Duffy v. JP Morgan Chase Bank, National Association, No. 2:2022cv01988 - Document 38 (D. Nev. 2023)
Court Description: ORDER Granting 37 Protective Order. Signed by Magistrate Judge Brenda Weksler on 4/25/2023. (Copies have been distributed pursuant to the NEF - KF)
Download PDF
<![CDATA[
Duffy v. JP Morgan Chase Bank, National Association Doc. 38 Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document38 36 Filed Filed04/25/23 04/21/23 Page Page11of of24 3 1 Joel E. Tasca, Esq. Nevada Bar No. 14124 2 Madeleine Coles Nevada Bar No. 16216 3 BALLARD SPAHR LLP 1980 Festival Plaza Drive, Suite 900 4 Las Vegas, Nevada 89135 Telephone: 702.471.7000 5 Facsimile: 702.471.7070 tasca@ballardspahr.com 6 colesm@ballardspahr.com Las Vegas, Nevada 89135 702.471.7000 FAX 702.471.7070 BALLARD SPAHR LLP 1980 Festival Plaza Drive, Suite 900 7 Attorneys for Defendant JPMorgan Chase Bank, N.A. 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 JAMES DUFFY, a.k.a. JIM DUFFY, an individual, 11 Plaintiff, 12 v. 13 JPMORGAN CHASE BANK, NATIONAL 14 ASSOCIATION 15 CASE NO. 2:22-cv-01988-APG-BNW [PROPOSED] PROTECTIVE ORDER Defendants. 16 17 Defendant JPMorgan Chase Bank, N.A. (“Defendant”) filed a motion to 18 dismiss Plaintiff James Duffy’s (“Plaintiff”) First Amended Complaint on February 19 22, 2023. Concurrently therewith, Defendant filed a motion to stay discovery 20 pending resolution of the motion to dismiss, which Plaintiff opposed. On April 6, 21 2023, the Court heard oral argument on the motion to stay. The Court denied the 22 motion but indicated that it would enter a protective order limiting discovery to 23 certain requests as articulated and agreed to by Plaintiff during the hearing. 24 The Court hereby enters this Protective Order pursuant to the Court’s 25 authority under FRCP 26(c). 26 IT IS HEREBY ORDERED: 27 Until this Court decides Defendant’s motion to dismiss, the Parties shall not 28 engage in discovery in any form except as follows: DMFIRM #407498185 v1 Dockets.Justia.com Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document38 36 Filed Filed04/25/23 04/21/23 Page Page22of of24 3 1 (1) Plaintiff may request that Defendant produce opening statements 2 related to the Markowitz Attorney Trust Account; 3 (2) Plaintiff may request that Defendant produce reports made to the State 4 Bar of Nevada and/or the State Bar of New York related to the Markowitz Attorney 5 Trust Account; 6 (3) Plaintiff may request that Defendant produce documents evidencing 7 complaints from any person who deposited funds into the Markowitz Attorney Trust 8 Account; 9 (4) Plaintiff may request that Defendant produce its internal policies and 10 procedures in effect in February 2009 (the month the Markowitz Attorney Trust 11 Account was opened) relating to bar verification of attorneys seeking to open an Las Vegas, Nevada 89135 702.471.7000 FAX 702.471.7070 BALLARD SPAHR LLP 1980 Festival Plaza Drive, Suite 900 12 attorney trust account and the handling of attorneys barred outside of the state in 13 which they seek to open an attorney trust account. 14 Defendant shall conduct a reasonable records search and produce documents 15 responsive to each of the above described categories to the extent that any such 16 documents exist. Defendant shall also reserve the right to make any good faith 17 objections to Plaintiff’s requests. 18 Dated: April ___, 2023. IT IS SO ORDERED: 19 20 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 DATED: Submitted by: BALLARD SPAHR LLP 26 By: /s/ Madeleine Coles Madeleine Coles, Esq. 27 Nevada Bar No. 16216 Joel E. Tasca, Esq. 28 Nevada Bar No. 14124 DMFIRM #407498185 v1 2 April 25, 2023 Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document38 36 Filed Filed04/25/23 04/21/23 Page Page33of of24 3 1 1980 Festival Plaza Drive, Suite 900 Las Vegas, Nevada 89135 2 3 Attorneys for Defendant JPMorgan Chase Bank, N.A. 4 5 6 7 8 9 10 11 Las Vegas, Nevada 89135 702.471.7000 FAX 702.471.7070 BALLARD SPAHR LLP 1980 Festival Plaza Drive, Suite 900 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMFIRM #407498185 v1 3 Case Case 2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document 36-1 38 Filed Filed04/25/23 04/21/23 Page Page4 1ofof242 Exhibit 1 Case Case 2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document 36-1 38 Filed Filed04/25/23 04/21/23 Page Page5 2ofof242 Joel E. Tasca Madeleine Coles Tel: 702.868.7511 Fax: 702.471.7070 tasca@ballardspahr.com colesm@ballardspahr.com April 21, 2023 U.S. Magistrate Judge Brenda Weksler U.S. District of Nevada 333 Las Vegas Blvd. South Las Vegas, Nevada 89101 Re: Duffy v. JPMorgan Chase Bank, N.A. – 2:22-cv-01988-APG-BNW Dear Judge Weksler: Attached for