PlayUp, Inc. v. Mintas, No. 2:2021cv02129 - Document 498 (D. Nev. 2024)
Court Description: ORDER Denying 404 Motion to Compel, Denying 414 Motion for Sanctions, and Granting 457 Motion for Protective Order. Signed by Magistrate Judge Nancy J. Koppe on 3/25/2024. (Copies have been distributed pursuant to the NEF - RJDG)
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PlayUp, Inc. v. Mintas Doc. 498 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 PLAYUP, INC., 9 10 Order v. [Docket Nos. 404, 414, 457] DR. LAILA MINTAS, Defendant(s). 11 12 Case No. 2:21-cv-02129-GMN-NJK Plaintiff(s), 8 The parties return to the Court on their latest round of discovery disputes, this time arising 13 out of Defendant/Counterclaimant Laila Mintas’ efforts to obtain discovery from opposing 14 counsel. Pending before the Court is Mintas’ motion to compel compliance with a subpoena duces 15 tecum seeking document production from the law firm of Zumpano Patricios Popok & Helsten 16 (“ZPPH”). Docket No. 404; see also Docket No. 406 (errata). ZPPH filed a response in 17 opposition. Docket No. 410. Mintas filed a reply. Docket No. 419. Also pending before the 18 Court is PlayUp’s1 countermotion for sanctions. Docket No. 414. Mintas filed a response in 19 opposition. Docket No. 424. PlayUp filed a reply. Docket No. 435. Also pending before the 20 Court is PlayUp’s motion for protective order seeking to preclude the deposition of lead counsel, 21 Michael Popok. Docket No. 457. Pursuant to the Court’s order, Docket No. 460, PlayUp filed a 22 supplement, Docket No. 465. Mintas filed a response in opposition. Docket No. 472. PlayUp 23 filed a reply. Docket No. 486.2 The motions are properly resolved without a hearing. See Local 24 Rule 78-1. For the reasons discussed below, Mintas’ motion to compel (Docket No. 404) is 25 1 The reply clarifies that this motion is actually brought by PlayUp, Inc. and Daniel Simic, 26 the parties to this case. Docket No. 435 at 2 n.1. For ease of reference, the Court will generally refer to the PlayUp-related parties and counsel collectively as “PlayUp.” 27 2 The Court cites herein to the pagination provided by CMECF, as opposed to the native 28 pagination in the filings. 1 Dockets.Justia.com 1 DENIED, PlayUp’s motion for protective order (Docket No. 457) is GRANTED, and PlayUp’s 2 motion for sanctions (Docket No. 414) is DENIED. 3 I. BACKGROUND 4 This case arises from a soured business relationship, resulting in the termination of Mintas 5 as CEO, competing allegations of wrongful conduct, and competing claims for tens of millions of 6 dollars in damages. These circumstances are no doubt personal for all involved—and the case 7 involves a lot of money—which has spawned a contentious and messy discovery process. 8 Mintas brought counterclaims against PlayUp for defamation, false light, and abuse of 9 process. See Docket No. 336 (third amended counterclaims). The counterclaims are predicated in 10 part on statements allegedly made by Popok, attorney for PlayUp, to the press regarding this case 11 and regarding Mintas’ alleged actions. For example, the counterclaims allege that: 12 15 169. Simic, PlayUp Inc. and PlayUp Ltd.’s attorney, Michael Popok, have [sic] given interview(s) with the media disparaging Dr. Mintas. Upon information and belief, this was done at the direction of or with the authorization of Simic, PlayUp Inc. and PlayUp Ltd. As a result of the negative media coverage, Dr. Mintas suffered significant damage to her reputation, and FTX declined to re-engage with PlayUp. 16 ... 17 181. Moreover, during the course of this litigation, Simic and PlayUp Inc.’s attorney has given interview(s) with the media disparaging Dr. Mintas. See https://www.bonus.com/news/playupexplainer-2/ (last visited February 8, 2023) (Popok quoted as saying, among other things, “Once the FTX deal fell through, she [Dr. Mintas] had the audacity to offer herself up as the fireman—she was the only one who could save the deal with FTX, because everyone at PlayUp was stupid and she was the one who’d built up the company. ‘I’m the only one who can bring FTX back to the table;’” “Mintas remained in the Bahamas after FTX had concluded its meeting with Simic and Costa. That’s the point at which Popok claims that Mintas betrayed him and the company;” and “So of course FTX bailed. What buyer wouldn’t after hearing all the lies Mintas was telling them. Even if they knew she was being entirely truthful, who’d want to buy into a company that’s still got someone like her to deal with.”). 