1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARK SHIN, Case No. 20-cv-07363-WHO
8 Plaintiff, ORDER RESOLVING DISCOVERY 9 v. AND CASE MANAGEMENT SCHEDULE DISPUTES AND 10 ICON FOUNDATION, RECONSIDERATION MOTION 11 Defendant. Re: Dkt. Nos. 147, 151, 155, 157
13 14 Before the court are several disputes that plaintiff Mark Shin has raised in the past month. 15 First, he seeks leave to file a motion for reconsideration of my order appointing a receiver. 16 Motion for Leave to File Motion for Reconsideration (“Reconsideration Motion”) [Dkt. No. 147]; 17 see also Order on Motion to Appoint Receiver [Dkt. No. 129]. Next, he seeks to extend the 18 discovery period by “at least 90-days.” He cites the recent resolution of a state court criminal case 19 in his favor, his counsel’s (relatively) recent appearance, the factual and procedural complexity of 20 the case, and numerosity of claims as “good cause” for this extension. Motion to Revise Case 21 Management Schedule (“CMS Motion”) [Dkt. No. 151]; Joint Letter Brief Regarding Plaintiff’s 22 Request to Extend Case Management Schedule (“CMS Letter”) [Dkt. No. 157]. Related to that 23 request, he also seeks specific information from ICON Foundation, outlined in a separate joint 24 discovery letter. He argues that ICON has been intentionally obfuscating important information 25 and identities of witnesses from him and asks this court to act on his behalf to overcome that 26 obfuscation. Joint Discovery Letter Brief (“Discovery Letter”) [Dkt. No. 155].1 27 1 Defendant ICON Foundation (“ICON”) opposes all of Shin’s requests. With respect to the 2 90-day discovery extension, ICON points out that Shin was already granted two case management 3 schedule extensions previously and did not comply with those timelines. Opposition to CMS 4 Motion (“Oppo.”) [Dkt. No. 156] 3-5. In answer to my questions at the Case Management 5 Conference on February 6, 2024, it noted that Shin never took a Fed. R. Civ. P. 30(b)(6) 6 deposition despite having ample opportunity to do so. It argues that Shin has failed to show good 7 cause for once again modifying the Case Management Schedule, that he has failed to act diligently 8 and should not be allowed to once again extend discovery when he cannot identify what new 9 information he can obtain that he was unable to seek in the previous three years. 10 These matters are all fully briefed, and I discussed them with the parties at the Case 11 Management Conference on February 6, 2024. I will rule on them now. The hearing set for 12 February 21, 2024, is VACATED. 13 A. Reconsideration 14 I DENY Shin’s motion for reconsideration of the Receivership Order that I issued on June 15 28, 2023. See Reconsideration Motion; see also Order Granting Motion to Appoint Receiver 16 (“Receivership Order”) [Dkt. No. 129]. That order arose from ICON’s motion that in the event 17 Shin is acquitted or otherwise not convicted in the then-pending Colorado state court case and the 18 FBI is required to release the cryptocurrency and fiat currency traceable to the tokens that he had 19 created using the bug, the FBI should be ordered to deliver those tokens to a court-appointed 20 receiver. I granted ICON’s motion because it showed a need for holding the seized assets to 21 preclude Shin from concealing or spending them. 22 The Colorado state court’s decision to dismiss the criminal charges that were pending 23 against Shin does not substantively change the need for the receiver. If anything, it strengthens 24 the need for it. My reasons for appointing the receiver are articulated in the Receivership Order. I 25 considered the Canada Life factors that Shin asks me to reconsider now in light of the Colorado 26 decision. My evaluation of those factors and their application to Shin’s situation is unchanged. In 27 1 first appointing the receiver, I determined that the property was in “imminent danger of being lost, 2 concealed, injured, diminished in value, or squandered,” based largely on ICON’s allegations that 3 Shin moved the ICX tokens in numerous ways, including funneling them through other 4 cryptocurrency exchanges and transferring them to relatives overseas. See Receivership Order 5 5:25-6:7 (quoting Canada Life Assurance Co. v. LaPeter, 560 F.3d 837, 843 (9th Cir. 2009)). That 6 risk is not mitigated by Shin’s acquittal in Colorado. 7 Other factors remain unchanged as well. Legal remedies would still be an inadequate 8 remedy as compared to the return of the seized assets in question, given their size and estimated 9 value. The interests that ICON seeks to protect via the receivership will still be well-served by 10 maintaining the receiver. In short, all these factors cut in favor of maintaining the receiver to hold 11 the seized assets pending completion of this litigation. 12 B. Discovery 13 1. 