RTC v . Glachman CV-95-29-SD 09/26/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
The Resolution Trust Corporation
v. Civil N o . 95-29-SD
Donald Glachman, et al
O R D E R
Plaintiff The Resolution Trust Corporation (RTC) moves to compel the production of certain documents. Document 1 7 . Defendant objects. Document 1 9 . By medium of assented-to motion, plaintiff has filed its response to said objection. Document 2 2 .
1. Background
In early June 1995 plaintiff served its first request for
production of documents on defendants. Exhibit A to Document 1 7 .
In an unexecuted draft response1 (Exhibit B to Document 1 7 ) ,
defendants claimed for the most part that the documents could not
be produced because they had either been subpoenaed by (¶¶ 3 , 4 ,
1 Although the response was sent to counsel for RTC, it was not executed because defendants' pro hac vice counsel, Attorney Rothman, claimed that he necessarily had to procure the signature to the response from local counsel. 5 of Exhibit B to Document 17) or "delivered to" the Federal Bureau of Investigation (FBI) (¶¶ 7 , 8 , 9, 1 0 , 1 1 , 1 2 , 1 3 , 1 4 , 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 3 1 , 3 2 , 3 3 , 3 4 , 3 5 , 3 6 , 3 7 , 4 1 , 4 2 , 4 3 , 4 4 , 4 5 , 4 6 , 47 of Exhibit B to Document 1 7 ) , and therefore were not considered by defendants to be in the defendants' custody, control, or possession. Id.
In defendants' memo of August 2 1 , 1995, which is attached to their objection to the instant motion, Attorney Rothman avers that he "never stated that the records were obtained by the FBI nor the RTC pursuant to a subpoena." Memo attached to Document 1 9 , at 3 . This statement is in direct contradiction to paragraphs 3 , 4 , and 5 of Exhibit B to Document 1 7 .
In addition, by medium of affidavit of August 1 4 , 1995, defendant Richard Glachman states that the FBI took all of the sought records without subpoena from his personal office at 801 Axxin Avenue, Garden City, New York. Affidavit of Richard Glachman attached to Document 1 9 , at 1 , 2 . His affidavit further states that FBI Agent Henry Gittleman notified Glachman's personal attorney in early 1995 that all the records that had been taken from 801 Axxin Avenue would be released and that Glachman's office should arrange to have them sent to Florida or wherever defendant desired. Id. at 2 . The affidavit adds that
2 in response thereto at least fourteen telephone calls were
directed to Gittleman, which went unanswered. Id. at 2 .
Attorney Rothman also attached his affidavit of August 1 8 ,
1995, to the defendants' objection. Therein he claims that he
spoke with Agent Gittleman by telephone on August 1 8 , 1995, and
that Gittleman advised that the records sought were in possession of the FBI and could be delivered upon the approval of Assistant
United States Attorney Martin Coffee. Affidavit of Jessel
Rothman attached to Document 1 9 , at 1 . The Rothman affidavit
further details a telephone conversation with Assistant United
States Attorney Coffee on August 1 8 , 1995, wherein Coffee
allegedly told Rothman that 80 percent of his file was sent to
RTC. Id. at 2 . The affidavit concludes that, based on his
discussion with AUSA Coffee, Rothman believes RTC has received
approximately 90 percent of the documents requested. Id. at 2 .
RTC has attached to its response to defendants' objection an
affidavit executed on August 2 2 , 1995, by Agent Gittleman.
Affidavit of Agent Gittleman attached to Document 2 2 . Gittleman
states therein that at no time between March 1991 and November
1991, nor forward from January 1993 to date, has he o r , to the
best of his knowledge, any other FBI agent obtained any documents
from the 801 Axxin Avenue address. Affidavit of Henry Gittleman
attached to Document 2 2 , at 1 , 2 . The affidavit further states
3 that in October 1991 Agent Gittleman obtained approximately 40
boxes of documents from a garage in Baldwin, New York, to which
he had been directed by one Donald Fugere, who identified himself
as a former employee of Richard Glachman's professional
corporation. Id. The Gittleman affidavit concludes by stating
that Gittleman never has discussed with Glachman's attorney any records taken by the FBI from the Axxin Avenue address. Id.
at 2 .
