Wood v. U.S. Bank National Association ( 2021 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
CHARLES DAVID WOOD, JR., and DNIC )
INSURANCE HOLDINGS, INC., individually and )
derivatively on behalf of LONESTAR HOLDCO, )
LLC; and FREESTONE INSURANCE COMPANY )
IN LIQUIDATION, through its Receiver, )
)
Plaintiffs, )
)
v. ) C.A. No. 2017-0034-JTL
)
U.S. BANK NATIONAL ASSOCIATION, U.S. )
BANK TRUST NATIONAL ASSOCIATION, )
ALEXANDER BURNS, SOUTHPORT LANE )
MANAGEMENT, LLC, SOUTHPORT LANE, )
L.P., SOUTHPORT LANE ADVISORS, LLC, )
SOUTHPORT LANE SECURITIES, LLC, )
SOUTHPORT INTERMEDIARIES, LLC, )
SOUTHPORT RE, LLC, SOUTHPORT LANE )
GENESIS L.P., SOUTHPORT INSURANCE )
HOLDINGS, LLC, SOUTHPORT SPECIALTY )
FINANCE, LLC, SOUTHPORT ASSET )
FINANCE, LLC, SOUTHPORT EQUITY I, LLC, )
THE DALMORE GROUP, LLC, DALMORE )
FINANCIAL, LLC, ADMINISTRATIVE )
AGENCY SERVICES, LLC, HEARTLAND )
FAMILY GROUP, LLC, GLENN WEBER, )
DARREN FORTUNATO, and JOEL PLASCO, )
)
Defendants, )
)
and )
)
LONESTAR HOLDCO, LLC, )
)
Nominal Defendant. )
OPINION
Date Submitted: January 13, 2021
Date Decided: February 4, 2021
Michael W. Teichman, Elio Battista, Jr., Judy M. Jones, PARKOWSKI, GUERKE &
SWAYZE, P.A., Wilmington, Delaware; Eric P. Haas, GARDNER HAAS PLLC, Dallas,
Texas; Attorneys for Plaintiffs.
Paul D. Brown, CHIPMAN BROWN CICERO & COLE, LLP, Wilmington Delaware;
William B. Kerr, KERR, LLP, New York, New York; Attorneys for Defendants Alexander
Burns and Heartland Family Group, LLC.
LASTER, V.C.
Through Heartland Family Group, LLC, Alexander Burns controlled Southport
Lane, L.P., and its affiliates (the “Southport Entities”). Using Lonestar Holdco LLC, the
Southport Entities acquired two companies: Redwood Reinsurance SPC, Ltd., and
Freestone Insurance Company.
The plaintiffs contend that beginning in 2013, Burns and Heartland orchestrated a
series of interested transactions through which they caused the Southport Entities to
exchange valuable assets held by Freestone and Redwood for less valuable or valueless
ownership interests in other entities that Burns and Heartland controlled, such the Destra
Targeted Income Unit Investment Trusts (the “Challenged Transactions”). The plaintiffs
maintain that the Challenged Transactions eventually rendered Redwood and Freestone
insolvent. Through this action, the plaintiffs seek to recover damages from Burns,
Heartland, and the other defendants.
In December 2019, the plaintiffs served requests for production of documents on
Burns and Heartland. In January 2020, Burns and Heartland served responses. As to every
request, they invoked “their rights and privileges under the United States Constitution,
including the Fifth Amendment.”
In February 2020, plaintiffs provided authorities demonstrating that the objection
was not well taken and sought to confer on a path forward. In June, July, August, and
September, Burns and Heartland promised to amend their responses and produce
documents. Those promises proved empty.
Meanwhile, in July 2020, the plaintiffs served interrogatories and requests for
admissions on Burns and Heartland. In September, Burns and Heartland promised to
respond in October. That promise also proved empty.
On October 23, 2020, plaintiffs moved to compel the production of documents and
responses to interrogatories. Prompted by that motion, Burns and Heartland served
amended responses to the document requests. In December, Burns and Heartland claimed
they had not refused to produce documents and had asserted more limited objections. Their
responses do not bear that out.
Burns and Heartland still have not responded to the interrogatories or requests for
admissions. They claim to have prepared responses, but moved for a retroactive extension
in the time to respond so that Burns and Heartland would not (i) have waived their
objections to the interrogatories by failing to serve responses for over seven months and
(ii) be deemed to have admitted the subjects addressed in the requests for admissions by
failing to provide timely responses. Forwarding counsel claims that any delays were due
to his difficulties practicing during the COVID-19 pandemic. Delaware counsel has
remained silent.