your review please find a proposed order regarding discovery in this matter pursuant to your oral ruling during the hearing on Chase’s motion to stay discovery held April 6, 2023. The proposed order was submitted to counsel for Plaintiff James Duffy, and the Parties met and conferred in good faith, but were unable to agree on the substance of the order. At the April 6 hearing, Plaintiff unambiguously agreed to limit all discovery in this case, pending this Court’s ruling on Chase’s motion to dismiss, to the specific discovery described during the hearing. See Tr. Of Apr. 6, 2023 Hrg. at 14:2-9 (attached as Exhibit 2 hereto). The only discovery discussed during the hearing was (1) the account’s opening statements, (2) reporting on the account to the State Bar of New York and the State Bar of Nevada, (3) complaints received by Chase from other persons who had deposited funds into the account, and (4) policies and procedures for determining the bar status of an attorney opening an attorney trust account. Id. at 8:15; 8:17-9:6; 10:5-9; 12:3-17. However, in discussing the terms of a proposed order, Plaintiff demanded broad, vague discovery in excess of what had been agreed to during the hearing. While there is no reason any discovery is needed immediately, Chase attempted to negotiate in good faith with Plaintiffs regarding the scope of discovery, but was unsuccessful. Everything Plaintiff demands can be sought in the unlikely event his complaint survives Chase’s motion to dismiss. Chase’s proposed order accurately reflects the agreement made by Plaintiffs with this Court regarding the discovery that will be sought before any ruling on the motion to dismiss. Therefore, Chase respectfully submits that this Court should enter its proposed order. Very truly yours, BALLARD SPAHR LLP /s/ Joel E. Tasca Joel E. Tasca Madeleine Coles DMFIRM #407602021 v1 Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page61ofof24 19 Exhibit 2 2 Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page72ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF NEVADA 3 4 5 6 7 8 JAMES DUFFY, ) ) Plaintiff, ) ) vs. ) ) JP MORGAN CHASE BANK, NATIONAL ) ASSOCIATION, ) ) Defendant. ) ) CASE NO. 2:22-cv-01988-APG-BNW Las Vegas, Nevada Thursday, April 6, 2023 Courtroom 3B Recording Method: Liberty/CRD 1:03 p.m. - 1:25 p.m. MOTION HEARING C E R T I F I E D C O P Y 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 BEFORE THE HONORABLE BRENDA N. WEKSLER, UNITED STATES DISTRICT COURT MAGISTRATE JUDGE 13 14 APPEARANCES: (See next page) 16 Recorded by: Jeff Miller 17 Transcribed by: 15 18 PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court 333 Las Vegas Boulevard South Las Vegas, Nevada 89101 19 20 21 22 23 24 1 Proceedings recorded by electronic sound recording. Transcript produced by mechanical stenography and computer. 25 PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page83ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 APPEARANCES: 2 3 4 5 6 7 8 9 10 11 12 For Plaintiff James Duffy: JONATHAN D. BLUM, ESQ. WILEY PETERSEN 1050 Indigo Drive Suite 200B Las Vegas, NV 89145 (702) 910-3329 E-mail: jblum@wileypetersenlaw.com --AND-KENNETH J. CATANZARITE, ESQ. (Pro Hac Vice) CATANZARITE LAW CORPORATION C/O Jennifer Weaver 2331 W. Lincoln Avenue Anaheim, CA 92801 (714) 520-5544 E-mail: kcatanzarite@catanzarite.com 13 For Defendant JP Morgan Chase Bank, National Association: 14 15 16 17 JOEL EDWARD TASCA, ESQ. BALLARD SPAHR LLP 1980 Festival Plaza Drive Suite 900 Las Vegas, NV 89135 (702) 471-7000 E-mail: tasca@ballardspahr.com 18 --AND-19 20 21 22 MADELEINE COLES, ESQ. BALLARD SPAHR LLP 1980 Festival Plaza Drive Suite 900 Las Vegas, NV 89135 (702) 379-1157 E-mail: colesm@ballardspahr.com 23 24 25 PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court 2 Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page94ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 LAS VEGAS, NEVADA; THURSDAY, APRIL 6, 2023; 1:03 P.M. 2 --o0o-- 3 P R O C E E D I N G S COURTROOM ADMINISTRATOR: 4 3 Your Honor, good afternoon. 5 We are now calling James Duffy vs. JP Morgan Chase Bank, National 6 Association. 7 8 9 10 The case number is 2:22-CV-01988-APG-BNW. Beginning with plaintiff's counsel, will all counsel please state your names for the record. MR. BLUM: Good afternoon, Your Honor. behalf of plaintiff. 11 THE COURT: 12 MR. CATANZARITE: 13 Good afternoon, Mr. Blum. Good afternoon, Your Honor. THE COURT: Good afternoon. 15 MR. TASCA: Good afternoon, Your Honor. THE COURT: Good afternoon, Mr. Tasca. 18 MS. COLES: Good afternoon, Your Honor. 20 THE COURT: All right. motion to stay discovery. 22 opposed at Document 29. 24 25 This is Madeline Coles also for the defendant, JP Morgan Chase. 