Opinion
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL SMITH BARNEY FOR INFORMATION, ADMISSIONS, AND DOCUMENTS [Docket No. 221] AND GRANTING IN PART DEFENDANT'S MOTION FOR PROTECTIVE ORDER [Docket No. 222]
JOSEPH C. SPERO, Magistrate Judge
Plaintiff, Raghavan Sathianathan ("Plaintiff"), filed a motion entitled "Motion to Compel Smith Barney for Information, Admissions, and Documents" ("Plaintiff's Motion") [Docket No. United States District CourtFor the Northern District of California 221]. Defendant, Smith Barney, Inc. ("Smith Barney" or "Defendant"), filed a motion entitled "Motion for Protective Order" ("Smith Barney's Motion") [Docket No. 222]. The Court found that both Motions were appropriate for disposition without oral argument and took the matters under submission prior to the July 27, 2007 hearing. Having reviewed all of the parties' submissions in support of and in opposition to the Motions, for good cause appearing, and for the reasons stated below, Plaintiff's Motion is DENIED and Smith Barney's Motion is GRANTED IN PART.
I. INTRODUCTION
Plaintiff and Smith Barney participated in an arbitration which concluded with an award on March 22, 2004. Declaration of Michele R. Fron in Support of Motion for Protective Order ("Fron Decl.") at ¶ 2. Plaintiff lost the arbitration, and subsequently filed an action in this court seeking to vacate the arbitration award [Docket No. 1]. In response, Smith Barney filed a motion to confirm the award, which was granted on February 25, 2005 [Docket No. 92]. Plaintiff then filed a motion under Rule 60 of the Federal Rules of Civil Procedure seeking to set aside the February 25, 2005 Order, and later filed a Renewed Rule 60 Motion on May 1, 2006 (the "Renewed Rule 60 Motion") [Docket No. 200]. In connection with the Renewed Rule 60 Motion, the court granted "limited" discovery on June 20, 2006 [Docket No. 216].
Plaintiff proceeded to use the limited permission granted by the court to bombard Defendant with voluminous discovery. Even without the discovery that Plaintiff addressed to Defendant's counsel rather than Defendant, Plaintiff has propounded 193 separate document requests, nine requests for admissions, and, including sub-parts, many more than the limit of 25 interrogatories allowed by Rule 33 of the Federal Rules of Civil Procedure. These discovery requests were not only astonishing in volume, they were inappropriate in breadth: the discovery requests went well beyond the limited subjects referred to in the court's June 20, 2006 Order. Smith Barney responded to the discovery to the extent that it addressed the issues on which it claimed the court had allowed discovery, and declined to respond to the remainder. Plaintiff then filed his Motion, and Smith Barney moved for a protective order. Smith Barney's Motion is well-taken. Accordingly, the Protective Order is GRANTED, except as described below.
II. BACKGROUND
In 2004, Plaintiff and Defendant went to arbitration before a panel of three arbitrators. The arbiters were Chairperson Harve Citrin, Esq., Industry Panel Member James Murray, and Public Arbitrator Joseph Berzok, Esq. February 25, 2005 Order at 2. The arbitrators presented an oral award to the parties on March 22, 2004, which was followed by a written award on April 29, 2004. That award dismissed all of Plaintiff's claims against Defendant. Defendant was awarded $10,000 on its counterclaim against Plaintiff. February 25, 2005 Order at 3.
Subsequently, Plaintiff filed this action to vacate, and Defendant moved to confirm the arbitration award. On February 25, 2005, the court confirmed the arbitration award and denied Plaintiff's motion to vacate the arbitration award. February 25, 2005 Order at 16. Subsequently, Plaintiff filed numerous motions, including a motion under Rule 60 of the Federal Rules of Civil Procedure seeking to vacate the February 25, 2005 Order (the "Rule 60 Motion").
