Mikhlyn et al v. Bove et al

Filing 238

Letter in response to Plaintiff's reply to Defendants' Objections by Anna Bove Collections, Inc., Anna Bove Company, LLC, Anna Bove Embroidery Supplies, Inc., Ana Bove, Polina Dolginov (Attachments: # 1 Exhibit, # 2 Exhibit) (Berger, Jonathan)

Ana Bove, Polina Dolginov (pro se Defendants)
Alex Sakirski
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
________________________________
VADIM MIKHLYN, INGA MIKHLYN, )
AND ABC ALL CONSULTING, INC., )
)
Plaintiffs,
)
)
v.
)
ANA BOVE, POLINA DOLGINOV,
)
ANNA BOVE COMPANY, LLC,
)
ANNA BOVE COLLECTIONS INC.,
)
AND ANNA BOVE EMBROIDERY
)
SUPPLIES, INC,
)
)
Defendants.
)
)
ANA BOVE,
)
ANNA BOVE COMPANY, LLC,
)
AND ANNA BOVE EMBROIDERY
)
SUPPLIES, INC,
)
)
Counter-Plaintiffs,
)
)
v.
)
)
VADIM MIKHLYN, INGA MIKHLYN, )
AND ABC ALL CONSULTING, INC., )
)
Counter-Defendants.
)
________________________________

Index No. CV 08 3367
J. ROSS
M. J. REYES

OBJECTION TO REPORT
AND RECOMMENDATION
OF MAGISTRATE REYES

Dear Judge Ross,
We file this letter seeking a fair decision, since we believe that
the decision of Honorable Judge Reyes in his REPORT & RECOMMENDATION
(Doc 227 , dated 08.03.11) is incorrect and unsupported, due to the
reasons outlined below.

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PART A.

1. In an essence, when making his decision, Honorable judge Reyes
basically accepted Mr. Kogan's position. See footnotes 1 and 2 in Doc
227, that “...the Kogan Firm’s position generally at the time was
that the remaining discovery issues and their withdrawal resulted
from the defendants’ conduct alone.”. This is 100% untrue.

Honorable Judge Reyes accepted some statements of Mr. Kogan as true
facts, while we know that these statements are untrue. Jusge Reyes
never had Mr. Kogan testify in Court about them, which should have
been cross-examined.

Mr. Kogan, just like the Defendants, from the very beginning was
certain that this will be a short case since we thought that
Plaintiffs won't wish to disclose their criminal infringements
regarding multiple plunders and tax evasion, taking place during the
years of Inga Mikhlyn's management of financial accounting of the
embroidery business. In hopes for a short end of this case, and of
receiving a high compensation, Mr. Kogan agreed for a contengency.
Namely because of this reason Mr. Kogan didn't send us even a single
invoice for his services within his two years of work (2008-2010),
and we didn't pay such invoices. We were paying only for the services
of other firms (for translations etc). The contengency agreement was

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oral.

Mr. Kogan was dealing with our case very unwillingly (only his law
clerk Yossi was dealing with it). After that moment, the office of
Mr. Kogan (his mother) demanded from us to pay $20,000. We didn't
have this kind of money. We naively thought that Mr. Kogan should be
leading the case, according to our agreement. But Mr. Kogan didn't
need this case any longer, it was only a headache for him.

Much later we realized that namely from this moment, Mr. Kogan
started deliberately leading us to a default, for which we would be
liable. Mr. Kogan stopped responding to Plaintiffs' letters and
demands about discovery, stopped complying with Court orders, and
started to infringe and many times extend discovery deadlines.

Mr. Kogan requested Alex to count up absolutely all documents on all
computers (of Anna, Polina and Alex, including drafts and copies, and
also Russian and English versions of absolutely all documents related
to the case. He might need to review all this, and therefore a lot of
time will be needed to finish discovery. Namely due to this request,
and Mr. Kogan's reminder about Court request #3, there appeared that
email of Alex (dated 21 February, 2010), with numbers like 65,000 and
15,953 and others related to emails. See Exhibit #1. Also see Exhibit
#2 – email of Alex dated February 24/25? , which explains that all of

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these large numbers relate to absolutely all documents related to the
case (including filings of Plaintiffs and Defendants, and all the
rest), located on all of our computers.

