Snow Covered Capital, LLC v. Fonfa et al, No. 2:2022cv01181 - Document 78 (D. Nev. 2023)

Court Description: ORDER Granting 74 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Brenda Weksler on 5/1/2023. (Copies have been distributed pursuant to the NEF - JQC)

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Snow Covered Capital, LLC v. Fonfa et al Doc. 78 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document78 74 Filed Filed05/01/23 04/27/23 Page Page11of of16 6 1 2 3 4 5 6 7 8 9 10 Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 11 12 Bob L. Olson, Esq. Nevada Bar No. 3783 SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 Email: bolson@swlaw.com James D. McCarthy (via pro hac vice) MaryAnn Joerres (via pro hac vice) David Reynolds (via pro hac vice) DIAMOND MCCARTHY, LLP 2711 N. Haskell Ave., Suite 3100 Dallas, TX 75204 Telephone: (214) 389-5300 Facsimile: (214 389-5399 Emails: jmccarthy@diamondmccarthy.com mjoerres@diamondmccarthy.com dreynolds@diamondmccarthy.com Attorneys for Snow Covered Capital, LLC 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 17 18 19 20 SNOW COVERED CAPITAL, LLC, Plaintiff, Case No.: 2:22-CV-01181-CDS-BNW vs. PLAINTIFF SNOW COVERED CAPITAL LLC’S MOTION FOR LEAVE TO FILE SUPPLEMENT TO ITS MOTION TO EXTEND SCHEDULING ORDER DEADLINES (ECF NO. 52) JODI FONFA; EVAN FONFA, an individual and in his capacity as the Trustee of THE EVAN FONFA 2018 TRUST dated December 26, 2018; THE EVAN FONFA 2018 TRUST dated December 26, 2018; and DOE DEFENDANTS I THROUGH X, Defendants. 21 22 23 Plaintiff Snow Covered Capital, LLC respectfully submits the above-referenced Motion for Leave. There is good cause for granting that Motion. I. 24 INTRODUCTION. 25 On March 8, 2023, SCC filed its Motion to Extend Scheduling Deadlines (ECF No. 52, the 26 “Motion to Extend”). That was SCC’s First Request for such an extension. The attorneys for 27 Defendant Evan Fonfa and his 2018 Trust agreed to that extension at the time of the filing, but later 28 reneged on that agreement after Defendant Jodi Fonfa, acting by and through her attorneys, 1 4886-3203-6192 Dockets.Justia.com Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document78 74 Filed Filed05/01/23 04/27/23 Page Page22of of16 6 1 announced her opposition to the Motion to Extend. The Motion to Extend asked this Court to 2 extend each of the deadlines set forth in the operative Scheduling Order (ECF No. 36) by “at least” 3 60 days.1 A proposed order to that effect was attached to the Motion to Extend as Exhibit “A”. 4 At the time the Motion to Extend was filed, the Evan Fonfa Defendants had not yet answered 5 the Complaint, while the Motion to Strike Defendant Jodi Fonfa’s Answer (had been on file for just 6 two days). Yet the initial – April 1st – deadlines in the operative Scheduling Order (the fact 7 discovery cutoff and initial expert designations) were only weeks away. 8 Defendant Jodi Fonfa responded to the Motion to Extend on March 22, 2023, see ECF No. 9 54, as did the course-reversing Evan Fonfa Defendants, see ECF No. 53. At the time of these 10 defense filings, and as of today’s date, those Defendants have taken no fact discovery. Further, by 11 the time that the operative Scheduling Order’s discovery and expert designation deadlines had 12 passed on April 1, 2023, those Defendants had neither taken discovery nor designated experts, 13 while SCC had done both. 14 Despite the awkward procedural posture of this litigation at the time the Motion to Extend 15 was filed, SCC did its best to conduct what discovery it could within the time remaining for 16 discovery. It did so by: (1) serving requests for admission, interrogatories, document requests, and 17 a deposition notice on Defendant Jodi Fonfa; (2) serving requests for admission, interrogatories, 18 document requests and a deposition notice on Evan Fonfa, individually and on the Evan Fonfa 2018 19 Trust; and (3) by serving document and deposition subpoenas on four third party fact witnesses – 20 all designated as such by the parties, viz, John E. Dawson, Dawson & Lordahl, Steven Pacitti, and 21 Morris Estate Planning Attorneys. 