Alternative Global One, LLC v. David Feingold ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2066-23
ALTERNATIVE GLOBAL ONE,
LLC, ALTERNATIVE GLOBAL
APPROVED FOR PUBLICATION
TWO, LLC, ALTERNATIVE
GLOBAL THREE, LLC, October 30, 2024
ALTERNATIVE GLOBAL FOUR, APPELLATE DIVISION
LLC, ALTERNATIVE GLOBAL
FIVE, LLC, and ALTERNATIVE
GLOBAL SIX, LLC,
Plaintiffs-Respondents,
v.
DAVID FEINGOLD and
MICHAEL DAZZO,
Defendants.
____________________________
DANIEL W. AMANIERA,
Appellant.
____________________________
Argued September 23, 2024 – Decided October 30, 2024
Before Judges Sabatino, Gummer, and Jacobs.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-4804-23.
Danielle E. Cohen argued the cause for appellant
(Tesser & Cohen, attorneys; Danielle E. Cohen, on the
briefs).
Aaron Van Nostrand argued the cause for respondents
(Greenberg Traurig, LLP, attorneys; Aaron Van
Nostrand, on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D.
Daniel W. Amaniera, a New Jersey resident who is not a party in the
underlying Florida litigation, appeals from an order and amended order
denying his motion to quash a subpoena for his deposition and for a protective
order. Perceiving no abuse of discretion or misapplication of the law, we
affirm.
In Alternative Global One, LLC v. Feingold, No. 2023-000688-CA-01
(Fla. Cir. Ct. filed Jan. 17, 2023), plaintiffs allege defendants David Feingold
and Michael Dazzo "are attempting to convert [certain investments] from
[plaintiffs] to their own benefit" and that defendants have "refus[ed] to provide
[plaintiffs] with their own books and records." Plaintiffs served a subpoena ad
testificandum on appellant to depose him in New Jersey pursuant to Rule 4:11-
4(b), seeking only his deposition. Plaintiffs did not request he produce any
documents.
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Appellant moved to quash the subpoena and for a protective order. In
support of his motion, appellant submitted a six-paragraph certification.
According to appellant, Richard Cardinale "formed . . . and solely managed"
an investment firm with which appellant previously had worked and now is "a
self-proclaimed competitor" of Broadstreet Inc., with which appellant is
currently affiliated. In his certification, appellant asserted Cardinale was
"trying to bully and harass [him] now with a subpoena" and speculated
Cardinale was "seeking to obtain confidential business information from [him],
related to Broadstreet Inc." Appellant claimed he has no "direct" relationship
with any of the plaintiff entities.
Appellant also submitted in support of his motion the certifications of
his attorney, who described Cardinale as "the sole member" of the plaintiff
entities and defendants as their former "managing members." Attached to the
attorney's certifications were documents from other lawsuits, including
Feingold v. Cardinale, No. 1:22-cv-20375 (S.D. Fla. filed Feb. 5, 2022), a
lawsuit defendants had filed against Cardinale and others. One of those
documents is an uncaptioned, nine-page affidavit of appellant, in which he
testified about his relationship with Cardinale; the training he had received
from him, including training on what to advise investors; what Cardinale had
told him about a new investment firm he was starting; the work he had
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performed with Cardinale and the new firm; his non-voting ownership of 1.5%
of Alternative Global Management, LLC, which ultimately owned the plaintiff
entities; how Cardinale operated his business; representations Cardinale had
made about corporate performance; the deals in which appellant's clients had
invested based on Cardinale's representations; and investor meetings appellant
had attended.
In opposition to the motion, plaintiffs submitted Cardinale's certification
and the certification of one of their attorneys. Documents referencing
appellant were attached to Cardinale's certification. Litigation materials and
affidavits of various investors were attached to counsel's certification. In their
affidavits, the investors testified about their dealings with and knowledge
about appellant, defendants, plaintiffs, and Cardinale. The litigation materials
included a joint case management report submitted by the parties to the Florida
court. In that report, the parties identify appellant as a fact witness.
On March 7, 2024, the trial court entered an order denying the motion
and, a week later, an amended order with an attached statement of reasons.
Noting the "extremely broad" scope of pretrial discovery, the court held the
factors outlined in Berrie v. Berrie, 188 N.J. Super. 274, 284 (Ch. Div. 1983),
"clearly show[ed] that the deposition should occur and is relevant to the matter
at hand." The court found the deposition was "not harassment"; the purpose of
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the deposition was "to gather information known by [appellant] that may be
relevant to the case," which could not be gathered by other means; and "no
showing" had been made "that the subpoena should be quashed," referencing
an insufficient "blanket statement claiming the information is privileged
without specifics."
This appeal followed. Appellant contends the court erred in denying his
motion by overlooking what he claims is the harassing purpose behind the
subpoena and failing to recognize that it seeks duplicative and irrelevant
information. He also argues the court misapplied the Berrie factors.
Unpersuaded by those arguments, we affirm.
We give "substantial deference to a trial court's disposition of a
discovery dispute." Brugaletta v. Garcia, 234 N.J. 225, 240 (2018). We "will
not ordinarily reverse a trial court's disposition on a discovery dispute 'absent
an abuse of discretion or a judge's misunderstanding or misapplication of the
law.'" Id. at 240 (quoting Cap. Health Sys., Inc. v. Horizon Healthcare Servs.,
Inc., 230 N.J. 73, 79-80 (2017)); see also Trenton Renewable Power, LLC v.
Denali Water Sols., LLC, 470 N.J. Super. 218, 226 (App. Div. 2022) (applying
the same standard of review).