13 14 18 19 20 21 22 23 24 25 26 27 28 182. Of note, Popok gave this interview at the same time as when Simic has represented he was with FTX in the Bahamas in an effort to strike a deal with FTX. ... 2 184. Since filing the lawsuit, PlayUp Inc. has conducted this litigation with abusive measures and litigation tactics, including, but not limited to, having their agent, Popok, give interviews to the press disparaging Dr. Mintas . . . 1 2 3 See Docket No. 336 at ¶¶ 169, 181, 182, 184; see also, e.g., id. at ¶¶ 135, 223. 4 On February 13, 2023, Mintas served Popok’s firm (ZPPH) with a subpoena duces tecum 5 seeking the production of documents regarding communications between ZPPH employees and 6 the media related to Mintas and this litigation, including specifically communications with the 7 author of the noted Bonus.com article, Devon Jackson. Docket No. 404-2 at 7. ZPPH objected to 8 the subpoena as harassing and seeking irrelevant information. Docket No. 404-6. The ensuing 9 conferral efforts proved unsuccessful. See Docket No. 406-2 at ¶¶ 10-11; Docket Nos. 404-7, 40410 8. On January 15, 2024, Mintas indicated that she would seek the deposition of Attorney Popok. 11 Docket No. 457-1 at ¶ 7.3 PlayUp objected to the deposition and the ensuing conferral efforts 12 proved unsuccessful. Id. at ¶ 10. 13 II. DISCOVERY MOTIONS STANDARDS 14 A. 15 “The discovery process in theory should be cooperative and largely unsupervised by the Motion to Compel Non-Party Document Production 16 district court.” Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). Parties are 17 permitted to subpoena nonparties for the production of documents. Fed. R. Civ. P. 45(a)(1)(A)(iii). 18 When the nonparty objects to the subpoena and conferral efforts are unavailing, the serving party 19 may move to compel compliance with the subpoena. Fed. R. Civ. P. 45(d)(2)(B)(i); see also Fed. 20 R. Civ. P. 34(c). The nonparty seeking to avoid discovery bears the burden of persuasion in 21 opposing a motion to compel. See Goodman v. United States, 369 F.2d 166, 169 (9th Cir. 1966). 22 B. Motion for Protective Order 23 When a party objects to discovery and conferral efforts are unavailing, the objecting party 24 may seek a protective order. Fed. R. Civ. P. 26(c). The party seeking to avoid discovery bears the 25 burden of showing why that discovery should not be permitted. V5 Techs. v. Switch, Ltd., 334 26 27 3 The Court raised concerns regarding the timing of Mintas seeking Attorney Popok’s deposition. See Docket No. 460. Because Mintas is not entitled to the deposition at any rate, the 28 Court need not rule on the timeliness issue. 3 1 F.R.D. 306, 309 (D. Nev. 2019). The party resisting discovery must specifically detail the reasons 2 why each request is irrelevant or otherwise objectionable, and may not rely on boilerplate, 3 generalized, conclusory, or speculative arguments. F.T.C. v. AMG Servs., Inc., 291 F.R.D. 544, 4 553 (D. Nev. 2013). Arguments against discovery must be supported by “specific examples and 5 articulated reasoning.” E.E.O.C. v. Caesars Ent., Inc., 237 F.R.D. 428, 432 (D. Nev. 2006). 6 C. Obtaining Deposition Testimony of Opposing Counsel 7 If a party seeks relevant information that is proportional to the needs of the case, the rules 8 provide that a party may depose “any person.” Fed. R. Civ. P. 30(a)(1). The governing rules 9 articulate no prohibition against deposing opposing counsel. Massachusetts Mut. Life Ins. Co. v. 10 Cerf, 177 F.R.D. 472, 478 (N.D. Cal. 1998). Nonetheless, the United States Supreme Court has 11 “alluded to a presumption that trial counsel should not be forced to testify because doing so 12 compromises the standards of the legal profession.” Nocal, Inc. v. Sabercat Ventures, Inc., No. C 13 04–0240 PJH (JL), 2004 WL 3174427, at *2 (N.D. Cal. Nov. 15, 2004) (discussing Hickman v. 14 Taylor, 329 U.S. 495, 513 (1947)). 15 The Eighth Circuit provides the leading case on evaluating the propriety of deposing 16 opposing counsel. In Shelton v. American Motors Corp., the Eighth Circuit recognized that 17 allowing the deposition of opposing counsel “not only disrupts the adversarial system and lowers 18 the standards of the profession, but it also adds to the already burdensome time and costs of 19 litigation.” 