OMNIBUS ORDER ON DISCOVERY MOTIONS
This matter is before the Court on various discovery motions that are ripe for disposition. The Court has reviewed the motions, the responses, the parties’ various other submissions, and the relevant authority. Based upon a thorough review of the record, the Court’s rulings follow.
A. Motivation, Inc.’s Motion to Compel Production of Documents Sought by Subpoena and Testimony Despite Claims of Attorney-Client and Work-Product Privileges Due to the Crime Fraud Exception to the Privileges [D.E. 259]
On August 8, 2013, this Court entered an Order [D.E. 261] denying Motivation, Inc.’s (“Motivation”) Motion to Compel Production of Documents Sought by Subpoena and Testimony Despite Claims of Attorney-Client and Work-Product Privileges Due to the Crime Fraud Exception to the Privileges [D.E. 259] on the grounds that the discovery cutoff had passed and the motion was untimely. Then, on August 19, 2013, the Court entered an Order which, among other things, reopened discovery in this case. [D.E. 268]. On October 24, 2013, this Court entered an Order advising the parties that it would revisit Motivation’s motion to compel and resolve the matter on its merits. [D.E. 293]. Following that Order, JTR Enterprises, LLC (“JTR”) and its former and current counsel filed responses and affidavits in opposition to the motion. [D.E. 297, 298, 299, 302],
Motivation’s motion seeks to compel production of documents from several nonparties. First, the motion seeks to compel documents from Young Conaway Stargatt & Taylor, LLP (“YCST”), a Delaware-based law firm, based on a subpoena for production that was dated February 22, 2013 [D.E. 259-4], and Bruce Silverstein (“Silverstein”), a partner at YCST and a member of and general counsel to JTR. [D.E. 259 at p. 2]. The subpoena was issued by the United States District Court for the District of Delaware. Upon receipt, YCST sent a letter to Motivation’s counsel stating various objections to the subpoena and indicating that YCST would not be producing documents by the date requested in the subpoena. Although YCST’s letter refers to two subpoenas (one issued to YCST and another issued to Silver-stein), only the subpoena issued to YCST is attached to Motivation’s motion.
As a threshold issue, this Court lacks jurisdiction to enforce the subpoenas issued to YCST and Silverstein out of the District Court in Delaware. Federal Rule of Civil Procedure 45(d)(2)(B) states:
A person commanded to produce documents or tangible things ... may serve on the party or attorney designated in the subpoena a written objection____ If an objection is made, the following rules apply:
(1) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.
Fed.R.Civ.P. 45(d)(2)(B). Moreover, Federal Rule of Civil Procedure 37(a)(2) states that “[a] motion for an order to a nonparty must be made in the court where the discovery is or will be taken.” Fed.R.Civ.P. 37(a)(2).
Together, Rules 45(d)(2)(B) and 37(a)(2) direct that motions to compel compliance with subpoenas for production from non-parties must be filed with the issuing court. In other words, the court issuing a subpoena is responsible for its enforcement and has exclusive jurisdiction to rule on a subpoena issued in that court’s name. See Matter of Certain Complaints Under Inves
Motivation’s motion also seeks to compel JTR’s former counsel, David Paul Horan (“Horan”), who served as counsel for JTR from approximately March 15, 2011 through October 10, 2012 [D.E. 141], to produce documents in response to Motivation’s subpoena for production of documents served on Horan. [D.E. 259-1]. The subpoena is dated February 6, 2013 and was issued by the United States District Court for the Southern District of Florida. Thus, unlike the subpoenas issued to YCST and Silverstein, this Court has jurisdiction over the subpoena issued to Horan.
In response to the subpoena, Horan provided two privilege logs, stating that certain documents are “being withheld as privileged or subject to protection as work product” and “without a waiver by our former client [JTR] or an order of court these documents will not produced.” [D.E. 259-2, 259-3]. The first privilege logs lists 95 emails from October 18, 2011 to December 28, 2012. [D.E. 259-2], The second privilege log lists 20 emails from December 19, 2011 to January 25, 2013. [D.E. 259-3].