21 23 Joel Tasca for defendant JP Morgan Chase. 17 19 Ken Catanzarite appearing also for the plaintiff pro hac vice. 14 16 John Blum on So we are here on defendant's This is at Document 22. Plaintiff And the defense replied at Document 31. I set this case for argument, so let me go ahead and hear, starting with the defendants. Is it going to be Mr. Tasca or Ms. Coles? PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case 2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document 36-2 38 Filed Filed04/25/23 04/21/23 Page Page105 of of 24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 4 1 MR. TASCA: It will be me, Mr. Tasca. 2 THE COURT: All right. 3 MR. TASCA: Thank you, Your Honor. 4 So as cases go, as lawsuits go, our view of this case Go ahead, Mr. Tasca. 5 is that the plaintiff has asserted some claims that really push 6 the balance of plausibility. 7 is (indiscernible) responsible for fraud committed by others just 8 because those others used an account at the bank to commit that 9 fraud. 10 Basically, what we're trying to do So there's no allegation that -- that Chase was actively involved in any of the alleged fraud that happened to Mr. Duffy. 11 All that Chase did was it held the bank account. And 12 I have to give credit to the plaintiff's lawyers. 13 up with a very, sort of, creative way to get this -- that 14 Mr. Duffy believed that Mr. Markowitz, who is the accountholder 15 at the bank, was barred in Nevada, and it's that, that led him 16 astray and made him deposit money. 17 creative theory, but it just doesn't withstand the legal 18 scrutiny. 19 They've come And, you know, it's a And we do have pending motions to dismiss, which Your 20 Honor may or may not have gotten to look at. 21 number of claims asserted, four claims, in the amended complaint 22 (indiscernible) second crack at trying to allege claims because 23 it is the amended complaint. 24 25 But there are a All the claims, in our view, can be dismissed without discovery because we have legal defenses to those claims. PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court And Case Case 2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document 36-2 38 Filed Filed04/25/23 04/21/23 Page Page116 of of 24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 5 1 it's a negligent misrepresentation claim. 2 That fails as a matter of law because there's no allegation that 3 Chase ever made any misrepresentation or -- or even made a 4 representation -- forget about misrepresentation -- to Mr. Duffy 5 about anything. 6 That's the first one. All Chase did was it had an account where the funds 7 supposedly were deposited that -- that were allegedly then 8 dissipated fraudulently. 9 direct communication is alleged, and then (indiscernible) second 10 11 Chase didn't do anything else. crack at trying to allege this. So that -- that's the principal reason the negligent 12 misrepresentation claim fails. 13 were in our papers. 14 No There are other reasons. Those But I don't want to belabor the discussion. There was a second claim for fraudulent transfer, and 15 I understand that that claim has been abandoned by the plaintiffs 16 in -- in their opposition brief -- 17 18 THE COURT: So let me -- let me just interrupt you here a moment. 19 MR. TASCA: Sure. 20 THE COURT: I think that -- I mean, it seems to me 21 that your -- your arguments are catered towards the preliminary 22 peek test, which are not particularly helpful to the moving 23 party, just because it requires that I can be convinced that the 24 motion to dismiss is going to be granted, right? 25 So it seems to me that you're better off arguing good PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case 2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document 36-2 38 Filed Filed04/25/23 04/21/23 Page Page127 of of 24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 cause as to why this case should be stayed. 2 your arguments on that. 3 MR. TASCA: 6 So I'd rather hear Of course, Your Honor. And we did 4 recognize that -- that Your Honor does follow a different 5 standard from the preliminary peek standard. 6 in drafting the papers, a lot of these things sort of merged 7 together. 8 at this from the -- from the good cause perspective, I think, you 9 know, our -- our view of this is that the claims are very weak. 10 They move around. I think, you know, So I think that, you know, looking Again, it kind of merges back as the preliminary peek. 11 But, you know, if they were to go forward, they are 12 not (indiscernible) complicated claims. 13 negligence against Chase. 14 negligence standard because there is no duty here, as we argue in 15 our papers. 