ex. 6, at 63. In their motion to compel, Plaintiffs state that Defendants White and
Harkins only produced “select personal financial statements” which revealed “evidence of
additional bank accounts.” ECF 96, Ex. 6, at 62; ECF 98, Ex. 6, at 63. Further, no records of
these newly discovered accounts have been produced, and often the production included only a
few months’ worth of financial statements. ECF 96, Ex. 6, at 62; ECF 98, Ex. 6, at 63. Plaintiffs
also raised the issue of QuickBooks files. ECF 96, Ex. 6, at 62–63; ECF 98, Ex. 6, at 63–64.
In response to the motion, White argues that “none of the defendants have access to the
Hartman Wright QuickBooks account or data anymore.” ECF 104 at 4. White states that with
“regard to other financial information, hundreds of pages of bank statements have already been
produced.” Id. However, as stated above, it appears that as of the second JSR, these QuickBooks
files have been produced, but that due to password protection, Plaintiffs are unable to access
them. See ECF 130 at 5; ECF 135, Second Scannell Decl., at 3.
d. Court Order
The Court finds that, though Defendants White and Harkins indicated in their initial
responses and responses to the motion to compel that certain documents would be provided, see,
e.g., ECF 104 at 4, and the issue regarding QuickBooks appears to be partially resolved, see ECF
130 at 5, based on the second JSR, it is clear that these Defendants have failed to respond
completely and accurately to the requests at issue.
The documents Plaintiffs seek—related to financial accounts Defendants control or from
which they have a legal right to obtain documents—are responsive to their requests and relevant
to this litigation. Defendants appear not to have made an effort to obtain and produce these
financial account documents. Id. at 9–10. Additionally, while Defendants have provided
QuickBooks records, they have not provided Plaintiffs with the ability to access these records.
ECF 135, Second Scannell Decl., at 3. These documents relevant to the litigation and Plaintiffs’
requests are within the scope of Rule 26 and the requests, as clarified in the JSRs and at oral
argument, are permissible. See Fed. R. Civ. P. 26(b)(1) (stating that parties “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case”). Rule 37 is clear that an incomplete disclosure in response
to a discovery request must be treated by the court as a failure to answer. Fed. R. Civ. P.
37(a)(4). Defendants’ document productions are incomplete, and the Court regards them as a
failure to produce documents under Rule 34. Accordingly, there is good cause to grant the
motion.
The Court ORDERS Defendants White and Harkins to produce these responsive
documents from those financial accounts over which Defendants have control, including those
accounts associated with business entities and personal accounts, no later than December 1,
2021. Further, White and Harkins are ORDERED to provide Plaintiffs with access to the
QuickBooks records by November 12, 2021.
2. Tax Returns
The Court’s review of the pending motions indicates that this dispute centers on motion
12. ECF 96, Ex. 6, at 68; ECF 98, Ex. 6, at 69.
a. Motion Twelve (Request No. Fourteen)
Plaintiffs requested: TAX RETURNS – All of YOUR Tax Returns and all
DOCUMENTS related to your Tax Returns.
Both Defendants White and Harkins initially responded that they object to this request
because “it seeks information that is not relevant to this case and that is confidential.” ECF 96,
Ex. 6, at 68; ECF 98, Ex. 6, at 69. Subsequently, parties agreed to a relevant date range, and
Defendants agreed to produce their tax returns once filed. See ECF 104 at 6; see also ECF 123 at
6.
As of the second JSR, Defendants Harkins and White have provided tax returns for 2012
through 2015. ECF 130 at 12. In the first JSR, Defendants represented that they are “currently
working . . . to prepare their 2016 through 2021 tax returns. When those are completed they will
be produced to the Plaintiffs. Both Defendants will produce any personal or entity tax returns
that are complete to the Plaintiffs no later than October 1, 2021.” ECF 123 at 6. Defendant White
“continues to . . . prepare the tax records for 2016 to present” as of the second JSR. ECF 130 at
12. There is no indication as to Defendant Harkins’s progress on producing the tax records.
b. Court Order
The Court ORDERS Defendants to confer with Plaintiffs regarding their progress on
filing the tax returns for the years 2016 to 2021. Pursuant to parties’ agreement in the first JSR,
Defendants are ORDERED to provide all personal and entity tax returns during this time period
to the extent they exist; for any tax returns that have not yet been filed, Defendants are
ORDERED produce the tax returns to Plaintiffs no later than seven (7) days after the tax returns
are filed.
C. Interrogatories Nos. 1 and 2
Plaintiffs continue to seek complete responses to Interrogatories 1 and 2. Id. at 12.
Plaintiffs served Defendants Harkins and White with interrogatories on November 27, 2019.
