On February 9, 2016, Applicants petitioned this Court under 28 U.S.C. § 1782 (“Section 1782”) for an order compelling Litai Assets LLC (“Litai”), a company existing and organized under the laws of the State of Florida, to produce discovery for use in reasonably contemplated criminal foreign proceedings against Jean-Michael Paul (“Paul”), a director of Acheron Portfolio Corporation Luxembourg S.A. (“APC”). See ECF No. [1] (the “Section 1782 Application”).

On February 10, 2016, this Court entered an order granting the Section 1782 Application, authorizing Applicants to issue and serve subpoenas upon Litai for business records, deposition testimony, electronically stored information, any other electronic communications relating to any communication between Litai, Samuel (in his capacity as Chairman and CEO of Litai or in relation to Litai) and Paul, and any communications between Litai, Acheron Capital Limited (“ACL”), and/or APC. See Order Granting Ex Parte Application, ECF No. [7].

Samuel is the Chairman and CEO of Litai, and Applicants allege that Samuel is a close friend and business associate of Paul, which forms the basis for the improper business relationships alleged in the Section 1782 Application. See ECF No. [1] at 3–4; see also ECF No. [3], Sabatier Decl. ¶¶ 26, 31. Applicants allege, inter alia, that Paul committed violations of the Luxembourg Companies Law for fraud, misuse of corporate assets, and managerial misconduct by using his position as a director of APC to enrich Litai. See ECF No. [1] at 3–4. Applicants sought discovery from Samuel, in his capacity as Chairman and CEO of Litai or in relation to Litai, and Paul. Applicants contend that Paul also served as the “undisclosed owner, beneficial owner, or controller of Litai,” and through this concealed ownership of Litai, Paul abused his role as director of APC to its detriment. See id. Applicants also claim that since 2009, APC has paid ACL more than $10 million in “management fees,” which Applicants contend was grossly higher than the standard rate. See id.

On March 24, 2016, Litai moved to quash the subpoenas under Rule 45 of the Federal Rules of Civil Procedure and Local Rule 26.1, arguing that Applicants did not satisfy the elements of Section 1782. See ECF No. [10]. In their response filed April 18, 2016, Applicants moved to compel production in accordance with the Order granting the Section 1782 Application. See ECF No. [16]. On July 27, 2016, after Litai and Applicants timely filed their corresponding replies, the Court denied Litai’s motion to quash and granted Applicants' motion to compel.[1] See ECF No. [30].

*2 On July 14, 2017, Applicants submitted their Second Motion to Compel, alleging that Litai has failed to meet its discovery obligations. See ECF No. [43]. After the issues were fully briefed by the parties, ECF Nos. [54], [61], Samuel filed a Motion for a Protective Order, ECF No. [64]. In the motion, Samuel argues that service of the subpoena upon Litai for his deposition testimony was ineffective and invalid. See id. Applicants and Samuel have timely filed their responses. See ECF Nos. [68], [69]. Both the Second Motion to Compel and the Motion for a Protective Order are ripe for adjudication. As the motions concern related issues, the Court will address each.

Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery, providing in pertinent part that “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). Further, this section provides for attorney’s fees to the prevailing party on a motion to compel:

Fed. R. Civ. P. 37(a)(5)(A). Rule 37 “was toughened in 1970 to mandate that expenses be awarded unless the conduct of the losing party or person is found to have been substantially justified.” DeVaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1159 (11th Cir. 1993) (emphasis added) (citing Fed. R. Civ. P. 37 Advisory Committee Notes (West 1991 Revised)). The Supreme Court developed criteria to determine whether such party’s conduct is “substantially justified”—if it is a response to a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Id. at 1163 (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 2550, 101 L.Ed. 2d 490 (1988)); see also Maddow v. P&G, 107 F.3d 846, 853 (11th Cir. 1997). Moreover, the burden of establishing such “substantial justification” is on the losing party. Procaps S.A. v. Patheon Inc., No. 12–24356–CIV, 2013 WL 6238647, at *5 (S.D. Fla. Dec. 3, 2013). Notably, there is no requirement that a court find that a party acted in bad faith before awarding attorney’s fees pursuant to Rule 37. Devaney, 989 F.2d at 1162 (“The language ‘advising such conduct’ in Rule 37 does not incorporate either heightened procedural requirements or a bad faith test into that rule.”).

