Mikhlyn et al v. Bove et al

Filing 224

RESPONSE to Motion re 223 Third MOTION for Discovery filed by Anna Bove Collections, Inc., Anna Bove Company, LLC, Anna Bove Embroidery Supplies, Inc., Ana Bove, Polina Dolginov. (Attachments: # 1 Exhibit) (Berger, Jonathan)

From Ana Bove, Alex Sakirski, Polina Dolginov
TO:
Honorable Ramon E. Reyes, Jr.
United States Magistrate Judge
United States District Court
225 Cadman Plaza East
Brooklyn, NY11201
July 11,2011
Re: Vadim Mikhlyn, Inga Mikhlyn and ABC All Consulting, Inc. v. Ana
Sove, Polina Dolginov, et al; Docket No.: 08 CN. 3367
Dear Judge Reyes:
Defendants file this letter in response to latest motion regarding
Rule 37 discovery dispute, filed by Plaintiffs on 07.07.11. In fact,
discovery ends on 08.01.11., and Plaintiffs are deliberately
preventing pro se Defendants from finalizing it. For this purpose, on
06.10.11 Plaintiffs filed a new lawsuit to Supreme Court, which is
very similar to this lawsuit, being reviewed in Federal Court. See
Exhibit #1 – Plaintiffs' new complaint. It was filed against Alex
Sakirski and his company TradeIndicator, Inc., to cause more problems
and prevent Alex from assisting in this case.
Skype Chats
Plaintiffs are now citing Defendants' letters to Mr. Kogan, in an
attempt to prove that Defendants withheld some skype chats.
As Defendants declared earlier, they provided to Mr. Kogan absolutely
all chats and communications they posess, including Skype messages.
The word “removed” in Defendants' letter to Mr. Kogan is somewhat
confusing. Via this letter Defendants informed Mr. Kogan that they
divided (by Mr. Kogan's request) communications which they believed
to be non-privileged, from all the rest. Defendants didn't withhold
or delete anything. Defendants declare that in Plaintiffs' Exhibit A
there are NO statements or proofs that any emails have been withhold
by Defendants. Here Defendants declare, being duly sworn, that they
didn't “withhold” any chats and/or emails about which Plaintiffs are
stating.
At the same time, Defendants provided Mr. Kogan BOTH privileged and
non-privileged communications. Mr. Kogan had to determine the final
privileges, and to provide Plaintiffs whatever they were entitled to
receive. Defendants din't know what happened to each specific
document afterwords, although now it looks as if some of them were
not sent to Plaintiffs.
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However, there really was an accident with Skype chats, due to which
some of them were lost. This happened without Defendants' will, and
because of issues with Skype, with communications that took place
after the “breakup” with Mikhlyns. Here is what happened:
The embroidery business was renting some computers and networks from
the main business of Alex. In the beginning of 2009 there appeared
some serious malfunctioning in network of Alex, which were caused by
problems in Skype (the malfunctioning happened also on Ana's and
Polina's computers). Being afraid of serious problems and damages,
Alex was forced to reinstall Skype. After the reinstallation the
malfunctioning and network freezing stopped. Being afraid of the
problem to come back, Alex requested Ana and Polina to reinstall
Skype as well. At that time Alex, Ana and Polina were sure that Skype
stores it's correspondence somewhere on it's servers. But it appeared
that it's not so in Skype.
The Skype correspondence is almost entirely an attorney client
privilege. It includes almost exclusively communications between Ana,
Alex and Polina, while them exchanging attorneys-relating
communications, their multiple drafts and their translations from
English to Russian and vice versa, performed by Polina via Skype, to
help Ana, Alex and the lawyers understand each other. We had many,
many drafts of what we prepared for our attorneys, to use to reply in
the lawsuit, or communications with the attorneys, and in the Skype
written chats drafts were written and re-written and re-written.
The same is true regarding the thousands of documents which
Plaintiffs are now trying to call “emails”. In reality these were
just many many drafts and their translations, to and from our
attorneys. These are certainly privileged documents, which Defendants
provided to Mr. Kogan in timely manner.
Your Honor recently ordered to pro se Defendants to define
privileges, and Defendants have nearly finished doing this. Pro se
Defendant Ana Bove has done a huge work, and divided all Skype chats
by types. She did the same with emails. Although this work isn't
finalized yet, we will be able to provide Plaintiffs most of the
prepared materials in the nearest future.
We had thought to give these CDs to Plaintiffs’ counsel, but we are
concerned that once we do so, all issues of privilege will be waived.
Perhaps we could turn over these CDs to Plaintiffs’ counsel, if they
wouldn't be allowed to use any single document unless it was agreed
in advance that it was not subject to attorney client privilege. The
only other problem with this is that by turning over Attorney-Client

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Privilege documents, we are revealing to Plaintiffs
shouldn't be shared with opposing attorneys.

many things which

Therefore we have a very serious problem of how to address their
complaint. We understand reviewing such a large amount of data for
the Court is also burdensome.

Reply to point #3, regarding

Tradeindicator,

Inc. Subpoena.

- Plaintiffs said that ~We received only 4 pages of documents."
Sakirski declares that no less than 20 pages were produced to
Plaintiffs, which contain complete information for 2008-2009.

Alex

- Plaintiffs also incorrectly state that there exist four year
commercial landlord tenant relationship. In reality it's less than 3
years.
The response for this subpoena was provided up to the date it was
demanded, e.g. from 2008 through 2009, like all the other subpoenas
and financial documents of Plaintiffs and Defendants in this case.
Except of that, Plaintiffs received documents which confirm that
financial reports for 2010 aren't ready yet, e.g. it's impossible to
provide this information for 2010.
Your Honor, due to the outlined above, we respectfully request to
deny Plaintiffs' request for extending their Rule 37 default motion.

Thank you for your consideration!
Respectfully submitted,
Ana Bove, Polina Dolginov,

N«~H
Dated

Alex Sakirski.

Alex Sakirski

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&

Polina Dolginov