THERESA CARROLL BUCHANAN, Magistrate Judge.
THIS MATTER is before the Court on the Honorable Judge Brinkema's order (Dkt. 154) remanding Defendants The Law Offices of Jeffrey Lohman, P.C. and Jeffrey Lohman's (collectively, "Lohman") objection (Dkt. 136) to the undersigned, as well as Lohman's Motion to Strike Letter Not in Compliance with Local Rules (Dkt. 175). Because of this matter's procedural posture and Judge Brinkema's order, the undersigned construes Lohman's objection as a motion for reconsideration and will therefore rule on the issues raised before Judge Brinkema in the first instance. For the reasons articulated below, both motions are denied.
Plaintiff Navient Solutions, LLC ("Plaintiff"), a federal loan servicer, originally brought this action in April of 2019. (See Dkt. 1.) On December 13, 2019, Plaintiff filed a Second Amended Complaint bringing claims against eighteen defendants pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO") and other common-law causes of action. (Dkt. 100.)
In short, Plaintiff alleges that the defendants operated a fraudulent scheme via mail and wire fraud to manufacture federal lawsuits under the Telephone Consumer Protection Act ("TCPA"). Defendants allegedly recruited student-debtors into signing up for a sham "debt-relief" program and told them to stop making loan payments to Plaintiff (despite the detrimental impact on their credit scores), pay the defendants instead, and follow a script to induce telephone calls from Plaintiff that would—and ultimately did—form the basis for claims under the TCPA. The attorney defendants within the scheme would ultimately file federal lawsuits or initiate arbitration proceedings to recover statutory penalties under the TCPA. In other words, Plaintiff alleges that the defendants manufactured lawsuits via a sham consumer-protection scheme to make money and fraudulently get student-debtors "out" of paying back their loans to Plaintiff. Defendants, on the other hand, assert they brought valid claims and represented student-debtor clients to remedy Plaintiff's TCPA violations.
Out of the named defendants, five are relevant here: (1) The Law Offices of Jeffrey Lohman, P.C., (2) Jeffrey Lohman; (3) Jeremy Branch; (4) Alyson Dykes, and (5) Ibrahim Muhtaseb.
Originally, the law firm of Woods, Smith, Henning & Berman LLP ("WSHB") represented these five defendants. Upon deciding there could be a conflict of interest between the law firm, Jeffrey Lohman, and the firm's other attorney-employees (Branch, Dykes, and Muhtaseb), the five Lohman Defendants decided to obtain separate counsel "on substantive matters." (Dkt. 166 at 7.) However, "for purposes of economic efficiency," WSHB would continue to represent the collective Lohman Defendants on discovery matters. (Id.) The parties apparently entered a "joint defense agreement" to this effect. (Id. at 8.) Accordingly, on November 21, 2019, Lohman's new counsel on substantive matters—Thomas F. Urban and Jeffrey Ernest Grell—entered a notice of appearance and pro hac vice motion, respectively. (Dkts. 72-73.) The Court granted Mr. Grell's pro hac vice motion and WSHB's motion to withdraw as counsel for Lohman. (Dkts. 74-76.)
(See Dkt. 92 at 6.)
Lohman objected to these various discovery requests by stating: "These documents are protected by the attorney-client privilege and will not be produced."
In responding to Plaintiff's crime-fraud exception argument, the collective Lohman Defendants argued that the crime-fraud exception to the AC privilege could not apply because Plaintiff had not alleged that the firm's clients gave information to the attorneys in furtherance of a crime or fraud. They also asserted that Plaintiff had not met its prima facie evidentiary burden to establish a crime or fraud. In sum, the collective Lohman Defendants argued that the crime-fraud exception did not apply because (1) the exception was legally inapplicable and (2) Plaintiff did not demonstrate sufficient facts to surpass its evidentiary burden.
On January 6, pursuant to the Court's order, the parties submitted supplemental briefs updating the Court on the progress of document production and the motion to compel. The parties filed three briefs. (Dkts. 118-20.) First, Plaintiff's supplemental brief largely reiterated the arguments regarding the crime-fraud exception. Plaintiff further argued that because Lohman's privilege log was inadequate and contained documents that were not privileged at all, the Court should immediately order production of all relevant documents.
After filing the supplemental briefs, Lohman apparently produced "over 25,500 pages of documents and over 275 audio files." (Dkt. 166 at 10-11; see also Dkt. 153 at 9.)