Rule 26(c) of the Federal Rules of Civil Procedure protects those deposed from “annoyance, embarrassment, oppression, or undue burden or expense,” but not from mere inconvenience. Fed. R. Civ. P. 26(c). The party making the motion must show that “good cause” exists for the protective order. See id. In addition to good cause, the court must also satisfy itself that, on balance, the interests of those seeking the protective order outweigh the interests of the opposing party. See McCarthy v. Barnett Bank of Polk County, 876 F.2d 89, 91 (11th Cir. 1989). The interests involved are confidentiality versus access to information. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2003). Protective orders prohibiting depositions, however, are rarely granted. SeeBaratta v. Homeland Housewares, LLC, 242 F.R.D. 641, 642 (S.D. Fla. 2007) (citing Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (“It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.”)).

*3 Applicants seek the Court’s enforcement and supervision of the discovery process due to Litai’s refusal to correct its document production deficiencies, as well as the fees and costs incurred in making their Second Motion to Compel. Litai maintains that the motion should be denied because it forces Litai to prove a negative, and because the discovery burden is disproportionate to the issues in the potential foreign criminal proceedings against Paul. In addition, Samuel has moved the Court to enter a protective order finding that the service of the subpoena upon Litai for Samuel’s deposition testimony was ineffective and invalid. The Court will address each of the motions in turn. In order to better ascertain the reasonableness of Litai’s production, however, the Court will first detail the discovery that has taken place so far.

On February 9, 2016, the Court authorized Applicants to conduct discovery to determine whether Paul, allegedly a close friend and business associate of Samuel, has an undisclosed interest in Litai.[2] ECF No. [7]. The subpoena, which was issued by the Clerk of Court on February 18, 2016, authorized discovery into:

See “Requested Documents,” ECF No. [45–1]. On or about February 22, 2016, Applicants served subpoenas on Litai’s registered agent for depositions under Rules 30(b)(1) and 30(b)(6) of Samuel (in his official capacity as Litai’s Chairman and CEO) and a Litai representative, respectively. See ECF No. [55–8].

The parties agreed that Litai would provide its initial production within 14 days of the Eleventh Circuit’s denial of Litai’s request for a stay of discovery. See ECF No. [54–2] at 10, 12. The Eleventh Circuit denied Litai’s stay on February 8, 2017. See Furstenberg Finance SAS v. Litai Assets LLC, No. 16–15664–DD (11th Cir. Feb. 8, 2017). Thus, Litai was to make its initial production on February 22, 2017. Prior to producing its discovery documents, however, Litai sought a protective order from Applicants without the Court’s intervention. Litai then responded to Applicants' proposed protective order by requesting an “attorneys eyes only” provision. See ECF No. [54–2] at 10. On March 9, 2017, Applicants sent further revisions to the protective order and sought to meet with Litai to discuss its search methodology. See id. at 7–8. Litai did not respond. Accordingly, on March 13, 2017, Applicants asked Litai to make its initial production by March 15, 2017 and Litai agreed to do so. See id. at 7.

*4 On the day production was due, Applicants circulated a signed copy of the approved protective order and again requested to meet to discuss Litai’s search methods. See id. at 6. The next day, Litai sent a countersigned protective order and, following a third request by Applicants to discuss Litai’s search procedures, refused to disclose its methodology, indicating that it was under no obligation to do so. See id. at 4–5. After a few email exchanges, Litai agreed to consider proposed search terms. See id. at 4. On March 20, 2017, Applicants provided Litai with 32 proposed search terms.[3] See id. at 2–3. Two days later, Litai rejected all 32 of the proposed search terms, stating that the “proposed terms bear no relation whatsoever to either what was authorized by the court or what was set forth in the subpoenas.” Id. at 2. Litai then stated that the terms that do bear some relation to the subpoenas would generate too many “hits.” See id. Litai suggested that Applicants propose connectors to avoid excessive “hits.” See id. On March 28, 2017, the Court entered the agreed-upon protective order. See ECF No. [39].