Rule 4:10-2(a) provides that "[p]arties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the
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pending action . . . ." "Relevant evidence" is "evidence having a tendency in
reason to prove or disprove any fact of consequence to the determination of the
action." N.J.R.E. 401. "[I]t is not ground for objection that the information
sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence . . . ." R.
4:10-2(a).
New Jersey courts construe discovery rules "liberally in favor of broad
pretrial discovery." Lipsky v. N.J. Ass'n of Health Plans, Inc., 474 N.J. Super.
447, 463 (App. Div. 2023) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524,
535 (1997)). "[E]ssential justice is better achieved when there has been full
disclosure so that the parties are conversant with all the available facts." Ibid.(quoting Jenkins v. Rainner, 69 N.J. 50, 56 (1976)). The goal of discovery is
to "accord[ ] the broadest possible latitude to ensure that the ultimate outcome
of litigation will depend on the merits in light of the available facts." Davis v.
Disability Rts. N.J., 475 N.J. Super. 122, 141 (App. Div.) (quoting Serrano v.
Underground Utils. Corp., 407 N.J. Super. 253, 268, (App. Div. 2009)), leave
to appeal denied, 254 N.J. 180 (2023).
A party's discovery rights, however, "are not unlimited." Trenton
Renewable, 470 N.J. Super. at 226 (quoting Piniero v. N.J. Div. of State
Police, 404 N.J. Super. 194, 204 (App. Div. 2008)). "Our rules recognize that
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'a party or . . . the person from whom discovery is sought' may 'for good cause
shown' seek 'any order that justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.'" Id. at
227 (emphasis omitted) (quoting R. 4:10-3); see also R. 4:10-2(g) (authorizing
a court under certain circumstances to limit discovery sua sponte). Thus, "to
overcome the presumption in favor of discoverability, a party must show 'good
cause' for withholding relevant discovery by demonstrating, for example, that
the information sought is a trade secret or is otherwise confidential or
proprietary." Cap. Health Sys., Inc., 230 N.J. at 80 (quoting R. 4:10-3). "The
party attempting to show that 'secrecy outweighs the presumption' of
discoverability must be 'specific[] . . . ; [b]road allegations of harm,
unsubstantiated by specific examples or articulated reasoning, are
insufficient.'" Ibid. (alterations in original) (quoting Hammock by Hammock
v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 381-82 (1995)).
A court should assess certain considerations "when facing a discovery
dispute involving a non-party to the litigation . . . ." Trenton Renewable, 470
N.J. Super. at 231. Those considerations include:
(1) the "necessity a party may be under" in seeking the
discovery, or the importance of the information sought
in relation to the main case; as against (2) the relative
simplicity in which the information may be supplied
by defendant, and the availability of less burdensome
means to obtain the same information.
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[Id. at 229 (emphasis omitted) (quoting Beckwith v.
Bethlehem Steel Corp., 182 N.J. Super. 376, 382 (Law
Div. 1981)).]
See also Berrie, 188 N.J. Super. at 282-83 (holding that whether the burdens of
discovery outweigh the benefits "deserves close scrutiny with respect to the
interests of a nonparty"). However, "a nonparty deponent may not assert lack
of relevancy or materiality since he has no real interest in the outcome of the
pending litigation." Berrie, 188 N.J. Super. at 279-80.
But that is exactly what appellant argues. He asserts "there is no
conceivable reason to depose [him]" and that "the deposition seeks irrelevant
information." He makes those assertions even though the parties identified
him as a fact witness in their joint submission to the Florida court. His
assertions are further belied by his uncaptioned affidavit his counsel submitted,
the affidavits of investors that plaintiffs submitted, and his concession in his
merits brief that he had some albeit "limited involvement and communications
with investors." He contends in his merits brief – but not in the certification
he submitted in support of his motion – he "did not convey [to investors] any
information related to the claims in the [u]nderlying [l]itigation or have any
direct knowledge of the underlying facts." Plaintiffs have a right under our
discovery rules to explore that assertion in a deposition with appellant under
oath.
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Appellant claims his assertion of harassment is supported by plaintiffs'
purported failure to provide on the subpoena "the areas of anticipated
questioning." Subparagraph 3 of Rule 4:11-4(b) enumerates the mandatory
contents of a subpoena issued pursuant to that rule. It does not require the
party seeking the deposition to identify "the areas of anticipated questioning."
Appellant's blanket assertion that Cardinale intends to use his deposition
to obtain confidential information regarding Broadstreet Inc. is equally
speculative and unsupported. Even if appellant had established confidentiality
as a valid concern, plaintiffs' counsel represented during oral argument before
this court that plaintiffs would be willing to enter into a standard
confidentiality order. See R. 4:10-3(g) (court on the parties' stipulation may
enter an order regarding discovery of confidential information).
Appellant contends "there is no conceivable testimony that could be
given by [him] that is not already known to Cardinale." Even if appellant had
made that contention with respect to plaintiffs, it is not "ground for objection
that the examining party has knowledge of the matters as to which discovery is
sought." R. 4:10-2(a). Appellant faults plaintiffs for "not demonstrat[ing] that
there is no less burdensome means to obtain the information they are seeking
such as taking the depositions of the [d]efendants or conducting basic
discovery in the [u]nderlying [l]itigation related to the involvement of the
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parties." Appellant, however, has not shown how his deposition is
"duplicative" or how defendants' depositions or "basic discovery" would, as
the trial court held, "gather information known by [appellant]."
In denying appellant's motion, the court did not abuse its discretion or
misapply the law, including in its conclusion the Berrie factors "clearly show
the deposition should occur and is relevant to the matter at hand."
Accordingly, we affirm. Nothing in this opinion precludes the interposition of
appropriate objections at the deposition on a question-by-question basis.
Affirmed.
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