PHI Financial Services, Inc. v. Johnston Law Office, P.C.
2016 ND 114
| N.D. | 2016Background
- PHI obtained a post-judgment discovery request (interrogatories) from judgment debtor Johnston Law Office while an earlier appeal was pending; PHI later sought to compel answers to incomplete responses.
- Johnston answered two interrogatories fully, part of a third, and objected to the remainder claiming N.D.R.Civ.P. 33(a)(3) limits were exceeded.
- PHI sent a letter and attempted phone contact asserting good-faith conferral under N.D.R.Civ.P. 37(a)(1); Johnston did not engage further, and PHI moved to compel.
- The district court granted PHI’s motion, finding PHI made a good-faith effort to confer and that PHI’s post-judgment interrogatories (37, including subparts) complied with Rule 33(a)(3) as applied to post-judgment discovery under Rule 69(b).
- After Johnston failed to comply with the order to compel, the court found Johnston in contempt for willful, inexcusable violation; Johnston appealed both orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal of order to compel | PHI: appeal untimely from order to compel served July 2 | Johnston: interlocutory; time to appeal runs from contempt order | Held: appeal timely as interlocutory order reviewed on appeal from final contempt order served Sept 25 |
| Sufficiency of conferral under Rule 37(a)(1) | PHI: sent letter, attempted phone contact, waited for response; good faith met | Johnston: PHI did not meaningfully confer | Held: district court’s factual finding PHI conferred in good faith not clearly erroneous; no abuse of discretion |
| Application of Rule 33(a)(3) limits to post-judgment discovery under Rule 69(b) | PHI: Rule 33(a)(3) applies to post-judgment discovery but pre-judgment interrogatories are not counted against post-judgment 50-question limit | Johnston: all interrogatories (pre- and post-judgment) should be aggregated under Rule 33(a)(3) | Held: Rule 33(a)(3) applies to post-judgment discovery under Rule 69(b), but pre-judgment interrogatories are not counted; PHI’s 37 post-judgment interrogatories compliant |
| Contempt for noncompliance with order to compel | PHI: Johnston had notice and willfully disobeyed the order | Johnston: erroneous interpretation of rules excused noncompliance or rendered order void | Held: erroneous order is not void; party must obey until reversed; contempt finding not an abuse of discretion |
Key Cases Cited
- Inv. Title Ins. Co. v. Herzig, 785 N.W.2d 863 (N.D. 2010) (orders granting post-judgment discovery are nonappealable if review is available by contempt)
- Sec. State Bank v. Orvik, 636 N.W.2d 664 (N.D. 2001) (interlocutory orders reviewed on appeal from final judgment)
- Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev. 1996) (federal good-faith conferral standards under Rule 37 guide courts)
- BeauLac v. BeauLac, 649 N.W.2d 210 (N.D. 2002) (elements and standard of review for civil contempt)
- Hodous v. Hodous, 36 N.W.2d 554 (N.D. 1949) (distinction between void and merely erroneous orders; obedience required until reversed)