The court heard oral argument on the Rule 60 Motion, as well as other motions, on January 31, 2006. During the argument, the court required Plaintiff to identify all of the bases on which he sought to vacate the February 25, 2005 Order. Transcript of January 31, 2006 Argument at 11-13, attached as Exhibit 5 to the Declaration of Plaintiff Raghavan Sathianathan in Support in Opposition to Motion for Protective Order to Discontinue Discovery ("Plaintiff's Decl."). Plaintiff identified three bases for his Rule 60 Motion: (1) that defense counsel had made a false statement to the court that "Arbitrator Murray had arbitrated only one arbitration... in which Keesal, Young & Logan had represented a party and that party was not Smith Barney"; (2) that defense counsel had "stated that [Plaintiff] had signed a waiver of disclosure form about arbitrator disclosure, when there was no such thing"; and (3) that defense counsel stated that "the dismissal of [Plaintiff's] claims was based on failure to state a claim instead of it actually being as the arbitration award states, supposed failure to meet the burden of proof." Id. at 12. The court inquired of Plaintiff whether "there is anything else other than what you have just articulated you are asserting as the basis of misconduct?" Id. at 13. Plaintiff responded "No." Id. At the conclusion of the hearing, the court indicated that it would be willing to reconsider its February 25, 2005 Order. Id. at 36.
Subsequently, Plaintiff filed a Renewed Rule 60 Motion [Docket No. 200] and requested discovery in anticipation of the Renewed Rule 60 Motion [Docket No. 194]. The Renewed Rule 60 United States District CourtFor the Northern District of California Motion sought relief from the February 25, 2005 Order on the basis of newly discovered case law and evidence. Renewed Rule 60 Motion at 1. It also alleged that Defendant and its counsel had committed "fraud... misrepresentation or other misconduct" by making material misrepresentations to the court in obtaining the February 25, 2005 Order. Id. The Renewed Rule 60 Motion alleged the following misconduct by Defendant and defense counsel:
The discovery sought is necessarily limited to this last ground. The "newly discovered" case law and evidence asserted in the Renewed Motion were already referenced in the papers filed by Plaintiff, and, therefore, no discovery on those grounds was necessary. However, the court did grant discovery on the alleged misrepresentations.
(1) Assertion of a contribution claim in the arbitration in violation of California law. Renewed Rule 60 Motion at 6-7.
(2) Misrepresentation by defense counsel of the existence of a signed waiver of disclosure form. Id. at 11.
(3) Misrepresentation by defense counsel of the contacts between Arbitrator Murray and defense counsel or Defendant at prior arbitrations. Id. at 11-12.
(4) Arbitrators Citrin and Berzok failed to make certain disclosures in the arbitration. Id. at 15, 21.
The court noted that some preliminary discovery before a ruling on a Rule 60 Motion is appropriate so long as a "party acts in good faith and makes out a reasonable case that discovery might lead to relevant information." June 2, 2006 Order at 2. The court concluded that Plaintiff had made such a reasonable case. The court cited the fact that it was "undisputed that Defendant made misrepresentations to the Court... that the Court relied on... in its February 25, 2005 Order." Id. In conclusion, the court agreed that "[t]hese facts warrant certain limited discovery with respect to the issues raised by Plaintiff's Renewed Rule 60 Motion." Id.
The court's permission to conduct limited discovery was necessarily limited to the listed subjects. Those subjects, as articulated in the June 2, 2006 Order, are limited to the misrepresentations by Defendant and its counsel to the court that were relied on by the court in the February 25, 2005 Order. As described by Plaintiff both on the record on January 31, 2006, and in the Renewed Rule 60 Motion, those subjects are misrepresentations concerning: (1) the contacts between Arbitrator Murray and Defendant or its counsel at arbitrations before the instant arbitration; (2) the existence of a waiver of disclosure form; and (3) the claim that the arbitrators dismissed Plaintiff's claims for failure to state a claim.
