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2014.08.13 Memorandum of Law in Support of Motion to Compel Tigris Third Parties

2014.08.13 Memorandum of Law in Support of Motion to Compel Tigris Third Parties

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Published by eliclifton
Memorandum of Law in Support of Motion to Compel Tigris Third Parties
Memorandum of Law in Support of Motion to Compel Tigris Third Parties

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Published by: eliclifton on Aug 14, 2014
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08/18/2014

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UNITEDSTATESDISTRICTCOURTSOUTHERNDISTRICTOFNEWYORK 
VICTOR RESTIS and ENTERPRISES SHIPPINGAND TRADING S.A.Plaintiffs,- v. -AMERICAN COALITION AGAINST NUCLEAR IRAN, INC. a/k/a UNITED AGAINST NUCLEAR IRAN, MARK D. WALLACE, DAVID IBSEN, NATHAN CARLETON, and DOES 1-10,Defendants.Civil Action No. 13-cv-05032-ER-KNF
MEMORANDUMOFLAWINSUPPORTOFPLAINTIFFSMOTIONTOCOMPELTHEPRODUCTIONOFDOCUMENTSFROMTHOMASKAPLAN,ANDREWSHAPIRO,ANDTIGRISFINANCIALGROUP
Case 1:13-cv-05032-ER-KNF Document 229 Filed 08/13/14 Page 1 of 10
 
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I. INTRODUCTION
Plaintiffs Victor Restis and Enterprises Shipping and Trading S.A. (collectively,“Plaintiffs”), pursuant to Federal Rule of Civil Procedure 45 and this Court’s Order of August 4,2014 (Dkt. 215), submit this Memorandum in Support of their Motion to Compel Production of Documents Responsive to Plaintiffs’ Subpoena
 Duces Tecum
 served on third parties ThomasKaplan, Andrew Shapiro, and Tigris Financial Group (collectively, the “Tigris Third Parties”).These third parties – who are represented by the same attorneys representing the Defendants – have refused to produce any documents in response to the subpoenas and refused to provide anyevidence that they even searched for any documents, amid clear evidence that they did not. As aresult, Plaintiffs respectfully move the Court to (a) compel production of all responsivedocuments; and (b) award Plaintiffs appropriate fees and costs related to this motion.
II. LEGALSTANDARD
Parties may issue subpoenas for relevant information from third parties to an action under Federal Rule of Civil Procedure 45. “Subpoenas issued under Rule 45 are subject to Rule26(b)(1)’s overriding relevance requirement, which provides that ‘[p]arties may obtain discoveryregarding any nonprivileged matter that is relevant to any party’s claim or defense.’”
 Koch v.Greenberg 
, No. 07-civ-9600, 2009 WL 2143634, at *2 (S.D.N.Y. July 14, 2009). If a non-partywishes to assert a privilege in responding to a subpoena, Rule 45(d)(2)(A) requires that it do so“expressly” and “describe the nature of the withheld documents . . . in a manner that . . . willenable the parties to assess the claim.”
 Fleisher v. Phoenix Life Ins. Co.
, No. 11-cv-8405, 2013WL 42374, at *2 (S.D.N.Y. Jan. 3, 2013).Federal Rule 37(a)(2) permits a party to move for an order compelling disclosure or discovery from a non-party to an action. Rule 45(g) also permits the enforcing court to hold a
Case 1:13-cv-05032-ER-KNF Document 229 Filed 08/13/14 Page 2 of 10
 
3non-party in contempt for failure to obey the subpoena without adequate excuse. Of course, non- parties cannot be forced to produce documents that do not exist, but the court need not rely on anon-party’s assertion that such documents do not exist.
 See Zervos v. S.S. Sam Houston
, 79F.R.D. 593, 595 (S.D.N.Y. 1978) (ordering party to produce documents who claimed that he didnot possess such documents);
 Golden Trade S.r.L. v. Lee Apparel Co
., 143 F.R.D. 514, 525 n.7(S.D.N.Y. 1992) (granting motion to compel, in part, when party “ma[d]e an adequate showingto overcome this assertion” that the non-moving party did not have documents in its possession).
III. ARGUMENT
A. The Tigris Third Parties and UANIAs recent news articles have detailed (attached as exhibits), the Tigris Third Parties areindividuals or entities that are deeply entwined with Defendants in this case. They appear to beamong the primary benefactors of Defendants and, therefore, are enabling Defendants’defamation campaign against Plaintiff, as well as this litigation.
1
In addition, reports indicatethat Kaplan’s business interests may also be aligned with Defendants’ stated mission of “endingthe economic and financial support of the Iranian regime by corporations, firms, entities andindividuals” (
 see
 Declaration of Serine Consolino Exhibit 1 (“Ex. 1”)) such that he stands to profit from UANI’s “name and shame” campaigns.
 See
 Ex. 2. A recent news article aboutKaplan pointed out that the companies he owns, for example, Tigris Financial Group (whose
1
UANI reported that it raised only $1,789,548 in contributions in 2012 for their entireoperations, based on fund-raising expenses of only $26,131. Ex. 15 at 1. Plaintiffs haveasked in discovery for information as to who is funding the defamation campaign andresulting litigation against them. Defendants have refused to provide that information.
Case 1:13-cv-05032-ER-KNF Document 229 Filed 08/13/14 Page 3 of 10

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