On January 30, 2020, Lohman filed an objection before Judge Brinkema. (Dkt. 136.) In the objection, Lohman raised arguments before Judge Brinkema that neither Lohman, Branch, Dykes, or Muhtaseb raised in any pleadings before the undersigned. Plaintiff filed a timely response on February 13, 2020. (Dkt. 153.)
Judge Brinkema entered an order on February 18, 2020. (Dkt. 154.) In that order, Judge Brinkema stated:
(Id. at 2 (internal quotation marks and citations omitted).) Judge Brinkema's order noted that "it seems prudent to have the magistrate judge address the Lohman defendants' new arguments in the first instance." (Id. at 3-4.) Therefore, Judge Brinkema remanded the objection to the undersigned for consideration of Lohman's new arguments raised on objection and Lohman's explanation "as to why these new arguments were not raised initially." (Id. at 4.) Further, Judge Brinkema's order stated: "The magistrate judge may also consider whether monetary sanctions should be imposed on the Lohman defendants and/or their counsel for causing unnecessary litigation costs." (Id.)
On February 19, 2020, following Judge Brinkema's order, the undersigned issued a third order. (Dkt. 156.) The order directed the parties to file any additional briefing "to supplement the pleadings before Judge Brinkema," and stated that the undersigned would "construe the pleadings filed before Judge Brinkema as a motion for reconsideration."
The following day, on February 27, WSHB (counsel for Branch, Dykes, and Muhtaseb) filed a letter on the docket (the "Letter") (Dkt. 171). Counsel filed the Letter to address "misstatements" in Lohman's February 26 supplemental brief. The Letter reiterates the timing regarding Lohman's change in counsel, noting that WSHB did not represent Lohman with respect to the objection before Judge Brinkema and any subsequent briefing. WSHB then stated:
(Dkt. 171 at 1 (emphasis added).)
The following day, Lohman filed a "Motion to Strike Letter Not in Compliance With Local Rules." (Dkt. 175.) Lohman argues that because counsel failed to abide by Local Civil Rule 83.1, the Court should strike the Letter and disregard it.
Lohman first argues that the crime-fraud exception is inapplicable because Plaintiff has failed to demonstrate that the student-debtor clients or Lohman were engaged in or planning a criminal or fraudulent scheme. In other words, Lohman argues that the exception cannot apply because Plaintiff (1) did not allege that Lohman's clients in the underlying TCPA cases gave information to Lohman for purposes of committing or furthering a crime or fraud; and (2) failed to meet its prima facie burden—both legally and factually—demonstrating that Lohman committed fraud.
The crime-fraud exception to the AC privilege provides that otherwise privileged communications "made for, or in furtherance of, the purpose of committing a crime or fraud will not be privileged or protected." Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D. 280, 287 (E.D. Va. 2004); see also, e.g., In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 175 n.15 (4th Cir. 2019) (explaining that claims of AC privilege "can sometimes be defeated by the crime-fraud exception," such as when the attorney-client communications are "for the purpose of committing or furthering a crime or fraud" (internal citations omitted)).
For the crime-fraud exception to apply, the moving party must make a prima facie showing that the privileged communications fall within the exception. In re Grand Jury Proceedings #5 Empaneled Jan. 28, 2004, 401 F.3d 247, 251 (4th Cir. 2005) (citing Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999)). Specifically, the moving party must demonstrate that (1) "the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme"; and (2) the documents "bear a close relationship" to the criminal or fraudulent scheme. Chaudhry, 174 F.3d at 403 (citations omitted); In re Grand Jury Proceedings #5, 401 F.3d at 251. The Court will consider each element in turn.
The first element to the crime-fraud exception is satisfied upon a "prima facie showing of evidence that, if believed by a trier of fact, would establish the elements of some violation that was ongoing or about to be committed." In re Grand Jury #5, 401 F.3d at 251 (citations omitted). Lohman raises several subpoints here.
The Court will first address Lohman's argument that the crime-fraud exception cannot apply because Plaintiff never alleged that Lohman's clients were involved in a criminal or fraudulent scheme.
The Court is aware that there are relatively few cases discussing the application of the crime-fraud exception when the attorney is allegedly committing the crime or fraud, as opposed to the client.