Motivation alleges that the documents sought from Horan are relevant to the upcoming hearing on its Motion for Sanctions [D.E. 123], Specifically, Motivation argues that the attorney-client and work-product privileges do not shield the production of documents “because preceding and throughout the pendency of this ease, JTR and its founders have been and are engaged in a criminal conspiracy to defraud investors and consumers. In fact, JTR’s filing of this admiralty case, verified by Jay Miscovich [(“Miscovich”)], was part of its criminal scheme to fabricate a treasure find and is a fraud upon the court.” [D.E. 259 at p. 2], Therefore, Motivation contends, the crime-fraud exception vitiates any claimed privilege and required production of the withheld documents. [Id.\
“The attorney-client privilege does not protect communications made in furtherance of a crime or fraud.” In re Grand Jury Investigation (Schroeder),
First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel’s advice. Second, there must be a showing that the attorney’s assistance was obtained in furtherance of the criminal*527 or fraudulent activity or was closely related to it.
Gutter v. E.I. Dupont De Nemours,
Consistent with these principles, the Court can engage in in camera review to determine the applicability of the crime-fraud exception. United States v. Zolin,
Based on our review of Motivation’s motion and the submissions and affidavits that followed, we find that a prima facie case for application of the crime-fraud exception has been made. In short, the evidence presented in this record shows the services of Horan may have been obtained by JTR to enable it and others, including Misc.vich, to commit or further ongoing criminal or fraudulent conduct. However, we also find that Horan has provided a reasonable explanation of the conduct or communication that may rebut the prima facie showing. Accordingly, the Court will conduct an in camera review of the documents listed on Horan’s privilege logs to determine their relevance and to assess whether they were sufficiently related to the alleged criminal or fraudulent conduct such that the privilege was waived as to those documents. Horan shall, within 7 days of the entry of this Order, submit to the Court for further review copies of the unredacted versions of the documents listed on his privilege logs [D.E. 259-2, 259-3].
B. JTR’s Motion to Compel [D.E. 301]
JTR’s Motion to Compel [D.E. 301] seeks to compel Motivation to produce documents responsive to requests numbers four and five from JTR’s second request for production (“RFP”). We address the RFPs in turn below.
1. Request to Produce Number Four
JTR’s RFP number four seeks “[a]ll communications between John Holloway and Hugh Morgan, Joe Sweeney, Buster White, Gene Lewis, Kim Fisher, Sean Fisher and/or any other representatives of MOTIVATION, INC., related to JTR Enterprises, LLC, members of JTR Enterprises, LLC, Emerald Reef, LLC, the above referenced admiralty claim and/or the subject res.” [D.E. 301-1 at pp. 5-6]. Motivation first objects to this RFP on the grounds that the documents sought are subject to the attorney-client privilege and work-product doctrine. [D.E. 301-2 at p. 2], In this regard, Motivation states that “Mr. Holloway represents parties who are not parties to this action” and “Holloway’s clients have common interest with Motivation in the outcome of this litigation and Holloway has certain shared facts and legal theories in consonance with common interest in this litigation.” [M]. Thus, Motivation argues that the “common interest” or “joint
To properly analyze Motivation’s claim that the “common interest” or “joint defense” doctrine applies, we must identify the roles of the individuals named in the RFP. John Holloway, Esq. is an attorney who represents Dean Barr and Neil Ash, two individuals who previously invested money with Misc.vieh. Hugh Morgan, Buster White, and Gene Lewis are attorneys for Motivation. Kim Fisher and Sean Fisher are the president and vice-president, respectively, of Motivation. The record demonstrates that Barr and Ash are not parties to this litigation.
Motivation states that “[wjhen Barr and Ash became convinced that Misc.vieh had defrauded them as this action progressed, they realized that it was in their interest to join with Motivation’s efforts to expose that the entire basis for their investment was a fraud____Ash and Barr directed their attorney, John Holloway, to cooperate with the efforts of Motivation’s counsel.” [D.E. 309 at p. 2]. “In other words, all of these parties have a common legal interest in uncovering the fraud.” [Id. at p. 3].
“[T]he common-interest privilege applies when clients with separate attorneys share otherwise privileged information in order to coordinate their legal activities.” In re Ginn-LA St. Lucie Ltd., LLLP,
Motivation’s response makes clear that Barr, Ash, and others share a similar interest in uncovering the purported fraud. [D.E. 309 at p. 3]. However, a mere shared desire of non-parties to uncover a purported fraud is not a legally sufficient basis on which we can sustain Motivation’s objection to the RFP. Thus, on this record, the “common interest” or “joint defense” doctrine does not apply and Motivation’s objection is overruled. Motivation’s other objection to RFP number four — that the RFP is overly broad — is without merit. JTR’s Motion to Compel [D.E. 301] is GRANTED as to RFP number four. Motivation shall produce to JTR all responsive documents within 10 days of the entry of this Order.