ECF 94 at 3. The only two interrogatories request:
REQUEST NO. 1: Please identify by institution name and last 5
digits of the account number each FINANCIAL ACCOUNT in
which funds derived from the SUBJECT SECURITIES were
deposited, including without limitation, FINANCIAL
ACCOUNTS of YOUR Attorneys, representatives, agents, or other
third parties.
REQUEST NO. 2: Please identify by institution name and last 5
digits of the account number each FINANCIAL ACCOUNT in
which funds derived from the SUBJECT SECURITIES were
transferred, including without limitation, FINANCIAL
ACCOUNTS of YOUR Attorneys, representatives, agents, or other
third parties.
Id. Though progress has been made to agree on a definition of “Subject Securities,” ECF 123 at
5, Plaintiffs contend Harkins and White have failed to fully respond to these interrogatories. ECF
130 at 12–14.
Plaintiffs contend that they “are without sufficient information to confirm whether
Defendant White’s supplemental answers to Interrogatory 1 are complete.” Id. at 12. Though not
explicitly stated, it appears that Defendant Harkins has not satisfactorily responded to this
interrogatory as well. See id. at 14.
As to interrogatory 2, Defendant Harkins has not responded to this interrogatory, nor has
he attested to Defendant White’s response. Id. at 13. Defendant White has responded, but
Plaintiffs “contend that [his] answers are still not accurate” because he has failed to account for
the financial accounts identified by Plaintiffs. Id. Defendant White requests that this Court
determine whether a de minimis threshold should apply to his response. Additionally, he requests
the Court to determine, “if investor money was used to pay employee salaries or other operating
expenses,” that records related to those transactions be deemed sufficient to respond on the basis
they allow Plaintiffs to “follow the money.” Id. at 3.
1. Court Order
Defendants are ORDERED to respond completely to Interrogatories 1 and 2 based on all
responsive financial accounts no later than December 1, 2021. This information is relevant to the
litigation and Plaintiffs’ interrogatory falls within the scope of Rule 26. See Fed. R. Civ. P.
26(b)(1) (stating that parties “may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case”). Rule 37 is
clear that an incomplete disclosure in response to a discovery request must be treated by the
court as a failure to answer. Fed. R. Civ. P. 37(a)(4). Plaintiffs’ interrogatory requests were not
impermissibly broad and sought discoverable material. Defendants’ answers are incomplete
disclosures, and the Court regards them as a failure to answer Plaintiffs’ interrogatory requests
submitted under Rule 33. See ECF 94, Ex. 2, at 29–30, 35–36; ECF 102-1 at 2. Accordingly,
there is good cause to grant the motion.
To the extent this requires Defendants to review and restate prior responses, this Court
SO ORDERS. The Court will not impose a de minimis threshold—the responses should account
for all transfers. See ECF 130 at 3. The Court also clarifies that already-produced records that
purport to allow Plaintiffs to “follow the money” are not sufficient to respond. See id.
Finally, cognizant of Defendant Harkins’s pro se status and Plaintiffs’ requested relief,
Defendant Harkins is permitted to attest to Defendant White’s responses to Interrogatory 1 and 2
within 48 hours of Defendant White’s response, or to jointly respond with Defendant White.
D. Rule 26 Disclosures
Plaintiffs did not waive their Rule 26 disclosures. Defendants Hartman Wright Group,
LLC, Hartman Wright Project Management, LLC, and Pleasant Hill MHP Holding, LLC
submitted their Rule 26 disclosures to Plaintiffs on November 8, 2019. See ECF 131, Ex. C.
Plaintiffs contend that Defendants have failed to supplement their Rule 26 disclosures and to
produce documents they know exist and over which they have control.
Rule 26(e) requires that:
A party who has made a disclosure under Rule 26(a)—or who has
responded to an interrogatory, request for production, or request
for admission—must supplement or correct its disclosure or
response: (A) in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the
discovery process or in writing; or (B) as ordered by the court.
Fed. R. Civ. P. 26(e). This rule creates an obligation in this case to supplement Rule 26
disclosures and responses to accurately reflect all the relevant financial accounts and entities.
The second JSR did not include Harkins’s and White’s Rule 26 disclosures; rather it
included only those for Defendants Hartman Wright Group, LLC, Hartman Wright Project
Management, LLC, and Pleasant Hill MHP Holding, LLC. Unable to confirm the contents of
Harkins’s and White’s disclosures, the Court declines to order these Defendants to supplement
their disclosures; however, the Court reminds Harkins and White, as well as all Defendants in
this litigation, of their duty under Rule 26(e).