805 F.2d 1323, 1327 (8th Cir.1986). Attempting to take the deposition of opposing 20 counsel causes pretrial delays to resolve work-product and attorney-client objections and collateral 21 issues raised by the attorney’s testimony. Id. The practice also “detracts from the quality of client 22 representation” and has a “chilling effect” on attorney-client representations. Id. For these 23 reasons, depositions of opposing counsel should proceed in limited circumstances when: (1) no 24 other means exist to obtain the information sought; (2) the information is both relevant and non25 privileged; and (3) the information is crucial to the preparation of the case. Id. 26 Although the Ninth Circuit has not ruled on the issue, other circuits have adopted the 27 Shelton test. Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002); 28 Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1112 & n.15 (10th Cir. 2001); see also Nguyen 4 1 v. Excel Corp., 197 F.3d 200, 209 (5th Cir. 1999) (assuming the applicability of the Shelton test 2 and applying it).4 Judges within this District, including the undersigned, also routinely follow the 3 Eighth Circuit’s approach enunciated in Shelton in addressing attempts to obtain deposition 4 testimony from opposing counsel. See Hanover Ins. Co. v. Terra S. Corp., No. 2:18-cv-006755 KJD-EJY, 2019 WL 5963986, at *3 (D. Nev. Nov. 12, 2019) (collecting cases); see also, e.g., 6 Couturier v. Am. Invsco Corp., No. 2:12-cv-01104-APG-NJK, 2013 WL 4499008, at *3-4 (D. 7 Nev. Aug. 20, 2013). Although not unanimous, applying Shelton in this context is also the majority 8 approach within the Ninth Circuit. See SBP LLLP v. Hoffman Constr. Co. of Am., No. 1:19-cv9 00266-DCN, 2021 WL 3131310, at *4 (D. Id. July 23, 2021); see also Littlefield v. Nutribullet, 10 LLC, No. CV 16-6894 MWF (SSx), 2017 WL 10438897, at *4 (C.D. Cal. Nov. 7, 2017) (collecting 11 cases). The Court will continue to follow the majority approach and will apply Shelton to Mintas’ 12 request to depose opposing counsel. 13 Hence, the request to depose opposing counsel will be subject to the following standards, 14 succinctly stated. Depositions of opposing counsel are disfavored and should only be permitted in 15 limited circumstances. See Johnson v. Couturier, 261 F.R.D. 188, 193 (E.D. Cal. 2009); see also 16 Harter v. CPS Sec. (USA), Inc., No. 2:12-cv-00084-MMD-PAL, 2013 WL 129418, at *8 (D. Nev. 17 Jan. 9, 2013). The party seeking to depose opposing counsel must show that: (1) no other means 18 exist to obtain the information, (2) the information sought is relevant and nonprivileged, and (3) 19 the information is crucial to the preparation of the case. Shelton, 805 F.2d at 1327. In this context, 20 the burden shifts to the party seeking to depose an attorney to demonstrate that such deposition is 21 warranted. American Cas. Co. of Reading, Pa. v. Krieger, 160 F.R.D. 582, 588 (S.D. Cal. 1995); 22 see also Fernandez v. Penske Truck Leasing Co., No. 2:12-cv-00295-JCM-GWF, 2013 WL 23 438669, at *2 (D. Nev. Feb. 1, 2013). This is a “difficult burden” to meet. Ditech Fin. LLC v. 24 25 4 The Second Circuit has expressed a preference for a “more flexible approach to attorney depositions,” though it did not “rule definitively on the matter” because that appeal was moot. In 26 re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 67 (2d Cir. 2003); see also id. at 72 n.4 (explaining that the decision was dicta given mootness of the appeal). While there is some daylight 27 between Shelton and the approach suggested in Friedman, both create a presumption against depositions of opposing counsel and are only “slightly different.” Monster Energy Co. v. Vital 28 Pharm., Inc., No. 5:18-cv-01882-JGB (SHKx), 2020 WL 2405295, at *8 (C.D. Cal. Mar. 10, 2020). 5 1 SFR Invs. Pool 1, LLC, No. 2:15-cv-00476-JCM-VCF, 2016 WL 4370034, at *2 (D. Nev. Aug. 2 15, 2016). 3 D. Obtaining Document-Based Discovery from Opposing Counsel 4 Although the Ninth Circuit has not ruled on the issue, several courts within the Ninth 5 Circuit have applied the Shelton framework to document requests served on opposing counsel. 