16 see if they can establish a duty in discovery, we're going to 17 need to do expert discovery to explain what the duty is that a 18 bank has in this situation and what would be a breach of that 19 duty. 20 There is a claim of There's no law that informs the But even if the Court were to say, Well, but let's So there's going to be expert discovery necessary. There is going to be complicated fact discovery. 21 There is an aiding and abetting breach of fiduciary duty claim 22 that's been asserted against Chase. 23 requires that the plaintiffs prove that Chase knowingly 24 participated -- or knowingly substantially assisted in the fraud. 25 And -- and, of course, knowledge is something that rarely can be That claim necessarily PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case 2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document 36-2 38 Filed Filed04/25/23 04/21/23 Page Page138 of of 24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 7 1 proven with direct evidence. 2 evidence involving discovery of the relationships between Chase 3 and the two alleged fraudsters. 4 other incident involving Mr. Duffy and (indiscernible) two 5 alleged fraudsters. 6 things, as well. 7 There would need to be indirect We already know that there's one So there's going to be discovery on those We're also talking about an attorney trust account. 8 And so, if they're going to get discovery related to the account, 9 there are going to be what we believe are supporting issues of 10 attorney-client privilege that we're going to have to waive. 11 They are seeking -- we know already they are seeking 12 policy and procedure documents, which Chase are very sensitive 13 about. 14 motion practice on that subject because Chase will seek a 15 protective order. So there's going to have to be either compromised or 16 So this is just, kind of, a sampling of the 17 types -- this is not a car accident. This is a complicated novel 18 creative theory by the plaintiffs, and so, if they were to get 19 past the motion to dismiss, this case is going to be very 20 involved. 21 not start now, and instead, it should await a determination as to 22 whether any of these claims are either plausible, which we 23 respectfully submit they are not, and this -- this case is either 24 going to be dismissed or, at a minimum, significantly 25 (indiscernible). And our position is simply that that discovery should PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case 2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document 36-2 38 Filed Filed04/25/23 04/21/23 Page Page149 of of 24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 THE COURT: Thank you so much. 2 All right. For the plaintiff, is it going to be 3 Mr. Blum or Mr. Cat- -- say that one more time for me. 4 MR. CATANZARITE: 5 THE COURT: 6 Is it going to be you, sir? 7 MR. CATANZARITE: 8 THE COURT: 9 MR. CATANZARITE: 10 8 Catanzarite. Catanzarite. (Indiscernible). All right. Yeah. Go ahead. (Indiscernible). If you will. 11 In focusing on what we've asked for in terms of 12 discovery, I -- I, frankly, don't agree that it is -- that it 13 involves all of the, shall we say, argument -- nature of the 14 argument that my colleague has raised. 15 opening statements would be something that should be freely 16 available. 17 For example, the account That -- that's not privileged. Reports on this account to the State of Nevada, State 18 Bar of Nevada, Supreme Court with respect to this account being a 19 Nevada IOLTA account would certainly not be privileged. 20 One of the arguments advanced in opposition to the 21 motion to dismiss by my colleagues are that, hey, look, this is 22 equivalent of a New York IOLTA account, which is a significant 23 argument that they make. 24 Chase, with respect to this account, have any recording with 25 regard to this account to the State of New York? And therefore, we've asked, Do you, PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page15 10ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 9 I will tell you that the State of New York indicates 2 there's none. 3 Mr. Duffy with respect to the New York clients' security fund 4 because there's no trust account properly -- or properly set up 5 for this account out of state to New York, which precludes Duffy 6 from making his claim. 7 And that's the reason they've denied any claim by So I do -- I do not agree that at least that scope of 8 discovery would be so difficult to provide. 9 things they did or did not do. Those are either I think they may have done 10 something with respect to Nevada, but I don't believe they did 11 anything with respect to New York. 12 Moreover, the question of the 14 years of account 13 history, I'll tell you what our interest is. 14 did Chase receive other objections by victims with respect to the 15 processing of that account? 