Federal Trade Commission et al v. Vantage Point Services, LLC et al
Filing
132
ORDER granting 122 Motion to Compel. Signed by Hon. H. Kenneth Schroeder, Jr on 6/20/2016. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FEDERAL TRADE COMMISSION, et al.,
Plaintiffs,
v.
15-CV-6S(Sr)
VANTAGE POINT SERVICES, LLC., et al.,
Defendants.
DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M.
Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters, and for
hearing and disposition of all non-dispositive motions or applications. Dkt. #64.
On October 7, 2015, plaintiffs served defendant Gregory MacKinnon with
a First Request for Production of Documents generally seeking all electronic mail
relating to the defendants’ debt collection business. Dkt. #122-1, pp.10-11.
By emails dated November 16, 2015 and November 23, 2015, and letter
dated November 24, 2015, plaintiffs sought responses to their First Request for
Production of Documents. Dkt. #122-1, pp.15, 17 & 19. On January 25, 2016,
defendant Gregory MacKinnon responded to the request with numerous objections, but
not a single email. Dkt. #122-1, pp.21-37. Specifically, defendant objected
on the grounds that the requested documents are not within
Defendant’s custody or control. . . . Defendant is not in
control of the requested materials due to limited access to
materials by virtue of the Court-appointed Receiver in this
case. Defendant’s counsel is working with the Receiver and
anticipates performing a diligent search for such materials.
Defendant objects to the request on the grounds that the
request does not describe the requested material with
sufficient particularity to allow for production. . . .
Defendant objects to this request on the grounds that the
requested materials are readily available from the courtappointed Receiver in this case and were already made
available to Plaintiffs by virtue of Plaintiffs’ immediate access
on January 6 and 7, 2015. . . .
Defendant objects to this request on the grounds that it
seeks materials that are outside the scope of Rule 26
disclosure in this matter. . . .
Dkt. #122-1, pp.21-37.
By email dated January 25, 2016, plaintiffs’ counsel advised defendant’s
counsel that he “spoke to the Receiver moments ago, to inquire about the discovery
demands, and he informed me that he has not spoken to you or any of Defendants’
counsel about this case for months.” Dkt. #122-1, p.40. In any event, plaintiffs’ counsel
advised defendants’ counsel that
there is no reason why the existence of the Court-appointed
receiver would prevent Defendants from obtaining
responsive materials. Many if not all of the email addresses
used by Defendants were through email providers such as
Yahoo! and Google and can be accessed remotely by
Defendants. Moreover, some of the email addresses used
by Defendants in their collection business are personal
accounts – including GMAC1208@yahoo.com used by Greg
MacKinnon – that are readily accessible (if not exclusively
accessible) to Defendants. And even to the extent that the
-2-
Court-appointed Receiver affected Defendants’ ability to
access electronic data when the Receiver controlled
Defendants’ business premises, that control was ceded back
to Defendants months ago, following Defendants’ repeated
requests for the Receiver to turnover the premises.
Dkt. #122-1, p.40.
By e-mail dated January 26, 2016, defendants’ attorney advised that
by virtue of the asset freeze and Receivership, Defendants
are unable to make the requested production (e.g., in nativeelectronic form) at the present time. By way of background,
in the Western District electronic materials (including e-mail
accounts) are typically imaged by an outside vendor.
Attorneys for the party requesting production then typically
indicate search terms they would like searched in the
imaged e-mail account, and the attorney for the producing
party then reviews the materials for privilege before turning
over the electronic materials with a privilege log. Our office
is willing to work on this type of production with the
Government. Once again, we are unable to do so without
resources to hire an outside vendor to image the account.
We believe these resources should also be released from
the Receivership estate.
Dkt. #122-1, p.43.
By e-mail dated January 29, 2016, plaintiffs’ counsel agreed “to release
funds to cover reasonable costs for an outside vendor to copy the files to a source that
is accessible to Defendants’ counsel.” Dkt. #122-1, p.45. By e-mail dated March 9 and
March 23, 2016, plaintiffs’ counsel reiterated the need to discuss the email accounts.