E. Plaintiffs’ Requested Fees
Plaintiffs’ request that Defendants pay Plaintiffs’ reasonable attorney’s fees and costs
associated with the need to prepare a second motion to compel and the second JSR; associated
with the issuance of third-party subpoenas for documents Defendants were obligated, but failed
to, produce; associated with the organization of Defendants’ productions that had not been Bates
stamped and sorted; and awarded by the Court and found to be reasonable prior to the
Defendants filing any response to Plaintiffs’ dispositive motions. ECF 130 at 15 (requesting fees
pursuant to Rules 26(e), 26(g), and 37(a)(5)); see also ECF 94 at 2 (requesting fees pursuant to
Rule 37(a)(5)(A)); ECF 96 at 2 (requesting fees pursuant to Rule 37(a)(5)); ECF 98 at 2 (same).
Rule 26(g)(3) provides that if certification of disclosures and discovery requests,
responses, and objections violate Rule 26 “without substantial justification, the court, on motion
or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the
signer was acting, or both. The sanction may include an order to pay the reasonable expenses,
including attorney’s fees, caused by the violation.” Fed. R. Civ. P. 26(g)(3). Under Rule
37(a)(5)(A), “[i]f the motion [to compel] is granted—or if the disclosure or requested discovery
is provided after the motion was filed—the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). Fees should not be awarded
under Rule 37 if the party seeking fees “filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action,” the nondisclosure was “substantially
justified,” or “other circumstances make an award of expenses unjust.” Id. If the motion is
granted in part and denied in part, the court may “after giving an opportunity to be heard,
apportion the reasonable expenses of the motion.” Id. at 37(a)(5)(C).
Plaintiffs claim they are entitled to fees and expenses due to Defendants’ failures of
production and disregard of their obligations under the Federal Rules. See ECF 94 at 6 (arguing
for fees under Rule 37(a)(5)(A) because “Defendants’ flagrant disregard of its obligation to
answer interrogatories is subject to sanctions under [Rule] 37”); ECF 130 at 8 (describing failure
to produce as willful). As to the interrogatories, White states that the delay in answering was
justified given the multiple substitutions of counsel and the volume of production in this case. He
notes that Defendants have produced hundreds of pages of bank statements, and over 15,000
pages of documents in all, prior to White’s current counsel becoming involved. ECF 101 at 3.
White states that his current counsel “attempted to stay in good contact with Plaintiffs’ counsel
and expressed that supplemental answers to Plaintiffs’ interrogatories would be forthcoming. At
no time was it indicated that White would object to or refuse to answer Plaintiffs’
interrogatories.” Id. at 2–3. White also attempted to answer the interrogatories in responding to
Plaintiffs’ motion by providing supplemental answers, though this Court concludes that Plaintiffs
are entitled to more information as explained above. See ECF 102-1 at 2–3. However, unlike
Defendant White, Defendant Harkins has not provided any justification or excuse for not
responding to Plaintiffs’ interrogatories and has not attempted to provide any further answers
since his initial inadequate answer.
While the Court acknowledges that White had multiple changes of counsel and has
produced some documents and provided some responses, and that Harkins has elected to proceed
pro se following his prior counsel’s withdrawal for an actual conflict, Defendants’ conduct has
been dilatory, and Defendants have been resistant to producing clearly responsive documents.
See generally ECF 130. Defendant Harkins has failed to appear for parties’ conferrals. See id. at
2 (noting Harkins’s failure to appear at the October 14, 2021 conferral “despite having it
rescheduled three times for him”). In light of this conduct, the Court finds that Harkins’s and
White’s resistance to fully and accurately responding to interrogatories and producing documents
and to providing Plaintiffs with documents in a reasonably useable form, forced Plaintiffs to file
multiple motions to compel and improperly delayed this case. The Court finds that none of the
exceptions in Rule 37(a)(5)(A) apply in this case, and thus costs are warranted under Rule
37(a)(5)(A) and (a)(5)(C).
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motions to Compel, ECF 94, 96, and 98, are
GRANTED IN PART and DENIED IN PART. Plaintiffs’ Motion to Compel Answers to
Interrogatories, ECF 94, is GRANTED. Plaintiffs’ Motions to Compel the Production of
Documents, ECF 96, 98, are GRANTED IN PART and DENIED IN PART. As stated above,
because parties were directed to identify the outstanding issues requiring a court ruling in the
second JSR, any requests or motions not identified in the second JSR and not addressed in this
Opinion are DENIED as moot. Finally, Plaintiffs’ first motion to compel production by
Defendant Harkins, ECF 81, is DENIED as moot.
Because this Court finds that an award of attorney’s fees and costs is appropriate,
Plaintiffs are ordered to file briefs and accompanying materials addressing the amounts requested
and bases for the requests by December 6, 2021. Defendants White and Harkins must file their
responses within seven days of the filing of Plaintiffs’ briefs. No replies will be permitted
without leave.
IT IS SO ORDERED.
DATED this 10th day of November, 2021.
/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge