Hatfield v. Tony Pirani, et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JASON M. HATFIELD, P.A. 	PLAINTIFF
v. 	No. 5:22-cv-05110
CESAR ORNELAS, ET AL. 	DEFENDANTS
OPINION AND ORDER
Before the Court is Plaintiff Jason Hatfield’s (“Hatfield”) motion to compel (Doc. 124) as
to Cesar Ornelas, Mike McCoy, and Nunez & Associates (“Nunez”). Hatfield filed a brief (Doc.
125) in support of his motion, and Ornelas, McCoy, and Nunez responded jointly (Doc. 135).
Hatfield filed a reply (Doc. 139), which the Court did not consider because Hatfield failed to seek
leave to reply under the Final Scheduling Order. (Doc. 97, p. 3). For the reasons set forth below,
Hatfield’s motion will be GRANTED IN PART AND DENIED IN PART.
I. 	Background
The facts of this case, as alleged, are set forth more fully in the Court’s Opinion and Order
on Motion to Dismiss (Doc. 63). The Court assumes familiarity with the allegations in this matter.
On March 1, 2023, McCoy, Ornelas, and Nunez (who are represented by the same counsel
in this action) produced responses to 64 requests for production submitted to both McCoy and
Ornelas and 11 interrogatories submitted to Nunez. 	(Doc. 124-3). 	Many, if not most, of these
interrogatories were subject to objections, including on grounds of privilege; however, no privilege
log was provided. 	See generally id. 	On March 7, Hatfield sent a “good-faith request” to
Defendants’ counsel in an attempt to resolve the objections, in which he agreed to narrow a few of
his requests. 	(Doc. 124-1). 	Counsel then replied on behalf of all defendants on March 15,
providing some additional information in response to the narrowed requests but standing by the
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majority of the previous objections. (Doc. 124-1, p. 13). Unable to resolve their differences, the
parties now ask the Court to resolve their dispute. (Docs. 124, 129).
II. 	Privilege Log
Hatfield claims that Defendants here waived their privilege objections by failing to produce
privilege logs when they withheld documents for privilege. (Doc. 125, p. 12). The Court will not
deem the privilege waived.
Federal Rule of Civil Procedure 26(b)(5)(ii) requires parties withholding documents for
privilege to “describe the nature of the documents, communications, or tangible things not
produced or disclosed—and do so in a manner that, without revealing information itself privileged
or protected, will enable other parties to assess the claim.” A privilege log is the most conventional
way to provide these descriptions. As this Court held in Isham v. Booneville Community Hospital,
however, “it is clearly not an established rule in federal courts that a party's delay or even failure
to produce a privilege log constitutes a wholesale waiver of their right to assert privileges over
documents subject to a request.” 2015 WL 11117159, at *3 (W.D. Ark. April 23, 2015). Given
the central role of lawyer-client relationships in this action, the fact that the entities waiving
privilege are lawyers (or law firm employees) and not clients, and the necessarily long time frame
of relevance contemplated by a RICO claim, the Court declines to open the floodgates and deem
all privilege waived as to these three defendants.
With that being said, Defendants have violated Rule 26(b)(5)(ii). The Court will determine
what sanctions, if any, are appropriate at a later date.
III. 	Specific Requests – Ornelas and McCoy
Requests for Production 1–2:
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These requests are for “all agreements” (Request 1) and “all contracts” (Request 2)
“between you and any lawyer or law firm.” (Doc. 124-3, pp. 3–4).0F
1 	Defendants1F
2 object to the
requests as violating attorney-client privilege, 	state that they are withholding responsive
documents due to the privilege, and further object that the requests lack reasonable particularity
and are unlimited in time. Id. Subject to those objections, McCoy states that he does not believe
that he possesses responsive non-privileged documents. Id. at 4. Ornelas states that he does not
believe that he possesses any responsive documents to Request for Production 2. Id. at 29.
Defendants’ objections miss the mark. First, attorney-client privilege “ordinarily does not
apply to client identity and fee information.” United States v. Sindel, 53 F.3d 874, 876 (8th Cir.
1995). The Court could not find any law indicating that the attorney-client privilege also shields
the attorney’s identity. 	Indeed, many courts have held that “the fact of the attorney-client
relationship,” which would necessarily entail the identity of the attorney, is not subject to the
privilege. Doe v. Elwood Pub. Sch. Dist., 2006 WL 3751315, at *7 (D. Neb. December 18, 2006)
(collecting cases). Therefore, the essential contents of a contract to hire a lawyer are not privileged.
Absent more specific objections, Defendants have failed to meet their burden to show that the
privilege applies to the withheld documents. See United States v. Ivers, 967 F.3d 709, 715 (8th
Cir. 2020) (burden to show privilege lies with party asserting privilege).
Additionally, the Court does not see how the requests lack reasonable particularity. The
requests seek a defined class of documents (contracts or other agreements) entered into with a
1 Because McCoy and Ornelas’ responses are substantively identical, the Court cites only
to McCoy’s responses unless Ornelas’ responses are different.
2 In Section III, “Defendants” refers only to McCoy and Ornelas. In Section IV,
“Defendant” refers to Nunez.
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defined class of entities (lawyers and law firms) in a case which involves allegations of fraudulent
agreements with, among others, lawyers and law firms.
As to the lack of a time limitation, the instant matter is a RICO case, and the temporal
continuity of the illicit enterprise (which, again, allegedly involves fraudulent agreements with
lawyers and law firms) is an element of the cause of action. Crest Const. II, Inc. v. Doe, 660 F.3d
346, 356 (8th Cir. 2011). 	However, the Court believes that some kind of time limitation is
necessary to maximize the efficiency and relevance of discovery responses. Therefore, the Court
will only require defendants to produce responsive documents dating within 10 years from the date
Hatfield’s claim was filed in this matter, which was June 7, 2022. If Hatfield is able to produce
evidence showing that the enterprise began earlier, the Court will consider allowing discovery
from earlier periods.
Finally, although Ornelas has represented that he does not believe that he possesses any
documents responsive to Request for Production 2, this representation is a technically insufficient
answer. “Even if there are no such documents, [a] plaintiff is entitled to a response as required by
[Federal Rule of Civil Procedure] 34(b).” Fishel v. BASF Group, 175 F.R.D. 525, 531 (S.D. Iowa
1997). And Rule 34 refers to documents in a party’s “possession, custody, or control,” not just in
its possession. Fed. R. Civ. P. 34(a)(1).
Therefore, McCoy is directed to respond to Requests for Production 1 and 2 as to all
responsive contracts and agreements executed on or after June 7, 2012. Ornelas is directed
to respond to Request for Production 1 as to all responsive documents dating to on or after
June 7, 2012. Ornelas is further directed to respond to Request for Production 2 with any
responsive documents dating to on or after June 7, 2012 in his custody or control or to inform
Hatfield that he has no such responsive documents in his possession, custody, or control.
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Request for Production 7:
This request is for “all documents relating to advertisements for GROUP OF LEGAL
SPECIALTIES.” (Doc. 124-3, p. 5). Defendants object to the request as “vague and ambiguous”
because it reaches documents other than the advertisements themselves, unlimited in time and
scope, insufficiently particular, irrelevant, and disproportionate to the needs of the case. 	Id.
Subject to the objection, Ornelas states that he does not believe he possesses responsive
documents. Id. at 30. In later correspondence, counsel for both Defendants indicated that neither
defendant believes he possesses responsive documents. (Doc. 124-1, p. 14).
The Court will take Defendants’ objections in turn. 	First, the request is not vague or
ambiguous simply because it reaches documents other than the advertisements themselves.
Vagueness and ambiguity arise from the reader’s inability to interpret a request, not the sweep of
an otherwise-comprehensible request. The proper objection for an inquiry that sweeps too far in
scope is overbreadth. The Court finds persuasive Brown Bear v. Cuna Mut. Grp., 266 F.R.D. 310,
320 (D.S.D. 2009), which held that omnibus phrase like “relating to” or “concerning” does not
create impermissible overbreadth where “the omnibus phrase modifies a sufficiently specific type
of information, document, or event, rather than large general categories of information or
documents.” “[A]dvertisements for GROUP OF LEGAL SPECIALTIES” is sufficiently specific
to avoid overbreadth when combined with “relating to.” 	For the same reason, this request for
production is not “unlimited in scope” or “insufficiently particular.”
Second, while the Court will place a time limitation on the request, it will be a fairly long
one and may be extended. As addressed under “Requests for Production 1–2,” supra, the temporal
continuity of the alleged illicit enterprise is an element of a RICO claim. Attached to Hatfield’s
complaint is a brochure produced by Group of Legal Specialties which instructs funeral home
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employees on how to steer potential customers to Group of Legal Specialties. (Doc. 18-8). This
indicates that Group of Legal Specialties is a part of the machinery within the alleged illicit
enterprise; therefore, evidence of Group of Legal Specialties’ continuity is relevant to the required
showing of continuity for the enterprise as a whole. (This disposes of the objection to the request’s
relevance as well.) Because the continuity of Group of Legal Services’ operations is relevant, the
Court will allow discovery of all responsive documents dating to on or after June 7, 2012. 	If
Hatfield can produce evidence that Group of Legal Specialties was in operation before this time,
the Court will consider allowing discovery into earlier documents as well.
