`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`REGION 28
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC;
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`FP HOLDINGS, L.P. d/b/a
`PALMS CASINO RESORT AND PALMS PLACE, and
`FIESTA PARENTCO, L.L.C., General Partner;
`
`and
`
`NP BOULDER LLC d/b/a
`BOULDER STATION HOTEL & CASINO;
`
`and
`
`NP FIESTA LLC d/b/a
`FIESTA RANCHO HOTEL & CASINO;
`
`and
`
`NP LAKE MEAD LLC d/b/a
`FIESTA HENDERSON CASINO HOTEL;
`
`and
`
`NP PALACE LLC d/b/a
`PALACE STATION HOTEL & CASINO;
`
`and
`
`NP RED ROCK LLC d/b/a
`RED ROCK CASINO, RESORT & SPA;
`
`and
`
`

`

`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`NP SANTA FE LLC d/b/a
`SANTA FE STATION HOTEL & CASINO;
`
`
`
`and
`
`NP SUNSET LLC d/b/a
`SUNSET STATION HOTEL & CASINO;
`
`and
`
`NP TEXAS LLC d/b/a
`TEXAS STATION GAMBLING HALL AND HOTEL;
`
`and
`
`STATION GVR ACQUISITION, LLC d/b/a
`GREEN VALLEY RANCH RESORT SPA CASINO;
`
`collectively, a Single Employer and
`Single Integrated Enterprise
`
`and
`
`LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS
`a/w UNITE HERE INTERNATIONAL UNION
`
`and
`
`THOMAS STALLINGS, an Individual
`
`Party in Interest
`
`Cases 28-CA-228052
`28-CA-228944
`28-CA-247602
`28-CA-248464
`28-CA-249203
`28-CA-249576
`28-CA-251083
`28-CA-251254
`28-CA-251803
`28-CA-252404
`28-CA-252964
`28-CA-256630
`28-CA-257778
`28-CA-260167
`28-CA-260169
`28-CA-260187
`28-CA-260199
`28-CA-260207
`28-CA-260209
`28-CA-260216
`28-CA-261666
`28-CA-262465
`28-CA-262973
`28-CA-262977
`
`

`

`28-CA-262980
`28-CA-262982
`28-CA-262987
`28-CA-263582
`28-CA-264135
`28-CA-264297
`28-CA-264465
`28-CA-264469
`28-CA-264476
`28-CA-264612
`28-CA-264619
`28-CA-264626
`28-CA-264631
`28-CA-264638
`28-CA-266556
`28-CA-266987
`28-CA-267067
`28-CA-268930
`28-CA-268957
`28-CA-268958
`28-CA-268960
`28-CA-269516
`28-CA-269517
`28-CA-269519
`28-CA-269520
`28-CA-269959
`28-CA-269962
`28-CA-269965
`28-CA-271251
`28-CA-271608
`28-CA-273812
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC;
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`NP SUNSET LLC d/b/a
`SUNSET STATION HOTEL & CASINO;
`
`
`
`

`

`and
`
`FP HOLDINGS, L.P. d/b/a
`PALMS CASINO RESORT AND PALMS PLACE, and
`FIESTA PARENTCO, L.L.C., General Partner;
`
`collectively, a Single Employer and
`Single Integrated Enterprise
`
`and
`
`INTERNATIONAL UNION OF OPERATING
`ENGINEERS, LOCAL 501, AFL-CIO
`
`and
`
`THOMAS STALLINGS, an Individual
`
`Party in Interest
`
`
`
`
`
`
`
`
`
`
`
`
`Cases 28-CA-239331
`28-CA-247230
`28-CA-260724
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC;
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`NP TEXAS STATION LLC d/b/a TEXAS STATION
`GAMBLING HALL AND HOTEL;
`
`collectively, a Single Employer and Single Integrated
`Enterprise
`
`and
`
`Case 28-CA-245647
`
`MARIA SANJUANA ORTIZ, AN INDIVIDUAL
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`NP PALACE LLC d/b/a PALACE STATION
`HOTEL & CASINO
`
`collectively, a Single Employer and
`Single Integrated Enterprise
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`and
`
`Case 28-CA-273936
`
`BLAKE SAARI, AN INDIVIDUAL
`
`
`RESPONDENTS’ OPPOSITION TO GENERAL COUNSEL’S MOTION SEEKING
`FINDING OF CONTUMACY AND PERMISSION TO INITIATE SUBPOENA
`ENFORCEMENT PROCEEDINGS
`
`The individual named Respondents, Station GVR Acquisition, LLC d/b/a Green Valley
`
`Ranch Resort Spa Casino (Green Valley Ranch), NP Lake Mead LLC d/b/a Fiesta Henderson
`
`Casino Hotel (Fiesta Henderson), NP Boulder LLC d/b/a Boulder Station Hotel & Casino (Boulder
`
`Station), FP Holdings, L.P. d/b/a Palms Casino Resort (Palms), NP Fiesta LLC d/b/a Fiesta Rancho
`
`Hotel & Casino (Fiesta Rancho), NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel
`
`(Texas Station), NP Sunset LLC, d/b/a Sunset Station Hotel and Casino, NP Palace LLC d/b/a
`
`Palace Station Hotel & Casino (Palace Station), NP Red Rock, LLC d/b/a Red Rock Casino Resort
`
`& Spa (Red Rock), NP Santa Fe, LLC d/b/a Santa Fe Station Hotel & Casino (Santa Fe), Station
`
`Casinos, LLC (Station Casinos), Red Rock Resorts, Inc. (RRR), by and through the undersigned
`
`counsel, hereby oppose General Counsel’s Motion Seeking Finding of Contumacy and Permission
`
`to Initiate Subpoena Enforcement Proceedings filed on October 5, 2021, as follows:
`
`1
`
`

