Rullan v. Goden et al
Filing
162
LETTER ORDER AND OPINION granting in part and denying in part 141 MOTION to Quash or in the alternative, Modify Subpoena. Signed by Magistrate Judge J. Mark Coulson on 3/20/2024. (mg3s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
J. Mark Coulson
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
P: (410) 962-4953 | F: (410) 962-2985
mdd_jmcchambers@mdd.uscourts.gov
March 20, 2024
LETTER ORDER AND OPINION TO COUNSEL
RE:
Luis Rullan v. Jill K. Goden et al.
Civil No. 1:17-cv-03741-CCB
Dear Counsel:
Plaintiff, Luis Rullan, brought this action against Defendants “for damages and equitable
relief to remedy injuries arising out of Defendants’ criminal conspiracy to transfer and secrete the
assets of companies and individuals sued by Rullan in Rullan v. Goden, et al. (D. Md. Case No.
1:12cv-02412-CCB.” (ECF No. 46 at 1).1 United States District Judge Catherine C. Blake referred
this case to the undersigned on August 22, 2023, for discovery and all related scheduling. (ECF
No. 136). A discovery dispute has arisen, and presently before the Court is Defendants’ Motion
to Quash, or in the Alternative, Modify Subpoena. (ECF No. 141). The undersigned has
considered the motion as well as Plaintiff’s opposition and Defendants’ reply thereto. (ECF Nos.
154, 161).2 No hearing is necessary. See Loc. R. 105.6 (D. Md. 2023). For the reasons that follow,
Defendants’ motion, construed as one for a protective order under Rule 26, will be granted in part
and denied in part.
I.
Background
A.
Relevant Factual and Procedural History
According to Plaintiff’s Amended Complaint, Defendant Frederick Greenberg founded the
Timber Ridge Camp (the “Camp”) in High View, West Virginia, as early as 2010. (ECF No. 46
at 4).3 Since 2010, ownership of the Camp’s real property and operation of the Camp have been
divided between two entities—Timber Ridge, Inc. (“TRI”), who owns the Camp, and Youth
World, Ltd. (“YWL”), who operates the Camp. Id. Mr. Greenberg “transferred half of his
ownership interests in TRI and YWL” to Defendant Jill Goden “as a gift on or about December
15, 2010.” Id.
1
When the Court cites to a specific page number or range of page numbers, the Court is referring to the page numbers
provided in the electronic filing stamps located at the top of every electronically filed document.
2
The undersigned granted the parties four previous extension requests regarding the briefing schedule deadlines for
the motion to quash. See (ECF Nos. 149, 151, 153, 159).
3
Because discovery is guided by the allegations raised in a complaint and the defenses asserted, the facts underlying
Plaintiff’s lawsuit are taken from the allegations set forth in Plaintiff’s Amended Complaint. The undersigned does
not wish for either party to construe the references to those allegations as accepting them as true.
Mr. Greenberg and Ms. Goden “lured [Plaintiff] into investing and becoming Goden’s
partner in the Camp” in the Spring of 2011. Id. On March 30, 2011, “Goden and [Plaintiff]
executed a stock purchase agreement in which Goden and [Plaintiff] each agreed to purchase fifty
percent of YWI’s stock. Under the agreement, Goden and [Plaintiff] are fifty percent co-owners
of YWI; Goden is President and Treasurer; and [Plaintiff] is Vice President and Secretary.” Id.
The parties memorialized their agreement on August 24, 2011, with a Written Partnership and
Securities Purchase Agreement (“Partnership Agreement”), under which Mr. Greenberg “sold his
fifty percent share in TRI and YWL to [Plaintiff] for $500,000 to be paid in $50,000 annual
installments over a ten-year period.” Id. at 4–5. Ms. Goden executed stock purchase certificates
on October 27, 2011, denoting that Plaintiff had purchased stock in YWL and TRI. Id. at 5.
Ms. Goden and Mr. Greenberg then “purported to ‘fire’ [Plaintiff] and threatened to have
him arrested if he arrived at Camp” in late May 2012. Id. After attempts at reconciliation and
settlement broke down, Plaintiff filed suit against Ms. Goden and Mr. Greenberg on August 14,
2012, alleging claims of fraud, fraudulent inducement, shareholder oppression, breach of fiduciary
duty, negligence, unjust enrichment, breach of contract, and financial accounting (“First
Lawsuit”). Id. Plaintiff amended his First Lawsuit to add TRI, YWL, and Youth World
International Company, Ltd. (“YWI”) on September 30, 2014. Id.
Plaintiff alleges that, during the First Lawsuit, Ms. Goden and Mr. Greenberg unilaterally
executed promissory notes “in the stated principal amount of $550,000 payable to the order of
Defendant The Frederick I. Greenberg Revocable Trust (‘Greenberg Revocable Trust’)” and
executed a deed of trust “conveying an interest in TRI’s real property to the Greenberg Revocable
Trust as security for the promissory note” in April 2013 and June 2013, respectively. Id. at 6.
Defendants then supposedly formed Cacapon River Camps, Inc. and Cacapon Camps, Inc.
(collectively the “Cacapon Companies”) in August 2014 to transfer substantially all of YWL and
YWI’s assets thereto. Id. at 7. “Upon information and belief, the Cacapon Companies are now
operating the Camp, and the Camp’s income and disbursements are now recorded in the books and
records of the Cacapon Companies.” Id. Moreover, TRI, YWL, and YWI “effectively ceased
operations, engaged in no business, and received no business revenue following the incorporation
and transfer of assets to the Cacapon Companies” after “Greenberg and Goden diverted all business
that had previously been exploited by TRI, YWL, and YWI to the Cacapon Companies.” Id.
