DANIEL S. NEWMAN, etc. v. MAYER BROWN, LLP , 252 So. 3d 755 ( 2018 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    DANIEL S. NEWMAN, etc., et al.,
    Petitioners,
    v.
    MAYER BROWN, LLP, et al.,
    Respondents.
    No. 4D17-3416
    [July 25, 2018]
    Petition of writ of certiorari to the Circuit Court for the Seventeenth
    Judicial Circuit, Broward County; Joseph Murphy, Judge; L.T. Case No.
    10-49061.
    Leo B. Reus, Scot C. Stirling and Robert O. Stirling of Beus Gilbert
    PLLC, Phoenix, and Stuart Z. Grossman and Rachel W. Furst of Grossman
    Roth Yaffa Cohen, P.A., Coral Gables, for petitioners.
    Eugene K. Pettis and Debra P. Klauber of Haliczer, Pettis & Schwamm,
    Fort Lauderdale, for respondents.
    FORST, J.
    Petitioner Daniel Newman (“the Receiver”) seeks certiorari review of a
    non-final order that granted Respondent Mayer Brown, LLP’s motion to
    compel discovery with respect to thirty-eight nonparties. Below, Newman
    was appointed as a receiver for these thirty-eight investor entities and
    individuals (“Assignors”), which all contractually assigned their claims
    against Mayer Brown to the Receiver. The latter is the plaintiff, and Mayer
    Brown is one of the defendants in the underlying action. 1 During
    discovery, Mayer Brown moved to compel the Receiver to produce
    documents and comply with deposition requests concerning the Assignors.
    The trial court granted the motion and the Receiver filed the instant
    petition for writ of certiorari, arguing that the trial court erred in
    compelling discovery because the Assignors were nonparties and thus
    could not take part in discovery without a subpoena. As set forth below,
    1Ernst & Young was also a defendant in the case, but the instant petition does
    not involve it.
    we deny the petition.
    Background
    In May 2009, Newman was appointed by the United States District
    Court for the Middle District of Florida as a receiver for claims of securities
    fraud filed by four hedge funds (“Founding Partners”) and for the Founding
    Partners Capital Management Co. (“FPMC”). 2 The federal court order
    appointing the Receiver gave him authority to assert claims “for the benefit
    and on behalf of” the four funds and “their investors and other creditors,”
    i.e., the Assignors. 3 Newman filed suit against Mayer Brown, a law firm,
    which allegedly facilitated the fraud. 4 The suit was filed by Newman both
    in his capacity as Receiver for the funds and as the “Assignee” of claims
    belonging to thirty-eight individual or entity investors in the funds.
    Both parties filed discovery requests. At issue is Mayer Brown’s request
    for the production of privilege logs by the nonparty Assignors and its
    request that the Assignors appear for deposition. The Receiver refused to
    comply with these discovery requests, arguing that he did not represent
    the Assignors and that they are not parties to this action. He further
    claimed he was not in custody, possession or control of the Assignors’
    documents and could not force the Assignors to produce documents or
    appear for depositions.
    Mayer Brown filed a motion to compel compliance with its discovery
    requests, arguing at the subsequent hearing that “a defendant who is sued
    on an assigned claim may not be subjected to a greater discovery burden
    than if the claim had not been assigned.” The assignment agreements
    entered into by the Receiver with each of the thirty-eight Assignors are
    central to Mayer Brown’s contention that the assignments provide benefits
    to the Assignors, as each assignment states that “any recoveries made on
    [the Receiver’s] Claims [related to the individual assignor’s investment in
    the funds] shall benefit all creditors and investors . . . to the extent
    determined appropriate by the Receiver or directed by the Court . . . .”
    2 The four hedge funds are (1) Founding Partners Stable-Value Fund, L.P.; (2)
    Founding Partners Stable-Value Fund II, L.P.; (3) Founding Partners Hybrid-
    Value Fund, L.P.; and (4) Founding Partners Global Fund, Ltd.
    3 The Assignors are individuals, IRAs, trusts, LLCs, partnerships, and other
    entities.
    4 The complaint contends Mayer Brown is guilty of (1) professional malpractice;
    (2) aiding and abetting breaches of fiduciary duty; (3) aiding and abetting fraud;
    (4) aiding and abetting breaches of statutory duties; (5) negligent
    misrepresentation; and (6) fraud.
    2
    Mayer Brown furthermore noted that the Assignors “agree[d] to provide
    reasonable cooperation and assistance to the Receivers’ (sic) legal counsel
    and/or the Receiver in connection with the Claims” and set forth details of
    this cooperation and assistance, including an agreement to appear for
    deposition and “delivering a sworn or written statement of facts known to
    Assignor.”