`

`
`
`
`I.
`
`INTRODUCTION
`
`The General Counsel’s motion should be denied. At best, the motion is premature. At
`
`worst, the motion relies on confusing and irrelevant information in an attempt to create the
`
`perception of contumacious conduct where the reality shows otherwise. In attempting to build a
`
`circumstantial case, the General Counsel has ignored relevant information confirming
`
`Respondents’ good faith efforts to address the numerous and byzantine subpoena requests issued
`
`by the General Counsel and other parties in this matter.
`
`A review of General Counsel’s motion, arguments, and information confirms that
`
`Respondents have not refused to comply with the applicable subpoenas. While the response and
`
`production related to these subpoenas may involve the General Counsel not receiving documents
`
`as soon as they wish, the General Counsel cannot legitimately claim that Respondents are refusing
`
`to comply.
`
`The General Counsel’s motion should be denied because Respondents have not engaged
`
`in contumacious conduct and have not refused to comply with any of the numerous subpoenas
`
`requests. To the contrary, an unbiased review of the relevant facts confirms that Respondents have
`
`been going out of their way to work with the General Counsel and cooperate with the unreasonable
`
`expectations of the General Counsel. Likewise, the General Counsel’s motion should be denied
`
`because allowing the General Counsel to seek judicial enforcement in this case would be
`
`inconsistent with the law and with the policies of the Act.
`
`II. RELEVANT FACTUAL BACKGROUND
`
`A.
`
`Initial Procedural Matters
`
`On April 12, 2021, the Regional Director for Region 28 of the National Labor Relations
`
`Board issued an Order Consolidating Cases, Consolidated and Notice of Hearing (Complaint).
`
`2
`
`

`

`
`
`
`This Complaint contains allegations related to over sixty (60) charges filed by multiple parties,
`
`including the Local Joint Executive Board of Las Vegas (LJEB), the International Union of
`
`Operating Engineers, Local 501 (IUOE), and various individuals. On August 10, 2021, the
`
`Regional Director for Region 28 issued a second Order Consolidating Cases, Consolidated
`
`Complaint.
`
`In general, the allegations in this matter contend that Respondents, as a single employer1
`
`engaged in actions in violation of the Act during organizing drives involving the LJEB and IUOE
`
`and in response to alleged protected activity by certain employees. The allegations in the matter
`
`also include allegations that Respondents failed to rehire certain employees based on protected
`
`union activity. Respondents timely filed answers denying all allegations and asserting various
`
`affirmative defenses.
`
`The hearing in this matter commenced on August 24, 2021, and is scheduled to resume on
`
`October 25, 2021 via video technology. As recognized by Administrative Law Judge Amita Tracy
`
`(Judge Tracy) the hearing is expected to last for at least sixty (60) days involving “countless
`
`witnesses and exhibits.” (Judge Tracy Sept. 3, 2021, Order).
`
`B. Subpoenas Duces Tecum in Dispute
`
`While there have been an overwhelming number of subpoenas issued in this matter, the
`
`General Counsel’s motion myopically focuses on their first set of subpoenas that were served on
`
`June 28, 2021. (General Counsel’s Motion, p. 3.)2 Standing alone, General Counsel’s June 28,
`
`
`1 The single employer allegation contends that Respondents’ ten (10) casino and hotel
`operations along with the Station Casinos, LLC and holding companies Red Rock Resorts, Inc.,
`and Station Holdco, LLC constitute a single employer.
`2 On June 28, 2021, General Counsel issued thirteen (13) identical subpoena duces tecums
`directed to each named entity identified in the Complaint. The subpoenas at issue include: B-1-
`1CYAOBJ (Station GVR); B-1-1CYAHH5 (Texas); B-1-1CYAG8F (Sunset); B-1-1CYAGDF
`(Santa Fe); B-1-1CYA9KZ (Red Rock); B-1-1CYA3Y7 (Palace); B-1-1CY9QEF (Fiesta
`Henderson); B-1-1CY9TCT (Fiesta Rancho); B-1-1CY9H2V (Boulder); B-1-1CY9ERJ (Palms);
`
`3
`
`