Fact discovery closes on February 26, 2021. At this point, Burns and Heartland have
almost run out the clock. This decision grants the plaintiffs’ motion to compel and denies
the motion for a retroactive extension.
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I. THE SELF-INCRIMINATION CLAUSE
The principal issue in dispute is Burns and Heartland’s reliance on the Fifth
Amendment. This court’s decisions do not shed light on how to apply the Fifth Amendment
to requests for production of documents in a civil case.
The Self-Incrimination Clause in the Fifth Amendment guarantees that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend V. “The constitutional privilege against self-incrimination is essentially a personal
one, applying only to natural individuals.” United States v. White, 322 U.S. 694, 698
(1944). “[A]rtificial entities are not protected by the Fifth Amendment.” Braswell v. United
States, 487 U.S. 99, 102 (1988).
Just as an artificial entity may not invoke the Self-Incrimination Clause, a “long line
of cases has established that an individual cannot rely upon the [clause] to avoid producing
the records of a collective entity which are in his possession in a representative capacity,
even if these records might incriminate him personally.” Bellis v. United States, 417 U.S.
85, 88 (1974). Known as the “collective entity doctrine,” this rule applies regardless of
whether the subpoena or request for production is directed to the entity or to the individual
in his capacity as a custodian of the entity’s records. See Braswell, 487 U.S. at 104, 108–
09. In either case, the individual “may not resist a subpoena . . . on Fifth Amendment
grounds.” Id. at 109. In other words, “[a]n individual cannot claim the Fifth Amendment
privilege with regard to business records, even if they are in his own possession.” Doe v.
Somerset, 2019 WL 3564175, at *3 (Del. Super. Aug. 2, 2019).
3
In this case, the plaintiffs’ requests for production of documents contained thirty-
seven requests directed to Burns and Heartland. In response to all but seven requests, Burns
and Heartland invoked the Fifth Amendment. As to the other seven requests, they
responded with one word: “None.”
In response to eight requests, Heartland claimed not to possess any documents, and
Burns refused to produce documents based the Self-Incrimination Clause. Those requests
were as follows:
• Request 15: “All documents and communications concerning the transfer,
movement, or flow of funds or securities into or out of the following [six identified]
U.S. Bank accounts between January 1, 2012 and April 30, 2014.”
• Request 18: “All documents concerning the formation, creation, issuance,
registration and/or authentication of any Destra investments, units, or securities.”
• Request 19: “All documents concerning the valuation, certification, reporting and/or
validity of any Destra investments, units, or securities.”
• Request 20: “All documents concerning the net asset value(s) of any Destra
investments, units, or securities.”
• Request 21: “All documents concerning the sale, transfer and/or exchange of any
Destra investments, units, or securities.”
• Request 22: “All documents concerning the identification, ownership and/or
valuation of any assets owned, directly or indirectly, by any Destra trust.”
• Request 28: “All communications between October 22, 2013 and April 30, 2014,
concerning the transfer, sale, exchange, or valuation of any assets owned,
controlled, or held by Freestone, Redwood, Lonestar, Destra, Constellation,
Imperial, Tower, or any of the Southport Entities.”
• Request 29: “Documents sufficient to identify each U.S. Bank account owned,
controlled, or managed by any of the Southport Entities, Dalmore, Destra,
Freestone, Redwood, Lonestar, White Rock, FSP Capital, Constellation, Alexander
Burns, Kevin Adler, Andrew Scherr, Robert McGraw, and/or Michael Morrow
between January 1, 2013 and April 30, 2014.”
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Dkt. 287 Ex. 3. These requests seek business records of Heartland to which the Self-
Incrimination Clause does not apply. To the extent that Burns has responsive documents,
he holds them as a custodian of Heartland, not in his personal capacity. Burns’ invocation
of the Self-Incrimination Clause in response to these requests is thus overruled.
In response to another twenty-two of the requests, Burns and Heartland committed
to produce only those documents “not otherwise subject to Burns’ right to invoke the Fifth
Amendment of the United States Constitution.” See Dkt. 287 Ex. 3 ¶¶ 6–14, 16, 23–25, 27,
30–37. The tenor of these requests is similar to those listed above. The requests seek
business records of Heartland to which the Self-Incrimination Clause does not apply. To
the extent that Burns has responsive documents, he holds them as a custodian of Heartland,
not in his personal capacity. Here too, Burns’ invocation of the Self-Incrimination Clause
is overruled.