22 The Supplement describes Defendants’ efforts to block all of that discovery in the period 23 right after the last filing regarding the Motion to Extend. 24 /// 25 /// 26 27 28 1 As to the reasons for this unusual “at least” qualification to SCC’s request, see the Motion to Extend at 2 n.2. There will have to be additional and different adjustments to the SCC-proposed Scheduling Order as the original 60 days will have expired before there will be a ruling on the Motion to Extend. -24886-3203-6192 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document78 74 Filed Filed05/01/23 04/27/23 Page Page33of of16 6 1 2 II. A. APPLICABLE LAW. 3 This District’s LR 7-2(g) prohibits supplementation without leave of court. In full, that 4 rule provides that “[a] party may not file supplemental pleadings, briefs, authorities or evidence 5 without leave of court granted for good cause.” The judge may strike supplemental filings made 6 without leave of court. As Judge Dorsey wrote recently, 7 No party may file a supplement in support of any other document without first asking for – and receiving an order granting – leave to file a supplement. Any motion requesting leave to file a supplement must attach the proposed supplement as an exhibit.2 8 9 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 11 Snell & Wilmer POINTS AND AUTHORITIES. 12 SCC’s Motion for Leave meets all of these formal requirements. For the reasons set forth below, and in the Supplement itself, there is also good cause for granting that motion. 13 B. THERE IS GOOD CAUSE FOR GRANTING LEAVE TO FILE THE SCC SUPPLEMENT. 14 The story of Defendants’ efforts to wholly obstruct all of that discovery, and so the schedule 15 in this case, was only beginning to be told in SCC’s Reply Brief in Further Support of its Motion 16 to Extend Scheduling Order Deadlines (ECF Nos. 58 and 59, filed on April 29-30, 2023)3 as 17 Defendants’ new round of obstruction was just beginning. The proposed Supplement that is 18 attached hereto as Exhibit “A” is necessary to bring that story of wholesale obstruction – and 19 continuing fraudulent concealment – up to date. Because that story is essential to understanding 20 the Motion to Extend, and the case disruption that gave rise to it, this Court should grant SCC leave 21 to file its Supplement. 22 That Supplement discloses a pattern of consistently outrageous conduct, all intended to 23 maintain the veil over the Fonfas’ fraudulent transfers and their continuing concealment of those 24 transactions. That disclosure can only be made in this Supplement for the simple reason that the 25 26 27 28 2 AAA by next friend Abdul-Alim v. Clark County School District, 2020 WL 4904630 at *1 (D. Nev. August 20, 2020). 3 For unknown reasons, only some of the pages of the reply appeared on the Court’s website when the reply brief was initially filed. See ECF No. 58. That was noticed and cured the next morning, before the Court opened, with an amended reply brief containing all of the pages. See ECF No 59. An unopposed Motion for Leave to permit the second (technically late) filing was also filed that morning. See ECF No. 60. -34886-3203-6192 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document78 74 Filed Filed05/01/23 04/27/23 Page Page44of of16 6 1 events described therein all recurred in the immediate aftermath of the last filing regarding the 2 Motion to Extend. 