[Page 1]
1 HUTCHISON & STEFFEN, PLLC
Brenoch Wirthlin, Esq. (10282)
2
Shelby Dahl, Esq. (13856)
Peccole Professional Park
3
10080 West Alta Drive, Suite 200
4
Las Vegas, Nevada 89145
Phone (702) 385-2500
5 Fax (702) 385-2086
[email protected]
6
Attorneys for Big Sky
7
UNITED STATES DISTRICT COURT
8
FOR THE DISTRICT OF NEVADA
9
|
REPUBLIC OF KAZAKHSTAN, Plaintiff, v. BIG SKY ENERGY CORPORATION Defendants. |
Case No.: 2:22-cv-00509-JCM-BNW OBJECTION TO SUBPOENAS AND |
10
11
12
13
14
15
1. Introduction.
16
Defendant Big Sky Energy Corporation (“Big Sky”), by and through its counsel of
17
record, Hutchison & Steffen, PLLC, respectfully request that the Court quash or modify the
18
subpoenas served on Big Sky and its counsel, W. Scott, Lawler (“Mr. Lawler”). The
19
subpoenas at issue are attached hereto as Exhibits 1 and 2 (“Subpoenas”) and were issued by
20
plaintiff Republic of Kazakhstan (“ROK”). Big Sky objects to the Subpoenas and moves to
21
quash or modify them as, among other things, they are overbroad and require undue expense
22
on Big Sky, and constitute an abuse of process as they are purportedly in connection with an
23
attempt to collect on a judgment but in reality seek information well outside the permissible
24
scope. Notably, ROK has requested this information in two prior proceedings and been denied
25
it in the context of the underlying arbitration from which the current judgment arose. Now,
26
despite purportedly only seeking to collect on a judgment, ROK seeks information wholly
27
unrelated to collection on a purported judgment and instead seeks a third bite at the apple to
28
[Page 2]
1 attempt to obtain information they were not, and are not, entitled to, including without
2 limitation, privileged information and information related to other entities that are not parties to
3 this litigation. Big Sky has no problem producing relevant information and as the declaration
4 of Mr. Lawler makes clear, Big Sky has no assets on which ROK can collect and is not
5 currently operating, nor has it done so for nearly a decade. See Declaration of Scott Lawler
6 (“Lawler Declaration”), attached as Exhibit 3 hereto. Accordingly, there is little information
7 for ROK to legitimately seek. However, Big Sky is willing to produce that information and, in
8 fact, conducted a meet and confer call with counsel for ROK to see if the parties could reach a
9 mutual agreement to produce this documentation in satisfaction of the Subpoenas. But, ROK
10 would not agree to this reasonable request, necessitating the instant motion.
11
ROK has no legitimate reason to seek the volume and scope of documents from the
12 individuals and entities listed below, and as such Big Sky respectfully requests that the Court
13 quash or modify these Subpoenas.
14 2. Factual Background.
15
A default judgment was entered in this case on July 28, 2022 (Doc. 21). The default
16 judgment arose out of an ICSID Case No. ARB/17/22 which was an arbitration between ROK
17 and Big Sky (“Arbitration”). In the underlying Arbitration, ROK sought virtually the same
18 documents it now seeks against Big Sky and was denied the requested documents in
19 Arbitration. See Lawler Declaration at ¶¶ 2-19. Moreover, the documents at issue were also
20 sought by ROK in case no. MC-19-00035-PHX-DWL in the federal District Court of the
21 District of Arizona, which was an application pursuant to 17 U.S.C. § 1782 for document
22 discovery. ROK’s request for the documents at issue was denied in that proceeding as well.
23 See Order quashing ROK’s subpoena, Exhibit 4.
24
ROK’s newest Subpoenas are a third bite at the apple under the guise of collecting on a
25 judgment. However, it is clear that the Subpoenas are simply a pretext for ROK to yet again
26 seek information that is irrelevant and in fact is not even related to this litigation at all. In fact,
27
28
[Page 3]
1 the Subpoenas seek, without limitation, the following classes of information which is
2 completely irrelevant to the instant case or otherwise improper:
3
5
9
11
13
Moreover, Big Sky has not been in operation since 2015 and has only one employee, its
14 attorney and officer, Mr. Lawler. See Lawler Declaration, Exhibit 3, at ¶¶ 3-16. Moreover, Big
15 Sky has no assets that ROK could execute on, as it owns no real property, has no bank accounts,
16 has no accounts receivable, has had no corporate proceedings since 2015, has no cash or cash
17 equivalents, has no investments, has no inventory, has no fixtures, furniture, machinery,
18 automobiles, watercraft, aircraft, collectibles, intellectual property, notes receivable, tax
19 refunds, or interest in insurance policies. Id. Big Sky also has no beneficial interests in any
20 insurance policies or annuities, has no beneficial interests in any trusts, and has no interest in
21 any other entity. Id.
