Filed: Aug. 06, 2018
Latest Update: Aug. 06, 2018
Summary: ORDER ON DISCOVERY CONFERENCE MATTHEW P. BROOKMAN , Magistrate Judge . This matter came before the Honorable Matthew P. Brookman, United States Magistrate Judge, by telephone, at 3:00 p.m., Evansville time (CST), on Friday, August 3, 2018, for a hearing under Rule 16, Federal Rules of Civil Procedure. Ms. Walton appeared pro se and First Merchants Bank was represented by counsel, David Tittle and Alex Rodger. The Court addressed numerous outstanding motions in the matter and heard argu
Summary: ORDER ON DISCOVERY CONFERENCE MATTHEW P. BROOKMAN , Magistrate Judge . This matter came before the Honorable Matthew P. Brookman, United States Magistrate Judge, by telephone, at 3:00 p.m., Evansville time (CST), on Friday, August 3, 2018, for a hearing under Rule 16, Federal Rules of Civil Procedure. Ms. Walton appeared pro se and First Merchants Bank was represented by counsel, David Tittle and Alex Rodger. The Court addressed numerous outstanding motions in the matter and heard argum..
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ORDER ON DISCOVERY CONFERENCE
MATTHEW P. BROOKMAN, Magistrate Judge.
This matter came before the Honorable Matthew P. Brookman, United States Magistrate Judge, by telephone, at 3:00 p.m., Evansville time (CST), on Friday, August 3, 2018, for a hearing under Rule 16, Federal Rules of Civil Procedure. Ms. Walton appeared pro se and First Merchants Bank was represented by counsel, David Tittle and Alex Rodger.
The Court addressed numerous outstanding motions in the matter and heard argument from the parties. The Court being duly advised, issues the following ORDERS, entered for the reasons set forth, on the record, at the Conference:
1. Plaintiff's Motion to Compel First Merchants' Bank to Produce Documents (Docket No. 64), which is fully briefed, is DENIED. Defendant's request for reasonable fees and costs related to briefing this motion pursuant to Fed. R. Civ. P. 37(a)(5)(B) is GRANTED. Defendant is ORDERED to file a Notice with the Court outlining attorney time and fees, and other expenses incurred in responding to this motion by August 17, 2018.
2. Defendant's Motion for Protective Order Regarding Inadvertently Produced Privileged Materials (Docket No. 65), is DENIED as moot in light of the ruling on Docket No. 67, which is an identically-filed motion.
3. Defendant's Motion for Protective Order Regarding Inadvertently Produced Privileged Materials (Docket No. 67), which is fully briefed, is GRANTED. Walton is ORDERED to comply with Fed. R. Civ. P. 26(b)(5)(B) and must either return any remaining copies of the documents to First Merchants. Defendant's request for reasonable fees and costs incurred in making the motion, including attorney fees pursuant to Fed. R. Civ. P. 37(a)(5) is GRANTED. Defendant is ORDERED to file a Notice with the Court outlining attorney time and fees, and other expenses incurred in responding to this motion by August 17, 2018.
4. Plaintiff's Motion to Compel First Merchant's Bank to Produce Documents and Request for a Hearing (Docket No. 72), which is fully briefed, is DENIED as moot given First Merchants asserts it has propounded further discovery and asserts it has no further production responsive to the request.
5. Plaintiff's Verified Motion to Compel First Merchants Bank to Produce Certified Signatures for the First and Second Set of Interrogatories and Request for a Hearing (Docket No. 81), which is fully briefed, is DENIED as moot. Plaintiff's motion specifically states that First Merchants failed to sign and certify the first and second set of interrogatories. First Merchants asserts that it did submit the requisite signatures, both with the original responses and in response to this motion.
6. Defendant's Motion for Leave to File Sur-reply in opposition to Plaintiff's Motion to Compel (Docket No. 82), which is fully briefed, is DENIED as moot given the Court's ruling on the underlying motion to compel (Docket No. 72) would not be impacted by the consideration of this motion.
