Free Response in Opposition to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Reid C. Pixler Assistant U.S. Attorney Arizona State Bar No. 12850 Two Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. Lear Jet, Model 31A, Serial Number 31A224, U.S. Registration # N224LJ; Defendants. EXPEDITED ORAL ARGUMENT REQUESTED PRELIMINARY STATEMENT The plaintiff, files this Response in Opposition to the Motion to Quash filed by counsel for Abed, et al, which seeks to delay the production of discovery which has been served by plaintiff upon claimants. This motion is filed in bad faith by counsel for claimants because counsel has been placed on notice that the District of Arizona has a standing rule which designates forfeiture cases as fast track or expedited matters which are subject to a separate scheduling order and are not subject to the provisions of Rule 26 cited by counsel for claimants. FACTUAL BACKGROUND 1. The Scheduling Order was entered by the Court on March 1, 2004, clearly CIV-04-363-PHX-JWS
RESPONSE IN OPPOSITION TO MOTION TO QUASH

designates this forfeiture action as an expedited track case and set out the required calendar of events, which included the initiation of discovery. A copy of this Order is attached hereto and is hereby incorporated by this reference as Exhibit C.

Case 2:04-cv-00363-JWS

Document 140

Filed 11/23/2005

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2.

Counsel for the Abed claimants and plaintiff had one meeting in Phoenix to

2 explore the service of discovery materials. An informal agreement was entered which required 3 each party to produce all financial evidence regarding the tracing of the funds involved in the 4 acquisition of the three defendant aircraft identified in the case. Plaintiff has provided discovery 5 pursuant to this agreement. Claimants have provided information which had already been 6 obtained by investigators and which was readily apparent in the allegations contained in the 7 complaint. Claimants have provided no financial records or any other discovery which supports 8 the allegations contained in the Answer. See Exhibit B. 9 3. On October 14, 2005, this Court denied plaintiff's motion for reconsideration. All

10 preliminary matters had been resolved, and the case was "at issue" pursuant to the terms of the 11 Scheduling Order. 12 4. Plaintiff served discovery requests on counsel for claimants. The requests were

13 dated October 18, 2005, and were received by counsel for claimants on October 21, 2005. See 14 claimants memo in support of motion to quash. See Doc #138. 15 5. Plaintiff received no objection or any other communication regarding discovery

16 until claimants moved to stay the civil forfeiture proceeding in a motion filed on November 11, 17 2005. See Doc # 132. Plaintiff will respond to this motion in a separate pleading. A response 18 has been delayed due to medical issues of the wife and daughter of counsel for plaintiff and 19 previously scheduled obligations. 20 6. Plaintiff received a letter from Craig A Stokes, dated November 17, 2005, asking

21 that plaintiff withdraw the discovery requests on the basis that a Rule 26 meeting and exchange 22 of mandatory documents had not been conducted. Counsel for claimants have never before 23 referenced Rule 26 or sought such a meeting. A copy of this letter is attached hereto and is 24 hereby incorporated by this reference as Exhibit A. 25 7. Counsel for plaintiff did not receive Exhibit A until November 21, 2005, and

26 responded with a letter dated the same day which was faxed to counsel for claimants early on 27 that day. That letter pointed out that in the District of Arizona all forfeiture cases are 28 automatically designated as expedited track cases subject to a scheduling order and excluded
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1 from Rule 26. Counsel also point out that based upon the this long standing order, seeking a 2 Protective Order, as threatened in Exhibit A would be both frivolous and done in bad faith. 3 Plaintiff declined to withdraw the discovery requests. A copy of this letter is attached hereto and 4 is hereby incorporated by this reference as Exhibit B. Exhibit C is a copy of the scheduling 5 order which was included with Exhibit B and faxed to counsel for claimants. 6 8. Within a matter of hours after receipt of Exhibits B and C, counsel for claimant

7 filed the motion to quash. See doc # 138. 8 9. Claimants are foreign corporations and corporate officer or beneficial owner of the

9 corporations. 10 10. The deposition and discovery materials have been properly served with no prior