16 warnings? 17 account -- was there someone like Ms. Choy (phonetic) or somebody 18 else who's reported, Hey, Chase, these guys took my money 19 improperly. 20 Our interest is, In other words, did they receive Were they on notice, red flagged, that this I -- you should not allow this to happen? That should have caused some red flags to go up in 21 Chase's account. So I don't need all of the -- I can -- at this 22 stage, we could agree to limit that aspect to any, shall we say, 23 other complaints about the management of the account by persons 24 who deposited money to the account. 25 narrowing the scope of the discovery. That would be one way of PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page16 11ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 With respect to -- 2 THE COURT: I'm sorry. 10 Your suggestion is to narrow 3 it how, specifically, so that I can go back to the defense and 4 ask them? MR. CATANZARITE: 5 Sure. We would simply ask with 6 respect to the history at this point, were there any other 7 persons who deposited money to that Markowitz account who then 8 complained to Chase about the account? 9 agree at this first pass to limit it to that. 10 THE COURT: 11 MR. CATANZARITE: So we would -- we would And this is, what, 14 years? 14 years, yes. And we'll see. 12 Maybe there's only two or three, if there's any, that would be 13 significant to us. 14 Next, policies and procedures. 15 the defense is concerned about policies and procedures. 16 question, do the policies and procedures set forth a set of 17 requirements where Chase is supposed to confirm when they're 18 opening a Nevada IOLTA account that the lawyer's licensed in 19 Nevada? 20 I -- I can appreciate But I If not, what's the next step? Do they have a trigger or, shall we say, a policy and 21 procedure that there could be lawyers from Nevada opening 22 out-of-state trust accounts? 23 under their internal policies and procedures to contact the state 24 to see if an out-of-state account could be maintained? 25 If so, were they then obligated Had they done that here, then Duffy would have a PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page17 12ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 11 1 claim against the New York IOLTA fund, but he doesn't because the 2 account wasn't set up that way. 3 Did there -- did they violate their own internal 4 policies and procedures that would have protected those within a 5 class of persons to whom there could be an anticipated, shall we 6 say, duty or relationship where these -- where persons were 7 induced to put money into this account and then defrauded again, 8 but the proper New York account was never set up? 9 Those are -- I think we could limit. 10 I'd be happy to limit this initial wave of discovery. 11 We already have an expert on board on this, and 12 that's been their suggestion of what they'd like to see. I don't 13 think I need to see all the ins and outs of the account. I do 14 agree with Mr. Tasca that our Request No. 2 was brought in that 15 regard. 16 the discovery, that there was 14 years of this account 17 relationship. 18 19 But frankly, we did not anticipate, at the time we wrote So -- and we would be interested in that right now -THE COURT: 20 So that I'm clear, you're suggesting to 21 narrow the history of the account of 14 years to any individuals 22 who had deposited money and who have subsequently complained, 23 correct? 24 MR. CATANZARITE: 25 THE COURT: Yes. And with regard to the policies and PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page18 13ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 12 1 procedures, how, specifically, are you willing to narrow this? 2 Policies and procedures regarding what? MR. CATANZARITE: 3 Okay. I'd like to see their 4 policies and procedures -- first of all, I'd like to see 5 the -- if I can see, the table of contents, because I find in 6 litigation that a table of contents may describe something 7 differently than what I thought it -- how I think it might be 8 defined. 9 But what we're looking for is what policies and 10 procedures are there for determining the -- the attorney opening 11 the trust account is a Nevada barred attorney, and if not a 12 Nevada barred attorney presenting in Nevada, what, if they -- do 13 they then have to inquire where are you barred? 