6 Pizana v. Sanmedica Int’l, LLC, No. 2:18-cv-00655-DAD-SKO, 2021 WL 1060440, at *5 n.3 7 (E.D. Cal. Mar. 18, 2021); Monster Energy, 2020 WL 2405295, at *8-9; Silver v. BA Sports 8 Nutrition, LLC, No. 20-cv-00633-SI, 2020 WL 6342939, at *2 (N.D. Cal. Oct. 29, 2020); Rygg v. 9 Hulbert, No. C11-1827 JLR, 2013 WL 264762, at *1 (W.D. Wash. Jan. 23, 2013); Flotsam of Cal., 10 Inc. v. Huntington Beach Conf. & Visitors Bureau, No. C 06-7028 MMC (MEJ), 2007 WL 11 4171136, at *1 (N.D. Cal. Nov. 26, 2007); Nocal, 2004 WL 3174427, at *2-4.5 While recognizing 12 that depositions differ from document requests, these courts have explained that discovery sought 13 from opposing counsel is “universally disfavored.” Monster Energy, 2020 WL 2405295, at *9. 14 That disfavor arises from the similar risks of disrupting litigation, detracting from the quality of 15 client representation, and chilling attorney-client representations. See Rygg, 2013 WL 264762, at 16 *1 (explaining that document requests “are just as problematic as the deposition requests, and for 17 the same reasons”). This is the majority approach within the Ninth Circuit. 18 Mintas argues that document-based discovery from opposing counsel is analyzed under the 19 default discovery rules and that no special protection should be afforded to opposing counsel, 20 citing to the decision of a discovery special master. See Docket No. 419 at 11-12 (discussing in 21 re Allergan, Inc. Securities Litig., No. 14-cv-02004-DOC (KES), 2016 WL 5922717, at *3 (C.D. 22 Cal. Sept. 23, 2016)).6 The special master expressed doubt that Shelton applied beyond the context 23 of depositions, noting that some courts have encouraged written discovery as a viable alternative 24 5 Courts from outside the Ninth Circuit have also applied Shelton to requests for documents 25 from opposing counsel. See Allen v. Brown Advisory, LLC, No. 3:20-mc-00008, 2020 WL 5603760, at *2 (W.D. Va. Sept. 17, 2020); XTO Energy, Inc. v. ATD, LLC, No. 1:14-cv-01021, 26 2016 WL 1730171, at *31 (D.N.M. Apr. 1, 2016). 27 6 At least one other decision within the Ninth Circuit has questioned whether Shelton applies in the document-production context, but that court ultimately declined to resolve the issue. 28 See Wilcox v. Swapp, No. 2:17-cv-275-RMP, 2018 WL 6419295, at *2 (E.D. Wash. Dec. 6, 2018). 6 1 to attorney depositions because it “do[es] not involve the same dangers as an oral deposition of 2 opposing counsel.” See id. (quoting Kelling v. Bridgestone/Firestone, Inc., 153 F.R.D. 170, 171 3 (D. Kan. 1994)). While the approach taken in Allergan is not an unreasonable one, the Court is 4 more persuaded by the majority approach within the Ninth Circuit concluding that requests for 5 documents from opposing counsel are subject to the Shelton test. The Court will apply Shelton to 6 Mintas’ request for documents from opposing counsel. 7 III. DISCOVERY MOTIONS ANALYSIS 8 As explained above, the party seeking to depose opposing counsel or obtain document- 9 based discovery from opposing counsel must show that: (1) no other means exist to obtain the 10 information, (2) the information sought is relevant and nonprivileged, and (3) the information is 11 crucial to the preparation of the case. Shelton, 805 F.2d at 1327. Because Mintas fails to satisfy 12 the first and third requirements, the discovery will not be permitted. 13 A. Relevant and Nonprivileged Nature of the Information 14 The discovery at issue consists of a proposed deposition to obtain testimony from Attorney 15 Popok regarding his contacts with the media, as well as requests for documents from Attorney 16 Popok’s firm regarding contacts with the media. See, e.g., Docket No. 404-2 at 6-8; Docket No. 17 457-1 at ¶ 8. As a threshold matter, the Court agrees with Mintas that this discovery is relevant. 18 See, e.g., Docket No. 406-1 at 11-14. The discovery seeks information regarding Attorney Popok’s 19 statements, allegedly made on behalf of PlayUp, which form part of the basis of Mintas’ 20 counterclaims. See Docket No. 336 at ¶¶ 169, 181, 182, 184. The standard for discovery 21 22 23 24 25 26 27 28 7 1 “relevance” remains broad in nature, V5 Technologies, 334 F.R.D. at 309, and is met here.7 The 2 Court also agrees with Mintas that attorney communications with the media are not subject to the 3 attorney-client privilege. Cf. Wynn Resorts, Ltd. v. Eighth Judicial Dist. Ct., 133 Nev. 369, 374 4 (2017) (for the attorney-client privilege to apply, “the communications must be between an 5 attorney and client”); see also Docket No. 