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Dahl v. Dahl

United States District Court, D. Utah, Central Division

March 30, 2018

KIM DAHL, Plaintiff,
CHARLES F. DAHL, et al., Defendants.

          Dustin B. Pead Magistrate Judge



         Plaintiff Kim Dahl claims that her ex-husband, Defendant Charles Dahl, M.D., illegally recorded phone conversations she had with their children. In the Fourth and Fifth Causes of Action in her Second Amended Complaint, [1] she alleges his acts of recording violated the Federal Wire and Electronic Communication Interception and Interception of Oral Communications Act[2]and Utah's Interception of Communications Act.[3] Now before the court is Dr. Dahl's Motion in Limine.[4] In it, he asks the court to preclude Ms. Dahl from offering evidence at trial of certain telephone recordings and related damages as a sanction for Ms. Dahl's failure to respond properly to Dr. Dahl's discovery requests designed to facilitate his understanding of the recordings-particularly the time frame when they occurred, which is a critical issue in this case.

         For the reasons discussed below, the court GRANTS in part and DENIES in part the Motion. Because Ms. Dahl has responded to Dr. Dahl's discovery, the court will not exclude the evidence at trial at this time. But the court concludes Dr. Dahl is entitled to his reasonable attorney fees and costs incurred in his efforts to obtain the requested information, and invites him to submit within ten (10) days a filing evidencing such fees and costs. If desired, Ms. Dahl may file a response no longer than five pages within ten (10) days of service of Dr. Dahl's filing.


         Ms. Dahl alleges in her Second Amended Complaint that Dr. Dahl illegally recorded at least seventeen telephone calls with her children after a Utah state court judge ended a requirement that visitation with her children be supervised and an order permitting such recording was lifted in the fall of 2009. She claims these calls were recorded in violation of federal and state wiretap laws.

         Following earlier motion practice, this court granted summary judgment in Defendants' favor on Ms. Dahl's federal claims, including the wiretap claims, and declined to exercise jurisdiction over the state law claims. Ms. Dahl appealed to the Tenth Circuit Court of Appeals. That court reversed and remanded in part this court's decision on the federal wiretap claims and remanded for further consideration whether the court would exercise jurisdiction over the Utah wiretap claims.[5]

         The court of appeals concluded that for any calls recorded until November 3, 2009, summary judgment was appropriate because until that time, Dr. Dahl had an objectively reasonable belief that recording was permitted pursuant to the state court judge's order.[6] But during the state court divorce trial, the state court judge on November 3, 2009 “indicated the [recording] should not be continued . . . .”[7] Thus, the Tenth Circuit held that for any calls after November 3, 2009, summary judgment at that time was inappropriate, because Ms. Dahl had submitted in conjunction with summary judgment briefing “sufficient evidence . . . to raise a genuine issue regarding whether such monitoring occurred.”[8]

         The evidence the Tenth Circuit referenced was Ms. Dahl's sworn affidavit submitted to this court in conjunction with the prior summary judgment briefing.[9] Ms. Dahl testified therein that on about December 27, 2009 she learned that Dr. Dahl had continued to record her telephone conversations, and that she “obtained fifteen digital recordings” of which she alleged “[a]t least two of the telephone conversations were wiretapped in December 2009….”[10]

         Dr. Dahl contends that this affidavit generally does not “make clear the foundation upon which [Ms. Dahl] rested in testifying that 15 recordings were made after November 3, 2009, ”- except for one “reference to a Christmas concert in the upcoming week in one of the recorded conversations.”[11] Thus, he argued at the time he filed his Motion that he could not ascertain what recordings were made after November 3, 2009, or how Ms. Dahl formed a belief that recordings were made after that date.[12]

         Ms. Dahl's attorney is in physical possession of the actual device used to make the recordings at issue. Years ago, Dr. Dahl's prior counsel visited the office of Ms. Dahl's counsel to download the actual recordings from the device, but was prevented from doing so.

         But, in late January 2015, Dr. Dahl obtained through discovery from Ms. Dahl a CD with an estimated several hours' worth of about 70 voice recordings, which vary in length up to about thirty minutes. The CD provides no data on when the recordings were created. After having listened to a few hours of the recordings, counsel for Dr. Dahl could not find the portion of the recordings with the Christmas concert discussion, or any other telltale information indicating the specific time frame when a recording was made.

         So, Dr. Dahl's counsel raised this issue with Ms. Dahl's counsel before Dr. Dahl's deposition on November 2, 2016. Ms. Dahl's counsel indicated he would supplement those disclosures. After nothing was produced weeks later, Dr. Dahl served on November 22, 2016, a formal request for production, seeking production of:

1. “[A]ny recording in your possession or control that you contend was made of any telephone conversation that occurred on or after November 3, 2009; and
2. “[A]ny and all documents that demonstrate any and all damages Plaintiff has sustained as a result of any recordings she claims were made on or after November 3, 2009. This request shall be construed to include compensatory damages of any ...

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