3 4 5 6 7 III. For all of the foregoing reasons, SCC respectfully requests that this Court grant SCC leave to file the Supplement attached hereto as Exhibit “A”. Dated: April 27, 2023. DIAMOND MCCARTHY, LLP 8 13 /s/ James D. McCarthy James D. McCarthy (pro hac vice) MaryAnn Joerres (pro hac vice) David Reynolds (pro hac vice) DIAMOND MCCARTHY, LLP 2711 N. Haskell Ave., Suite 3100 Dallas, TX 75204 Phone: (214) 389-5300 Emails: jmccarthy@diamondmccarthy.com mjoerres@diamondmccarthy.com dreynolds@diamondmccarthy.com 14 -- and – 15 18 Bob L. Olson (NV Bar No. 3783) SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 Emails: bolson@swlaw.com 19 Attorneys for Plaintiff Snow Covered Capital LLC 9 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 11 Snell & Wilmer CONCLUSION. 12 16 17 20 21 ORDER IT IS ORDERED that ECF No. 74 is GRANTED. 22 23 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to detach and file Exhibit A (at ECF No. 74-1). 24 IT IS SO ORDERED 25 DATED: 9:38 am, May 01, 2023 26 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 27 28 -44886-3203-6192 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document78 74 Filed Filed05/01/23 04/27/23 Page Page55of of16 6 1 2 I, the undersigned, certify that, on April 27, 2023, I caused a true and correct copy of the 3 foregoing SCC Motion for Leave to File Supplement to Plaintiff Snow Covered Capital, LLC’s 4 Motion to Extend Scheduling Order Deadlines to be served by transmitting a copy of the same via 5 the CM/ECF system, pursuant to LR IC 4-1, to those parties participating in that system, and 6 thereby serving the above-referenced document on the individuals listed below. 7 James J. Jimmerson, Esq. THE JIMMERSON LAW FIRM, P.C. 415 So. Sixth Street, Suite 100 Las Vegas, NV 89101 jimmerson@jimmersonlawfirm.com 8 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 9 Snell & Wilmer CERTIFICATE OF SERVICE 10 Attorneys for Defendant Jodi Fonfa 11 Jacob D. Crawley, Esq. Dana A. Dwiggins, Esq. SOLOMON DWIGGINS & FREER, LTD. 9060 W. Cheyenne Ave. Las Vegas, NV 89129 jcrawley@sdfnvlaw.com ddwiggins@sdfnvlaw.com 12 13 14 15 16 17 18 Attorneys for Evan Fonfa; The Evan Fonfa 2018 Trust dated December 26, 2018; and Evan Fonfa as Trustee on behalf of The Evan Fonfa 2018 Trust dated December 26, 2018 Dated: April 27, 2023. 19 /s/ James D. McCarthy James D. McCarthy 20 21 22 23 24 25 26 27 28 -54886-3203-6192 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document78 74 Filed Filed05/01/23 04/27/23 Page Page66of of16 6 1 INDEX OF EXHIBITS 2 EXHIBIT 3 A 4 DESCRIPTION First Supplement to Plaintiff Snow Covered Capital, LLC’s Motion to Extend Scheduling Order Deadlines (ECF No. 52) 5 6 7 8 9 10 Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -64886-3203-6192 PAGES 10 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document74-1 78 Filed Filed05/01/23 04/27/23 Page Page71ofof16 10 EXHIBIT A First Supplement to Plaintiff Snow Covered Capital, LLC’s Motion to Extend Scheduling Order Deadlines (ECF No. 52) Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document74-1 78 Filed Filed05/01/23 04/27/23 Page Page82ofof16 10 1 2 3 4 5 6 7 8 9 10 Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 11 12 Bob L. Olson, Esq. Nevada Bar No. 3783 SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 Email: bolson@swlaw.com James D. McCarthy (via pro hac vice) MaryAnn Joerres (via pro hac vice) David Reynolds (via pro hac vice) DIAMOND MCCARTHY, LLP 2711 N. Haskell Ave., Suite 3100 Dallas, TX 75204 Telephone: (214) 389-5300 Facsimile: (214 389-5399 Emails: jmccarthy@diamondmccarthy.com mjoerres@diamondmccarthy.com dreynolds@diamondmccarthy.com Attorneys for Snow Covered Capital, LLC 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 17 18 19 20 SNOW COVERED CAPITAL, LLC, Plaintiff, Case No.: 2:22-CV-01181-CDS-BNW vs. FIRST SUPPLEMENT TO PLAINTIFF SNOW COVERED CAPITAL LLC’S MOTION TO EXTEND SCHEDULING ORDER DEADLINES (ECF NO. 52) JODI FONFA; EVAN FONFA, an individual and in his capacity as the Trustee of THE EVAN FONFA 2018 TRUST dated December 26, 2018; THE EVAN FONFA 2018 TRUST dated December 26, 2018; and DOE DEFENDANTS I THROUGH X, Defendants. 21 22 Plaintiff Snow Covered Capital, LLC (“SCC) respectfully submits this, its First Supplement 23 to its Motion to Extend Scheduling Order Deadlines (the “Motion to Extend”), and states as follows. I. 24 INTRODUCTION. 