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Francis Carling v. Kristan Peters

August 19, 2011

FRANCIS CARLING, PLAINTIFF,
v.
KRISTAN PETERS, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

MEMORANDUM OPINION AND ORDER

By motion filed February 3, 2011, defendant Kristan Peters seeks to compel the production of documents in response to her Document Requests (Docket Item 122). These requests in issue were dated and served on or about December 15, 2010; plaintiff responded on or about January 18, 2011. Plaintiff Francis Carling objects to the requests for documents on various grounds.

As a threshold matter, Carling argues that Peters' motion is insufficient on its face for four reasons and should be denied without addressing the merits of the document requests (Plaintiff's Affirmation in Opposition to Defendant's Motion to Compel Production of Documents, dated February 8, 2011 ("Pl.'s Aff.") (Docket Item 129), at 1-2). First, Carling argues that Peters' motion fails to comply with Federal Rule of Civil Procedure 37(a)(1) because it does not contain a certificationthat the movant conferred or attempted to confer in good faith with the adverse party. In response, Peters notes that the Court compelled production of her documents without a certification or even a motion or affidavit following Carling's letter motion (see Memorandum Opinion and Order, dated December 13, 2011 (Docket Item 81)). She also argues that her declaration should serve as a certification, as she stated there that Carling "refused to participate meaningfully in discovery" (see Declaration of Defendant Kristan Peters in Support of Her Motion to Compel Document Requests, dated February 3, 2011 ("Peters Decl.") (Docket Item 123), at ¶ 4). Because both parties are proceeding pro se, and given the parties' history of being unable to agree on almost anything, I shall consider Peters' motion despite the lack of a clear certification that she conferred or attempted to confer in good faith with Carling.

Second, Carling argues that Peters' motion is insufficient because it fails to disclose that Carling timely responded to her document requests and fails to disclose the basis of his objections. Carling cites no authority in support of this argument. Peters stated in her motion that "Carling has refused to comply with a single document[] request, and objected to every single one" (Motion to Compel, dated February 3, 2011 (Docket Item 122), at 1). Peters disclosed the bases forCarling's objections in her reply (Reply in Further Support of Motion to Compel, dated February 9, 2011 ("Def.'s Reply") (Docket Item 134), at 6-20). I conclude that this argument is sufficient to warrant denial of the motion.

Third, Carling argues that Peters has failed to justify her individual document requests. Peters provided reasons for her document requests in her reply (Def.'s Reply at 6-20). I conclude that this is sufficient.

Carling's final argument is that he responded that he possessed no documents with respect to 16 of Peters' 27 document requests. He further notes that with respect to five of the 27 requests, the documents sought are already in Peters' possession. Carling argues that this leaves, at most, six requests that might justify relief from the Court and argues that Peters' failure to disclose the foregoing facts warrants a denial of the motion. He cites no authority in support of his argument, and I reject it. The fact that a party does not possess documents responsive to a request may warrant the denial of a motion to compel production of documents in response to that request, but it does not warrant the whole sale denial of the motion without consideration of the merits. Thus, I will address the merits of Peters' motion.

Carling's argument that Peters is already in possession of certain documents that have been requested is not a valid objection. Peters is entitled to see, inter alia, if the documents in Carling's possession are identical to the ones already in her possession. Therefore, with respect to Document Requests 5, 17, 22, 24 and 25, Carling is hereby ordered to produce all responsive non-privileged documents in his possession, custody or control.

Carling claims he possesses no documents with respect to Document Requests 6, 10, 11 and 16, and Peters does not dispute these contentions. Carling also claims he possesses no documents with respect to certain other requests, which Peters does dispute. It is often the case during litigation that one party believes her adversary is withholding documents. I cannot, however, issue a discovery order solely on the basis of one party's subjective belief. Therefore, Carling's representation that he possesses no documents responsive to a particular request is generally the final word here, unless Peters offers some evidence, beyond speculation, that certain documents exist. Carling is, however, precluded from presenting any documents at trial that would have been responsive requests 6, 10, 11 or 16.

I address the remaining categories of document requests in order.

Document Request No. 1. Peters' application to compel Carling to produce all documents concerning any fee disputes Carling had with previous clients is denied. Carling states that he does not possess any documents and objects on the grounds of relevancy. Peters states that Carling testified at his deposition that he sued a previous client who did not pay fees and obtained a judgment, and that Carling also had a fee dispute with another client. Notwithstanding the parties' representations, I conclude that this request is not reasonably calculated to lead to admissible evidence concerning the fee dispute here. The fee disputes Carling had in the past are either irrelevant or would likely be inadmissible.

Document Request No. 2. Peters' application to compel Carling to produce all documents concerning any disputes Carling had with previous clients is likewise denied, for the same reasons given in the preceding paragraph.

Document Request No. 3. Peters' application to compel Carling to produce all documents concerning Carling's oral arguments before the Second Circuit is granted in part. Carling claims that he would have to copy and produce complete client files, discovery materials, briefs, appendices and decisions and that while he may have in his possession copies of some of his briefs, they are bound, difficult to copy and irrelevant. Peters states that she is willing to accept citations to the cases Carling has argued and copies of the Table of Contents and Issues Presented pages from his briefs. I direct Carling to prepare and produce a list of cases --- with docket numbers -- that he argued in the Second Circuit. This information is reasonably calculated to lead to admissible evidence concerning Peters' fraud claim. Specifically, it is relevant to the truthfulness of Carling's alleged representation that he had extensive experience handling oral argument before the Second Circuit and experience with disciplinary matters.

Document Request No. 4. Peters' application to compel Carling to produce all documents concerning all litigation and cases in which Carling was accused of making misrepresentations -- including but not limited to the litigation in which Christina Black accused Carling of making misrepresentations --- is denied. The issue with respect to Peters' counterclaims is Carling's alleged misrepresentations to her. Peters argues that this evidence would tend to prove that Carling made false claims about his declining compensation in other instances and would provide impeachment evidence about his veracity. The evidence sought is either irrelevant or would likely be inadmissible. See Fed.R.Evid. 404.

Document Request No. 7. Peters' application to compel Carling to produce all documents concerning his gross income from the practice of law, arbitration or mediation in 2008, 2009 and 2010 is granted. Carling objects to this request on the grounds that the information is personal and has no relevance to the case. Peters argues that the request is relevant because Carling claims he lost business opportunities in 2008 through his representation of Peters, and these records will potentially reflect whether any business was lost, as Carling did not represent Peters in 2009 and 2010. I agree with Peters that a comparison of Carling's gross salary from law, ...


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