No discovery was authorized on the other matters now raised in the Renewed Rule 60 Motion. Nor was any other discovery appropriate. No discovery is necessary on the "newly discovered" case law and evidence unrelated to the misrepresentations, as Plaintiff already has the "newly discovered" evidence and has brought it to the court's attention in the Renewed Rule 60 Motion. Nor is discovery appropriate on the arguments that Defendant raised an improper counterclaim in the arbitration. Plaintiff's argument on that issue is based entirely on a question of law and no discovery is necessary. Finally, no discovery is appropriate into the claim that the other two arbitrators - Citrin and Berzok - failed to make certain disclosures in the arbitration. Plaintiff has made no claim that Defendant misled the court regarding the Citrin and Berzok disclosures, which the court relied on in the February 25, 2005 Order. Again, he has brought evidence to the court on the alleged failure to disclose by these two arbitrators, and the court will decide if that evidence is "newly discovered" or otherwise falls within the requirements of Rule 60.
Accordingly, the court now addresses whether the discovery sought by Plaintiff, beyond that already provided by Defendant, is relevant to the claimed misrepresentations.
III. DISCOVERY
Plaintiff's discovery began on April 4, 2006, when he served the "Request for Information and Documents Related to the Renewed F.R.C.P. Rule 60 Motion for Relief from February 24, 2005 Order" addressed to the custodians of record of Keesal, Young & Logan. Defendant Smith Barney's Notice of Lodgment in Support of its Motion for Protective Order ("Lodgment") at Ex. 1 (the "First Request"). The First Request contained 16 paragraphs more properly characterized as interrogatories. Many of those 16 paragraphs had multiple sub-parts. The First Request also contained nine requests for admissions and 70 separate document requests.
On April 5, 2006, Plaintiff served a document called the "Supplemental Request for Information and Documents Related to Renewed F.R.C.P. Rule 60 Motion for Relief from February United States District CourtFor the Northern District of California 24, 2005 Order (the "Supplemental Request"). The Supplemental Request was again addressed to the custodian of records of Keesal, Young & Logan. The Second Request contained 17 new separate requests for the production of documents and corrected a number of the document requests and requests for admissions from the previous discovery request.
Perhaps realizing that the service of interrogatories, requests for admissions and document requests addressed to a custodian of record of counsel was improper under the Federal Rules of Civil Procedure, on April 17, 2006, Plaintiff served on Smith Barney a document entitled "Volume II of Request for Information and Documents Related to the Renewed F.R.C.P. Rule 60 Motion for Relief from February 24, 2005 Order" (the "Volume II Request"). The Volume II Request contained inquiries properly described as interrogatories, requests for admissions, and document requests. The Volume II Request contained 16 interrogatories, many with multiple sub-parts. In addition, it contained nine requests for admissions and 87 separate document requests.
Defendant responded to the Volume II Request. Lodgment at Ex. 4. Defendant also filed a Supplemental Response to the Volume II Request. Lodgment at Ex. 5. As detailed in the Supplemental Response, Defendant produced documents regarding the investigation by Keesal, Young & Logan (and Michele Fron of that firm) regarding the subject matter of the representations described by Plaintiff in the January 31, 2006 argument of his Rule 60 Motion. See, e.g., Lodgment, Ex. 5 at Resp. to Doc. Req. Nos. 1-10. In addition, Defendant represented that it had no documents responsive to the Volume II Request concerning any business, professional, personal, or financial relationship between Arbitrator Murray and Keesal, Young & Logan, with the exception of arbitrations in which Keesal, Young & Logan may have represented a party. With respect to all arbitrations in which Mr. Murray was a participant and in which Keesal, Young & Logan represented a party, Defendant produced responsive documents regarding arbitrations that occurred before March 2004 - the date of the arbitration award in this case. See Lodgment, Ex. 5 at Resp. to Doc. Req. No. 41. Presumably, Defendant chose that date because only arbitrations that occurred before that date could have been disclosed by the arbitrators in this matter. Defendant also agreed to produce all awards from arbitrations in which Arbitrator Murray was a panelist and in which Smith Barney was a party that occurred before March 2004. See Lodgment, Ex. 5 at Resp. to Doc. Req. Nos. 42-44. Defendant also agreed that Keesal, Young & Logan had never represented Arbitrator Murray. Id. at Resp. to Doc. Req. No. 45.