From the text of these emails it's clear that we don't conceal
anything. The email dated 21 February 2010 was written for the Judge
and for Plaintiffs, and we were writing it to serve as a proof that
we don't hide anything and gave everything. Perhaps, it's less clear
in the English version than it was in the Russian.

We believe that already then, in January-March 2010, Mr. Kogan was
deliberately and willfully preparing our case for a default, and was
preparing Defendants to look responsible for what Mr. Kogan himself
did. We couldn't even suspect that we may be held liable for the
behaviour of our lawyer. Mr. Kogan was behaving so defiantly, and
repeatedly broke decisions of the Judge and didn't answer inquiries
of Plaintiffs, just because he wasn't afraid of responsibility.

Namely thus Mr. Kogan was deliberately withholding all of the
documents which Defendants provided to him yet in January-February
2010, thus infringing discovery rules, despite of numerous complaints
of Mr. Wertheim. By doing this, Mr. Kogan was basically helping
Plaintiffs to fulfill their threat of Rule 37 sanctions. Namely thus
at the very end Mr. Kogan deliberately formally disobeyed the order

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of Judge Reyes to provide all the documents in his hands prior to May
26, 2010. After sitting upon a mass of documents for many months, but
without doing anything with them, when already not being our lawyer,
Mr. Kogan turned these documents over in such a manner that
Plaintiffs received them only on June 1, 2010 – therefore he
deliberately and formally disobeyed the order of Judge Reyes, and
delayed the documents for 5 more days after the allowed deadline.
Thanks to such deliberate actions of Mr. Kogan Plaintiffs had their
basis for filing Rule 37 sanctions motion for default.

Within his first Report & Recommendation Honorable Judge Reyes
acknowledged namely this formal infringement of Mr. Kogan, as a
sanctionable infringement. However afterwords, Judge Reyes
interpreted an email written by Alex dated Feb 21, 2010 (Exhibit #1)
as a new piece of information, contradicting the previous testimony
of Defendants. We believe that the untruthful explanations of Mr.
Kogan and of Plaintiffs' lawyers about the nature of 65,000 documents
and other stuff, as well as incorrect interpretation of what exactly
was specified in that email of Alex.

This email was a simple, open and honest reply of Alex to Mr. Kogan,
regarding the Judge's question. See the beginning of this email:

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«

»

Perhaps it's bad English or confusing description of facts, but this
email doesn't include a single word or hint about concealing or
withholding documents. On the contrary, the conversation here is
about our readiness to turn over these or other documents. Per our
belief, many of the documents specified here had already been give
back then to Mr. Kogan, but in any case, there was over a month left
until the end of discovery, and then it got extended again until May
3, 2010.

See point “Forth” in Alexe's email:

Alex expresses to Mr. Kogan his opinion that these documents
shouldn't be turned over to Plaintiffs, because Plaintiffs didn't
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provide similar information of their own. But that's only what Alex
“thought” - the decision and the turn-over was always done by Mr.
Kogan.

In point “Fifth” of this email:

Alex counted up all of the documents on all computers, including the
Court filings of all parties, bank documents, and generally
everything related to the case. All of this was already in our
counsel's office, since it streamed from them to us. Since 2008-2010
there were no pro se defendants, and all we've been writing and
translating, was given to our lawyers. Most of these documents were
open, and Plaintiffs surely had them.

Indeed Alex made a mistake when he thought that all of this required
a privilege log, and that Mr. Kogan should look through this, but
should Defendants be killed for this mistake?
Already in his next email, sent to Mr. Kogan 4 days later (on
February 25, 2010) Alex requested a meeting with Mr. Kogan, and said
that the entire privilege log could be done in a couple of hours.
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This once again proves that Mr. Kogan was already holding all of the
documents, and the missing ones were going to arrive to him within
the next couple of days. See Exhibit #2.

