Federal Trade Commission v. Johnson et al

Filing 592

ORDER Denying #533 Motion to Compel; and Denying without prejudice #548 Motion for Leave to File Second Amended Answer; and Granting #561 Motion to Quash Subpoena to Produce Documents. Signed by Magistrate Judge George Foley, Jr. on 6/12/12. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 FEDERAL TRADE COMMISSION, ) ) Plaintiff, ) ) vs. ) ) JEREMY JOHNSON, et al., ) ) Defendants. ) __________________________________________) Case No. 2:10-cv-02203-RLH-GWF ORDER Motion to Compel (#533) Motion for Leave to Amend (#548) Motion to Quash (#561) 12 13 This matter comes before the Court on Defendant Johnson’s Motion to Compel (#533), 14 filed on April 12, 2012 and the FTC’s Opposition to Defendant’s Motion to Compel (#547); 15 Defendant Johnson’s Motion for Leave to File Second Amended Answer (#548), filed on May 1, 16 2012 and FTC’s Response to Motion (#572), filed on May 18, 2012; and the Receiver’s Motion to 17 Quash Subpoena to Produce Documents (#561), filed on May 10, 2012. 18 I. Motion to Compel (#533) 19 On October 4th, 2011, Defendant Johnson served a Request for Production on Plaintiff. 20 Because of the large number of documents requested, the parties agreed to a rolling production. 21 The first set of documents was produced on December 2, 2011 and included an index. After 22 Defendant Johnson expressed confusion about the organization of the documents, Plaintiff 23 provided Defendant with a revised index. On January 19, 2012, Defendant Johnson again 24 requested a more clear production from Plaintiff. Plaintiff responded stating that they were not 25 required to make the production more clear, but offered to sort some of the documents by the 26 request number. The second production of documents occurred on March 2, 2012, and included a 27 fully searchable concordance and an index, itemizing all the documents by their source, description 28 and bates-range. The third production occurred on March 29, 2012, and again included a 1 searchable concordance and an index of the documents. On April 12, 2012, Defendant Johnson 2 filed this motion, arguing that Plaintiff’s production was a “data dump” leaving “Defendant to sift 3 through thousands of documents with no identification or correlation matching the specific 4 requests.” (See Motion (#533), p. 1-2.) Defendant Johnson moves the Court to compel Plaintiff to 5 “respond to the requests for production of documents with organized and related responses.” (Id. at 6 p.3.) 7 Fed.R.Civ.Pro. 34(b) provides that a party who produces documents for inspection shall 8 produce them as they are kept in the usual course of business or shall organize and label them to 9 correspond with the categories in the request. “The provision that a party may produce records in 10 the manner they are kept in the usual course of business was intended primarily for the protection 11 of the discovering party to prevent deliberate ‘shifting of the materials from the sequence in which 12 they were originally kept to somewhere else.’” Koninklijke Philips Electronics N.V. v. KXD 13 Technology, Inc., 2007 WL 879683, 3 (D.Nev.,2007) (internal citation omitted) This Court has 14 previously required parties producing large numbers of documents to provide “a table of contents 15 or index for the documents.” Residential Constructors, LLC v. ACE Prop. & Cas. Ins. Co., 2006 16 WL 1582122 at *3 (D. Nev. 2006). In Residential Contractors, the Plaintiff turned over 41 large 17 boxes worth of documents in discovery, but did not include an index. Id. at *1. The Court held this 18 production insufficient under Fed. R. Civ. Pro. 34(b)(2)(E)(i), stating that 19 20 21 22 23 some form of table of contents or index of the materials produced should be provided... Such a table of contents or index is reasonably necessary to determine, for example, from which entity or department the documents have been produced or the type of file in which they are contained. The Court, therefore, directs the Plaintiff to prepare and provide to Defendant a table of contents or index for the documents contained on CDs. In so doing, Plaintiff is not required to index each document in each file. Plaintiff, however, is required to identify the files it has produced and in which boxes or group of document numbers the files are located. 24 25 Id. at *2-3. Here, the Court finds that Plaintiff’s production of documents is sufficient under Rule 26 34. Plaintiff produced the documents as they are kept in the usual course of business and further 27 labeled some of the documents to correspond with Defendant Johnson’s requests. Plaintiff has 28 included a searchable concordance and an index that identifies the documents’ source, description 2 1 and bates-range. Plaintiff has sufficiently complied with Rule 34, and therefore Defendant 2 Johnson’s motion is denied. 3 II. Motion to Amend (#548) 4 Defendant Johnson further requests the Court grant him leave to file an amended answer. 5 Defendant Johnson has previously filed three different answers and now requests the Court allow 6 him to file his fourth. The FTC does not oppose Defendant Johnson’s request, but reserves the 7 right to file a motion to strike the answer based on several perceived deficiencies. 8 9 Upon review, the Court finds the proposed answer (#548-2) improper. Defendant Johnson, appearing pro se, filed his answer on behalf of all Defendants except Scott Leavitt and Employee 10 Plus. Although the amended answer includes a signature block for the other Defendants, there are 11 no signatures demonstrating the other Defendants consented to the filing of this answer. Further, 12 the answer is not dated. The Court also notes that the corporate Defendants in this matter are 13 represented by counsel; Defendant Johnson cannot file an amended answer on behalf of those 14 corporations. In light of the deficiencies outlined above, the Court will deny without prejudice 15 Defendant Johnson’s request to amend his answer. 16 III. 17 Motion to Quash (#561) On May 10, 2012, the Receiver brought a motion to quash subpoena issued by Defendant 18 Johnson on April 19, 2012. The subpoena sought two categories of documents: (1) e-mail 19 communications, written letter or correspondence between the FTC and the Receiver from January 20 1, 2009 to present and (2) any and all communication referenced in the January 26, 2012 hearing 21 identified in the attached transcripts. The Receiver argues that the Court should quash this 22 subpoena as it is overbroad, unduly burdensome and seeks protected material. To date, no party 23 has filed an opposition to this motion and the time for opposition has expired. “Failure of an 24 opposing party to file points and authorities in response to any motion shall constitute a consent to 25 the granting of the motion.” LR 7-2(d). The Court will therefore grant the Receiver’s request and 26 quash the subpoena dated April 19, 2012. Accordingly, 27 28 IT IS HEREBY ORDERED that Defendant Johnson’s Motion to Compel (#533) is denied. 3 1 2 3 4 5 IT IS FURTHER ORDERED that Defendant Johnson’s Motion for Leave to File Second Amended Answer (#548) is denied without prejudice. IT IS FURTHER ORDERED that the Receiver’s Motion to Quash Subpoena to Produce Documents (#561) is granted. DATED this 12th day of June, 2012. 6 7 8 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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