22
Finally, ROK’s Subpoenas include deposition subpoenas for both Mr. Lawler and the
23 person most knowledgeable for Big Sky and to Mr. Lawler individually. It is improper for Big
24 Sky to depose non-party Mr. Lawler especially when he is the only employee of Big Sky and
25 will be serving as its person most knowledgeable (“PMK”) for the Big Sky deposition should it
26 go forward.
27
28
[Page 4]
1
Counsel for Big Sky explained to counsel for ROK that Big Sky has no assets upon
2 which it can collect and attempted to reach an agreement as to the documents sought improperly
3 through the overbroad Subpoenas, but were unable to do so. Nevertheless, even though ROK
4 was not agreeable to Big Sky’s reasonable proposal to produce only the documents relating to
5 its lack of assets – and not any privileged or irrelevant information – Big Sky is in the process
6 of producing all information related to its lack of assets. It is a difficult and cumbersome
7 process as Big Sky has only one employee – Mr. Lawler – but in a good faith effort to comply
8 with reasonable and good faith document requests Big Sky is producing all relevant, non-
9 privileged information regarding its lack of assets.
10 3. Legal Standard.
11
Pursuant to FRCP 45, a court must quash or modify a subpoena if it “requires disclosure
12 of privileged of other protected matter,” or subjects a person to undue burden. Nevada
13 recognizes both the attorney/client privilege (NRS 49.095) and the accountant/client privilege
14 (NRS 49.185). Further, regarding the attorney work product doctrine, NRCP 26(b)(3) provides
15 in relevant part:
16
17
[A] party may obtain discovery of documents ... discoverable under subdivision (b)(1) of
this rule [can request relevant and unprivileged documents] and prepared in anticipation
18
of trial ... only upon a showing that the party seeking discovery has substantial need of
the materials in the preparation of the case and that he is unable without undue hardship
19
to obtain the substantial equivalent by other means.
20
Additionally, the attorney work doctrine “also protects an attorney's mental impressions,
conclusions, or legal theories concerning the litigation, as reflected in memoranda
21
22
Additionally, the attorney work doctrine “also protects an attorney's mental impressions,
23 conclusions, or legal theories concerning the litigation, as reflected in memoranda,
24 correspondence, interviews, briefs, or in other tangible and intangible ways.” Wardleigh v.
25 Second Judicial Dist. Court In & For Cty. of Washoe, 111 Nev. 345, 357, 891 P.2d 1180, 1188
26 (1995) (citing Hickman v. Taylor, 329 U.S. 495, 510–11, 67 S.Ct. 385, 393–94, 91 L.Ed. 451
27 (1947); NRCP 26(b)(3)).
28
[Page 5]
1
Generally courts utilize a six-factor test for determining if an undue burden exists: “ ‘(1)
2 relevance of the information requested; (2) the need of the party for the documents; (3) the
3 breadth of the discovery request; (4) the time period covered by the request; (5) the particularity
4 with which the party describes the requested documents; and (6) the burden imposed.’ ”
5 Precourt v. Fairbank Reconstruction Corp., 280 F.R.D. 462, 467 (D.S.D. 2011). If the sought
6 after documents are not relevant, “then any burden whatsoever imposed... [is] by definition
7 undue.” Compaq Computer Corp. v. Packard Bell Elecs., 163 F.R.D. 329, 335-36 (N.D.Cal
8 1995).
