Bel Trading & Consulting, Ltd. v. KNM Worldwide Services, LLC
Filing
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ORDER DENYING 1 Petition/Motion to Quash Subpoena. Signed by Magistrate Judge Jonathan Goodman on 8/6/2014. (oim)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14‐22313‐MC‐LENARD/GOODMAN
BEL TRADING & CONSULTING, LTD.,
Plaintiff,
v.
KNM WORLDWIDE SERVICES, LLC,
Defendant.
_______________________________________/
ORDER DENYING THIRD‐PARTY’S MOTION TO QUASH SUBPOENA
Non‐party RM Equipment, Inc. (“RM”), a licensed manufacturer of grenade
launchers and other firearms, has filed a motion to quash a subpoena served by the
judgment creditor in this litigation, who is seeking to collect on its $4.35 million
judgment. RM has incurred thousands of dollars of legal fees litigating its challenge to
producing 5 or 6 documents which are not subject to the attorney‐client privilege, not
subject to the work‐product exception, not covered by an express trade secrets claim,
and not subject to any other protection. At bottom, RM objects to producing four checks
and an agreement which canceled a contract to sell grenade launchers to the judgment
debtor and argues that the subpoena is improper. The judgment creditor, Bel Trading &
Consulting, Ltd. (“Bel”), contends that it is not abusing the post‐judgment discovery
process and notes that RM’s energetic, aggressive, and expensive battle is itself highly
suspicious and suggests that RM is hiding something.
Without opining on whether RM’s comprehensive, strident attack on a subpoena
now encompassing only a few non‐privileged documents is somehow indicative of
questionable behavior, the Undersigned denies the motion.
I.
BACKGROUND
The District Court referred to the Undersigned RM’s motion to quash Bel’s
subpoena. [ECF Nos. 1; 7]. The Undersigned has considered the motion, Bel’s response
in opposition [ECF No. 5], RM’s reply [ECF No. 6], Bel’s sur‐reply [ECF No. 10‐1], and
the pertinent portions of the record. The Undersigned also held a lengthy hearing on
the motion. [ECF No. 17].
Bel entered into an agreement with KNM Worldwide Services, LLC (“KNM”) to
purchase grenade launchers and other weapons. [ECF No. 1‐2, pp. 11‐17]. Bel agreed to
pay KNM $6,600,000 for these weapons. [ECF No. 1‐5, p. 2]. Bel ended up paying KNM
$3,636,000 before the contract unraveled. [Id. at pp. 3‐5]. For its part, KNM entered into
an agreement with RM to manufacture the grenade launchers for the ultimate sale to
Bel. [ECF No. 1, p. 2]. KNM, however, never received the appropriate licenses to take
possession of the grenade launchers. [Id.]. Thus, according to RM, legal title to, and
possession of, the grenade launchers never transferred to KNM. Nevertheless, in 2011,
RM and KNM entered into a cancellation agreement (the “Cancellation Agreement”),
pursuant to which RM paid KNM a certain sum to relinquish whatever rights KNM had
in the grenade launchers. [Id. at pp. 2‐3].
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When Bel did not receive its grenade launchers or a return of its money, it sued
KNM and ultimately obtained a final default judgment. [ECF No. 1‐7, p. 2]. KNM is
now defunct and appears to be the target of a federal investigation.
II.
DISCUSSION
In its post‐judgment discovery, Bel served an expansive subpoena on RM. [ECF
No. 5‐14, pp. 3‐12]. RM objected and filed the instant motion to quash. [ECF No. 1]. RM
argues that Bel’s subpoena should be quashed for the following reasons: (1) it is
overbroad and creates an undue burden on RM; (2) the information Bel seeks is beyond
the scope of discovery provided under Federal Rule of Civil Procedure 69; and (3) Bel
should be required to first seek the information from KNM. [ECF No. 1, pp. 5‐9].
A. Overbroad and Undue Burden
After RM filed its motion, the parties conferred and Bel agreed to eliminate 10 of
its 12 request and to narrow its subpoena to the following:
1.
2.
A copy of the Cancellation Agreement; and
All documents, including all non‐privileged communications, reflecting,
evidencing or relating to any transfer of funds between KNM (or its
principals Christopher Brown and Gabrielle Brown) and RM from April 1,
2008 to the present relating to the Grenade Launchers or Rifles
manufactured by RM for KNM.
