JW Gaming Development, LLC v. James

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 JW GAMING DEVELOPMENT, LLC, Case No. 18-cv-02669-WHO (RMI)

9 Plaintiff, ORDER RE: DISCOVERY DISPUTE 10 v. Re: Dkt. Nos. 354, 355 11 ANGELA JAMES, et al., 12 Defendants.

13 14 Now pending before the court are a pair of unilaterally-filed discovery dispute letter briefs 15 (dkts. 354, 355) that can best be characterized as Plaintiff JW Gaming’s motion to compel 16 Defendant Pinoleville Pomo Nation (“Tribe”) to provide responses and to tender production 17 pertaining to the first sets of Plaintiff’s post-judgment interrogatories and requests for production.1 18 As stated below, Plaintiff’s request to compel this discovery is granted and the Tribe’s objections 19 are overruled. 20 As mentioned in a recent order (dkt. 352) denying the Tribe’s request to quash a subpoena, 21 on April 29, 2021, the presiding judge referred various matters pertaining to post-judgment 22 discovery and enforcement of judgment to the undersigned for resolution (see dkt. 328). Plaintiff 23 and the Tribe are at an impasse concerning 11 interrogatories (see (dkt. 354-3) at 3-4) and 13 24 25 1 It should not go without mention that the currently pending letter briefs are not compliant with the provisions set forth in the General Standing Order of the undersigned. This is particularly disappointing 26 because the Parties were specifically directed (see Order (dkt. 348) at 1) to take care to comply with those provisions. Apparently, counsel for the Tribe was for some unarticulated reason unable to meet the deadline 27 for this filing, which caused the parties to have to file separately and which also caused counsel for the Tribe to take the liberty of singlehandedly exceeding the total combined page allowance for what would be 1 requests for production (see (dkt. 354-1) at 4-5). In short, the Tribe has refused to respond to any 2 of the propounded interrogatories while refusing to produce any of the requested information, all 3 on the basis of a number of generalized objections as well as thirteen “specific” objections that 4 appear to be only applicable to the requests for production. See generally Def.’s Ltr. Br. (dkt. 355) 5 at 1-8. By way of introductory statements, the Parties frame their respective positions in a manner 6 that, by now, has become abundantly familiar to the court. Plaintiff submits that “[t]he Tribe is 7 seeking to obstruct JW Gaming’s enforcement of its $8.5 million judgment . . . by, among other 8 things, refusing to produce any discovery . . . [while resting on] responses [that] consist of blanket, 9 boilerplate objections declining to provide even basic information such as identifying the locations 10 of the Tribe’s bank accounts, entities in which the Tribe has any beneficial interest, and substantial 11 assets that the Tribe has acquired since 2020.” Pl.’s Ltr. Br. (dkt. 354) at 1. Further, Plaintiff 12 submits that it has learned from certain bank records that it has gathered through the subpoena 13 process that “the Tribe is actively moving money to new accounts at a small bank in Denver, 14 Colorado, and moving money in and out of [] [the] ‘Pinolevolle Pomo Nation Circle of Nations 15 Lending Account,’ . . . a vehicle the Tribe has formed to make high-interest consumer loans via 16 the internet . . .” Id. Meanwhile, in addition to expressing certain concerns about the “temporal and 17 substantive scope” of the discovery requests in question, the Tribe continues to reiterate its 18 contention that it “has not waived, nor will it waive” its sovereign immunity. See Def.’s Ltr. (dkt. 19 355) at 1. 20 Of course, this argument has already been rejected several times in the course of this case. 21 First, Judge Orrick held (in October of 2018) that that Defendants’ motion to dismiss was due to 22 be denied because, inter alia, “the Tribal Defendants are not entitled to sovereign immunity.” See 23 Order Denying Defendants’ Motion to Dismiss (dkt. 55) at 1. Then, the Tribal Defendants took an 24 interlocutory appeal but failed to upset that holding. See Mem. Op. (dkt. 123) at 2-3. Neither did 25 the Tribal Defendants succeed in convincing the Supreme Court to upset that holding (see dkts. 26 165, 183). Thereafter, leaving no room for any doubt, in entering judgment in favor of Plaintiff’s 27 breach of contract claim, Judge Orrick held that “[t]he Tribe clearly and unequivocally waived its 1 Judgment (dkt. 178) at 12. In similar fashion, the Tribe also suggests that “the Limitation of 2 Recourse provisions [in the Promissory Note at issue in this case] plainly prohibit JW from 3 discovering non-gaming