Also in August 2014, Ms. Goden and Mr. Greenberg submitted conflicting discovery
responses during the First Lawsuit by indicating in sworn interrogatory responses that Ms. Goden
did not own any stock in YWL despite Defendants’ previous representation that Mr. Greenberg
gifted Ms. Goden a fifty percent stake in YWL in 2010. Id. Those interrogatory responses were
signed and submitted by attorney Jonathan M. Davidoff of Davidoff Law Firm, P.L.L.C., “their
then-lead counsel” in the First Lawsuit. Id. Defendants were also represented by attorneys Mark
A. Simanowith and Mathew A. Haven of Saul Ewing, LLP as “local Maryland counsel” during
the First Lawsuit. Id. at 7–8.
Ms. Goden and Mr. Greenberg simultaneously “executed another promissory note [on
behalf of TRI] promising to pay $530,000 to the Greenberg Revocable Trust—thereby saddling
TRI with a total of at least $1,080,000 in bogus debt to the Greenberg Revocable Trust” before
executing another deed of trust on behalf of TRI “conveying an interest in TRI’s real property to
2
the Greenberg Revocable Trust as security for the promissory note.” Id. at 8. Ms. Goden and Mr.
Greenberg subsequently filed two Maryland state court actions to dissolve YWI and YWL, which
were filed on their behalf by attorney Bart Colombo of O’Reilly & Mark, PC. Id. Ms. Goden and
Mr. Greenberg affirmed in their sworn complaint for dissolution that Ms. Goden owned fifty
percent of YWL, in line with their previous representations but in contradiction to the August 2014
written discovery responses. Id. The complaint for dissolution also “represented that ‘YWL has
recently ceased operations,’ apparently reflecting the brand new Cacapon Companies’ assumption
of management and operation of the Camp four days earlier.” Id.
On August 18, 2014, Mr. Greenberg and TRI, through Mr. Davidoff, filed suit in Florida
state court to invalidate the Partnership Agreement, again representing in their ensuing complaint
that Mr. Greenberg and Ms. Goden each had a fifty-percent interest in YWL. Id. Mr. Greenberg
obtained a default against Plaintiff in the Florida state court case on September 19, 2014, before
Plaintiff removed that case to the U.S. District Court for the Southern District of Florida. Id. at 9.4
Also on August 18, 2014, Ms. Goden “filed her Chapter 13 Voluntary Petition in the
Bankruptcy Court” for the U.S. District of Maryland. Id. Plaintiff avers that Ms. Goden concealed
her interests in YWL and YWI “by failing to disclose them in her schedules,” “fail[ing] to disclose
the pending dissolution lawsuits,” and improperly “schedul[ing] the value of her share in TRI as
$0.” Id.
On August 21, 2014, Defendant Alex Reece, a former manager of the Camp, “concealed
[the Cacapon Companies’] existence during his deposition as a 30(b)(6) witness for TRI, YWL,
and YWI” in Plaintiff’s First Lawsuit. Id. at 3, 9. Specifically, Reece allegedly falsified that YWL
operates the Camp despite Ms. Goden’s “allegation in the verified YWL dissolution complaint that
YWL had ‘recently ceased operations’ and Greenberg’s testimony that the Cacapon Companies
had assumed operation of the Camp.” Id. at 9–10. Mr. Davidoff represented Reece during his
deposition as a 30(b)(6) witness for TRI, YWL, and YWI. Id. at 10.
On November 20 and December 15, 2014, Mr. Greenberg submitted bids to purchase the
bankruptcy estate’s assets from the Trustee “in order to reacquire Goden’s share of the Camp
assets.” Id. Mr. Davidoff submitted those bids on Mr. Greenberg’s behalf. Id. Then, on December
19, 2014, after Plaintiff “filed his original Complaint in this case as an Adversary Proceeding in
the Bankruptcy Court,” Ms. Goden “moved to voluntarily dismiss the entire proceeding three days
later. Upon information and belief, she did so because she realized from the original Complaint
that [Plaintiff] had discovered Defendants’ scheme to use Goden’s bankruptcy filing to cover up
the fraudulent transfers of TRI’s, YWL’s, and YWI’s assets.” Id. at 10. Plaintiff submits that the
above actions constitute criminal conduct in violation of 18 U.S.C. §§ 152(1), (3), and (7), 157,
371, and 1621. Id.
Plaintiff’s Amended Complaint also alleges that Defendants improperly failed to pay
corporate bills and file corporate reports. For instance, Plaintiff alleges that Capon Valley Bank
informed Mr. Greenberg on September 17, 2013, that a $2.4 million loan issued jointly to TRI and
Mr. Greenberg individual was in default and required Mr. Greenberg to establish an escrow
The docket report for the Southern District of Florida case indicates that Plaintiff’s motion to dismiss in that case
was granted on March 5, 2019, by default because Mr. Greenberg and TRI failed to oppose it.