14 then in New York, Chase -- the nature of the bank as broad a bank 15 as it is, does it have New York-related policies and procedures 16 that would then have to have been followed to open the New York 17 compliant trust account? THE COURT: 18 And if barred, And with regards to the attorney-client 19 privilege, you're suggesting that there is no attorney-client 20 privilege you would be claiming? MR. CATANZARITE: 21 Well, we have an attorney -- we 22 have a privilege -- attorney-client privilege that they would be 23 claiming. 24 the Court views the complaints by the persons who deposited money 25 into the trust account as being attorney-client privilege, in I -- I don't see that we need to get into that, unless PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page19 14ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 13 1 which case, we'd be agreeable that they can redact that at this 2 point. 3 name of the complaining party. We're simply looking at what notice was given, redact the 4 THE COURT: All right. 5 MR. TASCA: Thank you, Your Honor. 6 So, you know, what I heard being articulated is -- is Mr. Tasca. 7 really only going to be a first step, I'm sure. 8 going to ask for what -- what they just said, and then they're 9 going to want to go deeper. 10 take depositions. And then they're going to want to We're going to need a protective order -- THE COURT: 11 I'm sure they're Well, I guess, my question is this: 12 mean, what if I were to enter an order where I only allow the 13 plaintiffs to go after this discovery that's been described 14 today? 15 How would you feel about that? MR. TASCA: Well, Your Honor, we'd obviously prefer 16 you grant our motion in its entirety. 17 that would be better than -- better than nothing. 18 I (Indiscernible). I mean, We would ask that, you know, if we have to provide 19 that, that maybe at this point, there be no depositions, at 20 least, taken or -- or further discovery requests, at least until 21 the motion to dismiss is decided. 22 plaintiffs (indiscernible) something they can sink their teeth 23 into and keep going on it. 24 not an unreasonable compromise. 25 THE COURT: But this would give the I -- yeah. All right. I mean, that -- that is So, I mean, I would be PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page20 15ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 14 1 willing to, sort of, split the baby here. 2 plaintiffs would be in agreement not to go after any other 3 discovery, other than what we've described here today, so there 4 will be no deposition at this stage of the game or any other 5 discovery other than what's been discussed until the motion to 6 dismiss has been decided. 7 So I'll hear from you, sir. 8 MR. CATANZARITE: 9 10 I mean, so long as the We'd agree to that, Your Honor. I -- I think that's a reasonable compromise at this stage. THE COURT: All right. So, I guess, then, I mean, 11 the posture of this motion is as a motion to stay discovery. 12 I suppose I'll go ahead and give you my order denying the motion 13 to stay discovery, but I will go ahead and enter a protective 14 order allowing the parties only to enter into the specific 15 discovery that we went ahead and talked about today. 16 17 18 So would it make more sense for the parties to go ahead and draft something for my approval jointly? MR. TASCA: I was going to suggest that, Your Honor, 19 just so we're, you know, all on the same page as to what, 20 exactly, they want and what we're (indiscernible). 21 think we can work with plaintiff's counsel or agreeable to do 22 that (indiscernible). 23 24 25 So THE COURT: All right. And so, I So let me go ahead and read you my order, then. I'll deny the motion to stay discovery, but again, PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page21 16ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 15 1 the reason why I'm denying the motion to stay discovery is 2 because of this agreement that the parties have reached in court 3 today to limit the discovery in the ways that were discussed in 4 court today. 5 All right. So the parties are familiar with the 6 facts of this case and the related arbitration. 7 Court will only repeat them here as necessary. 8 9 Accordingly, the Defendants move to stay discovery as it recently filed a motion to dismiss plaintiff's amended complaint. 10 Defendant's motion to dismiss seeks to dismiss all of plaintiff's 11 claims under Rule 12(b)(6) for failure to state a claim. 12 Defendant argues that discovery should be stayed and 13 under the preliminary peek test because -- because its motion to 14 dismiss will be dispositive and no additional discovery is needed 15 to decide it. 16 Defendant also argues that discovery should be stayed 17 under the good cause test as discovery is already proving to be 18 unduly burdensome and will likely continue in this matter. 19 Plaintiff disagrees, arguing that discovery should 20 not be stayed. 