`

`
`
`
`2021 subpoenas are overwhelmingly complex and confusing and require a significant amount of
`
`effort to simply evaluate, confirm sources, and identify documents and information that would
`
`possibly be responsive. However, to fairly evaluate the issue in this instance, it is important to
`
`consider other relevant facts.
`
`C. Relevant Background Information Not Identified by General Counsel
`
`In an effort to build a circumstantial case of non-compliance, the General Counsel failed
`
`to provide information that is extremely relevant in determining whether Respondents have
`
`engaged in contumacious conduct. First, one of the first steps taken by Respondents to approach
`
`the significant subpoena issues in an efficient and logical manner involved asking the General
`
`Counsel to serve all subpoenas at one time. Although the General Counsel initially committed to
`
`serving all subpoenas by the first week of June 2021, the General Counsel did not uphold their
`
`commitment. Not only were the initial round of subpoenas served approximately a month later
`
`than promised, the General Counsel followed that up with a constant and extended barrage of
`
`subpoenas that were timed so as to make the processing of the subpoenas more difficult and
`
`burdensome on Respondents. In essence, the General Counsel has weaponized the Board’s
`
`subpoena process in this case to make timely compliance a practical impossibility.
`
`In the General Counsel’s motion, they have generally alleged that counsel for Respondents
`
`“say one thing and do another.” While Respondents disagree with this derogatory representation,
`
`the record in this matter clearly contains examples of the General Counsel agreeing to do certain
`
`things to make the subpoena process more efficient and then doing the exact opposite.
`
`Second, it is inappropriate for the General Counsel to make accusations of contumacious
`
`conduct by Respondents in regard to the June 28, 2021 subpoenas and fail to provide a complete
`
`
`B-1-1CY9DVB (Station Holdco); B-1-1CY901J (Red Rock Resorts); B-1-1CY8UNX (Station
`Casinos).
`
`4
`
`

`

`
`
`
`summary of exactly how the General Counsel and Charging Parties are misusing the subpoena
`
`process. The following chart provides an accurate summary of the total scope of excessive
`
`subpoenas issued in this matter:
`
`
`
`Date
`
`06/28/2021
`06/30/2021
`07/01/2021
`07/02/2021
`07/12/2021
`07/21/2021
`07/23/2021
`08/12/2021
`08/17/2021
`08/18/2021
`08/19/2021
`08/20/2021
`08/23/2021
`TOTAL
`
`
`
`
`
`Total # of
`Subpoenas
`13
`55
`42
`67
`8
`5
`75
`18
`17
`8
`25
`15
`32
`380
`
`# of SDTs
`
`# of SATs
`
`13
`
`
`
`8
`5
`1
`18
`
`
`25
`15
`32
`117
`
`
`55
`42
`67
`
`
`74
`
`17
`8
`
`
`
`263
`
`While it is certain that the General Counsel will deny scheduling the issuance of subpoenas
`
`in a manner to make production much more difficult for Respondents, the above facts speak for
`
`themselves. Clearly, the General Counsel has a standard operating procedure that involves
`
`excessive use of § 6(11)(c) testimony combined with excessive subpoena requests, the goal of
`
`which is to prejudice Respondents and negatively impact their ability to defend themselves against
`
`the allegations at issue.
`
`D.
`
`General Counsel Disregards Impact of Hurricane Ida
`
`On Thursday, August 29, 2021, Hurricane Ida made landfall in Louisiana. This resulted in
`
`the closure of the New Orleans office for the law firm representing Respondents in this matter.
`
`The law firm’s New Orleans office remained closed through September 10, 2021. The closure of
`
`5
`
`