4
3
account with a minimum balance of at least $208,526. Id. at 11. Capon Valley Bank then issued
a notice of foreclosure sale initiating foreclosure proceedings against TRI and Mr. Greenberg
personally for the sale of TRI’s 70.5-acre property that served as collateral for the $2.4 million
loan. Id. “[U]pon information and belief, Greenberg and TRI defaulted on the Capon Bank loan
so that the Capon Bank would foreclose on the TRI property, allowing an insider to buy the land
back at a foreclosure sale and freeing the Camp from a lis pendens that [Plaintiff] had placed on
the Camp property.” Id. Plaintiff also contends that YWL failed to pay state and federal taxes
throughout the pendency of Plaintiff’s First Lawsuit as evidenced by the Baltimore County Circuit
Court entering various judgments against YWL throughout 2013 and 2014 in favor of the State of
Maryland and the United States. Id. at 11–12. The Maryland Department of Assessment and
Taxation then filed notices of forfeiture stating that YWL’s and YWI’s corporate statuses were
forfeited for failing to file property returns. Id. at 12. Both the West Virginia Secretary of State’s
Office and the Maryland Department of Assessment and Taxation indicated that TRI’s corporate
status was forfeited as of June 13, 2018. Id.
Then on or about April 25, 2018, Mr. Greenberg filed a voluntary Chapter 11 bankruptcy
petition on behalf of TRI, indicating therein that Mr. Greenberg is TRI’s President. Id. at 13. Mr.
Greenberg claims in that petition that he is the sole owner of TRI and that Ms. Goden has no
ownership interest in TRI, “but omits the material fact that Goden’s fifty percent share of TRI is
vested with the Maryland Bankruptcy Trustee and is owned by her estate.” Id. Plaintiff believes
that Mr. Greenberg did so to “further his scheme to commit bankruptcy fraud.” Id. at 14.
Accordingly, Plaintiff filed the present nineteen-count lawsuit against Defendants, alleging
unauthorized and fraudulent transfers (Counts I, IV, and VII); shareholder oppression (Counts II,
V, VIII, and XIII); breach of fiduciary duty (Counts III, VI, IX, XV, and XVI); aiding and abetting
(Counts X and XIX); civil conspiracy (Counts XI and XVIII); negligence and breach of fiduciary
duty of care (Counts XII and XIV); and conversion (Count XVII).
B.
The Subpoena
Relevant for purposes of Defendants’ motion, Plaintiff served a subpoena on the Davidoff
Law Firm on December 8, 2023 (the “Subpoena”), which commands the production of:
[F]or the period from August 18, 2012 to the present day, all documents (other than
those publicly filed in court of law) and communication in whatever form
(electronic or hard copy), including but not limited to receipts; invoices; billable
records; statements and notices from financial institutions; QuickBooks or other
accounting entries; and letters, e-mails, transcripts, SMS messages, and instant
messages to, from, or between you, co-counsel, Jill K. Goden, Eric S. Goden,
Frederick I. Greenberg, the Camp Companies,[] and any other entity, trust, or
person owned or controlled, in whole or in part, by Jill K. Goden, Eric S. Goden,
or Frederick I. Greenberg concerning:
1. The decision to bring, preparation, filing, and prosecution of Jill K. Goden’s bankruptcy
proceeding in the U.S. Bankruptcy Court for the District of Maryland, Case No. 14-22934NVA.
4
2. The decision to bring, preparation, filing, and prosecution of the lawsuit brought by
Federick I. Greenberg and Timber Ridge, Inc. against Luis (Janer) Rullan and Luis (Colom)
Rullan, Sr. in the U.S. District Court for the Southern District of Florida, Case No. 9:14cv-81191 (removed by Luis Rullan from the Circuit Court of the Fifteenth Judicial Circuit
in and for Palm Beach County, Florida).
3. The decision to bring, preparation, filing, and prosecution of the dissolution lawsuits of
Youth World, Ltd. (Case No. 03-C-14-008892 OT) and Youth World International
Company, Ltd. (Case No. 03-C-14-00889a OT) in the Circuit Court for Baltimore County,
Maryland.
4. The decision to form and the formation and capitalization of Cacapon Camps Inc. and
Cacapon River Camps Inc. and any transfer or anything of value, tangible and intangible,
from Youth World, Ltd. and/or Youth World International Company, Ltd. to Cacapon
Camps Inc. and/or Cacapon River Camps Inc.
5. Debts or loans (including but not limited to credit cards and mortgages), the forgiveness
thereof, payments, any transfer or monies, assets, or other thing of value to, from, or among
Jill K. Goden; Eric S. Goden; Frederick I. Greenberg; the Camp Companies; the Frederick
I. Greenberg Revocable Trust; and any other entity, trust, or person owned or controlled,
in whole or in part, by Jill K. Goden, Eric S. Goden, or Frederick I. Greenberg.
6. Any compensation paid to you or your law firm by Jill K. Goden; Eric S. Goden; Frederick
I. Greenberg; the Camp Companies; the Frederick I. Greenberg Revocable Trust; and any
other entity, trust, or person owned or controlled, in whole or in part, by Jill K. Goden, Eric
S. Goden, or Frederick I. Greenberg concerning the legal proceedings identified in
Paragraphs one through three (1-3) above and the Cacapon Camps Inc. and Cacapon River
Camps Inc. Company, Ltd.; Cacapon Camps Inc.; Cacapon River Camps Inc.
(ECF No. 141-1 at 4; ECF No. 154-1 at 5). Defendants’ specific objections to this subpoena are
enumerated as follows in its motion:
The Defendants hereby assert the attorney/client privilege with respect to all
communications with the Davidoff Law Firm, and object to the production of any
documents prepared by the Davidoff Law Firm which constitutes attorney work
product.
