United States District Court, D. Utah, Central Division
B. Pead Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION IN
ROBERT J, SHELBY, UNITED STATES DISTRICT COURT.
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,  she alleges his acts of recording
violated the Federal Wire and Electronic Communication
Interception and Interception of Oral Communications
Actand Utah's Interception of
Communications Act. Now before the court is Dr. Dahl's
Motion in Limine. 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.
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.
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.
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
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. But during the state court divorce
trial, the state court judge on November 3, 2009
“indicated the [recording] should not be continued . .
. .” 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.”
evidence the Tenth Circuit referenced was Ms. Dahl's
sworn affidavit submitted to this court in conjunction with
the prior summary judgment briefing. 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
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.” 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.
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.
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.
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 ...