Geo-Group Communications, Inc. v. Goldberg et al

Filing 362

ORDER: To summarize, the Court believes that the Shahs must still take certain steps in order to satisfy their obligations under the Settlement Agreement, and to address certain concerns raised by Plaintiff. As noted, the Shahs are ordered t o complete their review of production from the recently-located hard drives by November 11, 2022. In addition, by December 2, 2022, the Shahs are ORDERED to: Turn over the physical servers recovered from 235 Hillside to Plaintiff, including any p asswords or authorizations they have or know of in order to permit Plaintiff to search the servers; Contact Mr. Aggarwal and Mr. Siddiqi to determine whether these individuals have responsive documents or information; Certify in writing that t hey have produced to Plaintiff all responsive Category Two and Three documents covered by the Settlement Agreement and this Court's prior Orders following completion of productions from the hard drives and outreach to Mr. Aggarwal and Mr. Siddiq i; Submit a declaration, under penalty of perjury, from an affiant with knowledge of this dispute, confirming that Vipin Shah is not and at no time during the relevant timeframe was a shareholder of Jaina. Further, the affiant shall declare that h e or she has reviewed the documents submitted by Plaintiff in support of its contention that the shareholder list is inaccurate, and that no revisions to the list are required based on such review; and Review the documents submitted by Plaintiff in support of its contentions regarding the loan list, and to submit a revised list based on such review if necessary or a declaration under penalty of perjury that no revisions are necessary. Additionally, as noted in this Order, the Court GRANTS Plaintiff's request to serve a subpoena on Mr. Arora and his firm, directing production of responsive documents. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/4/2022) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEO-GROUP COMMUNICATIONS, INC.,
Plaintiff,
-v.-

15 Civ. 1756 (KPF)
ORDER

VIPIN SHAH,
Defendant.
KATHERINE POLK FAILLA, District Judge 1:

The Court is in receipt of the parties’ letters outlining (i) disputes
concerning the server searches (Dkt. #353, 356), and (ii) the compliance vel non
of Vipin and Nayana Shah with the Settlement Agreement and prior Court
Orders regarding the same (Dkt. #357, 360). The Court is also in receipt of an
additional letter from the Shahs, dated October 31, 2022, requesting leave to
file a reply letter and noting recent productions of responsive documents from
hard drives recently recovered from 235 Hillside Avenue, Williston Park, New
York (“235 Hillside”). At the outset, the Court denies the Shahs’ request for
leave to file a reply letter. It addresses the parties’ other issues in the
remainder of this Order.
A.

The Servers
Beginning with the servers, the Court is dismayed to learn that they have

suffered extensive environmental damage, and that there are risks attendant to
attempting to recover data from them. (Dkt. #356 at 5, 353-1 at 2-3). In this

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The Clerk of Court is directed to amend the caption as set forth above.

regard, and in contrast to certain intimations in Plaintiff’s submissions, the
Court sees no reason to doubt the forensic memorandum written by Contact
Discovery Services, LLC (“Contact”), which memorandum notes in relevant part
that conducting online or offline server discovery may irreparably damage the
servers, and, separately, that sending the drives to a specialized outside vendor
for mitigation techniques comes at a significant price. (Dkt. #353-1 at 3-5
(noting the options for recovering data from the servers, and further noting that
mitigation measures may cost $200,000-$570,000)). The Court further notes
that James O. Whitehead III, Associate Director of Digital Forensics at Contact,
submitted a declaration in line with the Court’s prior Orders, certifying that his
contacts with Shomik Ghosh and Nishant Shah have been limited to logistics
for the forensic examination. (Dkt. #357-1 at ¶¶ 6-8). Whitehead has also
declared, under penalty of perjury, that Contact does not employ any Shah
family members; that Contact has no conflicts of interest; and that Contact has
no financial interest in this matter. (Id.). In the absence of any evidence to the
contrary, the Court takes Whitehead’s representations to be true, just as it
does the forensic memorandum.
As to how to proceed with the servers, the Court believes that the fairest
way forward — which takes into account what was contemplated by the parties
and the Court at the time the Settlement Agreement was signed and the
interests in proportionality at this stage — is for the Shahs to turn over the
physical servers to Plaintiff in satisfaction of their obligations to search the
servers. (Dkt. #353 at 10). The Shahs must also turn over any passwords or
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authorizations of which they are aware in order to permit Plaintiff to search the
servers. At this stage, after years of pre- and post-settlement litigation, this
resolution of the server issue is equitable to both parties. Indeed, the Court
agrees with the Shahs that, given the burdens of the searches, the changes to
the Shahs’ financial situation between settlement and now, and the limited
potential benefits of further searches, they should not be required to perform
an additional, multi-hundred-thousand-dollar undertaking. (Id. at 11). To be
clear, however, the Court’s resolution of the server issue does not alter the
Shahs’ other obligations under the Settlement Agreement and this Court’s
Orders.
B.