« 02.24.10.
Marina, Boris, hello!
In last email (that specifies a large amount of documents,
located on our computers), I forgot to say that 90% of the
documents in Russian language have english translations, and
were once sent to you, since they are materials of our case.
Except of that, there are many versions of the same documents
there (on different stages of their writing), before they were
sent to you.»

I think that if we (I and Anna) will sit together with you (Marina or
Boris) to look through them, with the purpose of determining their
privileges, this may take not so much time at all. In fact, the
priveleges of many of them may be determined just by the name, e.g.
even without opening.
Alex “

Point “Fifth” of Feb-21-Email from Alex (point (c)) absolutely
doesn't say that we deleted chats from Skype, like Honorable Judge
Reyes assumed. It says that we divided these chats to ones that bear
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Attorney-Client-Privilege, from all the rest, but being afraid that
we might be mistaken, we offer Mr. Kogan to check this out.

Defendants believe that all of the above-said doesn't contradict in
any way what they told earlier.

2.
Defendants declare that they have provided to Mr. Kogan all they
believed they should have provided, and did so within discovery
deadlines set by the Court.

Defendants declare that they were sure that Mr. Kogan also turned
everything over to Plaintiffs. For a long time Defendants didn't know
that Mr. Kogan was willfully withholding all these documents. Mr.
Kogan admitted by himself that he was withholding them by his own
initiative.

Defendants declare that they didn't know that Mr. Kogan was awaiting
for any additional documents from them. From the emails of Alex dated
February 21 and 24 it's clear that we concealed nothing both from Mr.
Kogan and from the Court. Mr. Kogan had a complete list of all we had
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on our computers. So why didn't he write to us and say that he was
awaiting for some “important documents” from us? Mr. Kogan didn't
provide any single proof of informing us that he was awaiting for any
documents from us, without which he couldn't or didn't wish to turn
over to Plaintiffs the documents which he already had in his office.

Plaintiffs also didn't prove with any facts that we didn't provide,
concealed or deliberately deleted anything.

Except of the naked statements and references to a wrongly
interpreted email of Alex, there are no other proofs that Defendants
have deliberately or numerously concealed or deliberately deleted
anything. There is also not a single proof that Defendants
personally, and not their lawyer, disobeyed at least one Court Order.

3. Defendants are 100% sure that Judge Reyes mistakingly took for a
fact Mr. Kogan's untrue allegation, saying that Mr. Kogan showed us
an article in law journal, which said that we may be forced to pay if
we won't follow the rules.

Ana and Alex state under oath that Mr. Kogan has never (neither with
a journal, nor without it) explained us any mechanisms and details
about punishments for infringing discovery rules. At the same time,
defendant Polina lives in Israel, and Mr. Kogan surely didn't show

10

her any magazines either (Polina declares this under oath).

Mr. Kogan never explained us discovery rules, and didn't explain us
about our rights and obligations.

Mr. Kogan also never explained us that we can be held liable for
deliberate infringements of our attorney, and also in case these
infringements were done by our attorney for the benefit of the
opposing party.

Mr. Kogan never explained us that it's our duty to do everything to
preserve data, if there is any threat of it's loss. For example, when
having the malfunctioning and computer “freezing” or when
reinstalling software like Skype, which is responsible for the
information which, as it appeared, we should have done everything to
preserve.

Mr. Kogan never expressed any interest in what and how we were doing,
didn't help us to avoid mistakes, and hardly informed us about his
work matters regarding our case. For example, for a very long time
(nearly until the default motion was filed against us), we didn't
know that we had serious discovery issues. We thought that everything
was OK.

11

Mr. Kogan didn't have time and desire for us, in fact we were a lowperspective or absolutely non-perspective contengency, and didn't use
to pay on regular basis. Often we couldn't schedule an appointment or
a phone call for weeks and months, to get replies from Kogan about
more simple questions.

The only thing that Mr. Kogan told us about discovery obligations is
that we mustn't delete case-related information from hard drives.

However, Defendants have always been doing their best to fulfill
everything that the Court ordered, and what our ex-counsel Mr. Kogan
told us, and also followed what we personally percieved as our
discovery obligations, and we did all of this on time.

