Is he a fraud-perpetrating, discovery-avoiding scoundrel? Or is he a duty-fulfilling, order-following litigant who has been unfairly smeared?

The memoranda filed in connection with Petitioners David A. Godfrey and Yukos Finance B.V.’s motion to compel present two dramatically different views of Lynch. [ECF Nos. 53; 55].[1]

According to Petitioners, Lynch played a “key role” in the rigged 2007 Russian auction of Yukos Oil assets, engaged in “years of evasive tactics and gamesmanship” designed to further his goal of avoiding discovery obligations, and then “obstructed the fact-gathering processes” in this 28 U.S.C. § 1782 proceeding. [ECF No. 53, p. 4].

But Lynch says that Petitioners have buried him in an “avalanche of paper” and that he is the victim of a “distorted story meant to misdirect” this Court. [ECF No. 55, p. 5]. In Lynch's view, not only was he not unduly evasive or uncooperative at a recent Court-ordered deposition that took place in London, but he followed this Court's discovery Order “with utmost seriousness” and was “cooperative and helpful” during the deposition. [ECF No. 55, pp. 9–10]. He also argues that Petitioners “misrepresent” what happened at the deposition. [ECF No. 55, p. 20].

Lynch's deposition lasted slightly more than six hours. Represented by counsel at that deposition (even though Lynch says that he is proceeding pro se in this § 1782 proceeding), Lynch (1) refused to answer questions outside of a certain time period, (2) did not produce a single electronically stored document, and (3) produced some hard copy materials that Petitioners describe as “woefully incomplete” and afflicted by “obvious deficiencies.” [ECF No. 53, p. 6]. They contend that the limited documents Lynch did produce were “in disarray and with no discernible order” and were accompanied by an inaccurate production index. [ECF No. 53, pp. 10–11].

But Lynch says that the time restriction he adopted arises from a good-faith dispute about the interpretation and implications of one word in both the Undersigned's earlier-issued Report and Recommendations and United States District Judge Marcia G. Cooke's follow-up Order. [ECF Nos. 45; 49]. Concerning the documents, Lynch contends that (1) he did not refuse to cooperate in attempting to obtain deleted emails from his email-service providers that are “beyond his technical and financial capacity to obtain on his own”; (2) Petitioners “have not followed up with him” about the deleted emails; and (3) he was not aware of the Petitioners’ request to obtain documents from his attorneys until he reviewed the instant motion to compel. [ECF No. 55, pp. 5–6].

*2 The diametrically different views of Lynch mirror the portraits presented of him in the motion practice underlying the initial application for subpoenas and Lynch's efforts to quash them. In their opposition to Lynch's motion to quash, Petitioners described Lynch as preventing them from obtaining key evidence of, among other things, “damning truths that [Lynch] has hidden from courts through intentional evasion of service, [and] manufactured jurisdictional challenges and other gamesmanship, for nearly ten years.” [ECF No. 18, pp. 7–8]. But Lynch's memorandum in support of his motion to quash described this § 1782 proceeding as “no more than a nuisance action by the Petitioners aimed at harassing [him].” [ECF No. 12, p. 12]. And in a supplemental declaration filed in support of his motion to quash, Lynch averred that Petitioners had “repeatedly used illegal and nearly violent methods to pursue and harass [him].” [ECF No. 30, p. 2].

After Petitioners questioned Lynch at the London deposition, they filed the motion to compel that is before me now, Lynch filed an opposition response, and Petitioners filed a reply. [ECF Nos. 53; 55–56]. Petitioners seek an Order requiring Lynch to (1) appear in London for an additional 3.5 hours of deposition; (2) answer all deposition questions unless an appropriate privilege exists; (3) not be subject to a time-period limitation; (4) within 30 days, produce all not-yet-produced responsive, non-privileged documents in his possession or custody; (5) retain an English attorney (at Petitioners’ expense) to manage the process of obtaining documents from third parties (i.e., his “English Discovery Counsel”); (6) within 21 days, authorize and request all his current and former lawyers to release documents they have in Lynch's client files to his English Discovery Counsel; (7) within 21 days, authorize and request all relevant email-service providers to produce all documents they have for his email accounts after January 1, 2007; (8) arrange for his English Discovery Counsel to review all documents received from the third parties for responsiveness to the subpoena duces tecum served on him on May 3, 2017, and to produce all responsive, non-privileged documents to Petitioners on a rolling basis; (9) cause his English Discovery Counsel to provide a privilege log to Petitioners; and (10) cause his English Discovery Counsel to provide updates every two weeks about the status of the document review and production efforts. [ECF No. 56-1].