7. Defendant's Motion to Compel Deposition of Plaintiff and for the Production of Documents (Docket No. 114; Docket No. 118), is GRANTED as to Plaintiff's deposition. The Court notes that Defendant was unable to conduct Plaintiff's deposition prior to the 6/1/18 discovery deadline because it did not timely receive responses to its written discovery requests and given this failure and that during today's hearing Plaintiff did not cite any good cause for her failure to appear for her subpoenaed deposition. Thus, the Court ORDERS the parties to conduct Plaintiff's deposition on Friday, August 17, 2018, at 9:00 a.m., Indianapolis time (EST).
8. Defendant's Motion to Compel Deposition of Plaintiff and for the Production of Documents (Docket No. 114; Docket No. 118) is GRANTED in part and DENIED in part as to Defendant's document request. Plaintiff is ORDERED to compel the below documents that the Court indicates production is granted on Friday, August 17, 2018, at the time of her above listed deposition:
a. Complete AT&T records received from her subpoena. DENIED given Plaintiff affirmed during today's hearing that her previous production has been fully responsive to the corresponding interrogatory on this issue.
b. Copy of a cashier check listed on her Exhibit List. GRANTED.
c. Recorded conversations Walton alleges that she recorded between her and First Merchants' employees listed on her Exhibit List. DENIED given Plaintiff affirmed during today's hearing that she was unable to locate the recorded conversations.
d. US Postal Service return mail notifications listed on her Exhibit List. DENIED given Plaintiff affirmed during today's hearing that she was unable to subpoena these records.
e. Cell phone recordings listed on her Exhibit List. GRANTED.
f. Correspondence to and from the FDIC purportedly listed on her Exhibit List. GRANTED.
g. Correspondence to and from the FTC purportedly listed on her Exhibit List. GRANTED.
h. Emails with First Merchants listed on her Exhibit List. DENIED as these documents are equally within the possession of Defendant.
i. Court Reporter transcript of voicemails on her Exhibit List. DENIED as these documents are equally within the possession of Defendant.
j. Expert Witness Report listed on her Exhibit List. DENIED as Plaintiff affirmed during today's conference that this report does not currently exist.
k. Invoices from Mark Small, Esq. DENIED as irrelevant given Plaintiff is currently proceeding in this matter pro se.
l. Witness statements that Walton claims to have obtained in her response to First Merchants' Request for Production No. 7. GRANTED.
m. Personal banking records including ledgers, check books, and cancelled checks. DENIED.
n. Non-privileged communication between Walton and person discussing First Merchants (Walton originally asserted privilege but has not provided a privilege log as requested). DENIED as Plaintiff affirmed during today's conference that she has disclosed all communication and is not retaining any communications as privileged.
o. Walton's tax returns. DENIED.
9. Plaintiff's Third Motion for Sanctions (Docket No. 124) is DENIED. Plaintiff asserts that Defendant's contention in his Objection filed on August 1, 2018, (Docket No. 123) stating: "when reached by telephone by defense counsel inquiring as to why she failed to appear for her deposition, she promptly hung up the telephone." (Docket No. 124 at ECF p. 1). The record reflects that defense counsel, Alex Rodgers, attested via affidavit that he called Plaintiff on July 20, 2018, and that—after brief discussion—Plaintiff hung up on Mr. Rodgers. (Docket No. 114-1 at ECF p. 3, ¶14). This corresponds with the description Plaintiff provided to the Court during the hearing on the matter. Thus, there has been no violation of Fed. R. Civ. P. Rule 11.
10. The briefing schedule for the remainder of the dispositive motion schedule is adjusted as follows:
a. Defendant's response to Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment shall be filed by Friday, September 14, 2018.
b. Plaintiff's reply to Plaintiff's Motion for Summary Judgment and response to Defendant's Motion for Summary Judgment shall be filed by Friday, September 28, 2018.
c. Defendant's reply to Defendant's Motion for Summary Judgment shall be filed by Monday, October 15, 2018.