Finally, the request is not disproportionate to the needs of this case. 	Proportionality is
determined based on “the importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources, the importance of the
information in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Both sides of this dispute allege illegal and
fraudulent conduct by lawyers directed towards vulnerable people. 	The Court must treat these
allegations with the utmost gravity. Accordingly, the issues at stake in this action are important.
As for the amount in controversy, Hatfield’s damages arise from his inability to collect a
1/3 contingent fee on the Recinos family’s settlement with J.B. Hunt. (Doc. 63, pp. 3, 16–17). In
his Motion to Dismiss, separate defendant Noe Mancia represented that the settlement was
“substantially higher than any known or advertised settlements ever secured by Mr. Hatfield.”
(Doc. 36, p. 5). 	The highest settlement advertised on Hatfield’s website is $2,500,000 for a
wrongful death claim. 	Case Results, J ASON M. HATFIELD, P.A. (May 3, 2023, 11:29 AM),
https://www.jhatfieldlaw.com/about/case-results/. 	Even assuming that Mancia’s representation
was somewhat exaggerated, Hatfield’s damages from the loss of the attorney’s lien amount to
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nearly $1 million before accounting for the treble damages and fee shifting available in a civil
RICO action. 18 U.S.C. § 1964(c).
As for the parties’ relative access to the relevant information, Defendants here appear to
have been affiliated with Group of Legal Specialties, whereas Hatfield was not. 	Therefore,
Defendants are greatly advantaged in access to the relevant information. The parties’ resources
are a relative unknown here, but Hatfield would assuredly need to expend more resources in
retrieving this information on his own than Defendants would in producing it, even assuming that
all of the relevant information could be retrieved without Defendants’ cooperation.
As to the importance of the information in resolving these issues, the requested documents
certainly will not dispose of the case entirely. 	However, as discussed above, information about
Group of Legal Specialties’ advertising could provide important evidence of the conspiracy’s
continuity. 	As to whether the burden or expense of the discovery outweighs its likely benefit,
Defendants have failed to demonstrate any extraordinary burden in producing this relevant
evidence, especially in light of the Court’s narrowed time period. Accordingly, this discovery is
proportionate to the needs of the case.
Finally, although Defendants represent that they do not believe they possess responsive
documents, this representation is technically insufficient for its failure to address responsive
documents in Defendants’ custody or control.
Therefore, Defendants are directed to respond to Request for Production 7 with all
responsive documents dating to on or after June 7, 2012, or to inform Hatfield that they have
no such responsive documents in their possession, custody, or control.
Request for Production 8:
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This request is for “all documents relating to Nunez & Associates.” 	(Doc. 124-3, p. 5).
The defendants object on grounds of ambiguity, vagueness, overbreadth, lack of a time limit,
failure to use reasonable particularity, and disproportionality. Id. at 5–6. Subject to this objection,
Ornelas produced 12 items of discovery2F
3 with birthdates redacted. Id. at 31.
The Court finds that this request is facially overbroad. 	“[A] document request may be
overly broad on its face if it uses an omnibus term such as ‘relating to,’ ‘pertaining to,’ or
‘concerning’” and does not “modif[y] a sufficiently specific type of information, document, or
event, rather than large or general categories of information or documents.” 	Brown Bear, 266
F.R.D. at 320. 	Relation to Nunez & Associates, an entity for which both Defendants acted as
independent contractors, is too broad of a category in this instance. Accordingly, the Court will
sustain Defendants’ objections to the request as formulated, and Defendants will not be required
to produce any additional responsive documents in their possession, custody, or control.
Request for Production 9:
This request is for “all documents relating to or referencing Nunez Law Firm.” (Doc. 124-
3, p. 6). Defendants object for lack of time limitation, vagueness, ambiguity, overbreadth, lack of
reasonable particularity, disproportionality, and potential violations of the attorney-client and work
product privileges. 	Id. 	Subject to these objections, Ornelas referred Hatfield to the discovery
produced in response to Request for Production 8. Id. at 31.
As to documents “relating to . . . Nunez Law Firm,” the Court will sustain the objection for
overbreadth as discussed under “Request for Production 8,” supra. As to documents “referencing
3 It is unclear whether these represent 12 separate documents or a lesser number of
documents totaling 12 pages. 	Hatfield’s response to the objection indicates that the discovery
produced consisted solely of “a contract for legal representation involving Nunez Law Firm
(unsigned) and Kherkher Garcia, LLP[,] dated December 1, 2020.” (Doc. 124-1, p. 3).
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Nunez Law Firm,” however, the request is not facially overbroad because “referencing” is not an
omnibus term along the lines of “relating to,” “pertaining to,” or “concerning.” 	Rather,
“referencing” refers to a narrower class of discovery which specifically mentions the topic at issue.
For example, while a gas receipt for business travel on Nunez Law Firm’s behalf could conceivably
“relate to” Nunez Law Firm, it would not “reference” Nunez Law Firm. 	Therefore, the second
half of the request, for documents “referencing Nunez Law Firm,” is not overbroad.3F
4 For similar
reasons, it is not vague, ambiguous, or lacking in reasonable particularity.
As described under “Request for Production 7,” supra, the Court does not find that the
failure to limit this discovery to the facts of the present dispute is disproportional to the case. The
Court will, however, limit the request to those documents dating to on or after June 7, 2012. As
before, if Hatfield can produce evidence to show that earlier relevant documents exist, the Court
will consider allowing additional discovery.
Defendants’ privilege objections warrant further analysis. 	Hatfield takes issue with this
objection on the grounds that Defendants are “not attorneys nor are they clients.” (Doc. 124-1, p.
3). Defendants argue that, as representatives of a “Mexico-based attorney,” their communications
with clients qualify for attorney-client privilege. Id. at 15. Hatfield takes the position that, because
Mr. Nunez is not licensed in the United States, American rules of confidentiality do not apply.
“Where, as here, alleged privileged communications . . . involved foreign attorneys . . .,
this court defers to the law of the country that has the ‘predominant’ or ‘the most direct and
compelling interest’ in whether those communications should remain confidential.” 	Astra
Aktiebolag v. Andrx Pharms., Inc., 208 F.R.D. 92, 98 (S.D.N.Y. 2002) (collecting cases). “The
4 Nunez & Associates has admitted that it is the same business concern as Nunez Law Firm.
(Doc. 124-3, p. 52). 	Therefore, the Court also expects Defendants to produce documents
referencing “Nunez & Associates.”
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jurisdiction with the predominant interest is either the place where the allegedly privileged
relationship was entered into or the place in which that relationship was centered at the time the
communication was sent.” Id. (internal quotations omitted). In this case, the contract at issue was
signed in Springdale, Arkansas, the clients and Defendants had only ever met in Springdale, and
the topic of representation was a crash occurring near Springdale. For this reason, it is clear that
the relationship was both entered into and centered in the United States. 	Therefore, the United
States has the most, if not the only, “direct and compelling interest” in the continued confidentiality
of these communications.
Under American (specifically, Eighth Circuit) law, “[t]he federal common law of attorney-
client privilege applies to [a] civil RICO action.” 	In re Bieter Co., 16 F.3d 929, 935 (8th Cir.
1994). Under federal common law, as established by an unpublished rule of evidence known as
Supreme Court Standard 503,
“[a] client has a privilege to refuse to disclose and to prevent any other person from
disclosing confidential communications made for the purpose of facilitating the
rendition of professional legal services to the client, (1) between himself or his
representative and his lawyer or his lawyer’s representative, or (2) between his
lawyer and his lawyer’s representative, or (3) by him or his lawyer to a lawyer
representing another in a matter of common interest, or (4) between representatives
of the client or between the client and a representative of the client, or (5) between
lawyers representing the client.”
Id. Standard 503 provides that “[a] ‘lawyer’ is a person authorized, or reasonably believed by the
client to be authorized, in any state or nation.” Sup. Ct. Standard 503(a)(2). Standard 503 also
says that “[a] ‘representative of the lawyer’ is one employed to assist the lawyer in the rendition
of professional legal services.” 	Sup. Ct. Standard 503(a)(3). 	Here, where McCoy and Ornelas
were assisting a Mexican lawyer (whose Mexican law license is not disputed) in speaking to
clients, their communications fall within the scope of attorney-client privilege as defined in
Standard 503.
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Hatfield claims that any attorney-client privilege to which these communications would be
entitled is waived by the crime-fraud exception, but Hatfield misunderstands the scope of the
exception. As discussed in the Court’s previous Opinion and Order in this matter, the crime-fraud
exception “only applies when the client obtained the lawyer’s services to commit or plan what the
client knew or should have known to be a crime or fraud.” 	(Doc. 98, p. 5). 	Here, there is no
indication that the clients in this interaction, the survivors of the accident victims, committed or
planned any sort of fraud. Therefore, attorney-client privilege applies.