A. The Single-Person-Entity Exception
Burns argues that the collective entity doctrine does not apply in this case because
he is the sole member of Heartland. The idea that a single-person entity might not be subject
to the collective entity doctrine is traceable to United States v. Doe, 465 U.S. 605 (1984).
There, the Supreme Court of the United States held that “the owner of a sole proprietorship
acts in a personal rather than a representative capacity” when responding to a subpoena
and accordingly could invoke the Self-Incrimination Clause. Id. at 608. In Doe, however,
the sole proprietor operated his business through “an unincorporated sole proprietorship.”
Id. at 607 n.2 (emphasis added).
5
Four years later, the Supreme Court of the United States revisited Doe in a case
where the sole stockholder of a corporation invoked the Self-Incrimination Clause to
withhold corporate books and records. Braswell, 487 U.S. at 104. The Braswell decision
emphasized the distinction between an unincorporated sole proprietorship and an
individual acting on behalf of an incorporated entity:
Had petitioner conducted his business as a sole proprietorship, Doe would
require that he be provided the opportunity to show that his act of production
would entail testimonial self-incrimination. But petitioner has operated his
business through the corporate form, and we have long recognized that, for
purposes of the Fifth Amendment, corporations and other collective entities
are treated differently from individuals.
Id. In a footnote, the Court left “open the question whether the agency rationale supports
compelling a custodian to produce corporate records when the custodian is able to
establish, by showing for example that he is the sole employee and officer of the
corporation, that the jury would inevitably conclude that he produced the records.” Id. at
118 n.11.
Although the Supreme Court of the United States declined to address this issue in
Braswell, the overwhelming weight of federal decisions from the courts of appeals
recognizes that the collective entity doctrine applies with equal force to a single-person
entity. The United States Court of Appeals for the First Circuit has held that “the sole
shareholder of a one-man corporation has no ‘act of production privilege’ under the [F]ifth
[A]mendment to resist turnover of corporate documents.” In re Grand Jury Proceedings
(The John Doe Co., Inc.), 838 F.2d 624, 627 n.3 (1st Cir. 1988). The court explained that
the choice to incorporate brings with it “all the attendant benefits and responsibilities of
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being a corporation,” including the responsibility “to produce and authenticate records of
the corporation . . . .” Id. at 627. In another decision, the same court explained that
even assuming [the entity] to be a one-man corporation and [the custodian]
to be that one man, the corporate records are not shielded from production,
nor may [the custodian] resist a subpoena for those records on the ground
that the act of production would impermissibly infringe on his Fifth
Amendment right against self-incrimination.
United States v. Lawn Builders of New Eng. Inc., 856 F.2d 388, 394 (1st Cir. 1988); accord
Amato v. United States, 450 F.3d 46, 53 (1st Cir. 2006). Every other circuit court that has
considered this issue has reached the same conclusion.1
Burns and Heartland maintain that the collective-entity doctrine should not apply to
a single-member LLC, but that argument lacks force. The principal factor that courts use
when determining whether to apply the collective entity doctrine is whether the
organization is a juridical entity with separate legal existence.2 Case law discussing the
1
See In re Twelve Grand Jury Subpoenas, 908 F.3d 525, 527 (9th Cir. 2018)
(holding that sole shareholder or sole employee of corporation or LLC may not “invoke
the Fifth Amendment privilege against self-incrimination to resist producing those
collective entities’ documents” because “the size of the collective entity . . . [is] not
relevant”; “All of our sister circuits to consider this issue have reached the same
conclusion.”), cert. denied, 140 S. Ct. 289 (2019); accord In re Grand Jury Subpoena
Issued June 18, 2009, 593 F.3d 155, 158 (2d Cir. 2010); Grand Jury, 786 F.3d at 258;
United States v. Stone, 976 F.2d 909, 912 (4th Cir. 1992); In re Custodian of Recs. of
Variety Distrib., Inc., 927 F.2d 244, 247 (6th Cir. 1991); see also Bellis, 417 U.S. at 100(“[N]o privilege can be claimed by the custodian of corporate records, regardless of how
small the corporation may be.”).
2
See Bellis, 417 U.S. at 95 (examining whether the entity had an “established
institutional identity independent of its individual [constituents]”); see also Twelve Grand
Jury, 908 F.3d at 529 (drawing no distinction between “one-person corporations” and
“LLCs”).