9
Further, a subpoena is facially overbroad if it (1) fails to specify the documents or things
10 sought with appropriate particularity, (2) covers an unreasonable time period, or (3) extends to
11 documents or materials of limited or no relevance in the action. See Mattel, Inc. v. Walking
12 Mountain Prods., 353 F.3d 792, 813 (9th Cir. 2003) (subpoena was properly quashed where it
13 sought testimony and documents regarding topics that had “no bearing” on the claims at issue);
14 Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998) (holding subpoena was
15 overbroad where it “is not limited in time or topic to any issue of consequence to this litigation
16 or to any other litigation”); Broadcort Capital Corp. v. Flagler Sec., Inc., 149 F.R.D. 626, 629
17 (D. Colo. 1993) (holding subpoena was facially overbroad where “[n]othing has been provided
18 that would indicate any relevance or potential relevance of telephone or financial records from
19 January 1, 1992 on” and subpoena was therefore not limited to relevant time period).
20
FRCP 45(d)(3) lays out the requirements for quashing or modifying a subpoena. A
21 federal court is required to quash or modify a subpoena that “subjects a person to undue
22 burden.”1 The court may also quash a subpoena “to protect a person subject to or affected by a
23 subpoena...if it requires disclosing a trade secret or other confidential research, development, or
24
25
26
27
28
[Page 6]
1 commercial information.”2 This Court has, in the past, held the following with regard to a
2 party’s moving to quash a subpoena served on a third party:
3
9
19
22
23
2 FRCP 45(d)(3)(B). ↩
24
3 Dale Evans Parkway 2012, LLC v. Nat’l Fire & Marine Ins. Co., No. EDCV15979JGBSPX, ↩
2016 WL 7486606, at *3 (C.D. Cal. Oct. 27, 2016).
25
4 Id. ↩
26
5 Fed. R. Civ. P. 45(d)(3)(A)(iv) ↩
27
6 Dinkins v. Schinzel, 2017 WL 4183115, at *1 (D. Nev. Sept. 19, 2017) ↩
28
[Page 7]
1
subpoenas for documents that can more easily and inexpensively be obtained from
2 the opposing party.”7
3 4. Legal Argument.
4
A. The Subpoenas should be quashed or modified to prohibit requests related
5
to any privileged or confidential material, and any documents related to
entities not a party to the instant litigation.
6
7
NRS 49.095 provides as follows:
8
A client has a privilege to refuse to disclose, and to prevent any other
9
person from disclosing, confidential communications:
10
1. Between the client or the client’s representative and the client’s
11
lawyer or the representative of the client’s lawyer.
12
2. Between the client’s lawyer and the lawyer’s representative.
13
3. Made for the purpose of facilitating the rendition of
professional legal services to the client, by the client or the client’s
14
lawyer to a lawyer representing another in a matter of common interest.
15
Nev. Rev. Stat. Ann. § 49.095 (West). As set forth above, any communications between Lawler
16
and Big Sky are privileged and confidential. The Subpoenas seek such information in violation
17
of Nevada’s attorney/client privilege. To this extent they are improper, bordering on an abuse
18
of process, and must be quashed or limited.
19
Moreover, the Subpoenas are unduly burdensome and facially overbroad. Regarding the
20
Precourt factors, any information sought not directly related to the assets of Big Sky, such
21
information is completely irrelevant. If the sought after documents are not relevant, “then any
22
burden whatsoever imposed... [is] by definition undue.” Compaq Computer Corp. v. Packard
23
Bell Elecs., 163 F.R.D. 329, 335-36 (N.D.Cal 1995). Regarding the remaining factors, the
24
information sought is overly broad and appears to contain no limitations as to time, requesting
25
26
7 McCall v. State Farm Mut. Auto. Ins. Co., No. 216CV01058JADGWF, 2017 WL 3174914, at ↩
27
*6 (D. Nev. July 26, 2017)
28
[Page 8]
1 merely “all communications” and “all documents.” The documents and information sought are
2 clearly part of an improper fishing expedition by ROK to seek information that is not in any
3 way related to its judgment and merely to harass Big Sky and to get information on other, non-
4 party entities. In fact, as noted above, the Subpoenas seek information from entities that are not
5 parties to this litigation, including Big Sky Energy Kazakhstan Ltd (“Big Sky Kazakhstan”),
6 Ingalls & Snyder Value Partners, L.P., Mr. Lawler individually, International Legal Services,
7 Inc., and Vaninn Capital PCC.
8
In evaluating whether the scope of a subpoena is overbroad, courts must ensure that the
9 requested information is relevant to the truth or falsity of the particular statements at issue.