Confronted with this multi-factored request for relief, Lynch says that he will consent to a search of his English counsel's records (but only for documents in what he deems the “Relevant Period” and only if Petitioners pay the cost of his travel to London to meet with his lawyers to ensure the protection of privileged information). [ECF No. 55, p. 13]. He does not, however, agree to a continued or additional deposition. But if the Court were to require him to sit for an additional deposition, then he asks that the deposition be limited to one hour and to exclude questions he answered at his deposition in London and exclude questions about his “financial affairs or assets which have no relevance to the English Proceedings” (i.e., litigation which Yukos Finance filed against Lynch and others and which is pending in London). [ECF No. 55, p. 23].

For the reasons set forth in greater detail below, the Undersigned grants Petitioners’ motion to compel. Specifically, the Undersigned grants requests one through ten outlined above, permitting Petitioners to take another (or resumed) deposition of Lynch, which will not exceed 3.5 hours but which will not restrict the questions to those in the so-called “Relevant Period” (i.e., documents created between January 1, 2007 and August 15, 2008). This time period mentioned in the original Report and Recommendations concerned only document production, not deposition questions. The Undersigned also grants all the document-related requests suggested by Petitioners.

I. Factual and Procedural Background

*3 Judge Cooke referred this matter to the Undersigned for a ruling on all pre-trial, non-dispositive matters and for a Report and Recommendations on any dispositive matters. [ECF No. 20]. The Undersigned issued a Report on the motion to quash subpoena (filed by Lynch) and the motion to compel compliance (filed by Petitioners). [ECF No. 45]. Those two mirror-image motions concerned two subpoenas that were served on Lynch. One subpoena required him to provide deposition testimony; the other required him to provide deposition testimony and produce documents on the same day. [ECF No. 18-4].

In the Report and Recommendations, the Undersigned recommended, among other things, that

[ECF No. 45, p. 2 (emphasis in italics supplied)].

The Report also discussed the notion of unduly burdensome discovery, explaining that Petitioners asked for only one deposition and that “Lynch does not argue how sitting for one deposition would be unduly burdensome.” [ECF No. 45, p. 25]. In addition, the Undersigned noted that Lynch's generalized complaints about the burden of production was not convincing, explaining that Lynch did not specify the burden or suggest how the requests should be narrowed. Similarly, the Report further explained that Petitioners did “not explain why documents postdating the auction at issue by several years (assuming such documents exist) would be relevant.” [ECF No. 45, p. 26 (emphasis added)].

Lynch filed objections to the Report and Recommendations, and Petitioners filed an opposition response. [ECF Nos. 47–48]. In their response, Petitioners explained that “Judge Goodman did not recommend granting Petitioners’ motion in its entirety only because he recommended limiting Lynch's required document production to documents dated between January 1, 2007 and August 15, 2008.” [ECF No. 48, p. 1 n. 1 (emphasis added)]. Significantly, Petitioners did not then also mention that the limit on the applicable time period applied to deposition questions. To the contrary, it discussed only a limit on document production.

Judge Cooke adopted the Report and Recommendations and used the same language about the “relevant time period for the supboenas,” noting (as I did) immediately after that language that Lynch must product relevant, non-privileged documents within 30 days. [ECF No. 49, p. 1].

Given the history and context, it is thus clear that the ruling about the “relevant time period” concerns only the document production, not the deposition questions.