The Hard Drives
In their letter of October 18, 2022, the Shahs for the first time disclosed

the existence of four computer hard drives located at 235 Hillside. (Dkt. #357
at 16). These drives have suffered less damage than the servers, and the
Shahs have authorized Contact to forensically image the drives and extract
data from them. (Id.). On October 31, 2022, the Shahs noted that they have
made productions of responsive documents from these drives, and intend to
make one final production by November 4, 2022. (Dkt. #361). Plaintiff claims
that the Shahs’ failure to disclose when and how the drives were found — as
well as their failure to disclose the drives’ existence for some seven years —
constitute a “serious breach not only of [the Shahs’] obligations to [Plaintiff],
but also to the Court.” (Dkt. #360 at 3). The Court agrees that the Shahs
should have disclosed the hard drives’ existence earlier, and that further
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productions will create delay beyond the Court’s previously-ordered deadline
for compliance with its Orders. However, on the theory that late-produced
information is preferable to never-produced information (particularly given the
status of the servers), the Court will order the Shahs to make a final
production from the hard drives by November 11, 2022, and to take certain
steps based on the documents retrieved from those drives as detailed in the
remainder of this Order.
C.

The Shahs’ Compliance with Remaining Obligations Under the
Settlement Agreement
Turning to the parties’ letters regarding further compliance with the

Settlement Agreement, the Court is not prepared to grant the Shahs the relief
requested in their letter of October 18, 2022 — namely, a declaration that they
have satisfied all of their settlement obligations. (Dkt. #357 at 1). Instead, the
Court now addresses the parties’ dueling views on the Shahs’ compliance with
other provisions of the Settlement Agreement.
First, the Court agrees in part with Plaintiff that there remain
accountants and attorneys who may have responsive documents and
information. (Dkt. #360 at 4). These individuals include:
•

CPA Braj Aggarwal, and his firm Braj Aggarwal CPA,
P.C. (Dkt. #360 at 4). Plaintiff points to documentary
evidence that suggests that Mr. Aggarwal assisted with
Jaina-related matters in 2015. (Id.; see also Dkt. #3601, 360-2).

•

Humayan Siddiqi. (Dkt. #360 at 5). Although the
Shahs disclaim any obligation to contact Mr. Siddiqi
because he did not represent the Shahs in a formal
capacity (Dkt. #357 at 14), Plaintiff has submitted
documentary evidence that Mr. Siddiqi provided Vipin
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Shah with legal advice related to this case (Dkt. #360 at
5; Dkt. #360-3, 360-4).
•

Anil Arora. (Dkt. #360 at 5-6). Mr. Arora was formerly
counsel of record to the Shahs in this case, and thus
may be in possession of responsive documents. (Id.).

The Court directs the Shahs to contact Mr. Aggarwal and Mr. Siddiqi,
and to determine whether either has responsive documents or information. As
to Mr. Arora, the Shahs represent that they have reached out to him by phone
and email numerous times, and that he has refused to engage with them.
(Dkt. #357 at 13-14). As such, the Court grants Plaintiff’s request to serve a
subpoena on Mr. Arora and his firm, directing production of responsive
documents. (Dkt. #360 at 5-6).
Plaintiff further disputes whether the Shahs’ outreach to other attorneys
and accountants was sufficient. (Dkt. #360 at 4-5). In essence, Plaintiff claims
that the Shahs’ counsel must personally supervise and manage potential
document production from certain accountants and attorneys, and requests
that this Court order the Shahs to “obtain from each accountant and attorney
all documents (including ESI) received from the Shahs, Jaina, or any
representative of Jaina[.]” (Dkt. #360 at 4-5). The Court disagrees. The Shahs’
counsel represents that he has undertaken significant outreach efforts to
various attorneys and accountants, and has communicated to them the
obligations imposed by the Settlement Agreement and this Court’s prior
Orders. (Dkt. #357 at 13-14). Those attorneys and accountants, in turn, have
reviewed their files to determine whether they have responsive information.
(Id.). As the Court noted in its interpretation of the Settlement Agreement, “to
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some extent, Plaintiff must rely on Defendants’ integrity and good faith in
ascertaining the scope of the documents, information, and electronic devices
that they can practically access.” (Dkt. #350 at 14). The Court does not
believe that the Shahs have eschewed their obligations to reach out to these
individuals to ascertain whether there are responsive documents and
information.
Second, Plaintiff argues that the Shahs have not produced all of the
Category Two and Three documents within their possession, custody, and
control. (Dkt. #360 at 6-7). In particular, Plaintiff highlights that the Shahs
have produced no documents related to five subcategories of Category Two
documents concerning various financial information, and have produced only a
few documents related to two subcategories of Category Three documents.
(Id.). The Shahs, for their part, detail the searches that they have undertaken
of their residence, 235 Hillside, and electronic devices, and claim to have
produced all responsive documents. (Dkt. #357 at 15-18). The Shahs further
argue that they have satisfied their obligations to search any “premises used by
235 Hillside LLC, Jaina, Jaina Infrastructure, Inc., Ipsita Telecom Services Inc.
or Neminath to conduct business” (Dkt. #338 at 3), because the premises used
for all of the relevant settlement entities was 235 Hillside (Dkt. #357 at 18).
The Settlement Agreement defines “Jaina” to mean “Jaina Systems Network,
Inc.” (Dkt. #338 at 1). Thus, premises used by other entities like Jaina
Systems Network (Pvt) Ltd. — which the Shahs claim is a wholly separate

