Party Statement: McCracken Vs. Kutak Rock L L P, Et.Al.

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                                Clerk of the Superior Court
                                                                                 *** Electronically Filed ***
                                                                                 K. Higuchi-Mason, Deputy
                                                                                   6/17/2024 1:53:04 PM
                                                                                     Filing ID 18005184
 1 Jeffrey Goulder (SBN AZ 010258)
   STINSON LLP
 2   Firm Identification (# 00462400)
   1850 N. Central Avenue
 3 Suite 2100
   Phoenix, Arizona 85004
 4 Telephone: 602.279.1600
   Facsimile: 602.240.6925
 5 Email: jeffrey.goulder@stinson.com
   Attorneys for Defendants Kutak Rock, LLP, Michael W. Sillyman
 6 and Amy Gittler
                                SUPERIOR COURT OF ARIZONA
 7
                                      MARICOPA COUNTY
 8
    REGINA McCRACKEN, an individual,           Case No. CV2023-006738
 9
                         Plaintiff,            JOINT STATEMENT OF DISCOVERY
10                                             DISPUTE RE: PLAINTIFF’S OBJECTIONS
    v.                                         TO       DEFENDANTS’          NON-UNIFORM
11                                             INTERROGATORIES
    KUTAK ROCK, LLP, a foreign Limited
12 Liability Partnership; and MICHAEL W.       (Assigned to the Hon. Jennifer Ryan-Touhill)
    and JANE DOE SILLYMAN, husband and
13 wife; and DOES 1 through 50, inclusive,     (Tier 3)
14                               Defendants.
15
              Defendants’ Position: The Court may recall this is a legal malpractice case where
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     Plaintiff alleges that Defendants failed to properly represent her in connection with a premarital
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     agreement Plaintiff entered into with her ex-husband (“PMA”). Already pending before the
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     Court are the parties’ briefs (simultaneously filed on May 28, 2024) regarding when the statute
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     of limitations accrued on Plaintiff’s claims, and whether she waived any privilege over portions
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     of her divorce lawyers’ (Dickinson Wright or “DW”) file. The present issue is related, but
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     different -- whether Plaintiff has properly objected to the following interrogatories on the bases
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     of attorney-client privilege and relevance:
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         Non-Uniform Interrogatory No. 3: Identify the date that you first provided a copy of
24 the PMA to legal counsel.
25          Non-Uniform Interrogatory No. 4: Identify the date that you first received advice from
     any legal counsel relating in any way to the PMA.1
26
27
    Another interrogatory that Plaintiff objected to is not at issue in this discovery dispute, but
     1

28 Defendants reserve the right to challenge the objection at a later time.


     CORE/0768348.0014/190324191.1
 1            Defendants believe that, among other failings, Plaintiff’s Complaint is time-barred. The
 2 statute of limitations for Plaintiff’s claims are two years. Plaintiff’s ex-husband, Dr. Gary
 3 McCracken, already testified in his deposition that he had discussions with Plaintiff regarding
 4 the interpretation and effect of the PMA -- and of his intentions to enforce the PMA -- more than
 5 two years before Plaintiff filed this lawsuit. Armed with this evidence, Defendants then provided
 6 a Rule 45 two-day notice that Defendants intended to subpoena portions of DW’s file. The DW
 7 file almost certainly contains critical information concerning the date on which Plaintiff knew
 8 or should have known of the facts giving rise to her present claim against Defendants.
 9            Though answers to the disputed interrogatories are not a substitute for access to the
10 subpoenaed portions of DW’s file (Defendants believe that the file will provide the basis for a
11 case-dispositive summary judgment motion), Plaintiff must still answer the interrogatories
12 regardless of how the Court rules on the waiver issue. If the Court rules that Plaintiff waived
13 the privilege, then Plaintiff’s objections are without basis. If the Court rules that the privilege
14 has not been waived, Defendants may still present evidence to the jury (assuming the facts
15 support it) that Plaintiff engaged counsel, and received advice from counsel about the PMA,
16 more than two years before this lawsuit was filed. The jury then can decide whether Plaintiff’s
17 purported lack of knowledge is credible, and whether Plaintiff’s claims are time-barred.
18       Plaintiff admitted in one interrogatory response that she retained DW on April 19, 2021
19 (2 years and 13 days before she filed this lawsuit). One would reasonably assume that consulting
20 with DW about the PMA would be among the very first things Plaintiff did after engaging
21 counsel.
22        Disclosing the date on which Plaintiff first provided the PMA to counsel, and received
23 advice from counsel regarding the PMA, is highly relevant and obviously not privileged. There
24 is no dispute that Plaintiff signed the PMA, and at some point provided it to her divorce lawyers.
25 The content of the PMA is not privileged and the interrogatories do not require Plaintiff to
26 divulge any information that could otherwise be privileged. See In re Dayco Corp. Derivative
27 Sec. Litig., 102 F.R.D. 633, 635 (S.D. Ohio 1984) (“questions calling for records of dates, places
28

