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Takahashi v. Cuyco

United States District Court, D. New Jersey

May 8, 2019

HIROKI TAKAHASHI, Plaintiff,
v.
RENATO CUYCO, et al., Defendants.

          MEMORANDUM AND ORDER

          DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Plaintiff Hiroki Takahashi's informal application to compel Defendant Lincoln Tan, Jr., to furnish responsive answers to Plaintiff's Interrogatories and Request for Production. ECF No. 127. Plaintiff contends Defendant's answers to Plaintiff's Interrogatories “include either baseless objections or are nonresponsive, ” and that Defendant “wholly failed to furnish any responses (or even object) to Plaintiff's Requests for Production.” Id. Defendant opposes the application. ECF Nos. 129-130. The Court has fully reviewed the submissions of the parties and heard oral argument on this matter on May 3, 2019. For the reasons set forth below as well as the reasons set forth on the record, Plaintiff's informal application is GRANTED.

         I. BACKGROUND

         Because the Court writes only for the parties, it recites only those facts necessary to its disposition.[1] Plaintiff commenced this action in June 2015 in the Eastern District of New York alleging, inter alia, breach of fiduciary duty, conversion, and fraud. ECF No. 1. Pursuant to the March 2018 Memorandum and Order of U.S. District Judge Roslynn R. Mauskopf, all claims were dismissed except “[D]efendant Cuyco's breach of fiduciary duty only insofar as he failed to disclose material facts as a co-member of Champion Autosports; and (2) defendant Tan's aiding and abetting Cuyco's breach of fiduciary duty.” ECF No. 106 at p.7. Judge Mauskopf also transferred the matter to the District of New Jersey. Id. Pursuant to this Court's Initial Scheduling Order of November 2018, the Parties' initial written discovery requests were to be served by December 14, 2018, while responses were to be served by January 31, 2019. ECF No. 125 at ¶¶7-8. Pursuant to L.Civ.R. 16.1, the Parties also were ordered to “meet and confer in a good faith effort to resolve any discovery or case-management dispute, ” while any unresolved disputes were to be brought to the Court's attention promptly by a joint letter. Id. at ¶9. At a February 6, 2019 status conference, the Parties identified the instant discovery dispute. This Court ordered the parties to submit any unresolved dispute in writing by February 22, 2019, with any response to be submitted by March 7, 2019. ECF No. 126 at ¶3. Plaintiff by letter to the Court dated February 14, 2019 contended that Defendant Tan had failed to respond to Plaintiff's First Set of Interrogatories and Requests for Production by asserting a blanket objection citing an attorney-client privilege. ECF No. 127. By letter dated February 20, 2019, Defendant Tan asserted that his invocation of the attorney-client privilege was “proper” and “those valid objections should not be disturbed by the Court.” ECF No. 129.[2] The Court heard oral argument on the matter on May 3, 2019.

         I. LEGAL STANDARD

         It is well established that the scope of discovery in federal litigation is broad. Fed.R.Civ.P. 26(b)(1). “The general rule in the federal system is that, subject to the district court's discretion, ‘[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.'” Republic of Argentina, 573 U.S. at 139 (quoting Fed. Rule Civ. Proc. 26(b)(1)); see also Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000). Information sought by the parties need not be admissible in evidence to be discoverable. Fed.R.Civ.P. 26(b)(1). During discovery, “[a] party may serve on any other party a request within the scope of Rule 26(b)” to produce documents “in the responding party's possession, custody, or control.” Fed.R.Civ.P. 34(a)(1). Of course, the responding party is not obliged to produce documents it does not possess or cannot obtain. See Bumgarner v. Hart, 2007 WL 38700, at *5 (D.N.J. Jan. 4, 2007) (holding that the Court cannot order production of documents that are not in the responding party's possession or control). Not only must the requested documents be in the responding party's possession or control, they also must be relevant. The precise boundaries of the Rule 26 relevance standard depend upon the context of each particular action, and the determination of relevance is within the discretion of the District Court. Barnes Found. v. Twp. of Lower Merion et al., 1996 WL 653114, at *1 (E.D.Pa. 1996). While the scope of discovery is undoubtedly broad, the Federal Rules also provide that a Court “must limit the frequency or extent of discovery otherwise allowed” if it concludes that: (1) the discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (3) the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed.R.Civ.P. 26(b)(2)(C). Further, “the Court has a responsibility to protect privacy and confidentiality interests” and “has authority to fashion a set of limitations that allow as much relevant material to be discovered as possible...while preventing unnecessary intrusions into legitimate interests that may be harmed by the discovery of material sought.” Schmulovich v. 1161 Rt. 9 LLC, Civ. No. 07-597, 2007 WL 2362598, at *1-2 (D.N.J. Aug. 15, 2007); see also Pearson, 211 F.3d at 65; Fed.R.Civ.P. 26(c).