On April 1, 2017, Litai produced 173 pages of information, comprised of redacted bank documents, wire transfer records, IRS documents, formal corporate documents, and roughly five e-mails. See ECF No. [44] at 6. According to Applicants, Litai failed to produce any documents regarding its distribution of profits or revenues. See ECF No. [43] at 5. Also missing from Litai’s initial production were any emails to, from, or concerning Paul. Seeid. at 6.

After further disputes between the parties regarding the proposed search terms' relevance and how to limit them, Applicants sent Litai a chart containing brief descriptions of the relevance of each search term. See ECF No. [44–2]. In the same correspondence, Applicants again asked Litai for the amount of “hits” each search term generated “so that [their] efforts to add connectors or otherwise limit the scope of terms make sense.” ECF No. [44–1] at 2. On May 31, 2017, Litai informed Applicants that it had searched 12 of the terms, but that the searches yielded no responsive documents. See ECF No. [54–3]. Litai did not state how many “hits” each of the 12 terms produced. It did, however, return Applicants' chart with its own comments, noting the “Requested Documents” section of the subpoena that each term (if relevant) might correspond to. See ECF No. [44–4]. Litai then asked Applicants to indicate which section of the subpoena they believed each proposed term was relevant to and to provide connectors for the remaining terms. See ECF No. [54–3].

The additional searches did produce some results: after searching “Alpcap,”[4] Litai produced two pages containing a single page of e-mail correspondence. See ECF No. [44–6].

Since then, the parties have corresponded multiple times in efforts to resolve the issues between them without the Court’s intervention. While a few matters have been resolved, the parties continue to disagree about the scope of the Court’s authorized discovery, the relevance of certain search terms, and transparency regarding Litai’s search methods.

Litai has failed to adequately comply with the subpoena authorized by the Court. First, the Court notes that absent the entry of a stay on appeal—which Litai failed to obtain—the Court retains jurisdiction to enforce its orders. See Sergeeva v. Tripleton International Limited, 834 F.3d 1194, 1202 (11th Cir. 2016).

*5 Given the scope of authorized discovery in this case, the roughly 175 pages produced by Litai cast doubt on the reasonableness of Litai’s production and search methodologies. To begin, it is worth noting that 31 pages in Litai’s production were effectively a redaction log of the information produced. See ECF No. [44] at 8. Litai’s total production of responsive information has thus amounted to approximately 145 pages of information.

The subpoena, moreover, authorizes the discovery of communications between Litai or Samuel and any entity owned or controlled by Samuel and Paul (and even entities known to be affiliated with or owned by Paul) concerning the ownership or distribution of profits and revenues of Litai. ACL, which is owned by Paul, manages the investments of APC, where Paul is a director. Litai—whose Chairman and CEO is Samuel—services APC’s life insurance policies. Beyond the business ties between the entities owned or controlled by Samuel and Paul, both men are alleged to be close friends. Nevertheless, Litai did not produce any emails to, from, or even referencing Paul.[5] In fact, Litai produced approximately six emails total. That Litai has not produced any emails between Litai or Samuel and Paul makes it difficult to conclude that its search efforts or methods have been reasonable.

Indeed, Litai’s supplemental production lends further support to Applicants' contention that Litai’s production has been deficient. After searching the term “Alpcap,” Litai produced an email containing the terms “Samuel,” “owns,” and “Litai.” See ECF No. [44–6] at 2. These three terms are undoubtedly responsive to the subpoena authorized by the Court. As such, it is untenable that an email containing these three terms was not produced earlier.

The subpoena also authorizes the production of business records regarding the distribution of profits or revenues of Litai. Yet Applicants allege that Litai has not produced any documents regarding its profits and revenues, and Litai has not denied the allegation.