The Subpoena is clearly an attempt by the Plaintiff to harass the Defendants, as the
requests are clearly protected, and/or beyond the time-period for which an attorney
is required to retain records for a client. Additionally, the materials sought in
inquiries 5 and 6 are wholly irrelevant and outside the scope of the issues in the
instant action. Plaintiff and his counsel’s displeasure with Defendants’ prior
counsel is no secret in this matter. However, any such opinion and/or feelings do
not justify Plaintiff’s attempt to obtain clearly protected documents and
communications.
5
WHEREFORE, Defendants respectfully request that the Court enter an Order
granting Defendants’ Motion to Quash requests 1 through 4 of the Subpoena, and
that they be granted any further relief as the nature of their cause may require.
(ECF No. 141 at 2–3).5
II.
Analysis
A. Plaintiff’s Procedural Arguments Seeking Denial of the Motion
As a threshold matter, Plaintiff raises two procedural arguments in urging the Court to deny
Defendants’ motion: (1) that this Court has no jurisdiction to adjudicate Defendants’ motion; and
(2) that Defendants failed to comply with this Court’s prior discovery order. (ECF No. 154 at 6–
8, 34). Plaintiff’s first argument is correct as it relates to a subpoena’s compliance with the
language of Rule 45, but the undersigned will not dispose of Defendants’ motion on that ground
based on Defendants’ invocation of Rule 26.
Federal Rule of Civil Procedure 45(d)(3)(A)(iii)–(iv) provides that, “On timely motion, the
court for the district where compliance [of a subpoena] is required must quash or modify a
subpoena that . . . requires disclosure of privileged or other protected matter, if no exception
applies; or subjects a person to undue burden.” Plaintiff argues that Defendants’ motion should
be denied because the proper court to consider Defendants’ motion is the U.S. District for the
Southern District of New York. (ECF No. 154 at 6). Specifically, Plaintiff posits that the Southern
District of New York is the proper forum to adjudicate Defendants’ motion because the Davidoff
Law Firm is located in New York, NY, and the Subpoena required production of documents “c/o
Alexander Shapiro, Esq., Ford O’Brien, Landry, LLP . . . which is within 100 miles of Davidoff
Law as required by Fed. R. Civ. P. 45(c)(2).” Id.; see also Fed. R. Civ. P. 45(c)(2) (noting that a
subpoena may command the production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is employed, or regularly
transacts business in person).
The language of Rule 45(d)(3)(A) is clear that “the court for the district where compliance
is required” must quash or modify an improper subpoena. Courts in the Fourth Circuit routinely
hold that motions to quash must be filed in accordance with this directive, even where Rule
45(a)(2) requires that a subpoena be issued by the court where an underlying action is pending.
See, e.g., Philips N. Am. LLC v. Little, No. 3:22-MC-0096-MOC-DSC, 2022 WL 2517193, at *1
(W.D.N.C. July 5, 2022) (“Although a subpoena must be issued by the court where the underlying
action is pending under Rule 45(a)(2), challenges to the subpoena are heard by the district court
where compliance with the subpoena is sought.”); Smartmatic USA Corp. v. Herring Networks,
“As a general principle, a party does not have standing to challenge a subpoena issued to a nonparty unless the party
claims some personal right or privilege in the information sought by the subpoena.” CineTel Films, Inc. v. Does 1-1,
052, 853 F. Supp. 2d 545, 554 (D. Md. 2012) (cleaned up). Accordingly, “The District of Maryland has held
that . . . defendants do have standing to quash or modify subpoenas on the grounds that the subpoena requires
disclosing potentially privileged or otherwise protected matter.” Id. Here, Defendants object to the Subpoena on the
grounds that the Subpoena requires disclosing potentially privileged information regarding some of the individual
Defendants’ prior communications with the Davidoff Law Firm. The undersigned therefore concludes as a
preliminary matter that Defendants have standing to object to the Subpoena.
5
6
Inc., No. 3:23MC00006, 2023 WL 7329507, at *4–5 (W.D. Va. Nov. 7, 2023); Nat. Immunogenics
Corp. v. Newport Trial Grp., No. 1:18MC3, 2018 WL 1884988, at *3 (W.D.N.C. Apr. 19, 2018);
see also Fed. R. Civ. P. 45(a)(2). The Subpoena commands compliance at 275 Madison Avenue
in New York, NY, 10016. (ECF No. 141-1). Thus, a New York federal district court is the proper
forum for Defendants to adjudicate their motion to quash.
Although Defendants cite Judge Blake’s referral to the undersigned for all discovery and
related scheduling as evidence that the undersigned may adjudicate the present motion, neither
Judge Blake’s referral nor the undersigned’s ensuing Informal Discovery Memorandum (ECF No.
137) contemplate countermanding the forum instruction of Rule 45. The undersigned is receptive
to Defendants’ argument that “From a practical matter, it is simply not feasible for the Defendants
to adjudicate discovery disputes in this matter in other jurisdictions.” (ECF No. 161 at 2–3). But
it is not the Court’s (nor Plaintiff’s) doing that the Davidoff Law Firm maintains a place of business
in New York and that Defendants’ current counsel is not admitted to practice before any applicable
New York federal court. And although “Mr. Davidoff consents to the Motion to Quash being
adjudicated in this Court,” his consent is inconsequential in resolving this threshold issue. Id. at
3. Rule 45(f) provides that “When the court where compliance is required did not issue the
subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the
subpoena consents or if the court finds exceptional circumstances.” (emphasis added). Thus,
Defendants’ motion is denied to the extent that it seeks to quash the Subpoena pursuant to Rule
45.