Other circuits have also addressed this issue. As Plaintiff points out, the Eleventh, Third, and District of Columbia Courts of Appeals have held that when the attorney alone is engaged in the criminal or fraudulent conduct (as opposed to the client), the crime-fraud exception overcomes either the AC privilege, work-product privilege, or both. See Drummond Co. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1337 (11th Cir. 2018) ("We hold that the ... illegal or fraudulent conduct by an attorney alone may suffice to overcome attorney work product protection."); In re Impounded Case (Law Firm), 879 F.2d 1211, 1213-14 (3d Cir. 1989) (holding that the attorney's crime or fraud overcomes the client's AC privilege and the work-product privilege); Moody v. IRS, 654 F.2d 795, 800 (D.C. Cir. 1981) ("An attorney should not be able to exploit the [work product] privilege for ends outside of and antithetical to the adversary system any more than a client who attempts to use the privilege to advance criminal or fraudulent ends.").
The Third Circuit's guidance is particularly useful here. In In re Impounded Case (Law Firm), the court considered "the application of the crime-fraud exception to a situation where the attorney-client privilege and the privilege derived from the work product doctrine are asserted when the alleged criminality being investigated is solely that of [a] law firm." 879 F.2d at 1213 (emphasis added). In that case, a law firm argued that the crime-fraud exception could not "defeat the client's privilege where the pertinent alleged criminality is solely that of the law firm." Id. (emphasis added). The Third Circuit explicitly rejected the law firm's argument. Id. Even after recognizing that the client solely held the AC privilege, the court stated: "It is not apparent to us what interest is truly served by permitting an attorney to prevent this type of investigation of his own alleged criminal conduct by asserting an innocent client's privilege with respect to documents tending to show criminal activity by the lawyer." Id. In other words, the Third Circuit did not allow a law firm to use its client's AC privilege as a shield to hide its allegedly criminal conduct. See id.
As a matter of law and policy, this Court agrees. It is well accepted that the AC privilege is not absolute and that a party's claim of privilege "is to be strictly confined within the narrowest possible limits consistent with the logic of its principle." Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2001). Here, allowing the clients' AC privilege to shield information about the attorney-defendants' conduct would expand the privilege beyond its logical principle. Despite the client possessing the privilege, an attorney cannot hide behind his client's assertion of the AC privilege when there is evidence showing that the attorney was involved in a criminal or fraudulent scheme. For these reasons, even Lohman's clients' assertion of the AC privilege must fall.
In any event, there is also some evidence that Lohman's clients were engaged in the fraudulent scheme, or at the very least, were aware of it and knowingly participated in it. For example, in an email, one client wrote to Lohman's co-defendant regarding concerns for her co-signer on the loans. (See Dkt. 153-1 at 18-21 (Ex. B).) Relevant excerpts from conversation are as follows:
Id. (emphasis added).) Plaintiff also submitted an email demonstrating that another student-debtor client declined to participate in the scheme upon realizing what it was. The email states:
(Dkt. 94-2 at 1-9 (Ex. U).)
While Plaintiff "believes that most borrowers were innocently duped into the scheme, some of them undoubtedly knew of the [s]cheme." (Dkt. 118 at 2.) While not necessary for the Court's decision, upon review of these submissions, the Court is satisfied that at least some clients knowingly participated in the fraudulent scheme and sought the attorney-defendants' advice in furtherance of the scheme.
Here, Lohman argues that Plaintiff cannot establish that either Lohman or the firm's student-debtor clients were engaged in or planning a criminal or fraudulent scheme. To satisfy this standard, the moving party need not prove the crime or fraud by a preponderance of the evidence or beyond a reasonable doubt; rather, the proof "must be such as to subject the opposing party to the risk of non-persuasion if the evidence as to the disputed fact is left unrebutted." In re Grand Jury Proceedings #5, 401 F.3d at 251 (internal quotation marks omitted) (quoting Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1220 (4th Cir. 1976)). In other words, if left unrebutted, prima facie evidence establishes the elements of the crime or fraud at issue "if believed by the trier of fact." United States v. Ruhbayan, 201 F.Supp.2d 682, 686 (E.D. Va. 2002). Lohman's arguments encompass both the factual and legal insufficiency of Plaintiff's prima facie showing.