The work-product privilege, on the other hand, does not necessarily apply. 	The Eighth
Circuit has held that the crime-fraud exception applies to work-product privilege as well as
attorney-client privilege. In re Green Grand Jury Proc., 492 F.3d 976, 979–80 (8th Cir. 2007).
Further, it has held that attorney misconduct “may become relevant in cases where a party invokes
the crime-fraud exception to discover documents protected by the attorney work product rule.” In
re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 642 n.1 (8th Cir. 2002). 	Although the Eighth
Circuit has not decided the exception’s application to the work-product privilege in the case of an
innocent client whose lawyer has committed a crime or fraud, several other Circuits have held that
the crime-fraud exception can apply based only on attorney misconduct. Drummond Co., Inc. v.
Conrad & Scherer, LLP, 885 F.3d 1324, 1337 (11th Cir. 2018) (“We hold that the district court
properly concluded that the crime-fraud exception may be applied because illegal or fraudulent
conduct by an attorney alone may suffice to overcome attorney work product protection.”); Moody
v. I.R.S., 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 product to advance criminal or fraudulent ends.”); In re Grand Jury
Matter #3, 847 F.3d 157, 165 (3d Cir. 2017) (“A party seeking to apply the crime-fraud exception
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must demonstrate that there is a reasonable basis to suspect . . . that the lawyer or client was
committing or intending to commit a crime or fraud”) (emphasis added) (internal alterations
omitted). Absent guidance from the Eighth Circuit, the Court finds this authority persuasive and
holds that the crime-fraud exception may defeat work-product privilege where the attorney, but
not the client, has participated in a crime or fraud.
To invoke the crime-fraud exception, Hatfield will first need to demonstrate “a factual basis
adequate to support a good faith belief by a reasonable person that the crime-fraud exception
applies.” 	BankAmericorp, 270 F.3d at 642 (internal quotations omitted). 	Besides a threshold
showing of the fraud itself, this entails “a specific showing that a particular document or
communication was made in furtherance of the . . . alleged crime or fraud.” Id. But Hatfield and
the Court have no idea what “particular documents or communications” are at issue because
Defendants have fallen short of their duty under Federal Rule of Civil Procedure 26(b)(5)(ii) to
“describe the nature of the documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing information itself privileged or protected,
will enable other parties to assess the claim.” 	A privilege log is the most conventional way to
provide these descriptions, but no descriptions in any form were provided.
Therefore, Defendants are directed to respond to Request for Production 9 as to
“documents . . . referencing Nunez Law Firm” dating to on or after June 7, 2012. 	Any
discovery withheld for privilege must be described in a privilege log or similar document in
accordance with Federal Rule of Civil Procedure 26(b)(5)(ii).
Requests for Production 10–11:
These requests are for documents “relating to or referencing” Steve Kherkher or Kherkher
Garcia, LLP. (Doc. 124-3, p. 6). Defendants object to the requests as vague, ambiguous, unlimited
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in time, and not limited to the facts of this case. Id. at 6–7. Subject to these objections, McCoy
does not believe he possesses documents that are responsive to either request, although he is aware
of materials attached to Hatfield’s complaint which reference Steve Kherkher and Kherkher
Garcia. 	Id. 	Ornelas stated that he did not believe that he possessed documents responsive to
Request for Production 10; in response to Request for Production 11, he referred Hatfield to the
discovery he produced in response to Request for Production 8. 	Id. at 31–32. 	In later
correspondence, Defendants represented that they did not believe they possessed responsive
documents to either inquiry. (Doc. 124-1, p. 15).
First, the Court does not find these requests vague or ambiguous. In making the vagueness
and ambiguity objections, Defendants protest that the requests “reach an unspecified, broader
category of documents.” (Doc. 124-3, pp. 6–7). Again, Defendants’ true objection seems to be to
overbreadth, not vagueness or ambiguity. However, the request is not overbroad. Unlike Requests
for Production 8 and 9, which called for the broad universe of documents in Defendants’
possession “related to” Defendants’ sometime employer, these requests pertain to communications
with another individual and business for which Defendants did not work and with which
Defendants presumably interacted much less frequently. Therefore, as to these defendants, “Steve
Kherkher” and “Kherkher Garcia” are sufficiently specific categories of information to avoid
overbreadth under Brown Bear. 	This specificity also precludes findings of vagueness or
ambiguity. See Clark v. Unum Grp., 2021 WL 4134520, at *6 (D.S.D. September 10, 2021) (use
of omnibus terms did not create vagueness or ambiguity where inquiry passed Brown Bear test for
overbreadth).
Second, the failure to limit discovery to the facts of this case are not objectionable for the
reasons stated under “Request for Production 7,” supra. Like Nunez & Associates, Kherkher and
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Kherkher Garcia are alleged members of a conspiracy whose temporal continuity must be proven
as part of Hatfield’s case. 	Accordingly, evidence of the alleged conspirators’ activities before
Hatfield’s involvement is relevant to the claims at issue. As before, the Court will limit the scope
of discovery to 10 years before the claim was filed unless and until Hatfield produces evidence
that the conspiracy between these defendants originated prior to that date.
Finally, the Court again reminds Defendants that although they have disclaimed possession
of responsive materials, they also need to produce any responsive materials in their custody or
control or disclaim possession, custody, or control of any such documents.
Therefore, Defendants are directed to respond to Requests for Production 10 and 11
with all responsive documents dating to on or after June 7, 2012, or to state that they have
no such responsive documents in their possession, custody, or control.
Request for Production 12:
This request is for “all documents relating to payments you received from any lawyer or
law firm.” (Doc. 124-3, p. 7). Defendants object to the request as unlimited in time, ambiguous,
vague, and seeking private financial data to which Hatfield has not demonstrated prima facie
entitlement. Id.
As detailed under “Request for Production 7,” supra, the Court finds that a long, but not
indefinite, time period is appropriate. 	The scheme alleged involves fraudulent agreements with
lawyers and law firms for profit, and the temporal continuity of the conspiracy is an element of the
claim at issue. Accordingly, the Court will allow this request as to documents originating within
10 years of the complaint being filed, and will consider allowing discovery of earlier documents
if Hatfield can show that they are relevant.
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The claim is not vague or ambiguous. 	“Payments you received from any lawyer or law
firm” is sufficiently specific that the use of “relating to” does not create vagueness or ambiguity.
See “Requests for Production 10–11,” supra.
Finally, the Court can find no case establishing that “private financial data” as a category
requires any showing of need or relevance beyond that required for any other discovery.
Defendants correctly point out that most district courts in the Eighth Circuit require a dual showing
of relevance and compelling need for the discovery of tax returns. PSK, L.L.C. v. Hicklin, 2010
WL 2710507 (N.D. Iowa July 8, 2010) (collecting cases). The Court agrees that Hatfield has not
demonstrated the compelling need necessary to produce tax returns, and the Court will not require
Defendants to produce tax returns in response to this request.
However, the same heightened standard does not apply to bank statements or checks. In
United States v. Wilson, a criminal case, the Eighth Circuit stated that bank records were not
“private papers” such that a subpoena could not issue for them. 806 F.2d 171, 175 (8th Cir. 1986).
The Eighth Circuit also noted that there was “no ‘legitimate expectation of privacy’ in negotiable
instruments.” 	Id. (quoting United States v. Miller, 425 U.S. 435, 442 (1976)). 	Per Miller,
“negotiable instruments” include “checks and deposit slips” as well as “financial statements.”
Miller, 425 U.S. at 442. Miller also indicates that the lack of privacy protection for bank records
is not limited to criminal cases, pointing to legislative history which requires bank records to be
maintained due in part to their “high degree of usefulness in . . . regulatory investigations and
proceedings.” Id. at 442–43. Therefore, the Court declines to extend the protection afforded to
tax records to all of Defendants’ financial statements. 	If Defendants are concerned about their
privacy, they may treat these documents as confidential under the terms of the discovery order
(Doc. 137) stipulated to by all parties in this matter.
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As to the financial data’s relevance, Hatfield has stated that these payments are evidence
of “the composition of the enterprise, the continuity of the enterprise, the racketeering activity, and
the pattern of racketeering activity.” (Doc. 124-1, p. 3). This is a sufficient showing of relevance.
Evidence of case-running by Defendants on behalf of lawyers and law firms, even those not named
as defendants in this matter, could show the nature and continuity of an enterprise which the other
defendants may have joined later. Evidence of previous transactions with other defendants would
be still more relevant.
Therefore, Defendants are directed to respond to Request for Production 12 with all
responsive documents dating to on or after June 7, 2012, except that they are not required
to produce tax returns.
Request for Production 13:
This request is for “all documents relating to payments you made to or arranged with any
funeral home.” 	(Doc. 124-3, p. 7). 	Defendants object to the request as unlimited in time,
ambiguous, and vague as to “relating to payments” and “arranged with.” Id. McCoy also claims
the request is overbroad and disproportionate because McCoy has worked in the funeral home
industry for 35 years and sells preplanned funeral products. Id. Similarly, Ornelas states that the
request is overbroad and disproportionate because Ornelas has an ownership interest in funeral
homes. Id. at 32.