Petitioners paid for Lynch's travel expenses for his trip from Moscow to London for his deposition. At the deposition, Lynch, for the most part, refused to answer questions or provide information on facts, events, and communications outside of the January 1, 2007/August 15, 2008 time period. As explained by Petitioners in their motion to compel, Lynch's decision to not answer these questions enabled him to avoid questions “about issues directly relevant to the claims in the English Proceedings—which relate not only to the sham Yukos Lot 19 auction but also to the subsequent wrongdoing of Lynch and his co-conspirators ...[,] including their fraudulent litigation efforts over the past decade.” [ECF No. 53, p. 5]. They also allege that “by invoking the time period limitation, Lynch improperly avoided lines of questioning that bear directly on his credibility and [that] could be used for impeachment purposes.” [ECF No. 53, p. 14].

*4 Petitioners’ motion contends that “Lynch's purported belief that he could restrict his testimony was based on his incorrect interpretation of the Report and the Order, which limited Lynch's document production obligations ... but did not place any such time limitation on the topics of the deposition.” [ECF No. 53, p. 5]. They contend that Lynch faced no increased burden in answering questions posed to him once he was seated for the deposition, and they argue that his so-called testimonial restriction was “unreasonable and improper.” [ECF No. 53, p. 5].

To further illustrate Lynch's bad faith, Petitioners point out that Lynch refused to accommodate their request that the deposition be held in New York -- and that Petitioner Godfrey coincidentally ran into Lynch in New York four days after the London deposition.

In any event, Petitioners explained to Lynch at his deposition their view that the time period mentioned in the Report and Order applied only to the document production. They suggested to Lynch that he raise a standing objection about the time period, answer the questions, and reserve his rights to later move for a protective order or to strike. Petitioners further explained that their suggested alternative could obviate the need for a second deposition. Lynch refused, and the parties telephoned the Undersigned in an effort to resolve the dispute. Due to an illness, the Undersigned was unavailable for an unscheduled telephone conference. Lynch continued to refuse to answer questions based on his stated view that the time restriction applied to deposition questions.

In light of Lynch's continued refusal to answer certain questions, the deposition ended with slightly less than one hour remaining. Before the deposition concluded that day, Petitioners reserved their rights to seek clarification and further time to take a second (or continued) deposition.

Concerning document production, Petitioners allege in their motion to compel that Lynch did not produce any electronically stored documents. They brand as “unacceptable and incredible” his purported justification -- that he “systematically deleted Yukos-related emails and destroyed his electronic devices for a number of years.” [ECF No. 53, p. 6]. For example, they note that Lynch had responsive documents in April 2015, when he used them as exhibits to a witness statement he submitted in an arbitration.

Petitioners also explain that Lynch rejected their offer to pay for a neutral, third-party vendor to search his electronic devices for data responsive to the subpoena. During the deposition, Lynch admitted that he did not hire his own vendor. He also conceded that the only search of his current electronic devices was a “5-minute exercise.” [ECF No. 53, p. 9].

Concerning his destruction of documents, Lynch stated that he deleted documents related to the English Proceedings as recently as April 13, 2018, four days before the deposition. [ECF No. 53, p. 9]. He similarly stated during his deposition that he destroyed multiple generations of his electronic devices, including various computers, hard drives, and mobile devices, “at times using a hammer to smash them and using water to short circuit the remains.” [ECF No. 53, p. 10].

Petitioners also contend that Lynch has been involved in many lawsuits related to the rigged Yukos auction, so he knew or should have known that he was obligated to preserve the Yukos-related documents that he now claims to have destroyed. Therefore, Petitioners argue, Lynch should, at a minimum, be required to obtain responsive documents from his lawyers and email-service providers.

*5 Although Lynch stated that he “shredded” many printed documents over the years, he made what Petitioners describe as a “limited production of hard copy materials” to Petitioners’ lawyers in Moscow on March 27, 2018. [ECF No. 53, p. 10]. According to Petitioners, Lynch advised them in meet-and-confer discussions that he identified seven boxes of potentially responsive hard copy materials related to Yukos that he had maintained in a storage unit. Nevertheless, Petitioners say that Lynch produced only three boxes of printed material.

As highlighted earlier in this Order, Petitioners describe the documents produced as being delivered in disarray and with no discernible order. Noting that the number of pages produced by Lynch was inconsistent with the number of pages reported in the production index, Petitioners allege that the index was inaccurate. They also say that certain documents listed in the index were missing from the production boxes. And they further allege that the production lacked various documents that would have been expected to have been in any production.

