Emtek (Shenzhen) Co., Ltd v. Waian Llc et al, No. 2:2019cv00927 - Document 66 (D. Nev. 2021)
Court Description: ORDER granting 65 Stipulation; Discovery in this matter shall remain STAYED. Telephonic Status Conference continued to 10/28/2021 at 10:00 AM. Signed by Magistrate Judge Elayna J. Youchah on 7/20/2021. (Copies have been distributed pursuant to the NEF - HAM)
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Emtek (Shenzhen) Co., Ltd v. Waian Llc et al Doc. 66 Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 1 of 9 1 ADAM J. PERNSTEINER Nevada Bar No. 7862 E-Mail: Adam.Pernsteiner@lewisbrisbois.com 2 LEWIS BRISBOIS BISGAARD & SMITH LLP 3 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 4 702.893.3383 FAX: 702.893.3789 5 GREG L. JOHNSON (Admitted Pro Hac Vice) California Bar No. 132397 6 E-mail: Greg.Johnson@lewisbrisbois.com 7 LEWIS BRISBOIS BISGAARD & SMITH LLP 2020 W. El Camino Avenue, Suite 700 8 Sacramento, California 95833 916.564.5400 9 Attorneys for Plaintiff EMTEK (SHENZHEN) 10 CO., LTD. 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 EMTEK (SHENZHEN) CO., LTD., a foreign 15 limited liability company, CASE NO. 2:19-cv-00927-GMN-EJY 16 STIPULATION AND ORDER TO EXTEND STAY OF DISCOVERY AND CONTINUE STATUS CONFERENCE 17 Plaintiff/Counter-Defendant, vs. 18 WAIAN LLC, OWEN S. WONG and EMTEK 19 INTERNATIONAL LLC, 20 Defendants/Counter-Claimants. 21 22 Pursuant to Local Rule 26-3 and all applicable authority, and by and through their 23 respective counsel of record, Plaintiff/Counter-Defendant EMTEK (SHENZHEN) CO., LTD. 24 (“Plaintiff” or “Counter-Defendant”) and Defendants/Counter-Claimants WAIAN LLC, OWEN S. 25 WONG, and EMTEK INTERNATIONAL LLC (“Defendants” or “Counter-Claimants”) hereby 26 submit to the Court this Stipulation and Order to Extend Stay of Discovery and Continue Status 27 LEWIS BRISBOIS BISGAARD & SMITH LLP 28 Conference. The primary reasons for this Stipulation are as follows: (1) the pending settlement 4837-7149-9762.1 Case No. 2:19-cv-00927-GMN-EJY ATTORNEYS AT LAW Dockets.Justia.com Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 2 of 9 1 discussions between the parties, who are currently negotiating the dissolution of the underlying 2 corporate entity; (2) the COVID-19 pandemic has resulted in numerous restrictions (and some 3 outright bans) on international travel and the obtaining of evidence; and (3) China does not permit 4 attorneys to take depositions in China for use in non-Chinese courts. There are additional reasons 5 6 7 as well. In connection with this Stipulation, the Parties hereby stipulate and agree as follows: I. INFORMATION PURSUANT TO LOCAL RULE 26-3 8 A. 9 On December 17, 2019, Plaintiff made its Initial Disclosures. 10 11 12 Discovery completed. On February 4, 2020, Defendants made their Initial Disclosures. On March 31, 2020, Plaintiff/Counter-Defendant produced its First Supplement to Plaintiff’s Rule 26(a)(1)(A) Disclosures. 13 14 On April 30, 2020, Plaintiff/Counter-Defendant produced its Second Supplement to 15 Plaintiff’s Rule 26(a)(1)(A) Disclosures. 16 On May 7, 2020, Plaintiff/Counter-Defendant propounded Plaintiff/Counter-Defendant’s 17 First Set of Requests for Admission to Defendant/Counterclaimants. 18 19 20 On May 7, 2020, Plaintiff/Counter-Defendant propounded Plaintiff/Counter-Defendant’s First Set of Requests for Production to Defendant/Counterclaimants. On May 7, 2020, Plaintiff/Counter-Defendant propounded Plaintiff/Counter-Defendant’s 21 22 23 First Set of Interrogatories to Defendant/Counterclaimant Owen S. Wong. On May 15, 2020, Plaintiff Counter-Defendant served Notice of Intent to Serve Subpoena 24 Duces Tecum on three separate deponents, including: (1) Custodian of Records for JPMorgan 25 Chase, Bank, N.A.; (2) Custodian of Records for Wells Fargo Bank, N.A., (3) Custodian of 26 Records for Citibank, N.A. These subpoenas were subsequently served on the respective 27 deponents and, after delays due to branch closures and other COVID-19 related service delays, as LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 28 4837-7149-9762.1 2 Case No. 2:19-cv-00927-GMN-EJY Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 3 of 9 1 of the date of this stipulation, Plaintiff Counter-Defendant has begun receiving the requested 2 records and anticipates a forthcoming supplemental production of documents from the deponents. 