2. Discussion
Resolution of the issues here presented requires application of Rule 3 7 , Fed. R. Civ. P., which provides "a mechanism for addressing failures to cooperate in discovery." United States v . One 1987 BMW 325, 985 F.2d 655, 660 (1st Cir. 1993). 2 It is to be read in conjunction with Rule 3 4 , Fed. R. Civ. P.,3 which "authorizes the broadest sweep of access, inspection,
examination, testing, copying, and photographing of documents or objects in the possession or control of another party." 8A
2 Entitled "Failure to Make Disclosure or Cooperate in Discovery: Sanctions", Rule 37 contains numerous provisions to compel discovery by medium of application for order to the court in which the action is pending. Id., Rule 37(a)(1). 3 Entitled "Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes", Rule 34 sets forth the procedures by which parties may request and procure documents and other discovery items.
4 WRIGHT, MARCUS & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2206, at 379 (West 1994). The initial suggestion made by defendants was to the effect that the F B I had the documents sought by plaintiff, some of which had been subpoenaed. The subsequent affidavit of M r . Glachman contends that he never claimed that the documents were subpoenaed, but they were seized from the Axxin Avenue address without subpoena. The affidavit of Attorney Rothman suggests that the documents sought were turned over by Agent Gittleman to AUSA Coffee and in turn sent to R T C .
These claims are demonstrably deprived of credence by Agent Gittleman's affidavit, wherein he states that no documents were taken from the Axxin Avenue address, nor was there any
conversation with any attorney to the contrary. In light of the circumstances here presented, the motion to compel is granted. Defendants are to forward the documents detailed in plaintiff's first request for production to plaintiff's counsel within twenty (20) days of the date of this order.
The court further finds and rules that defendants shall have twenty (20) days from the date of this order in which to show the court, by written brief, that circumstances surrounding their failure to timely respond to plaintiff's discovery requests make an otherwise mandatory award of expenses unjust. See Rule
5 37(a)(4)(A), Fed. R. Civ. P.4
3. Conclusion
For the reasons hereinabove set forth, the motion to compel
is granted, and defendants are to turn over the documents
requested within twenty (20) days of the date of this order. Defendants are also allowed twenty (20) days in which to file
their brief contesting the application of an award of expenses to
the plaintiffs.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
September 2 6 , 1995
4 The issuance of costs upon granting a motion to compel is expressed in the rule in mandatory terms.
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RTC v . Glachman CV-95-29-SD 09/26/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
The Resolution Trust Corporation
v. Civil N o . 95-29-SD
Donald Glachman, et al
O R D E R
Plaintiff The Resolution Trust Corporation (RTC) moves to compel the production of certain documents. Document 1 7 . Defendant objects. Document 1 9 . By medium of assented-to motion, plaintiff has filed its response to said objection. Document 2 2 .
1. Background
In early June 1995 plaintiff served its first request for
production of documents on defendants. Exhibit A to Document 1 7 .
In an unexecuted draft response1 (Exhibit B to Document 1 7 ) ,
defendants claimed for the most part that the documents could not
be produced because they had either been subpoenaed by (¶¶ 3 , 4 ,
1 Although the response was sent to counsel for RTC, it was not executed because defendants' pro hac vice counsel, Attorney Rothman, claimed that he necessarily had to procure the signature to the response from local counsel. 5 of Exhibit B to Document 17) or "delivered to" the Federal Bureau of Investigation (FBI) (¶¶ 7 , 8 , 9, 1 0 , 1 1 , 1 2 , 1 3 , 1 4 , 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 3 1 , 3 2 , 3 3 , 3 4 , 3 5 , 3 6 , 3 7 , 4 1 , 4 2 , 4 3 , 4 4 , 4 5 , 4 6 , 47 of Exhibit B to Document 1 7 ) , and therefore were not considered by defendants to be in the defendants' custody, control, or possession. Id.
In defendants' memo of August 2 1 , 1995, which is attached to their objection to the instant motion, Attorney Rothman avers that he "never stated that the records were obtained by the FBI nor the RTC pursuant to a subpoena." Memo attached to Document 1 9 , at 3 . This statement is in direct contradiction to paragraphs 3 , 4 , and 5 of Exhibit B to Document 1 7 .
In addition, by medium of affidavit of August 1 4 , 1995, defendant Richard Glachman states that the FBI took all of the sought records without subpoena from his personal office at 801 Axxin Avenue, Garden City, New York. Affidavit of Richard Glachman attached to Document 1 9 , at 1 , 2 . His affidavit further states that FBI Agent Henry Gittleman notified Glachman's personal attorney in early 1995 that all the records that had been taken from 801 Axxin Avenue would be released and that Glachman's office should arrange to have them sent to Florida or wherever defendant desired. Id. at 2 . The affidavit adds that
2 in response thereto at least fourteen telephone calls were
directed to Gittleman, which went unanswered. Id. at 2 .
