Princesse D'Isenbourg Et Cie Ltd v. Kinder Caviar, Inc.

Filing 146

MEMORANDUM ORDER: 1. Pla Princesse D'Isenbourg Et Cie Ltd.'s mtn to compel (Record No. 142 ) and supplemental mtn to compel (Record No. 144 ) are GRANTED, in part. 2. Pla Princesse D'Isenbourg Et Cie Ltd.'s mtn for sanct ions (Record No. 142 ) is DENIED, without prejudice to being renewed if dft fails to comply with the terms of this Ordr. However, in event pla renews its mtn to compel, it must comply with the certification requirements of Rule 37. 3. Pla Pri ncesse D'Isenbourg Et Cie Ltd. is granted leave to reschedule the depo of the co4rp rep of Dft Kinder Caviar, Inc. The depo may be taken pursuant to R 30(b)(6) of the FRCP. Pla must provide at least 14 days ntc of the depo. 4. In event corp rep appearing at the subsequently-scheduled depo objects to providing any info or document in the company's possession which is relevant to the subp duces tecum, the deponent or his or her counsel must state the specific grounds for the objection. I n event any claim of privilege is asserted under the Fifth Amendment to the US Constitution, the deponent or his or her counsel shall explain how providing the info would implicate such right. Signed by Judge Danny C. Reeves on 1/23/2012.(AKR)cc: COR, Kinder Caviar, Inc. via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Frankfort)
PRINCESSE D’ISENBOURG ET CIE
LTD.,
Plaintiff,
V.
KINDER CAVIAR, INC.,
Defendant,
and
KINDER CAVIAR, INC.,
Third-Party Plaintiff,
V.
UNITED AIRLINES, INC.,
Third-Party Defendant.
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Civil Action No. 3: 09-29-DCR

MEMORANDUM ORDER

**** **** ****

This matter is pending for consideration of Plaintiff Princesse D’Isenbourg Et Cie Ltd.’s
(“Princesse”) motion for an order compelling discovery from Joyce Kinder, an officer of
Defendant Kinder Caviar, Inc. [Record No. 142] On January 18, 2012, Princesse also filed a
supplemental motion to compel discovery after Defendant Kinder Caviar, Inc. and its owners,
Joyce and Steve Kinder entered guilty pleas to criminal charges pending in the United States

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District Court for the Southern District of Ohio. [Record No. 144]. For the reasons discussed
below, the Court will grant a portion of the relief sought.
I.

The Plaintiff’s Post-Judgment Collection Efforts

Following a one-day bench trial held on December 14, 2011, the Court entered a final
judgment in favor of Princesse and against Defendant Caviar, Inc., in the amount of $299,240.00,
together with pre-judgment and post-judgment interest. The plaintiff was also awarded all
taxable costs incurred in this proceeding. Princesse commenced collection efforts shortly
thereafter. While Kinder Caviar filed a Notice of Appeal following entry of the adverse
judgment [Record No. 137], it has not posted a bond to prevent collection of the judgment.
On December 22, 2011, Princess filed a notice to take the deposition of Joyce Kinder
together with a subpoena duces tecum. [Record No. 136] The notice filed by Princesse states that
it intends to take the deposition of Joyce Kinder “as the authorized corporate representative of
the Defendant, Kinder Caviar, Inc.” The accompanying subpoena identifies eighteen categories
of documents to be produced at the deposition, including tax returns for a number of years, bank
account and brokerage account statements, financial statements, and balance sheets. Princesse
seeks production of records pertaining not only to Defendant Kinder Caviar, Inc., but also Black
Star Caviar Company and Joyce and Steve Kinder individually. [See Record No. 136; attached
Subpoena Duces Tecum.]
Joyce Kinder appeared on January 6, 2012, at the offices of Princesse’s attorney in
Louisville, Kentucky. [See Record No. 142; attached deposition transcript.] However, before

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questioning commenced, Ms. Kinder read a statement indicating that she would not provide
information due to a pending criminal proceeding. More specifically, Ms. Kinder stated:
To all this matter concerns: On May 2, 2011, this Court entered an order
postponing the proceedings of the Isenbourg case until 30 days after the trial of
the criminal case against Kinder Caviar, Inc., had been concluded. The
prosecutor of the criminal case has spoken about this Isenbourg case in length and
therefore has acknowledged this case to the court residing [sic] over the criminal
case. It is my understanding that the head agent in the criminal case is the same
expert witness in the Isenbourg case. Clearly, the two cases are attached.
Because the criminal case has not concluded, I believe it would be detrimental for
me or Kinder Caviar, Inc., to give a deposition today. In no manner is this an
attempt to stall action of the Isenbourg case. I am in the process of hiring an
attorney to take over this case. Therefore, I assert my 5th Amendment Rights
today. Due to inadequate notice I am not prepared to comply with the requests
of today. Respectfully submitted.
[Record No. 142; attached deposition transcript]
After some explanation of the purpose of the deposition, counsel for Princesse advised
Ms. Kinder that he would be filing a motion to compel answers to the questions regarding
Defendant Kinder Caviar’s assets. Counsel also stated that he did not intend to inquire into
matters that would be harmful to Ms. Kinder’s criminal case.
If there were any questions that I would ask today that would in any way – you
feel would harm your defense in the criminal case, you could let me know that.
I would stop, as to that question. But my questions are going to be solely about
the assets of Kinder Caviar, Black Star Caviar, and the business that you are
doing now. It has nothing to do with the events that led up to what is proceeding
up in criminal court up in Ohio.
[Record No. 142; attached deposition transcript]
II.