2. Request to Produce Number Five
JTR’s RFP number five requests “[a]ll communications between any federal agents and Hugh Morgan, Joe Sweeney, Buster White, Gene Lewis, Kim Fisher, Sean Fisher and/or any other representatives of MOTIVATION, INC., related to JTR Enterprises, LLC, members of JTR Enterprises, LLC, Emerald Reef, LLC, the above referenced admiralty claim and/or the subject res.” [D.E. 301-1 at p. 6]. Motivation objects to this RFP on the ground that production of such documents and communications, “if any exist, would involve an on-going criminal investigation and are not subject to disclosure at this time.” [D.E. 301-2 at p. 2]. JTR seeks to have Motivation’s objection overruled, arguing that “Motivation has no legal objection or privilege, and ... has not provided any statute, law or case that states it is against the law for Motivation to produce
“Under federal common law, there is a qualified privilege which protects disclosure of information contained in criminal investigations.” White v. City of Fort Lauderdale, No. 08-60771-CIV,
This privilege, known as the law enforcement privilege, is “based primarily on the harm to law enforcement efforts which might arise from public disclosure of ... investigatory files.” In re Polypropylene Carpet Antitrust Litig.,
Here, JTR seeks documents from Motivation. JTR did not request any governmental or law enforcement agency to produce their investigatory files or communications. Nor did any governmental or law enforcement agency assert the law enforcement privilege in relation to the documents sought by JTR from Motivation. The record is clear that no governmental or law enforcement agency filed a response or objection to the RFP, nor did any governmental or law enforcement agency join in Motivation’s response. Moreover, Motivation has not provided an affidavit or any supporting documentation to confirm that there is, in fact, an ongoing criminal investigation.
In summary, we find that the privilege does not apply to the RFP at issue and Motivation’s objections on this basis are overruled. See Sterling Merchandising, Inc. v. Nestle, S.A.,
C. Motivation’s Motion for Order Unsealing D.E. 13 and 14 and an Order Requesting the Delaware Chancery Court to Unseal Files in Connection With This Matter [D.E. 295]
Motivation’s motion [D.E. 295] seeks two forms of relief, which we will address in turn. No responses in opposition to the motion were filed.
First, Motivation seeks an Order unsealing D.E. 13 and 14. In support, Motivation states that “Neil Ash, Dean Bair and Bruce
Second, Motion’s motion asks this Court “to issue a request to the Court of Chancery for the State of Delaware in AZALP, LLC et al v. Jay Miscovich, et al., docketed as Case No 6138-VLC, to release from seal the documents placed under seal in the referenced Delaware action and to order Jay Miscovich’s counsel, Bruce Silverstein and Young Conaway Stargatt & Taylor, to turnover all such documents to Motivation within 5 days of this court’s order.” [D.E. 295 at p. 1]. Motivation states that prior to filing this case, Miscovich was sued in a Delaware Chancery Court by certain investors. [Id. at p. 2]. That suit focused on issues of corporate governance relating to a limited liability company formed to manage what certain investors thought was a legitimate find of emeralds in the Gulf of Mexico. [Id.]. That suit was settled in March 2011 and approved by the Delaware Chancery Court in August 2011. [Id.]. All of the pleadings and motions in that suit were filed under seal. [Id.]. In short, Motivation asks this Court to issue a request to the Delaware Chancery Court “in order to obtain statements made by or on behalf of Miscovich about the emerald find that are contained in pleadings and in Misc.vich’s affidavit(s) filed in the Delaware proceedings.” [Id.].
Motivation’s motion states that its counsel consulted with JTR’s counsel regarding the relief sought, and JTR’s counsel responded that, “as JTR Enterprises was not a party to the Delaware litigation, JTR takes no position on the motion.” [D.E. 295 at p. 6]. However, Motivation has not provided any legal authority supporting its request that we issue a request to the Delaware Chancery Court to unseal all records in a case pending before it. The closest authority relied upon in the motion is Wilson v. Am. Motors Corp.,
Here, Motivation states that all pleadings and motions in the Delaware suit were filed under seal and that the suit was settled, presumably before any trial began. [D.E. 295 at p. 2], Thus, Wilson is inapposite to the facts of this case and does not provide any support for the relief sought in Motivation’s motion. Accordingly, the portion of Motivation’s motion asking this Court to issue a request to the Delaware Chancery Court to unseal records in a suit before it is DENIED.
