United States District Court, D. Utah, Central Division
STEWART CHIEF DISTRICT JUDGE
MEMORANDUM DECISION AND ORDER
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE
District Judge Ted Stewart referred this case to Chief
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is (1) Plaintiff John
Seastrand's (“Seastrand”) short form
discovery motion to compel production of subpoenaed
documents and (2) Seastrand's short form
discovery motion regarding rebuttal expert
disclosures. The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to Civil
Rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will
determine the motions on the basis of the written memoranda.
See DUCivR 7-1(f).
Seastrand's Motion to Compel
order dated August 21, 2018, the court denied a motion to
quash a third-party subpoena filed by Defendants Jacklyn W.
Miller; Gary S. Miller; Jay M. Minnick; Miller Development
Company, Inc.; Miller Minnick Associates I, LLC; and Millwood
Companies, LLC (collectively, “Miller
Defendants”). In that motion, the Miller Defendants
sought to quash a third-party subpoena to Rocky Mountain
Advisory, LLC (“RMA Subpoena”). In denying the
motion, the court ordered the Miller Defendants to produce
all nonprivileged documents that are responsive to the RMA
Subpoena and produce a privilege log for any privileged
documents that are responsive to the RMA Subpoena. According
to Seastrand, the Miller Defendants complied with that order,
but produced a privilege log of approximately 5, 000
motion now before the court, Seastrand seeks a court order
requiring the Miller Defendants to produce approximately 130
of those documents (“Documents”). Seastrand
contends that the Documents are not privileged and,
therefore, should be produced. In response, the Miller
Defendants maintain that the Documents are privileged.
being able to review the Documents, the court cannot
ascertain whether they are privileged. The court concludes
that an in camera review is the only way to
determine whether the documents should or should not be
produced. Accordingly, Seastrand's motion to compel is
taken under advisement, and the following process will govern
the court's in camera review.
Miller Defendants shall review the Documents again to
determine whether they are indeed privileged. After
conducting that review, the Miller Defendants shall produce
to Seastrand any of the Documents over which a claim of
privilege is no longer asserted. For any of the Documents
over which the Miller Defendants continue to assert a claim
of privilege, they shall deliver them, along with a
corresponding privilege log, to the Chambers of Chief
Magistrate Judge Paul M. Warner, 351 South West Temple, Room
10.440, Salt Lake City, Utah 84101. Said delivery shall be
made on or before January 11, 2019.
receipt of the Documents alleged to be privileged, the court
will review a random sampling of 5 documents. The court will
not individually review all of the Documents alleged to be
privileged. Based upon the review of the sample, the court
will rule on the claim of privilege as to all of the
Documents alleged to be privileged. It therefore behooves the
Miller Defendants to construe their claims of privilege
narrowly, or they may lose the claim as to all of the
Documents submitted for review.
any point during the above-referenced process, the parties
resolve the dispute presented by Seastrand's motion to
compel, they shall file a notice with the court to that
Seastrand's Motion Regarding Rebuttal Expert
order dated September 11, 2018, the court granted the
parties' stipulated motion to extend certain deadlines
(“September 11 Order”). In relevant part, the court
extended the deadline for completion of expert discovery to
October 16, 2018.
motion, Seastrand seeks an order allowing him to file his
rebuttal expert disclosures on October 29, 2018. Seastrand
argues that because the September 11 Order does not contain a
deadline for rebuttal expert disclosures, he should be
provided with 30 days, or until October 29, 2018, to file his
rebuttal expert disclosures. See Fed. R. Civ. P.
26(a)(2)(D)(ii) (“A party must make these disclosures
at the times and in the sequence that the court orders.
Absent a stipulation or a court order, the disclosures must
be made: . . . (ii) if the evidence is intended solely to
contradict or ...