MyECheck v Kenneth Maciora et al: Tentative Ruling Issued August 1, 2018
2016-00202624-CU-SL
MyECheck, Inc. vs. Kenneth Maciora
Nature of Proceeding: Motion to Compel
Filed By: Maciora, Kenneth
Pro-per Defendant Kenneth Maciora’s “(Maciora”) “motion to compel Plaintiff’s further response for compliance with the Court’s order and Defendants request for production (set four), request for sanctions” is ruled upon as follows.
Background
On 3/28/2018, the Court partially granted Plaintiff’s MyEcheck, Inc.’s (“MEC”) motion for protective order. Maciora had propounded Requests for Production, Set Four, on MEC. The RFPs provided the following definitions:
1. UBA Contract - The valid and effective contract referred to in Paragraph 85 and Paragraph 86 of your Third Amended Complaint.
2. Tangiers Capital Contract - The valid and effective investment agreement between MEC and Tangiers Capital referred to in Paragragh 87 of the Third Amended Complaint.
3. Chicago Ventures Contract - The valid and affective investment agreement between MEC and Chicago Ventures referred to in Paragraph 87 of the Third Amended Complaint
The request for production asked for the "valid and effective" copy of the "UBA contract," "Tangiers Capital contract," and the "Chicago Ventures contract." The contracts/investment agreements with these three entities are specifically alleged to be the basis for MEC's causes of action for intentional interference with prospective economic advantage and with contractual relations.
MEC moved for a protective order relieving it of the obligation to produce these contracts to Maciora on the ground these contracts contain private, sensitive information which Maciora is likely to use to further his assaults on MEC, its stock, its shareholders and the prospective purchasers of MEC stock, causing still more irreparable harm. The Court allowed MEC to redact from each of the contracts the information which is either sensitive or trade secret and the disclosure of which would unduly or irreparably harm MEC, its stock or its reputation before producing the contracts to defendant Maciora.
MEC then produced the documents in redacted form. Maciora argues that the produced documents are not the actual contracts. He also takes issue with the redactions. Maciora seeks the following by way of this motion:
·
An order compelling MEC to produce the valid and effective contracts
·
Monetary sanctions pursuant to CCP §2031.030
·
Evidence sanctions pursuant to CCP §2023.030
·
Monetary sanctions pursuant to CCP §177.5
·
Relief from the Protective Order
Analysis
Maciora first contends that the produced documents are not the actual contracts\investment agreements. In response, MEC notes that the documents produced for Chicago Ventures is not the investment agreement. MEC produced a Form 8-K, dated October 19, 2015. MEC states “given that there are a series of loan agreements between MEC and Typenex [a subsidiary of Chicago Ventures], MEC produced its Form 8-K in an effort to provide Maciora with the most efficient mechanism to summarize only the information relevant to MEC's claims and/or Maciora's defenses. (Declaration of Ryan Hanlon, ¶ 2.) Given MEC’s concession that the Form 8-K is not the actual contract, the motion is GRANTED as to the Chicago Ventures contract.
The motion to compel production as to United Bank of Africa and Tangiers Capital is DENIED. With respect to the United Bank of Africa, the contract produced is between United Bank of Africa and Centric Gateway. According to MEC, "Centric Gateway is an authorized licensee of MEC and sells MEC's proprietary software. [Thus], [t]his is the contract and corresponding business relationship that is referenced in MEC's operative Complaint." (Declaration of Ryan Hanlon, ¶ 2.) With respect to Tangiers Investors, MEC produced a 8% Convertible Debenture Agreement, which shows that Tangiers Investors agreed to pay MEC a certain sum plus 8% interest per year. It appears to the Court that these documents are the contracts/investment agreements and responsive to the RFPs.
Maciora also requests that MEC produce the unredacted versions of Form 8-K (Chicago Ventures) and 8% Convertible Debenture Agreement (Tangiers Investors) these documents are publicly available in unredacted form. Maciora was able to locate the unredacted copies through the SEC or through the Federal District Court’s electronic service known as PACER. MEC claims that because Maciora has the unredacted versions, that the motion is moot. The Court is not convinced that the motion is moot. Given that the documents are publicly available, the redactions should be removed. As to the Tangiers Capital and Chicago Ventures, the motion is GRANTED. MEC shall serve the unredacted versions of the Form 8-K and 8% Convertible Debenture Agreement. As to United Bank of Africa, the motion is DENIED.
By no later than August 15, 2018, MEC shall produce the identical, but unredacted versions of the Form 8-K (Chicago Ventures) and 8% Convertible Debenture Agreement (Tangiers Investors.
By no later than August 15, 2018, MEC shall produce the actual contract(s) with Chicago Ventures, subject to the current protective order. MEC may redact the information which is either sensitive or trade secret and the disclosure of which would unduly or irreparably harm MEC, its stock or its reputation before producing the contracts to defendant Maciora.
Maciora’s request for monetary sanctions pursuant to CCP §2031.030 and CCP §177.5 is DENIED.
Maciora’s request for evidence sanctions pursuant to CCP §2023.030 is DENIED.
The Court is not convinced that such sanctions are warranted.
Maciora’s request for relief from the protective order is DENIED.
Maciora's objections to evidence are OVERRULED.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.
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