25 The Motion to Extend, and the related briefing, have been described in the Motion for Leave 26 to which this Supplement is attached. For more information, this Court should consult that briefing. 27 For present purposes, it is enough to note that the predicate for that Motion to Extend is Defendants’ 28 non-stop disruption of rational discovery (and so scheduling) in a multi-case environment. 1 1065715 4888-6757-2576 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document74-1 78 Filed Filed05/01/23 04/27/23 Page Page93ofof16 10 1 This Supplement is written to advise the Court that, since the last of the filings related to the 2 Motion to Extend, that calculated disruption – particularly by Defendant Jodi Fonfa – has increased 3 on an absolutely epic scale. Because that disruption has had and will have important consequences 4 for the scheduling issues raised by the Motion to Extend, and for the conduct of the case going 5 forward, the story of that disruption needs to be part of the record – regarding the Motion to Extend 6 and otherwise. 7 II. 8 A. Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 9 SUPPLEMENTAL POINTS AND AUTHORITIES. THE FIRST EVAN FONFA MOTION FOR PROTECTIVE ORDER. 1. On March 24, 2023, Evan Fonfa and the Evan Fonfa Trust filed their fourteen-page 10 Motion for Protective Order. Pursuant to LR 7-2(b), all oppositions to that Motion were due on or 11 before April 7, 2023. However, when the Evan Fonfa Defendants filed their motion for leave to 12 file a second motion for protective order on March 31, 2023 (ECF No. 61),1 in the midst of the 13 deposition controversies described below, the parties stipulated to a different briefing schedule 14 (ECF No. 62), and the Court signed that stipulation (ECF No.63). The SCC response to this original 15 (or first) Evan Fonfa motion for protective order is now due on May 5, 2023, and the Evan Fonfa 16 reply is due on May 12, 2023. 17 18 B. EVENTS SINCE THE FILING OF THE FIRST EVAN FONFA MOTION FOR PROTECTIVE ORDER 19 The Blocking of Discovery Directed to Third Party Steven Pacitti 20 2. On March 15, 2023, SCC served a subpoena upon Steven Pacitti (the “Pacitti 21 Subpoena” and together with the Dawson Subpoenas and the Morris Subpoena, the “Subpoenas”). 22 The Pacitti Subpoena required the production of documents from Mr. Pacitti and for his deposition 23 on March 29, 2023, at 9:00 a.m. 24 3. Mr. Pacitti objected to the Pacitti Subpoena based on attorney-client privilege 25 grounds and declined to appear for his deposition or produce documents without a court order. Mr. 26 Pacitti’s deposition was therefore postponed pending Mr. Pacitti’s preparation of a privilege log 27 28 1 The Motion for Leave is described below. -24888-6757-2576 Case Case 2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document 74-1 78 Filed Filed05/01/23 04/27/23 Page Page104 of of 16 10 1 and production of non-privileged documents. As of the date of this stipulation, Mr. Pacitti has 2 served SCC with his privilege log, but has neither: (a) produced those documents in his possession, 3 custody, or control that are not privileged; or (b) offered to give his deposition. He maintains that 4 he has been instructed to take that position by Jodi Fonfa’s counsel. Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 5 4. An SCC Motion to Compel Mr. Pacitti’s documents and deposition is inevitable as 6 he will not provide either without a Court order. SCC and Mr. Pacitti have discussed these issues, 7 but it is now time to have that final meet-and-confer and file the SCC motion to compel. 8 The Blocking of Discovery Directed to Third Party Morris Estate Planning Attorneys. 