United States District Court, D. Nevada
BART STREET III, a Nebraska Limited Liability Company, Plaintiff,
ACC ENTERPRISES, LLC, a Nevada Limited Liability Company; ACC INDUSTRIES, INC., a Nevada corporation; CALVADA PARTNERS, LLC, a Nevada Limited Liability Company; Defendants.
LAW FIRM, P.C. Daniel R. McNutt, Esq., Bar No. 7815 Matthew
C. Wolf, Esq., Bar No. 10801 Counsel for Plaintiff Bart
ORDER ON (1) PLAINTIFF’S MOTION TO ESTABLISH
PROTOCOLS TO SEARCH DEFENDANTS’ TEXT MESSAGES (ECF NO.
173) (2) PLAINTIFF’S COUNTER-MOTION TO COMPEL (ECF NO.
178); AND (3) DEFENDANTS’ MOTION TO QUASH (ECF NO.
March 8, 2019, Plaintiff Bart Street III, LLC (“Bart
Street”) filed a motion to establish protocols to
search the text messages of Howard Misle and Peter Seltzer.
ECF No. 173. On March 27, 2019, Defendants Calvada Partners,
LLC; ACC Enterprises, LLC; and ACC Industries, Inc. filed a
motion to quash a subpoena duces tecum served on Fennemore
Craig, P.C. (“FC”) by Bart Street. ECF No. 175.
On April 3, 2019, Bart Street opposed the motion (ECF No.
177) and also countermoved to compel Defendants to respond to
Rule 34 requests for production (ECF No. 178). Following oral
arguments on May 1, 2019, this Court grants the motion to
establish protocols, denies the motion to quash, and grants
the countermotion to compel as set forth herein.
Motion to Establish Protocols (ECF No. 173).
respect to the text messages between Howard Misle and Peter
Seltzer, the relevant time period for the text messages is
January 1, 2016, through December 31, 2016. See the Audio
Recording of the May 1, 2019 Hearing (“Audio”) at
around twenty-one minutes and five seconds
(“21:05”). Bart Street will pay for a third-party
vendor, Holo Discovery, to handle the production of the text
messages as further described infra. Id. 14:52.
before May 15, 2019, Defendants will provide Bart Street and
Holo the names and phone No. of all customers, such as but
not limited to spouses and attorneys, that Defendants
consider to be a source of privilege and may have exchanged
text messages with Misle and Seltzer during the relevant time
period. See Audio 17:00, 30:50.
before May 29, 2019, Holo will provide all counsel a report
identifying each text message within the relevant time period
by its date and the phone numbers. Id. 22:00 –
23:05, 30:10. The report will not reveal the substance of any
text messages. Id.
before June 5, 2019, Defendants will review the report and
inform Bart Street and Holo if any additional phone No.
identified therein are privileged, and if so, also will
provide the name of the person associated with each such
number. Id. 31:35.
do not object to the search terms proposed by Bart Street.
See Audio 30:00. After Defendants have identified all phone
No. for all spouses and attorneys and other privileged
customers, Holo will use the terms to search within the
non-privileged text messages exchanged during the relevant
time period and then will provide the responsive text
messages to Defendants. Id. 19:35, 28:20. Within two
weeks of receiving the text messages from Holo, Defendants
must produce the nonprivileged text messages to Bart Street.
Id. 31:55. For any text messages not produced to
Bart Street or produced with any redactions, Defendants must
provide a privilege log identifying each withheld text
message, the name and phone No. of each person involved with
the text message, and an explanation of the basis for the
privilege. Id. 15:30, 17:00, No. 29:30.
Motion to Quash (ECF No. 175) and Counter-Motion to Compel
(ECF No. 178)
Court denies Defendants’ motion to quash the subpoena
to FC. The Court overrules Defendants and FC’s
objection to the timing of the subpoena and the requests for
production. See Audio 41:40.
Court grants Bart Street’s countermotion to compel with
respect to the documents encompassed by requests # 4 and #6
in Bart Street’s subpoena duces tecum to FC. See Audio
59:40 - 59:50. Specifically, Defendants and FC must produce
the transactional documents requested in request for
production #4 in the subpoena to FC to the extent that any
such documents exist, or otherwise respond to Plaintiff by
stating that such documents have already been produced and
provide the corresponding bates No. of such documents to
request #6 in the subpoena to FC, Defendants and FC must
produce the documents Defendants or FC exchanged with any of
the Canadian investors concerning any capital infusion from
any of the investors or any assets or liabilities of any
Defendant. Id. 53:45 - 55:15. FC and Defendants must
also produce the correspondence they exchanged with any of
the Canadian investors about any of the topics with respect
to request #6. Id. If Defendants or FC contend that
any documents are privileged, then they must provide a
privilege log. Id. 56:00.