Xcentric Ventures LLC v. Karsen Limited et al
Filing
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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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Xcentric Ventures, LLC,
Plaintiff,
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vs.
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Karsen Limited, et al.,
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Defendants.
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No. CV 11-1055-PHX-FJM
ORDER
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The court has before it plaintiff's motion to compel deposition of defendant Eugene
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Selihov (doc. 46), defendant's untimely response (doc. 55), plaintiff's reply (doc. 58), and
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defendant's motion for reconsideration (doc. 63).
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I
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Plaintiff seeks to compel Selihov to appear for his deposition. The court's scheduling
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order set September 3, 2012 as the deadline to complete all discovery, including depositions
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(doc. 32 at 3). Plaintiff noticed Selihov's deposition for July 20, 2012. On July 19, 2012,
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Selihov's counsel informed plaintiff that he refused to attend his deposition. He also refused
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to reschedule and stated that he would not appear for a deposition on any date, at any
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location. As a result, plaintiff filed this motion. Selihov filed a response nearly three weeks
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late, stating that he is "willing to participate in discovery" but does not believe that he can
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be compelled to answer questions which may incriminate him (doc. 55 at 3).
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Defendant invokes the Fifth Amendment privilege against self-incrimination as the
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basis for his refusal to testify. But the Supreme Court of the United States has "rejected the
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claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the
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United States." United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 110 S. Ct. 1056,
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1063 (1990). Thus, Selihov has no Fifth Amendment rights as an alien residing in Russia.
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Even if Selihov could invoke the privilege, it would have to be done on a question-by-
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question basis rather than as a blanket assertion. "A proper assertion of a Fifth Amendment
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privilege requires, at a minimum, a good faith effort to provide the trial judge with sufficient
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information from which he can make an intelligent evaluation of the claim." Davis v.
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Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). "Therefore, a blanket invocation of the fifth
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amendment privilege is insufficient to relieve a civil litigant of the responsibility to answer
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questions put to him during the civil discovery process and to claim the privilege with respect
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to each inquiry." SEC v. First Fin. Group of Texas, Inc., 659 F.2d 660, 669 (5th Cir. 1981).
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Selihov must appear for his deposition.
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II
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Defendant asks us to reconsider our order dated September 18, 2012, in which we
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ordered him to produce documents, extended deadlines, allowed plaintiff to file an
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application for attorneys' fees, and did not grant plaintiff's motion to strike defendant's
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answer. Defendant asks us to remove the instructions about fees and extend the deadlines
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again.
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Plaintiff moved to strike defendant's answer on the grounds that he had not produced
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documents responsive to discovery requests despite being ordered to do so by the court.
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Defendant responded that he had, in fact, complied with our order. In its reply, plaintiff
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continued to argue that defendant's answer should be stricken because he had not produced
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responsive documents. The reply did not raise a new argument. It addressed issues raised
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by defendant in his response and made the same argument as the motion to strike. The
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reply's discussion of specific categories of evidence provides no reason to reconsider our
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order. The motion to strike was based on defendant's failure to disclose materials we ordered
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him to disclose. The motion to compel referred to specific Requests for Production.
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Therefore, the motion to strike embraced those categories of evidence and the discussion of
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one particular category in the reply did not prejudice Selihov.
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The court has not yet sanctioned Selihov by requiring him to pay plaintiff's attorneys'
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fees. We invited plaintiff to file an application for attorneys' fees caused by defendant's
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failure to produce documents and provided defendant the opportunity to respond. If
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defendant believes sanctions are unjustified, he may challenge the basis for fees in his
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response.
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The original dispositive motion deadline was August 10, 2012. We extended the
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deadline to September 26, 2012. Both parties requested extensions of more time. Defendant
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argues that he does not have evidence to defend himself and cannot file a dispositive motion
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by this deadline, yet plaintiff has all the evidence it requested. This is not true. Plaintiff has
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discovery motions pending and has not obtained all the evidence it desires before the
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dispositive motion deadline. The deadline was already extended by more than a month. As
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we stated in our September 18, 2012 order, "[t]here is no room for any further modifications"
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(doc. 61).
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III
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IT IS ORDERED GRANTING plaintiff's motion to compel deposition of defendant
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Eugene Selihov (doc. 46). Selihov shall appear for his deposition no later than October 8,
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2012, or else default shall be entered.
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IT IS FURTHER ORDERED DENYING defendant's motion for reconsideration
(doc. 63).
DATED this 25th day of September, 2012.
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