90-Day Extension 14 I will not grant Shin the 90-day discovery extension that he seeks. He argues that “good 15 cause” exists because his new counsel only appeared in the case five months ago, the case is 16 factually complicated and involves “multiple financial entities” and a “complicated cryptocurrency 17 network,” the P-Reps are still unidentified, that there are other, also unidentified ICON members 18 who received bug-generated ICX and were not prosecuted, and there are a “significant number” of 19 claims, including possible new claims to be developed in discovery. See CMS Motion 2:13-23. 20 All of that may be true, but it does not justify reopening discovery generally for 90 days. 21 This matter has been pending for three years. It has been litigated in Colorado where Shin 22 had counsel, and his new counsel has been in place for at least five months. I have granted him 23 two modifications to the Case Management Schedule already. See Dkt. Nos. 33 (original case 24 management schedule), 73 (modified), 142 (modified, current). He has had plenty of opportunity 25 to conduct discovery. The production of documents that Shin describes was not so voluminous to 26 make it impossible for his new counsel to evaluate it and timely serve subpoenas and interrogatory 27 requests. See id. 2:24-3:6. Shin complains that Thomas Aellis could not be deposed until January 1 case delay often occurs in litigation and is not a reason to reopen discovery. Id. 3:23-25. The 2 same is true for the other factors that Shin argues show good cause for a 90-day extension--the 3 ongoing legal action in Colorado, the time spent preparing for mediation, and the holidays were all 4 foreseeable by Shin and his team. See id. 4:5-10. I agree with ICON that it is inappropriate to 5 reopen discovery generally. 6 That said, Shin indicates that he has yet to obtain clarity over how others who benefited 7 from the software bug were treated and how the decision to take his tokens was made. He 8 characterizes ICON’s document productions as “systematically deficient” and states that 9 throughout discovery, “at almost every turn there would be a crucial piece of discovery that ICON 10 . . . failed to produce” and that its witnesses “feign[ed] ignorance and refuse[d] to disclose key 11 information.” Reply in Support of CMS Motion (“Reply”) [Dkt. No. 158] 6:1-8. He also alleges 12 that Shin’s counsel has been able to “prove that yet another P-Rep had gotten away with free ICX” 13 and that another “ICONBet community member who was actually rewarded by ICON for 14 reporting Mr. Shin had gotten away with free ICX.” Reply 6:7-10. He seeks the answers to more 15 specific technical questions as well. 16 It is mystifying to me that Shin has not previously requested a Fed. R. Civ. P. 30(b)(6) 17 deposition that would tie down ICON’s knowledge and position with respect to important issues in 18 the case.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARK SHIN, Case No. 20-cv-07363-WHO
8 Plaintiff, ORDER RESOLVING DISCOVERY 9 v. AND CASE MANAGEMENT SCHEDULE DISPUTES AND 10 ICON FOUNDATION, RECONSIDERATION MOTION 11 Defendant. Re: Dkt. Nos. 147, 151, 155, 157
13 14 Before the court are several disputes that plaintiff Mark Shin has raised in the past month. 15 First, he seeks leave to file a motion for reconsideration of my order appointing a receiver. 16 Motion for Leave to File Motion for Reconsideration (“Reconsideration Motion”) [Dkt. No. 147]; 17 see also Order on Motion to Appoint Receiver [Dkt. No. 129]. Next, he seeks to extend the 18 discovery period by “at least 90-days.” He cites the recent resolution of a state court criminal case 19 in his favor, his counsel’s (relatively) recent appearance, the factual and procedural complexity of 20 the case, and numerosity of claims as “good cause” for this extension. Motion to Revise Case 21 Management Schedule (“CMS Motion”) [Dkt. No. 151]; Joint Letter Brief Regarding Plaintiff’s 22 Request to Extend Case Management Schedule (“CMS Letter”) [Dkt. No. 157]. Related to that 23 request, he also seeks specific information from ICON Foundation, outlined in a separate joint 24 discovery letter. He argues that ICON has been intentionally obfuscating important information 25 and identities of witnesses from him and asks this court to act on his behalf to overcome that 26 obfuscation. Joint Discovery Letter Brief (“Discovery Letter”) [Dkt. No. 155].1 27 1 Defendant ICON Foundation (“ICON”) opposes all of Shin’s requests. With respect to the 2 90-day discovery extension, ICON points out that Shin was already granted two case management 3 schedule extensions previously and did not comply with those timelines. Opposition to CMS 4 Motion (“Oppo.”) [Dkt. No. 156] 3-5. In answer to my questions at the Case Management 5 Conference on February 6, 2024, it noted that Shin never took a Fed. R. Civ. P. 30(b)(6) 6 deposition despite having ample opportunity to do so. It argues that Shin has failed to show good 7 cause for once again modifying the Case Management Schedule, that he has failed to act diligently 8 and should not be allowed to once again extend discovery when he cannot identify what new 9 information he can obtain that he was unable to seek in the previous three years. 