II. Legal Arguments and Analysis

Lynch argues that the motion to compel violates Federal Rule of Civil Procedure 37(a)(3)(B) and Local Rule 26.1(g)(2) because it does not specify all the questions that he did not answer. The Undersigned disagrees. Lynch asserted a blanket objection to questions outside of a 1.5-year time frame. By its express terms, Local Rule 26.1(g)(2), which requires a motion to compel to state “verbatim the specific item to be compelled,” does not apply to motions grounded upon “assertion of general or blanket objections.” S.D. Fla. L.R. 26(g)(2).

Lynch further argues that Petitioners failed to confer or attempt to confer concerning the additional document production they seek. He did not raise this point about the dispute over the permissible scope of deposition questions, though. Lynch's argument does not persuade the Undersigned. As outlined in Petitioners’ response, the parties had numerous meet-and-confer communications about document production before Lynch's deposition. Lynch rejected the proposal for a neutral, third-party vendor to help with electronic discovery; confirmed that he destroyed documents and devices; and took no steps to obtain documents held by third parties under his control. Given this background, further discussions would likely have been unproductive, so the absence of even further pre-filing conferences is not a roadblock to the motion to compel. See Chauve v. Costa Crociere, S.p.A., No. 0661907CIVHUCK, 2007 WL 2916326, at *2 (S.D. Fla. Oct. 8, 2007) (denying request to strike motion to compel because “it is clear that a conference with defense counsel would not have resolved the issues”); see also Krauser v. BioHorizons, Inc., No. 10-80454-CIV, 2011 WL 13116715, at *2 (S.D. Fla. June 30, 2011) (explaining that local rule permits, but does not require, a court to “dismiss” a motion to compel for noncompliance with the pre-filing conference requirement).

Lynch also contends that the use of the word “subpoenas” (plural) in the Report and Recommendations and the Order means that the deposition questions could not involve events outside of the 1.5-year time period. Although Lynch's argument might not be deemed completely frivolous, it is incorrect. In addition to the significant point that the surrounding context demonstrates that the time restriction is inapplicable to deposition questions, other circumstances generate additional support for the conclusion that Lynch's interpretation is an illogical stretch and an effort to exploit one word (i.e., subpoenas) in a 30-page Report and Recommendations. [ECF No. 45].

*6 Lynch's view of the permissible scope of deposition questions would create anomalous results. For example, a party would not be able to ask a Rule 30(b)(6) designee questions about how that designee's corporate employer collected documents in response to the request for production. It would prevent a party from asking the opposing party whether she spoke to other fact witnesses about the case after the lawsuit was filed. And it would not allow a party to ask the opposing party whether any documents or devices were destroyed after the lawsuit was filed.

In addition, Lynch adopted inconsistent positions about the purported time restriction. Although Lynch contended that January 1, 2007 to August 15, 2008 was the only permissible time period for the deposition, he answered questions about what steps he took to comply with the subpoena in 2018 (ten years after expiration of the purportedly applicable period). [ECF No. 53-1, pp. 62–63]. Similarly, he answered other depositions questions about who else might be in possession of documents responsive to the subpoena, regardless of the year in question. [ECF No. 53-1, pp. 68–70].

Lynch also suggests that he is in financial difficulty, and he uses this claim to support his request that Petitioners pay for his travel to London to meet with his attorneys. The Undersigned is not impressed with this argument. First, Lynch was able to make arrangements to have an English lawyer appear with him at his deposition. Second, he was able to travel to New York a few days after his London deposition.

In an April 13, 2018 Order entered after a telephone hearing to address potential issues that could arise at Lynch's deposition, I advised the parties that I might approve a request for a second deposition if Lynch were to be “unduly evasive or difficult” or “generally uncooperative.” [ECF No. 52, p. 2]. Lynch could have eliminated the need for a second deposition by answering the deposition questions under a standing objection to questions beyond the 1.5-year time period and then seeking relief from the Court. Lynch did not cooperate with that request, thus prompting the motion to compel and Petitioners’ request for a second deposition.