435 at 8 n.5 (PlayUp indicating that it “is not claiming 6 that the communications sought by the subpoena are privileged”).8 7 B. No Other Means Exist to Obtain the Information 8 Because the information sought is relevant and nonprivileged, the second requirement of 9 the Shelton test is met here. That is as far as Mintas’ showing goes, though. With respect to the 10 first requirement, Mintas argues that obtaining discovery from opposing counsel is the “only 11 means” to determine what Attorney Popok and ZPPH told the media. Docket No. 419 at 13. The 12 Court disagrees. Mintas forgets an obvious alternative source for this information: the media 13 outlets and reporters who wrote the subject stories. Quite plainly, Attorney Popok was not talking 14 to himself, and Mintas already knows the identity of the media outlet (Bonus.com) and reporter 15 (Devon Jackson) that quoted Attorney Popok. E.g., Docket No. 336 at ¶ 181. Mintas also knows 16 the other publications and authors that have written about her and this case. Compare Docket No. 17 406-1 at 7 with Docket No. 404-2 at 8. Mintas provides no meaningful explanation why this 18 19 7 In arguing against relevance, PlayUp relies on an earlier order denying Mintas’ motion to disqualify counsel. See, e.g., Docket No. 410 at 8-9. Such reliance is misplaced. That ruling was 20 predicated on a narrow issue: whether Mintas established that Attorney Popok knew or should have known that his extrajudicial statements would have a substantial likelihood of materially 21 prejudicing an adjudicative proceeding. Docket No. 289 at 2-3. The Court did not therein opine on whether Attorney Popok’s communications with the media were defamatory or otherwise 22 actionable, nor whether discovery into the communications was warranted. See id. 23 PlayUp also argues that the discovery is “irrelevant” because Attorney Popok has declared that there are no additional contacts. See Docket No. 486 at 6. In support of that proposition, 24 PlayUp cites an unpublished district court decision from 2012 that has never been followed. See id. In this Court’s view, the existence of a contrary declaration does not bear on whether the 25 discovery meets the standard of “relevance.” The Court will discuss the identified declaration, however, with respect to whether the information sought is crucial to the case. 26 8 PlayUp pivots in briefing the deposition dispute to argue that Mintas failed to show that 27 Popok possesses nonprivileged information. See, e.g., Docket No. 486 at 6-7. The Court need not get into the weeds on whether some aspects of the deposition might veer into privileged areas, 28 however, because the deposition cannot proceed regardless. 8 1 information could not be obtained from the publications and authors, rather than seeking it from 2 opposing counsel.9 Hence, Mintas fails to establish the first requirement. Cf. Flotsam, 2007 WL 3 4171136, at *1 (noting potential to obtain press-related documents from nonparty news agencies 4 rather than from opposing counsel). 5 C. The Information is Crucial to the Preparation of the Case 6 In addition to failing to show that no other means exist to obtain this information, Mintas 7 has also not shown that the information is “crucial” to the preparation of the case. Her argument 8 as to the “crucial” nature of the discovery is barebones. See Docket No. 472 at 21-22; see also 9 Docket No. 419 at 13. Mintas has effectively collapsed the analysis of whether the discovery is 10 “crucial” with the distinct question of whether the discovery is “relevant,” but these terms are not 11 synonymous. Ditech, 2016 WL 4370034, at *3. For discovery of opposing counsel to be 12 warranted, the information “must have greater importance to the action than merely being 13 relevant.” Id.; see also FMC Techs., Inc. v. Edwards, No. C05-946C, 2007 WL 836709, at *5 14 (W.D. Wash. Mar. 15, 2007) (explaining that “helpful” deposition testimony is not “crucial”). 15 Information would be crucial if it is “necessary for the survival of a claim or defense.” Hanover 16 Insurance, 2019 WL 5963986, at *8 (citing Mid-Century Ins. Co. v. Wells, No. 2:12-cv-0204117 GMN-VCF, 2013 WL 12321555, at *3 (D. Nev. June 17, 2013)). 