Below are outlined some examples of our timely and compliant turnover
of data to Mr. Kogan on CDs, the majority of which can be confirmed
documentally.

On March 27, 2009 we provided 8 CDs to Mr. Kogan.
On August 23, 2009 we provided 8 CDs to Mr. Kogan.
Since September 16, 2009 through September 30, 2009 we provided 60
CDs to Mr. Kogan.
On October 2009 we provided 20 CDs to Mr. Kogan
On January 25, 2010 we provided 3 CDs to Mr. Kogan

12

In total, by January 25, 2010 we have provided 103 CDs to Mr. Kogan.
This is about 95% of all CDs given to Mr. Kogan.
Defendants have earlier declared that they gave 90% of all the
documents to Mr. Kogan by January 25, 2010.
Since February through March 2010 we gave 5 CDs to Mr. Kogan.
This is less than 5% of all CDs given to Mr. Kogan.
Before December 2009 Mr. Kogan was also turning over on regular basis
everything we gave him.

Namely since December 2009 Mr. Kogan has actually stopped being our
attorney. He stopped forwarding the information which he received
from us, started to systematically disobey Court instructions,
started delaying all discovery deadlines, systematically stopped
responding to Plaintiffs' emails and calls. Three days before the end
of discovery he left, and deliberately infringed upon the latest
discovery deadline. So why should be liable for this...

Since December 2009 Mr. Kogan stopped turning over to Plaintiffs the
data he received from us.

Defendants believe that it's incorrect that Honorable Judge Reyes
didn't allow a chance for us and Mr. Kogan to be heard under oath,
and instead of this Mr. Kogan's allegations were accepted as if they
were facts.

13

Based on the outlined above we respectfully request Your Honor to
cancel or not make a decision about sanction fees against us, or
significantly reduce Defendant's share of the fine because Defendants
didn't infringe discovery rules, and there was an error in such a
decision made by Honorable Judge Reyes.

PART B.
In case even a small fine will be awarded against Defendants, we
respectfully request Your Honor to delay the payout of this fee
until the Court rules out regarding the ownership of some disputed
property, which consists of:
Intellectual Property – the database of clients of the embroidery
business, totalling 250,000 clients, which was accumulated since 2002
throu March 2008.
Embroidery supplies and materials accumulated in the embroidery
business since 2004 through March 2008.

Our request is supported by the following events, arguments and
facts:

B1. Plaintiffs paid their attorney fees and other case expenses not
with their money and loans, but with the money from Defendants'
assets, which they grasped (in April 2008), and which are a subject
of dispute in current litigation.

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Namely due to the outlined above Defendants are now in the pro se
mode, and Plaintiffs are paying their attorneys on proper and regular
basis.

Your Honor, we declare that namely due to Plaintiffs' misconduct, and
because of their illegal activities, we appeared to be in such a
difficult financial situation. Therefore, we respectfully request not
to rule about immediate payment of even a small fine, because this
will cause an unreparable damage to us and to our business.

PART C.
Your Honor, we also respectfully request to deny Plaintiffs demand
for immediate payment of sanction fees, until a final decision is
made regarding the claims of this case.

I know that we have asked that you hold off that we pay the sanctions
fine.

Levisohn Berger LLP has been assisting us in this matter as

counsel for the corporate defendants.

They showed us a case called

Cunningham v. Hamilton County, 527 U.S. 198

which says that if

anyone has issues with Rule 37 sanctions that they are to be
addressed when the final judgment is given out when the case is
finished.

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CONCLUSION
Due to the outlined
reverse Judge Reyes'

above,

we respectfully

Rulings

Judge Reyes' decision,

and Recommendation

delay the decision

fees until a final decision

Respectfully

An

for your consideration.

submitted,

Bove

Mi

Jcltrztlt {

Alex Sakirski

d3Z
Polina Dobi"{nov

D.g 0$ .2. 01f

Date

16

the Court

to

or if it should keep

about awarding

is made regarding

case.

Thank you very much

request

sanction

the main claims of this