Xcentric Ventures LLC v. Karsen Limited et al

Filing 67

ORDER: IT IS ORDERED GRANTING plaintiff's motion to compel deposition of defendant Eugene Selihov 46 . Selihov shall appear for his deposition no later than October 8, 2012, or else default shall be entered. IT IS FURTHER ORDERED DENYING defendant's motion for reconsideration 63 [see order for details].Signed by Judge Frederick J Martone on 09/25/2012.(JAMA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Xcentric Ventures, LLC,
Plaintiff,

10
11

vs.

12
Karsen Limited, et al.,
13
Defendants.
14

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

No. CV 11-1055-PHX-FJM
ORDER

15
16

The court has before it plaintiff's motion to compel deposition of defendant Eugene

17

Selihov (doc. 46), defendant's untimely response (doc. 55), plaintiff's reply (doc. 58), and

18

defendant's motion for reconsideration (doc. 63).

19

I

20

Plaintiff seeks to compel Selihov to appear for his deposition. The court's scheduling

21

order set September 3, 2012 as the deadline to complete all discovery, including depositions

22

(doc. 32 at 3). Plaintiff noticed Selihov's deposition for July 20, 2012. On July 19, 2012,

23

Selihov's counsel informed plaintiff that he refused to attend his deposition. He also refused

24

to reschedule and stated that he would not appear for a deposition on any date, at any

25

location. As a result, plaintiff filed this motion. Selihov filed a response nearly three weeks

26

late, stating that he is "willing to participate in discovery" but does not believe that he can

27

be compelled to answer questions which may incriminate him (doc. 55 at 3).

28

Defendant invokes the Fifth Amendment privilege against self-incrimination as the

1

basis for his refusal to testify. But the Supreme Court of the United States has "rejected the

2

claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the

3

United States." United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 110 S. Ct. 1056,

4

1063 (1990). Thus, Selihov has no Fifth Amendment rights as an alien residing in Russia.

5

Even if Selihov could invoke the privilege, it would have to be done on a question-by-

6

question basis rather than as a blanket assertion. "A proper assertion of a Fifth Amendment

7

privilege requires, at a minimum, a good faith effort to provide the trial judge with sufficient

8

information from which he can make an intelligent evaluation of the claim." Davis v.

9

Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). "Therefore, a blanket invocation of the fifth

10

amendment privilege is insufficient to relieve a civil litigant of the responsibility to answer

11

questions put to him during the civil discovery process and to claim the privilege with respect

12

to each inquiry." SEC v. First Fin. Group of Texas, Inc., 659 F.2d 660, 669 (5th Cir. 1981).

13

Selihov must appear for his deposition.

14

II

15

Defendant asks us to reconsider our order dated September 18, 2012, in which we

16

ordered him to produce documents, extended deadlines, allowed plaintiff to file an

17

application for attorneys' fees, and did not grant plaintiff's motion to strike defendant's

18

answer. Defendant asks us to remove the instructions about fees and extend the deadlines

19

again.

20

Plaintiff moved to strike defendant's answer on the grounds that he had not produced

21

documents responsive to discovery requests despite being ordered to do so by the court.

22

Defendant responded that he had, in fact, complied with our order. In its reply, plaintiff

23

continued to argue that defendant's answer should be stricken because he had not produced

24

responsive documents. The reply did not raise a new argument. It addressed issues raised

25

by defendant in his response and made the same argument as the motion to strike. The

26

reply's discussion of specific categories of evidence provides no reason to reconsider our

27

order. The motion to strike was based on defendant's failure to disclose materials we ordered

28

him to disclose. The motion to compel referred to specific Requests for Production.
-2-

1

Therefore, the motion to strike embraced those categories of evidence and the discussion of

2

one particular category in the reply did not prejudice Selihov.

3

The court has not yet sanctioned Selihov by requiring him to pay plaintiff's attorneys'

4

fees. We invited plaintiff to file an application for attorneys' fees caused by defendant's

5

failure to produce documents and provided defendant the opportunity to respond. If

6

defendant believes sanctions are unjustified, he may challenge the basis for fees in his

7

response.

8

The original dispositive motion deadline was August 10, 2012. We extended the

9

deadline to September 26, 2012. Both parties requested extensions of more time. Defendant

10

argues that he does not have evidence to defend himself and cannot file a dispositive motion

11

by this deadline, yet plaintiff has all the evidence it requested. This is not true. Plaintiff has

12

discovery motions pending and has not obtained all the evidence it desires before the

13

dispositive motion deadline. The deadline was already extended by more than a month. As

14

we stated in our September 18, 2012 order, "[t]here is no room for any further modifications"

15

(doc. 61).

16

III

17

IT IS ORDERED GRANTING plaintiff's motion to compel deposition of defendant

18

Eugene Selihov (doc. 46). Selihov shall appear for his deposition no later than October 8,

19

2012, or else default shall be entered.

20
21
22

IT IS FURTHER ORDERED DENYING defendant's motion for reconsideration
(doc. 63).
DATED this 25th day of September, 2012.

23
24
25
26
27
28
-3-