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company owned by Surajit Bose in India — are outside the scope of the
Settlement Agreement. (Dkt. #357 at 18).
As an initial matter, this dispute may be premature, given the Shahs’
stated intent to make further productions of documents from the hard drives
they have recovered. Further, Plaintiff may discover additional information
from searches of the servers. But beyond this, the Court directs the Shahs to
certify in writing that they have produced to Plaintiff all responsive Category
Two and Three documents covered by the Settlement Agreement and this
Court’s prior Orders following the completion of productions from the hard
drives and the outreach to Mr. Aggarwal and Mr. Siddiqi. Again, it bears
repeating that the Settlement Agreement “meaningfully limits what Defendants
must produce to those materials that are within their possession, custody, or
control[.]” (Dkt. #350 at 14). This means that the Court “cannot guarantee
that Plaintiff will receive all of the information enumerated in the Agreement”;
instead, the Shahs must comply in good faith with what the Settlement
Agreement requires. (Id.).
Third, Plaintiff disputes the accuracy of the lists submitted by the Shahs.
(Dkt. #360 at 8). To start, Plaintiff argues that the lists cannot possibly be
considered complete, because the Shahs have not completed the searches of
the hard drives and servers, and because of the identified issues with outreach
to certain attorneys and accountants. (Id.). To the extent that the Shahs’
outreach to Mr. Aggarwal and Mr. Siddiqi, or their searches of the hard drives,

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reveal additional information bearing on the accuracy of the lists, the Shahs
are of course obligated to submit revised lists to Plaintiff.
As to the shareholder list, Plaintiff has put before the Court documentary
evidence suggesting that (i) Frank Vella may have alienated his shares in Jaina
in 2011 and (ii) Jaina may have had more than six shareholders from 2013
through 2016. (Dkt. #360 at 9). In particular, Plaintiff argues that documents
related to Jaina’s Citibank Commercial Credit application and tax returns,
communications with Jaina’s CPA, and communications with attorneys and
outside investors show that Mahendra Shah, Vipin Shah, Nayana Shah, and
Surajit Bose were likely shareholders through 2012, and that this same group
and two additional individuals were likely shareholders from 2013 forward. (Id.
at 9-16).
For their part, the Shahs attest that from 2012 through 2021, Jaina had
“four consistent shareholders” all owning 25% of the company: Surajit Bose,
Frank Vella, Mahendra Shah, and Nayana Shah. (Dkt. #357 at 9-10). The
Shahs note that they reviewed documents, including board minutes and tax
returns, spoke with Nayana and Mahendra Shah to confirm their ownership,
and also spoke with Frank Vella, who confirmed his continuing ownership of
25% of Jaina. (Id.). They also spoke to accountants and attorneys. (Id.).
Although the Shahs were not able to speak with Surajit Bose, who remains
missing, they have proffered documentary evidence that Bose viewed himself as
a 25% shareholder in 2014 and 2015. (Id.; see also Dkt. #357-3, 357-6). The
Shahs also contend that the documentary record contradicts assertions
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Plaintiff makes about Ketan Shah and Gauvrav Sharma and their potential
ownership interest in Jaina. (Dkt. #357 at 10). Finally, the Shahs have
submitted a declaration from Nayana Shah; under the penalty of perjury, Mrs.
Shah declared that she remains a 25% shareholder in Jaina, and that she has
“not received any notice that any of the other initial shareholders” of the
company have “given up, sold, or alienated any of their shares” and remain
“25% shareholders” of the company.” (Dkt. #357-2).
The Court will not resolve this largely factual dispute regarding the
shareholder list via Court order, as Plaintiff requests. As the Court’s
interpretation of the Settlement Agreement makes clear, the Shahs are directed
to make the lists contemplated by the Settlement Agreement “to the extent the
information necessary to do so is obtainable via good-faith compliance with [the
Shahs’] diligence obligations[.]” (Dkt. #350 at 13). The parties may continue to
disagree over what the documentary record reflects. (See Dkt. #357 at 10).
That being said, and in light of the declaration that Nayana Shah has already
submitted, the Court directs the Shahs to submit a declaration, under penalty
of perjury, from an affiant with knowledge of this dispute, confirming that Vipin
Shah is not and at no time during the relevant timeframe was a shareholder of
Jaina. Further, the affiant shall declare that he or she has reviewed the
documents submitted by Plaintiff in support of its contention that the
shareholder list is inaccurate, and that no revisions to the shareholder list are
required based on such review. (See Dkt. #360 at 8-15). If, in reviewing such