The Court does not find the request objectionable as to “documents relating to payments
you made to . . . funeral homes.” The category of “payments made to funeral homes” is sufficiently
specific to avoid overbreadth under Brown Bear as well as vagueness or ambiguity. 	The Court
will impose a 10-year time limit which can be extended on a showing that earlier responsive
documents are relevant; the Court finds that this is sufficient to ensure the relevance of production.
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As detailed under “Request for Production 10–11,” supra, this action deals with important issues
and a substantial amount is in controversy. 	Much of the relevant information will be in the
possession of Defendants, meaning that they have easy access to it while Hatfield would not. The
parties’ resources are relatively unknown, but resolving the allegations of improper payments
would make or break a substantial portion of the case against these Defendants. Finally, while the
Court appreciates that both McCoy and Ornelas have careers in the funeral industry and there will
be a certain burden associated with the discovery, activities in the course of those careers have
been called into question such that the Court cannot say that the burden outweighs the benefit.
Therefore, the Court will allow discovery as to documents related to payments made by Defendants
to funeral homes.
The Court will, however, sustain Defendants’ objection as to documents relating to
payments “arranged with” funeral homes. 	“Arranged with” is too vague of a phrase to be
“sufficiently specific” under Brown Bear. Defendants could potentially be said to have arranged
a payment with a funeral home every time they successfully sold a client a funeral product. As
written, the interrogatory is vague and overbroad, and the objection will be sustained in part.
Therefore, Defendants are directed to produce for inspection and copying “all
documents relating to payments you made to . . . funeral homes” on or after June 7, 2012.
Request for Production 14:
This request is for “all documents relating to compensation you received from any lawyer
or law firm.” (Doc. 124-3, p. 7). Defendants object on grounds of ambiguity and vagueness as to
“relating 	to 	compensation,” 	lack 	of 	reasonable 	time 	limitations, 	overbreadth, 	and
disproportionality. Id. at 8. Defendants also claim that Hatfield has not demonstrated prima facie
entitlement to this “private and personal” financial data. Id. This request and the objections to it
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are largely duplicative of “Request for Production 12,” supra, and so the Court will adopt its
analysis of that request here. As such, while the Court will impose a 10-year time limitation subject
to a showing by Hatfield that relevant documents exist at earlier times, the objections are otherwise
overruled.
Therefore, Defendants are directed to respond to Request for Production 14 as to all
responsive documents dating to on or after June 7, 2012, except that they will not be required
to produce tax returns.
Request for Production 15:
This request is for “all documents between you and any attorney.” 	(Doc. 124-3, p. 8).
Defendants object that the request violates attorney-client privilege and work-product privilege
and states that they are withholding documents. Id. Hatfield has agreed to limit the request so that
it does not include situations where Ornelas and McCoy personally engaged lawyers to represent
them in personal matters. (Doc. 124-1, p. 4).
The Court has set out its view of the privilege issues raised by Defendants under “Request
for Production 9,” supra. 	Some documents between Defendants and the attorneys at Nunez &
Associates could fall within the scope of Standard 503 as communications “between [a client’s]
lawyer and his lawyer's representative.” However, it is not clear that Standard 503 would protect
communication between Defendants and any other lawyers, as Standard 503 explicitly protects
communications “between lawyers representing the client” but says nothing about those between
a lawyer and another lawyer’s representative. 	This silence is especially compelling in light of
protections for communications “between [the client] himself or his representative and his lawyer
or his lawyer’s representative” contained within Standard 503. Clearly, the Supreme Court was
aware that lawyers utilize representatives, so the fact that the protection for communications
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“between lawyers representing the client” does not address the participation of representatives is
unlikely to be an oversight. When combined with the fact that “[t]he attorney-client privilege is
narrowly construed,” Ivers, 967 F.3d at 716, the Court holds that the attorney-client privilege does
not extend to communications between Defendants and lawyers for whom they were not acting as
representatives. While such communications may be afforded the work-product privilege, Hatfield
has raised the crime-fraud exception to that privilege, which will need to be addressed.
Unfortunately, the Court cannot address these issues now, as Defendants have once again
failed to provide a privilege log or similar document. As detailed under “Request for Production
9,” supra, such a document is required under the Federal Rules of Civil Procedure and necessary
to enable the Court and opposing counsel to evaluate claims of privilege.
Therefore, the Defendants are directed to respond to Request for Production 15 in
full, except as to attorneys retained for Defendants’ personal matters as conceded by
Hatfield. Any discovery withheld for privilege must be described in a privilege log or similar
document in accordance with Federal Rule of Civil Procedure 26(b)(5)(ii).
Request for Production 16:
This request is for “all your diplomas, degrees, and educational certificates.” (Doc. 124-3,
p. 8). Defendants object to the request as overly broad, lacking specificity, and unlimited in time,
but state their willingness to disclose their education and related degrees. Id. Hatfield noted that
neither Ornelas nor McCoy actually disclosed their education or related degrees. (Doc. 124-1, p.
4). In response, counsel for Defendants stated that McCoy graduated Edwardsville High School,
Illinois, and attended three years of college at Southern Illinois University – Edwardsville. (Doc.
124-1, p. 16). Counsel said that he would supplement Ornelas’ information. Id.
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To the extent that he has not already, Ornelas is directed to disclose his education and
related degrees.
Request for Production 17:
This request is for “all documents relating to or referencing lawsuits filed against you on
claim of barratry.” (Doc. 124-3, p. 8). Defendants object to the request as including documents
protected by attorney-client privilege and work-product doctrine, as well as being vague and
ambiguous as to reach and containing no scope or time limitations. Id. at 8–9. They state that they
are withholding documents. Id. at 9.
The Court construes the objection to unlimited scope as an overbreadth challenge. 	The
Court finds that past lawsuits for a certain cause of action are specific-enough “events” under
Brown Bear to avoid creating overbreadth when combined with the omnibus term “referencing.”
Due to this specificity, the request is not vague, ambiguous, or unlimited in scope. The Court will
implement a 10-year time limitation for the sake of efficiency but is willing to reconsider the length
of the limitation upon a showing that earlier documents relevant to this case exist.
The Court discusses the issues of privilege under “Request for Production 9” and “Request
for Production 15,” supra. Insofar as Defendants are withholding documents, they need to produce
a privilege log or similar document to allow Hatfield and the Court to evaluate their objections.
Therefore, the Defendants are directed to respond to Request for Production 17 with
all responsive documents dating to on or after June 7, 2012. 	Any discovery withheld for
privilege must be described in a privilege log or similar document in accordance with Federal
Rule of Civil Procedure 26(b)(5)(ii).
Requests for Production 18–19:
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These requests are for “all communications, documents, payments, compensation, or
expenses between you and any funeral home” and “all contracts between you and any funeral
home,” respectively. (Doc. 124-3, p. 9). 	McCoy objects to the requests as unlimited in time,
overbroad, unduly burdensome, and disproportional to the needs of the case. 	Id. 	McCoy notes
that he has worked in the funeral industry for 35 years and currently sells preplanned funeral
products. Id. Similarly, Ornelas objects to the requests as overly broad, unduly burdensome, and
disproportional to the needs of the case, citing his ownership interest in funeral homes. Id. at 34.
Hatfield has agreed to limit Request for Production 18 to an eight-year period and Request for
Production 19 to a ten-year period. (Doc. 124-1, pp. 4–5).
As discussed under “Request for Production 7,” supra, a long-but-not-unlimited time frame
is appropriate here. The Court finds that Hatfield’s new time limitations are of appropriate length.
Request for Production 18 does not appear to be overbroad. It does seek a wide range of
documents related to an industry in which both Defendants claim to have participated extensively,
but that is insufficient to make an interrogatory overbroad on its face. Discovery is proper as to
“matters which are relevant and reasonably calculated to lead to the discovery of admissible
evidence.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). Here, where the scheme
alleged involves improper coordination between Defendants and funeral homes, and where the
continuity of the scheme is at issue, Defendants’ communications or financial histories with
funeral homes are relevant and reasonably calculated to lead to the discovery of admissible
evidence. The fact that a great deal of discovery might be responsive to a request does not make
the request overbroad. 	Request for Production 19, which requests a far narrower category of
documents, is likewise not overbroad.
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As for undue burden, the Eighth Circuit has stated that the burden at issue must be
“objectively quantified” by the party resisting discovery. Vallejo v. Amgen, Inc., 903 F.3d 733,
744 (8th Cir. 2018). While courts have the discretion to find overbreadth based on their common
sense and representations made by counsel, id., the representation here is insufficient to make up
for the lack of an objective showing. 	See id. at 739, 744 (court properly found undue burden
despite lack of objective showing of burden where counsel attempted to perform some of the
requested searches in court, producing thousands of reports to the FDA after running only 10% of
the requested searches and noting that the search did not cover reports to other entities or the
research and follow-up documentation to each report, all of which had also been requested).
Therefore, the Court cannot find undue burden on the information presented.