11 objection received. Other parties have made arrangements to attend the deposition and 12 participate. The written discovery is required to be produced prior to the deposition. This 11th 13 hour effort to postpone the discovery is unreasonable and this matter should be heard on an 14 expedited basis to allow the parties to accommodate the eventual order of the Court. 15 16 ARGUMENT Federal Rule of Procedure Rule 26(d) allows for modification of the provisions by an order

17 from the Court. In this action that Rule is superceded by the Scheduling Order. The scheduling 18 order dispenses with the procedures of mandatory disclosures and meetings, and sets out an 19 expedited procedure. In the period of the litigation in this case counsel for claimants have never 20 asserted any reliance upon Rule 26 for any purpose, until plaintiff undertook to serve discover. 21 Rather, counsel has freely accepted discovery from plaintiff on an informal basis, while refusing 22 to provide the relevant financial records associated the tracing of the funds. 23 The "scheduling order" practice and procedure has been the law in this District for years and

24 there have been no cases, to the knowledge of counsel for plaintiff, where a protective order has 25 been granted on the basis that Rule 26 controls rather than the scheduling order entered by this 26 Court. Plaintiff asserts that the scheduling order procedure is intended by the District Court of 27 Arizona to be a Standing Order which removes forfeiture and other specifically designated cases 28
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1 from the Rule 26 procedures. Pursuing a protective order under the present circumstances is 2 probably frivolous and could only be pursued in bad faith. 3 The motion to quash presumes there is any legitimacy to the motion to stay. Claimants are

4 essentially corporations and related officers, directors, or beneficial owners. However, as 5 pointed out in more detail in plaintiff's response to the motion to stay, the vast majority of the 6 evidence requested relates to specific financial records referenced by claimants in their answer. 7 Literally, the requests for admission and related interrogatories require the production of specific 8 evidence upon which claimants rely to make a specific allegation in their answer. Corporations 9 may not assert a Fifth Amendment privilege related to such records. 10 11 12 There is no question but that the contents of the subpoenaed business records are not privileged. See Doe, supra; Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Similarly, petitioner asserts no self-incrimination claim on behalf of the corporations; it is well established that such artificial entites are not protected by the Fifth Amendment. Bellis, supra.

13 Braswell v. United States, 487 U.S. 99, 102, 108 S.Ct. 2284, 2287 (1988). 14 15 SUMMARY In short, the short notice regarding the motions filed by claimants has been orchestrated by

16 them in bad faith in an effort to avoid both the scheduling order in this case and to avoid having 17 to prove a legitimate basis to make allegations contained in the Answer. The reason to quash 18 the discovery requests is limited to a fear that claimants might render moot their motion to stay 19 the civil forfeiture case to protect a Fifth Amendment Right which does not exist. The Motion 20 to Quash should be denied, as well as the Motion to Stay, as separately argued. 21 22 23 24 25 26 27 28
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Respectfully submitted this 23RD day of November, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona S/ Reid C. Pixler REID C. PIXLER Assistant U.S. Attorney

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Leonard J McDonald, Jr Tiffany & Bosco PA Camelback Esplanade II 2525 E Camelback Rd 3rd Floor Phoenix, AZ 85016 Cynthia Eva Hujar Orr Goldstein Goldstein & Hilley 2900 Tower Life Bldg 310 S St Mary's St, Ste 2900 San Antonio, TX 78205 [email protected] K Lawson Pedigo Miller Keffer & Pedigo 8401 N Central Expressway , Ste 630 Dallas, TX 75225 [email protected]

CERTIFICATE OF SERVICE
I.I hereby certify that on November 23, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Allen B Bickart Law Office of Allen B Bickart PO Box 44005 Phoenix, AZ 85064 [email protected] Douglas F Behm Jennings Strouss & Salmon PLC Collier Ctr 201 E Washington St, Ste 1100 Phoenix, AZ 85004-2385 [email protected]

9I hereby certify that on November 23, 2005, I served the attached document by U.S. mail, who are not registered participants of the CM/ECF System:
Marc S. Nurik Ruden McClosky Smith Schuster & Russell, PA PO Box 1900 Ft Lauderdale, FL 33302

S/ Victoria Tiffany Victoria Tiffany

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