United States District Court, N.D. Oklahoma
ZACHARY W. CAPPS and ASPEN VALLEY HOLDINGS, LLC, Plaintiffs,
BULLION EXCHANGE, LLC and ERIC GOZENPUT, Defendants.
OPINION AND ORDER
H. MCCARTHY UNITED STATES MAGISTRATE JUDGE
Bullion Exchange, LLC's Third Motion to Compel Discovery
Responses From Plaintiff Zachary W. Capps, [Dkt. 59');">59], is
before the undersigned United States Magistrate Judge for
decision. The matter has been fully briefed. [Dkt. 59');">59, 68,
with Order of March 25, 2019
court entered an order requiring Plaintiff to provide limited
documents in response to Defendants' Request for
Production of Document Nos. 11, 13, 14, 15, and 17. [Dkt.
55]. That order was entered on March 25, 2019.
Plaintiff's brief filed in response to the instant motion
was filed on April 29, 2019. [Dkt. 68]. Plaintiff's brief
contains supplemental responses to the subject requests for
production. [Dkt. 68, pp. 6-8]. The order compelling
production of discovery did not contain a due date for
Plaintiff has not already done so, the discovery responses
contained in Plaintiff's brief, [Dkt. 68], should be
placed in the form of a supplemental discovery response,
properly certified in accordance with Fed.R.Civ.P. 26(g), and
provided to Defendant along with responsive documents on or
before May 20, 2019.
Second Set of Discovery Requests
disputed discovery requests relate to claimed business
losses. The calculation of damages claimed in Plaintiff's
Supplemental Initial Disclosures includes business loss
consisting of: lost profit ($120, 000) and carrying costs
($110, 077.35) on the sale of a house at 2668 East 33rd
Place; and costs of Accent Property Management Company
amounting to 10% of all rental income. [Dkt. 59');">59-1, pp. 3-4].
At several points throughout Defendant's briefing,
Defendant reminds the court that Plaintiff seeks over 12
million dollars in damages as justification for broad
discovery into Plaintiff's business records. [Dkt. 59');">59, p.
3, 13, 18; Dkt. 69, p. 3]. The court notes that, for the most
part, the damages claimed by Plaintiff do not relate to
business losses, but are claimed for emotional distress,
personal humiliation, loss of reputation and standing in the
community, and punitive damages. As specified above, the
business losses are specific and a relatively small part of
the total damages claimed.
No. 21 and Request for Production No. 20
No. 21 seeks an itemization of all lost income and other
damages, including the total amount of lost income, an
explanation of how that was calculated, and identification of
all rental properties Plaintiff has allegedly been unable to
for Production No. 20 seeks documents which support that any
business entity has lost income.
arguments in support of compelling further answer to these
requests rely in part on Mr. Capp's March 27, 2019
deposition testimony as to his belief that he was unable to
lease all of his properties because of the defamatory post
made by Defendant. Defendant states more information is
needed about the properties to evaluate whether any property
was vacant for any period of time. Therefore Defendant
requests the court to compel Plaintiff to produce all lease
agreements from January 1, 2015 through the present as that
information would be responsive to Interrogatory No. 21 and
Request for Production No. 20.
March 29, 2019, after Mr. Capp's deposition and before
the instant motion was filed, Plaintiff provided Defendant
Supplemental Initial Disclosures which contains a calculation
of damages claimed. The damages do not include any reference
to the inability to rent properties. [Dkt. 59');">59-1, pp. 3-4].
The court finds that, in light of the Supplemental Initial
Disclosures, there is no basis for requiring production of
all lease agreements.
Capps testified that after the offending post, management of
the rental homes was transferred to Accent Property
Management because of worry about people not wanting to meet
him or do business with him due to the nature of the post
that is the subject of this lawsuit. The agreement between
CappsTyler Property, LLC and Accent Property Management has
been produced. Plaintiff also represents that a listing of
all rental properties for 2016, 2017, and 2018 has been
produced. The list includes rental amounts, taxes,
homeowner fees, insurance, and debt service. Mr. Capps has
also produced his tax returns with all schedules for 2015,
2016, and 2017. Concerning losses on the home on ...