Takiguchi et al v. MRI International, Inc. et al

Filing 413

ORDER granting in part and denying in part 352 Motion to Compel; overruling the Suzukis' objections to Plaintiff's first set of interrogatories; sustaining the Suzukis' Fifth Amendment objections to Plaintiff's second set of interrogatories; supplementing 373 Order as follows (see order for details). Signed by Magistrate Judge Cam Ferenbach on 4/11/2016. (Copies have been distributed pursuant to the NEF - KR)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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SHIGE TAKIGUCHI; et. al.,
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Case No. 2:13–cv–1183–HDM–VCF

Plaintiffs,
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vs.

ORDER

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MRI INTERNATIONAL, INC.; et. al.,

MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR PRODUCTION OF DOCUMENTS
(DOC. #352)

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Defendants.

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This matter involves the Plaintiffs’ civil action against Defendants Junzo Suzuki, Paul Musashi
Suzuki (here after “the Suzukis”), and other Defendants. Before the court are Plaintiff’s Motion to
Compel Further Responses to Interrogatories (Doc. #352), the Suzukis’ response, (Doc. #370) and the

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Plaintiffs’ reply. (Doc. #375). For the reasons state below, the Plaintiffs’ motion is granted in part and
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denied in part.
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I. Background
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In July 2013, the Plaintiffs sued the Suzukis, as well as other Defendants, for harm suffered as a
result of Defendants’ Ponzi scheme. (Doc. #1). As part of discovery, the Plaintiffs served the Suzukis

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with two sets of interrogatories. (Doc. #352). Plaintiffs’ First Set of Interrogatories consists of nine

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separate questions. The Suzukis objected to, and failed to respond to, all nine questions in Plaintiffs’

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First Set of Interrogatories. (Doc. #352). Plaintiffs’ Second Set of Interrogatories consists of four

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separate questions. As to the Second Set of Interrogatories, the Suzukis raised a number of objections to

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each question, but provided a substantive response to each question. (Id.).

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The Plaintiffs’ now move to compel the Suzukis to provide further responses to Plaintiffs’ First
and Second Sets of Interrogatories.

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II. Legal Standard

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“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain

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discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and

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proportional to the needs of the case, considering the importance of the issues at stake in the action, the

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amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the

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importance of discovery in resolving the issues, and whether the burden or expense of the proposed

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discovery outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1).

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“A party seeking discovery may move for an order compelling an answer, designation,
production, or inspection.” FED. R. CIV. P. 37(a)(3)(B). “The motion may be made if: … (iii) a party
fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to produce documents …

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as requested under Rule 34.” FED. R. CIV. P. 37(a)(3)(B)(ii),(iv). “[B]oilerplate objections are
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disfavored, ‘especially when a party fails to submit any evidentiary declarations supporting such
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declaration.’” EnvTech, Inc. v. Suchard, Case No. 3:11-cv-523-HDM-WGC, 2013 WL 4899085 at* 5
(D. Nev. Sept. 11, 2013).
III. Discussion

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The parties present one issue: whether the Suzukis may refuse to answer the Plaintiffs’

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interrogatories based on a valid objections.

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1.

The Suzukis Must Provide Responses to Plaintiffs’ First Set of Interrogatories

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i.

Vague and Ambiguous Objections

The Suzukis’ vague and ambiguous objections to Interrogatories 1, 2, 7, 10, 11, 12, and 13 are
overruled. The definitions of the objected to terms may be deduced by (1) reference to the context of the

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question or (2) by applying the commonly understood definition to the objected to term.
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ii.

Compound Objections

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“Unless otherwise stipulated or ordered by the court, a party may serve on any other party no

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more than 25 written interrogatories, including all discrete subparts.” FED. R. CIV. P. 33(a)(1).

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“[S]ubparts of an interrogatory are to be counted as part of one interrogatory if they are logically or

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factually subsumed within and necessarily related to the primary question.” Phillips v. Clark Cty. Sch.

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Dist., Case No. 2:10-CV-02068-GMN-GWF, 2012 WL 135705, at* 6 (D. Nev. Jan. 18, 2012).

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The “test to determine whether subparts are subsumed and related, is to examine whether the first
question is primary and subsequent questions are secondary to the primary question. If the question in
the subpart can be answered independently of the ‘primary’ question, then it should be treated as a
separate interrogatory.” Id.

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The Suzukis’ compound objections to Interrogatories 1, 3, 4, 5, 6, 7, 8, 9, 11, 12, and 13 are
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overruled. The objected to interrogatories all concern the Suzukis’ financial information and business
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dealings during the time of the Ponzi scheme. (Doc. #352). To the extent the objected to interrogatories
contain identifiable subparts, responses to these subparts require the use of information necessary to

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answer the primary question. Under the Phillips test, the subparts to the objected to interrogatories are

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not counted as separate interrogatories for the purposes of Rule 33’s twenty five interrogatory limit.

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iii.

