Dennis' Seven Dees Landscaping, Inc. v. Pickett

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UNITED STATES BANKRUPTCY COURT

DISTRICT OF OREGON

TRISH M. BROWN 1050 SW SIXTH AVENUE, #700 STEPHEN A. RAHER

CHIEF JUDGE PORTLAND, OREGON 97204 LAW CLERK

(503) 326-1592 SUZANNE M, MARX

JUDICIAL ASSISTANT

August 22, 2019

David G. Hosenpud Darien S. Loiselle

Lane Powell PC Schwabe, Williamson & Wyatt, P.C.

601 SW Second Ave., Suite 2100 1211 SW Fifth Ave., Suite 1900

Portland, OR 97204 Portland, OR 97204

VIA CM/ECF ONLY

Re: Dennis’ Seven Dees Landscaping v. Pickett, Adv. Proc. No. 19-3004-tmb

Evidentiary Motions

Dear Counsel:

I have received Debtor Doug Pickett’s Evidentiary Motions (the “Pickett Motion,” ECF No. 53)

and Plaintiff Dennis’ Seven Dees Landscaping, Inc.’s Motion to Exclude Testimony of Doug

Pickett’s Expert Witness James R. Omundson (the “DSDL Motion,” ECF No. 55). Having

carefully considered the arguments in the parties motions and responses, examined the

underlying exhibits, and reviewed relevant case law, I write today with my ruling on both

motions.

Pickett Motion

The Pickett Motion contains three requests for relief: (1) exclusion of all of DSDL’s exhibits

“because plaintiff has failed to identify the specific documents it actually intends to introduce at

trial,” (2) exclusion of DSDL’s Exhibit 35, and (3) exclusion of summary documents (Exhibits

236-267) to the extent they are offered as substantive evidence as opposed to demonstrative

exhibits. Pickett Motion at 2. I will address each request in turn.

Pickett’s first motion, to exclude all of DSDL’s exhibits, lacks merit. I am not persuaded by

Debtor’s reading of the court’s local rules and scheduling order. DSDL does not need to justify

the volume of its exhibits, and even if it did, I find that DSDL has articulated a reasonable basis

for the substantial number of trial exhibits it has submitted.

The second motion, to exclude Exhibit 35, is meritorious. As Debtor correctly notes, Federal

Rule of Civil Procedure 37(c) (applicable here through Federal Rule of Bankruptcy Procedure

7037) allows the court to exclude evidence that was not produced in response to a valid

David G. Hosenpud

Darien S. Loiselle

August 22, 2019

Page 2 of 3

discovery request. DSDL admits that this exhibit was not produced in discovery, but argues that

it was exempt from production under the attorney work-product doctrine and that it falls outside

of the June 2015 to November 2016 date range of the relevant request for production. DSDL

Resp. to Pickett Motion (ECF No. 58), at 4-5. Neither of these defenses is persuasive.

Exhibit 35 is a letter from Ron Roth to Dean Snodgrass regarding Mr. Roth’s bid for a contract

with DSDL. The federal work-product doctrine is codified in Federal Rule of Civil Procedure

26(b)(3) (applicable via Federal Rule of Bankruptcy Procedure 7026). See Admiral Ins. Co. v.

U.S. Dist. Ct. for the Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989). The doctrine protects

“documents .. . that are prepared in anticipation of litigation or for trial by or for another party

or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer,

or agent). Fed. R. Civ. P. 26(a)(3)(A) (emphasis added), According to DSDL, Mr. Roth is the

owner of R.A. Roth Construction & Son, Inc., which is a contractor that DSDL sometimes hires.

Pitfs Witness List (ECF No. 39), at 18. The work-product doctrine is intended to protect the

work of attorneys and agents that are retained in anticipation of litigation; an ordinary-course

vendor is not the type of representative or agent that falls within the doctrine.

Nor are DSDL’s temporal arguments persuasive. Many of Debtor’s discovery requests were

limited to information relating to transactions between June 2015 and November 2016. DSDL

argues that the Roth letter, dated March 2017, is outside this scope. Pltf. Resp. at 4. Yet, Exhibit

35 appears to summarize actions that did occur during the relevant time frame, even though Mr.

Roth appears to have drafted the document in 2017, after the fact. Accordingly, I will grant

Debtor’s motion to exclude Exhibit 35.

Finally, Debtor seeks to exclude the summaries included in Exhibits 236-267 except to the extent

they are offered as demonstrative exhibits. DSDL responds by arguing that the summaries are

admissible under Federal Rule of Evidence 1006. I agree that DSDL has shown that the

summaries are potentially admissible under Rule 1006; however, DSDL still bears the burden of

laying a foundation for admissibility. See Judson Atkinson Candies v. Latini-Hohberger

Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) (“The admission of a summary under Fed. R.

Evid. 1006 requires a proper foundation as to the admissibility of the material that is summarized

and a showing that the summary is accurate.” (internal quotation marks, omission, alteration, and

citation omitted)). Accordingly, DSDL should be prepared to provide such foundational

testimony. I will therefore deny Debtor’s third motion without prejudice to Debtor’s ability to

renew the motion at trial.

DSDL’s Motion

In its motion, DSDL seeks to exclude the testimony of Debtor’s expert witness James

Omundson. Specifically, DSDL argues that Debtor has failed to provide a written expert report

as required by Federal Rule of Civil Procedure 26(a)(2)(B) and (D). DSDL Motion at 2-3.

Debtor contends that the written-report requirements of Rule 26(a)(2) were modified by the

court’s amended scheduling order. Debtor’s Resp. to DSDL Motion (ECF No. 56), at 3-4. While

it was not the court’s intent to modify these provisions of Rule 26(a)(2), the scheduling order is

ambiguous, and Debtor’s interpretation is not unreasonable. At the same time, DSDL has

apparently provided a report from its own expert, and it would be unfair to excuse Debtor from

providing the same type of information. Moreover, as Debtor notes, under DSDL’s reading of

David G. Hosenpud

Darien S. Loiselle

August 22, 2019

Page 3 of 3

the deadlines, expert reports were due after the close of discovery. Accordingly, the only

purpose of the written report is to help the adverse party prepare for trial—a goal that can still be

achieved here, albeit on a delayed basis. I will therefore require Debtor to provide DSDL with a

written expert report no later than September 3, 2019. DSDL’s remaining objections to Mr.

Omundson’s testimony are overruled, but DSDL may renew them at trial if Mr. Omundson

offers improper opinion testimony.

Conclusion

Consistent with the rulings above, the court will enter an order denying Debtor’s first and third

motions, granting Debtor’s second motion, and requiring Debtor to provide a written expert

report by September 3.

ery truly yours,

Trish M. Brown