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     CORE/0768348.0014/190324191.1
 1 or times of [attorney-client] meetings and communications, [but] not the content of those
 2 communications, are proper”) (citation and internal quotation marks omitted); Condon v.
 3 Petacque, 90 F.R.D. 53, 54-55 (N.D. Ill. 1981) (same); Kuriakose v. Veterans Affairds Ann Arbor
 4 Healthcare Sys., No. 14-cv-12972, 2016 WL 4662431, at *8 (E.D. Mich. Sep. 7, 2016) (same.)
 5 Plaintiff does not even address why the information requested in the interrogatories is
 6 supposedly privileged. Instead, she simply reargues (incorrectly) when her cause of action
 7 accrued. There is no basis to assert privilege over the date Plaintiff provided the PMA to her
 8 lawyers, or the date she first received advice from her lawyers relating to the PMA.
 9            Plaintiff’s Position: The Interrogatories served by the Defendants are identical to the
10 issue that is already in front of the Court – this issue of attorney/client privilege. The claims by
11 the Defendants are identical to those presented in the motion that is currently before the Court.
12 Plaintiff responded to these Interrogatories based on the date they were due. Plaintiff provided
13 all non-privileged responses, but objected to the exact same issue that Defendants have already
14 raised with the Court. Plaintiff informed Defendants that, based upon the Court’s future ruling,
15 Plaintiff will amend the Responses, if necessary. Defendants refused to accept that and filed this
16 instant dispute that covers the identical matters before the Court.
17            Plaintiff will not repeat the arguments presented, however, the law in Arizona is clear as
18 there are more than 30 reported cases directly on point. "[N]egligence that results in no
19 immediate harm or damage delays accrual of the cause of action until such damage is sustained.
20 And, the damage must be actual and appreciable, non-speculative, and more than merely
21 the threat of future harm." CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A., Inc., 7 P.3d 979,
22 982-83 (Ariz. Ct. App. 2000). (Emphasis added). As stated by our Supreme Court: "Negligence
23 alone is not actionable; actual injury or damages must be sustained before a cause of action in
24 negligence is generated." Amfac Distribution Corp. v. Miller, 673 P.2d 792, 793, 138 Ariz. 152,
25 153 (Ariz. 1983). The actual injury is not known until the underlying matter has been resolved
26 and the appellate process, if applicable, is complete.
27            Plaintiff has already offered to amend the Responses if the Court rules otherwise,
28 rendering this discovery dispute moot.

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     CORE/0768348.0014/190324191.1
1
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              RESPECTFULLY SUBMITTED this 17th day of June, 2024.
3
                                                        STINSON LLP
4
                                                 By: /s/Jeffrey Goulder
5                                                    Jeffrey Goulder
                                                     James D. Camoriano
6                                                    1850 N. Central Avenue
                                                     Suite 2100
7                                                    Phoenix, Arizona 85004
                                                     Attorneys for Defendants Kutak Rock, LLP,
8                                                    Michael W. Sillyman
                                                     and Amy Gittler
9
                                                       HOVORE LAW
10
                                                       By: F. Thomas Hovore (with permission)
11                                                     F. Thomas Hovore
                                                       14362 N. Frank Lloyd Wright Blvd.,
12                                                     Suite 1000
                                                       Scottsdale, Arizona 85260
13                                                     Attorney for Plaintiff
14     ORIGINAL e-filed via Turbo Court this
       17th day of June, 2024:
15
       Clerk of the Court
16     Maricopa County Superior Court
       101/201 West Jefferson
17     Phoenix, Arizona 85003
18     Copy e-delivered this 17th day of June,
       2024, to:
19
       The Hon. Jennifer Ryan-Touhill
20     Maricopa County Superior Court
       101 West Jefferson, #414
21     Phoenix, Arizona 85003
22     F. Thomas Hovore
       Anne Thompson
23     HOVORE LAW
       14362 N. Frank Lloyd Wright Blvd.,
24     Suite 1000
       Scottsdale, Arizona 85260
25     tom@hovore.com
       anne@hovore.com
26     Attorneys for Plaintiff
27     /s/ Miranda L. Dotson
28

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     CORE/0768348.0014/190324191.1