9 5. On March 15, 2023, SCC served a subpoena upon the Morris Estate Planning 10 Attorneys (the “Morris Subpoena”). The Morris Subpoena required the production of documents 11 and deposition testimony on March 29, 2023, at 3:00 p.m. 12 6. Morris Estate Planning Attorneys also objected to the Morris Subpoena based on 13 attorney-client privilege grounds and has declined to appear for the deposition or produce 14 documents (privileged or unprivileged) without a court order. Unlike Mr. Pacitti, the Morris firm 15 also declined to produce a privilege log. 16 7. As was the case with Mr. Pacitti, Mr. Morris and the Morris firm were instructed to 17 take these positions by counsel for Defendant Jodi Fonfa. Under those circumstances, Mr. Morris 18 remains unwilling to give testimony, or produce documents and a privilege log, without a court 19 order. 20 8. The Morris Estate Planning Attorneys’ deposition has been postponed pending 21 discussions to resolve those objections. Should those discussions not bear fruit in the near term, 22 SCC will be obliged to file a motion to compel. 23 Defendant Jodi Fonfa Walks Out Of Her Deposition. 24 9. On or about March 14, 2023, SCC served Defendant Jodi Fonfa with a deposition 25 notice stating that, pursuant to FRCP 26 and 30, SCC would be taking her deposition on Thursday, 26 March 30, 2023, at the law offices of Snell & Wilmer, L.L.P., 3883 Howard Hughes Parkway, Suite 27 1100, Las Vegas, Nevada 89169. Defendant’s deposition commenced at that location on March 28 30, 2023. -34888-6757-2576 Case Case 2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document 74-1 78 Filed Filed05/01/23 04/27/23 Page Page115 of of 16 10 1 counsel, James J. Jimmerson, not to answer questions regarding issues which are the subject of 3 specific SCC allegations and claims in this case, including questions regarding the current state of 4 those transferred assets that are the subject of this fraudulent transfer litigation that did not implicate 5 any form of privilege. 11. After several of Defendant’s counsel’s lengthy objections to questions on such 7 topics, Defendant’s counsel terminated the deposition and walked out the door, stating that 8 “pursuant to Rule 30(d)(3), we will need to file a motion tomorrow to limit the extent of this 9 deposition for the reasons I’ve articulated.” Mr. Jimmerson never filed that motion. 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 During the deposition, on multiple occasions, Defendant was directed by her 2 6 Snell & Wilmer 10. 12. After meet-and-confer sessions with Jodi Fonfa’s counsel on March 31st and April 11 19th, and after three weeks of waiting for Mr. Jimmerson’s promised 30(d)(3) motion, SCC filed its 12 “Motion to Compel Deposition of Jodi Fonfa” on April 20th (ECF No. 69). Ms. Fonfa’s response 13 is due on or before May 4th. A reply will undoubtedly follow, and the hearing on SCC’s Motion to 14 Compel has already been set for June 13th. See ECF No. 73. 15 13. Finally, it should be noted that Ms. Fonfa withheld those documents she was willing 16 to produce until AFTER her deposition had been concluded, and thereby undermined significant 17 aspects of the deposition. 18 19 20 The Blocking of Discovery Directed to Third Parties John E. Dawson/Dawson & Lordahl, PLLC. 14. On March 14, 2023, SCC served subpoenas upon John E. Dawson, Esq., and 21 Dawson & Lordahl, PLLC (collectively the “Dawson Subpoenas”). The Dawson Subpoenas 22 required the production of documents by Dawson and Dawson & Lordahl in advance of Mr. 23 Dawson’s deposition on March 3, 2023, at 9:00 a.m. and Dawson & Lodahl’s deposition 24 immediately following Mr. Dawson’s deposition. 25 15. Neither Mr. Dawson nor Dawson & Lordahl objected to the Dawson Subpoenas 26 prior to their noticed depositions. Neither Mr. Dawson nor Dawson & Lordahl prepared a privilege 27 log nor produced documents responsive to their subpoenas prior to their depositions (or since). Mr. 28 Dawson appeared for those depositions on March 31, 2023, and his deposition was consolidated -44888-6757-2576 Case Case 2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document 74-1 78 Filed Filed05/01/23 04/27/23 Page Page126 of of 16 10 1 with the deposition of Dawson & Lordahl. Mr. Dawson did not review documents for the 2 deposition and did not produce documents or a privilege log. 3 16. 