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Seastrand v. U.S. Bank N.A.

United States District Court, D. Utah, Central Division

December 20, 2018

JOHN SEASTRAND, an individual, Plaintiff,
v.
US BANK, N.A., a nationally chartered bank; et al., Defendants.

          TED STEWART CHIEF DISTRICT JUDGE

          MEMORANDUM DECISION AND ORDER

          PAUL 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).[1] Before the court is (1) Plaintiff John Seastrand's (“Seastrand”) short form discovery motion to compel production of subpoenaed documents[2] and (2) Seastrand's short form discovery motion regarding rebuttal expert disclosures.[3] 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).

         ANALYSIS

         I. Seastrand's Motion to Compel

          In an 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”).[4] 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 documents.

         In the 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.

         Without 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.

         The 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.

         Upon 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.

         If, at 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 effect.

         II. Seastrand's Motion Regarding Rebuttal Expert Disclosures

         In an order dated September 11, 2018, the court granted the parties' stipulated motion to extend certain deadlines (“September 11 Order”).[5] In relevant part, the court extended the deadline for completion of expert discovery to October 16, 2018.

         In this 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 ...


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