PLAINTIFF’S REPLY BRIEF IN SUPPORT OF ITS EMERGENCY MOTION TO EXTEND OR CLARIFY THE DISCOVERY CUT-OFF DATE
INTRODUCTION
In opposing the Commission’s January 24, 2011 Motion to Extend or Clarify the Discovery Cut-Off (“Discovery Cut-Off Motion”), which seeks a limited extension (or clarification) of the discovery cut-off to allow the Commission to receive bank records it subpoenaed on January 24, 2011, Defendant Marco Glisson (“Glisson”) makes of number of factually, procedurally and legally deficient arguments, which collectively fail to refute the Commission’s prior showing that good cause ? namely, the delay caused by the refusal of Glisson, as well as his wife Thidarat Tungwongsathong (“Tungwongsathong”), to satisfactorily discharge their discovery obligations ? exists for a limited extension or clarification of the discovery cut-off.
In his Opposition Brief, Glisson brazenly attempts to capitalize upon his and Tungwongsathong’s well documented failures to discharge their discovery obligations in a timely manner. First, Glisson erroneously contends that the Commission agreed to their thirty day delay in providing deposition testimony and responsive documents. It did not. Ignoring the poor track record that he and Tungwongsathong accrued with respect to responding to the Commission’s discovery requests, Glisson then makes the self-serving argument that, had only the Commission served him with interrogatories, he would have provided the pertinent bank information in a timely fashion.
Next, seemingly oblivious to the relevance standard set forth in Rule 26(b)(1), Glisson makes the patently deficient argument that the bank records sought by the Commission are irrelevant to the underlying litigation. In doing so, Glisson ignores the reality that such records, which will show the frequency of Glisson’s transactions, as well as the amounts of money he received in connection with such transactions, is plainly relevant to the Commission’s claims under the securities laws, as well as its requests for disgorgement and injunctive relief.
Finally, Glisson attempts to invalidate the subpoenas by arguing that technical deficiencies regarding the manner in which he received notice constitutes a basis upon which to quash the subpoenas. However, Glisson has not moved to quash any of the subpoenas, and his own declarations of invalidity are ineffectual. Most importantly, the facts show that Glisson received ample and adequate notice of the subpoenas, and suffered no prejudice whatsoever from any defects in service. This fact is fatal to Glisson’s notice argument, as courts routinely deny efforts to quash a subpoena on the basis of notice deficiencies that result in no prejudice.
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