Malone v. Iceberg Transport S.A. et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
GOLD & APPEL TRANSFER S.A.,
Debtor in a Foreign
Proceeding.
____________________________
MEADE MALONE, OFFICIAL
LIQUIDATOR FOR GOLD & APPEL
TRANSFER S.A.,
Plaintiff,
v.
ICEBERG TRANSPORT S.A., et
al.,
Defendants.
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Case No. 05-00775
(In a Case Under Section
304 of the Bankruptcy Code)
Adversary Proceeding No.
05-10022
DECISION RE MOTION TO RECONSIDER
ORDER RE DISCOVERY OF DOCUMENTS HELD BY U.S. GOVERNMENT
On September 19, 2006, Walter Anderson, one of the
defendants, filed a motion (Docket Entry (“DE”) No. 259) to
reconsider this court’s order (DE No. 246) signed on August 7,
2006, and entered on August 8, 2006. 	The court will deny the
motion for the following reasons.
The decision below is hereby signed. Dated: October
18, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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I
The August 2006 order arose from Anderson’s failure to
comply with a request for production of documents served on
Anderson on February 16, 2006. 	The documents at issue were
seized by the United States Government pursuant to a search
warrant. 	Anderson does not dispute that he has legal access to
documents and can authorize the government to permit the
plaintiff to examine the documents. 	Yet, he refused to cooperate
with the plaintiff in producing the documents. 	This caused the
plaintiff to file a motion to compel Anderson to execute an
Authorization to Inspect and Copy Documents and Information in
the Possession of the United States Government and Release (the
“Authorization”). 	When Anderson failed timely to oppose that
motion, the court entered its order on August 8, 2006, directing
Anderson to execute the Authorization. 	When Anderson did not
comply with the order, the plaintiff filed a motion on August 29,
2006 (DE No. 251) to deem the Authorization executed. 	Anderson
did not oppose that motion, and on September 15, 2006, the court
entered an order (DE No. 256) granting the motion and directing
that the Authorization was deemed executed. 	Anderson’s motion to
reconsider was filed four days later on September 19, 2006.
II
The court will deny the motion on two grounds.
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A.
First, Anderson’s motion to reconsider the August 2006 order
is woefully late. 	It was filed 42 days after the entry of the
August 2006 order, and 21 days after the plaintiff filed its
motion to deem the Authorization executed. 	Obviously, the
plaintiff would be unduly prejudiced were Anderson allowed to re-
litigate a discovery issue already decided at such a late date.
Anderson contends that the materials may be privileged or
irrelevant, but any privilege or objection as to relevance was
waived by Anderson’s failure to seek reconsideration in a prompt
manner. 	When Anderson was served with the request for production
of documents in February 2006, he had an obligation to ascertain
which of the documents were privileged or irrelevant. 	To the
extent he could not perform that obligation without being allowed
to be transported from jail to where the documents were located,
the onus was on him to seek an order facilitating his examination
of the documents. 	Anderson filed no motion in that regard, and
cannot be heard belatedly to raise his incarceration as a basis
for reconsideration.
B.
Second, Anderson’s motion does not show good cause for
reconsidering the August 2006 order. 	First, Anderson claims that
some of the documents are privileged. 	However, the only
privilege he has raised is the privilege against self-
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incrimination. 	That privilege will not apply to the production
by the United States Government of documents it seized from
Anderson as he is not being compelled to testify by such
production. 	Moreover, the court already ruled that the plaintiff
controls any attorney-client privilege that could be asserted by
Gold & Appel Transfer S.A. (“Gold & Appel”). 	Finally, none of
the other corporations affiliated with Gold & Appel (and whose
records may be included among the records seized) has stepped
forward to assert any privilege.
Second, he claims that the documents may be irrelevant.
However, Anderson’s conclusory assertions of irrelevance fail to
address the bases for relevance set forth in the plaintiff’s
initial motion to compel. 	Anderson does not dispute that he ran
Gold & Appel and had documents of that company that were seized
by the United States Government, nor does he address the
plaintiff’s contention that affiliated entities were involved in
facilitating Gold & Appel’s fraudulent transfers. 	Untangling
Anderson’s alleged manipulative actions relating to Gold & Appel
will require examination of the transactions of other companies
to ascertain the extent of their connection to the Gold & Appel
transactions at issue. 	Accordingly, the fact that the seized
documents include documents of other companies does not
demonstrate that they are irrelevant. 	The burden was on Anderson
to produce relevant documents, and he has not proposed a
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procedure that will permit prompt production of such documents
and at the same time shield irrelevant documents (if, indeed,
there are any such irrelevant documents) from disclosure. 	The
time for him to make a reasonable proposal was when he was served
with the request for production of documents long ago.
IV
An order follows denying Anderson’s motion.
[Signed and dated above.]
Copies to:
All counsel of record.
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