3 4 On June 19, 2020, Plaintiff Counter-Defendant produced its Third Supplement to Plaintiff’s Rule 26(a)(1)(A) Disclosures. 5 6 7 8 On July 12, 2020, Defendants produced their Second Supplement to Defendants’ Rule 26(a)(1)(A) Disclosures. On July 23, 2020, Plaintiff Counter-Defendant produced its Fourth Supplement to 9 Plaintiff’s Rule 26(a)(1)(A) Disclosures. 10 On July 29, 2020, Defendants produced their Response to Plaintiff/Counter-Defendant’s 11 First Set of Requests for Admissions. 12 On August 24, 2020, Defendants produced their Third Supplement to Defendants’ Rule 13 14 15 26(a)(1)(A) Disclosures. On September 6, 2020, Defendants produced their Fourth Supplement to Defendants’ Rule 16 26(a)(1)(A) Disclosures. 17 On September 8, 2020, Defendants produced their Response to Plaintiff/Counter- 18 Defendant’s First Set of Requests for Production. 19 On September 8, 2020, Defendants produced their Response to Plaintiff/Counter- 20 Defendant’s First Set of Interrogatories. 21 22 On October 5, 2020, Plaintiff received a supplemental document production of bank 23 records from Citibank, N.A. 24 On November 18, 2020, Defendants produced their Fifth Supplement to Defendants’ Rule 25 26(a)(1)(A) Disclosures. 26 27 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW On February 26, 2021, Defendants substituted new counsel in this matter. On March 8, 2021, Defendants served their demand for prior discovery. 28 4837-7149-9762.1 3 Case No. 2:19-cv-00927-GMN-EJY Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 4 of 9 1 B. Discovery that remains to be completed. 2 In the event the Parties are unable to finalize their negotiations, the Parties will need to 3 depose several witnesses, several of whom are based in China, which has continued to restrict 4 travel due to the Covid-19 pandemic. Defendants/Counter-Claimants counsel will want to take a 5 6 7 FRCP 30(b)(6) deposition of a representative of Plaintiff/Counter-Defendant. The Parties may also need to conduct expert discovery, including the use of accounting experts in the event the Parties 8 are unable to agree on the amounts in dispute. 9 10 C. Why discovery was not completed. Discovery has not been completed primarily for three reasons. First, since the stay of 11 discovery that was entered in this case on April 22, 2021, the Parties have been negotiating the 12 resolution of this lawsuit along with the dissolution of the underlying corporate entity, Emtek 13 14 International LLC, and the corresponding allocation of the entity’s assets and outstanding 15 liabilities. The Parties have exchanged written settlement papers and have reached shared 16 understandings on the bulk of the terms pertaining to the resolution of this lawsuit and dissolution 17 of the entity; however, the Parties are still in negotiations regarding the allocation of certain third18 party claims belonging to Emtek International LLC. The parties are continuing to negotiate as to 19 these remaining third-party claims and are hopeful that they will be able to reach a resolution, but 20 have not yet been able to reach a final agreement as to these remaining third-party claims 21 22 23 belonging to Emtek International LLC. Second, the global COVID-19 pandemic has resulted in numerous restrictions (and some 24 outright bans) on international travel and the obtaining of evidence, particularly as to depositions 25 of the remaining party representatives. Plaintiff/Counter-Defendant’s headquarters, along with its 26 representatives and witnesses, is located in Wuhan City, Hubei Province, in the People’s Republic 27 of China (“PRC” or “China”). LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW In fact, Plaintiff/Counter-Defendant’s headquarters, 28 4837-7149-9762.1 4 Case No. 2:19-cv-00927-GMN-EJY Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 5 of 9 1 representatives, and witnesses are located in the very city where the COVID-19 outbreak began. 