However, both this Court and others within the Fourth Circuit have construed motions to
quash under Rule 45 or discovery-related motions generally as motions for a protective order under
Rule 26(c) where “the party discusses, or at least bases its motion in part on, Rule 26.” Flame S.A.
Glory Wealth Shipping Pte Ltd. v. Indus. Carriers, Inc., No. 2:13-CV-658, 2014 WL 12551212,
at *2 (E.D. Va. May 29, 2014); see also Sirpal v. Fengrong Wang, No. CIV. WDQ-12-0365, 2012
WL 2880565, at *4 n.12 (D. Md. July 12, 2012) (“Further, the Court could construe the motion as
one for a protective order, and consider the Rule 26 factors, including relevance, in deciding the
motion.”); Flame, 2014 WL 12551212, at *2 (“Accordingly, even though Flame is represented by
counsel and repeatedly asks this Court to quash the subpoenas at issue instead of asking for a
protective order . . . the Court will construe the motion as a request for a protective order under
26(c).”); cf. Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005), on
reconsideration, 232 F.R.D. 6 (D.D.C. 2005) (“The Court therefore deems defendant’s motions to
quash as, in the alternative, motions for a protective order, and will evaluate the motions according
to the standard enunciated in Rule 26, including whether the information sought is relevant to any
claims or defenses raised in this case.”). Rule 26(c)(1) provides that “A party or any person from
whom discovery is sought may move for a protective order in the court where the action is
pending.” (emphasis added). Here, Defendants’ motion is based, at least in part, on Rule 26 given
Defendants’ citation to the same in support of its motion to quash. (ECF No. 141 at 2). The
undersigned will therefore construe Defendants’ motion as one for a protective order under Rule
26(c) and analyze it accordingly.
Turning to the second procedural argument, Plaintiff urges that “Defendants’ Motion
should be denied because Defendants did not comply with this Court’s discovery Order” at ECF
7
No. 137. (ECF No. 154 at 34).6 Plaintiff is correct that the parties have not followed that
memorandum’s submission requirements in raising this discovery issue. However, the
undersigned issued a paperless order on January 17, 2024, in response to Plaintiff’s request for
formal briefing on the pending motion permitting both parties to file formal briefs regarding the
motion rather than strictly adhere to the undersigned’s discovery order given that the motion to
quash “involves complex legal and factual issues, including jurisdiction and the crime-fraud
exception.” (ECF No. 147 at 1; ECF No. 148). Relatedly, Plaintiff faults Defendants for failing
to conduct a Local Rule 104.7 conference call before filing the present motion. (ECF No. 154 at
34). Interestingly, Plaintiff did not fault Defendants for doing so in its January 16, 2024,
correspondence to the undersigned requesting that Plaintiff be permitted to submit full briefing in
opposition to the present motion. (ECF No. 147). Rather, Plaintiff indicated that the parties did
meet and confer pursuant to Local Rule 104.7 on January 5, 2024, and that the issues relevant to
the present motion still remained. Given those specific circumstances, and noting that analyzing
the present motion serves the interests of judicial efficiency in light of the parties’ three-months’
worth of extension requests in fully briefing the present motion, the undersigned will excuse
Defendants’ failure to meet and confer prior to filing its motion on this sole occasion. Both parties
are nevertheless forewarned that failure to comply with this Court’s discovery orders/procedures
moving forward may result in any discovery-related motions being denied or in discovery-related
sanctions.7
B. The Merits of Defendants’ Motion
i.
Whether Subpoena Requests (1) Through (4) are Protected Under the AttorneyClient Privilege and/or Attorney Work Product Doctrine
Turning to the merits of Defendants’ motion, Defendants first argue that requests (1)
through (4) of the Subpoena are undiscoverable because they are protected by attorney-client
privilege and the attorney work product doctrine. (ECF No. 141 at 2). “The purpose of the
attorney-client privilege is ‘to encourage full and frank communications between attorneys and
their clients and thereby promote broader public interests in the observance of law and
administration of justice.’” Neuberger Berman Real Est. Income Fund, Inc. v. Lola Brown Tr. No.
Per the undersigned’s Memorandum to Counsel Concerning Discovery, the Court allows parties to follow certain
procedures in settling discovery disputes through informal position letters rather than filing formal discovery motion.
See (ECF No. 137).
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7
It is worth noting that a denial of a discovery motion for failing to meet and confer pursuant to Local Rule 104.7 is
generally without prejudice to the moving party to simply refile the motion in the event that further efforts to resolve
the discovery issues are unsuccessful. There is thus likely no practical benefit to require further meet and confer
efforts at this time given Plaintiff’s representation that the parties’ meet and confer after the motion was filed was
unsuccessful, and in fact may have created additional issues not currently before the Court. See (ECF No. 147).
Moreover, the undersigned’s decision to excuse the meet and confer requirement in this specific context is in line with
various other federal courts’ decisions to excuse local rule meet and confer requirements, both in the Fourth Circuit
and elsewhere. See, e.g., Ricks v. Huynh, No. 2:20CV292, 2021 WL 2432028, at *3 (E.D. Va. Apr. 15, 2021), report
and recommendation adopted, No. 2:20CV292, 2021 WL 2014795 (E.D. Va. May 20, 2021), aff’d, No. 21-1703, 2022
WL 203747 (4th Cir. Jan. 24, 2022); JTH Tax, Inc. v. Aime, No. 2:16cv279, 2016 WL 9223926, at *6 (E.D. Va. Dec.
