Bart Street III v. ACC Enterprises, LLC et al

Filing 193

ORDER Granting 173 Motion to Establish Protocols for Searching Texts and 178 Motion to Compel; Denying 175 Motion to Quash. Signed by Magistrate Judge Cam Ferenbach on 5/9/2019. (Copies have been distributed pursuant to the NEF - ADR)

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MCNUTT LAW FIRM, P.C.
Daniel R. McNutt, Esq., Bar No. 7815
Matthew C. Wolf, Esq., Bar No. 10801
625 South Eighth Street
Las Vegas, Nevada 89101
Tel.: [phone] / Fax.: [phone]
[e-mail]
[e-mail]

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Counsel for Plaintiff Bart Street

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BART STREET III, a Nebraska Limited Case No.: 2:17-cv-00083-GMN-VCF
Liability Company,
Plaintiff,

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vs.

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ACC ENTERPRISES, LLC, a Nevada
Limited
Liability
Company;
ACC
INDUSTRIES, INC., a Nevada corporation;
CALVADA PARTNERS, LLC, a Nevada
Limited Liability Company;

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ORDER ON (1) PLAINTIFF’S MOTION TO
ESTABLISH PROTOCOLS TO SEARCH
DEFENDANTS’ TEXT MESSAGES (ECF NO.
173) (2) PLAINTIFF’S COUNTER-MOTION TO
COMPEL (ECF NO. 178); AND (3)
DEFENDANTS’ MOTION TO QUASH (ECF
NO. 175)

Defendants.

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On March 8, 2019, Plaintiff Bart Street III, LLC (“Bart Street”) filed a motion to establish

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protocols to search the text messages of Howard Misle and Peter Seltzer. ECF No. 173. On March

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27, 2019, Defendants Calvada Partners, LLC; ACC Enterprises, LLC; and ACC Industries, Inc.

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filed a motion to quash a subpoena duces tecum served on Fennemore Craig, P.C. (“FC”) by Bart

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Street. ECF No. 175. On April 3, 2019, Bart Street opposed the motion (ECF No. 177) and also

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countermoved to compel Defendants to respond to Rule 34 requests for production (ECF No. 178).

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Following oral arguments on May 1, 2019, this Court grants the motion to establish protocols,

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denies the motion to quash, and grants the countermotion to compel as set forth herein.

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A.

THE MOTION TO ESTABLISH PROTOCOLS (ECF NO. 173).

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With respect to the text messages between Howard Misle and Peter Seltzer, the relevant

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time period for the text messages is January 1, 2016, through December 31, 2016. See the Audio

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Recording of the May 1, 2019 Hearing (“Audio”) at around twenty-one minutes and five seconds

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(“21:05”). Bart Street will pay for a third-party vendor, Holo Discovery, to handle the production
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of the text messages as further described infra. Id. 14:52.

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On or before May 15, 2019, Defendants will provide Bart Street and Holo the names and

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phone numbers of all customers, such as but not limited to spouses and attorneys, that Defendants

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consider to be a source of privilege and may have exchanged text messages with Misle and Seltzer

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during the relevant time period. See Audio 17:00, 30:50.

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On or before May 29, 2019, Holo will provide all counsel a report identifying each text

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message within the relevant time period by its date and the phone numbers. Id. 22:00 – 23:05, 30:10.

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The report will not reveal the substance of any text messages. Id.

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On or before June 5, 2019, Defendants will review the report and inform Bart Street and

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Holo if any additional phone numbers identified therein are privileged, and if so, also will provide

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the name of the person associated with each such number. Id. 31:35.

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Defendants do not object to the search terms proposed by Bart Street. See Audio 30:00.

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After Defendants have identified all phone numbers for all spouses and attorneys and other

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privileged customers, Holo will use the terms to search within the non-privileged text messages

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exchanged during the relevant time period and then will provide the responsive text messages to

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Defendants. Id. 19:35, 28:20. Within two weeks of receiving the text messages from Holo,

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Defendants must produce the nonprivileged text messages to Bart Street. Id. 31:55. For any text

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messages not produced to Bart Street or produced with any redactions, Defendants must provide a

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privilege log identifying each withheld text message, the name and phone number of each person

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involved with the text message, and an explanation of the basis for the privilege. Id. 15:30, 17:00,

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29:30.

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B.

THE MOTION TO QUASH (ECF NO. 175)
(ECF NO. 178)

AND

COUNTER-MOTION

TO

COMPEL

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The Court denies Defendants’ motion to quash the subpoena to FC. The Court overrules

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Defendants and FC’s objection to the timing of the subpoena and the requests for production. See

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Audio 41:40.

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The Court grants Bart Street’s countermotion to compel with respect to the documents

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encompassed by requests # 4 and #6 in Bart Street’s subpoena duces tecum to FC. See Audio 59:40

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– 59:50. Specifically, Defendants and FC must produce the transactional documents requested in

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request for production #4 in the subpoena to FC to the extent that any such documents exist, or

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otherwise respond to Plaintiff by stating that such documents have already been produced and

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provide the corresponding bates numbers of such documents to Plaintiff.

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As for request #6 in the subpoena to FC, Defendants and FC must produce the documents

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Defendants or FC exchanged with any of the Canadian investors concerning any capital infusion

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from any of the investors or any assets or liabilities of any Defendant. Id. 53:45 – 55:15. FC and

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Defendants must also produce the correspondence they exchanged with any of the Canadian

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investors about any of the topics with respect to request #6. Id. If Defendants or FC contend that

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any documents are privileged, then they must provide a privilege log. Id. 56:00.

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Respectfully Submitted

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MCNUTT LAW FIRM, LLP

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/s/ Dan McNutt
Dan McNutt, Esq. (SBN 6247)
Matthew C. Wolf, Esq. (SBN 10801)
625 S. 8th Street
Las Vegas, Nevada 89101
Attorneys for Plaintiff

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ORDER

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IT IS SO ORDERED.
UNITED STATES MAGISTRATE JUDGE

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5-9-2019
DATED:

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