SPV-LS, LLC v. Transamerica Life Insurance Company

Filing 224

ORDER re 220 MOTION to Quash filed by Malka Silberman. Signed by US Magistrate Judge Veronica L. Duffy on 04-13-16. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SPV-LS, LLC,

4:14-CV-04092-LLP
Plaintiff,
ORDER ON THIRD-PARTY
DEFENDANT SILBERMAN’S MOTION
TO QUASH

vs.
TRANSAMERICA LIFE INSURANCE
COMPANY,

DOCKET NO. 220

Defendant.

On March 16, 2016, attorney Douglas A. Foss, attorney for third-party
defendants, cross-claimants and cross-defendants Financial Life Services, LLC;
Life Trading Trust; SPV-LS, LLC; SPV II LLC, issued testimonial subpoenas and
subpoenas duces tecum on Stuart I. Davis and Andrew Citron, nonparties to
this action and former attorneys for Malka Silberman. See Docket No. 221-1,
221-2, 221-3, and 221-4. The supoenas required that documents be produced
either electronically to a specified email address, or physically to a location in
Pittsford, New York, on April 11, 2016, at 9:00 a.m. Id. The testimonial
subpoenas require the two men to appear for their depositions on April 14,
2016, at 11:30 a.m. for Mr. Davis and for April 15, 2016, at 9:30 a.m. Id. Both
depositions are noticed for New York City, New York. Id.

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In her capacity as third-party defendant, Malka Silberman moves to
quash all four of the subpoenas, citing attorney-client privilege and attorney
work product doctrine. See Docket No. 220. The proof of service for these
subpoenas has not been filed with the court, but it appears Ms. Silberman
knew of the subpoenas at least as of April 8, 2016, because she has filed an
affidavit from her attorney indicating he protested the dates set for the
testimonial subpoenas to Mr. Foss on April 8. See Docket No. 221. Therefore,
the court assumes the subpoenas were served at least as of April 8. No
explanation is given for why Ms. Silberman waited until literally the eve of the
depositions to move to quash them. Ms. Silberman does not state in her
motion whether Mr. Davis or Mr. Citron have filed objections to either of the
subpoenas served on those gentlemen.
A person who is commanded to produce documents pursuant to a
subpoena duces tecum may serve on the party or attorney who issued the
subpoena written objections to producing the documents. See FED. R. CIV. P.
45(d)(2)(B). If such an objection is made, the party who served the subpoena
may move the court for the district where compliance is required for an order
compelling production of the documents. See FED. R. CIV. P. 45(d)(2)(B)(i).
On timely motion, the court for the district where compliance is required
must quash or modify a subpoena that, among other things, requires the
disclosure of privileged or other protected matter, if no exception or waiver
applies. See FED. R. CIV. P. 45(d)(3)(A). A person withholding subpoenaed
information pursuant to a claim of privilege or subject to protection must
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expressly make the claim of privilege and describe the nature of the withheld
documents without revealing information that is itself protected or privileged.
See FED. R. CIV. P. 45(e)(2). If the court where compliance is required did not
issue the subpoena, the court where compliance is required may transfer a
motion under this rule to the issuing court if the person subject to the
subpoena consents or if the court finds exceptional circumstances. See FED. R.
CIV. P. 45(f). Failure to obey a subpoena can be punished by contempt. See
FED. R. CIV. P. 45(g).
Ms. Silberman does not address in her motion whether she has standing
to challenge third-party subpoenas such as the ones called into issue by her
motion. Courts are divided on the issue. See Charels A. Wright, Arthur R.
Miller, Mary Kay Kane, Richard L. Marcus, and Adam N. Steinman, 9A Fed.
Prac. & Proc. Civ. § 2459 (3d ed.). Nor does Ms. Silberman acknowledge or
address in her motion the fact that these subpoenas require compliance in New
York, and that Rule 45 requires motions to quash subpoenas to be filed in the
court where compliance is required. No order from any federal district court in
New York has transferred Ms. Silberman’s motion to this court.
Ms. Silberman requests this court to quash the subpoena, or in the
alternative, to hold a hearing. Her motion was filed at 4:02 pm today, 5:02 pm
in New York where Mr. Foss is located, and Mr. Davis’ deposition is set to occur
tomorrow morning. The court is at a loss to see when there would be time for
such a hearing. Certainly, if Ms. Silberman had filed her motion on or near
April 8 when her attorney had notice of the subpoenas, there would have been
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time for the court to hear from other interested parties and from Mr. Davis and
Mr. Citron, either in writing or orally at a hearing.
Given the multiple legal and factual issues unaddressed by
Ms. Silberman’s motion, the fact that the motion was filed on the eve of the
performance required by the subpoenas, and the fact that other persons
interested in this matter have not been able to address the motion, the court
will neither stay the depositions nor condone them. Instead, the parties are
strongly encouraged to work out a compromise until full briefing on this matter
may be made. Both parties risk contempt sanctions absent such an
agreement. Based on the foregoing, it is hereby
ORDERED that Mr. Davis and Mr. Citron, should they desire to do so,
may file a brief addressing Ms. Silberman’s motion. For purposes of giving
notice to Mr. Davis and Mr. Citron of Ms. Silberman’s motion, Ms. Silberman is
directed to provide service of this order on Mr. Davis and Mr. Citron. It is
further
ORDERED that Mr. Foss shall file a brief addressing Ms. Silberman’s
motion no later than April 20, 2016. It is further
ORDERED that Ms. Silberman may file a reply to any briefs filed by
Mr. Foss, Mr. Davis, and Mr. Citron no later than April 25, 2016.
DATED this 13th day of April, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge
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