Case Update - MEC v Kenneth Maciora et al
2016-00202624-CU-SL
MyECheck, Inc. vs. Kenneth Maciora
Nature of Proceeding: Motion to Compel Production - Scheduled November 14, 2018
Filed By: Maciora, Kenneth
Defendant in pro per Maciora’s motion to compel plaintiff “to produce material parts of the agreements [sic] between [plaintiff] MEC and Typenex pursuant to the court’s order and pursuant to CCP [sic] 2031.310 [relating to ‘further responses’]” is ruled on as follows.
Factual Background
This is securities fraud case which was filed on 10/31/2016. On 3/28/2018 the court partially granted plaintiff MyEcheck, Inc.’s (“MEC”) motion for protective order in connection with defendant Maciora’s Requests for Production, Set Four (“RFP”). These RFP sought the production of the “valid and effective” copy of the “UBA contract,” “Tangiers Capital contract,” and “Chicago Ventures contract.” The contracts with these three entities are specifically alleged to be the basis for MEC’s causes of action against defendant for intentional interference with prospective economic advantage and with contractual relations. This court permitted MEC to redact from each of the contracts, before production to defendant Maciora, that information which is either sensitive or trade secret and the disclosure of which would unduly or irreparably harm MEC, its stock or its reputation. After MEC produced the documents in redacted form, Maciora filed a motion to compel which in part argued that the documents produced were not the actual contracts and that the redactions were overly broad. In its 8/2/2018 ruling on defendant’s motion, the court noted MEC conceded the documents produced did not include the agreement with Chicago Ventures but rather documents relating to agreements between MEC and Typenex, described as a subsidiary of Chicago Ventures. Consequently, the court granted defendant’s motion as to the Chicago Ventures contract but denied it as to the contracts with UBA and Tangiers Capital since the court was persuaded the documents produced constituted the contracts and responsive to the underlying RFP. Additionally, the 8/2/2018 order specified that certain documents relating to Tangiers Capital and Chicago Ventures must be provided to defendant subject to the provisions of the protective order, with some redacted and others not redacted.
Moving Papers
According to defendant Maciora, MEC thereafter produced on 8/15/2018 several documents including a contract between MEC and Typenex which “consists of a Securities Purchase Agreement, a Convertible Promissory Note and several individual investor notes.” Defendant maintains, “[T]he three notes are a material part of the agreement between MEC and Typenex and are material to Maciora’s defense” but have “not been produced.” Thus, defendant seeks an order compelling MEC to produce the notes as part of the agreement or alternatively, to provide a response which complies with Code of Civil Procedure §2031.230 [representation of inability to comply] and states whether MEC requested the documents from its transfer agent or Typenex, and/or whether the notes ever existed or were stolen, lost or destroyed.
Opposition
Plaintiff’s response to this motion asserts that all portions of the Typenex agreement in MEC’s possession and control have been produced, including three documents subsequently found which may (based on their date and reference to the same parties) be part of the Typenex agreement despite not being kept or saved with this agreement. Because all potentially responsive documents have been produced, MEC contends this motion is “moot.”
Analysis
This motion will be denied in its entirety.
MEC has unequivocally represented to the court that it has already produced all documents in its possession or control which have been located and are reasonably believed to constitute part of the agreement with Typenex and nothing more is required of MEC. If the documents sought are not in MEC’s possession, custody or control, it is under no obligation to obtain them from a third party, from whom defendant is free to obtain the documents.
Finally, to the extent the Typenex agreement was produced pursuant to the court order and does not otherwise appear to have been sought by Maciora’s earlier RFP, MEC is not obligated to provide a response which complies with Code of Civil Procedure §2031.230 [representation of inability to comply] but regardless, to the extent defendant now seeks an order compelling MEC’s further responses to the RFP (including a statement in conformity with §2031.230), the motion must be denied since defendant failed to file a separate statement as required by CRC Rule 3.1345(a)(3).
The court will also deny defendant’s request for monetary, evidentiary and/or other sanctions against MEC as none appear warranted under the circumstances here.
This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)