    Newman responded that the Assignors were not parties and Mayer
    Brown should therefore use subpoenas and “discovery devices that are
    appropriate for non-parties.”
    The trial court granted Mayer Brown’s motion to compel. The order
    states that the Assignors “shall be treated as parties to the case for
    discovery purposes in producing documents and appearing for deposition
    . . . with the same protections and obligations applying to the Assignors as
    apply to [the] parties.” (emphasis added). The Receiver filed the instant
    petition seeking certiorari review of the order.
    Analysis
    “[R]eview by certiorari is appropriate when a discovery order departs
    from the essential requirements of law, causing material injury to a
    petitioner throughout the remainder of the proceedings below and
    effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v.
    Langston, 
    655 So. 2d 91
    , 94 (Fla. 1995). The critical inquiry for
    jurisdictional purposes is whether the order “creates material harm
    irreparable by postjudgment appeal.” Bared & Co. v. McGuire, 
    670 So. 2d 153
    , 156-57 (Fla. 4th DCA 1996) (quoting Parkway Bank v. Fort Myers
    Armature Works, Inc., 
    658 So. 2d 646
    , 649 (Fla. 2d DCA 1995)).
    The Receiver makes several arguments in his petition, the main one
    being that because the Assignors are nonparties, the trial court departed
    from the essential requirements of the law by compelling them to respond
    to discovery requests without notice. He contends that Florida Rule of
    Civil Procedure 1.351 mandates that only a subpoena can compel
    discovery of nonparties. 5 The Receiver cites to Parker v. James, 
    997 So. 2d
    1225 (Fla. 2d DCA 2008), and Graham v. Dacheikh, 
    991 So. 2d 932
    5 Rule 1.351 states in relevant part that “[a] party may seek inspection and
    copying of any documents or things within the scope of rule 1.350(a) from a
    person who is not a party by issuance of a subpoena directing the production of
    the documents or things when the requesting party does not seek to depose the
    custodian or other person in possession of the documents or things.” Fla. R. Civ.
    P. 1.351(a).
    3
    (Fla. 2d DCA 2008), among others, to assert the general proposition that
    an order requiring production of nonparties without notice “departs from
    the essential requirements of the law and causes irreparable injury to the
    privacy rights of nonparties who have been given no notice and no
    opportunity to be heard in this proceeding.” 
    Graham, 991 So. 2d at 933
    .
    Mayer Brown answers that the cases relied upon by the Receiver involve
    traditional nonparties who lack a direct stake in the litigation. The
    assignors in the instant case, by contrast, retain a financial interest.
    We agree that the cases cited by the Receiver are distinguishable. First,
    the Assignors are not traditional “nonparties” under Rule 1.351. As noted
    above, the Receiver entered into a contractual agreement with each of the
    thirty-eight Assignors, in which the Receiver agreed that any recovery in
    litigation brought by the Receiver “shall benefit all creditors and investors
    . . . to the extent determined appropriate by the Receiver or directed by the
    Court.” As the Receiver’s attorney admitted at the hearing on the motion
    to compel, the Assignors stand to gain “something in the hundreds of
    millions of dollars” should the Receiver prevail in the underlying action.
    Though we can find no Florida case on point, various federal courts
    have held, under the similarly-worded Federal Rules of Civil Procedure,6
    that because assignors retained substantial, financial interests in their
    assigned claims, they could be treated as de facto parties for purposes of
    discovery “when to do otherwise would frustrate discovery, regardless of
    whether this frustration is intentional or not.” In re Infant Formula
    Antitrust Litig., No. MDL 878, 
    1992 WL 503465
    , at *9 (N.D. Fla. Jan. 13,
    1992) (citing Natta v. Hogan, 
    392 F.2d 686
    , 691 (10th Cir. 1968)). See also
    Royal Park Invs. SA/NV v. Deutsche Bank Nat’l Tr. Co., No. 14-CV-4394,
    
    2016 WL 4613390
    , at *3 (S.D.N.Y. Aug. 31, 2016) (holding that “an
    assignee, pressing the rights of its assignors . . . must also assume the
    discovery obligations of those assignors.”); JPMorgan Chase Bank v.
    Winnick, 
    228 F.R.D. 505
    , 506 (S.D.N.Y. 2005) (“It is both logically
    inconsistent and unfair to allow the right to sue to be transferred to
    assignees . . . free of the obligations that go with litigating a claim.”); Bank
    of N.Y. v. Meridien BIAO Bank Tanzania Ltd., 
    171 F.R.D. 135
    , 148 (S.D.N.Y.