         Finally, Rule 37(a) allows a party to file a motion to compel discovery where the opposing party fails to respond adequately to a document request propounded pursuant to Rule 34. Fed.R.Civ.P. 37(a)(3)(B)(iv). Ultimately, it is within the Court's discretion whether to grant a motion to compel disclosure. In re Cendant Corp. Sec. Litig., 343 F.3d 658, 668 (3d Cir. 2003).

         II. DISCUSSION

         Principally, Plaintiff contends Defendant improperly asserted “a generic objection based upon attorney-client privilege, without specifying how or why the privilege applies” to Plaintiff's Interrogatories. ECF No. 127 at p.1. Plaintiff cites In re Grand Jury Empanelled, 603 F.3d 469, 474 (3d Cir. 1979) for the proposition that “[t]he party asserting the attorney-client privilege bears the burden to show that it applies.” Id. Moreover, Defendant's objection, Plaintiff contends, “is wholly without merit because the information sought is not a privileged communication, or the privilege was either waived or inapplicable.” Id.

         The information sought is not privileged, Plaintiff contends, for Interrogatory No. 4 because facts are not communications, and facts are what Plaintiff sought in that interrogatory, which states: “Identify and describe all legal, accounting, or tax related services you provided to Defendant Cuyco prior to March 1, 2013.” Id. at p.2. Plaintiff contends that In re Human Tissue Prod. Liab. Litig., 255 F.R.D. 151, 164 (D.N.J. 2008) stands, in part, for the proposition that “[a] description of the legal service in and of itself is not a communication between an attorney and a client and is therefore not privileged.” Id. (citing Human Tissue Prod. Liab. Litig., 255 F.R.D. at 164). Plaintiff raises a similar argument for Interrogatory Nos. 9-10, 14-17, 19-20. Id. at pp.2-8.

         Privilege was inapplicable for Interrogatory Nos. 5-8, 19-20, Plaintiff contends, because those interrogatories seek information related legal and tax services Defendant Tan allegedly provided to Champion Autosports LLC. Id. at pp.2-4, 8. As Plaintiff was a member of that limited liability company along with Defendant Renato Cuyco-Plaintiff allegedly holds an 80% stake-Plaintiff contends Defendant Tan would have represented both Plaintiff and Defendant Cuyco when performing services for that entity. Id. (citing N.J.R. 2A:84A-20: “[w]here 2 or more persons have employed a lawyer to act for them in common, none of them can assert such privilege as against the others as to communications with respect to that matter.”) Plaintiff makes similar arguments as to Interrogatory Nos. 9-13, which seek information related to “the Cuyco entities, ” in which Plaintiff contends he holds an ownership stake, though he does not quantify the size of that interest. Id. at pp.4-6.

         Finally, Plaintiff contends he is not asking Defendant Tan to waive privilege in Interrogatory Nos. 14-17, which seek information related to the lease on property that Plaintiff claims Defendants surreptitiously transferred out of his name and into the name of Champion Leasing and Champion Performance. Id. at pp.6-8; see also ECF No. 5 at ¶19. Instead, Plaintiff contends he seeks the same as discussed above, the identification of and description of legal or notary services he provided for Defendant Cuyco, the Cuyco entities and the South Amboy property lease. Id.

         Defendant counters that Fisher v United States stands for the principle that “the privilege between attorney and client protects those disclosures necessary to obtain informed legal advice.” ECF No. 129. at p.1 (citing Fisher, 425 U.S. 391 (1976)). Defendant extrapolates from this to conclude that “[a]sking an attorney for a summary of all the services and issues they have advised a client guts this entire theory.” Id. Defendant contends that, contrary to Plaintiff's argument, a summary of all legal work performed for a client, as requested in many of the interrogatories detailed above, is protected by the attorney-client privilege. Id. Furthermore, Defendant asks how Plaintiff can argue that the privilege is not implicated by the Champion Autosports share structure since Plaintiff's Complaint refers to Defendant Tan only as Defendant Cuyco's attorney and nowhere alleges that Defendant Tan represented Champion Autosports. Id. at p.2 (citing ECF No. 5, ¶¶60, 62-64).

         Plaintiff counters that privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” ECF No. 127 at p.2 (emphasis in original).[3] Plaintiff contends, then, that the interrogatories sought facts, on the principle that “[f]acts are not communications and thus are discoverable.” Id. (citing Louisiana Mun. Police Employees Ret. Sys. v. Sealed Air Corp., 253 F.R.D. 300, 305 (D.N.J. 2008) (citing United States v. Rockwell, 897 F.2d 1255, 1264 (3d Cir. 1990)). Thus, Plaintiff contends, “[b]asic information, including a general description of the services [Tan] provided to Champion Autosports ...


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