Furthermore, and despite continued requests by Applicants, Litai has failed to produce unredacted copies of any documents marked as “attorneys' eyes only” (as mandated by the Court’s protective order, ECF No. [39] ¶ 3(k), or to designate a corporate representative to be deposed.[6]

Litai asserts that the reason why it has produced such few responsive documents is due to the fact that these documents simply do not exist. In other words, Litai has not produced documents indicating that Paul has direct or indirect ownership interests in Litai because Paul has no direct or indirect ownership in Litai. See ECF No. [54] at 4–6. Because Litai cannot “prove a negative,” any further discovery will not yield any more documents.[7] Litai also contends that the proposed search terms are “irrelevant to any issues set forth” in the subpoena and are “significantly overbroad in that they return an inordinate number of ‘hits’ to be reviewed for responsiveness.” See id. at 6.

*6 The Eleventh Circuit Court of Appeals, however, has rejected such “all-or-nothing” approaches to discovery requests that seek to remove a party from the burden of “having to produce any documents or deposition testimony, even those that seem unambiguously relevant.” Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262, 1272–73 (11th Cir. 2014) (emphasis in original). It is possible that Litai has produced the only relevant documents in its possession. Yet all Litai has said regarding its search methods is that “[t]he terms used to search emails have been derived from the language of [the ‘Requested Documents’ section under the subpoena].” ECF No. [54–6] at 6. By refusing to provide meaningful details about its search processes, the Court is not in a position to dispel any concerns Applicants or the Court might have regarding the reasonableness of Litai’s production.

To be fair, Litai has identified some of the terms it deems to be overly broad or irrelevant.[8] See ECF No. [44–4]. Nonetheless, Litai has refused other requests by Applicants to narrow discovery. Applicants, for example, attempted to meet Litai somewhere in the middle by agreeing to provide connectors if Litai provided information about its search results. See ECF No. [61] at 4. After all, information regarding “hit” counts could shed light on the relevance of Applicants' search terms or the reasonableness of Litai’s searches. In an email dated June 20, 2017, counsel for Litai claimed that Litai “searched all proposed terms that generate 3,000 hits” but that the “large majority of the remaining terms generate between 6,000 and 14,000 hits each.” See ECF No. [54–5]. Yet the email did not specify the number of “hits” each term was generating. Nevertheless, Litai continued to ask Applicants for connectors without ever providing the requested “hit” information or explaining how Litai’s approach was reasonable.

Litai has expressed concerns that the authorized discovery is unduly burdensome and costly.[9] See ECF No. [54] at 10–15. The nature of Applicants' inquiry—attempting to uncover undisclosed ownership interests in Litai—necessarily entails a good deal of discovery. It is doubtful that sophisticated corporate entities would document secret ownership interests in its formal business records. It therefore makes sense that the authorized discovery in this case seeks information that goes beyond Litai’s official documents.[10] Further, had Litai provided clear statements and justifications regarding its production efforts, the Court would be in a better position to allay any concerns Litai may have regarding excessive discovery costs. In any case, Applicants have expressed that they are “willing to pay their fair share of a reasonable portion of disclosure costs to mitigate” such burdens. ECF No. [61] at 15.

*7 In sum, the Court finds that Litai has not met its obligation to faithfully respond to the authorized discovery, despite numerous, reasonable attempts by Applicants to narrow the scope of the requests and otherwise address production issues without the Court’s intervention. As a result, Applicants' Second Motion to Compel is granted.

The Court finds that Applicants are entitled to attorneys' fees. Under Rule 37, a court must award the prevailing party in a motion to compel their attorney’s fees unless the losing party can show a substantial justification (or other exception) for the conduct in failing or refusing to produce discovery. See Fed. R. Civ. P. 37(a)(5)(A).

Litai contends that there is no legal or factual justification for attorneys' fees. Unless other provisions are made, however, discovery in a Section 1782action is governed by the Federal Rules of Civil Procedure. See 28 U.S.C. § 1782(a). Thus, the statute itself strongly suggests that the Court has the authority to issue subpoenas and, in the event of noncompliance, orders for fees or sanctions. This is plain from Sergeeva v. Tripleton International Limited, where the Eleventh Circuit suggested, without explicitly deciding, that the imposition of sanctions in a Section 1782 action was appropriate. See Sergeeva, 834 F.3d 1194 (11th Cir. 2016) (affirming the district court’s contempt order in a Section 1782 action after the respondent had ample opportunity to show cause as to why it should not be sanctioned); see alsoIn re FG Wilson (Engineering) Ltd., No. 10–20843–MC, 2011 WL 5361073 (S.D. Fla. Nov. 7, 2011) (awarding expenses in a Section 1782 action pursuant to the provisions of Rule 37).