As for the objection to disproportionality, the Court addresses the issue under “Request for
Production 7,” supra. While Request for Production 7 dealt with contacts with lawyers, contacts
with funeral homes are also relevant to the scheme at issue here as well as the facts of this particular
case. Accordingly, the Court finds that the request is not disproportional.
Therefore, Defendants are directed to respond to Requests for Production 18 and 19
as limited by Hatfield.
Requests for Production 20–21:
These requests are for “all documents comprising or relating to communications between
you and any survivors of accidents” or “between you and any surviving family members of
catastrophic accidents.” 	(Doc. 124-3, pp. 9–10). 	Defendants object to these requests as vague,
ambiguous, overbroad, unlimited in time, and potentially violative of the attorney-client privilege.
Id. at 9–10.
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The Court agrees that the requests as written are vague and overbroad in that they sweep
in communications with any survivors (or victims’ survivors) of any accidents (or catastrophic
accidents, 	whatever 	“catastrophic” 	means). 	As 	written, 	the 	requests 	would 	cover 	all
communications Defendants have ever had with anyone who has ever gotten in a fender bender,
or whose family member has been in a particularly bad wreck, regardless of whether the
communications related to the accident or even whether Defendants knew that the accident had
happened. Even without the omnibus term “related to,” the requests are overbroad on their faces
because car accidents of various kinds are a ubiquitous feature of modern life, meaning that a broad
swath of the human population falls into the category of a victim or a victim’s relative.
Accordingly, Defendants will not be required to respond.
Request for Production 23:
This request seeks “all documents and communications with any person having a products
liability claim.” 	(Doc. 124-3, p. 10). 	Defendants object that the request is overbroad,
disproportional to the needs of the case, and potentially violative of attorney-client privilege. Id.
at 10–11. McCoy states that he does not believe he possesses documents responsive to the request.
Id. at 11.
As discussed under “Requests for Production 20–21,” supra, this request raises overbreadth
concerns because it could theoretically apply even when Defendants did not know of the products
liability claim. 	However, the Court ultimately does not find it overbroad, especially given that
products liability claims are a much less common feature of day-to-day life than car accidents.
Further, the request is not disproportional to the needs of the case. As detailed under “Request for
Production 7,” supra, this is an important matter with a high dollar amount in controversy and
Defendants have access to the relevant materials, whereas Hatfield does not. 	While contacts
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relating to product liability are less relevant to this particular case than those relating to auto
accidents, contacts relating to products liability could still establish Defendants’ alleged modus
operandi in dealing with those who may have legal claims, which is relevant both to determining
what happened in this transaction and to determining the nature and continuity of Defendants’
enterprise, a fact which Hatfield must prove at trial.
Regarding attorney-client privilege, insofar as Defendants were acting as representatives
of a law firm during the communication and the communications were for the purpose of
facilitating the rendition of professional legal services to the client, the Court agrees that the
communication would be privileged under Standard 503. See “Request for Production 15,” supra.
Otherwise, it is potentially discoverable.
Therefore, Defendants are directed to respond to Request for Production 23 in full,
except insofar as Defendants were acting as representatives of a law firm during the
communication and the communication was for the purpose of facilitating the rendition of
legal services to the client. 	All documents withheld for privilege must be described in a
privilege log or similar document in accordance with Federal Rule of Civil Procedure
26(b)(5)(ii). McCoy is directed to produce all such responsive documents in his custody or
control or to state that he has no such responsive documents in his possession, custody, or
control.
Request for Production 24:
This request seeks “all documents relating to communications with any person contacting
you to assist in the resolution of any legal claims.” 	(Doc. 124-3, p. 11). 	Defendants object on
grounds of attorney-client privilege, ambiguity, vagueness, overbreadth, and lack of a time
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limitation. Id. Subject to these objections, McCoy states that he does not believe that he possesses
any responsive documents as he understands the request. Id.
The communications themselves are likely to be privileged insofar as either defendant was
acting as a representative of Nunez & Associates at the time. 	See “Request for Production 9,”
supra. Documents relating to the communications, however, would not necessarily be protected
by 	the 	privilege. 	Id. 	As 	to 	ambiguity, 	vagueness, 	and 	overbreadth, 	the 	category 	of
“communications with any person contacting you to assist in the resolution of any legal claims” is
a sufficiently specific category of documents to satisfy Brown Bear even in the presence of the
omnibus term “relating to.” 	Unlike “communications between you and any survivors of
accidents,” this category of documents is narrowed by the subject matter of the communications
at issue. Regarding the time limitation, the Court will again impose a 10-year limitation, but is
open to reconsidering the limitation if Hatfield can show that earlier responsive documents are
relevant.
Therefore, Defendants are directed to respond to Request for Production 24 with all
responsive documents dating to on or after June 7, 2012, except that they need not produce
the communications themselves where those communications were made to them in their
capacity as representatives of a lawyer or law firm. 	Any discovery withheld for privilege
must be described in a privilege log or similar document in accordance with Federal Rule of
Civil Procedure 26(b)(5)(ii). 	McCoy is directed to produce all such responsive documents
in his custody or control or to state that he has no such responsive documents in his
possession, custody, or control.
Request for Production 25:
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This request seeks “all contracts you have executed involving a legal claim.” (Doc. 124-
3, p. 11). Defendants object to the request as vague, ambiguous, unlimited in scope and time, and
potentially violative of attorney-client privilege. Id.
The Court does not find this request to be vague or ambiguous. The category of contracts
whose subject matter involves a legal claim and which were executed by Defendants is quite
specific. 	As for the attorney-client privilege, the fact of a lawyer-client relationship and the
arrangement for paying fees are generally not privileged. See “Request for Production 1,” supra.
To the extent that responsive documents contain other privileged information, Defendants are
directed to redact that information and note the redacted matter in a privilege log.
Again, the Court will impose a 10-year limitation on the requested discovery, but is open
to reconsidering the limitation on a showing that earlier relevant documents exist.
Therefore, Defendants are directed to respond to Request for Production 25 as to all
responsive contracts executed on or after June 7, 2012. Any discovery withheld for privilege
must be described in a privilege log or similar document in accordance with Federal Rule of
Civil Procedure 26(b)(5)(ii).
Request for Production 26:
This request seeks “all communications with any law firm.” 	(Doc. 124-3, p. 12).
Defendants object on grounds of attorney-client and work-product privilege and state that they are
withholding documents. Id.
The Court’s views of attorney-client and work-product privilege in this case are set forth
in greater detail under “Request for Production 9” and “Request for Production 15,” supra. 	As
relevant here, the Court does not believe that communications between Defendants and law firms
by which they were not employed fall under the attorney-client privilege unless Defendants were
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personally seeking legal assistance for themselves. See “Request for Production 15,” supra; see
also Sup. Ct. Standard 503. To the extent that such communications fall under the work-product
privilege but not the attorney-client privilege, the crime-fraud exception may apply. See “Request
for Production 15,” supra. Further analysis will require the Defendants to produce a privilege log,
which they have not yet done.
Therefore, Defendants are directed to respond to Request for Production 26 in full,
except that they are not required to produce communications in which they personally
sought legal assistance for themselves. 	Any discovery withheld for privilege must be
described in a privilege log or similar document in accordance with Federal Rule of Civil
Procedure 26(b)(5)(ii).
Request for Production 27:
This request seeks “all communications with any attorney.” 	(Doc. 124-3, p. 12).
Defendants object on grounds of attorney-client and work-product privilege, overbreadth,
relevance, and lack of time limitations. Id. They state that they withhold documents. Id.
As with Request for Production 26, the Court finds that the requested communications are
not necessarily privileged unless they involved Defendants personally seeking legal assistance for
themselves. The Court does not believe the request is facially overbroad or irrelevant due to the
nature of the alleged conspiracy here, which involved illicit agreements with members of the legal
profession. Again, the Court imposes a 10-year time limitation, subject to change upon a showing
that earlier relevant documents exist.
Therefore, Defendants are directed to respond to Request for Production 27 as to all
communications taking place on or after June 7, 2012, except that they are not required to
produce communications in which they personally sought legal assistance for themselves.
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Any discovery withheld for privilege must be described in a privilege log or similar document
in accordance with Federal Rule of Civil Procedure 26(b)(5)(ii).
Request for Production 28:
This request is for “all communications with any funeral home.” 	(Doc. 124-3, p. 12).
Defendants object on grounds of overbreadth, with McCoy noting his longtime involvement with
the funeral home industry and the possibility of attorney-client communications being swept in.
Id. at 12–13. Similarly, Ornelas cites his ownership of funeral homes and involvement with related
trade associations as well as the possibility of attorney-client communications being swept in. Id.
at 37.
For the reasons stated under “Requests for Production 18–19,” supra, the Court does not
find Request for Production 28 to be overbroad. 	To the extent that the request for production
sweeps in attorney-client communications, the proper course of action is to withhold those
communications and note them in a privilege log or similar document.
Therefore, Defendants are directed to respond to Request for Production 28 in full.
Any discovery withheld for privilege must be described in a privilege log or similar document
in accordance with Federal Rule of Civil Procedure 26(b)(5)(ii).