In response to the requests for information in the Volume II Request, Defendant answered in detail interrogatories concerning the investigation conducted by Keesal, Young & Logan into Arbitrator Murray's connections with Keesal, Young & Logan and with Smith Barney. Id. at Resp. to Req. for Info. Nos. 1-2. Defendant also agreed to make Michele Fron, listed in this matter as an attorney in the Long Beach, California office of Keesal, Young & Logan, available for deposition for a full day in New York, Los Angeles, or Oakland. Id. at Resp. to Req. for Info. No. 5. Defendant also answered in detail questions regarding the misrepresentations made to the court that formed the basis of the Renewed Rule 60 Motion, as well as the investigation that led to those representations. Lodgment, Ex. 5, at Resp. to Req. for Info. Nos. 6-8, 10-14.
On the other hand, there were a number of requests in the Volume II Request that did not concern the three alleged misrepresentations described to the court at the January 31, 2005 hearing. Defendant declined to respond to these requests. For example, Plaintiff sought discovery concerning the investigation by Keesal, Young & Logan and Defendant after evidence had been filed with the Ninth Circuit in the appeal of this case. See Ex. 3 at Req. for Info. Nos. 3, 4, and 11-20. Obviously, those questions did not relate to the misrepresentations which were relied on by the court in issuing the February 25, 2005 Order. The subject of these requests for information concerned investigations that occurred long after the February 25, 2005 Order was entered.
Plaintiff's willingness to ignore the restriction to "limited discovery" caused him to propound some requests breathtaking in their scope. Plaintiff sought documents on every arbitration in which Keesal, Young & Logan represented a party from 1996 to 2005. Id. at Doc. Req. No. 72. Plaintiff sought documents related to every arbitration that was filed from 1996 until 2005 in which Smith Barney was a party. Id. at Doc. Req. No. 73. Plaintiff also sought, for the years 2000 to 2004, Keesal, Young & Logan's annual billings for all clients for all work related to arbitrations and arbitration-related litigation, as a percent of the total annual billings of that firm. Id. at Doc. Req. No. 66. Similarly, Plaintiff asked for documents regarding the underlying issues in the arbitration in this matter - which were not the subject of the misrepresentations that formed the basis of the Rule 60 Motion. Id. at Req. for Info. Nos. 17-20.
Plaintiff next served a document entitled "Volume III of Request for Information and Documents Related to the Renewed F.R.C.P. Rule 60 Motion for Relief from February 24, 2005 Order" (the "Volume III Request"). The Volume III Request contained nine new requests for information, many of which included multiple sub-parts, and 105 new document requests. The Volume III Request was addressed to Defendant.
The Volume III Request continued Plaintiff's pattern of requesting information on subjects unrelated to the misrepresentations at issue. For example, he requested information on investigations conducted by Keesal, Young & Logan during December 2005, and after April 2006 - long after the February 25, 2005 Order challenged by the Rule 60 Motion. Plaintiff propounded overbroad requests that sought extensive information about Keesal, Young & Logan's and Smith Barney's computers and information-sharing systems. Volume III Req. Nos. 4-6. Plaintiff sought information regarding Michele Fron's beliefs regarding the specific arbitration rules, the NASD Arbitration Rules, and the basis for those beliefs. Id. at Nos. 7-9. Similarly, the Volume III Request sought documents regarding counsel's investigations in matters that occurred many months, or even years, after the February 25, 2005 Order. See, e.g., Volume III Request for Production of Documents Nos. 1-15. Many of the document requests in the Volume III Request sought documents already produced or covered by the Volume II Request. In addition, there were some outlandish document requests, such as a request to provide communications between attorneys Jody Wilson and Sean Muntz at the Keesal, Young & Logan firm from September 1, 2004, to the present without any subject matter limitations. See Lodgment Ex. 7, at Doc. Req. No. 55. Similarly, Plaintiff sought all communications between attorneys Peter Boutin and Michele Fron from September 1, 2004, to the present ( id. at Req. For Prod. No. 57); and between attorneys Peter Boutin and Sean Muntz for the same time period and, again, without any subject matter limitations.