4 him not to answer multiple questions on confidentiality and attorney-client privilege grounds, and 5 he repeatedly stated that he could not answer questions without reference to the very documents he 6 did not produce. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 7 Snell & Wilmer The testimony Mr. Dawson gave was extremely limited, as his counsel instructed 17. Immediately following the deposition of Mr. Dawson, counsel for the Parties, 8 together with counsel for Mr. Dawson and Dawson & Lordahl, held the meet and confer required 9 by LR IA 1-3(f) and LR 26-6(c). At that meet and confer, Mr. Dawson, Dawson & Lordahl, and 10 Jim Jimmerson, Defendant Jodi Fonfa’s counsel, agreed, among other things, to prepare a privilege 11 log within three weeks (by April 21, 2023), produce all nonprivileged documents, and work in good 12 faith to reschedule the depositions of Mr. Dawson and Dawson & Lordahl. This arrangement was 13 then memorialized in a Stipulation agreed upon by the parties and filed on April 5, 2023 (ECF No. 14 62). Judge Fehrenbach signed that Stipulation on April 6th, just prior to his recusal. See ECF No. 15 63. 16 18. April 21, 2023 has come and gone, but Mr. Dawson and Dawson & Lordahl have 17 not provided either a privilege log or the unprivileged documents. Nor have they offered to 18 reschedule their depositions. 19 19. Instead, on April 7, 2023, the day after Judge Fehrenbach signed the Stipulation, 20 Mr. Jimmerson filed “Jodi Fonfa’s Motion for Protective Order on Snow Covered Capital LLC’s 21 Subpoenas for Depositions and Documents on Subpoenaed Attorney for Attorney’s Fees” (ECF 22 No. 65). That motion completely blew off the March 31st meet-and-confer agreements in asking 23 this Court to “issue a protective order precluding the depositions (or further depositions) of [Messrs. 24 Dawson and Pacitti, the Dawson & Lordahl, and the Morris Estate Planning Attorneys firms] and 25 the disclosure of documents”.2 Alternatively, Jodi/Jimmerson asked this Court to “issue a 26 27 28 2 Thus, the primary relief requested was that there be no depositions of those witnesses and that those witnesses not be obliged to produce any documents, privileged or unprivileged. As to the former we note that no privilege log has ever been provided by Dawson, Dawson & Lordahl or Jodi Fonfa. -54888-6757-2576 Case Case 2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document 74-1 78 Filed Filed05/01/23 04/27/23 Page Page137 of of 16 10 1 protective order narrowing SCC’s subpoenas to documents and information reasonably related to 2 the alleged fraudulent conveyances and non-probate transfers identified” in [the SCC Complaint] 3 and crucial to the needs of these matters.”3 In either case, Ms. Fonfa wanted monetary sanctions 4 against SCC. Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 5 20. SCC responded to the Jodi Fonfa Motion for Protective Order on April 21, 2023 6 (ECF No. 72). Ms. Fonfa’s reply is due on April 28, 2023. Magistrate Judge Weksler has set that 7 Motion for hearing on June 6, 2023. See ECF No. 66. 8 Problems With the Deposition of Evan Fonfa 9 21. The deposition of Evan Fonfa began as noticed on March 31, 2023, but was 10 disbanded with a reservation that it would be concluded once outstanding discovery requests were 11 fulfilled. That deposition must be resumed in all fairness for at least two reasons: (1) the strategic 12 (and suspect) timing of document production (and lack of production) by Evan Fonfa and the Evan 13 Fonfa 2018 Trust; and (2) Evan’s refusals to answer questions his counsel deemed to encroach on 14 a very suspect attorney-client privilege. 15 22. As to the first, in response to SCC’s discovery requests in this case, Evan Fonfa 16 produced less than a dozen or so documents on the eve of the deposition. Unfortunately, this 17 production did NOT include any documents that SCC had not already received from Evan Fonfa 18 in connection with the related probate proceeding. 