Request for Production 29:
This request is for “all communications with any survivors of accidents.” (Doc. 124-3, p.
13). Defendants object to the request as unlimited in time, ambiguous, vague, potentially violative
of the attorney-client privilege, overly broad, and disproportionate to the needs of the case. 	Id.
Subject to these objections, Ornelas represents that he does not believe he possesses responsive
documents. Id. at 38.
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For the reasons discussed under “Requests for Production 20–21,” supra, this request is
overbroad as worded. Accordingly, Defendants will not be required to respond.
Request for Production 30:
This request is for “all communications with anyone having a product liability claim.”
(Doc. 124-3, p. 13). Defendants object to the request as vague, ambiguous, overbroad, potentially
violative of the attorney-client privilege, unlimited in time and scope, disproportional to the needs
of the case, and duplicative of Request for Production 23. Id. Subject to these objections, Ornelas
states that he does not believe he possesses responsive documents. Id. at 38.
Because Request for Production 30 falls within the scope of Request for Production 23, for
which production has been ordered, the Court will not require a separate response to Request for
Production 30.
Request for Production 31:
This request seeks “all communications with anyone having a wrongful death claim.”
(Doc. 124-3, p. 14). 	Defendants object to the request as unlimited in time, vague, ambiguous,
overbroad, disproportionate to the needs of the case, unlimited in scope, and potentially violative
of the attorney-client privilege. Id. Subject to the objection, Ornelas states that he does not believe
he possesses responsive documents. Id. at 39.
If Defendants were acting as representatives of a law firm during the communication and
the communications were for the purpose of facilitating the rendition of professional legal services
to the client, the Court agrees that the communication would be privileged under Standard 503.
See “Request for Production 15,” supra. Otherwise, it is potentially discoverable. Again, the Court
will impose a 10-year time limitation in the absence of a showing that earlier communications are
relevant.
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Therefore, Defendants are directed to respond to Request for Production 31 as to all
responsive communications taking place on or after June 7, 2012, except insofar as
Defendants were acting as representatives of a law firm during the communication and the
communication was for the purpose of facilitating the rendition of legal services to the client.
All documents withheld for privilege must be described in a privilege log or similar document
in accordance with Federal Rule of Civil Procedure 26(b)(5)(ii). 	Ornelas is directed to
produce all such responsive documents in his custody or control or to state that he has no
such responsive documents in his possession, custody, or control.
Requests for Production 32-33:
These requests seek “all communications with any surviving family member of Ana Delia
Mejia Flores or Flor Maribel Recinos Valle” and “all documents and communications with any
surviving family member of Ana Delia Mejia Flores or Flor Maribel Recinos Valle,” respectively.
(Doc. 124-3, p. 14). Defendants object to the requests as violative of attorney-client privilege and
duplicative of each other. Id. Subject to those objections, Defendants represent that they do not
possess responsive documents. Id.
As stated above, insofar as Defendants were acting as representatives of a law firm during
the communication and the communications were for the purpose of facilitating the rendition of
professional legal services to the client, the Court agrees that the communication would be
privileged under Standard 503. Otherwise, it is potentially discoverable.
Therefore, Defendants are directed to respond to Request for Production 31 in full,
except insofar as Defendants were acting as representatives of a law firm during the
communication and the communication was for the purpose of facilitating the rendition of
legal services to the client. 	All documents withheld for privilege must be described in a
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privilege log or similar document in accordance with Federal Rule of Civil Procedure
26(b)(5)(ii). Defendants are directed to produce all responsive documents in their custody
or control or to state that they have no such responsive documents in their possession,
custody, or control.
Requests for Production 34–37:
This request seeks “all documents and correspondence with Steven Kherkher,” “with
Kherkher Garcia, LLP,” “with Tony Pirani,” and “with Pirani Law PA,” respectively. (Doc. 124-
3, pp. 15–16). 	Defendants object to the requests as unlimited in time and seeking documents
protected by the work-product doctrine and the attorney-client privilege. 	Id. 	Subject to those
objections, Defendants state that they do not believe they possess responsive documents. Id.
As previously discussed, the Court believes that an extended time period is appropriate to
show the continuity of the alleged enterprise, and will therefore impose a 10-year time period,
subject to extension on a showing that earlier responsive documents exist and are relevant.
As detailed under “Request for Production 15,” supra, the Court does not believe that
communications with law firms for which Defendants were not acting as representatives is
protected by the attorney-client privilege under Standard 503. The applicability of work-product
privilege in light of the crime-fraud exception will need to be determined once a privilege log is
produced.
Therefore, Defendants are directed to respond to Requests for Production 34–37 with
all responsive documents dating to on or after July 7, 2012. 	Any discovery withheld for
privilege must be described in a privilege log or similar document in accordance with Federal
Rule of Civil Procedure 26(b)(5)(ii). 	Defendants are directed to produce all such responsive
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documents in their custody or control or to state that they have no such responsive
documents in their possession, custody, or control.
Request for Production 38:
This request seeks “all documents and correspondence with Cesar Ornelas” from McCoy
and “all documents and correspondence with Mike McCoy” from Ornelas. (Doc. 124-3, pp. 16,
41.) Defendants object that the request is overbroad and unduly burdensome given the unlimited
time and scope, especially since they have a longstanding personal relationship outside of business
matters. Id.
For the reasons described under “Requests for Production 18–19,” supra, the Court finds
the overbreadth and undue burden objections insufficient. Defendants have failed to objectively
quantify their burden or to show why communications between alleged coconspirators are not
broadly relevant. However, in the interest of economy, the Court will limit discovery to a 10-year
period unless and until Hatfield can show that earlier responsive documents are relevant.
Therefore, Defendants are directed to respond to Request for Production 38 with all
responsive material dating to on or after July 7, 2012.
Requests for Production 42–47:
These requests seek “all documents and correspondence with Arturo Nunez,” “with Kevin
Haynes of Kherkher Garcia, LLP,” “with Jesus Garcia of Kherkher Garcia, LLP,” “with Alfredo
Nunez,” “with Nunez & Associates,” and “with any person of Nunez Law Firm,” respectively.
(Doc. 124-3, pp. 17–19). 	Defendants object to all of the requests on grounds of attorney-client
and work-product privilege. Id. They object to Requests 43 and 44 (concerning Kevin Haynes
and Jesus Garcia, respectively) as unlimited in time and overly broad, but represent that they do
not believe they possess responsive documents to either request. Id. at 18. They object to Request
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45 (concerning Alfredo Nunez) as unlimited in scope and time, overly broad, disproportional, and
unduly burdensome and state that they are withholding documents. Id. They object to Request 46
(concerning Nunez & Associates) as unlimited in time and scope, overbroad, disproportional, and
vague as to “associated with,” and McCoy states that he is withholding documents. Id. at 19. They
object to Request 47 (concerning “any person of Nunez Law Firm”) as unlimited in time, vague
as to “associated with” (although the request for production does not contain the phrase “associated
with”), seeking documents not related to the complaint, unduly burdensome, and disproportionate
to the needs of the case. Id. They state that they are withholding documents. Id.
As to the claims of privilege, attorney-client privilege may apply to some responsive
documents under Requests for Production 42, 45, 46, and 47, and work-product privilege may
apply to all six of these requests. 	See “Request for Production 9” and “Request for Production
15,” supra. However, the Court cannot evaluate these objections in the absence of a privilege log
or similar document, and Defendants have produced no such document. 	See id. 	The Court
therefore lacks sufficient information to sustain a privilege objection at this juncture.
Requests 43 and 44 are not facially overbroad, and Defendants have not made a factual
showing of overbreadth. The Court will, again, impose a 10-year time limitation, which may be
extended on a showing that earlier responsive material is relevant.
Requests 45 and 46 are also not facially overbroad, and Defendants have made no factual
showing of overbreadth or undue burden as to either request. See “Requests for Production 18–
19,” supra. As for disproportionality, Defendants have not shown that communications with an
alleged coconspirator and its principal are not broadly relevant. Again, however, the Court will
impose the 10-year limitation subject to a showing that earlier material is relevant.
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Request 47 is not a model of clarity by any stretch of the imagination. 	The Court takes
Hatfield to mean, and will narrow the request to, “any employee or agent of Nunez Law Firm in
their capacity as such.” 	This clarification adequately addresses any vagueness concerns. 	The
Court does not find the clarified request to be facially overbroad, and Defendants have made no
factual showing of overbreadth or disproportionality. See “Requests for Production 18–19,” supra.
Finally, as clarified, the Court does not believe that Request 47 seeks documents not related to the
complaint. 	Again, Defendants have not shown that communications with the agents and
employees of an alleged coconspirator are not broadly relevant. The Court will impose a 10-year
time limit and may lengthen the limit on a showing that earlier material is relevant.
Therefore, Defendants are directed to respond to Request for Production 42 in full;
to respond to Requests for Production 43–46 with all responsive documents dating to on or
after June 7, 2012; and to respond to Request for Production 47 as to “any employee or agent
of Nunez Law Firm in their capacity as such” with all responsive documents dating to on or
after June 7, 2012. Any discovery withheld for privilege must be described in a privilege log
or similar document in accordance with Federal Rule of Civil Procedure 26(b)(5)(ii). 	As to
Requests for Production 43 and 44 and subject to the time limit, Defendants are directed to
produce all responsive documents in their custody or control or to state that they have no
responsive documents in their possession, custody, or control.
