EFCG, Inc. v. AEC Advisors, LLC

Background

The court reviewed two letter-motions and the responses to them. EFCG’s August 28, 2020 motion sought an order requiring the defendants to proceed with depositions and produce discovery that EFCG said had been requested months earlier. The defendants’ September 4, 2020 motion sought an order directing EFCG to stop interfering with a subpoena served on EFCG’s former information-technology vendor, TOPIT.

Directions About the TOPIT Subpoena

The court noted that the alleged interference appeared limited to materials over which EFCG intended to claim its own privilege and prepare a privilege log. A privilege is a legal protection that can prevent certain communications or materials from being disclosed. The court stated that if the privilege belonged to EFCG—for example, the attorney-client privilege—EFCG could and must assert it. The court also stated that TOPIT could not waive EFCG’s privilege. The court further noted that although TOPIT apparently did not object within the 14-day period in Federal Rule of Civil Procedure 45, that deadline did not apply to EFCG when EFCG was asserting its own privilege.

The court did not finally resolve the defendants’ letter-motion. It directed the parties to meet and confer in real time, by telephone or videoconference, in a good-faith effort to resolve or narrow the dispute before the defendants filed a reply letter-brief.

Directions About Depositions and Scheduling

The court reminded the parties that the deadline for completing depositions had been August 31, 2020, and that no party appeared to have moved to extend that deadline before it expired. A party seeking a late extension was directed, after conferring with the opposing party, to submit a proposed revised scheduling order.

If the dispute concerned whether the defendants properly noticed Mr. Zofnass’s deposition, the party seeking relief was required to attach the deposition notices and objections. If the dispute concerned whether Mr. Zofnass’s health prevented his deposition, the court stated that Mr. Zofnass himself had to make that claim and support it with admissible medical evidence.

Order and Next Conference

The parties were directed to confirm in their reply briefs that they had followed the court’s directions, identify any unresolved issues, state precisely what relief they sought, and attach the discovery materials or proposed orders needed for the court to resolve those issues. Magistrate Judge Barbara Moses scheduled a discovery conference for September 17, 2020, at 10:00 a.m., by videoconference. The court stated that it intended to resolve the discovery disputes at that conference based on the written submissions and any argument presented, unless more formal briefing was requested or ordered.