`

`
`
`
`the New Orleans office significantly impacted the work availability of Respondents’ attorney
`
`primarily involved in overseeing the review, evaluation, and processing of all subpoenas being
`
`issued by General Counsel and Charging Parties in this matter, including the June 28, 2021
`
`subpoenas.
`
`In responding to the pending motion, Respondents do not contend that the General Counsel
`
`completely ignored the impact of Hurricane Ida on Respondents’ ability to efficiently and
`
`effectively respond to subpoenas. In fact, on September 1, 2021, the Parties filed a joint motion
`
`requesting that the reopening of the hearing in this matter be continued until October 25, 2021.
`
`This continuance was granted on September 3, 2021.
`
`Very simply, given General Counsel’s effort to single out and mischaracterize various
`
`communications and interactions to create the perception of contumacious conduct, Respondents
`
`contend that a fair and unbiased evaluation of the Respondents’ efforts to respond to all subpoenas,
`
`including the June 28, 2021 subpoenas, must include some consideration of the impact of
`
`Hurricane Ida. This is especially the case given Respondent’s on-going efforts to provide
`
`documents.
`
`III. GENERAL COUNSEL HAS FAILED TO
`IDENTIFY CONTUMACIOUS
`CONDUCT SUFFICIENT TO
`JUSTIFY SUBPOENA ENFORCEMENT
`PROCEEDINGS.
`
`On May 6, 2021, an initial Order scheduling the hearing in this matter was issued setting
`
`the hearing to commence on July 27, 2021 and continue for consecutive days thereafter until
`
`concluded. Since that initial order was issued, there were multiple joint motions seeking to
`
`continue the commencement date for the hearing and allow for the start of testimony at a later date.
`
`As stated, the evidentiary portion of the hearing is now scheduled to start on October 25, 2021.
`
`In the General Counsel’s motion filed on October 5, 2021, they assert three (3) arguments
`
`to support their motion. First, the General Counsel claims that Respondents’ efforts to seek a
`
`6
`
`

`

`
`
`
`continuance of the hearing somehow constitutes contumacious conduct. Second, the General
`
`Counsel claims that Respondents’ efforts to confer and resolve issues related to their August 10,
`
`2021 partial petition to revoke somehow constitute contumacious conduct. Third, General Counsel
`
`asserts that Respondents’ “lack of production” and “refusal to acknowledge portion of Judge
`
`Tracy’s September 3, 2021 Order denying Respondents’ Petition to Revoke constitute
`
`contumacious conduct.” None of the arguments asserted by the General Counsel are sufficient to
`
`support this motion.
`
`A. Respondents’ Efforts to Seek Justifiable Continuances are Irrelevant.
`
`The initial Complaint in this matter was issued on April 12, 2021. On May 6, 2021, an
`
`Order setting the hearing in this matter to start on July 27, 2021 was issued. On May 14, 2021,
`
`Respondents file a motion seeking a continuance of the hearing start date from July 27, 2021 to
`
`August 30, 3021.
`
`At a pre-trial conference with Judge Tracy on May 20, 2021, the parties mutually agreed
`
`to a hearing start date of August 3, 2021. Significantly, in this same pre-trial conference, the
`
`General Counsel promised to serve their subpoena duces tecums by May 28, 2021. Obviously, this
`
`was a promise that the General Counsel failed to keep.
`
`In their motion, the General Counsel contends that the simple fact that Respondents
`
`initially sought, on May 14, 2021, to continue the hearing to August 30, 2021, somehow establishes
`
`contumacious conduct. This argument is nonsensical.3 Respondents are unaware of any authority
`
`
`3 It also needs to be noted that to the extent the General Counsel is attempting to make
`issues with Respondents’ efforts to continue the hearing of this matter to later in August 2021 that
`the General Counsel waited until August 12, 2021 to amend their Complaint and still continued to
`issue cumulative and confusing subpoenas. Obviously, the General Counsel cannot legitimately
`claim that they were prepared to proceed to a hearing in early August 2021 regardless of whether
`Respondents had provided documents responsive to the subpoenas in the relatively short time
`frame since the initial set of subpoenas were served.
`
`7
`
`