13, 2016); V5 Techs. v. Switch, Ltd., 334 F.R.D. 297, 302 (D. Nev. 2019); Rogers v. Giurbino, 288 F.R.D. 469, 477–
78 (S.D. Cal. 2012).
8
1B, 230 F.R.D. 398, 409 (D. Md. 2005) (quoting Upjohn v. United States, 449 U.S. 383, 389
(1981)). “However, because the privilege interferes with the truth seeking process and is in
derogation of the public’s right to every man’s evidence, it is not favored by the federal courts and
is to be strictly confined within the narrowest possible limits consistent with the logic of its
principle.” Id. (internal quotations omitted). “The party claiming a privilege bears the burden of
showing that ‘(1) the attorney-client privilege applies; (2) the communications were protected by
the privilege; and (3) the privilege was not waived.’” United States v. Elbaz, 396 F. Supp. 3d 583,
597 (D. Md. 2019) (quoting United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996)). To
that effect, the attorney-client privilege applies when:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person
to whom the communication was made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed (a) by
his client (b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some
legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4)
the privilege has been (a) claimed and (b) not waived by the client.
In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003). “The privilege must be asserted
on a document-by-document basis; a blanket claim of privilege that does not specify what
information is protected is not sufficient to make a claim for privilege.” Elbaz, 396 F. Supp. 3d at
598.
“As set forth in Rule 26(b)(3), the work product doctrine prohibits a party from obtaining
discovery of materials prepared in anticipation of litigation, absent a showing both of substantial
need and of an inability to obtain, without undue hardship, the substantial equivalent of the
materials sought.” LaSalle Bank Nat’l. Ass’n v. Lehman Bros. Holdings, 209 F.R.D. 112, 115 (D.
Md. 2002). Determining whether certain materials constitute protected work product requires
assessing “whether in light of the nature of the documents and the particular facts of a given case,
the documents can be fairly said to have been prepared or obtained because of the prospect of
litigation or whether they must be deemed to have been prepared in the ordinary course of the
company’s business.” Id. (citing APL Corp. v. Aetna Casualty & Surety Co., 91 F.R.D. 10, 18 (D.
Md. 1980)); see also Paice, LLC v. Hyundai Motor Co., 302 F.R.D. 128, 133 (D. Md. 2014)
(“[T]he proponent of the privilege carries the burden of demonstrating that the documents at issue
were created ‘because of’ the present litigation.”). “In satisfying this burden, a party cannot rely
on conclusory statements in its memoranda; rather, as in the case of attorney-client privilege, the
proponent must provide specific factual support for its assertions.” Paice, 302 F.R.D. at 133.
Defendants set forth no specific factual bases for their privilege assertions. Rather,
Defendants only blanketly assert the attorney-client and work product protections “with respect to
all communications with the Davidoff Law Firm” and that “the requests are clearly protected,
and/or beyond the time-period for which an attorney is required to retain records for a client.”
(ECF No. 141 at 2–3). These general, conclusory statements with no factual support or further
explanation are insufficient to warrant granting Defendants’ motion whether construed under Rule
45 or Rule 26. See, e.g., Mezu v. Morgan State Univ., 269 F.R.D. 565, 677 (D. Md. 2010) (“It is
9
clear that its terse description does not constitute a particularized justification for asserting
privilege as a basis for refusing discovery and is insufficient to establish any privilege. Therefore,
Defendant violated Fed. R. Civ. P. 26(b)(5)(A)(ii) and Discovery Guideline 9.d.”); Hempel v.
Cydan Dev., Inc., No. PX-18-3404, 2020 WL 4933634, at *5 (D. Md. Aug. 24, 2020) (“In meeting
its burden to show that documents were prepared in anticipation of litigation, a party cannot simply
rely on conclusory statements in its memoranda.”) (internal quotation omitted); see also Fed. R.
Civ. P. 26(b)(5)(A)(i)–(ii) (“When a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to protection as trial-preparation material, the
party must: (i) expressly make the claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim.”);
Local Rule Discovery Guideline 10.d (D. Md. 2023).
Nor does Defendants’ reply set forth specific factual support for its asserted privileges
beyond conclusory statements. Plaintiff argues in his opposition that, even assuming arguendo
that Defendants lodged particularized objections, the “crime fraud” exception applies and therefore
the requested discovery should be produced. (ECF No. 154 at 11–33). Rather than providing
specific factual support for its asserted privileges, Defendants argue only the following before
spending the majority of their reply rebutting Plaintiff’s crime fraud exception argument:
Given the scope of documents Plaintiff is seeking through its subpoena to the
Davidoff Law Firm, there can be little doubt that the documents sought included
privileged attorney client communications and attorney work product . . . Plaintiff
has not attempted in any way to restrict subpoena production to those documents
which do not constitute privileged attorney client privileged communications or
privileged attorney work product. To the contrary, the focus of the subpoena is to
obtain attorney client communications and attorney work product. Given that the
subpoena is specifically tailored to require the production of clearly privileged
materials, Defendant’s Motion to Quash has made a sufficient showing that the
documents sought are privileged.
(ECF No. 161 at 4).
