Gosain v. Berquist Wood McIntosh Seto LLP

Background

The parties submitted a joint discovery letter about the plaintiffs’ responses to Merlin Law Group’s written discovery requests. Merlin Law Group argued that the interrogatory responses were incomplete and improperly referred generally to documents. It also argued that the responses to requests for production were incomplete, asserted unavailable or waived privileges, and were not verified.

The plaintiffs relied in part on documents already produced and argued that Merlin Law Group had not reviewed all documents produced by the defendants. The opinion states that the interrogatories were served on Happy Valley Road, LLC, while both Rajiv Gosain and Happy Valley Road, LLC served the responses to the requests for production.

Interrogatories

The court addressed several disputed interrogatories. It ordered supplementation because the response to Interrogatory No. 1 did not state when each attorney’s representation ended or whether there was a written agreement. The response to Interrogatory No. 2 improperly referred broadly to categories of documents instead of identifying the documents with reasonable particularity. Applying Federal Rule of Civil Procedure 33, the court held that a response cannot use a broad “catch-all” reference to all documents produced.

The court also ordered supplementation for Interrogatory No. 10 because the settlement response was incomplete and did not identify supporting documents. For Interrogatory No. 12, the response had to identify the individuals who allegedly made the misrepresentations and could not rely on a reference to more than 30,000 documents. The response to Interrogatory No. 15 also required supplementation because it used a broad reference to the plaintiffs’ production rather than identifying specific facts or documents.

The court ordered supplementation for Interrogatory No. 18 because the plaintiffs’ reference to a large range of Bates-numbered pages did not identify communications with reasonable particularity. For Interrogatory Nos. 20 and 22, the court addressed the plaintiffs’ untimely objections. Under Rule 33(b)(4), an untimely objection is waived unless the court excuses the delay for good cause. The plaintiffs had not shown good cause, so they had to produce information or documents withheld based on privilege or another objection, or establish good cause for the late objection.

Requests for Production

The court held that Rule 34 does not expressly provide the same waiver-and-good-cause procedure as Rule 33, but it explained that failing to object to document requests on time generally results in waiver. The court allowed the plaintiffs an additional opportunity to establish good cause because the claimed waiver involved attorney-client privilege.

The court explained that a client who sues an attorney for malpractice waives attorney-client privilege over communications with the attorney accused of malpractice. It also stated that communications with people who are not licensed to practice law generally are not protected by attorney-client privilege. In addition, when a party claims it was forced to settle, privilege is waived over legal advice related to that claim. The court rejected the defendant’s argument that otherwise privileged communications made after the alleged malpractice were automatically discoverable.

The court noted that Rule 34 does not require verified responses, but it nevertheless ordered verified supplemental responses because of the plaintiffs’ failure to satisfy their discovery obligations. The plaintiffs had to produce nonprivileged responsive documents within their possession, custody, or control. If they withheld documents based on privilege or another objection, they had to establish good cause for the untimely response and provide a privilege log consistent with the court’s rulings about nonprivileged communications.

Disposition

Judge Beeler ordered the plaintiffs to provide supplemental verified responses to the defendant’s interrogatories and requests for production within 14 days. The responses had to comply with the order, including the requirements to identify documents specifically, address the incomplete answers, provide nonprivileged materials within the plaintiffs’ control, and support any late privilege or other objections with a showing of good cause.