District Courts are given considerable discretion under the Federal Rules of Civil Procedure to specify the conditions for discovery. One of the Court’s primary ways of ensuring these conditions are abided is through its power to impose fees and sanctions. Without this authority, it would be difficult for the Court to follow through on one of Section 1782’s primary aims: to provide efficient means of assistance to participants in international litigation in our federal courts. See Application of Malev Hungarian Airlines, 964 F.2d 97, 99 (2d Cir. 1992) (citing S.Rep. No. 1580, 88th Cong., 2d Sess. (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3792–94) (emphasis added).

In light of the foregoing, the Court finds that attorneys' fees are warranted. Litai has not established that its deficient production was substantially justified in any way, let alone that it occurred despite its reasonable efforts to comply with the Court’s subpoena. Beyond its deficient production, Litai has not shown good cause for its failure to provide Applicants with meaningful information regarding the number of “hits” for Applicants' proposed terms or its search methodologies. Accordingly, and pursuant to Rule 37(a)(5)(A), Applicants shall be awarded attorneys' fees and costs, the amount to be determined at a later date.

Samuel seeks a protective order from the Court holding that the service of the subpoena upon Litai for Samuel’s deposition was ineffective and invalid because the subpoena: (1) was beyond the scope of the subpoenas authorized by the Court; (2) was not issued by the Clerk; (3) was not personally served upon Samuel; and (4) was not accompanied by a check for witness fees in accordance with Fed. R. Civ. P. 45. Applicants argue that Litai must produce Samuel for deposition under Rule 30(b)(1). The Court finds that a protective order is unwarranted in this case as Litai was properly noticed under Rule 30(b)(1) to produce Samuel for deposition.

*8 Samuel first argues that the subpoena issued for his deposition testimony is invalid because the Court only authorized Applicants to serve subpoenas for deposition testimony upon Litai, and not Samuel.[11]Applicants contend that, given the hybrid nature of Section 1782 actions, Applicants and Litai should be considered “parties” to this Section 1782proceeding. Thus, a subpoena noticed upon Litai under the auspices of Rule 30(b)(1) would compel Litai to produce Samuel for deposition in his capacity as an officer of Litai. Samuel disagrees, claiming that Litai is a non-party subject to Rule 45’s requirements for serving subpoenas. In support of their proposition, Applicants rely on In re Ex Parte Application of Porsche Automobil Holding, SE, No. 15–mc–417 (LAK), 2016 WL 702327, at *2 (S.D.N.Y. Feb. 18, 2016), where the court stated that “[I]n a formal sense, the parties to this [Section 1782] proceeding are [the applicant], which obtained leave from this Court to serve subpoenas on eight entities, and the eight subpoena recipients.”

As previously mentioned, Section 1782 actions are governed by the Federal Rules of Civil Procedure. Thus, if Litai is considered a formal party to this Section 1782 action, then notice pursuant to Rule 30(b)(1) would suffice to compel Litai to produce Samuel for a deposition. The Federal Rules of Civil Procedure permit two types of corporate depositions. First, a party may notice a particular officer or agent of the corporation via Rule 30(b)(1). SeeStelor Prods., Inc. v. Google, Inc., No. 05–80387–CIV, 2008 WL 4218107, at *3 (S.D. Fla. Sept. 15, 2008). Second, a party may notice the deposition of a corporation without naming a specific person to be deposed, instead describing the information sought via Rule 30(b)(6). See id. Under this approach, the corporation must designate someone to testify on the corporation’s behalf. See id. “A party may use both types of discovery when attempting to elicit information about a corporation.” Id.