Moreover, Lynch's response includes several arguments which suggest that he is in fact engaged in the very gamesmanship that Petitioners have complained about. For example, he contends, albeit in an unsworn memorandum, that Petitioners’ counsel “was unable to provide him a private break room or food for lunch.” [ECF No. 55, p. 7]. Lynch alleges that, instead, he was “provided a glass-walled waiting room adjacent to the building's main entrance in plain sight of the entering public.” [ECF No. 55, p. 7 n. 5]. He also alleges that his break-out room, unlike the room provided to Petitioners’ team, “did not have food.” [ECF No. 55, p. 7 n. 5].

But Petitioners submitted a declaration demonstrating that Lynch's allegations about the amenities surrounding the deposition are either incorrect or misleading. [ECF No. 57]. And either way, they are petty.

Specifically, attorney Robert F. Serio submitted a declaration, demonstrating the following points (among others): (1) Petitioners provided Lynch and his attorney with a separate waiting room so that he and his lawyer could confer during breaks; (2) Lynch and his lawyer did in fact use the room to caucus throughout the day; (3) although some of the room's walls were glass, this is true of most of the conferences in the London law firm office; (4) the office provided was on a separate floor from the deposition, giving Lynch and his lawyer additional privacy; and (5) Petitioners ordered lunch for all attendees, including for Lynch and his lawyer, but Lynch chose to eat outside of the building. [ECF No. 57].

*7 Federal Rule of Civil Procedure 30(d)(1) provides that “[t]he court must allow additional [deposition] time [beyond the seven-hour presumptive limit] ... if needed to fairly examine the deponent or if the deponent ... or any other circumstance impedes or delays the examination.” Fed. R. Civ. P. 30(d)(1).

Based on the factual scenario described above, the Undersigned concludes that Petitioners are entitled to additional time to examine Lynch in a deposition. Petitioners have not used up the full seven hours, so, at a minimum, they would be entitled to almost an additional hour. Petitioners, however, should be afforded additional time. Lynch refused to answer deposition questions because of his stated view that the Court imposed a restrictive time frame on deposition questions. Had Lynch answered those questions, Petitioners would have asked follow-up questions about the facts and circumstances mentioned in the answers. Moreover, answers to those questions would have generated additional questions bearing on his credibility.

To be sure, it is difficult to pinpoint how much additional time the Court should give Petitioners for further deposition questions. Neither the Federal Rules of Civil Procedure nor the Local Rules provide a specific amount of time for a continued deposition. Also, the time one judge might deem appropriate could be different from another judge's ruling on the amount of additional time -- yet both judges would have the discretion to enter different rulings without having their decisions reversed. See United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (“By definition ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call.”); see also Am. Family Mut. Ins. Co. v. Roth, No. 05 C 3839, 2010 WL 3397362, at *2 (N.D. Ill. Aug. 25, 2010) (“Discretion denotes the absence of a hard and fast rule. Indeed, on virtually identical facts, two decision makers can arrive at opposite conclusions, both of which constitute appropriate exercises of discretion.”) (internal citations omitted).

Given the broad discretion that magistrate judges (and district judges) enjoy when ruling on discovery motions, I use that discretion here to determine that Petitioners are entitled to 3.5 hours of additional time to continue Lynch's deposition. In addition, I also find that Lynch will need to take additional steps to locate documents responsive to the subpoena. The documents, unlike the deposition questions, will be limited to those in the 1.5-year limit pinpointed in the earlier Report and Recommendations and Order.

The Undersigned orders the following:

1. Lynch shall appear for an additional deposition, consisting of up to 3.5 hours of on-the-record testimony. At the deposition, Lynch shall answer all of Petitioners’ questions unless an objection based on privilege grounds is appropriate. No time-period limitation shall apply to the questions asked at the deposition or to Lynch's duty to answer.

2. Lynch's deposition shall take place at the London law offices of Gibson, Dunn & Crutcher LLP, the same location at which his deposition was taken on April 17, 2018. Petitioners shall bear the reasonable costs associated with Lynch's travel to the deposition.

*8 3. The parties shall meet and confer on a deposition date acceptable to all. The deposition shall occur within 30 days of (a) the date that the parties agree in writing that the document production ordered below, in paragraphs 5 through 8, is complete; or (b) written notice from Petitioners to Lynch that the deposition should occur before the completion of any remaining document production.

