Evans v. Krook

Motions and overall disposition

The court ruled on three matters: Plaintiff’s Motion to Compel and for Contempt, Defendants’ Motion for Rule 37 Sanctions, and the parties’ Joint Motions for Continued Sealing.

The court:

- Denied Plaintiff’s Motion to Compel and for Contempt and prohibited Plaintiff from seeking the depositions of Steve Ijames, Steven Frazier, and William O’Keefe in connection with the action. - Denied Defendants’ request for fees incurred opposing the motion to compel. - Granted in part and denied in part Defendants’ Rule 37 Sanctions Motion. - Granted the Joint Motions for Continued Sealing, leaving specified docket entries sealed.

Motion to compel

The plaintiff wanted to depose Ijames, Frazier, and O’Keefe about interviews they conducted with Michelle Folendorf, Joshua Ramirez, and Michael Ramos during Brian Krook’s criminal defense. The plaintiff argued that the interviews and related information were not protected because Krook’s defense team disclosed summaries or other materials to the prosecution, and because the plaintiff sought factual testimony rather than opinions.

The court first held that at least Krook had standing to challenge the subpoenas because the requested testimony involved non-attorney members of his criminal defense team and Krook asserted work-product protection. The work-product doctrine generally protects materials and information prepared for litigation, including work performed by investigators and other agents for an attorney. The court distinguished ordinary work product, which may sometimes be discoverable upon a showing of substantial need and inability to obtain equivalent information elsewhere, from opinion work product, which receives much stronger protection because it may reveal attorneys’ mental impressions, conclusions, or legal theories.

The court found procedural grounds for denying the motion. Plaintiff did not properly serve the motion on the nonparty deponents or their attorney. Email service was insufficient because the attorney had not consented in writing to electronic service as required by Federal Rule of Civil Procedure 5. The court also found that Plaintiff waited too long to pursue the depositions after the parties’ dispute became apparent.

The court separately denied the motion on substantive grounds. It held that the recollections, notes, and interview-related information sought from Ijames, Frazier, and O’Keefe could reveal protected opinion work product, even though those individuals were not attorneys. The plaintiff also had not shown a substantial need for the information. He had already deposed the people who were interviewed and possessed transcripts of their grand-jury and criminal-trial testimony. The court concluded that the requested depositions would be cumulative, duplicative, speculative, and disproportionate to the needs of the case. Because the court found work-product protection applied, it did not decide whether attorney-client privilege also applied.

The court also entered a protective order prohibiting Plaintiff from seeking the three depositions concerning the 2020 interviews. It denied Defendants’ request for fees incurred in opposing the motion to compel because Defendants had initially indicated that the depositions might proceed subject to objections, but later opposed them in their entirety.

Rule 37 sanctions motion

The sanctions motion concerned Plaintiff’s damages disclosures, answers to Interrogatory No. 17, and response to Request for Production No. 23. Plaintiff sought approximately $33 million, including amounts for future earnings, family expenses, care, comfort, guidance, and support, loss of life, and punitive damages.

The court found that Plaintiff violated its December 2021 and March 2022 discovery orders and Federal Rule of Civil Procedure 26. Those orders required Plaintiff to provide the basis, method, and computations for each category of damages. Plaintiff did not timely disclose that the $33 million figure was connected to a shared jersey number and that the category amounts were allocated from that total. Plaintiff also did not explain how the National Vital Statistics Report supported the $8,720,340 claim for care, comfort, guidance, and support or how he calculated the $10 million loss-of-life claim.

The court found that the violations were neither substantially justified nor harmless. Defendants were prejudiced because they learned the origin of the $33 million demand only during a deposition shortly before fact discovery closed, and because they lacked a fair opportunity to investigate the basis for the claimed damages. The court also found that Plaintiff had received multiple opportunities to provide the required information.

The court declined to strike the care, comfort, guidance, and support damages or loss-of-life damages from the Complaint. It found that striking those claims would be excessive because Plaintiff’s noncompliance was not willful. Instead, the court granted the sanctions request to the extent that Plaintiff was precluded from introducing evidence or argument supporting those damages beyond what he specifically disclosed in his April 12, 2022 narrative answers to Interrogatory No. 17 and through deposition testimony. The court specifically barred Plaintiff from presenting an undisclosed computation allocating care, comfort, guidance, and support damages among the heirs and next of kin, undisclosed arguments about the National Vital Statistics Report, and evidence about the jersey number beyond the minor brother’s deposition testimony.

The court denied the sanctions request for fees and costs related to Defendants’ motion to amend the scheduling order. It denied as moot the request for fees and costs related to enforcing the December 2021 order because those fees had already been awarded in an earlier order. It granted the request for fees and costs incurred enforcing the March 2022 order, including reasonable fees for necessary deficiency correspondence and meet-and-confer efforts. Those fees and costs were made payable by Plaintiff, Plaintiff’s counsel, or both, subject to the process set out in the order for determining the amount.

As to Request for Production No. 23, the court denied the sanctions motion to the extent Defendants sought sanctions based on that request. The court found that Plaintiff’s response identified the firefighter records that Defendants had previously represented were the remaining issue.

Sealing motions

The court granted the parties’ Joint Motions for Continued Sealing. The sealed docket entries contained juvenile information, confidential medical information, information sealed by a state court, or information designated confidential under the protective order. The court emphasized that this ruling was based on the records’ connection to nondispositive motions and did not determine whether the records would remain sealed if later filed or considered in connection with dispositive motions.

Judge and order

Magistrate Judge Elizabeth Cowan Wright signed the order on November 23, 2022. The supplied case metadata identifies Michael Davis as the judge, but the opinion itself is signed by Elizabeth Cowan Wright; this summary follows the signed opinion.