IV. ANALYSIS
As the district court noted in its Order, discovery in connection with a Rule 60 Motion is limited - and Plaintiff has disregarded these limitations.
Discovery preliminary to a ruling on a Rule 60 Motion is only permitted where the moving party makes out a "reasonable case" that discovery might lead to relevant information. June 2, 2006 Order at 2. Here, the court ruled that Plaintiff made such a showing with respect to allegations in the Rule 60 Motion that Defendant had made misrepresentations to the Court. Id. Those misrepresentations, as detailed in the record of the January 31, 2006 hearing, were limited to three questions: (1) Did Defendant's counsel misrepresent, before the February 25, 2005 Order, the prior arbitrations in which Arbitrator Murray was an arbitrator and in which Smith Barney or the Keesal, Young & Logan firm participated; (2) Did Defendant's counsel misrepresent, before the February 25, 2005 Order, that Plaintiff had signed a waiver of disclosure form; and (3) Did Defendant's counsel misrepresent, before the February 25, 2005 Order, that Plaintiff's arbitration claims had been dismissed for failure to state a claim, as opposed to failure to meet Plaintiff's burden of proof at the arbitration? See January 31, 2006 Transcript at 11-13. Similarly, as described above, the misrepresentations and misconduct in this court by Defendant and defense counsel alleged in the Renewed Rule 60 Motion were limited to: (1) misrepresentations to the court concerning Arbitrator Murray; and (2) misrepresentations to the court regarding the waiver of disclosure form. Renewed Rule 60 Motion at 11-12. As a result, the court ordered "certain limited discovery" with respect to these issues. June 2, 2006 Order at 2.
It is apparent that Plaintiff has had extensive and sufficient discovery on these issues. Defendant has answered interrogatories in detail and produced many documents regarding these issues. In addition, it has offered to make the attorney responsible for the investigation, Michele Fron, available for a full day of deposition at a location convenient to Plaintiff. This is more than sufficient discovery for Plaintiff to be able to notice his Renewed Rule 60 Motion.
It is the Court's view that no discovery is necessary regarding the question of whether or not defense counsel misrepresented the stated basis for the arbitrators' dismissal of Plaintiff's claims at the arbitrations. The basis for the arbitrators' dismissal, according to Plaintiff, appears on the face of the arbitrators' order. See Renewed Rule 60 Motion at 18. Accordingly, no discovery is necessary into this question.
The Court has reviewed every discovery request proffered by Plaintiff. The Court finds that, with the exceptions of the discovery already produced, those requests are nothing more than a fishing expedition. Although the Federal Rules of Civil Procedure do not set a limit on the number of document requests, the 192 document requests contained in the Volume II and III Requests are not the "limited" discovery that the court permitted. After examining the requests in detail, other than those that have been responded to, the Court finds that the remaining document requests, requests for information, and requests to admit, are not reasonably likely to lead to the discovery of relevant evidence on the subjects at issue in the Rule 60 Motion.
It is worth noting, in this connection, that on February 21, 2007, a United States district judge in the Southern District of New York issued an anti-suit injunction against Plaintiff in the case of Sathianathan v. Smith Barney, et al., No. 04-Civ-7122 (DAB) (FM), attached as Exhibit K to the Declaration of Michele R. Fron in Support of Smith Barney's Motion for a Protective Order. That injunction bars Plaintiff from filing or serving any new action in any federal court against Smith Barney, Michele Fron, and others based on Plaintiff's vexatious use of litigation. Id. at 20-21.
Accordingly, Plaintiff's Motion to Compel is DENIED. Defendant's Motion for Protective Order to Discontinue Discovery is GRANTED IN PART. Plaintiff may take no further discovery concerning the subject matter of his Renewed Rule 60 Motion, or any other matter, without leave of court, except that Plaintiff may take the deposition of Michele Fron for one day, within thirty (30) days from the date of this order. The parties are to arrange for a mutually-agreeable time/date for that deposition.
IT IS SO ORDERED.