United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on “Plaintiffs' Motion
to Compel Production of Responses to Plaintiffs' February
26 Post-Judgment Discovery against Ewert and his
Counsel” (Doc. No. 417). The parties have fully briefed
the Motion, and it is ripe for the Court's resolution.
summarized and undisputed by Defendant Brian Ewert, Cargill
served its first set of post-judgment interrogatories and
requests for production of documents on Ewert on February 26,
2018. Plaintiffs provided Ewert a thirty-day extension
resulting in a deadline to respond of April 9, 2018. Ewert
did not serve any objections and responses to Cargill's
requests for production of documents by the April 9 deadline.
Ewert responded on April 10, 2018 to the interrogatories but
only answered the questions in his individual capacity.
Plaintiffs' counsel notified Ewert's then counsel on
May 2, 2018 of its intent to move to compel production of
non-privileged documents from Ewert and his attorneys. (Doc.
No. 417-2, Maschka Decl. ¶ 6). Plaintiffs also discussed
these insufficiencies with Ewert's newly retained counsel
in May 2018. (Doc. No. 417-2, Maschka Decl. ¶¶
does not dispute the insufficiency of the production or the
interrogatories, but merely argues that Plaintiffs failed to
meaningfully “meet and confer” prior to filing
the Motion. (Doc. No. 420 at 2-3 (citing LCvR 7.1)).
Plaintiffs' summary of the facts and Plaintiffs'
counsel's attestation, however, show that the
requirements of Local Rule 7.1(b) have been met. Therefore,
Plaintiffs are entitled to an order pursuant to Federal Rule
of Civil Procedure 37, compelling complete responses to
Plaintiffs' outstanding discovery requests. Fed.R.Civ.P.
37(a)(4); Fed.R.Civ.P. 69(a)(2).
at this time, the Court declines to grant Plaintiffs'
request for the costs of filing this Motion against Ewert and
Tuggle Duggins, pursuant to Federal Rule of Civil Procedure
37(a)(5). (Doc. No. 417). If a motion to compel is granted,
Rule 37(a)(5) requires an award of “reasonable expenses
incurred in making the motion, including attorney's
fees.” The award may be against the party and/or
attorney advising the conduct. Fed.R.Civ.P. 37(a)(5). On the
current record, the Court cannot conclude whose conduct or
advice necessitated the Motion. Since the service of
discovery requests, Ewert has been represented by five
different firms. Two of those firms, with their respective
attorneys, have since withdrawn from their representation of
Ewert, and three of those firms first appeared in this action
after the service of discovery requests. Both counsel
requesting termination from representation and those
accepting representation have obligations under the Rules of
Professional Conduct, and all have obligations to disclose
information if “impliedly authorized in order to carry
out the representation” or necessary “to comply
with the Rules of Professional Conduct, the law or court
order[.]” N.C. R. Prof'l Conduct 1.6 (a), (b);
see also N.C. R. Prof'l Conduct 1.16(d), cmt. 1.
Therefore, at this time, the Court orders all counsel for
Ewert, former and current, to meet and confer to assess their
individual or collective responsibility for this Motion,
after which they shall meet and confer with counsel to
Plaintiffs. If the parties cannot reach an agreement and
tender a consent order on the payment of expenses pursuant to
Federal Rule Civil Procedure 37(a)(5), Plaintiffs may renew
their motion for reasonable expenses.
the Court GRANTS IN PART and DENIES IN PART
“Plaintiffs' Motion to Compel Production of
Responses to Plaintiffs' February 26 Post-Judgment
Discovery against Ewert and his Counsel” (Doc. No.
417). In accordance with the foregoing, it is hereby ORDERED:
Within a week of this Court's Order, Ewert shall provide
complete responses to Plaintiffs' interrogatories;
Within a week of this Court's order, Ewert shall produce
to Plaintiffs all documents in his custody, possession, or
control, or in the custody, possession, or control of his
agents, servant, employees, relatives, or any entity he owns
or otherwise controls, including but not limited to WDS,
Inc., Diverse Label Printing, LLC, ODDS, LLC, Resnex Mfg.,
Inc., DLP Holdings, LLC, Refrigerated Trucking &
Logistics, LLC, Jet Me Around, LLC, B-Pak Manufacturing
Solutions, LLC, RFS, Inc., the Brian C. Ewert Revocable
Trust, the Tessa R. Ewert Irrevocable Trust, the Torri B.
Ewert Irrevocable Trust, the Brian C. Ewert Irrevocable Trust
(together, along with any other entity that Ewert owns or
controls, or any other Trust for which Ewert, or entity
controlled or owned by Ewert, is a grantor, beneficiary, or
is otherwise affiliated with the Trust, the “Controlled
Entities”), responsive to Plaintiffs' document
requests, including but not limited to all documents, whether
in physical or electronic form, regarding:
a. The location and amount of any cash, currency or
crypto-currency held by Ewert or the Controlled Entities;
b. Any “Asset” (defined as any real or personal
property owned-whether in whole or in part-by Ewert or one of
the Controlled Entities or that has been owned-whether in
whole or in part-by Ewert or one of the Controlled Entities
since January 1, 2007) with a value of $1, 000 or greater;
c. Any ownership interest of any kind that Ewert or one of
the Controlled Entities hold with respect to any company,
firm, corporation, organization, or entity, whether foreign
d. Any conveyance, sale, or other transfer by Ewert or any of
the Controlled Entities of an Asset with a value in excess of
$10, 000 to any person or entity whatsoever, since January 1,
e. Assets currently in each of the Controlled Entities;
f. Any transfer of Assets exceeding $200, or any transfers of
Assets that in the aggregate exceed $200, that Ewert or any
of the Controlled Entities has made to any relative of Ewert
or to any other insider or insiders of Ewert, as the term