Requests for Production 50:
This request seeks “your tax returns for the past ten years.” (Doc. 124-3, p. 20). McCoy
objects to the request as disproportional and seeking confidential information to which Hatfield
has not shown prima facie entitlement. Id. McCoy states that he is withholding documents. Id.
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As discussed under “Request for Production 12,” supra, the discovery of tax returns
requires a dual showing of relevance and compelling need, which Hatfield has not made here.
Accordingly, Defendants are not required to respond to this request for production.
Request for Production 51:
This request seeks “all W-9 tax forms address [sic] to you, Nunez & Associates, or Group
of Legal Specialties in the past ten years.” (Doc. 124-3, p. 20). Defendants object to the request
as overbroad, not seeking relevant evidence, disproportional, and seeking confidential tax
information to which Hatfield has not demonstrated prima facie entitlement. Id.
Per the IRS, Form W-9 is used “to provide your correct Taxpayer Identification Number
(TIN) to the person who is required to file an information request with the IRS to report” certain
events, including income paid and real estate transactions. About Form W-9, Request for Taxpayer
Identification Number and Certification, IRS (March 27, 2023), https://www.irs.gov/forms-
pubs/about-form-W-9. While Hatfield argues that the information is relevant as that of RICO co-
conspirators, the Court does not believe that the taxpayer identification numbers of Defendants or
their associates are relevant to the present case. 	Accordingly, Defendants are not required to
respond to this request for production.
Request for Production 52:
This request seeks “all credit card statements for the past ten years.” (Doc. 124-3, p. 20).
Defendants object to the request as unlimited in scope, disproportionate to the needs of the case,
overly broad, unduly burdensome, failing to identify whose credit card statements are sought, and
seeking private information with no relevance to the case without Hatfield having shown prima
facie entitlement. 	Id. at 20–21. 	McCoy states that he is withholding documents. 	Id. at 21.
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Hatfield’s response appears to state that he contemplates “payments . . . made by personal or
company credit cards” “by McCoy or Ornelas.” (Doc. 124-1, p. 6).
The Court shares Defendants’ concerns about proportionality. As previously stated, this
action raises important issues and has a high dollar amount in controversy. However, it is unclear
that providing ten years of credit card records will give Hatfield access to significantly more
relevant information about Defendants’ financial dealings than he would glean from his other
Requests for Production. It is also unclear what contribution this information would make towards
resolving the issues at stake, again considering the extent of discovery already allowed. As it is
unclear how much, if any, benefit would inure from allowing this discovery, the burden of
producing ten years of information about the minutiae of Defendants’ day-to-day financial
dealings outweighs any benefit which the Court can see. The objection is sustained.
Request for Production 58:
This request seeks “all documents evidencing sums advanced by any attorney or non-
attorney to the surviving family members of Ana Delia Mejia Flores or Flor Maribel Recinos
Valle.” (Doc. 124-3, p. 23). Defendants object to the request as vague, ambiguous, and not limited
to the facts of this case, but represent that they do not believe they possess responsive documents.
Id.
The Court agrees that the statement is somewhat vague as worded, potentially sweeping in
payday loans received by the survivors. However, as narrowed by those documents which would
likely be in Defendants’ possession, custody, or control, the Court finds that the theoretical
vagueness or ambiguity of the request does not create an actual obstacle to Defendants’ production
of any responsive documents. The Court is also unclear as to how this discovery is unrelated to
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the facts of this case, whose central allegations involve the offering of illicit incentives to the very
family members named.
Therefore, Defendants are directed to respond to Request for Production 58 in full.
Defendants are directed to produce all responsive documents in their custody or control or
to state that they have no responsive documents in their possession, custody, or control.
Request for Production 61:
This request seeks “all documents itemizing all sums paid by you or which documents are
in your possession relating to payments made to Westfield Chapel funeral home.” (Doc. 124-3, p.
23). 	Both Defendants object that the request is unclear and unlimited in time and scope, but
McCoy states that he does not believe he possesses responsive documents. 	Id. at 24. 	In later
correspondence, counsel for Defendants represented that neither man believes that he possesses
responsive documents. (Doc. 124-1, p. 19).
The Court agrees that the request could have been worded more clearly, but understands
it to have two parts: (1) documents itemizing sums paid by Defendants to Westfield Chapel funeral
home, and (2) documents in Defendants’ possession relating to payments made (not necessarily
by Defendants) to Westfield Chapel funeral home. Given the nature of the alleged conspiracy, the
lack of scope is not facially problematic. Therefore, the request is proper as clarified, but the Court
will again impose a 10-year time limit in the absence of evidence that earlier responsive documents
are relevant.
Therefore, Defendants are directed to respond to Request for Production 61 as to
documents in the two identified above by the Court which date to on or after June 7, 2012.
As to the first category, Defendants are directed to produce all such responsive documents
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in their custody or control or to state that they have no such responsive documents in their
possession, custody, or control.
Request for Production 62:
This request seeks “all documents itemizing all incentive payments paid by you or which
documents are in your possession relating to additional payments to Westfield Chapel funeral
home representatives.” (Doc. 124-3, p. 24). Defendants object to the request as unlimited in time
and scope; undefined, vague, and ambiguous as to “incentive payments;” and unclear. Id. Subject
to the objections, McCoy represents that he does not believe he possesses responsive documents.
Id. 	In later correspondence, counsel for Defendants represented that neither man believes he
possesses responsive documents. (Doc. 124-1, p. 19).
Again, the Court takes it to be seeking two related categories of documents: (1) documents
itemizing incentive payments made by Defendants to representatives of Westfield Chapel, and (2)
documents in Defendants’ possession relating to additional payments (not necessarily by
Defendants) to representatives of Westfield Chapel. The Court shares Defendants’ confusion as
to the definition of “incentive payments” and will not attempt to guess at it for purposes of
clarifying the request. The second category of documents, which lacks this confusing language,
represents a proper request. Accordingly, the Court will allow the request only as to this second
category. The Court will also impose a 10-year time limit in the absence of evidence that earlier
responsive documents are relevant.
Therefore, Defendants are directed to respond to Request for Production 62 as to
documents in Defendants’ possession relating to payments to representatives of Westfield
Chapel which date to on or after June 7, 2012. 	Defendants are directed to produce all
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responsive documents in their custody or control or to state that they have no responsive
documents in their possession, custody, or control.
Request for Production 63:
This request seeks “all documents itemizing all incentive payments paid by you or which
documents are in your possession relating to non-funeral expense payments to Westfield Chapel
funeral home representatives, including but not limited to payment to use the facilities of Westfield
Chapel funeral home on November 25, 2020.” (Doc. 124-3, p. 24). Both defendants object that
the request is vague and ambiguous as to “incentive payments” and unclear as to “relating to non-
funeral expense payments,” but McCoy represents that he does not believe he possesses responsive
documents. 	Id. 	In later correspondence, counsel for Defendants represented that neither man
believes he possesses responsive documents. (Doc. 124-1, p. 19).
This is yet another inartfully-worded request, and the Court’s confusion as to the definition
of “incentive payments” remains. The portion of the request dealing with “documents . . . in your
possession 	relating 	to 	non-funeral 	expense 	payments 	to 	Westfield 	Chapel 	funeral 	home
representatives, including but not limited to payment to use the facilities of Westfield Chapel
funeral home on November 25, 2020,” however, is clear. 	“Relating to non-funeral expense
payments” means relating to payments which are not funeral expenses. With this understanding,
the latter half of the original request is not objectionable.
Therefore, Defendants are directed to produce for inspection and copying all
documents in their possession relating to non-funeral expense payments to Westfield Chapel
funeral home representatives, including but not limited to payment to use the facilities of
Westfield Chapel funeral home on November 25, 2020. Defendants are directed to produce
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all responsive documents in their custody or control or to state that they have no responsive
documents in their possession, custody, or control.
Request for Production 64:
As to McCoy, this request seeks “all documents and correspondence relating to or
referencing Hatfield’s attorney lien.” (Doc. 124-3, p. 24). McCoy objects on grounds of attorney-
client privilege and work-product doctrine as to materials possessed by counsel of record, but
McCoy states that he does not believe he possesses any responsive non-privileged documents. Id.
at 25.
As to Ornelas, this appears to be a compound request: “Produce for inspection and copying
all documents or correspondence relating to or referencing Hatfield’s attorney lien. Produce for
inspection and copying all business registration documents for any entity for which you have done
business in the past ten years.” (Doc. 124-3, p. 49). Ornelas objected to the request as compound,
confusing, potentially violative of the attorney-client privilege, and overbroad. Id.
The Court has addressed the issues of attorney-client and work-product privilege in this
matter under “Request for Production 9” and “Request for Production 15,” supra. 	Pursuant to
Supreme Court Standard 503, the Court will not require Defendants to produce communications
with their personally-retained attorneys. 	Other documents and correspondence, however, must
either be produced or noted in a privilege log.