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collective entity doctrine draws a line “between incorporated and unincorporated
persons.”3
The Delaware Uniform Limited Liability Act (the “LLC Act”) makes clear that an
LLC has a separate juridical existence distinct from its members. 6 Del. C. § 18-201(b).
The LLC Act also makes clear that an LLC need only have one member. See id. § 18-
101(8). “This means that the [LLC] has an existence recognized by law as distinct from
that of its members and others just as a corporation is recognized as having a legal existence
separate and apart from its stockholders.” Robert L. Symonds, Jr. & Matthew J. O’Toole,
Delaware Limited Liability Companies § 2.05, at 2-20 (2019). Burns and Heartland are
3
In re Grand Jury Empaneled on May 9, 2014, 786 F.3d 255, 259 (3d Cir. 2015)
(discussing Bellis, 417 U.S. at 90). Although the separate juridical status of the entity
prevents a document custodian from relying on the Self-Incrimination Clause, the absence
of separate juridical status does not mean that an individual can rely on the Self-
Incrimination Clause. The Supreme Court of the United States has held that when an
unincorporated organization is a collective entity with many members, then a document
custodian for that entity can be compelled to produce documents and cannot invoke the
Self-Incrimination Clause. See White, 322 U.S. at 701. The White decision framed the
overarching inquiry as follows:
The test . . . is whether one can fairly say under all the circumstances that a
particular type of organization has a character so impersonal in the scope of
its membership and activities that it cannot be said to embody or represent
the purely private or personal interests of its constituents, but rather to
embody their common or group interests only. If so, the privilege cannot be
invoked on behalf of the organization or its representatives in their official
capacity.
Id. at 701. In White, the Court held that “[l]abor unions—national or local, incorporated or
unincorporated—clearly meet that test.” Id.8
distinct for purposes of the Self-Incrimination Clause. The collective entity doctrine
therefore applies, notwithstanding the fact that Heartland is a single-person entity.
B. The Act-Of-Production Doctrine
Burns also invokes what is known as the act-of-production doctrine. This doctrine
recognizes that the Self-Incrimination Clause applies “when the accused is compelled to
make a Testimonial Communication that is incriminating.” Fisher v. United States, 425
U.S. 391, 408 (1976). The act of producing evidence can have a testimonial dimension if
that act “has communicative aspects of its own.” Id. at 410.
The Supreme Court of the United States has explained that the act-of-production
doctrine rarely applies when an individual produces documents on behalf of an entity:
[T]he Court has consistently recognized that the custodian of corporate or
entity records holds those documents in a representative rather than a
personal capacity. Artificial entities such as corporations may act only
through their agents, and a custodian’s assumption of his representative
capacity leads to certain obligations, including the duty to produce corporate
records on proper demand . . . . Under those circumstances, the custodian’s
act of production is not deemed a personal act, but rather an act of the
corporation. Any claim of Fifth Amendment privilege asserted by the agent
would be tantamount to a claim of privilege by the corporation—which of
course possesses no such privilege.
Braswell, 498 U.S. at 109–10 (citation omitted). “Since no artificial organization may
utilize the personal privilege against compulsory self-incrimination, . . . it follows that an
individual acting in his official capacity on behalf of the organization may likewise not
take advantage of his personal privilege.” Bellis, 417 U.S. at 90.
Under these precedents, Burns cannot invoke the act-of-production doctrine. The
requests seek business records and related documents. To the extent that Burns possesses
9
records, he holds them as a custodian of Heartland. He therefore may not take advantage
of his personal privilege against self-incrimination to avoid production.
In the unlikely event that Burns were to produce documents in his personal capacity,
his invocation of the Self-Incrimination Clause nevertheless would fail because he has not
made any attempt to show how the act of production could be incriminating. See Grand
Jury Subpoena, 973 F.2d at 51 (rejecting act-of-production argument because proponent
“failed to address” how the act of production would be testimonial and self-incriminating).
And based on the requests themselves, it is not apparent how Burns could make such a
showing. The requests do not seek any categories of documents that are inherently
incriminating; they seek documents relating to the Challenged Transactions. The parties
agree that the Challenged Transactions (whether or not proper) took place, and business
transactions almost always are documented in some form. The mere existence of
documents relating to the Challenged Transactions is not incriminating. Accordingly,
production could not be regarded as making any type of incriminating testimonial
statement or admission.