11. Lastly, the case is hereby assigned for SETTLEMENT CONFERENCE on TUESDAY, NOVEMBER 6, 2018 at 2:00 p.m., Indianapolis time (EST), before the Honorable Matthew P. Brookman, United States Magistrate Judge, in Room 316 of the Birch Bayh Federal Building/U.S. Courthouse, Indianapolis, Indiana. Clients with full settlement authority are to be present in person at this conference. (See attachment for particulars, including description of which client(s) must attend.)
SO ORDERED.
SETTLEMENT CONFERENCES BEFORE U.S. MAGISTRATE JUDGE MATTHEW P. BROOKMAN
This matter is set for a settlement conference at 2:00 p.m. (Eastern) on Tuesday, November 6, 2018, in Room 316, of the United States Courthouse, Indianapolis, Indiana before Magistrate Judge Matthew P. Brookman. Unless excused by order of the court, clients or client representatives with complete authority to negotiate and consummate a settlement shall attend the settlement conference, in person, along with their counsel. With respect to corporate, governmental, and other organizational entities, an authorized client representative with authority to negotiate and communicate a settlement must appear in-person at the settlement conference along with their counsel. Any insurance company that is a party, or is contractually required to defend or indemnify any party, in whole or in part, must have a fully authorized settlement representative present at the conference. Such representative must have final settlement authority to commit the company to pay, in the representative's own discretion, an amount within the policy limits, or up to the plaintiff's last demand, whichever is lower. Counsel are responsible for timely advising any involved non-party insurance company of the requirements of this order. The purpose of this requirement is to have in attendance a representative who has both the authority to exercise his or her own discretion, and the realistic freedom to exercise such discretion without negative consequences, in order to settle the case during the settlement conference without consulting someone else who is not present. Under no circumstances will counsel of record be deemed to be the proper client representative for settlement purposes. All persons entering the United States Courthouse must have photo identification.
Client representatives for all parties must have final settlement authority without consulting someone else who is not present. This means that parties should not need or expect to contact others, who are not present at the conference, to discuss or modify settlement authority. If such a person exists who would need to be consulted, that party must be present at the settlement conference. The Court recognizes that for some corporate and governmental entities, and a limited number of other organizational entities with multi-layered approval procedures, additional approvals may be required to formally approve a settlement. However, parties and their counsel in these limited situations must exercise all possible good faith efforts to ensure that the representative(s) present at the settlement conference provides the maximum feasible authority and the best possible opportunity to resolve the case. No other persons are permitted to attend the settlement conference without leave of Court.
Three business days before the scheduled conference, the parties shall submit (not file) to the Magistrate Judge a confidential settlement statement setting forth a brief statement of: (1) relevant facts, including any key facts that the party believes are admitted or in dispute; (2) damages, including any applicable back pay, mitigation, compensatory and/or punitive damages, or any other special damages; and (3) any pending or anticipated dispositive or other substantive motions. The confidential settlement statement should not exceed five, double-spaced pages, and submission of exhibits should be kept to a minimum.
No later than fourteen days prior to the settlement conference, Plaintiff(s) shall serve an updated settlement demand on Defendant(s), who shall serve an updated response no later than seven days before the settlement conference. The parties shall submit (not file) to the Magistrate Judge courtesy copies of their respective demand and response at the time of service. Counsel may submit confidential settlement statements and copies of their settlement demand/response to Chambers via mail or email (mpb_settlement@insd.uscourts.gov).
A request to vacate or continue the settlement conference or otherwise depart from this order shall be done by motion filed with the Court two weeks prior to the conference, except in exigent circumstances. Such motion will be granted only for good cause. Failure to comply with any of the provisions in this order may result in sanctions.
You are reminded of your obligation under Local Rule 16.1(c) which states: "Prior to all court conferences, counsel shall confer to prepare for the conference."