18 Mintas states in conclusory fashion that the information is necessary to effectively litigate 19 her claims. E.g., Docket No. 472 at 22. Why that is so is not meaningfully explained. Mintas 20 relies on a case in which a showing was made that discovery was needed to oppose summary 21 judgment, see id. at 21-22, but Mintas notably fails to make any similar showing that her ability to 22 prove any particular element of any of her counterclaims hinges on this discovery. To the contrary, 23 Mintas herself notes that her counterclaims only rely “in part” on the allegations involving 24 Attorney Popok, see, e.g., Docket No. 472 at 21, and there are myriad other factual allegations on 25 9 Mintas references that only Attorney Popok and ZPPH know the entire universe of their 26 communications with the media, so she cannot obtain this information from the media. See, e.g., Docket No. 472 at 19. Such an assertion is not responsive to the bulk of the discovery in dispute, 27 which seeks communications with specifically identified individuals and media outlets. Moreover, this argument essentially rehashes Mintas’ contention that she disbelieves Attorney Popok’s 28 declaration as to the limited nature of his media contacts. The Court addresses that issue below. 9 1 which her counterclaims are based. The fact that this information represents a subset of the factual 2 predicate to Mintas’ counterclaims undermines the contention that the information is crucial. In 3 short, while this discovery might be helpful to Mintas in proving her counterclaims, see, e.g., 4 Docket No. 406-1 at 11-13, she has not shown that it is crucial. 5 The primary gist of Mintas’ argument is that discovery may disprove the attestations made 6 by Attorney Popok that his media contacts have been limited to Devon Jackson. See Docket No. 7 424 at 6; see also Docket No. 457 at 3 n.2. The Court is not persuaded that this is solid ground on 8 which to find the information is crucial. Several courts have concluded that information is not 9 crucial to the preparation of the case when the need for it is predicated on bald suspicions 10 concerning the veracity of an attorney’s earlier attestations in the case. Gilbert v. Money Mut., 11 LLC, No. 13-cv-01171-JSW (LB), 2016 WL 3196605, at *7 (N.D. Cal. June 9, 2016) (denying 12 request to depose opposing counsel where the movants’ main argument was that they did not 13 believe opposing counsel’s declaration); see also S.E.C. v. Pulier, No. CV 17-7124 PSG (RAOx), 14 2020 WL 8572081, at *4 (C.D. Cal. Dec. 14, 2020). In this case, Attorney Popok filed a 15 declaration under penalty of perjury that there has been “no other contact with the media” from 16 himself or ZPPH apart from the communications with Devon Jackson related to the Bonus.com 17 article. Docket No. 251 at ¶¶ 29-31. PlayUp also notes that Attorney Popok’s correspondence 18 with Jackson was voluntarily provided earlier in the case. See Docket No. 410 at 3 n.2 (citing 19 Docket No. 255-1). Mintas insinuates that an off-handed reference in the article that Attorney 20 Popok was happy to talk “to anyone who will listen” must mean that he was lying under oath to 21 the Court about having limited media contacts. See, e.g., Docket No. 419 at 10; Docket No. 424 22 23 24 25 26 27 28 10 1 at 6.10 The Court does not find that this statement, which theoretically suggests additional media 2 contacts, renders it crucial to “test” Attorney Popok’s declaration to the contrary.11 3 For these reasons, Mintas fails to establish the third requirement. 4 D. 5 Mintas has failed to sustain her heavy burden of showing that the deposition and written Conclusion 6 discovery she seeks from opposing counsel is warranted. Mintas has not shown that the 7 information cannot be obtained from another source or that it is crucial to the preparation of the 8 case. “Either ground” provides a basis to prohibit this discovery. SBP, 2021 WL 3131310 at *4. 9 Accordingly, Mintas’ motion to compel will be denied and PlayUp’s motion for protective order 10 will be granted. 11 IV. PLAYUP’S COUNTERMOTION FOR MONETARY RELIEF 12 In responding to the motion to compel the production of documents, PlayUp filed a 13 countermotion for an award of expenses pursuant to Rule 37(a)(5)(B) of the Federal Rules of Civil 14 Procedure and for sanctions pursuant to 28 U.S.C. § 1927. Docket No. 414 at 19-22. The Court 15 is not persuaded on either front.12 16 A. Rule 37(a)(5)(B) 17 A pillar of federal litigation is that discovery should proceed with minimal involvement of 18 the Court. Cardoza v. Bloomin' Brands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015) (quoting 19 10 Mintas has not identified any discovery obtained from this particular reporter as to what 20 prompted this statement to be written. 