Berry v. Olson Associates P.C. et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JULIE BERRY,
Plaintiff,
v.
OLSON ASSOCIATES P.C. dba Olson
Shaner; NAR INC.; ROB KOLKMAN;
CONSTABLE KOLKMAN LLC; and JOHN
DOES 1-5,
Defendants.
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
DISCOVERY MOTION REGARDING
INITIAL DISCLOSURES
(DOC. NO. 44)
Case No. 2:24-cv-00705
District Judge Howard C. Nielson, Jr.
Magistrate Judge Daphne A. Oberg
Julie Berry brought this action against Olson Associates P.C., NAR Inc., Rob
Kolkman, and Constable Kolkman LLC, claiming violations of the Fair Debt Collection
Practices Act.1 Ms. Berry now moves to compel Mr. Kolkman and Constable Kolkman
LLC (the Constable Defendants) to identify certain witnesses and either (1) provide their
contact information, or (2) confirm the Constable Defendants’ counsel represents them,
and identify when the representation began.2 Ms. Berry contends the Constable
Defendants are required to provide this information as part of their Rule 26 initial
1 (See Compl., Doc. No. 2); 15 U.S.C. § 1692 et seq.
2 (Short Form Disc. Mot. (Mot.), Doc. No. 44.)
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disclosures. The Constable Defendants oppose the motion, arguing their initial
disclosures were adequate and they are not required to provide additional information.3
As explained below, Ms. Berry’s motion is granted in part and denied in part.
The Constable Defendants must provide the names and contact information of all
current or former agents and employees with relevant knowledge and must specify
which witnesses their counsel represents for purposes of discovery in this case. But
they need not provide other representation-related information.
BACKGROUND
In their Rule 26 initial disclosures, the Constable Defendants identified Ms. Berry,
Mr. Kolkman, and unspecified “agents and employees of Constable Kolkman, LLC” as
individuals likely to have discoverable information supporting the their claims and
defenses.4 They indicated the LLC’s agents and employees were “expected to testify
regarding the allegations in the Complaint, interactions and communications generally
with Plaintiff as related to the subject matter in the Complaint, and specifically, as
related to execution of the Writ of Execution, and Defendants’ defenses to the
allegations in the Complaint.”5 But they did not identify any specific agents or
employees. The disclosures also indicated the LLC’s agents and employees should be
3 (Defs. Rob Kolkman & Constable [K]olkman LLC’s Resp. to Pl.’s Mot. for Short Form
Disc. Order (Opp’n), Doc. No. 48.)
4 (Ex. 1 to Mot., Rule 26 Initial Discls. for Defs. Rob Kolkman and Constable Kolkman,
LLC (Initial Discls.) 2, Doc. No. 44-1.)
5 (Id.)
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contacted through the Constable Defendants’ counsel; no other contact information was
provided.6
Ms. Berry asserts the Constable Defendants refused to provide the identities or
contact information of witnesses during subsequent conferrals and refused to cooperate
in scheduling depositions of their agents and employees.7 According to Ms. Berry, the
Constable Defendants’ counsel insisted she could only contact those witnesses through
counsel, but also refused to specifically identify which witnesses they represent.8 Ms.
Berry contends this refusal has prevented her from investigating the case, interviewing
material witnesses, and serving subpoenas if needed.9
In response, the Constable Defendants assert they identified two witnesses their
counsel represents, in a letter to Ms. Berry’s counsel.10 They also note their counsel
asked Ms. Berry’s attorney to identify other individuals Ms. Berry wanted to depose, but
he failed to do so.11 The Constable Defendants contend their initial disclosures
6 (See id.)
7 (Mot. 2, Doc. No. 44.)
8 (Id. at 3.)
9 (Id. at 2.)
10 (See Opp’n 2, Doc. No. 48; Ex. 2 to Opp’n, Letter dated Sept. 10, 2025, Doc. No.
48-2.)
11 (See Opp’n 2, Doc. No. 48; Ex. 1 to Opp’n, Email Correspondence, Doc. No. 48-1.)
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adequately identified knowledgeable witnesses, and Ms. Berry is not entitled to
additional information regarding the dates or scope of representation.12
ANALYSIS
Under Rule 26(a)(1) of the Federal Rules of Civil Procedure, a party must,
“without awaiting a discovery request,” disclose “the name and, if known, the address
and telephone number of each individual likely to have discoverable information—along
with the subjects of that information—that the disclosing party may use to support its
claims or defenses, unless the use would be solely for impeachment.”13
The Constable Defendants’ generic reference to “agents and employees of
Constable Kolkman LLC,” without providing specific names, does not comply with this
rule. Categorical identification of unnamed “corporate representatives” is insufficient
under Rule 26(a)(1)(A)(i).14 As the court in Rogers v. Bank of America15 explained:
Defendant’s use of generic categories of unnamed individuals could apply
to many individuals within its company and does not advance the goal of
exchanging basic discoverable information about individuals likely to have
discoverable information Defendant may use to support its claims or
12 (Opp’n 3, Doc. No. 48.)
