Facciola, et al v. Greenberg Traurig, LLP, et al

Filing 286

ORDER granting 228 Greenberg's Motion to Compel and DENYING Oxford's Motion to Quash 241 . ORDER GRANTING Oxford's Motion for Protective Order 241 . The protective order entered on 7/7/11, shall apply with equal force and effect to the Oxford subpoena. Signed by Judge Frederick J Martone on 11/2/11.(TLJ)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Facciola, et al.,
Plaintiffs,

10
11

vs.

12
Greenberg Traurig LLP, et al.,
13
Defendants.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV-10-1025-PHX-FJM
ORDER

15
16
17

The court has before it defendant Greenberg Traurig’s motion to compel the

18

production of documents from non-party Oxford Investment Partners, LLC (doc. 228),

19

Oxford’s response, motion to quash, and motion for protective order (doc. 241), Greenberg’s

20

reply (doc. 242), and Oxford’s reply (doc. 246).

21

Greenberg served a subpoena for documents on Oxford, a non-party investment firm,

22

requesting multiple categories of documents relating to Mortgages Ltd. (“ML”) investments.

23

Greenberg asserts that Oxford was “intimately involved” in selling ML’s securities to

24

approximately 30 clients, including named plaintiff Robert Facciola. Motion at 2. Oxford

25

was not only Facciola’s financial advisor on his ML investments, but it also had discretion

26

over Facciola’s accounts and a power of attorney with respect to his ML securities. Id., ex.

27

8.

28

Greenberg requests all documents related to ML, including those documents related

1

to putative absent class members. It contends that any documents reflecting Oxford’s

2

knowledge of ML and its loan quality are directly imputable and therefore relevant to

3

Facciola’s knowledge of ML’s financial stability, as well as Oxford’s own degree of fault.

4

Oxford raises three arguments in opposition to the subpoena. It first contends that

5

Greenberg should not be permitted to obtain Oxford’s clients’ personal financial information,

6

arguing that such financial information is highly confidential and therefore not discoverable.

7

However, there is no absolute rule against discovery of documents bearing on third-party

8

finances. The test is whether the document request is reasonably calculated to lead to the

9

discovery of admissible evidence.

The mere fact that the documents may contain

10

confidential, third-party financial information does not make them undiscoverable,

11

particularly here where a protective order is in place (doc. 224). Oxford’s generalized

12

assertion that the requested documents may contain confidential financial information is

13

insufficient to defend against this motion to compel.

14

Oxford also contends that, independent of the confidentiality concerns, Greenberg is

15

not entitled to discovery of the absent class clients. Although discovery from absent class

16

members is “neither prohibited nor sanctioned explicitly” by the Federal Rules, courts

17

generally do not permit discovery from absent class members absent a showing of a

18

particularized need for information that could not be obtained from the class representative.

19

Rojas v. Marko Zaninovich, Inc., 2011 WL 2636071, *4 (E.D. Cal. July 5, 2011); Pierce v.

20

County of Orange, 526 F.3d 1190, 1202 n.9 (9th Cir. 2008) (Fed. R. Civ. P. 23 imposes

21

inherent limitations on absent class member discovery.). Here, however, the subpoena is not

22

directed at absent class members. Although the discovery request presented to Oxford may

23

lead to information regarding absent class members, there is no rule prohibiting discovery

24

of documents pertaining to absent class members. Therefore, the heightened requirements

25

relating to the discovery of absent class members do not apply.

26

Finally, Oxford objects that Greenberg’s request for documents about an investigation

27

that law firm Stinson Morrison Hecker (“SMH”) conducted for Oxford is improper. It is

28

alleged that Oxford retained SMH in the fall of 2007 to investigate ML because of concerns
-2-

1

about ML’s financial stability. Greenberg argues that it is seeking unprivileged documents

2

only and asks that the remaining documents be logged so that it may assess the privilege.

3

Greenberg further contends that if SMH learned information about ML from third parties in

4

the course of their investigation, that information is not privileged.

5

We conclude that Greenberg has satisfied its showing that the requested documents

6

are relevant to the claims and defenses presented in this action, and are not privileged or

7

improperly directed to absent class members.

8
9

IT IS ORDERED GRANTING Greenberg’s motion to compel (doc. 228) and
DENYING Oxford’s motion to quash (doc. 241).

10

IT IS FURTHER ORDERED GRANTING Oxford’s motion for protective order

11

(doc. 241). The protective order entered on July 7, 2011, shall apply with equal force and

12

effect to the Oxford subpoena.

13

DATED this 2nd day of November, 2011.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-