2 Much discovery is needed from other individuals and entities in China. Because of the worldwide 3 pandemic, China has only recently begun to open international travel and business and other 4 operations. Even so, restrictions remain and travel visas have to be obtained. For these reasons, 5 6 the Parties have not yet had a chance to conduct meaningful discovery there. Third, in addition to the issues arising from the pandemic, “China does not permit 7 1 8 attorneys to take depositions in China for use in [non-Chinese] courts.” This is generally true 9 even if the depositions are taken voluntarily, remotely, or both. This restriction means that 10 Plaintiff’s representatives will not be able to be deposed while they are inside China or they could 11 be prosecuted by Chinese authorities. They would have to travel outside of China for the 12 depositions, which travel is not without its own restrictions and limitations due to the pandemic. 13 14 Plaintiff’s representatives will also have to obtain travel visas, which have additional restrictions. 15 Many U.S. consulates in China are currently closed and are not issuing any visas at all. The U.S. 16 embassy in Beijing is only allowing visas on an emergency basis. Requests to the Central 17 Authority under the Hague Evidence Convention for holding depositions while the Plaintiff and its 18 representatives are inside China has not been achieved by either parties’ counsel, and the Parties 19 anticipate that significant delays may be encountered until permission is obtained from the 20 Chinese Central Authority and/or the current COVID international travel restrictions between the 21 22 United States and China are lifted. 23 / / / 24 / / / 25 / / / 26 27 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 28 1 https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-CountryInformation/China.html (last visited July 16, 2021). 4837-7149-9762.1 5 Case No. 2:19-cv-00927-GMN-EJY Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 6 of 9 1 D. 2 The parties propose that the temporary stay of discovery remain in place, as follows: 3 Proposed schedule for completing all remaining discovery. Description of Deadline Old Date New Date Initial Disclosures Passed STAYED Amending Pleadings/Adding Parties Passed STAYED Interim Status Report Passed STAYED 8 Regular Discovery Cut-Off STAYED STAYED 9 Initial Expert Disclosures STAYED STAYED Rebuttal Expert Disclosures STAYED STAYED Expert Discovery Cut-Off STAYED STAYED Dispositive Motions STAYED STAYED Joint Pre-Trial Order STAYED STAYED 4 5 6 7 10 11 12 13 14 The parties would also request that the status conference in this matter that is currently 15 16 scheduled for July 22, 2021 at 10:00 a.m. be continued about (90) days out from the present 17 date or to a date that the Court deems reasonable for allowing sufficient time for the parties to 18 conclude their remaining settlement negotiations. 19 II. 20 GOOD CAUSE. As discussed in Part I.C above, the Parties would submit that there is good cause for why 21 22 discovery has not been completed and why discovery should remain temporarily stayed at this 23 juncture: (1) since the entry of the temporary stay, the Parties have continued their settlement 24 negotiations as to the resolution of this lawsuit and dissolution of Emtek International LLC, which 25 has resulted in the Parties reaching understandings as to the bulk of the negotiation terms – but 26 additional time is needed to conclude their negotiations as to the allocation of the corporate 27 entity’s remaining third-party claims; (2) the COVID-19 pandemic has resulted in numerous LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 28 4837-7149-9762.1 6 Case No. 