This argument again focuses primarily on conclusory statements with no further indication
as to which, if any, documents that fall within the Subpoena’s scope are subject to either privilege
(or both), and the particular reasons for believing as much. This deficiency is important because
the specific circumstances under which each potentially objectionable communication occurred
are crucial in determining whether either privilege (or both) applies to protect those
communications from disclosure under Rule 26. For instance, in the context of the attorney-client
privilege, “Communications are not privileged merely because one of the parties is an attorney or
because an attorney was present when the communications were made. When the legal advice is
merely incidental to business advice, the privilege does not apply.” United States v. Cohn, 303 F.
Supp. 2d 672, 683 (D. Md. 2003) (internal quotation omitted). The undersigned can envision
communications between the Davidoff Law Firm and Defendants that were legal in nature but
incidental to business advice given the specific facts underlying this case, such as Mr. Davidoff
advising as to the business consequences of dissolving YWL and YWI or the business implications
10
of forming the Cacapon Companies. The undersigned can just as easily envision circumstances in
which a communication between the Davidoff Law Firm and Defendants was primarily for legal
advice, for instance when the Partnership Agreement began faltering prior to the Florida state court
lawsuit. But without any specific indication as to the particular communications that Defendants
find objectionable and the reasons for withholding those communications, the undersigned is
unable to conclude that Defendants have met their burden in demonstrating that
documents/communications falling within the Subpoena’s scope are blanketly protected by either
or both privileges. The same conclusion applies to Defendants’ work product privilege assertion,
which likewise involves further inquiries into whether the requested communications/documents
constitute fact work product or opinion work product, as there are distinct standards for analyzing
the discoverability of both. See, e.g., Equal Rts. Ctr. v. Equity Residential, No. AMD-06-1060,
2008 WL 11363366, at *4 (D. Md. June 6, 2008) (describing the discoverability of fact work
product, which is analyzed under a “substantial need” standard, and the discoverability of opinion
work product, which enjoys “a nearly absolute immunity from discovery”).
Accordingly, the undersigned cannot conclude that any particular communications or
documents falling within the Subpoena’s scope are clearly protected by the attorney-client
privilege, attorney work product privilege, or both. Defendants’ motion must therefore be denied
and the Subpoena must be effectuated. However, in light of the above reasoning, the undersigned
will not blanketly conclude that all communications and documents falling within the scope of
Subpoena requests (1) through (4) are discoverable in light of Defendants’ unparticularized
objections. Rather, the Davidoff Law Firm is ordered to begin complying with the Subpoena by
collecting and producing all responsive documents. To the extent that the Davidoff Law Firm
and/or Defendants obtain documents or communications they believe to be protected under the
attorney-client and/or work product privileges, Defendants shall provide Plaintiff with a concise
privilege log identifying those documents or communications that complies with the Local Rules
and affords Plaintiff a more concrete explanation as to why those documents or communications
are protected. In the event that Defendants provide such a privilege log, the parties shall meet and
confer in accordance with Local Rule 104.7 regarding any disputed documents or communications
with the hope that the parties may reach agreement on any contested documents or
communications.8 The parties may then seek Court intervention regarding any unresolved issues
in accordance with the undersigned’s informal discovery procedures unless otherwise requested
by the parties and approved by the Court. The undersigned will therefore reserve ruling on whether
the crime fraud exception applies to Plaintiff’s discovery requests given the lack of details
regarding which documents or communications are objectionable under the Subpoena and why.
Because the discovery deadline in this case and its companion case was recently extended to May
15, 2024, (ECF Nos. 146, 155),9 the Davidoff Law Firm shall produce all responsive documents
and Defendants shall provide any privilege log by April 19, 2024. If, based on the volume of
information, more time for compliance is needed, the Court is amenable to extending that deadline
8
The undersigned is confident that this process is tenable between the parties given their representation that they have
already informally resolved privilege issues regarding Plaintiff’s subpoena to Paul Cummings, Mr. Greenberg’s prior
counsel. (ECF No. 161 at 3). And to the extent that Plaintiff’s discovery requests are “beyond the time-period for
which an attorney is required to retain records for a client,” the undersigned cannot order the Davidoff Law Firm to
produce what it does not possess. (ECF No. 141 at 3).
9
See also Rullan v. Goden et al., No. 12-cv-02412-CCB, ECF No. 318.
11
as justified. Should that be the case, the parties should confer and try to reach agreement on a new
deadline.
ii.
Whether Subpoena Requests (5) and (6) are Relevant and Within the Scope of
this Lawsuit
Defendants ask the Court to grant their motion only with respect to Subpoena requests (1)
through (4). They nevertheless suggest in their initial motion, though, that “the materials sought
in inquiries 5 and 6 are wholly irrelevant and outside the scope of the issues in the instant action.”
(ECF No. 141 at 3). The undersigned disagrees. Rule 26(b)(1) provides that:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.
Here, Plaintiff alleges that Defendants engaged in fraudulent money and property transfers
“from Camp companies to Defendants’ personal accounts or those of their alter ego companies
and other entities by claiming that the transfers were done as repayment for various loans.” (ECF
No. 154 at 9); see also generally (ECF No. 46). Request (5) is relevant to Plaintiff’s argument that
Defendants engaged in fraudulent transfers to shield the assets implicated in the First Lawsuit or
indicating that such asset transfers were perfectly legal and possibly even unrelated to Plaintiff’s
First Lawsuit. Moreover, request (6) is relevant to Plaintiff’s assertion that Camp funds were
improperly used to pursue derivative lawsuits in an attempt to thwart enforcement of an adverse
judgment through Plaintiff’s First Lawsuit, which Plaintiff argues could support negligence and
breach of fiduciary duty claims, if not give rise to “additional tortious conduct by Defendants.”
