United States District Court, W.D. North Carolina, Charlotte Division
CARGILL, INCORPORATED, and CARGILL MEAT SOLUTIONS CORPORATION, Plaintiffs,
WDS, INC., JENNIFER MAIER, and BRIAN EWERT, Defendants.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiffs' Motion to
Compel Post-Judgment Discovery against WDS (the “Motion
to Compel”) (Doc. No. 367) and the Court's Order,
entered April 11, 2018 (Doc. No. 372), requiring Plaintiffs
and Defendant WDS, Inc. (“WDS”) to meet and
confer and tender a proposed order to the Court regarding
Plaintiffs' Motion to Compel.
and WDS have conferred and have agreed to the provisions set
forth under subheading I. The Court addresses the remaining
disputed matters under subheading II and III.
agreed to by the Parties, on or before April 27, 2018, WDS,
shall complete its production to Plaintiffs of all documents
and information responsive to Plaintiffs' outstanding
post-judgment requests for production, including, without
limitation, all 1099s and W-2s referenced in Defendant WDS,
Inc.'s Response to Plaintiffs' Motion to Compel (Doc.
No. 370) and all hard copy bank statements. In addition, on
or before June 1, 2018, WDS will make all boxes of hard copy
documents stored at Morningstar Storage in Lake Wylie, South
Carolina, available for Plaintiffs to inspect and copy.
further Order of the Court, except in response to lawful
execution proceedings, including the Writ of Execution issued
in this matter (Doc. No. 335), WDS is enjoined from selling,
transferring, or otherwise disposing of its assets without
Plaintiffs' prior written consent. To the extent that it
has not already done so, WDS shall by April 27, 2018 inform
Plaintiffs of the location of all WDS's tangible assets.
will produce by May 4, 2018 non-privileged emails (including
any email between entities on different sides of a
transaction, such as WDS and DLP) and non-privileged
documents in the possession of its counsel, dated from
January 1, 2016 to the present, that relate to the transfer,
sale, or value of WDS's assets, including but not limited
to, transfers to any entity owned in whole or in part or
controlled by Brian Ewert. Counsel shall provide a privilege log
(“Privilege Log”) for: (1) any document that is
related to the sale, transfer or value of WDS's assets;
(2) withheld on the basis of privilege; and (3) dated after
December 16, 2016, the date the instant action was filed. The
Privilege Log shall include details of the withheld document
not limited to from, to, cc, bcc, author, file name, subject,
date sent, date created, date last modified, and basis for
claim of privilege, and may be provided two weeks after the
production of documents.
proposal to require Plaintiffs to review WDS's emails for
purposes of evaluating WDS's privilege is overruled. WDS
has not moved for a protective order and has not shown any
grounds justifying shifting the burden of reviewing the
emails, identifying responsive emails, and asserting
privileges to the party requesting discovery. See
Fed.R.Civ.P. 26(c)(1); see generally N.L.R.B. v.
Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011)
(“A party asserting privilege has the burden of
demonstrating its applicability.”). By limiting this
request for production to emails dated after January 1, 2016,
Plaintiffs have tailored their request of production to
matters relevant to post-judgment proceedings. Evidence at
trial supports the relevance of these post-January 1, 2016
transfers of WDS's assets to post-judgment proceedings.
Further, given counsel's representation of WDS in this
litigation and prior to this litigation and the relevance of
the requested documents to the trial, the Court finds the
deadline for production of May 4, 2018 to be reasonable and
Motion to Compel and First Set of Post Judgment
Interrogatories to WDS, Inc. (the
“Interrogatories”) indicate that Plaintiffs
sought discovery under Federal Rules of Civil Procedure 26,
33, and 69 and accordingly move to compel answers to the
post-judgment interrogatories under Rule 37(a) of the Federal
Rules of Civil Procedure. (Doc. Nos. 367, 367-3). Although
Plaintiffs may obtain discovery “[i]n aid of the
judgment or execution . . . as provided . . . by the
procedure of the state where [this Court] is located[,
]” Fed.R.Civ.P. 69(a)(2), Plaintiffs have not shown
this Court that it sought discovery under state procedure,
see N.C. Gen. Stat. § 1-352, et.
seq. Therefore, at this time, the Court only
considers Plaintiffs' request for a motion to compel
under the Federal Rules of Civil Procedure.
hearing on April 11, 2018 and in the parties' proposed
order, WDS's counsel represented that Counsel for WDS in
good faith attempted but did not obtain a sworn verification
of WDS's answers to the Interrogatories. Counsel for WDS
represents that it requested verification from Jennifer
Maier, Brian Ewert, and Ramey Millett, but all have refused.
Although this Court is aware that there is an ongoing federal
criminal investigation, the mere refusal of Maier, Ewert, and
Millet to answer and sign does not excuse the corporation WDS
from answering and signing its answers to Plaintiffs'
Interrogatories in accordance with Fed.R.Civ.P. 33(b).
“[S]ervice of the interrogatories oblig[ates] the
corporation to ‘appoint an agent who could, without
fear of self-incrimination, furnish such requested
information as was available to the corporation.'”
United States v. Kordel, 397 U.S. 1, 8 (1970)
(citations omitted). A corporation's answer may be
answered and signed by any officer or agent of the
corporation. Fed.R.Civ.P. 33(b)(1)(B), (b)(5). WDS's
counsel has not declared or demonstrated that Maier, Ewert,
and Millet have asserted their Fifth Amendment privilege
against self-incrimination or ...