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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Robert Facciola, et al.,
Plaintiffs,
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vs.
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Greenberg Traurig LLP, et al.,
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Defendants.
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No. CV-10-1025-PHX-FJM
ORDER
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The court has before it defendant Greenberg Traurig’s motion to compel the
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production of documents from non-party Oxford Investment Partners, LLC (doc. 228),
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Oxford’s response, motion to quash, and motion for protective order (doc. 241), Greenberg’s
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reply (doc. 242), and Oxford’s reply (doc. 246).
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Greenberg served a subpoena for documents on Oxford, a non-party investment firm,
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requesting multiple categories of documents relating to Mortgages Ltd. (“ML”) investments.
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Greenberg asserts that Oxford was “intimately involved” in selling ML’s securities to
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approximately 30 clients, including named plaintiff Robert Facciola. Motion at 2. Oxford
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was not only Facciola’s financial advisor on his ML investments, but it also had discretion
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over Facciola’s accounts and a power of attorney with respect to his ML securities. Id., ex.
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Greenberg requests all documents related to ML, including those documents related
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to putative absent class members. It contends that any documents reflecting Oxford’s
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knowledge of ML and its loan quality are directly imputable and therefore relevant to
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Facciola’s knowledge of ML’s financial stability, as well as Oxford’s own degree of fault.
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Oxford raises three arguments in opposition to the subpoena. It first contends that
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Greenberg should not be permitted to obtain Oxford’s clients’ personal financial information,
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arguing that such financial information is highly confidential and therefore not discoverable.
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However, there is no absolute rule against discovery of documents bearing on third-party
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finances. The test is whether the document request is reasonably calculated to lead to the
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discovery of admissible evidence.
The mere fact that the documents may contain
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confidential, third-party financial information does not make them undiscoverable,
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particularly here where a protective order is in place (doc. 224). Oxford’s generalized
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assertion that the requested documents may contain confidential financial information is
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insufficient to defend against this motion to compel.
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Oxford also contends that, independent of the confidentiality concerns, Greenberg is
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not entitled to discovery of the absent class clients. Although discovery from absent class
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members is “neither prohibited nor sanctioned explicitly” by the Federal Rules, courts
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generally do not permit discovery from absent class members absent a showing of a
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particularized need for information that could not be obtained from the class representative.
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Rojas v. Marko Zaninovich, Inc., 2011 WL 2636071, *4 (E.D. Cal. July 5, 2011); Pierce v.
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County of Orange, 526 F.3d 1190, 1202 n.9 (9th Cir. 2008) (Fed. R. Civ. P. 23 imposes
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inherent limitations on absent class member discovery.). Here, however, the subpoena is not
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directed at absent class members. Although the discovery request presented to Oxford may
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lead to information regarding absent class members, there is no rule prohibiting discovery
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of documents pertaining to absent class members. Therefore, the heightened requirements
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relating to the discovery of absent class members do not apply.
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Finally, Oxford objects that Greenberg’s request for documents about an investigation
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that law firm Stinson Morrison Hecker (“SMH”) conducted for Oxford is improper. It is
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alleged that Oxford retained SMH in the fall of 2007 to investigate ML because of concerns
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about ML’s financial stability. Greenberg argues that it is seeking unprivileged documents
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only and asks that the remaining documents be logged so that it may assess the privilege.
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Greenberg further contends that if SMH learned information about ML from third parties in
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the course of their investigation, that information is not privileged.
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We conclude that Greenberg has satisfied its showing that the requested documents
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are relevant to the claims and defenses presented in this action, and are not privileged or
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improperly directed to absent class members.
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IT IS ORDERED GRANTING Greenberg’s motion to compel (doc. 228) and
DENYING Oxford’s motion to quash (doc. 241).
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IT IS FURTHER ORDERED GRANTING Oxford’s motion for protective order
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(doc. 241). The protective order entered on July 7, 2011, shall apply with equal force and
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effect to the Oxford subpoena.
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DATED this 2nd day of November, 2011.
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