10 These matters are all fully briefed, and I discussed them with the parties at the Case 11 Management Conference on February 6, 2024. I will rule on them now. The hearing set for 12 February 21, 2024, is VACATED. 13 A. Reconsideration 14 I DENY Shin’s motion for reconsideration of the Receivership Order that I issued on June 15 28, 2023. See Reconsideration Motion; see also Order Granting Motion to Appoint Receiver 16 (“Receivership Order”) [Dkt. No. 129]. That order arose from ICON’s motion that in the event 17 Shin is acquitted or otherwise not convicted in the then-pending Colorado state court case and the 18 FBI is required to release the cryptocurrency and fiat currency traceable to the tokens that he had 19 created using the bug, the FBI should be ordered to deliver those tokens to a court-appointed 20 receiver. I granted ICON’s motion because it showed a need for holding the seized assets to 21 preclude Shin from concealing or spending them. 22 The Colorado state court’s decision to dismiss the criminal charges that were pending 23 against Shin does not substantively change the need for the receiver. If anything, it strengthens 24 the need for it. My reasons for appointing the receiver are articulated in the Receivership Order. I 25 considered the Canada Life factors that Shin asks me to reconsider now in light of the Colorado 26 decision. My evaluation of those factors and their application to Shin’s situation is unchanged. In 27 1 first appointing the receiver, I determined that the property was in “imminent danger of being lost, 2 concealed, injured, diminished in value, or squandered,” based largely on ICON’s allegations that 3 Shin moved the ICX tokens in numerous ways, including funneling them through other 4 cryptocurrency exchanges and transferring them to relatives overseas. See Receivership Order 5 5:25-6:7 (quoting Canada Life Assurance Co. v. LaPeter, 560 F.3d 837, 843 (9th Cir. 2009)). That 6 risk is not mitigated by Shin’s acquittal in Colorado. 7 Other factors remain unchanged as well. Legal remedies would still be an inadequate 8 remedy as compared to the return of the seized assets in question, given their size and estimated 9 value. The interests that ICON seeks to protect via the receivership will still be well-served by 10 maintaining the receiver. In short, all these factors cut in favor of maintaining the receiver to hold 11 the seized assets pending completion of this litigation. 12 B. Discovery 13 1. 90-Day Extension 14 I will not grant Shin the 90-day discovery extension that he seeks. He argues that “good 15 cause” exists because his new counsel only appeared in the case five months ago, the case is 16 factually complicated and involves “multiple financial entities” and a “complicated cryptocurrency 17 network,” the P-Reps are still unidentified, that there are other, also unidentified ICON members 18 who received bug-generated ICX and were not prosecuted, and there are a “significant number” of 19 claims, including possible new claims to be developed in discovery. See CMS Motion 2:13-23. 20 All of that may be true, but it does not justify reopening discovery generally for 90 days. 21 This matter has been pending for three years. It has been litigated in Colorado where Shin 22 had counsel, and his new counsel has been in place for at least five months. I have granted him 23 two modifications to the Case Management Schedule already. See Dkt. Nos. 33 (original case 24 management schedule), 73 (modified), 142 (modified, current). He has had plenty of opportunity 25 to conduct discovery. The production of documents that Shin describes was not so voluminous to 26 make it impossible for his new counsel to evaluate it and timely serve subpoenas and interrogatory 27 requests. See id. 2:24-3:6. Shin complains that Thomas Aellis could not be deposed until January 1 case delay often occurs in litigation and is not a reason to reopen discovery. Id. 3:23-25. The 2 same is true for the other factors that Shin argues show good cause for a 90-day extension--the 3 ongoing legal action in Colorado, the time spent preparing for mediation, and the holidays were all 4 foreseeable by Shin and his team. See id. 4:5-10. I agree with ICON that it is inappropriate to 5 reopen discovery generally. 