    1997) (holding that it would be “anomalous” for an assignor bank that had
    a “substantial interest” in the underlying case, to assign its claims and “to
    frustrate [the defendant’s] right to discover documents in [the assignor’s]
    possession.”).
    6 Federal Rule of Civil Procedure 34 requires, just like Rule 1.351, that a court
    first issue a subpoena before compelling certain discovery of nonparties. FED. R.
    CIV. P. 34.
    4
    These federal cases recognize, as do we, that it would be patently unfair
    to allow assignors to use the assignment contract as both a shield and a
    sword, allowing them on the one hand to evade good faith discovery
    requests by adverse parties, and on the other ultimately reap the benefits
    of any damages awarded to them by way of their assigned actions. See,
    e.g., JPMorgan Chase 
    Bank, 228 F.R.D. at 506
    (“If the plaintiff’s theory
    carried the day, the assignor would be able to assign a claim more valuable
    than it could ever have, because its claim, if pursued by the assignor,
    would entail certain obligations that, when assigned, would magically
    disappear.”). See also In re Skelaxin (Metaxalone) Antitrust Litig., No. 1:12-
    md-2343, 
    2014 WL 129814
    , at *2 (E.D. Tenn. Jan. 10, 2014) (holding that
    “it would be wholly unfair for Plaintiffs to step into the shoes of the
    assignors for the purposes of bringing their claims and not also assume a
    claimant’s attendant discovery obligations.”).
    Not only do the Assignors in this case have a financial interest in the
    litigation, but they also agreed in the assignment contracts entered into
    with the Receiver to contribute to discovery matters during the course of
    litigation, including “delivering . . . sworn or written statements of facts
    known to Assignor,” reviewing documents, “answering questions and
    providing information dealing with Assignor and the claims,” and
    appearing for depositions. By agreeing to submit themselves to discovery,
    the Assignors have essentially waived their Rule 1.351 argument, thereby
    failing to establish that the trial court’s discovery order departed from the
    essential requirements of the law and/or caused irreparable harm. In fact,
    for the most part, the order that is challenged in this petition did little
    more than compel the Assignors to do what they previously agreed to do
    in their agreements with the Receiver, and the order expressly states that
    the Assignors have the “same protections obligations” that apply to parties.
    As a final point, there is no evidence in the record or in the briefs filed
    in this action indicating that Mayer Brown has failed to accommodate any
    genuine issues presented by the Receiver or any of the Assignees with
    respect to discovery requests. “Procedural due process requires both fair
    notice and a real opportunity to be heard.” Keys Citizens for Responsible
    Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 
    795 So. 2d 940
    , 948 (Fla. 2001).
    Here, the record evidence demonstrates that the Receiver is in an adequate
    position to reasonably apprise the Assignors of any impending discovery
    requests, and that it has done so. The fact that the Assignors entered into
    an assignment contract, in which they explicitly agreed to comply with any
    discovery requests sent to them by the Receiver, further obviates any
    notice concerns.
    5
    Conclusion
    Because the trial court’s discovery order did not depart from the
    essential requirements of the law, and because the Receiver and the
    Assignors have failed to show the order to compel will cause material injury
    or irreparable harm, we deny the petition. The assignment contract
    requires the Assignors to assist in discovery, and so Rule 1.351 is
    inapplicable to the facts of this case. Furthermore, there are no notice or
    due process violations here. The record shows that the Receiver can
    adequately contact the Assignors to produce discovery, and has in fact
    already done so. Accordingly, Mayer Brown is entitled to discovery from
    the Assignors, just as if the Assignors had brought this action themselves
    on their own claims.
    Petition denied.
    GERBER, C.J., concurs.
    WARNER, J., dissents with opinion.
    WARNER, J., dissenting.
    I would grant the petition, as the trial court departed from the essential
    requirements of law in asserting jurisdiction over persons who were not
    brought before the court in accordance with the rules or statutes.
    However, based upon the agreement between the non-parties who
    assigned their claims in this litigation to the Receiver, the trial court can
    compel the Receiver to produce the assignors, the failure of which could
    result in the striking of the recalcitrant assignor’s claim.