2:19-cv-00927-GMN-EJY Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 7 of 9 1 restrictions (and some outright bans) on international travel and the obtaining of evidence; (3) 2 China does not permit attorneys to take depositions in China for use in non-Chinese courts; and 3 (4) the Parties have been duly diligent, and they have not been dilatory or clogging the Court’s 4 docket; (5) continuing the temporary stay of discovery would not prejudice Plaintiff or Defendants, 5 6 7 because all Parties have agreed to continue the stay; (6) the continued stay would not disrupt the Court’s proceedings in this matter because no hearings or trial dates are currently scheduled, apart 8 from the status conference on July 22, 2021, which the parties have asked to be continued by 9 about 90 days; (7) a continued temporary stay of discovery would allow the Parties to continue to 10 engage in meaningful settlement negotiations to conclude their negotiations as to Emtek 11 International LLC’s remaining assets and liabilities, without having to shift their focus, or bear the 12 time and expense, for additional discovery at this time, which discovery would be rendered 13 14 unnecessary in the first place if the Parties settle; and (8) given that there remain restrictions on 15 international travel and the obtaining of evidence, a stay would allow for a temporary pause until 16 conditions return somewhat more to “normal,” which might allow the Parties to proceed with 17 relatively uninhibited discovery, if they are not able to settle. 18 III. 19 REQUEST TO EXTEND OTHER DEADLINES. None at this time. 20 21 22 23 24 25 26 27 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 28 /// /// /// /// /// /// /// /// 4837-7149-9762.1 7 Case No. 2:19-cv-00927-GMN-EJY Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 8 of 9 1 IV. CONCLUSION. 2 Wherefore, Defendants/Counter-Claimants WAIAN LLC, OWEN S. WONG, and 3 EMTEK (“Defendants” or “Counter-Claimants”) and Plaintiff/Counter-Defendant EMTEK 4 (SHENZHEN) CO., LTD. (“Plaintiff” or “Counter-Defendant”) hereby request the Court to enter 5 6 the foregoing stipulation as an order of the Court and to continue the current stay of discovery. IT IS SO STIPULATED. 7 8 Dated this 20th day of July, 2021 Dated this 20th day of July, 2021 9 FRIZELL LAW FIRM LEWIS BRISBOIS BISGAARD & SMITH LLP /s/ R. Duane Frizell______________ R. DUANE FRIZELL, ESQ. Nevada Bar No. 9807 400 N. Stephanie St., Suite 265 Henderson, Nevada 89014 /s/ Adam J. Pernsteiner ________ ADAM J. PERNSTEINER, ESQ. Nevada Bar No. 7862 GREG L. JOHNSON, ESQ. California Bar No. 132397 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 10 11 12 13 14 Attorney for Defendants/Counter-Claimants Attorneys for Plaintiff/Counter-Defendant 15 16 17 18 19 20 21 22 23 24 25 26 27 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 28 /// /// /// /// /// /// /// /// /// /// /// /// 4837-7149-9762.1 8 Case No. 2:19-cv-00927-GMN-EJY Case 2:19-cv-00927-GMN-EJY Document 66 Filed 07/20/21 Page 9 of 9 ORDER 1 2 Having reviewed the foregoing Stipulation of the Parties, and finding good, just, and 3 sufficient cause therefor, it is hereby entered as an Order of the Court. 4 IT IS THEREFORE ORDERED AS FOLLOWS: 5 1. Discovery in this matter shall remain STAYED. 6 2. The telephonic status conference scheduled for July 22, 2021 at 10:00 a.m. is hereby continued to October 28, 2021 at 10:00 a.m. 7 8 IT IS SO ORDERED. 9 10 DATED: July 20, 2021 11 _____________________________________ UNITED STATES MAGISTRATE JUDGE CASE NO.: 2:19-cv-00927-GMN-EJY 12 13 14 Submitted by: 15 LEWIS BRISBOIS BISGAARD & SMITH LLP 16 /s/ Adam J. Pernsteiner______________ ADAM J. PERNSTEINER, ESQ. 18 Nevada Bar No. 7862 GREG L. JOHNSON, ESQ. 19 California Bar No. 132397 S. Rainbow Boulevard, Suite 600 20 6385 Las Vegas, Nevada 89118 17 21 Attorneys for Plaintiff/Counter-Defendant 22 23 24 25 26 27 LEWIS 28 BRISBOIS 9 BISGAARD & SMITH LLP ATTORNEYS AT LAW 4837-7149-9762.1 Case No. 2:19-cv-00927-GMN-EJY
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