As to the second portion of the request to Ornelas, the “compound” objection is not
cognizable as there is no limit on the number of requests for production that the parties may file in
this matter. See Doc. 96, p. 2 (“The Court will not limit the number of requests for production of
documents under Rule 34 of the Federal Rules of Civil Procedure.”) The Court also does not find
this portion of the request to be confusing on its own.
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Therefore, Defendants are directed to respond to Request for Production 64 in full.
IV. 	Specific Interrogatories – Nunez & Associates
Interrogatory 1: “Identify all persons employed by Nunez & Associates.”
Nunez objects to this interrogatory as unlimited in scope and time, but states that current
employees include Cesar Ornelas and Cesar Gamboa. (Doc. 124-3, p. 51). Hatfield’s response to
the objection indicates that the relevant time is “for the existence of Nunez & Associates, which,
on information and belief, has not been a long time.” (Doc. 124-1, p. 8). Counsel for Defendant
characterizes this as Hatfield attempting to change the interrogatory. (Doc. 124-1, p. 20).
The Court notes the tension between Defendant’s objection that the request is “unlimited
in time” and its later objection to Hatfield’s proposed lack of a time limit as attempting to change
the interrogatory. While “employed” can be read to refer to either all employees historically or
only present employees, it appears that the parties both initially took the interrogatory to refer to
all employees historically, so the Court will follow their lead and assume that this reading is the
correct one. As discussed in Section III, supra, a long time period is appropriate, but the Court
will cap the time period at 10 years unless Hatfield can show that the names of earlier employees
are relevant.
Therefore, Defendant is directed to respond to Interrogatory 1 with the names of all
persons employed by Nunez & Associates on or after June 7, 2012.
Interrogatory 2: “Identify all persons affiliated with Nunez & Associates.”
Nunez objects that this interrogatory is vague, ambiguous, unclear as to meaning or scope,
unlimited as to time, and overbroad. (Doc. 124-3, pp. 51–52). Subject to this objection, Nunez
states that Alfredo Nunez is a principal and that McCoy and Ornelas have “performed work.” Id.
at 52. 	As with Interrogatory 1, Hatfield’s response indicates that the relevant time is “for the
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existence of Nunez & Associates.” 	(Doc. 124-1, p. 8). 	Hatfield also appears to clarify that
“persons affiliated with” means “independent contractors of.” Id.
As written, the Court agrees that the interrogatory is objectionable, but the Court believes
that Hatfield’s characterization of “all independent contractors of Nunez & Associates” represents
a proper narrowing. This resolves the Court’s concerns about vagueness, ambiguity, and clarity.
The Court does not find the request to be overbroad, as Nunez & Associates is a named defendant
and two of its apparent contractors are also named defendants, indicating that Nunez & Associates
may have carried out its actions in the conspiracy through other contractors as well. Finally, the
Court will again impose a 10-year time limit pending a showing that the names of earlier
independent contractors are relevant.
Therefore, Defendant is directed to respond to Interrogatory 2 with the names of all
independent contractors employed by Nunez & Associates on or after June 7, 2012.
Interrogatory 3: “Identify all persons or entities receiving any payment from Nunez
& Associates.”
Nunez 	objects 	for 	vagueness, 	ambiguity, 	lack 	of 	time 	or 	scope 	limitations, 	and
disproportional to the needs of the case. (Doc. 124-3, p. 52). Subject to the objection, Nunez says
that Alfredo Nunez, McCoy, Cesar Gamboa, and Ornelas have received payment. Id. As with the
previous two interrogatories, Hatfield’s response to the objections states a time period “for the
existence of Nunez & Associates.” (Doc. 124-1, p. 8).
The Court does not find this request to be vague or ambiguous, as its terms are clear. The
Court will again impose a 10-year time limitation, but is open to extending it if Hatfield can show
that earlier information is relevant to his claims.
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The Court also does not find that the interrogatory is disproportionate to the needs of the
case. 	As stated above, this is an action which addresses important issues and has a high dollar
amount in controversy. While Hatfield may be able to obtain some of this information requested
in this interrogatory through bank records, any payments made by credit card or in cash would not
show up in these records. The movement of money between members of a criminal enterprise is
relevant to show the composition and activity of the enterprise. Finally, because the interrogatory
requests only names of entities receiving payment and not documentary corroboration or other
details, the benefit of the discovery in determining potential targets of or participants in the
conspiracy outweighs the burden of naming those entities which received payment from Nunez &
Associates. Accordingly, the proportionality objection fails. For similar reasons, the lack of scope
limitations is not objectionable because the naming of all relevant entities does not appear to pose
a significant burden, and Defendant has not objectively quantified any such burden.
Therefore, Defendant is directed to respond to Interrogatory 3 as to all persons or
entities receiving any payment from Nunez & Associates on or after June 7, 2012.
Interrogatory 4: “Identify all authorized persons of Nunez & Associates.”
Nunez objects for vagueness, ambiguity, unclear meaning or scope, lack of time
limitations, overbreadth, and disproportionality. 	(Doc. 124-3, p. 52). 	Subject to the objection,
Nunez answered: “Alfredo Nunez. Depending on the issue, Mike McCoy and Cesar Ornelas may
also be authorized to act.” 	Id. 	Hatfield’s response to the objection indicates that “authorized
person” means “agent.” 	(Doc. 124-1, p. 9). 	Again, Hatfield sets the time period as “for the
existence of Nunez & Associates.” 	Id. 	Defendants maintain that their original response is
sufficient. (Doc. 124-1, p. 20).
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The Court agrees with Defendant’s apparent reading of “authorized person of” as “person
authorized to act on behalf of.” 	The Court shares Defendant’s concerns about overbreadth and
will instead narrow it in accordance with Hatfield’s apparent definition of “authorized person” as
“agent.” 	As clarified, this interrogatory is not overbroad or disproportional because Nunez &
Associates, as a corporation, can only act through individuals. Therefore, it is important to know
whose actions are legally cognizable as Nunez and Associates’ actions. The Court will once again
impose a 10-year time limitation unless Hatfield can prove that the identities of earlier agents are
relevant.
Therefore, Defendant is directed to respond to Interrogatory 4 with the identities of
all persons or entities who were agents of Nunez & Associates on or after June 7, 2012.
Interrogatory 6: “Identify all law firms with which you have a fee or compensation
agreement.”
Nunez objects to this interrogatory as unlimited in time and scope and disproportional to
the needs of the case. (Doc. 124-3, p. 53). Subject to the objection and “as applicable to the needs
of the case,” Nunez names “Kherkher Garcia, LLP and Pirani Law.” Id.
This interrogatory is not disproportional or overly broad in scope: the allegations here
involve fee and compensation agreements between Nunez & Associates and other law firms as a
central part of the alleged conspiracy, and Hatfield is entitled to determine the scope of that
conspiracy. However, the Court will again limit the time period to 10 years unless Hatfield can
prove the relevance of the identities of firms with earlier agreements.
Therefore, Defendant is directed to respond to Interrogatory 6 with the names of all
law firms with which it entered into a fee or compensation agreement on or after June 7,
2012.
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Interrogatory 7: “Identify all states in which Nunez & Associates conducts
business.”
Nunez objects to this interrogatory as lacking time restrictions and unclear as to “conducts
business.” 	(Doc. 124-3, p. 53). 	The Court does not find that “conducts business” is unclear,
especially as the interrogatory will be answered by a business which presumably knows what its
business is. The Court will, however, impose a 10-year time limit unless Hatfield can show that
earlier activities are relevant.
Therefore, Defendant is directed to respond to Interrogatory 7 with all states in which
Nunez & Associates conducted business on or after June 7, 2012.
Interrogatory 9: “Identify all banking account institutions in the past 10 years with
which you have conducted banking operations.”
Nunez objects to this interrogatory as disproportional to the needs of the case, vague and
ambiguous as to “banking operations,” unlimited in geographic scope, and seeking information
beyond the needs of the case and the scope of Rule 26. (Doc. 124-3, p. 53). Nunez also states that
Hatfield has not shown prima facie entitlement to such financial data. Id.
As detailed under “Request for Production 12,” supra, there is no expectation of privacy
in bank records, which appear to be Hatfield’s ultimate target. See Doc. 124-1, p. 10. Nor does
there appear to be a proportionality problem, as this interrogatory asks only for the names of
banking institutions, which in turn are likely to yield relevant information once the ultimate records
are produced. See “Request for Production 12,” supra. Accordingly, the benefit of this discovery
outweighs the burden on Defendant of producing the names of its banking institutions. Finally,
the Court does not find that “conducts banking operations” is vague or ambiguous.
Therefore, Defendant is directed to respond to Interrogatory 9 in full.
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IT IS THEREFORE ORDERED that Hatfield’s Motion to Compel (Doc. 124) is
GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED this 11th day of May, 2023.
/s/P. K. Holmes ,
ΙΙΙ
P.K. HOLMES, III
U.S. DISTRICT JUDGE
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