21 22 23 24 25 26 27 11 Mintas alludes to the potential that this discovery from opposing counsel might theoretically reveal additional fact witnesses. See Docket No. 472 at 22. Such conclusory speculation is unpersuasive, particularly given the declaration to the contrary. At any rate, this argument does not make sense given the procedural posture of the case, in which discovery is generally closed. Docket No. 496 at 4. Discovery is meant to be a frontloaded process and not one involving deadline brinksmanship. V5 Techs. v. Switch, Ltd., 332 F.R.D. 356, 363 (D. Nev. 2019) (quoting Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1044 (S.D. Iowa 2010)). Foundational discovery (like identifying fact witnesses) should not take place in the twilight of the discovery period. Cf. U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-cv01588-LRH-GWF, 2014 WL 5045109, at *2 (D. Nev. Oct. 9, 2014) (declining to compel discovery that would be used for follow-on discovery efforts given procedural posture). 12 Mintas requests an award of expenses in relation to her motion to compel. Docket No. 406-1 at 14. Because Mintas lost that motion, she is not entitled to an award of expenses. See 28 Fed. R. Civ. P. 37(a)(5)(A). 11 1 F.D.I.C. v. Butcher, 116 F.R.D. 196, 203 (E.D. Tenn. 1986)). Instead of forcing judicial oversight 2 of every dispute, attorneys are expected to approach discovery with an eye toward cooperation, 3 practicality, and sensibility. In re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N.D. 4 Cal. 1985). “The governing rules reflect this in several ways, including providing a presumption 5 that reasonable expenses—including attorneys’ fees—will be awarded to the party that prevails on 6 a discovery motion.” Big City Dynasty v. FP Holdings, L.P., 336 F.R.D. 507, 513 (D. Nev. 2020) 7 (citing Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786-87 (7th Cir. 1994)). Hence, when a motion 8 to compel has been denied, the Court “must” generally award expenses to the party that 9 successfully opposed the motion. See Fed. R. Civ. P. 37(a)(5)(B). 10 The losing party may rebut the presumption of an award of expenses by establishing that 11 her position was “substantially justified.” Fed. R. Civ. P. 37(a)(5)(B). A position is substantially 12 justified when “the parties had a genuine dispute on matters on which reasonable people could 13 differ as to the appropriate outcome.” Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. 14 Nev. 2016) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The party facing an award 15 of expenses bears the burden of establishing substantial justification. See Nationstar Mortg., LLC 16 v. Flamingo Trails No. 7 Landscape Maintenance Assoc., 316 F.R.D. 327, 335 (D. Nev. 2016). 17 District courts have “great latitude” in awarding expenses under Rule 37. Lew v. Kona Hosp., 754 18 F.2d 1420, 1425 (9th Cir. 1985). 19 The Court agrees with Mintas that an award of expenses is not warranted here. As 20 discussed above, the requests for documents from Attorney Popok’s firm fall within the broad 21 scope of relevant discovery in light of Mintas’ allegations that Attorney Popok defamed her in 22 media communications. Docket No. 336 at ¶¶ 169, 181, 182, 184. Moreover, Mintas cited some 23 authority casting doubt that the Shelton analysis applies to document-based discovery. See 24 Allergan, 2016 WL 5922717, at *3. Although it ultimately turned out to be a loser, Mintas’ motion 25 to compel the production of documents was substantially justified. 26 B. 28 U.S.C. § 1927 27 “Any attorney ... who so multiplies the proceedings in any case unreasonably and 28 vexatiously may be required by the court to satisfy personally the excess costs, expenses, and 12 1 attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. An award of 2 sanctions under Section 1927 requires a showing of recklessness or bad faith. B.K.B. v. Maui 3 Police Dept., 276 F.3d 1091, 1107 (9th Cir. 2002) (reconciling case law). 