United States District Court, D. Minnesota
Mountain Marketing Group, LLC, and John A. Krueger d/b/a Krueger Law Firm, Plaintiffs,
Heimerl & Lammers, LLC, Defendant.
David P. Jendrzejek, Glen E. Schumann, and Timothy R. Franzen, Moss & Barnett, P.A., 150 South Fifth Street, Suite 1200, Minneapolis, MN 55402, for Plaintiffs.
James F. Boyle, Boyle Fredrickson, SC, 840 North Plankinton Avenue, Milwaukee, WI 53203; and Michael Lammers, Heimerl & Lammers, LLC, 901 North Third Street, Minneapolis, MN 55401, for Defendant.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Plaintiffs' Objections [Doc. No. 88] to U.S. Magistrate Judge Becky R. Thorson's May 19, 2015 Order granting in part and denying in part Plaintiffs' Motion to Compel Defendant to Produce Documents, and requiring Plaintiffs to disclose only two experts. For the reasons stated below, the Court affirms the Magistrate Judge's Order.
A. The Pretrial Proceedings and the Scheduling Orders
This trademark infringement and unfair competition lawsuit arises out of Defendant's allegedly unlawful use of a toll-free alphanumeric telephone number and URL in connection with its legal services that Plaintiffs claim is confusingly similar to their service mark for legal services. (See Compl. [Doc. No. 1] ¶¶ 3-5, 20-23.) Relevant to the present discovery dispute, Plaintiffs and Defendant submitted a Joint 26(f) Report stating that each side anticipated calling two expert witnesses at trial in this case. (Report of 26(f) Planning Meeting dated May 20, 2015 [Doc. No. 33] at 3.) Magistrate Judge Franklin Noel, who was then assigned to the case, thereafter issued the initial Scheduling Order, which provided that "[e]ach party may depose no more than 2 expert witnesses on or before March 1, 2015." (Scheduling Order dated June 10, 2014 [Doc. No. 35] at 2.) The parties later filed two stipulations seeking to extend the discovery deadline, and amended scheduling orders were issued-the second of which was issued by Magistrate Judge Thorson after the case was reassigned to her. (Order Amending Scheduling Order dated Oct. 24, 2014 [Doc. No. 45]; Second Am. Scheduling Order dated Jan. 28, 2015 [Doc. No. 49].) On April 27, 2015, the parties filed another stipulation, this time seeking to extend the discovery deadline with regard to "completing expert disclosures and reports so as to not interfere with the dispositive motion deadline and trial ready date." (Stip. to Amend Scheduling Order dated Apr. 27, 2015 [Doc. No. 65] at 1.) The parties stated that they "[did] not seek any other changes to the Scheduling Order." (Id.) A Third Amended Scheduling Order was issued on April 29, 2015. (Third Am. Scheduling Order dated Apr. 29, 2015 [Doc. No. 66].)
B. Plaintiffs' Motion and the Magistrate Judge's Order
On May 4, 2015, Plaintiffs moved pursuant to Rule 37(a)(3)(b) of the Federal Rules of Civil Procedure to compel Defendant Heimerl & Lammers to produce documents in response to document requests relating to Defendant's client files. (See Mem. in Supp. of Mot. to Compel dated May 4, 2015 [Doc. No. 70] at 1.) Among those requests was Document Request No. 5 (Third Request for Documents) ("Request No. 5"), in which Plaintiffs sought:
For each matter for which Defendant was contacted, in whole or in part, through the 612-INJURED telephone number or the URL www.612injured.com for both completed and pending matters, sufficient portions of Defendant's case files to identify the nature of the matter, the nature and extent of the injury and actual or potential damages or recovery amounts.
(Id. at 3.) Also at issue was Document Request No. 1 (Fourth Request for Documents) ("Request No. 1"), in which Plaintiffs requested "[t]he complete files and records of Defendant relating to each of the clients referred to on Deposition Exhibit 42, including but not limited to Jane Doe 1, Jane Doe 2, Jane Doe 3 and John Doe." (Id. at 4.) And, in Document Request No. 2 (Fourth Request for Documents) ("Request No. 2"), Plaintiffs requested "[t]he complete files and records of Defendant relating to all other clients of Defendant who contacted Defendant through, in response to or in connection with any use of the 612-INJURED telephone number or the URL www.612injured.com." (Id. at 5.) In response to each of these Requests, Defendant stated that it had already produced relevant and responsive information and that it was precluded by Minnesota Rule of Professional Conduct 1.6 from producing its clients' case files. (See id. at 3-5.) Plaintiffs argued that Defendant's objections lack merit because Defendant had not established that all of the documents in the case files constitute communications regarding legal advice, as required to assert the attorney-client privilege. (Id. at 6-7.)
Plaintiffs' Motion was heard by the Magistrate Judge on May 18, 2015, and she issued a text Order granting the Motion in part and denying it in part on May 19. (Text-Only Order dated May 19, 2015 [Doc. No. 84].) The Magistrate Judge determined that Request No. 5 would be granted in part such that Defendant must respond to the following modified request:
For each matter for which Def. was contacted, in whole or in part, through the 612-INJURED telephone number or the URL www.612injured.com for both completed and pending matters, documents sufficient to identify the nature of the matter, the nature of the ...