revenue assets[] [a]nd since it is undisputed that there are no gaming 4 revenues, because the Tribe has no casino, there are no assets to discover.” See generally Def.’s 5 Ltr. Br. (dkt. 355) at 3-5. However, the Tribe’s interpretation of this contract provision has also 6 been already litigated and rejected. In January of 2020, Judge Orrick found that the language of 7 the Promissory Note in question and the undisputed facts “show that the Tribe has breached the 8 parties’ agreement.” Order on Motion for Summary Judgment (dkt. 178) at 8. In that context, the 9 Tribe argued (as is the case again here) that “there can be no liability for failure to make payment 10 on the Note because there are no casino revenues from which to pay.” Id. In rejecting this 11 argument, Judge Orrick explained that in order “[t]o find that JW Gaming is entitled to payment 12 only in the event that casino revenues exist would render meaningless the alternate maturity date 13 and the ‘immediately due and payable’ language. The interpretation I adopt is the only one that 14 gives effect to the Maturity Date provisions of the Note.” Id. at 9. Accordingly, to the extent that 15 the Tribe seeks to rely on objections based in already-rejected arguments for resisting the post- 16 judgment discovery at issues here, such as its assertions of sovereign immunity, and its assertions 17 regarding its already-rejected interpretation of the Promissory Note’s Limitation of Recourse 18 provisions, those objections represent nothing more than an attempt to replow the same ground 19 (see Def.’s Ltr. Br. (dkt. 355) at 2-5) and are therefore OVERRULED. Additionally, since these 20 are the only arguments upon which the Tribe specifically relies in refusing to answer the 11 21 propounded interrogatories, and since the undersigned’s review of those interrogatories (see Exh-3 22 to Pl.’s Ltr. Br. (dkt. 354-3) at 2-4) leads the undersigned to independently conclude that the 23 interrogatories are narrowly tailored and reasonably calculated to secure relevant and necessary 24 information that would aid Plaintiff in searching for and tracing the Tribe’s assets in its effort to 25 execute the Judgment entered in its favor, Plaintiff’s request to compel the Tribe to provide 26 answers to the propounded interrogatories is GRANTED and the Tribe shall do so on or before 27 1 12:00 noon on Wednesday, June 16, 2021.2 2 As to Plaintiff’s 13 requests for production (“RFP”) (see Exh-1 to Pl.’s Ltr. Br. (dkt. 354- 3 1) at 2-5), the Tribe has provided 10 point-for-point sets of undeveloped boilerplate objections in 4 its letter brief (see Def.’s Ltr. Br. (dkt. 355) at 5-8) which the undersigned will address 5 individually. However, at the outset, the undersigned will note that the Tribe has failed to lodge 6 any specific objections to RFP Nos. 3, 4, and 11. See generally id. at 1-8. Accordingly, Plaintiff’s 7 requests to compel production of the materials3 described in RFP No. 3 (documents reflecting 8 indebtedness in excess of $50,000 as of January 1, 2021), RFP No. 4 (various financial and 9 accounting records), and RFP No. 11 (certain types of audit reports) are GRANTED and those 10 materials shall be produced on or before 12:00 noon on Wednesday, June 16, 2021. 11 As to the remainder, RFP No. 1 seeks communications between the Tribe and any creditors 12 from January 1, 2020, up to the date of production – to which the Tribe objects by arguing that the 13 request “is overbroad and improperly seeks private information.” Id. at 5. The undersigned 14

15 2 It should be noted that the Tribe presented more specific objections directly to Plaintiffs when it refused to 16 answer the interrogatories that were propounded. See generally Exh-4 to Pl.’s Ltr. Br. (dkt. 354-4) at 2-4. However, in its unilaterally filed letter brief (dkt. 355) the Tribe abandoned those objections and focused its 17 opposition to answering Plaintiff’s letter brief (at least as to the interrogatories) in more general terms that focus on its assertions that seek to re-litigate its sovereign immunity and “Limitations of Recourse” 18 arguments (see generally id. at 1-8). It is well established that in evaluating a motion to compel, the court does not simply look to and rely on objections raised only in the response to the original discovery request. 19 See e.g., Olmos v. Ryan, No. CV-17-3665-PHX-GMS (JFM), 2020 U.S. Dist. LEXIS 67701, at *4-5 (D. Ariz. Apr. 17, 2020). Instead, “[w]hen ruling upon a motion to compel, the court generally considers those 20 objections which have been timely asserted and relied upon in response to the motion . . . [and] generally deems objections initially raised but not relied upon in response to the motion as abandoned. It deems 21 objections not initially raised as waived.” Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999) (emphasis supplied); Hupp v. San Diego Cnty., 2014 U.S. Dist. LEXIS 22 52741, 2014 WL 1404510, at *7 (S.D. Cal. Apr. 10, 2014) (same); Bryant v. Armstrong, 285 F.R.D. 596, 604 (S.D. Cal. 2012) (addressing only the objections raised in a party’s opposition to a motion to compel 23 where the party raised multiple boilerplate objections in its initial responses to discovery requests, but did not support or explain those objections in its opposition to a motion to compel); Dolquist v. Heartland 24 Presbytery, 221 F.R.D. 564, 568 n.16 (D. Kan. 2004) (“objections initially raised but not relied upon in response to a motion to compel are deemed abandoned”); In re Toys “R” Us-Del., Inc. Fair & Accurate 25 Credit Transactions Act (FACTA) Litig., 2010 U.S. Dist. LEXIS 130884, 2010 WL 4942645, at *3 (C.D. Cal. July 29, 2010) (same). In this regard, despite the fact that the Tribe has clearly abandoned the 26 objections presented in its response to the interrogatories by failing to include them in its unilaterally filed letter brief (compare dkt. 354-4 at 2-4, with dkt. 355 at 1-8), the undersigned has nevertheless reviewed and 27 considered those objections and finds them to be wholly unpersuasive and due to be overruled even had they not been so clearly abandoned. 1 disagrees. As recently explained, the scope of post-judgment discovery is “very broad” and there 2 is a presumption in favor of full discovery of any and all matters that are even arguably related to 3 Plaintiff’s efforts to find or trace the Tribe’s assets and to otherwise enforce its judgment. See 4 Order (dkt. 352) at 9) (citing United States v. Conces, 507 F.3d 1028, 1040 (6th Cir. 2007); 5 Comerica Bank v. Esshaki, 314 F. Supp. 3d 832, 833 (E.D. Mich. 2018); Gen. Star Nat. Ins. Co. v. 6 Administratia Asigurarilor de Stat, 713 F. Supp. 2d 267, 286 n.9 (S.D. N.Y. 2010); and, Credit 7 Lyonnais, S.A. v. SGC Int’l, Inc., 160 F.3d 428, 431 n.9 (8th Cir. 1998)). Neither is the 8 undersigned persuaded by the Tribe’s bare mention of its privacy rights as any such concerns are 9 adequately addressed by the protective order that was previously entered in this case (see dkts. 10 102, 104, 106). Therefore, the Tribe’s objection as to RFP No. 1 is OVERRULED. 11 RFP No. 2 seeks all bank statements for each and every account owned, controlled, or held 12 by the Tribe that are dated between January 1, 2020, and the date of production. Def.’s Ltr. Br. 13 (dkt. 355) at 6. The Tribe responds to the effect that this request “is now overbroad and unduly 14 burdensome as oppressive as JW’s counsel has already received the banking information from 15 WestAmerica Bank for which Tribe should not have to needlessly repeat the exercise.” Id. 16 Plaintiff’s unilaterally filed letter brief does not seem to address this particular contention (see 17 Pl.’s Ltr. Br. (dkt. 354) at 1-4) – which is precisely the reason that this court imposes a joint filing 18 requirement for the presentation of discovery disputes (such as to foster a narrowing of the issues), 19 however, the acrimony between these parties has reached such a fever pitch that they are unable to 20 even coordinate their arguments to address contentions raised by one another. Thus, the Tribe’s 21 objection in this regard is SUSTAINED in part but only to the extent that the Tribe will not have 22 to produce the documents from WestAmerica Bank that Plaintiff has already received through the 23 subpoena process. In all other respects (that is, as to any other bank statements that have not 24 already been received by Plaintiff as part of the WestAmerica Bank subpoena), the Tribe’s 25 objection is OVERRULED. In order to identify those documents already received, such as to 26 avoid a duplication of effort and labor on the Tribe’s part in producing bank statements under this 27 RFP that Plaintiff does not already possess, counsel for the parties are ORDERED to meet and 1 counsel who are permitted to practice here. In this regard, and given the history of the ever 2 deepening acrimony involved in this case, counsel are encouraged to consult and faithfully 3 implement the Guidelines for Professional Conduct found on the Court’s website.4 4 RFP No. 5 (resolutions generated, enacted, or adopted by the Tribe between January 1, 5 2017 and the date of production), RFP No. 6 (all of the Tribe’s laws and ordinances), and RFP No. 6 13 (all minutes of each meeting of the Tribal Council from January 1, 2019 to the