Blair v. Deep et. al., No. 5-1-13 Bncv (Wesley, J. Feb. 26, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                               VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                        CIVIL DIVISION
Bennington Unit                                                                                       Docket No. 5-1-13 Bncv

Patricia and Randy Blair,
Plaintiff.

v.

Michael Deep and North Brach Street
Realty Trust,
Defendants.

                   Decision and Order Granting Plaintiffs’ Pending Discovery Motions

        Plaintiffs were tenants of Defendants. Plaintiffs sue Defendants for trespass, conversion,
destruction of personal property, damage to personal property, intentional infliction of emotional
distress, right of sepulcher, entry without notice, failure to return a security deposit, and
deprivation of a tenant’s property. Tenants seek compensatory damages, punitive damages,
attorney’s fees, and costs. Allegedly, the underlying events occurred when Defendants illegally
evicted Plaintiffs from their apartment. In the process of evicting Plaintiffs, Defendants placed
Plaintiffs’ property outside and later took it to a landfill. Plaintiffs may have recovered some of
the property, but much of the property was damaged by rain. Patrick Bernal, Esq. represents
Plaintiffs. Harry Ryan, Esq. represents Defendants.

        This case is scheduled for a jury trial on April 1, 2014. There are two discovery motions
that the Court must resolve.

     1) Motion to Compel

      Plaintiffs filed a motion to compel discovery (MPR 4).1 Plaintiffs seek information about
fact witnesses, complaints made to Defendants about Plaintiffs, rental ownership, the bank
holding Plaintiffs’ security deposit, and the criminal history of Mr. Deep. Plaintiffs also seek
any exhibits Defendants intend to offer, lease agreements, ledgers about rental payments,
insurance policies, code inspection reports, and photographs of the property relevant to this case.
Defendants claimed these requests are overly broad, privileged by attorney-client privilege, or
privileged by attorney work product. Defendants’ answers to Plaintiff’s discovery requests offer
little or no explanation beyond such conclusory categorizations. Defendants did not provide a
privilege log.

        The Court directs Defendants to comply with Plaintiffs’ discovery requests. Generally,
parties may seek discovery of any relevant non-privileged information. V.R.C.P. 26(b)(1). A
1
 On February 19, 2014, Defendants wrote the Court to indicate they filed supplemental responses to Plaintiffs.
Without knowing the contents of the responses, the Court cannot evaluate if Defendant’s supplemental responses
complied with the discovery rules.
party that withholds information under a claim of privilege must do so explicitly and must
describe the nature of the withheld information. V.R.C.P. 26(b)(5)(A). Plaintiffs’ responses are
too vague to support claims of privilege. Moreover, stating “no response required” is not an
acceptable response to a discovery request. A party should either answer a discovery question or
explain why the party cannot answer that question.

       Question 9 requests Defendants identify all fact witnesses and provide their contact
information. Defendant argues this request is protected by attorney work product. The names and
contact information of fact witnesses is not attorney work product. The Court directs Defendants
to answer this question.

       Question 12 requests Defendants identify all complaints about tenants. Defendants may
argue Plaintiffs were problem tenants. Defendants claim this request is too broad. Defendants
offered no further information about why this request is broad and burdensome. The request is
potentially important to Defendants’ case, and plainly involves either admissible evidence, of
information reasonably likely to lead to the development of admissible evidence. V.R.C.P.
26(b)(1). Defendant has failed to support the claim that the request is either overly broad, or
unduly burdensome.

        Questions 14 and 15 request Defendants state the number of properties they rent in
Vermont and Massachusetts. Defendants stated they only rent one property in Vermont but
refused to answer the question about Massachusetts as overly broad and burdensome. Again,
Defendants provide little additional explanation for the claim that they should be spared the duty
to respond. Thus, the Court has no information with which to evaluate Defendants’ claim of
overbreadth.