Burns also argues that the act of producing the records would provide some
testimonial indication as to their authenticity. But the Supreme Court of the United States
has held that a custodian can be compelled to testify as to the authenticity of corporate
records: “[A] corporate officer who has been required by subpoena to produce corporate
documents may also be required, by oral testimony, to identify them . . . .” Curcio v. United
States, 354 U.S. 118, 125 (1957). Such testimony is ancillary to the act of producing the
records. E.g., United States v. Austin-Bagley Corp., 31 F.2d 229, 234 (2d Cir. 1929)
10
(“[T]estimony auxiliary to the production is as unprivileged as are the documents
themselves.”), cert. denied, 279 U.S. 863 (1929). This decision has already held that the
Self-Incrimination Clause does not enable Burns to withhold the corporate documents that
the plaintiffs seek. Burns therefore could be compelled to authenticate those documents as
corporate records. It follows that any testimonial statement or admission resulting from the
production of those documents does not violate the Self-Incrimination Clause.
II. OTHER OBJECTIONS
In addition to relying on the Self-Incrimination Clause, Burns and Heartland raised
an assortment of general objections to producing documents. Those objections are
overruled.
When a party objects to providing discovery, “[t]he burden . . . is on the objecting
party to show why and in what way the information requested is privileged or otherwise
improperly requested.” Van de Walle v. Unimation, Inc., 1984 WL 8270, at *2 (Del. Ch.
Oct. 15, 1984). Generic and formulaic objections “are insufficient.” Id. (internal quotation
marks omitted). For an objecting party to carry its burden,
the objection must be specific, the party making it must explain why it applies
on the facts of the case to the request being made, and if the party is providing
information subject to the objection, the party must articulate how it is
applying the objection to limit the information it is providing.
In re Oxbow Carbon LLC Unitholder Litig., 2017 WL 959396, at *3 (Del. Ch. Mar. 13,
2017) (collecting authorities); accord Van de Walle, 1984 WL 8270, at *2 (“Objections
should be plain enough and specific enough so that the Court can understand in what way
[the discovery is] claimed to be objectionable.” (quoting 4A Moore’s Federal Practice §
11
33.27, at 33-164 to 33-167)). “[B]oilerplate, generalized objections are inadequate and
tantamount to not making any objection at all.” Oxbow, 2017 WL 959396, at *2 (internal
quotation marks omitted) (collecting authorities).
Burns and Heartland raised a series of broad, generic, and formulaic objections
which they invoked only to the extent that the objections might apply, without explaining
whether or how they in fact applied or to what extent Burns and Heartland were using them
to limit their responses. The general objections included the following:
• “Defendants object to the Definitions and the Instructions to the extent they impose
greater requirements than Delaware law or the Rules of the Court of Chancery.”
• “Defendants object to the Requests to the extent they seek discovery of material not
in the possession, custody or control of Defendants, or that is already in Plaintiffs’
possession, custody or control.”
• “Defendants object to each Request to the extent such Request is duplicative of other
Requests.”
• “Defendants object to the Requests to the extent they seek documents that are not
relevant to the subject matter involved in the pending action or otherwise not
proportional to the needs of the case.”
• “Defendants object to the Requests to the extent they are overly broad and unduly
burdensome, and in particular any Request that calls for the production of ‘all
documents’ and/or ‘all communications’ in a particular category.”
Dkt. 287 Ex. 3 (emphasis added). These objections serve only to obfuscate and confuse.
They are overruled.
Burns and Heartland also lodged a general objection to the phrase “relating to,”
contending that “such phrase is inherently overbroad and potentially encompasses an
enormous number of irrelevant or inadmissible materials, including documents,
communications, and materials that are protected by the attorney-client and work-product
12
privileges.” Dkt. 287 Ex. 3 ¶ G. Burns and Heartland supported this assertion by citing
Rule 26(b) and three decisions from federal district courts in other jurisdictions.
In this court, requests for documents “relating to” a particular topic are customary.
The term itself is not objectionable. A request might use this formulation in an overly broad
or unduly burdensome manner, but the objecting party must then respond by explaining its
objection with specificity and proposing a reasonable narrowing of the request. Burns and
Heartland did neither of these things. Their objection is therefore overruled.
Finally, Burns and Heartland object to the requests
[t]o the extent they seek disclosure of information protected by the attorney-
client privilege, the attorney work product doctrine or any other applicable
privilege or immunity, including Burn’s right to invoke the Fifth Amendment
of the United States Constitution.