19 23. All documents new to SCC but responsive to its discovery requests were received 20 AFTER the deposition had been provisionally disbanded. In fact, there have been three such post- 21 deposition discovery supplements by Evan and the Evan Fonfa 2018 Trust: one on March 31st 22 within an hour or so after the deposition was disbanded; a second on April 3rd entitled First 23 Supplemental Disclosures; and a third on April 21st entitled Second Supplemental 24 Disclosures. Each of these included documents that had been requested in SCC’s written discovery 25 but were not available to it during Evan Fonfa’s deposition (and which would have been used in 26 the deposition). Even with his original production in this case, as well as the three supplements, 27 28 3 The Motion did not explain how this was to be done. -64888-6757-2576 Case Case 2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document 74-1 78 Filed Filed05/01/23 04/27/23 Page Page148 of of 16 10 1 all documents responsive to SCC’s discovery requests have not been produced. SCC will therefore 2 be meeting and conferring with counsel as to those documents and, if unsuccessful in obtaining 3 them, will be required to file a motion to compel. In any event, documents key to the issues in this 4 case were NOT available to SCC at the time of the deposition. Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 5 24. Secondly, during his deposition, Evan Fonfa followed the advice of his counsel on 6 several occasions by refusing to answer questions relating to legal work done (and in at least some 7 of these cases paid for by the Estate of Andrew Fonfa) based upon an alleged attorney-client 8 relationship with the attorneys performing such work. As to at least one such law firm, Evan Fonfa 9 had stated that there was no such an attorney client relationship (after initially stating there was) in 10 the period prior to the deposition. Regardless of the legitimacy of an attorney-client relationship 11 (and SCC doubts its legitimacy), Evan Fonfa never has complied with the Federal Rules intended 12 to protect any such privileged information by, inter alia, providing SCC with a genuine privilege 13 log. The very brief privilege log attached to Evan Fonfa’s April 21st Second Supplement does not 14 meet that standard. 15 The Second Evan Fonfa Motion for Protective Order. 16 25. On March 31, 2023, in the midst of the depositions of Evan Fonfa and John Dawson 17 being conducted that day, Evan Fonfa and the Evan Fonfa Trust filed their eleven-page Motion for 18 Leave to File Supplement to Motion for Protective Order [ECF No. 61]. Should leave be granted, 19 that Supplement would significantly alter the basis for the Original Motion for Protective Order. 20 Pursuant to LR 7-2(b) all oppositions to that Motion for Leave were due on or before April 14, 21 2023. 22 26. SCC responded to that Motion on that date (ECF No. 68), arguing that there were 23 too many questions regarding the predicate to that motion (that Evan Fonfa had an attorney-client 24 relationship with John Dawson), and that leave should be denied without prejudice. The Evan 25 Fonfa Defendants replied on April 21, 2023 (ECF No. 70), and their Motion for Leave is one of 26 those set for hearing before this Court on June 6, 2013. See ECF No. 66. 27 /// 28 /// -74888-6757-2576 Case Case 2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document 74-1 78 Filed Filed05/01/23 04/27/23 Page Page159 of of 16 10 Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 1 2 Deficiencies in the Responses to SCC’s Written Discovery to Jodi and Evan Fonfa 3 27. SCC also served written discovery requests on Defendants Jodi and Evan Fonfa. 