In the present case, there is no doubt that: (1) Samuel, Litai’s Chairman and CEO, is an officer of Litai; or (2) Litai was properly noticed of the subpoena under Rule 30(b)(6).[12] By conceding that it was properly noticed under Rule 30(b)(6), Litai has effectively conceded that it was properly noticed under Rule 30(b)(1) as well. After all, “a subpoena [under Rule 45] need not be issued if the person to be deposed is a party, officer, or managing agent of a party.” Calixto v. Watson Bowman Acme Corp., No. 07–60077–CIV, 2008 WL 4487679, at *2 (S.D. Fla. Sept. 29, 2008). Litai contends that under Rule 30(b)(6), it has the right to designate its corporate representative. Litai is correct. Rule 30(b)(6), however, “does not preclude a deposition by any other procedure allowed by [the] rules.” Fed. R. Civ. P. 30(b)(6). Thus, “a party who wishes the deposition of a specific officer ... of a corporation may still obtain it and is not required to allow the corporation to decide for itself whose testimony the other party may have.” United States v. One Parcel of Real Estate at 5860 N. Bay Rd., Miami Beach, Fla., 121 F.R.D. 439, 440 (S.D. Fla. 1988) (citing 8 Wright & Miller, Fed. Practice and Proc: Civil § 2103 p. 375 (2d ed. 1970)).

*9 Applicants have repeatedly stated that they intend to depose Samuel in his capacity as Chairman and CEO of Litai. Typically, if a party wants to depose a high-ranking principal of a corporation, the party should demonstrate that the principal has unique personal knowledge of the matter at issue. See Stelor Prods., Inc., 2008 WL 4218107 at *4. A deposition is thus unlikely to be allowed where the information is obtainable through interrogatories, the deposition of a designated spokesperson, or deposition testimony of lower-ranking officials. See Baine v. General Motors Corp. 141 F.R.D. 332, 334–36 (M.D. Ala. 1991) (summarizing the approach of courts in various jurisdictions).

But here, Applicants claim that Samuel has direct, unique, and personal knowledge that he alone possesses, namely: the beneficial ownership of Litai; Paul’s involvement with Litai; Samuel’s discussions and correspondence with Paul concerning Litai; and, how Samuel, a foreign national with no prior insurance experience, was named CEO of a Florida-based insurance company.[13] See ECF No. [68] at 2. Litai could prepare a lower-ranking official to testify about such matters, and Applicants could then depose Samuel on any questions that remain unanswered. See Stelor Prods., Inc., 2008 WL 4218107 at *4. Yet given that Samuel is in sole possession of information relevant to Applicants' Section 1782 inquiry into whether Paul is a secret or undisclosed owner of Litai, there are certain to be unanswered questions following the deposition of a lower-ranking official that lacks personal knowledge. Such an effort seems inefficient and a waste of the parties' resources. Because the information sought after is not obtainable by other methods, the Court finds that Applicants may depose, and Litai must produce, Samuel under Rule 30(b)(1).

The Court finds that good cause has not been established for Samuel’s Motion for a Protective Order. On balance, Samuel’s concerns do not outweigh Applicants' need for access to information that only Samuel possesses. The Court is of the opinion that Litai has been properly noticed under Rule 30(b)(1) to produce Samuel for deposition. Samuel’s Motion for a Protective Order is therefore denied.

Applicants have established that Litai’s discovery has been deficient, particularly in light of Litai’s reluctance to narrow the document requests under the subpoena or to provide any meaningful details about its search methodologies despite repeated appeals. Accordingly, Applicants have also shown that they are entitled to attorneys' fees. Further, Samuel has not succeeded in showing good cause for a protective order because Litai received proper notice of the subpoena under Rule 30(b)(1).

It is therefore ORDERED AND ADJUDGED that

DONE AND ORDERED in Miami, Florida this 30th day of October, 2017.

Litai appealed the Court’s order, ECF No. [31], and sought to stay discovery pending the appeal, ECF No. [32]. This Court, as well as the Eleventh Circuit Court of Appeals, denied Litai’s motion to stay pending appeal. See ECF No. [36]; see alsoFurstenberg Finance SAS v. Litai Assets LLC, No. 16–15664–DD (11th Cir. Feb. 8, 2017).

According to Applicants, this undisclosed interest would be a criminal offense under Luxembourg law. See ECF No. [25–1].