4 The Court is not persuaded that such sanctions are warranted here. As noted above, the 5 discovery at issue in the motion compel is relevant and Mintas’ motion was substantially 6 justified.13 This request for sanctions appears predicated mostly on the assertion that Mintas is 7 harassing PlayUp by relitigating the earlier denial of her motion to disqualify counsel. See, e.g., 8 Docket No. 414 at 20-21; Docket No. 435 at 2-3. As already explained, that ruling addressed a 9 narrow issue: whether Attorney Popok knew or should have known that his extrajudicial 10 statements would have a substantial likelihood of materially prejudicing an adjudicative 11 proceeding. Docket No. 289 at 2-3. The Court did not therein opine on whether Attorney Popok’s 12 communications with the media were defamatory or otherwise actionable, nor whether Attorney 13 14 15 16 17 18 19 20 21 22 23 24 13 The parties dispute the statement that Attorney Popok contacted the media repeatedly, 25 which Mintas’ counsel later changed through an errata to indicate that he repeatedly communicated with the media. See, e.g., Docket No. 435 at 11. To be perfectly clear, Attorney Popok’s version 26 of events is that he had at least three communications with reporter Devon Jackson. See, e.g., Docket No. 410 at 6 (noting an “initial call” that was tabled, a second interaction in which Jackson 27 “spoke to Popok again,” and an email from Attorney Popok regarding a statement in the story that was published). That Mintas’ counsel initially described these circumstances as “PlayUp’s counsel 28 [having] repeatedly reached out to the media,” Docket No. 404 at 4, is not sanctionable conduct. 13 1 Popok’s communications with the media were discoverable.14 In short, PlayUp has not shown that 2 Mintas unreasonably or vexatiously multiplied proceedings. 3 V. CONCLUSION 4 For the reasons discussed above, Mintas’ motion to compel (Docket No. 404) is DENIED, 5 PlayUp’s motion for protective order (Docket No. 457) is GRANTED, and PlayUp’s motion for 6 sanctions (Docket No. 414) is DENIED. 7 IT IS SO ORDERED. 8 Dated: March 25, 2024 ______________________________ Nancy J. Koppe United States Magistrate Judge 9 10 11 12 13 14 15 14 The briefing includes ubiquitous accusations from PlayUp that Mintas is not engaging 16 in discovery cooperatively and that she provides over-aggressive argument, but that is by no means a one-sided problem. By way of an obvious example of the latter, PlayUp repeatedly exaggerates 17 the scope and meaning of the order denying the motion to disqualify. See, e.g., Docket No. 410 at 7 (“the Court expressly held that the [Popok] has not breached any rule of professional conduct 18 since taking over as lead trial counsel”); Docket No. 435 at 3 (“this Court found that Mr. Popok’s communications with the reporter were not improper”). Such grand pronouncements are plainly 19 absent from the subject order. See Docket No. 289 at 2-3. 20 21 22 23 24 25 Moreover, the parties engaged in full motion practice on a discovery dispute over these documents, along with full motion practice on a countermotion for sanctions, all while PlayUp is contending that there are no undisclosed contacts or documents. See Docket No. 410 at 3 n.2. “Despite that,” PlayUp felt “compelled” to engage in lengthy motion practice because of what it viewed as Mintas’ improper conduct. Id. Neither discovery nor discovery motion practice is meant to proceed in tit-for-tat fashion. National Acad. of Recording Arts & Scis., Inc. v. On Point Events, LP, 256 F.R.D. 678, 680-81 (C.D. Cal. 2009) (collecting cases). As alluded to by Mintas, see Docket No. 419 at 10 n.4, one must wonder if the spirit of discovery cooperation would have been better advanced by PlayUp noting its objections to the subpoena for documents, and then certifying that no responsive documents exist other than the one already filed on the docket. Lastly, it is important to recognize that there is a published article indicating that Attorney 26 Popok made a number of statements to Devon Jackson, including allegedly saying Mintas had been telling “lies.” Docket No. 404-4 at 6. As a result, Attorney Popok’s conduct is specifically 27 identified in Mintas’ operative pleading. E.g., Docket No. 336 at ¶ 181. While the Court ultimately denies her attempts to obtain the disputed discovery, the suggestion that Mintas is seeking this 28 discovery only as a means to harass PlayUp is not substantiated. 14
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