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Lvb-Ogden Marketing Corp. v. Dean

United States District Court, W.D. Washington, Seattle

December 28, 2017

LVB-OGDEN MARKETING CORPORATION, Petitioner,
v.
HENRY DEAN, as trustee of the SHARON GRAHAM BINGHAM 2007 TRUST, and PARK PLACE MOTORS, LTD., Respondents. LVB-OGDEN MARKETING CORPORATION, Plaintiff
v.
PATRICK L. MCCOURT, STEPHANIE J. MCCOURT, DAVID S. BINGHAM, SHARON BINGHAM, FRANCES P. GRAHAM, CHRISTOPHER G. BINGHAM, CHERISH BINGHAM a/k/a CHERISH BURGESS, SCOTT F. BINGHAM, KELLY BINGHAM, and BINGO INVESTMENTS, LLC, Defendants.

          MINUTE ORDER

         The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge:

         (1) LVB-Ogden Marketing's (“LVB”) Renewed Motion to Compel the SGB 2007 Trust (the “Trust”) to Produce Documents, docket no. 25, is GRANTED. This is LVB's second attempt to compel compliance with a subpoena issued for documents pertaining to its efforts to execute a judgment. See Decl. of Jonathan J. Faria, docket no. 2, Ex. 1 (the “Subpoena”). In granting in part and denying in part LVB's first request, the Court instructed that “[t]o the extent LVB finds it necessary after it has received the [ordered] documents from the SGB 2007 Trust, LVB may request that the Court Order production of additional documents ___” Docket no. 19, at 5.[1] Here, LVB requests the Court to compel the Trust to produce unredacted documents for the period from 2009 to present. The Court concludes that this information is discoverable under Federal Rule of Civil Procedure 26(b) and bears on whether the Trust has lost its spendthrift character, whether self-settled transfers have been executed, whether the Trust should be deemed the alter ego of certain debtors, and whether any fraudulent transfers should be unwound. The Trust does not present any valid basis rebutting the presumption favoring “full discovery of any matters arguably related to [the judgment creditor's] efforts to trace [the judgment debtor's] assets and otherwise enforce its judgment.” Sherwin-Williams Co. v. Earl Scheib of Cal., Inc., No. 12CV2646-JAH(JMA), 2013 WL 12073836, at *4-5 (W.D. Wash. Mar. 4, 2013) (quoting Credit Lyonnais S.A. v. SGC Intern., Inc., 160 F.3d 428, 431 (8th Cir. 1998)). Accordingly, the Court hereby ORDERS Henry Dean, as trustee of the Trust, to produce, no later than January 31, 2018, the following non-privileged documents in his possession, custody, or control, for the period from January 1, 2009, to present[2]:

a. All DOCUMENTS relating to any payments made to any DEFENDANTS.
b. All DOCUMENTS related to any transfer of any asset from the TRUST to any DEFENDANTS.
c. All DOCUMENTS related to any loan made by the TRUST to any DEFENDANTS.
d. All DOCUMENTS related to any transfer of any interest in real property to the TRUST by any DEFENDANTS.
e. All DOCUMENTS related to any transfer of funds to the TRUST by any DEFENDANTS.
f. All DOCUMENTS related to any transfer of personal property (including but not limited to stock, bonds, mutual funds, other securities, art and any other asset) to the TRUST by any DEFENDANTS.
g. All DOCUMENTS related to the assignment of any legal claim, cause of action, or chose in action by any of the DEFENDANTS to the TRUST.
h. All emails responsive to the Subpoena, including, without limitation, any communications regarding transfers into or out of the Trust. The Court ORDERS Mr. Dean to certify to the Court under penalty of perjury: (i) which email accounts were searched (and that those accounts have been preserved (i.e. no emails have been deleted)); (ii) for what date range; and (iii) that all communications regarding transfers into or out of the Trust have been produced. Mr. Dean shall serve and file a sworn Certificate of Compliance no later than January 31, 2018.

         (2) The Court ORDERS Mr. Dean to, no later than January 31, 2018, remove any redactions to previously produced documents and produce the unredacted documents to LVB. See Fed. R. Civ. P. 5.2(a).

         (3) The Court ORDERS Mr. Dean to, no later than January 31, 2018, serve and file a “privilege log” listing all responsive information and documents he is withholding and why he believes that information and those documents are privileged or confidential.

         (4) The Court DEFERS the Trust's request to shift its costs of complying with the subpoena under Fed.R.Civ.P. 45(d)(2)(B)(ii). See Sharon Graham Bingham 2007 Trust's Opposition to LVB-Ogden Marketing's Renewed Motion to Compel, docket no. 30, at 12-14. To date, the Trust has not fulfilled its obligations under the Subpoena or the Court's prior Order compelling compliance with the Subpoena. The Court is therefore unable to assess whether any projected costs will be “significant.” Should the Trust fulfill its compliance obligations, it may then petition the Court for compliance expenses under Fed.R.Civ.P. 45(d)(2)(B)(ii). See Stormans v. Selecky, No. C07-5374, 2015 WL 224914, at *6-7 (W.D. Wash. Jan. 15, 2015) (outlining the three factor test to determine whether ...


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