Attorney Rothman also attached his affidavit of August 1 8 ,
1995, to the defendants' objection. Therein he claims that he
spoke with Agent Gittleman by telephone on August 1 8 , 1995, and
that Gittleman advised that the records sought were in possession of the FBI and could be delivered upon the approval of Assistant
United States Attorney Martin Coffee. Affidavit of Jessel
Rothman attached to Document 1 9 , at 1 . The Rothman affidavit
further details a telephone conversation with Assistant United
States Attorney Coffee on August 1 8 , 1995, wherein Coffee
allegedly told Rothman that 80 percent of his file was sent to
RTC. Id. at 2 . The affidavit concludes that, based on his
discussion with AUSA Coffee, Rothman believes RTC has received
approximately 90 percent of the documents requested. Id. at 2 .
RTC has attached to its response to defendants' objection an
affidavit executed on August 2 2 , 1995, by Agent Gittleman.
Affidavit of Agent Gittleman attached to Document 2 2 . Gittleman
states therein that at no time between March 1991 and November
1991, nor forward from January 1993 to date, has he o r , to the
best of his knowledge, any other FBI agent obtained any documents
from the 801 Axxin Avenue address. Affidavit of Henry Gittleman
attached to Document 2 2 , at 1 , 2 . The affidavit further states
3 that in October 1991 Agent Gittleman obtained approximately 40
boxes of documents from a garage in Baldwin, New York, to which
he had been directed by one Donald Fugere, who identified himself
as a former employee of Richard Glachman's professional
corporation. Id. The Gittleman affidavit concludes by stating
that Gittleman never has discussed with Glachman's attorney any records taken by the FBI from the Axxin Avenue address. Id.
at 2 .
2. Discussion
Resolution of the issues here presented requires application of Rule 3 7 , Fed. R. Civ. P., which provides "a mechanism for addressing failures to cooperate in discovery." United States v . One 1987 BMW 325, 985 F.2d 655, 660 (1st Cir. 1993). 2 It is to be read in conjunction with Rule 3 4 , Fed. R. Civ. P.,3 which "authorizes the broadest sweep of access, inspection,
examination, testing, copying, and photographing of documents or objects in the possession or control of another party." 8A
2 Entitled "Failure to Make Disclosure or Cooperate in Discovery: Sanctions", Rule 37 contains numerous provisions to compel discovery by medium of application for order to the court in which the action is pending. Id., Rule 37(a)(1). 3 Entitled "Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes", Rule 34 sets forth the procedures by which parties may request and procure documents and other discovery items.
4 WRIGHT, MARCUS & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2206, at 379 (West 1994). The initial suggestion made by defendants was to the effect that the F B I had the documents sought by plaintiff, some of which had been subpoenaed. The subsequent affidavit of M r . Glachman contends that he never claimed that the documents were subpoenaed, but they were seized from the Axxin Avenue address without subpoena. The affidavit of Attorney Rothman suggests that the documents sought were turned over by Agent Gittleman to AUSA Coffee and in turn sent to R T C .
These claims are demonstrably deprived of credence by Agent Gittleman's affidavit, wherein he states that no documents were taken from the Axxin Avenue address, nor was there any
conversation with any attorney to the contrary. In light of the circumstances here presented, the motion to compel is granted. Defendants are to forward the documents detailed in plaintiff's first request for production to plaintiff's counsel within twenty (20) days of the date of this order.
The court further finds and rules that defendants shall have twenty (20) days from the date of this order in which to show the court, by written brief, that circumstances surrounding their failure to timely respond to plaintiff's discovery requests make an otherwise mandatory award of expenses unjust. See Rule
5 37(a)(4)(A), Fed. R. Civ. P.4
3. Conclusion
For the reasons hereinabove set forth, the motion to compel
is granted, and defendants are to turn over the documents
requested within twenty (20) days of the date of this order. Defendants are also allowed twenty (20) days in which to file
their brief contesting the application of an award of expenses to
the plaintiffs.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
September 2 6 , 1995
4 The issuance of costs upon granting a motion to compel is expressed in the rule in mandatory terms.
If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that . . . the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Rule 37(a)(4)(A), Fed. R. Civ. P.
6 cc: H . Jonathan Meyer, Esq. Robert E . Hirshon, Esq. Jessel Rothman, Esq. James P. Bassett, Esq.