Plaintiff outlined defendants' scheme in depth in its Second Amended Complaint and its motion to compel, and further submitted copious exhibits in support of its arguments. Upon review of the evidence and documentation Plaintiff submitted with its motion to compel, Plaintiff surpasses the standard outlined above. See In re Grand Jury Proceeding #5, 401 F.3d at 251 ("In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required.") The Court will briefly overview the alleged scheme with an emphasis on Lohman's involvement, which is particularly relevant here.
Plaintiff's Amended Complaint alleges multiple counts against Lohman for violations of RICO and related state-law claims for fraud and tortious interference with a contract. Plaintiff alleges that Lohman and the other defendants operated as a scheme to defraud Plaintiff out of millions of dollars it was owed in outstanding student debt. (Dkt. 100 ¶ 2.) The defendants allegedly executed this scheme through a network of referrals and fee-sharing agreements. (Id.) Some defendants, operating as so-called "debt-relief counseling" companies, called or sent mailings to student-debtors regarding their student loans. (Id. ¶ 4.) These mailings and calls offered services including consolidation, reducing the amount of the loan, or eliminating the loan altogether. (Id.) Apparently, many borrowers believed these services to be affiliated with the federal government. (Id.) When student-debtors responded to these calls or mailings and agreed to utilize the services, "he or she was charged exorbitant sums to consolidate or lower his or her federal student loan payments—something that the consumer could have accomplished for free under existing federal student loan programs." (Id.) When loan consolidation was unavailable, the purported debt-counseling company would refer borrowers to law firms, including The Law Offices of Jeffrey Lohman, P.C., among others. (Id. ¶¶ 4, 6.)
Once referred to these law firms, borrowers were instructed to stop paying their student loans. (Id. ¶ 5.) When Plaintiff called the student-debtors regarding their delinquent loans, the attorney-defendants gave some clients a "script" to revoke their consent to be contacted by telephone for purposes of the TCPA. (Id. ¶ 6.) According to Plaintiff, "the script was designed to—and did—generate calls prohibited under the TCPA." (Dkt. 91 at 11; Dkt. 100 ¶ 6.) For other clients, the attorney-defendants mailed letters to Plaintiff on their clients' behalf, requesting any communications to be directed to them. (Dkt. 100 ¶ 7.) Either way, when student-debtors had received a "sufficient" number of calls from Plaintiff regarding their student-loan delinquency, the attorney-defendants would initiate legal actions in federal court or arbitration proceedings to attempt to recover any statutory penalties under the TCPA. (Id. ¶ 8.) This scheme resulted in substantial monetary losses to Plaintiff because customers stopped paying their student loans, and Plaintiff was required to defend and settle numerous TCPA lawsuits, cancel hundreds of thousands of dollars in student loan debt, and pay the attorneys' fees and costs incurred in defending these underlying TCPA lawsuits. (Id. ¶ 9.)
Plaintiff's submissions demonstrate that the collective Lohman Defendants were engaged in the scheme. See, e.g., Dkt. 94-2 at 10-11 (Exhibit V, email from David Mize to Jeremy Branch containing the "script" to "revoke" consent); Dkt. 93-1 at 259-60 (Exhibit Q, email from David Mize to Jeffrey Lohman discussing Lohman's "of counsel" designation, fee sharing, and "work[ing] the [Navient] files in preparation for litigation"); Dkt. 94-2 at 49-61 (Exhibit Z, deposition from a student-debtor client demonstrating that the collective Lohman Defendants initiated a lawsuit without the knowledge or consent of their client); Dkt. 153-1 at 65-66 (Exhibit N, email from Jeffrey Lohman telling a borrower; "Remember,
Upon review of the record and Plaintiff's submissions, Plaintiff has surpassed its prima facie burden demonstrating that (1) Lohman was involved in a scheme to defraud; (2) the purpose was to obtain money or property from the student-debtor clients; and (3) Lohman used the mails and/or wires in pursuit of the scheme to defraud.
In this matter, Lohman, Branch, Dykes, and Muhtaseb filed an amended motion to dismiss and/or transfer venue (Dkt. 27). In that Motion, Lohman moved to dismiss the RICO counts under 18 U.S.C. § 1962(c) (the substantive provision of RICO) and (d) (RICO conspiracy) under Federal Rule of Civil Procedure 12(b)(6). Specifically, Lohman argued that Plaintiff failed to sufficiently allege (1) the conducting of an "enterprise" for purposes of RICO and (2) a "pattern of racketeering activity" based on mail and wire fraud. (See Dkt. 28 at 19-22.) As to the latter argument which is relevant here, Plaintiff stated in its opposition: "NSL has alleged adequately that the Defendants violated RICO by committing multiple predicate acts of mail fraud, wire fraud, and witness tampering. Among other things, NSL provided multiple, detail-filled examples concerning the nature of the [defendants'] fraudulent statements and omissions." (Dkt. 31 at 24 (internal citations omitted).)