D. JTR’s Motion to Compel Production of the Sworn Statement of Lisa Martorano [D.E. 312]
JTR motion [D.E. 312] seeks to compel production of the entire sworn statement of Lisa Martorano, a portion of which was attached as “Exhibit C” [D.E. 310-3] to one of Motivation’s prior filings [D.E. 310]. The motion also seeks to compel production of “Exhibit 1” that was referred to in, but not attached to, the sworn statement. Although Motivation did not file a formal response to JTR’s motion, the motion indicates that “[c]ounsel for Motivation advised that the sworn statement is investigative work-product” that “would not be produced absent a court order.” [D.E. 312 at p. 2]. JTR argues, however, that “Motivation waived any work-product privilege it may have had when it decided to disclose portions of the statement to the public.” [I'd]. We agree with JTR.
“A party can’t selectively cho[o]se which portions of a document to release to the public and which portions it wishes to
Federal Rule of Evidence 106 states that “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.” See Beech Aircraft Corp. v. Rainey,
We find that Motivation cannot reasonably expect to preserve confidentiality of its purported work-product — the sworn statement of Lisa Martorano — after voluntarily disclosing certain substantive components of it. See Kintera,
E. JTR’s Motion to Compel and For Sanctions [D.E. 313]
JTR’s motion seeks to compel Motivation’s corporate representative to produce documents responsive to JTR’s Second Re-Notice of Taking Deposition Duces Tecum (the “Notice”) and for sanctions for Motivation’s failure to timely produce those documents. [D.E. 313], On October 25, 2013, JTR served its Notice, which required Motivation’s corporate representative to bring to the November 4, 2013 deposition its entire file relating to Motivation’s motion for sanctions [D.E. 123], JTR’s response [D.E. 142], and Motivation’s reply [D.E. 154]. Motivation’s corporate representative (Kim Fisher) failed to bring any responsive documents to the deposition. Motivation did not file a response to JTR’s motion. Based on this record, the portion of JTR’s motion seeking to compel the documents specified in the Notice is GRANTED. Motivation shall produce to JTR all documents responsive to the Notice within 10 days of the entry of this Order.
In addition, JTR seeks to continue the deposition of Motivation’s corporate representative after the aforementioned documents are produced. Notwithstanding our Order dated November 21, 2013 [D.E. 317] denying Motivation’s Motion to Enlarge the Number of Depositions Allowed [D.E. 292], we find good cause exists under these circumstances to permit the continued deposition of Motivation’s corporate representative. Indeed, JTR argues that the failure of Motivation’s corporate representative to produce at the deposition documents responsive to the Notice left JTR unable to complete the deposition. [D.E. 313 at p. 4]. Upon review
Finally, the sanction of awarding JTR its attorneys fees associated with this motion is not warranted at this time. Motivation’s failure to comply with this Order, however, may require appropriate Rule 37 sanctions. Thus, the portion of JTR’s motion seeking its attorneys fees incurred in bringing this motion is DENIED.
F. Motivation’s Motion to Compel Plaintiff to Fully Respond to Motivation’s Interrogatories, Request for Admissions, and Request for Production [D.E. 320, 321, 322]
Motivation’s motions to compel [D.E. 320, 321, 322] were filed on December 2, 2013. The Court’s Order dated August 19, 2013 states that “[a]ny and all pre-hearing motions must be filed no later than sixty (60) days prior to the hearing date” and “[a]ll discovery shall be completed seventy (70) days prior to the date of the hearing.” [D.E. 268]. That Order also states that the hearing date is January 13, 2014. Thus, the discovery cutoff was November 4, 2013 and the deadline to file motions was November 14, 2013. Accordingly, Motivations’s motions to compel are DENIED as untimely.
Notes
. On July 16, 2013, the Honorable K. Michael Moore referred these motions to the undersigned Magistrate Judge for disposition. [D.E. 251].
. The second privilege log indicates that it was served in June 2013. [D.E. 259-3 at p. 4]. There is no indication of the date of service included on the first privilege log.
. In Bonner v. City of Prichard,