(ECF No. 154 at 10). Without Defendants providing further factual support for their one-sentence
objection to requests (5) and (6) on relevance/scope, the undersigned cannot conclude that requests
(5) and (6) are “wholly irrelevant and outside the scope of the issues in the instant action.” (ECF
No. 141 at 3).
C. The Court Will Nevertheless Order That Subpoena Request (1) Need Not be Enforced
“Rule 26(c) . . . governs the issuance of protective orders. For good cause, the Court may
issue such an order ‘to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.’” Enovative Techs., LLC v. Leor, No. CV JKB-14-3956, 2015 WL
13021884, at *1 (D. Md. Aug. 7, 2015) (quoting Fed. R. Civ. P. 26(c)(1)). Although “The power
of a subpoena is addressed generally in Rule 45,” “the general rules governing all discovery . . .
set forth in Rule 26 provide additional grounds on which the court may quash a subpoena.” Boshea
v. Compass Mktg., Inc., No. CV ELH-21-309, 2021 WL 4425765, at *2 (D. Md. Sept. 27, 2021)
(internal quotation omitted); see also In re Campuzano-Trevino, No. CV SAG-22-00365, 2022
WL 570254, at *3 (D. Md. Feb. 24, 2022) (“The scope of discovery allowed under a subpoena is
the same as the scope of discovery allowed under Rule 26. Accordingly, regardless of whether the
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Court considers [the moving party’s] Motion under Rule 45 or Rule 26, the Court must still analyze
the subpoena under the relevancy standards enumerated in Rule 26(b).”). The Court “must limit
the frequency or extent of discovery” under Rule 26, “[o]n motion or on its own,” if it determines
that the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P.
26(c)(iii).
Despite the previous rulings, the undersigned concludes that Subpoena request (1) need not
be enforced. Request (1) seeks all documents and communications surrounding Ms. Goden filing
bankruptcy proceedings in the U.S. Bankruptcy Court for the District of Maryland up through the
present day. (ECF No. 141-1 at 4). But careful review of that bankruptcy docket highlights that
Mr. Davidoff was not involved in that case. Mr. Davidoff was not the attorney representing Ms.
Goden when she initially filed her Voluntary Petition, there is no indication that Mr. Davidoff
assisted Ms. Goden in filing her Voluntary Petition, and neither Mr. Davidoff nor any other
attorney from the Davidoff Law Firm ever made an appearance on behalf of Ms. Goden in that
bankruptcy case or otherwise became involved in that case. Nor does Plaintiff’s Amended
Complaint allege that Mr. Davidoff assisted Ms. Goden in filing her Voluntary Petition or was in
any way involved in Ms. Goden’s Voluntary Petition. To the contrary, Plaintiff indicates in his
Amended Complaint that a different attorney from a different law firm filed and handled Ms.
Goden’s original bankruptcy petition. (ECF No. 46 at 9). Mr. Davidoff confirmed as much in an
affidavit attached to Defendants’ reply. (ECF No. 161-1 at 3). The undersigned therefore finds
that Subpoena request (1) is and outside the scope permitted by Rule 26(b)(1), and that
Defendants/the Davidoff Law Firm are entitled to a protective order regarding request (1).
To the extent that the Davidoff Law Firm is not in possession of any documents or
communications responsive to the remaining portions of Plaintiff’s Subpoena, the undersigned
cannot direct Davidoff Law Firm to produce what it does not possess. For instance, Mr. Davidoff
suggests that he and the Davidoff Law Firm have little to no information regarding requests (4),
(5), and (6). See (ECF No. 161-1 at 3–4). If that is the case, the Davidoff Law Firm should indicate
as much in conducting a reasonable investigation in responding to the Subpoena as set forth in this
Letter Order and Opinion.
III.
Conclusion
For the foregoing reasons, Defendants’ Motion to Quash, or in the Alternative, Modify
Subpoena (ECF No. 141), construed as a motion for a protective order under Rule 26, is denied in
part and granted in part. The motion is denied to the extent that Defendants have failed to set forth
with any specificity factual support for their contention that the Subpoena to the Davidoff Law
Firm seeks wholly privileged documents and communications regarding requests (1) through (4).
As such, the Davidoff Law Firm shall conduct a reasonable investigation into responsive
documents in accordance with the Federal Rules of Civil Procedure and this Court’s Local Rules
in responding to the Subpoena, and shall provide Plaintiff with such responsive documents by
April 19, 2024. If, based on the volume of information, more time for compliance is needed, the
Court is amenable to extending that deadline as justified. Should that be the case, the parties
should confer and try to reach agreement on a new deadline. To the extent that Defendants and/or
the Davidoff Law Firm believe documents or communications discovered during the course of that
investigation are protected under the attorney-client privilege, attorney work product doctrine, or
13
both, Defendants shall provide Plaintiff with a privilege log detailing as such. The parties should
then confer under Local Rule 104.7 to resolve any potential disputes before seeking Court
intervention. However, Defendants, and in turn the Davidoff Law Firm, need not abide by request
(1), as that request is outside the scope of relevant discoverable information obtainable from the
Davidoff Law Firm.
Notwithstanding its informal nature, this Letter Order and Opinion is considered a formal
Order and Opinion of the Court, and the Clerk should docket it as such.
Sincerely yours,
/s/
J. Mark Coulson
United States Magistrate Judge
CC: The Honorable Catherine C. Blake
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