On August 23, 2019, after holding a hearing on the matter, Judge Brinkema denied without prejudice the collective Lohman Defendants' motion to dismiss. (Dkt. 38.) While Judge Brinkema's order only cites her reasons from the bench, in denying the motion, the district court held that Plaintiff plausibly alleged a pattern of racketeering activity based on mail and wire fraud. Accordingly, the RICO claims are still part of Plaintiff's case against Lohman, and discovery is appropriate as to these claims. The undersigned therefore finds that Lohman is essentially rearguing the legal sufficiency of Plaintiff's claims and asking this Court to revisit a previous ruling. The Court declines to do so.
Lohman also raises two additional defenses arguing that Plaintiff cannot, as a matter of law, surpass its prima facie burden under the crime-fraud exception. First, Lohman argues that a RICO claim cannot be predicated on litigation activity. Second, Lohman argues that the Noerr-Pennington doctrine immunizes them from civil or criminal liability based on their petitioning conduct under the First Amendment.
Essentially, Lohman argues that Plaintiff cannot meet its prima facie burden of a demonstrating a crime or fraud because the underlying actions are protected litigation activity. Lohman argues that their conduct in the allegedly fraudulent scheme consisted of only "lawful and ethical" actions. (Dkt. 136 at 17.) Lohman identifies actions—such as soliciting clients, accepting client referrals, and filing lawsuits—that, in isolation, are ethical. Lohman therefore argues that the Court cannot legally find any criminal or fraudulent scheme for purposes of the crime-fraud exception because the defendants' actions consisted of solely ethical litigation strategies. As the argument goes, because Lohman and the other co-defendants only took part in ethical litigation, their activities cannot constitute the predicate acts of mail and wire fraud for purposes of RICO and must constitute protected First Amendment activity under the Noerr-Pennington doctrine. The Court will address these arguments simultaneously because they fail for the same reason.
These arguments falter because Plaintiff has alleged that the defendants conducted a scheme—that is, a conglomeration of actions—that encompassed committing mail/wire fraud to further the scheme. Specifically, Plaintiff alleges that defendants' scheme "depended upon a series of false and misleading statements to consumers, courts and arbitrators, and NSL." (Dkt. 153 at 18.) Accordingly, "[s]ome of those false statements involve[d] litigation activities, and some d[id] not (including false statements during the recruitment of borrowers and in demands upon NSL when no client authority existed)." (Id.)
The scheme as alleged by Plaintiff started long before any attorney-defendant initiated litigation activity for any given client. The scheme started by recruiting student-debtors and convincing them to pay for sham "debt-relief" services before any borrower was referred to the attorney-defendants (such as Lohman) within the scheme. The attorney-defendants were ultimately part and parcel in this scheme to trick student debtors, take their money (that otherwise should have been used to pay off student loans), and advise clients to undertake affirmative actions to manufacture lawsuits in hopes that Plaintiff would have to cancel their student-loan debt. Even though Lohman accepted client referrals, gave legal advice, and litigated the underlying TCPA claims, they did so in furtherance of this overarching fraudulent scheme.
As mentioned above, the second element of the crime-fraud exception requires a showing that the documents "bear a close relationship" to the criminal or fraudulent activity. Chaudhry, 174 F.3d at 403; In re Grand Jury Proceedings #5, 401 F.3d at 251. This element is satisfied "with a showing of a close relationship between the attorney-client communications and the possible criminal or fraudulent activity." In re Grand Jury Proceeding #5, 401 F.3d at 251.
Here, there can be no doubt the documents Plaintiff seeks are closely related to Lohman's alleged criminal or fraudulent activity. As outlined in detail above, the crux of the alleged scheme is that the defendants defrauded consumers and manufactured lawsuits. Plaintiff therefore seeks communications and other documents from the underlying TCPA lawsuits that Lohman exchanged with past, present, or potential clients. Namely, Plaintiff seeks documents containing Lohman's discussions with clients regarding the (1) consequences of defaulting on student loans, (2) resolution of debt-relief matters or TCPA claims, and (3) client satisfaction with the resolution of debt-relief matters or TCPA claims.