Criminal Proceedings Pending in the United States District Court in Ohio

On March 9, 2011, Kinder Caviar, Inc., Black Star Caviar Co., Joyce Kinder and Steve
T. Kinder were indicted by a federal grand jury in the Southern District of Ohio. [United States
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v. Kinder Caviar Inc., et al., No. 1: 11-cr-35-MRB] A superseding indictment was returned in
the case on November 22, 2011. [Criminal Action Record No. 56] Thereafter, on January 9,
2012, a one-count information was filed charging Steve and Joyce Kinder with a violation of the
Lacey Act under 16 U.S.C. §§ 3372(a)(2)(A), (a)(4), 3373(d)(2), and 18 U.S.C. § 2. More
specifically, the information charged that:
On or about May 5, 2007, in the Southern District of Ohio and elsewhere,
Defendant Steve Kinder and Cornelia Joyce Kinder, aided and abetted by one
another, did knowingly transport and sell, and attempt to transport and sell, fish,
to wit: paddlefish, in interstate commerce when, in the exercise of due care, they
should have known that said fish was taken in violation of, and in a manner
unlawful under, the laws and regulations of the State of Ohio, specifically Ohio
Revised Code, Chapter 1533.37 (prohibiting taking fish other than by angling),
Chapter 1533.41 (prohibiting gill nets), and Chapter 1533.54 (prohibiting
commercial fishing).
[Criminal Action Record No. 68]
One week later, a change of plea hearing was held with: (i) Kinder Caviar entering a
guilty plea to Count 2 of the superseding indictment; (ii) Black Star Caviar Co. entering a guilty
plea to Count 4 of the superseding indictment; (iii) Steve Kinder entering a guilty plea to Count
1 of the information; and (iv) Joyce Kinder entering a guilty plea to Count 1 of the information.
The counts which were the subject of the corporate defendants’ guilty pleas charged false
labeling violations under the Lacey Act and allege that Joyce Kinder caused to be submitted false
records regarding paddlefish eggs in connection with certain identified export registration forms
in March 2007 and December 2010.
Thus, with the exception of sentencing, it appears that the criminal matter in the Southern
District of Ohio is substantially completed. Neither Kinder Caviar nor its officers or agents have

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identified any potential Fifth Amendment claim which might be implicated if Defendant Kinder
Caviar is required to submit to a judgment debtor examination concerning its assets.
III.

Analysis

Rule 37(a) provides that a party may move for an order compelling disclosure or
discovery upon proper notice. The motion must also include a certification that the movant has
in good faith conferred or attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action. In the present case, the discussions
occurring during the January 6, 2012, deposition of Joyce Kinder demonstrate that neither Ms.
Kinder nor her companies were likely to cooperate in discovery with Princesse at the time the
deposition was noticed. However, the Court is concerned that, notwithstanding this reluctance
insufficient notice was given for the production of the documents listed in the subpoena duces
tecum. Additionally, in light of the guilty pleas entered in the criminal matter pending in the
Southern District of Ohio, Defendant Kinder Caviar and its officers may no longer object to
discovery based upon a Fifth Amendment claim. There is no indication that any effort has been
made to clarify the defendant’s position following the guilty pleas entered in the criminal
proceeding.
In light of the foregoing, the Court will grant a portion of the relief sought and outline
procedures to be followed in re-scheduling the judgment debtor examination of Defendant
Kinder Caviar, Inc. Accordingly, being sufficiently advised, it is hereby
ORDERED as follows:

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1.

Plaintiff Princesse D’Isenbourg Et Cie Ltd.’s motion to compel [Record No. 142]

and supplemental motion to compel [Record No. 144] are GRANTED, in part.
2.

Plaintiff Princesse D’Isenbourg Et Cie Ltd.’s motion for sanctions [Record No.

142] is DENIED, without prejudice to being renewed if the defendant fails to comply with the
terms of this Order. However, in the event the plaintiff renews its motion to compel, it must
comply with the certification requirements of Rule 37.
3.

Plaintiff Princesse D’Isenbourg Et Cie Ltd. is granted leave to reschedule the

deposition of the corporate representative of Defendant Kinder Caviar, Inc. The deposition may
be taken pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. The plaintiff must
provide at least fourteen (14) days notice of the deposition.
4.

In the event the corporate representative appearing at the subsequently-scheduled

deposition objects to providing any information or document in the company’s possession which
is relevant to the subpoena duces tecum, the deponent or his or her counsel must state the
specific grounds for the objection. In the event any claim of privilege is asserted under the Fifth
Amendment to the United States Constitution, the deponent or his or her counsel shall explain
how providing the information would implicate such right.
This 23rd day of January, 2012.

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