Confidentiality Objections

“Confidentiality in and of itself is not a legitimate grounds of objection.” Collins v. NDOC, Case
No. 3:13-CV-00255-RCJ-WGC, 2014 WL 4656232, at* 3 (D. Nev. Sept. 17, 2014). “[M]erely because
the Defendants assert a document may be ‘confidential’ will not govern discoverability in a federal court
action, particularly where the objecting party fails to state why or how the document is confidential nor

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cite any relevant federal discovery authority which upholds such an assertion of confidentiality and that
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discovery or review of such a document is precluded.” Id.
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The Suzukis’ confidentiality objections to Plaintiffs’ first set of interrogatories are overruled.
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The Suzukis fail to explain why their confidentiality concerns may not be resolved by redaction of
individual identification information and other sensitive material.
iv.

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Fifth Amendment Objections

“[A] defendant has no absolute right not to be forced to choose between testifying in a civil

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matter and asserting his Fifth Amendment privilege.’” Keating v. Office of Thrift Supervision, 45 F.2d

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322, 326 (9th Cir. 1995). “Not only is it permissible to conduct a civil proceeding at the same time as a

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related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but it

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is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth
Amendment in civil proceedings.” Id.; see also S.E.C. v. Luna, Case No. 2:10-cv-2166-PMP-CWH,

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2014 WL 794202 at* 11-12 (D. Nev. Feb. 26, 2014).
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The Suzukis’ Fifth Amendment objections to Plaintiffs’ second set of interrogatories are
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sustained. It is likely that any substantive responses to the questions posed in Plaintiffs’ second set of
interrogatories will incriminate the Suzukis given that the Plaintiffs’ questions focus on the Suzukis’

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involvement with the subject Ponzi scheme. The Suzukis chose to invoke their Fifth Amendment rights

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in response to Plaintiffs’ discovery requests. The Plaintiffs’ need for information cannot override the

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Suzukis’ Fifth Amendment rights and compel responses which would incriminate the Suzukis. See

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Keating, 45 F.2d at 326. At the appropriate time, the Plaintiffs may move the court to drawn an adverse

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inference based on the Suzukis’ invocation of their Fifth Amendment rights regarding Plaintiffs’ second

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set of interrogatories. See id.
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The Suzukis’ Fifth Amendment Objections to Plaintiffs’ Requests for Production are Sustained

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The Plaintiffs previously moved to compel production of documents responsive to Plaintiffs’
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first, second, and third sets of requests for production. (Doc. #344). This court temporality sustained
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the Suzukis’ Fifth Amendment objections based on the Suzukis’ representation that documents
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responsive to Plaintiffs’ requests for production would incriminate them. (Doc. #373). This court also

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ordered the Suzukis to submit, for in camera inspection, a privilege log describing the responsive

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documents for which the Suzukis claimed Fifth Amendment protection. (Id.).
Pursuant to this court’s February 16, 2016 order, the Suzukis’ submitted a privilege log that

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described each document for which the Suzukis’ claim Fifth Amendment protection. (Id.). The

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Suzukis’ privilege log contains approximately fifteen hundred entries and describes various financial

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documents, communications between the Suzukis and their codefendants, and communications between

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the Suzukis and third parties. Given the nature of the parallel criminal proceedings against the Suzukis,
it appears that the responsive documents described in the Suzukis’ privilege log would incriminate the

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Suzukis, if responsive documents were produced. 1 Accordingly, this court’s February 16 order is
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supplemented as follows: (1) Suzukis’ Fifth Amendment objections to the Plaintiffs’ requests for
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production are sustained, (2) the Suzukis are not required to produce documents for which they have
asserted their Fifth Amendment privilege, and (3) at the appropriate time, the Plaintiffs’ may move the
court to drawn an adverse inference from the Suzukis’ invocation of their Fifth Amendment rights.

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ACCORDINGLY, and for good cause shown,

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IT IS HEREBY ORDERED that the Plaintiffs’ motion to compel further responses to

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interrogatories (Doc. #352) is GRANTED in part and DENIED in part.

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Each request in Plaintiffs’ first, second, and third requests for production seeks documents regarding the Suzukis
involvement in the Ponzi scheme or seeks documents regarding the financial benefit the Suzukis are alleged to have derived
from the Ponzi scheme. (Doc #345).

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IT IS FURTHER ORDERED that the Suzukis’ objections to Plaintiffs’ First Set of Interrogatories
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are OVERRULED. On or before May 11, 2016, the Suzukis must serve the Plaintiffs with amended
responses to Plaintiffs’ First Set of Interrogatories.

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IT IS FURTHER ORDERED that the Suzukis’ Fifth Amendment objections to Plaintiffs’ Second

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Set of Interrogatories are SUSTAINED. The Suzukis are not required to answer any interrogatory for

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which they have asserted their Fifth Amendment rights. At the appropriate time, the Plaintiffs may move

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the court to draw an adverse inference from the Suzukis invocation of their Fifth Amendment rights in

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response to Plaintiffs’ interrogatories.

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IT IS FURTHER ORDERED that the court’s February 16 order (Doc. #373) is supplemented as
follows:

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1.

The Suzukis’ Fifth Amendment objections to the Plaintiffs’ requests for production are

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SUSTAINED. The Suzukis are not required to produce documents for which they have
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asserted their Fifth Amendment privilege.

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2.

At the appropriate time, the Plaintiffs’ may move the court to drawn an adverse inference

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from the Suzukis’ invocation of their Fifth Amendment rights in response to Plaintiffs’

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requests for production.

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IT IS SO ORDERED.

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DATED this 11th day of April, 2016.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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