4 These requests included interrogatories, document requests and requests for admissions, as well as 5 the Jodi and Evan deposition notices referenced above. The responses, generally served too late 6 for use in the depositions, were also generally non-responsive. After appropriate meet-and-confers, 7 it is highly likely that additional motions to compel will be filed. 8 The Jodi Fonfa Motion to Stay. 9 28. After actively moving to prevent the attorney fact witnesses (Pacitti, the Morris firm, 10 Dawson & Lordahl, and John Dawson) from complying with their subpoenas and providing the 11 testimony, documents, and privilege logs they were required to provide pursuant to Fed. R. Civ. P. 12 45; and after blowing off their agreement to produce Dawson and Dawson & Lordahl documents 13 and privilege logs by April 21st; and after filing a Jodi Fonfa motion for protective order that made 14 a mockery of the March 31st meet-and-confer agreement and the related stipulation that the parties 15 presented to the Court; and after unlawfully terminating Jodi Fonfa’s own deposition; and after 16 producing incomplete, inappropriate, and late written discovery responses to SCC – all within a 17 few weeks’ time – this Court might well expect that Jodi Fonfa and Mr. Jimmerson would be done. 18 29. If so, the Court would be wrong. 19 30. Instead, on March 14th, Ms. Fonfa and Mr. Jimmerson went for the “nuclear option” 20 by filing a so-called “emergency” Motion to Stay, proposing to stay this action until the resolution 21 (whenever that might be) of SCC’s action against William Weidner, David Jacoby, and Andrew 22 Fonfa (and now Andrew’s probate estate) for their breaches of the guaranty they gave in order to 23 obtain a $45 million loan for their Lucky Dragon Hotel and Casino Project. 4 24 31. SCC will respond – in full detail – to that Motion to Stay on April 28th. For now, 25 this Court need only contemplate three things: (1) The Motion to Stay is a desperate non-emergency 26 effort to block SCC’s investigation into the fraudulent transfers and fraudulent concealment and 27 28 4 SCC v. William Weidner, et al., Case No. 19-cv-595-APG-NJK (the “Guaranty Action”). -84888-6757-2576 Case Case2:22-cv-01181-CDS-BNW 2:22-cv-01181-CDS-BNW Document Document74-1 78 Filed Filed05/01/23 04/27/23 Page Page16 10ofof16 10 1 related activities of the Fonfas; (2) that nothing in the Guaranty Action will determine whether Jodi 2 and Evan Fonfa engaged in fraudulent transfers, fraudulent concealment, and non-probate transfers 3 upon death; and (3) that Jodi Fonfa has tried this tactic before – in the probate court proceedings. 4 There, she sought to wholly stay the probate proceedings – which focused on her legal and factual 5 unfitness to serve as the Fonfa estate executrix – in favor of the Guaranty Action. Judge Sturman 6 saw that effort for what it clearly was – which is the same as what the current Motion to Stay is – 7 a blatant attempt to stop SCC’s investigation into the actions of the Fonfas before and after the 8 death of Andrew Fonfa. Snell & Wilmer L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 9 III. CONCLUSION. 10 For all of the foregoing reasons, as well as those set forth in SCC’s original Motion to 11 Extend Scheduling Order Deadlines (ECF No. 52), this Court should grant SCC’s Motion to 12 Extend Deadlines in all respects, albeit with adjustments for the passage of time since that Motion 13 to Extend was filed. 14 Dated: April 27, 2023. DIAMOND MCCARTHY, LLP 15 /s/ James D. McCarthy James D. McCarthy (pro hac vice) MaryAnn Joerres (pro hac vice) David Reynolds (pro hac vice) DIAMOND MCCARTHY, LLP 2711 N. Haskell Ave., Suite 3100 Dallas, TX 75204 Phone: (214) 389-5300 Emails: jmccarthy@diamondmccarthy.com mjoerres@diamondmccarthy.com dreynolds@diamondmccarthy.com 16 17 18 19 20 21 -- and – 22 Bob L. Olson (NV Bar No. 3783) SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 Emails: bolson@swlaw.com 23 24 25 26 Attorneys for Plaintiff Snow Covered Capital LLC 27 28 -94888-6757-2576

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