Dkt. 287 Ex. 3 ¶ C. The reference to the unidentified possibility of some “other applicable
privilege or immunity” is non-specific and non-substantive. The balance of the objection
would have been acceptable if Burns and Heartland had provided a privilege log, but they
did not. At this point, their claims of privilege are waived. See Mechel Bluestone, Inc. v.
James C. Justice Cos., Inc., 2014 WL 7011195, at *5 (Del. Ch. Dec. 12, 2014).
III. THE INTERROGATORIES AND REQUESTS FOR ADMISSION
Burns and Heartland have waived any objections they might have to the
interrogatories and requests for admissions. Under Rule 33(b), any objections to
interrogatories are waived unless asserted within thirty days of service. Under Rule 36(a),
if a party fails to answer or object to a request for admission within thirty days of service,
13
then the request is deemed admitted. It is undisputed that Burns and Heartland did not raise
objections or provide responses within this timeframe.
Burns and Heartland have now moved to enlarge their time to respond retroactively,
claiming that their failure to respond was due to excusable neglect. “The Court may grant
a motion to extend the expired time for discovery if a movant shows its failure to complete
discovery was an act of excusable neglect.” Wood v. Brian Collison & Dep’t of Corr., 2014
WL 7149214, at *3 (Del. Super. Dec. 12, 2014). “Excusable neglect is that neglect which
might have been the act of a reasonably prudent person under the circumstances.” Battaglia
v. Wilm. Sav. Fund Soc., 379 A.2d 1132, 1135 n.4 (Del. 1977). A court may provide
additional time if the movant “demonstrates good cause, absent bad faith and undue
prejudice to the other parties.” Wood, 2014 WL 7149214, at *3.
To establish excusable neglect, Burns and Heartland submitted a declaration of
William B. Kerr, one of their attorneys. They did not offer any other declarations. The Kerr
Declaration blamed the failure to respond on difficulties Kerr encountered in managing his
practice during the COVID-19 pandemic. He averred that he could not respond to
discovery because he was working remotely and inadvertently overlooked the fact that
interrogatories and requests for admissions had been served. He also cited a backlog of
work and the reopening of courts in New York.
The court is sympathetic to the additional burdens of practicing law during the
COVID-19 pandemic. None of Kerr’s averments, however, support a finding of excusable
neglect. Each lawyer in this case, as well as the court, has been forced to deal with
unforeseen obstacles and difficulties. Kerr delayed providing responses for six months.
14
During this time, he repeatedly represented to plaintiffs’ counsel that he would provide
answers on various dates, only to fail to live up to his commitments.
Kerr also has not explained why Delaware counsel did not provide the responses.
“Even when forwarding counsel has been admitted pro hac vice and is taking a lead role
in the case, the Court of Chancery does not recognize the role of purely ‘local counsel.’”
James v. Nat’l Fin. LLC, 2014 WL 6845560, at *12 (Del. Ch. Dec. 5, 2014). “The
admission of an attorney pro hac vice shall not relieve the moving attorney from
responsibility to comply with any Rule or order of the Court.” Del. Ct. Ch. R. 170(b). “Our
rules make clear that the Delaware lawyer who appears in an action always remains
responsible to the Court for the case and its presentation.” State Line Ventures, LLC v. RBS
Citizens, N.A., 2009 WL 4723372, at *1 (Del. Ch. Dec. 2, 2009). Delaware counsel could
and should have assisted Kerr in keeping the case on track.
Given the amount of time that has passed, the plaintiffs would suffer unfair
prejudice if Burns and Heartland now were permitted to assert objections and withdraw
their deemed admissions. Discovery is about to close, and a number of depositions have
already occurred. The motion for a retroactive extension of time to respond to the
interrogatories and requests for admissions is denied.
IV. CONCLUSION
This decision overrules Burns and Heartland’s objections based on the Self-
Incrimination Clause and their general objections to the production of documents. Burns
and Heartland shall produce all documents responsive to the requests within fourteen days.
The requests for admissions are deemed admitted. Burns and Heartland shall answer the
15
interrogatories in full, within fourteen days, and shall not raise any objections. After
producing documents and answering the interrogatories, Burns shall appear for a second
deposition. Under Rule 37, plaintiffs are awarded the reasonable expenses that they have
incurred in obtaining this relief.
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