21 heavy burden under the preliminary peek test to convince this 22 Court that plaintiff will be unable to proceed on any claim. 23 Plaintiff argues that defendant has not met its Plaintiff also argues that good cause does not exist 24 to stay discovery as the case is not complex and discovery will 25 not be overly burdensome. PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page22 17ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 2 16 Finally, plaintiff argues that he will be prejudiced if discovery is stayed because he is over 80 years old. 3 The federal rules do not provide for an automatic 4 stay or blanket stays of discovery because of potentially 5 dispositive motions. 6 certain circumstances. 7 However, courts may stay discovery in As mentioned before, there are two main tasks. 8 is the preliminary peek test under Kor Media. 9 the good cause test as explained in Schrader v. Wynn. 10 One The other one is Here, defendant argues that discovery should be 11 stayed under both tests and plaintiff disagrees. 12 agrees with plaintiff that a discovery stay is not appropriate in 13 this case under either test given what we discussed here today. 14 The Court here Under the preliminary peek test, a discovery stay is 15 not appropriate. 16 succeed on its motion to dismiss on all claims. 17 mean that you won't succeed. 18 stage. 19 court in my situation to be able to be convinced of anything 20 based on a preliminary peek. 21 The Court is not convinced that defendant will That does not I'm just not convinced at this I have written at length about how difficult it is for a However, I will not go in any depth regarding the 22 motion to dismiss as it's the court's -- the district court's 23 rule to evaluate the propriety of the motion to dismiss. 24 25 Accordingly, the Court will not stay discovery under the preliminary peek test, and under the good cause test, I find PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page23 18ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 17 1 that even though defendant argues that discovery is proving to be 2 unduly, unduly burdensome, based on the broad discovery requests 3 and it could potentially complicate facts and expert 4 required -- discovery, I find that the middle ground that we were 5 able to strike today takes care of the concerns that the defense 6 may have, and the defense seems to also agree that that is a good 7 compromise. 8 9 10 The Court is unpersuaded by the arguments made in the defense -- by the defense and, as a result, finds that no good cause has been shown. 11 So I will go ahead and allow you to prepare a joint 12 protective order that delineates in detail the discovery that we 13 discussed in court today. 14 that we get that no later than next Friday. 15 So what is today? 16 COURTROOM ADMINISTRATOR: And I'm going to ask you to make sure Is today the 7th? Today's the 6th, Your 17 Honor, and the date for next Friday, Your Honor, would be April 18 the 14th. THE COURT: 19 20 All right. Does that work for plaintiffs? 21 MR. CATANZARITE: 22 THE COURT: Defense. 23 MR. TASCA: It works for us, as well, Your Honor. It does, Your Honor. 24 guess I would just ask while we're all here, if plaintiff's 25 counsel could send us, sort of, you know, a list of what they PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court I Case Case2:22-cv-01988-APG-BNW 2:22-cv-01988-APG-BNW Document Document36-2 38 Filed Filed04/25/23 04/21/23 Page Page24 19ofof24 19 TRANSCRIBED FROM DIGITAL RECORDING 2:22-cv-01988-APG-BNW - Thursday, April 6, 2023 1 described today, and we could take a look at it. 2 good way to start. THE COURT: 3 All right. 18 That could be a Sounds wonderful. So I'll be 4 looking for the joint protective order by Friday, the 14th. 5 you need additional time to put that together, just let me know, 6 and I'm happy to grant additional time. Okay? 7 MR. CATANZARITE: 8 THE COURT: All right -- 9 MR. TASCA: Thank you, Your Honor. 10 THE COURT: -- wonderful. 12 MR. TASCA: You, too. 13 MS. COLES: Thank you, Your Honor. 11 If Thank you, Your Honor. Have a good weekend, everyone. 14 (Proceedings adjourned at 1:45 p.m.) 15 --o0o-- 16 I, Paige M. Christian, a court-appointed transcriber, 17 certify that the foregoing is a correct transcript transcribed 18 from the official electronic sound recording of the proceedings 19 in the above-entitled matter. 20 21 Date: April 13, 2023 22 /s/ Paige M. Christian 23 Paige M. Christian, RPR, CRR, CCR #955 Official Court Reporter United States District Court District of Nevada 24 25 PAIGE M. CHRISTIAN, RPR, CRR, CCR #955 United States District Court
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