        Question 23 requests the name of the bank that holds Plaintiffs’ security deposit.
Defendants claim the question is not reasonably calculated to lead to admissible evidence. This
misperceives the permissible scope of discovery as to possible forms of relief. If Plaintiffs
secure judgment, they may be entitled to trustee process. The name of the bank is relevant
discovery to learn basic information about Defendants’ assets.

        Question 27 and 28 request information about whether Mr. Deep has ever been convicted
of a felony. Defendants claim the requests are too broad because they are not time limited. The
Court may exclude evidence at trial about certain felonies based on the time that elapsed since
the conviction, or when balancing probity against prejudice. Again, however, Defendants’
unelaborated claim of overbreadth does not support the failure to respond to a query which may
arguably result in admissible evidence, depending on other rulings at trial.

         Plaintiffs also seek production of documents. Defendants claim that all documents
referenced in the interrogatories are protected by attorney work product. Defendants have not
complied with V.R.C.P. 26(b)(5) as regards the specificity necessary to invoke the claimed
privilege. Based on the response, the Court finds it extremely unlikely these documents are all
protected by attorney work product. Similarly, copies of exhibits that Defendants will offer at
trial are not protected by attorney work product. Moreover, Defendants must provide complete
copies of the lease agreement, ledgers of rent payment. Insurance policies are discoverable under

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V.R.C.P. 26(b)(2) and expert reports are discoverable through V.R.C.P. 26(b)(4)(A)(iii).
Requests for written complaints about Plaintiffs and for code inspection reports of the property
involved in this case are not overly burdensome. Images or videos of the facts alleged in this
case are not protected by attorney work product or attorney client privilege.

    2) Motion in Limine

    Randy Blair has an extensive criminal history that includes sixteen convictions in Vermont
since 1990. Five of these convictions are felonies, which were a lewd and lascivious conduct
conviction in 1992, three felony violations of abuse prevention orders in 2000 and 2012, and an
aggravated domestic assault. None of the crimes involved dishonesty.

        Under V.R.E. 404(b), character evidence is not admissible to show a person conformed to
a character trait on a given occasion. However, a party may impeach a witness using prior
convictions under V.R.E. 609(a). The offered convictions must have occurred within the last
fifteen years. See V.R.E. 609(b). Moreover, all evidence must pass the balancing test for
substantial prejudice under V.R.E. 403.

        In this case, the Court will likely exclude all of the convictions. Four of the five
convictions are in the last fifteen years. Defendants argue the convictions are relevant to show
lack of emotional distress. That is, Defendants believe Patricia Blair could not have valued the
ashes of her unborn children because she left them in the house with Randy Blair when she
moved out after Randy Blair abused Patricia Blair. Moreover, Defendant will argue that any
emotional damage to the Plaintiffs and their children is attributable not to Defendants’ actions
but to Randy Blair’s criminal activities. These arguments are too attenuated to pass the V.R.E.
403 balancing test. The probative value of Randy Blair’s convictions is minimal to the facts of
this case. The Court concludes at this juncture that emphasis on Blair’s extensive criminal
history is likely to substantially prejudice the jury, a danger that far outweighs any arguable
probative value, particularly as on the current record its only apparent proper function would be
as impeachment during cross examination of Mr. Blair, should he testify.2

        As with any motion in limine, this ruling may be revisited at trial in light of the actual
state of the evidence.




2
 By this ruling the Court limits its consideration to evidence of the convictions themselves, expressing no judgment
as to the relevance or admissibility of evidence of any acts which may have formed the basis for such convictions.

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                                          Order

        The Court GRANTS Plaintiffs’ motion to compel discovery. Defendant shall comply no
later than March 7, 2014. The Court GRANTS Plaintiffs’ motion in limine, subject to
reconsideration based on the state of the evidence a trial

Dated at Bennington, Vermont on February 26, 2014.




                                                       John P. Wesley
                                                       Superior Court Judge




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