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[ECF No. 5, p. 5]. Before oral argument (where RM was represented by two attorneys),1
the second category of requested documents was further narrowed to include only the
checks for payments between RM and KNM. With that further narrowing of Bel’s
subpoena, the total number of RM documents at issue is approximately 5 to 6
documents ‐‐ all of which RM has located and are in its counsel’s possession. As such,
RM conceded that its overbroad and undue burden argument was no longer viable.
B. Rule 69
Rule 69(a) states in pertinent part:
(2) Obtaining Discovery. In aid of the judgment or execution, the
judgment creditor . . . may obtain discovery from any person‐‐including
the judgment debtor‐‐as provided in these rules or by the procedure of the
state where the court is located.
(emphasis added). “Under this Rule, discovery may be had of the judgment debtor or
third persons without separate suit and, if discovery is pursued under the federal rules .
. . all the discovery devices of the Rules may be used as in the progress of the action.”
Caisson Corp. v. Cnty. W. Bldg. Corp., 62 F.R.D. 331, 334 (E.D. Pa. 1974).
Rule 69 allows for broad discovery against the judgment debtor. 12 Wright &
Miller, Federal Practice and Procedure § 3014 (2d ed. 2013). However, without a
particularized showing of necessity and relevance, courts typically limit the
examination of third‐parties to the judgment debtor’s assets and third‐parties are
RM’s counsel appeared in person, while Bel’s two attorneys appeared by phone.
The hearing lasted approximately two and a half hours.
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generally not required to disclose their own assets. Id.; Trustees of N. Florida Operating
Eng’rs Health & Welfare Fund v. Lane Crane Serv., Inc., 148 F.R.D. 662, 663‐64 (M.D. Fla.
1993).
Here, Bel’s subpoena, as narrowed, does not seek information regarding RM’s
assets. All that Bel seeks is limited information regarding what happened with KNM’s
deal with RM for the grenade launchers. In particular, Bel points out that it has
evidence that KNM paid RM approximately $360,000 for Bel’s grenade launchers but it
has no evidence that KNM ever received the grenade launchers or any money back after
KNM could not take possession of the grenade launchers. [ECF No. 10‐1]. Thus, Bel
posits that if KNM gave RM $360,000 but received nothing in return, then KNM could
seek the return of that money or the grenade launchers from RM. In other words, Bel’s
theory is that the right to proceed against some or all of the money is a KNM asset ‐‐
and, like any other non‐exempt asset, is subject to execution by a judgment creditor.
RM strenuously objects to the production of these 5 to 6 documents. It argues
that the Cancellation Agreement was an arms‐length transaction and that it paid KNM
two checks pursuant to the Cancellation Agreement. The crux of RM’s argument is that
the discovery sought is beyond the scope of Rule 69 and is nothing more than an
attempt to gin‐up a possible claim against RM, so that Bel can collect on its judgment.
According to RM, it is trying to “nip this in the bud” by not producing this discovery.
As a result, while RM contends that it did nothing wrong and that the Cancellation
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Agreement and the supporting checks fully support its position, RM still objects to
producing these 5 or 6 documents and further objects to Bel’s suggestion that RM
produce these few documents to the Undersigned for in camera review.2 RM’s counsel
argued that in camera review would still be an incorrect procedure because it flows from
a so‐called abuse of a Rule 69 subpoena.
RM’s counsel advised the Undersigned that he is personally familiar with the
Cancellation Agreement because he participated in its negotiation. Nevertheless, he
said he did not know whether the agreement was a trade secret. He conceded that the
checks are not trade secrets, however.
Bel’s discovery requests have been culled down to only the Cancellation
Agreement and the related checks. No information regarding RM’s financial assets is
being requested. Under these modifications, the discovery Bel seeks is within the scope
of Rule 69. See Lane Crane Serv., 148 F.R.D. at 663 (noting that “Movants appear to
concede, as they must, that under Rule 69(a) . . . two requests which seek invoices or
There was another way that RM could have “nipped this in the bud”: RM could
have produced the 5 to 6 documents that purportedly show that it did nothing wrong
or that KNM does not have any right to recover some or all of the money.
