Certification of Judgment 1:10-cv-02153 Eastern District of California et al v. Glieberman et al

Filing 245

OPINION AND ORDER DENYING 242 Motion to Compel. Signed by Magistrate Judge R. Steven Whalen. (Ciesla, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BR NORTH 223, LLC,
Plaintiff,

No. 13-50297

v.

District Judge Paul D. Borman
Magistrate Judge R. Steven Whalen

BERNARD GLIEBERMAN, ET AL.,
Defendants.
/
OPINION AND ORDER
Before the Court is Plaintiff’s/Judgment Creditor’s Emergency Motion Against
Four Garnishee Defendants to Compel Production of Documents and for Sanctions
Against Garnishee Defendants and Their Counsel [Doc. #242]. For the reasons discussed
below, the motion GRANTED, except for the request for sanctions, which is DENIED.
I.

FACTS

At issue in this case is an Eastern District of California default judgment for
$81,170,331.74 against Bernard Glieberman and the Glieberman Revocable Living Trust
(“the Trust”), and in favor of Plaintiff BR North 223, LLC. The judgment was registered
in the Eastern District of Michigan on February 26, 2013. Plaintiff issued four subpoenas
duces tecum to Garnishee Defendants HRS Communities, LLC (“HRS”), Home Renewal
Systems, LLC (“Renewal Systems”), Home Renewal Realty Georgia, LLC (“Renewal
-1-

Realty”), and Londonberry Residential, LLC (“Londonberry”).
In response to the subpoenas, HRS, Renewal Systems, and Renewal Realty
objected to Document Requests 7, 8, 9, and 12, and stated that “no such documents exist”
as to the remaining requests. Londonberry also objected to Document Requests 7, 8, 9,
and 12, and, according to Plaintiff, produced redacted documents in response to other
requests.
The requests to which objections were made are as follows:
7. Any and all bank records, including statements, of Garnishee from
January 1, 2013 to present.
8. Any and all ledgers, books or other statement of account reflecting
payments and/or deposits of Garnishee from January 1, 2013 to present.
9. Any and all federal tax returns filed by Garnishee for 2012, 2013 and
2014, through present, including all schedules, attachments, and requests
for extension, if any.
12. Any and all documents that reflect, refer or relate to communications
about the Writs of Garnishment served upon Garnishee in this matter,
and/or the Disclosures prepared and submitted in response thereto.
The Garnishee Defendants interposed the following objection to Document
Requests 7, 8, and 9:
Garnishee objects to Duces Tecum Request [] because it is overly broad,
unduly burdensome and neither relevant nor reasonably calculated to lead to
the discovery of admissible evidence. Garnishee further objects to Duces
Tecum Request [] because it calls for the disclosure of private, privileged,
financial and confidential information.
Garnishee Defendant Londonberry interposed the following objection to

-2-

Document Request 12:
Garnishee objects to Duces Tecum Request No. 12 because the request calls
for information which is protected by the attorney-client privilege and/or
the attorney work product doctrine.
Subject to the same objection, the other three Garnishee Defendants stated that
they had no documents responsive to Request No. 12.
II.

STANDARD OF REVIEW

Fed.R.Civ.P. Rule 69(a) provides that the judgment creditor may obtain discovery
from any person by resort to state discovery procedures. Under M.C.R. 2.302(B)(1),
“[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending action....” Under this Rule, Michigan has “an
open, broad discovery policy that permits liberal discovery of any matter, not privileged,
that is relevant to the subject matter involved in the pending case.” Reed Dairy Farm v.
Consumers Power Co., 227 Mich.App. 614, 616, 576 N.W.2d 709 (1998). See also
Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 36, 594 N.W.2d 455
(1999)(“This state has a strong historical commitment to a far-reaching, open, and
effective discovery practice.”).
III.

DISCUSSION

In this case, Tracey Katzen, Judgment Debtor Bernard Glieberman’s daughter,
executed the disclosures on behalf of each of the four Garnishee Defendants. In their
response [Doc. #244], the Garnishee Defendants state that Ms. Katzen’s trust “is the sole

-3-

member of each Garnishee.” Londonberry has produced documents showing that Mr.
Glieberman was an employee of Londonberry in 2013 and 2014. Mr. Glieberman has
testified at a deposition that he works for Renewal Systems, his “daughter’s company,”,
receiving a monthly salary of around $4,000 for advisory services. Given both the
business relationship and the familial relationship between Mr. Glieberman and his
daughter, who executed the garnishee disclosures, the requested tax and financial
information is “relevant to the subject matter” of these proceedings.
Apart from the question of relevance, the Garnishee Defendants claim that the
information to which they have objected constitutes “confidential business records that
implicitly describe Garnishees’ (A) unique and proprietary confidential business model by
identifying persons with whom they conduct business, (B) potentially lucrative real estate
transactions for past or future development, and/or (C) contain information relating to the
compensation of other employees, agents and advisors of Garnishees.” Brief in Support of
Response [Doc. #244], at 1-2. However, the confidential nature of commercial
information does not foreclose discovery as a matter of course. Rather, M.C.R.
2.302(C)(8) provides that a court may order that such information “be disclosed only in a
designated way.” The Judgment Creditors are not commercial competitors with the
Garnishee Defendants, thus the risk of misuse of allegedly proprietary information is
diminished. Nevertheless, the Garnishee Defendants’ privacy concerns can be addressed
by subjecting the production to an appropriate protective order that restricts its use and

-4-

further disclosure to the confines of these proceedings. The stipulated protective order
entered on May 16, 2013 [Doc. #91] will suffice.
Finally, as to Document Request 12, any Garnishee Defendant asserting attorneyclient or attorney work product privilege will provide Plaintiff with a detailed privilege
log.
IV.

CONCLUSION

Accordingly, Plaintiff’s motion [Doc. #242] is GRANTED, as follows:
(1) Garnishee Defendants’ objections as to Document Requests 7, 8, and 9 are
OVERRULED, and Garnishee Defendants will produce the requested documents
forthwith.
(2) Garnishee Defendants will produce unredacted versions of previously produced
documents, except as to any information as to which attorney-client or attorney work
product privilege is claimed.
(3) All discovery produced pursuant to this order shall be subject to the terms of
the stipulated protective order entered on May 16, 2013 [Doc. #91].1
(4) If Garnishee Defendants assert attorney client or attorney work product
privilege as to any information, they shall provide a detailed privilege log.
Plaintiff’s/Judgment Creditor’s request for sanctions is DENIED.

1

The protective order was directed at information produced by the Judgment
Debtors. While incorporating the substantive terms of the stipulated protective order, the
present order is directed at information produced by the Garnishee Defendants.
-5-

IT IS SO ORDERED.

s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: February 25, 2015

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
February 25, 2015, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager

-6-