Rakower Law PLLC v. Berner

Background

The court reviewed the parties’ latest joint status letter. They represented that discovery was complete, subject to the court’s decision on Rakower Law PLLC’s pending motion for sanctions and the setting of new deadlines for remaining case-management matters.

Rakower Law PLLC alleged discovery abuse. It claimed that the defendants used broad and improper redactions to shield unfavorable communications, misrepresented whether their redactions covered communications about their defenses, inaccurately described whether they relied on the plaintiff’s work product in a Florida action, and withheld communications involving their defenses and nonprivileged communications with co-counsel. The plaintiff also alleged misleading statements about an engagement letter and the basis for an amount paid to AXS Law in the Florida action.

The defendants disputed those allegations. They maintained that the redactions protected privileged communications and attorney work product unrelated to the limited discovery ordered at an August 2, 2022 status conference. They also said they had produced relevant, nonprivileged documents; removed mistaken redactions after meeting and conferring; and made good-faith efforts to resolve the disputes. Regarding the engagement letter and invoices, they asserted relevance objections and argued that their statements were not inaccurate.

Sanctions ruling

The court ordered the defendants to submit unredacted copies of four disputed documents—ECF Nos. 75-1, 75-2, 75-3, and 75-4—for private review, along with an explanation of the redactions. After reviewing those documents, the court found that the redactions were appropriate under the privilege protections applicable to the court’s August 2 discovery rulings.

The court explained that Rule 37 can require payment of reasonable expenses when a discovery motion is granted, unless the challenged conduct was substantially justified or another circumstance would make an award unjust. The court found genuine disputes about the withheld and late-produced discovery and concluded that the defendants’ conduct was substantially justified. It stated that sanctions were not appropriate under either part of Rule 37, including the provision cited by the plaintiff and the provision discussed by the defendants.

Remaining discovery and deadlines

The court stated that fact discovery was complete and ordered that fact discovery was closed. Expert discovery remained due by February 28, 2023. Any party seeking to make a dispositive motion after discovery had to submit a pre-motion conference letter to Judge Gardephe under his individual rules by that same date. The opinion also stated that the finding of substantial justification did not mean the court approved of the parties’ conduct and reminded them to act professionally and courteously.

The order was signed by Ona T. Wang, United States Magistrate Judge.