Bank of Mongolia v. M & P Global Financial Services, Inc.

258 F.R.D. 514, 2009 U.S. Dist. LEXIS 39239, 2009 WL 1117312
CourtDistrict Court, S.D. Florida
DecidedApril 24, 2009
DocketNo. 08-60623-CIV
StatusPublished
Cited by23 cases

This text of 258 F.R.D. 514 (Bank of Mongolia v. M & P Global Financial Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514, 2009 U.S. Dist. LEXIS 39239, 2009 WL 1117312 (S.D. Fla. 2009).

Opinion

ORDER

ROBIN S. ROSENBAUM, United States Magistrate Judge.

This matter is before the Court upon Plaintiffs Motion to Compel Response to Plaintiffs Request for Documents From Defendants M & P Global Financial Services, Inc., M & P Global Financial Services Europe, AG, Burton D. Greenberg, and Joel E. Greenberg (“M & P Defendants”) [D.E. 51, 52]. A hearing was held on April 20, 2009, where the parties to the Motion appeared and presented argument. The Court considered Plaintiffs Motion, all opposing and responsive filings and briefs, and the parties’ arguments at the April 20th hearing, and [516]*516orally granted Plaintiff’s Motion. This Order memorializes the Court’s oral holdings regarding the Motion.

J. Background

Plaintiff Bank of Mongolia filed its Complaint on April 28, 2008, alleging that the M & P Defendants, along with Defendant James R. Halperin, conspired to defraud Plaintiff of $23 million dollars, in violation of the Racketeer Influenced and Corrupt Organization Act (“RICO”). [D.E. 1], Specifically, Plaintiff claims that the M & P Defendants were a part of a RICO enterprise that fraudulently induced Plaintiff to issue financial instruments for the benefit of Defendants, which Defendants asserted were necessary to secure funding for an “Affordable Housing Initiative” in Ulaanbaatar, Mongolia. Id. According to the Complaint, the financial instruments were never actually supposed to be negotiated. Id. Once the financial instruments were issued by Plaintiff, however, Defendants and other members of the RICO enterprise caused them to be diverted and negotiated for Defendants’ own benefit. Id.

During the course of discovery, Plaintiff served the M & P Defendants with a Request for Documents. [See D.E. 51, 52, 62]. Defendants’ response was due on February 11, 2009, but Defendants did not respond. Id. According to Plaintiff, on February 12, 2009, Plaintiffs counsel sent an e-mail to the M & P Defendants’ counsel requesting information regarding when Plaintiff could expert a response, but, again, Plaintiff received no response. Id. Plaintiffs counsel then left a voice mail for the M&P Defendants’ counsel on February 17, 2009, requesting the same information, but Defendants once again failed to respond. Id.

In view of the absence of a discovery response and an explanation for the lack of a response, Plaintiff filed the Motion to Compel before the Court on February 19, 2009, requesting that the M & P Defendants be required to provide all responsive information to Plaintiffs document requests and that Plaintiff be granted fees and costs for having to file the Motion. [D.E. 51, 52]. Defendants’ response to Plaintiffs Motion was due on March 9, 2009, but Defendants filed no response. As a result, on March 16, 2009, the Court issued an Order to Show Cause directing that the M & P Defendants file their response by March 23, 2009. [D.E. 57].

On March 20, 2009, the M & P Defendants served Plaintiff with their one-page Response to Plaintiffs Request for Production. This Response stated, in its entirety,

1. The document requests in paragraph(s) 1, 2, 4, 5, 8, 11 (a through g), 12, 13, 14 and 17 were previously provided with [Defendants’] Initial Disclosure.
2. The documents requested in paragraph^) 3, 9, 10 and 15 are not in our possession.
3. The documents requested in paragraph® 6 and 7 will be provided in the near future, obtaining them from [a] foreign country.
4. In response to the documents requested in paragraph(s) 16-objection as too vague and burdensome.

[D.E. 58]. Defendants served no documents on Plaintiff with this Response.

The M & P Defendants then filed their Response to the Court’s Order to Show Cause on March 23, 2009. In their Response to the Court’s Order, Defendants assert that they incorrectly assumed that their Initial Disclosure, which was filed on January 22, 2009, was a response to Plaintiffs Request for Production. [D.E. 59]. In light of their service of a Response to Plaintiffs Request for Production on March 20, 2009, Defendants argue, Plaintiffs Motion should be denied. Id.

Plaintiff filed its Reply on March 30, 2009. [D.E. 62], In its Reply, Plaintiff argues that it is entitled to attorney’s fees and costs for the M & P Defendants’ failure to provide a valid explanation for not timely responding to Plaintiffs document requests. Id. Plaintiff also asserts that Defendants should be sanctioned for only partially producing responsive documents (in their January 22, 2009, Initial Disclosures) and for not otherwise addressing Plaintiffs other document requests. Id. Furthermore, Plaintiff claims that documents produced by third parties that are responsive [517]*517to Plaintiffs document requests and were not produced by the M & P Defendants demonstrate that the M & P Defendants withheld or engaged in spoliation regarding document requests 9, 12, and 11. Id. Additionally, Plaintiff contends that while some of Defendants’ responses indicate that responsive documents have been previously produced to Plaintiff, Plaintiff is unable to identify such documents in response to document requests 4, 12, and 13. Id. Plaintiff further urges that Defendants have waived all objections to Plaintiffs request for documents as a result of their failure to object in a timely fashion. Id. In light of the M & P Defendants’ failure to produce all responsive documents and the lack of a valid excuse, Plaintiff requests that Defendants be sanctioned for their conduct by allowing Plaintiff access to Defendants’ electronic records and computer hardware to allow Plaintiff to locate all responsive documents. Id.

On April 20, 2009, Plaintiff and the M & P Defendants presented argument at a hearing on Plaintiffs Motion. At the hearing, the Court inquired of the M & P Defendants as to whether they had provided all responsive documents to Plaintiff, as Defendants had indicated in paragraph 1 of Defendants’ Response to Plaintiffs Request for Production. The M & P Defendants conceded that they had not performed a search of all deleted and unsaved electronic documents and requested twenty days for Defendants’ own computer expert do a thorough search of all electronic documents, including deleted and unsaved documents. When the Court requested information regarding the steps that Defendants had taken to conduct a search for responsive documents, counsel for the M & P Defendants was not in a position at that time to set forth Defendants’ search methodology. Counsel for the M & P Defendants asserted, however, that some documents have been produced to Plaintiff in response to document requests 4 and 12.

The Court asked Plaintiff about the types of documents it believed where missing from the production made in response to document requests 4 and 12. Plaintiff explained that it had received documents from other entities that appeared should have been produced by the M & P Defendants but were not, including for example, responsive documents reflecting transactions to which the M & P Defendants were a party.

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258 F.R.D. 514, 2009 U.S. Dist. LEXIS 39239, 2009 WL 1117312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-mongolia-v-m-p-global-financial-services-inc-flsd-2009.