present) are 7 opposed by the Tribe based on the repeating of the same boilerplate objection relied upon in 8 resisting RFP No. 1 – that is, an assertion that the request is overbroad and seeks private 9 information. See Def.’s Ltr. Br. (dkt. 355) at 6, 7-8. Initially, due to the lack of any development 10 or explanation in these boilerplate objections, it is difficult to imagine how the promulgation of a 11 law or an ordinance might constitute “private information” as the Tribe suggests; nevertheless, for 12 the reasons described above, the undersigned finds that these requests are not overly broad and 13 that they fall well within the “very broad” scope of post-judgment discovery in that each request 14 appears calculated to finding or tracing the Tribe’s assets, or that they are otherwise useful in 15 enforcing the Judgment. Further, any privacy concerns, legitimate or otherwise, would be 16 adequately addressed by the protective order mentioned above. Accordingly, the Tribe’s 17 objections to producing material responsive to RFP Nos. 5, 6, and 13 are OVERRULED. 18 In opposing RFP Nos. 7 and 8 (seeking documents related to two particular 19 “reconveyances” including the associated escrow files, communications with the creditor(s), all 20 associated billing statements, and evidence of payment of the debt(s) affiliated with that 21 transaction), as well as RFP Nos. 9 and 10 (seeking a similar series of documents related to a 22 particular grant deed transaction and a short form deed of trust and assignments of rents 23 transaction, including all the associated escrow files, certain communications involved in those 24 transactions, promissory notes, evidence of indebtedness, billing statements, evidence of 25 associated payment(s), and evidence of other conveyance(s) of value made as consideration for 26 said grant deed), the Tribe simply repeats, verbatim, the same boiler plate objection again and 27 1 again. See id. at 6-7. The gist of this objection is simply to contend that while the underlying 2 conveyance documents are within the scope of discovery, the request “is overbroad as to the entire 3 escrow and all communications [because] [t]he discovery should seek assets not all 4 communications and escrow documents that violate the Tribe’s and third-party rights of privacy.” 5 Id. at 6-7. The undersigned disagrees. As mentioned, the scope of post-judgment discovery is 6 “very broad” and encompasses all materials that can even arguably be suggested to be relevant to 7 the finding or tracing of assets, or to the enforcement of the judgment. Nothing in the Tribe’s rote 8 reiteration of its boilerplate objection undermines the contention that the information sought in 9 RFP Nos. 7 through 10 falls within that scope. Nor has the Tribe developed its privacy contention 10 through cogent argument that might convince the undersigned that the protective order in place in 11 this case is somehow inadequate in addressing the Tribe’s assertions of privacy. Accordingly, as to 12 RFP Nos. 7 through 10, the Tribe’s objections are OVERRULED. 13 Lastly, RFP No. 12 seeks all documents relating to “financial progress reports” submitted 14 to the federal government by the Tribe in connection with the Tribe’s receipt of funds under the 15 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Id. at 7. In this regard, the 16 Tribe objects to the following effect: “This category is overbroad as it has no time frame and seeks 17 information that could potentially go back decades and which is not within the proper scope of 18 discovery.” Id. This single sentence objection is confusing – given that the CARES Act was 19 embodied in a bill passed by the 116th Congress and signed into law by the President on March 20 27, 2020, it is unclear why the Tribe suggests that financial progress reports submitted by the 21 Tribe relating to funds received under this 14-month old enactment “could potentially go back 22 decades.” Contrary to the Tribe’s contention that RFP No. 12 seeks information “that has no time 23 frame” and “could potentially go back decades,” this objection is meritless and is OVERRULED. 24 // 25 // 26 // 27 // 1 CONCLUSION 2 Accordingly, in accordance with the rulings described above, the Tribe is herewith 3 ORDERED to produce responsive documents and materials related to the above-discussed RFPs 4 || and responsive answers to each of Plaintiff's propounded interrogatories, on or before 12:00 noon 5 on Wednesday, June 16, 2021. 6 IT IS SO ORDERED. 7 Dated: June 11, 2021 8 9 RQBERT M. ILLMAN 10 United States Magistrate Judge 11 a 12 15 16

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