These communications constitute the core of Lohman's alleged fraudulent and criminal conduct. In other words, the communications encompass Lohman's process of manufacturing lawsuits by communicating via mails and wires, convincing student-debtors to stop their payments in contravention of their promissory notes, and using the repercussions from delinquency to file a lawsuit or initiate arbitration proceedings. Because these documents would likely contain (among other things) Lohman's directions to the student-debtor clients on how to manufacture these lawsuits, as well as statements regarding outcomes and expectations for TCPA litigation, these documents are the building blocks of the scheme and Plaintiff's case. The Court therefore finds that these documents are "closely related" to the core allegations of the litigation and the criminal and/or fraudulent scheme alleged here.
Ultimately, the Court finds that the crime-fraud exception to the AC privilege applies. Lohman must produce the responsive documents being withheld on the basis of the AC privilege.
Federal Rule of Civil Procedure 11(b)(1) states that an attorney, by submitting a pleading to the court, certifies that the pleading "is not being presented ... [to] needlessly increase the cost of litigation." Fed. R. Civ. P. 11(b)(1). Further, Rule 11 allows a court, on its own initiative, to "order an attorney, law firm, or party to show cause" why their conduct has not violated the Rule. Fed. R. Civ. P. 11(c)(3). Here, Judge Brinkema remanded this matter to the undersigned to "consider whether monetary sanctions should be imposed on the Lohman defendants and/or their counsel for causing unnecessary litigation costs." (Dkt. 154 at 4.) The undersigned further ordered the parties to submit supplemental briefing on this issue. (Dkt. 156.)
Here, the Court finds that Lohman needlessly increased litigation costs. Upon the undersigned's adverse ruling issued on January 17, 2020, Lohman could have filed a motion for reconsideration and raised the new substantive arguments before the undersigned.
Accordingly, because Lohman wasted judicial resources and needlessly increased Plaintiff's litigations costs, it is appropriate to award the attorneys' fees and costs Plaintiff incurred in preparing and filing its (1) Response to Defendants' Objection to the Magistrate Judge's Order of January 17, 2020 (Dkt. 153) and (2) February 26 supplemental brief (Dkt. 165). Further, as Rule 11 allows a court to sanction an "attorney, law firm, or party," the Court assesses the attorneys' fees and costs jointly against The Law Offices of Jeffrey Lohman, P.C., Jeffrey Lohman, and their counsel, Thomas Francis Urban and Jeffrey Ernest Grell. Accordingly, Plaintiff shall submit the attorneys' fees and costs it incurred in preparing and filing the February 26 supplemental brief within ten (10) days of the date of this Memorandum Opinion and Order.
Lastly, the Court will turn to Lohman's motion to strike. As explained above, WSHB filed a Letter on February 27, 2020, requesting that the Court disregard the "misstatements" Lohman made in its February 26 supplemental brief about WSHB. (Dkt. 171.) Further, WSHB requested an opportunity to provide briefing "[t]o the extent the statements ... are being considered by the Court against the undersigned." (Id.) The next day, Lohman filed a motion to strike the Letter, arguing that it was not in compliance with Local Civil Rule 83.1 (Dkt. 175).
As discussed above, the Court does not find it appropriate to sanction WSHB or its clients (Branch, Dykes, and Muhtaseb) for any briefing—or lack thereof—before this Court. Accordingly, the Court did not consider any statements in Lohman's February 26 supplemental brief against WSHB. Without reaching the merits of Lohman's motion, the Court finds WSHB's letter and Lohman's subsequent motion unnecessary. It is therefore appropriate to deny the motion to strike.
For the reasons outlined above, it is hereby
The Court is also aware that Lohman has arguably asserted the Noerr-Pennington doctrine as an affirmative defense. (See Dkt. 113 at 25 ("Plaintiff's claims are barred in whole or in part because the conduct of the Lohman Defendants that Plaintiff complains of in the Second Amended Complaint was lawful and with legal justification.").) The Court expressly declines to rule on this potentially dispositive defense for purposes of Plaintiff's motion to compel and the crime-fraud exception.
