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Berrey v. Investment Funding LLC

United States District Court, D. Arizona

December 9, 2014

Andrew Berrey, Plaintiff,
v.
Investment Funding LLC, et al., Defendants.

ORDER

BRIDGET S. BADE, Magistrate Judge.

Defendant Injury Assistance, LLC (Injury Assistance) has filed a motion to compel non-parties Amanda Nelson and the law firm Elardo, Bragg, Appel & Rossi (Elardo law firm) and Electric Insurance Company (Electric) to comply with subpoenas duces tecum. (Doc. 51.) The Elardo firm and Electric have responded and filed a cross motion for attorneys' fees. (Doc. 60.) Injury Assistance has filed a reply in support of its motion to compel (Doc. 61), and the Elardo firm and Electric have filed a reply in support of their motion for attorneys' fees. For the reasons below, the Court denies the motion to compel and the motion for attorneys' fees.

I. Background

On July 22, 2014, Injury Assistance served separate subpoenas on the Elardo firm and Electric. (Doc. 51, Exs. 1 and 8.) The subpoenas requested that the Elardo firm and Electric produce responsive documents by August 8, 2014. ( Id. ) Counsel for Injury Assistance states that after that date passed without a response, he called and left two messages for Nelson at the Elardo firm. (Doc. 51 at 3, and at Ex. 2.) He also states that he spoke with Nelson prior to serving the subpoena "regarding what [he] was looking for." (Doc. 51 at Ex. 2.) On August 21, 2014, he sent a letter to Nelson stating that he had not received responses to the subpoenas, explaining that he called her twice without a response, and stating that would file a motion to compel if he did not receive a response to the subpoenas by August 27, 2014. (Doc. 51, Ex. 2.)

On August 25, 2014, thirty-four days after service of the subpoenas and seventeen days after the response date set in the subpoenas, John Elardo of the Elardo firm sent Injury Assistance's counsel a letter and a CD with documents to respond to the subpoenas. (Doc. 51, Ex. 3.) Elardo also asserted untimely relevance objections to the subpoenas. ( Id. ) See Fed.R.Civ.P. 45(d)(2)(B) (written objection to subpoena must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served).

On September 8, 2014, Injury Assistance's counsel responded to Elardo's letter by email and asserted that the Elardo firm's response to the subpoenas was incomplete and that he would file a motion to compel if he did not receive a complete response to the subpoenas by September 19, 2014. (Doc. 51, Ex. 4.) On September 18, 2014, Elardo responded by email stating that "we sent you the documents we believe were responsive to your request." ( Id. at Ex. 5.) Elardo also asserted that Injury Assistance was seeking documents that had "nothing to do with" his clients, and that the documents could be obtained from the court, or from the parties. ( Id. ) Elardo further stated that "if you think we left something out, you surely can get it from other sources - we did not originate these documents." ( Id. ) Finally, he stated that he did not have authorization to release medical records and that "the remaining objections relative to attorney client privilege are invoked." ( Id. )

On September 24, 2014, Injury Assistance's counsel responded by email and again asserted that the Elardo firm's response to the subpoenas was incomplete and he requested a privilege log. ( Id. at Ex. 6.) He also stated that he did not need medical records in response to the subpoenas. ( Id. ) He again asserted that he would file a motion to compel by October 1, 2014 if he did not receive a complete response to the subpoenas. ( Id. )

On September 25, 2014, Nelson sent a letter to Injury Assistance's counsel and asserted that the Elardo firm had fully responded to both subpoenas, that Injury Assistance had not explained what documents were missing from the response, and stating that she would seek fees if Injury Assistance filed a motion to compel. ( Id. at Ex. 7.) Nelson also asserted additional untimely objections on the basis that the subpoenas were "overly broad, vague and unduly burdensome" and sought documents protected by "privilege/work product." ( Id. ) See Fed.R.Civ.P. 45(d)(2)(B). Nelson also provided some description of the documents in the possession of the Elardo firm and Electric, and invoked Rule 26(b)(5) to support her assertion that, as non-parties, the Elardo firm and Electric were not required to provide a privilege log.[1] ( Id. )

II. The Motion to Compel

On October 8, 2014, Injury Assistance filed its motion to compel arguing that the Elardo firm and Electric did not fully comply with the subpoenas. (Doc. 51 at 3.) Injury Assistance also set forth its counsel's communications with the Elardo firm regarding the responses to the subpoenas, and requested an order compelling the Elardo firm and Electric to fully comply with the subpoenas and to provide a privilege log. ( Id. at 3-5.)

In response, the Elardo firm and Electric assert that they have fully complied with the subpoenas, that Injury Assistance did not confer in good faith in an attempt to resolve any dispute over the subpoenas and did not file a certificate under Rule 37(a)(1) averring attempts to confer in good faith, and that Injury Assistance has not explained what documents are missing from the response to the subpoenas. (Doc. 60 at 4-5.) In reply, Injury Assistance filed a statement from counsel to certify his attempts to confer in good faith with Elardo and Nelson to resolve this dispute. (Doc. 61.)

A. Injury Assistance's Obligation to Meet and Confer

The Elardo firm and Electric argue that the Court should deny Injury Assistance's motion to compel based on its failure to file a Rule 37(a)(1) certificate with its motion. (Doc. 60 at 4.) The Court will not deny the motion to compel on this basis. Although Injury Assistance did not include with its motion to compel a certification of its good faith attempts to resolve this matter, the Court finds that the motion and attached exhibits sufficiently document Injury Assistance's repeated attempts to resolve this matter with Elardo and Nelson through telephone calls, letters, and emails.

In response to its communications with Elardo and Nelson, Injury Assistance received repeated assertions that the document productions were complete and untimely assertions of objections. Although it appears that Injury Assistance and the non-parties were able to resolve some issues related to medical records and narrow the scope of their dispute, their discussions did not move beyond the conflicting assertions about whether the ...


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