4. If Lynch still has any responsive, non-privileged documents (from the 1.5-year time period) within his own possession or custody that have not been produced to Petitioners, then they should be produced to Petitioners within 30 days of this Order.

5. Within 21 days of this Order, Lynch shall select and engage an attorney (barrister or solicitor) based in London, England (“English Discovery Counsel”) to manage the process of obtaining, reviewing, and producing non-privileged documents (in the 1.5-year time period) from certain third parties to Petitioners, consistent with the protocol outlined in paragraph 8, below. The parties shall meet and confer regarding the identity and billing rate of Lynch's English Discovery Counsel, whose engagement shall be subject to Petitioners’ approval. Petitioners shall pay the reasonable expenses of Lynch's English Discovery Counsel in obtaining, reviewing, and producing non-privileged documents held by (a) any lawyers who currently or previously represented Lynch in connection with any Yukos-related matters and (b) any email-service providers that issued, operated, or otherwise hosted data for Lynch's email accounts. Petitioners may object to the hourly rate or expenses quoted by Lynch's English Discovery Counsel, but they cannot unilaterally assert other types of objections. If they have other objections (e.g., the suggested English Discovery Counsel is incompetent or ethically challenged, etc.), then they may raise them with the Undersigned (after first conferring with Lynch).

6. Within 21 days of this Order, Lynch shall authorize and request that all relevant current and former counsel, and/or their successors, prepare and release any documents (from the limited time period already discussed) that they have in Lynch's client files, regardless of format, to his English Discovery Counsel. For these purposes, relevant counsel includes any attorney or law firm that has represented Lynch in any matter relating to, among other things: Yukos Oil Company or its affiliates, subsidiaries, or assets; OOO Promneftstroy; Rosneft Oil Company; Kirwan Offices S.a.r.l.; or any of Yukos Finance B.V.’s current or former officers or directors. Lynch or English Discovery Counsel shall identify to Petitioners the names of all relevant counsel.

7. Within 21 days of this Order, Lynch shall authorize and request that all relevant email-service providers prepare and release any documents that they have for Lynch's email accounts in their records or on their servers, regardless of format, to his English Discovery Counsel. For these purposes, relevant email-service providers include Google, Yahoo, and any other email-service provider that issued, operated, or otherwise hosted data for Lynch's email accounts after January 1, 2007. Lynch or English Discovery Counsel shall identify to Petitioners all email addresses or accounts that Lynch has used since January 1, 2007, and the names of all relevant email-service providers.

8. Lynch's English Discovery Counsel shall review all documents received from the relevant third parties for privilege and for responsiveness to the subpoena duces tecum served on Lynch in Miami, Florida on May 3, 2017. [ECF No. 18-2]. Lynch's English Discovery Counsel shall produce all responsive, non-privileged documents (from the 1.5-year time period) to Petitioners on a rolling basis, and as soon as practicable. The documents shall be produced in a format and at a location agreed upon by the parties. English Discovery Counsel shall also provide a privilege log, identifying any documents withheld on privilege grounds.

*9 9. Lynch or his English Discovery Counsel shall provide updates to Petitioners every two weeks regarding the status of their communications with relevant third parties, English Discovery Counsel's document review and production efforts, and the costs thereof.

10. If Lynch does not cooperate with this Order or is evasive at his deposition, then the Undersigned will entertain a motion to take a third deposition of him. On the other hand, if Petitioners misbehave at Lynch's deposition, then the Undersigned will entertain a motion to terminate the deposition and a motion for a fee-shifting and cost-shifting award.

DONE and ORDERED in Chambers, at Miami, Florida, September 7, 2018.

Lynch also filed an argumentative “supplementary declaration” in support of his response to the motion to compel. [ECF No. 66]. But as Petitioners point out in their response to the declaration, the Undersigned had already denied Lynch's motion for leave to file a surreply, and Lynch's “supplementary declaration” is an end-run around that ruling. [ECF Nos. 59; 64; 67]. Therefore, the Undersigned will not consider Lynch's “supplementary declaration” (or Petitioner's substantive response to it) in this Order.