RM’s argument ‐‐ that the subpoena is designed to seek a deep pocket to collect
on a judgment from an asset‐free judgment debtor ‐‐ is entirely speculative. Moreover,
even if correct, the RM theory would not prevent RM from obtaining relief in the event
that Bel abused process, engaged in malicious prosecution, persuaded the U.S. Marshal
to execute on assets not subject to collection efforts, or otherwise engaged in
misconduct. Perhaps Bel may also want to evaluate the limited discovery to analyze a
potential claim against RM, but it has articulated a sufficiently logical basis to permit
the modest amount of document discovery called for by the narrowed subpoena.
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bills of sale documenting equipment transactions between the Defendant, who is the
judgment debtor, and Movant” are proper) (emphasis added).
RM’s reliance on Trustees of Amalgamated Ins. Fund v. Jordan Mfg. Corp., No. 07‐
21301‐MC, 2008 WL 343132 (S.D. Fla. Feb. 5, 2008) is misplaced. There, the plaintiff was
seeking Rule 69 discovery from a third‐party for that third‐party’s personal finances to
support a possible alter ego claim. Id. at *1. As noted, that is not the case here.
Moreover, while Bel could not without further research precisely articulate a
plausible legal theory of how it could pursue a claim against RM if KNM indeed paid
$360,000 for the grenade launchers but received nothing in return, there are some legal
bases to support such a theory. Lane Crane Serv., Inc., 148 F.R.D. at 664 (discussing
Florida post‐judgment proceedings and finding that “[p]laintiffs may seek to obtain
discovery from Movants pursuant to either Rule 69(a), FRCP, or Rule 1.560, Florida
Rules of Civil Procedure, to determine whether they hold property belonging to
Defendant. Subsequently, they may move to implead Movants, if appropriate.”).
Finally, the Undersigned rejects RM’s ore tenus argument that because the
Cancellation Agreement has a confidentiality provision it is a trade secret or not subject
to production. See, e.g., In re Denture Cream Prods. Liab. Litig., No. 09‐2051‐MD, 2013 WL
214672, at *4 (S.D. Fla. Jan. 18, 2013) (“the mere fact that a Party designates a document
as either ‘confidential’, . . . or as containing ‘trade secrets’ . . . does not, in and of itself,
mean that those documents are, in fact, confidential”); Gutter v. E.I. DuPont de Nemours
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& Co., No. 95‐2152‐CIV, 2001 WL 36086590, at *1 (S.D. Fla. Jan. 31, 2001) (confidentiality
provisions in settlement agreements cannot be used as a shield to obstruct the discovery
process).
The Undersigned, however, also recognizes that a litigant does not necessarily
have “an unrestrained right to disseminate information that has been obtained
through” discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984). Therefore, the
discovery RM provides will be provided on an “attorney’s eyes only” basis, with Bel’s
counsel (including associates, assistants, paralegals, law clerks, and investigators
working for counsel) being the only persons who can, without further court order, see
the documents. The Undersigned notes that RM and Bel are not competitors and that
RM did not itself request the “attorney’s eyes only” limitation. Nevertheless, in an
abundance of caution, the Undersigned is providing this additional protection for RM’s
limited production.
C. Getting the Information From Other Sources First
RM argues that Bel should have to seek this discovery first from KNM before
seeking it from Bel. Bel, however, did first seek this information from KNM in the
underlying litigation in the Middle District of Florida. But that proved unsuccessful
because KNM quickly defaulted and is now defunct and under federal investigation.
RM’s argument at the hearing that Bel must first seek discovery from KNM’s former
counsel or KNM’s principals is unpersuasive. KNM’s principals and former counsel are,
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like RM, third parties. RM has cited to no legal authority which requires Bel to first seek
discovery from other third parties before pursuing it from RM.
III.
CONCLUSION
For the foregoing reasons, RM’s motion to quash is denied. RM shall respond to
Bel’s subpoena, as modified in this Order, by August 13, 2014. The Undersigned
declines to award any party attorney’s fees under Rule 37. The Undersigned finds that
both parties’ discovery positions were substantially justified. See Fed. R. Civ. P.
37(a)(5)(A)(ii).
DONE AND ORDERED in Chambers, in Miami, Florida, August 6, 2014.
Copies furnished to:
Honorable Joan A. Lenard
All Counsel of Record
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