10 Gilmore v. Jones, 339 F.R.D. 111, 123 (W.D. Va. 2021); see also Sheindlin v. Brady, No.
11 1:21cv1124, 2021 WL 2075483, at *3–5 (S.D.N.Y. May 24, 2021) (quashing multiple nonparty
12 subpoenas, through which defendant sought evidence to prove that his allegedly defamatory
13 statements were true because defendant had failed to show that the information he sought was
14 relevant and necessary to the claims or defenses in the action); Weinstein, 2020 WL 1485960, at
15 *4, *6 (quashing in part nonparty subpoenas that sought “fifty-six categories of documents” and
16 broadly requested “all documents pertaining to [the nonparties’] financial transactions, financial
17 statements, audit files, formation and management agreements,” none of which was relevant to
18 the veracity of the alleged defamatory statements or to any other claims or defenses in the
19 action); Eshelman, 2017 WL 5919625, at *5, *8 (granting in part motion to quash nonparty
20 subpoena that requested all documents produced in “all” prior civil lawsuits involving the
21 nonparties because the subpoena was “facially overbroad” and constituted a “fishing
22 expedition” that likely would require production of “wholly irrelevant documents”); In re
23 Biovail Corp. Sec. Litig., 247 F.R.D. 72, 74 (S.D.N.Y. 2007) (quashing multiple nonparty
24 subpoenas where “the virtually limitless financial and other information” plaintiffs sought was
25 “unnecessary and irrelevant” to the case and “the burden the[ ] demands place[d] on the
26 subpoenaed non-parties and diversion of their staff to provide it far outweigh[ed] any probative
27 value of the information”).
28
[Page 9]
1
Here the documents requested in the Subpoenas are completely improper outside of
2 those directly related to Big Sky’s (not Big Sky Kazakhstan which is a separate entity) ability,
3 or inability, to pay a judgment. The Subpoenas should be quashed or modified to the extent
4 they seek any information outside that limited basis. Accordingly, even if the Subpoenas did
5 not seek privileged information, which they do, those Subpoenas should be quashed due to the
6 fact that they are facially overbroad and unduly burdensome.
7
5. Certification
8
Undersigned counsel hereby certifies that on June 27, 2024, at 11:00 am, he had a
9
telephone call with counsel for ROK which lasted approximately 30 minutes in an effort to
10
resolve the above dispute. See Declaration of Brenoch Wirthlin, Exhibit 5 hereto. Counsel
11
discussed the fact that Big Sky lacks any assets to pay a judgment and the possibility of a
12
potential resolution whereby Big Sky would produce the documents demonstrating that fact but
13
not any privileged or irrelevant documents. Id. Counsel for ROK stated that he would discuss
14
the proposal with his client, but subsequently informed undersigned counsel that no agreement
15
could be reached. Id. Thus, undersigned counsel certifies pursuant to LR IA 1-3(f) that despite
16
a sincere effort to resolve or narrow the dispute during the meet-and-confer conference, the
17
parties were unable to resolve or narrow the dispute without court intervention. Id.
18
Accordingly, Big Sky has complied with its local and federal rule requirements to attempt to
19
meet and confer to try to resolve the instant matter before filing the instant motion. Id. Counsel
20
for Big Sky and ROK agreed that Big Sky could have until July 8, 2024, to file its response to
21
the Subpoenas, which is constituted by the instant motion. Id.
22
///
23
///
24
///
25
///
26
///
27
28
[Page 10]
1 6. Conclusion
2
For all these reasons, Big Sky respectfully requests an order to quash or, at the very
3 least, modify the Subpoenas at issue, and grant such other and further relief as the Court deems
4 necessary.
5
DATED this 8th day of July, 2024.
6
HUTCHISON & STEFFEN, PLLC
7
8
Signature
9
Brenoch Wirthlin, Esq. (10282)
10
Shelby Dahl, Esq. (13856)
Peccole Professional Park
11
10080 West Alta Drive, Suite 200
12
Las Vegas, Nevada 89145
13
Phone (702) 385-2500
Fax (702) 385-2086
14
[email protected]
Attorneys for Big Sky
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[Page 11]
1
CERTIFICATE OF SERVICE
2
I hereby certify that on the date below, I electronically transmitted the foregoing
3
OBJECTION TO SUBPOENAS AND MOTION TO QUASH OR MODIFY
4
SUBPOENAS to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
5
Notice of Electronic Filing to all counsel in this matter; all counsel being registered to receive
6
Electronic Filing.
7
Dated this 8th day of July, 2024.
8
9
Signature
An Employee of Hutchison & Steffen, PLLC
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28