United States District Court, S.D. New York
For Bryan Sexton, Plaintiff: Gregory A. Blue, Dilworth Paxson LLP (NY), New York, NY; Leslie Trager, Leslie Trager, Attorney at Law, New York, NY.
For Vincent Lecavalier, Defendant: Jonathan Justin Greystone, LEAD ATTORNEY, Spector Gadon & Rosen, P.C. (PA), Philadelphia, PA.
OPINION AND ORDER
ANALISA TORRES, United States District Judge.
Plaintiff, Bryan Sexton, moves pursuant to Section 7 of the Federal Arbitration Act, 9 U.S.C. § 7, and Federal Rule of Civil Procedure 45, for an order holding Defendant, Vincent Lecavalier, in contempt for failure to obey this Court's order directing Defendant to produce subpoenaed documents in " native" format. Defendant requests sanctions against Plaintiff and his attorney. For the reasons stated below, Plaintiff's motion and Defendant's request are DENIED.
On October 2, 2013, at Plaintiff's request, the Arbitral Tribunal of the International Centre for Dispute Resolution, a division of the American Arbitration Association (the " Tribunal" ), issued a non-party subpoena to Defendant in connection with an arbitration pending before the panel (the " Subpoena" ). Compl. ¶ 1, ECF No. 1. The Subpoena ordered Defendant to produce, prior to November 6, 2013, all documents in his possession relating to several business entities. Def. Mem. in Opp'n Ex. A, ECF No. 20-3. The Subpoena specified that " [i]f any of the documents called for are maintained in electronic format, the copies of the documents produced are to be in native format." Id. On November 12, 2013, the Tribunal issued a second subpoena, which ordered Defendant to appear before the Tribunal at a merits hearing to be held between December 9 and 13, 2013. Def. Mem. in Opp'n Ex. K, ECF No. 20-13.
In response to the Subpoena, on November 5, 2013, Defendant's attorney, Brooke C. Madonna, Esq., submitted to the Tribunal various documents, including eleven e-mails that had been forwarded to Madonna from Defendant's Gmail account. Def. Mem. in Opp'n Ex. B, ECF No. 20-4. Madonna certified that she " caus[ed] true and correct copies thereof to be sent via electronic mail and overnight mail" to Plaintiff's attorney, Leslie Trager, Esq. Id. Defendant admits that these documents were not produced in native format. Def. Mem. in Opp'n Ex. P, ECF No. 20-18. On December 13, 2013, Defendant testified before the Tribunal via video-link. Def. Mem. in Opp'n Ex. S, ECF No. 20-21.
On December 2, 2013, Plaintiff initiated this action to enforce the Subpoena, pursuant to Section 7 of the Federal Arbitration Act. Compl., ECF No. 1. By order dated December 4, 2013, this Court ordered Defendant to show cause, at a hearing scheduled for December 9, 2013, why an order should not be issued directing Defendant to comply with the Subpoena. Order, ECF No. 2. Neither Defendant nor Madonna appeared. On December 10, 2013, the Court issued an order directing that Defendant produce by December 12, 2013 " all documents called for by the Subpoena" and requiring that " all responsive documents located on any computer [be produced] in native format as required by the
Subpoena" (the " Order" ). Order, ECF No. 10.
In a December 12, 2013 letter from Madonna to Trager, Madonna stated that Defendant was unable to produce his e-mails in native format. Trager Decl. Ex. C, ECF No. 15-3. Attached to the letter was an affidavit from Steve Henderson, the director of the IT department at Madonna's law firm, stating that " it is not possible to electronically produce Google Gmail since we do not manage the infrastructure, but rather it is managed and controlled by Google." Id.
On December 18, 2013, the Tribunal issued an order stating that the hearing on the merits had concluded on December 13, 2013 and that " [n]ew arguments or new evidence will not be allowed in any of the post-hearing submissions on the merits." Def. Mem. in Opp'n Ex. R, ECF No. 20-20.
Plaintiff now moves for an order holding Defendant in contempt for failure to comply with the Order. Defendant requests sanctions against Plaintiff and ...