13 Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added).
14 See, e.g., Rogers v. Bank of Am., N.A., No. 13-1333, 2014 U.S. Dist. LEXIS 131541,
at *16–17 (D. Kan. Sept. 19, 2014) (unpublished) (“[I]nitial disclosures generically listing
custodian of records or corporate representatives [are] insufficient compliance with Rule
26(a)(1)(A)(i).”); Lyon v. Bankers Life & Cas. Co., No. 09-5070, 2011 U.S. Dist. LEXIS
4702, at *14–15 (D.S.D. Jan. 14, 2011) (unpublished) (“It is not a good faith response to
the obligation of a party under Rule 26(a)(1)(A)(i) to simply identify those ‘individuals’ as
corporate representatives, with no reference to the subject areas of their testimony, and
then to identify their generic address as the address of defense counsel.”).
15 2014 U.S. Dist. LEXIS 131541.
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defenses. It also impedes the goal of eliminating the need for serving and
responding 	to 	separate 	written 	discovery 	requests 	to 	obtain 	this
information.16
Accordingly, the Constable Defendants’ failure to provide the names of agents and
employees with knowledge rendered their initial disclosures inadequate.
The Constable Defendants’ failure to identify their own agents and employees
with discoverable information, as required under the federal rules, has impeded Ms.
Berry’s ability to conduct discovery in this case. The Constable Defendants cannot fault
Ms. Berry for failing to specify which individuals she wants to depose, where the
Constable Defendants have not identified witnesses with relevant knowledge. And the
fact that they later identified two witnesses as represented by their counsel in this case
fails to remedy the deficiencies in their initial disclosures. The letter identifying these
witnesses does not specify “the subjects of [their] information” as required under Rule
26(a)(1).17 Moreover, it is unclear whether there are other agents or employees who
the Constable Defendants intend to rely on to support their defenses.
For these reasons, the Constable Defendants must provide supplemental initial
disclosures specifically naming all agents and employees of the LLC with discoverable
information that they may use to support their claims or defenses. For each named
individual, they must also provide the subjects of the information, and either (1) known
contact information, or (2) a statement that the Constable Defendants’ counsel
16 Id. at *17.
17 Fed. R. Civ. P. 26(a)(1)(A)(i).
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represent the individual for purposes of discovery in this action. The Constable
Defendants’ counsel must cooperate in scheduling depositions of any witnesses they
represent.
Ms. Berry also asks the court to order the Constable Defendants to provide other
information regarding each witness (including title, role, and management authority)—to
allow her counsel to determine whether the witness is someone who must be contacted
through the LLC’s counsel under Utah Rules of Professional Conduct.18 But this
information is unnecessary, where the LLC’s counsel must state whether they represent
each witness for purposes of discovery in this matter, as set forth above. Additionally,
Ms. Berry asks for the date when representation began, but she cites no legal authority
supporting this request and does not explain why this information is needed. The court
finds no basis to require the Constable Defendants’ counsel to provide this information.
Finally, each side requests an award of attorney’s fees incurred in connection
with this motion. Rule 37(a)(5)(C) provides that if a motion to compel is granted in part
and denied in part, the court may “after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.”19 The court finds a reasonable apportionment in
18 (See Mot. 2, Doc. No. 44 (citing Utah R. Prof. Conduct 4.2).) Ms. Berry is referring to
the ethical requirement in Utah that lawyers generally cannot communicate directly with
persons known to be represented by counsel in the matter. See Utah R. Prof. Conduct
4.2. Certain employees are considered represented by an employer organization’s
counsel, even if not separately represented by that counsel. Utah R. Prof. Conduct
4.2(d)(1)–(2).
19 Fed. R. Civ. P. 37(a)(5)(C).
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this instance is for each party to bear its own expenses. Ms. Berry has only partially
prevailed, and each party’s position was substantially justified.
CONCLUSION
Ms. Berry’s discovery motion20 is granted in part and denied in part. Within
fourteen days, the Constable Defendants must provide supplemental initial disclosures
consistent with this order.
DATED this 5th day of November, 2025.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
20 (Doc. No. 44.)
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