The terms are: “5m”; “Acheron”; “Ahmose”; “APC”; “Avernus”; “Brix”; “Bui”; “Carlo Toller”; “Colonial Palms”; “Horo”; “jan-eric.samuel@alpcap.com”; “jan.eric.samuel@gmail.com”; “jan-eric.samuel@horo-holdings.com”; “jan.eric.samuel.realtor@gmail.com”; “Jean-Michel”; “JMP”; “JPaul@acheroncapital.com”; “Kalfon”; “Litai Properties”; “Litai Real Estate”; “Lorenzo”; “Mukamal”; “Neptune”; “Nordland”; “Palm Village”; “Paul”; “Seychelles”; “Tanamur”; “Tomson”; “Tonti”; “Vietnam”; and “Wiking.” See ECF No. [54–2] at 2-3.

Applicants included this additional search term when they sent Litai their chart briefly describing the relevance of each term. See ECF No. [44–2]. On June 9, 2017, Applicants indicated to Litai that the term “Vespera” should be searched as well. SeeECF No. [44–6] at 2.

This, despite Litai conceding that searching for “Paul” generated more than 20,000 “hits.” See ECF No. [53–1] ¶ 42. That all these communications failed to produce a single meaningful email concerning Paul is difficult to accept.

In its opposition to the Second Motion to Compel, Litai conceded that Applicants served a subpoena on Litai for the deposition of a corporate representative, and that it “is fully prepared to present” one. ECF. No. [54] at 20. Litai did not, however, provide any justification for its failure to present one over the past few months despite repeated requests from Applicants.

Litai also asserts that any “new” discovery will result in “diminishing returns.” ECF No. [54] at 9-11. Applicants, though, are not seeking new discovery—only discovery that is due under the subpoena and has yet to be produced by Litai.

Specifically, Litai presented 12 terms in its response to Applicants' Second Motion to Compel that it believes are irrelevant. See ECF No. [54] at 6–7. Litai claimed that it nevertheless “ran these additional search terms, and reviewed all of the documents that included the search terms, none of which were remotely responsive to the Subpoena.” Id. at 7. Such overarching statements by Litai without any evidence as to its search processes make it difficult to assess the reasonableness of the searches. Similarly, rather than also asserting how the scope of Applicants' proposed order should be narrowed, Litai only argued that the proposed order should be rejected in full. See ECF No. [54] at 18–21; see alsoConsorcio, 747 F.3d at 1273 (describing all-or-nothing discovery challenges as “problematic”).

Litai’s attempts to link the reasonableness of the authorized discovery to the economic interests of Applicants, such as the number of APC shares they own, are inapposite in this case given that Applicants are contemplating criminal foreign proceedings against Paul.

According to Applicants, even the few corporate records that Litai has provided raise questions about its ownership: Litai’s production revealed offshore ownership of Litai by Swiss and Singapore entities, as well as shifts in the chain of ownership that purportedly conflict with other records and representations by Samuel. See ECF No. [43] at 5; see also ECF No. [44] ¶¶ 39–42.

Samuel relies on the Court’s February 20, 2016 Order for his second argument that only the Clerk was authorized to issue subpoenas. See ECF No. [64] at 3. However, the Court’s February 10, 2016 Order only required the Clerk to issue subpoenas “relating to communication between [Litai] ... [Samuel] ... and [Paul], and any communication between Litai, [ACL] and/or [APC].” See ECF No. [8] (emphasis added). On the other hand, the Court’s Order granting Applicants' Section 1782application authorized Applicants to “issue and serve subpoenas upon [Litai] for ... deposition testimony....” See ECF No. [7]. Applicants, therefore, did not violate the Court’s orders when they issued subpoenas for deposition.

Litai has admitted as much, stating that it “is fully prepared to present” its corporate representative for deposition testimony. ECF. No. [54] at 20. While Litai has not disclosed who it intends to designate as its representative, it seems highly doubtful that it will select Samuel.

The information Applicants seek in relation to the deposition under Rule 30(b)(6) regards Litai’s production efforts and search methodology. See ECF No. [43–1] at 1–2. Thus, it is unlikely that Litai’s corporate representative will also be able to speak on matters surrounding Litai’s ownership and the business relationships between Samuel and Paul.