Dkt. #122-1, pp.47 & 49. By email dated March 28, 2016, plaintiffs’ counsel
memorialized the parties’ agreement to release up to $3,000 to retain a vendor to
image defendants’ email accounts. Dkt. #122-1, p.51. The parties stipulated to the
-3-
release of $3,000 for the imaging of email accounts on April 4, 2016. Dkt. #113. By
email dated April 26, 2016, plaintiffs’ counsel memorialized the need to request
additional funds to finance the imaging of defendants’ email addresses. Dkt. #122-1,
p.53.
On May 19, 2016, plaintiffs filed this motion to compel defendant Gregory
MacKinnon to produce all electronic mail sent to or received from defendant’s yahoo
account which relate to the defendants’ debt collection business. Dkt. #122.
In response to the motion to compel, counsel for defendant Gregory
MacKinnon advised the Court that “Defendants believe they have reached an
agreement with the Government with respect to e-mail communications of Gregory
MacKinnon requested by the Government in the demands at issue.” Dkt. #124, ¶ 8.
Attached to the response is a letter from defense counsel dated June 2, 2016 stating:
Upon review of the demands, the only e-mail address that
may have responsive information that was not cloned by the
Government in connection to the immediate access is Mr.
MacKinnon’s personal e-mail account,
Gmac1208@yahoo.com. As you know, Mr. MacKinnon no
longer has access to that account. At the conclusion of Ms.
Davis’ deposition on June 1, I indicated our willingness to
subpoena the entirety of the e-mail account from Yahoo and
to then search the materials to provide responsive
documents to the Government. At that time, you both
indicated that proposal may be acceptable to you. In the
event that it is, please let me know and I will send the
subpoena as soon as possible.
Dkt. #124-1, pp.8-9.
-4-
In reply, plaintiffs’ counsel denies any agreement with respect to the
yahoo email account and requests that the Court Order defendant to take whatever
steps are necessary to produce the requested documents. Dkt. #127, p.1. Plaintiffs’
counsel notes that the Electronic Communications Privacy Act bars the use of
subpoenas for disclosure of emails and notes that defendant has not explained why he
is unable to access his personal email account. Dkt. #127, pp.1-3. Specifically,
plaintiffs’ counsel states that it was only after plaintiffs moved to compel that defendant
MacKinnon advised that he no longer had access to his personal email account,
arguing that
Defendant MacKinnon’s eleventh-hour claim that he no
longer has access to his email account is difficult to believe.
He identified GMAC1208@gmail.com [sic] as his main
personal email address - and the address he used to
conduct business related to the defendant companies - in
sworn testimony. In discussing the First Request for
Documents, counsel raised privilege concerns given
MacKinnon’s use of the account to communicate with his
lawyers during the pendency of this litigation, and never
suggested there were access problems until after plaintiffs
moved to compel. And defendants have provided no reason
- and MacKinnon has not submitted an affidavit - explaining
why defendant MacKinnon no longer has access to this
account in his response. Nor have they detailed any steps
that MacKinnon has taken to attempt to re-obtain access to
the account.
Dkt. #127, p.4.
Mr. MacKinnon has failed to proffer any explanation as to why his
personal email account is inaccessible nor has he proffered any explanation of his
attempts to gain access to his personal email account. Accordingly, Mr. MacKinnon is
-5-
directed to produce the relevant emails from GMAC1208@yahoo.com within 20 days
of the entry of this Decision and Order or submit an affidavit documenting his diligence
in attempting to obtain access to his email. Defendant is forewarned that his failure to
comply with this Order will be deemed contempt of court pursuant to Fed. R. Civ. P.
37(b)(2)(A)(vii).
SO ORDERED.
DATED:
Buffalo, New York
June 20, 2016
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?