6 That said, Shin indicates that he has yet to obtain clarity over how others who benefited 7 from the software bug were treated and how the decision to take his tokens was made. He 8 characterizes ICON’s document productions as “systematically deficient” and states that 9 throughout discovery, “at almost every turn there would be a crucial piece of discovery that ICON 10 . . . failed to produce” and that its witnesses “feign[ed] ignorance and refuse[d] to disclose key 11 information.” Reply in Support of CMS Motion (“Reply”) [Dkt. No. 158] 6:1-8. He also alleges 12 that Shin’s counsel has been able to “prove that yet another P-Rep had gotten away with free ICX” 13 and that another “ICONBet community member who was actually rewarded by ICON for 14 reporting Mr. Shin had gotten away with free ICX.” Reply 6:7-10. He seeks the answers to more 15 specific technical questions as well. 16 It is mystifying to me that Shin has not previously requested a Fed. R. Civ. P. 30(b)(6) 17 deposition that would tie down ICON’s knowledge and position with respect to important issues in 18 the case. While that is not the defendant’s fault, I am concerned that it would be difficult to 19 conduct a fair trial without ICON’s position having been squarely presented pretrial. I am 20 cognizant of Shin’s characterization of ICON as borderline obstructive throughout document 21 production, and of ICON’s witnesses’ alleged uncooperative behavior during the (admittedly 22 sparse) depositions. Without taking sides in that dispute, I want to ensure that ICON’s relevant 23 conduct and knowledge is sufficiently ventilated prior to trial. 24 Accordingly, within thirty days of the date below I will allow Shin to take one Fed. R. Civ. 25 P. 30(b)(6) deposition for no more than seven hours to, among other things, better understand 26 ICON’s knowledge and conduct with respect to him, the identities of relevant P-Reps, and how 27 and why those P-Reps and decision-makers chose to discipline him as opposed to other 2. Digital Wallets 1 Shin asks that I order ICON to produce “all ICX digital wallets known to be controlled by 2 any of its council members, employees, agents, P-Reps, service providers, and other affiliates.” 3 Discovery Letter 3-4. He claims that ICON is “shielding Shin from the full scope of the true facts 4 and access to material witnesses.” Discovery Letter at 2. He contends that his analysis of the 5 ICON blockchain transaction history has been incomplete because ICON failed to produce the 6 documents he requested, but that “recent production” has shown “various connections” between 7 the other individuals who received bug-generated ICX and the ICON team. Id. He says that 8 without the digital wallet information, he cannot determine among these individuals (a) who used 9 the bug, (b) what their relationship was to ICON, (c) what they did with their ICX, and (d) how 10 they knew about the bug. Discovery Letter 2. He proposes that the simplest solution is for ICON 11 to produce all the digital wallet information known to be controlled by ICON affiliates. Id. ICON 12 protests that it has already produced records to Shin identifying “all 395 wallet addresses” of the 13 395 “affected accounts” that received bug-generated ICX. Id. at 3. 14 I do not see how Shin’s newest request—unspecific as it is—will prompt ICON to produce 15 more informative or comprehensive discovery. As ICON points out, Shin has not identified and 16 seemingly cannot identify any of the 395 bug-affected wallet addresses that he contends is 17 associated with ICON or its affiliates. It argues that Shin’s most recent request is no more than a 18 fishing expedition to discover confidential financial information after ICON’s production in 19 response to his initial request yielded unsatisfactory results. Discovery Letter 4. 20 Perhaps the Fed. R. Civ. P. 30(b)(6) deposition will provide the answers Shin needs, or that 21 he will be able to highlight ICON’s allegedly unsatisfactory responses on material issues that 22 would lead me to reconsider whether to reopen discovery. At present, he has not succeeded in 23 doing so. 24 3. Blockchain IP Address Log Data 25 Shin also requests “IP log data related to all the digital wallets who have benefited from 26 the bug,” see Discovery Letter 5. ICON protests that it already produced all the IP Address log 27 data that Shin requested on February 5, 2024, four days after the discovery cut off. Id. But Shin 1 claims that ICON did not produce IP log data for “any transactions involving the user who 2 || triggered the bug 44 times.” Jd. I ORDER that ICON supplement its production to Shin on 3 || February 5 with any log data it has for the user who allegedly “triggered the bug 44 times.” To the 4 || extent that ICON has possession of and did not comply with Shin’s request for log data for the 5 complete time frame between Revision 9 and Revision 10, it should do that as well. See id. 5. 6 Shin may take a Fed. R. Civ. P. 30(b)(6) deposition of ICON within the next 30 days. That 7 and the discovery required in the preceding paragraph are the extent to which I am currently 8 || modifying the Case Management Schedule that I set on September 5, 2023,. Dkt. No. 142. If the 9 deposition discloses information that had been requested and should have been produced earlier, 10 and the parties cannot agree on additional discovery, they may bring the dispute to my attention 11 via a dispute letter. a (12 IT IS SO ORDERED.
a Dated: February 20, 2024 v 14 . ®
16 William H. Orrick United States District Judge
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