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documents, the Shahs find reason to revise the shareholder list, they shall do
so promptly.
Plaintiff further contends that the loan list submitted by the Shahs is
inaccurate. (Dkt. #360 at 16). In particular, Plaintiff argues that certain
payments from Vision Impex LTD and Nexvoiz were not in fact loans, but
instead were payments of customer invoices, and that the loan list is missing
potential loans from TD Time. (Id. at 16-17). The Shahs have not yet engaged
with these new arguments, but have stated that they have satisfied their
obligations to compile the loan list, based on review of financial, accounting,
and tax records. (Dkt. #357 at 11-12). Again, this issue presents a factual
dispute regarding whether the loan list is accurate based on dueling reviews of
the documentary record. Accordingly, the Shahs are directed to review the
documents submitted by Plaintiff in support of its contentions regarding the
loan list (Dkt. #360 at 16-17); after conducting the review, the Shahs will either
submit a revised list or a sworn statement that the prior list was accurate.
D.

References to Vishal Shah and Threats of Contempt Sanctions
In their final request for relief, the Shahs request that the Court order

Plaintiff to refile its letter of October 17, 2022, which letter refers to Vishal
Shah. (Dkt. #357 at 20). In the letter, Plaintiff claims that Contact’s forensic
memorandum is deficient because it did not note whether the Shahs, their
family members, or their attorneys “have any business, professional, or
personal relationships with [Contact] that predated the engagement[.]” (Dkt.
#356 at 7). Plaintiff then proceeds to claim that this “is a very significant
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omission, given that the Shahs’ second son, Vishal Shah, is a highly
experienced and skilled information technology professional.” (Id.). Since that
letter, Plaintiff has walked back from his statements; he notes, for example,
that the Declaration of James O. Whitehead III (Dkt. #357-1) submitted with
the Shahs’ letter of October 19, 2022, “now makes more robust disclosures[.]”
(Dkt. #360 at 17 n.2).
The Court will not order Plaintiff to refile its prior letter. That said, the
Court is alarmed by Plaintiff’s rank speculation, and its implication that Vishal
Shah — a non-party — was somehow improperly involved in preparation of the
forensic memorandum. In the same vein, the Court will not now order that
Plaintiff cease raising the prospect of contempt sanctions. (Dkt. #357 at 20).
That said, the Court urges the parties to conduct themselves professionally,
with a minimum of performative motion practice and with due regard for the
personal dignity of the litigants and their families.
CONCLUSION
To summarize, the Court believes that the Shahs must still take certain
steps in order to satisfy their obligations under the Settlement Agreement, and
to address certain concerns raised by Plaintiff. As noted, the Shahs are
ordered to complete their review of production from the recently-located hard
drives by November 11, 2022. In addition, by December 2, 2022, the Shahs
are ORDERED to:
•

Turn over the physical servers recovered from 235
Hillside to Plaintiff, including any passwords or
authorizations they have or know of in order to permit
Plaintiff to search the servers;
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•

Contact Mr. Aggarwal and Mr. Siddiqi to determine
whether these individuals have responsive documents
or information;

•

Certify in writing that they have produced to Plaintiff all
responsive Category Two and Three documents covered
by the Settlement Agreement and this Court’s prior
Orders following completion of productions from the
hard drives and outreach to Mr. Aggarwal and Mr.
Siddiqi;

•

Submit a declaration, under penalty of perjury, from an
affiant with knowledge of this dispute, confirming that
Vipin Shah is not and at no time during the relevant
timeframe was a shareholder of Jaina. Further, the
affiant shall declare that he or she has reviewed the
documents submitted by Plaintiff in support of its
contention that the shareholder list is inaccurate, and
that no revisions to the list are required based on such
review; and

•

Review the documents submitted by Plaintiff in support
of its contentions regarding the loan list, and to submit
a revised list based on such review if necessary or a
declaration under penalty of perjury that no revisions
are necessary.

Additionally, as noted in this Order, the Court GRANTS Plaintiff’s
request to serve a subpoena on Mr. Arora and his firm, directing production of
responsive documents.
SO ORDERED.
Dated: November 4, 2022
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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