    As noted in the majority, in the proceedings, Mayer Brown sought
    discovery from the Assignors. Specifically, it propounded to Receiver
    requests to produce documents of assignors and also attempted to
    schedule their depositions without the necessity of subpoenas. Receiver
    argued the Assignors were non-parties. Therefore, Mayer Brown was
    required to comply with the Rules of Civil Procedure for the production of
    documents or depositions from non-parties. Mayer Brown moved to
    compel the Receiver to produce the documents and to arrange for
    depositions of the individual assignors. Should the Receiver fail to do so,
    Mayer Brown requested that Receiver not be allowed to pursue the
    assignors’ claims. Only the Receiver was served with notice of the motion
    and hearing on it.
    6
    The trial court granted Mayer Brown’s motion, but it vastly expanded
    it to hold that Assignors were “parties” to the proceeding for discovery
    purposes. The court ordered:
    Assignors shall be treated as parties to the case for discovery
    purposes in producing documents and appearing for
    deposition, and shall respond to notices of deposition and
    document requests directed to the Assignors as if the
    Assignors were parties to the case, with the same protections
    and obligations applying to the Assignors as apply to parties.
    Receiver filed this petition for certiorari contending that the court had
    departed from the essential requirements of law, causing irreparable harm
    not remediable on appeal, as the assignors were never brought before the
    court before being declared parties to the proceeding for discovery.
    I would hold that the trial court departed from the essential
    requirements of law. Assignors were never brought before the court by
    subpoena and had no notice of the motion to compel. As such, without
    notice or opportunity to be heard, they have been subject to the
    jurisdiction of the Florida courts. This is a denial of due process. See
    Dep’t of Children & Families v. T.S., 
    154 So. 3d 1223
    , 1226 (Fla. 4th DCA
    2015) (“Notice and an opportunity to be heard are the hallmarks of due
    process.”)
    The Rules of Civil Procedure provide for the production of documents
    and depositions of non-parties. See generally Fla. R. Civ. P. 1.310, 1.350.
    Depositions of non-parties require the service of a subpoena. See Fla. R.
    Civ. P. 1.410. A non-party who disobeys a subpoena can be held in
    contempt. See Fla. R. Civ. P. 1.410(f). A subpoenaed non-party can also
    be liable for costs and attorney’s fees for failing to comply with discovery.
    See Fla. R. Civ. P. 1.380(a)(4). However, there is no provision in the rules
    to make non-parties subject to the jurisdiction of the court, and thus, its
    authority to sanction, without some service of process or subpoena.
    The trial court relied on federal cases which have treated assignors as
    parties so as not to frustrate discovery. See Natta v. Hogan, 
    392 F.2d 686
    ,
    691 (10th Cir. 1968); see In re Infant Formula Antitrust Litig., No. MDL 878,
    
    1992 WL 503465
    , at *9 (N.D. Fla. Jan. 13, 1992); see Compagnie Francaise
    D'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 
    105 F.R.D. 16
    , 34 (S.D.N.Y. 1984). These cases all allowed discovery because
    the courts found that the assignors were the real parties in interest in the
    litigation.
    7
    There is no statute or rule in Florida which permits the trial court to
    deem real parties in interest, not joined as actual parties in an action, as
    subject to the jurisdiction of the court for purposes discovery. In North
    Ridge Medical Plaza v. Tenet Healthcare Corporation, 
    719 So. 2d 1014
    ,
    1015 (Fla. 4th DCA 1998), we held that a beneficial owner of property or a
    real party in interest must be subpoenaed for deposition. The trial court’s
    ruling is directly contrary to North Ridge.
    We are not at liberty to change our rules and statutes to achieve a
    desired result. Therefore, the trial court’s order deeming these assignors
    as subject to the court’s jurisdiction departs from the essential
    requirements of law.
    The court would have been within its jurisdiction to grant the relief that
    Mayer Brown requested in its motion. Each assignor had agreed in its
    assignment to cooperate with the Receiver with respect to discovery,
    including production of documents and appearing at a deposition and
    trial. Thus, there was a contractual relationship between the Receiver and
    Assignor with respect to discovery in the case. Mayer Brown sought to
    compel the Receiver to produce documents from the assignors and to
    depose the assignors. Given the Receiver’s obligation to provide discovery
    as a party and the assignor’s contractual obligation with the Receiver, the
    trial court could compel the Receiver to produce documents or the assignor
    for deposition, and if the Receiver failed to do so, the assignor’s claim may
    be dismissed from the suit. This would be consistent with the rules and
    with due process. The assignor would not be personally subject to
    sanctions, costs, or attorney’s fees without due process of law, yet Mayer
    Brown would have a method to enforce discovery obligations against the
    Receiver.
    For the foregoing reasons, I dissent from the denial of the petition for
    writ of certiorari.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    8