`

`
`
`
`indicating that a Respondent’s actions occurring prior to the issuance and service of a subpoena
`
`can in any way be considered as establishing evidence that a Respondent refused to comply with
`
`a subpoena. In fact, the Act confirms the exact opposite.
`
`Section 11(2) of the Act provides:
`
`In case on contumacy or refusal to obey a subpoena issued to any person, any
`United States District Court or the United States Courts of any territory or
`possession, within the jurisdiction of which the inquiry is carried on or within the
`jurisdiction of which said person guilty of contumacy or refusal to obey is found or
`resides or transacts business, upon application by the Board shall have jurisdiction
`to issue such person an order requiring such person to appear before the Board, its
`member, agent, or agency, there to produce evidence if so ordered or there to give
`testimony touching the matter under investigation or in question; and any failure to
`obey such order of the court may be punished by said court as a contempt thereof.
`
`29 U.S.C. § 161(2) (emphasis added). As the plain language of § 11(2) states, the only relevant
`
`issue relates to a refusal to comply with a subpoena. Nothing in § 11(2) indicates or even implies
`
`that a party’s decision to seek a continuance of a scheduled hearing based on valid and legitimate
`
`reasons could in any way constitute contumacious conduct. However, the General Counsel goes
`
`to great lengths to make such an argument.
`
`B. Respondents’ Efforts to Resolve Petition to Revoke Issues are Irrelevant.
`
`The General Counsel’s motion includes over five (5) pages that summarize various emails
`
`that establish that there were numerous discussions and efforts to try and reach mutually acceptable
`
`solutions for issues raised by the June 28, 2021 subpoenas.4 Apparently, the General Counsel takes
`
`the position that Respondents engaged in contumacious conduct simply by seeking additional time
`
`to evaluate thirteen (13) separate subpoena duces tecums containing 317 paragraphs of document
`
`requests with approximately 1,100 discrete categories of documents in order to properly determine
`
`
`4 The General Counsel’s memorandum acknowledges that “the subpoenas, as expected, are
`extensive, seeking documents related to nearly every allegation set forth in the April 12 Complaint,
`the special remedies requested and numerous defenses raised by respondent” (General Counsel
`Oct. 5, 20201 Motion).
`
`8
`
`

`

`
`
`
`whether a petition to revoke was needed or not. The General Counsel’s exhibits attached to their
`
`motion confirm that there were multiple, lengthy discussions conducted in an effort to limit the
`
`scope of any petition to revoke that needed to be filed.5 As discussed above, Respondents’ actions
`
`and conduct in regard to evaluating and submitting a petition to revoke and doing so within the
`
`timelines agreed to by opposing counsel and approved by an administrative law judge are
`
`irrelevant. Such efforts, which are extremely appropriate and reasonable in the context of this
`
`complex matter, cannot be considered a refusal to obey a subpoena.
`
`Even if Respondents’ efforts to seek additional time to file a petition to revoke was
`
`somehow relevant to a finding of contumacious conduct, the facts in this matter clearly confirm
`
`that Respondents were acting appropriately given the nature and complexity of this case. First, on
`
`June 30, 2021, immediately after the June 28, 2021 subpoenas were issued, Respondents sought
`
`an extension to file a petition to revoke. There was no delay in this effort. Respondents immediately
`
`recognized that the number of subpoenas duces tecum, the content of the subpoenas, and the
`
`manner in which they were organized imposed a significant challenge in responding.6
`
`In the General Counsel’s efforts to create the illusion of contumacious conduct based on
`
`Respondents’ efforts to seek additional time to file a petition to revoke, they conveniently fail to
`
`acknowledge that Respondents continued to receive literally hundreds of additional subpoenas that
`
`required separate and independent review and evaluation. Between June 30, 2021, when
`
`Respondents filed their first request for an extension of time to file a petition to revoke, and July
`
`
`5 The General Counsel’s motion acknowledges and confirms that they conferred with
`Respondents’ counsel on July 2, July 28, and August 4 in an effort to reduce issues that would
`otherwise necessitate a petition to revoke.
`6 It is important to note that in Respondents’ initial request for additional time to file a
`petition to revoke the primary justification involved a need for additional time given the
`complexity of the case. While the extension of time also allowed an opportunity to confer with
`opposing counsel, this was not the primary goal or reason for the request for additional time.
`
`9
`
`

`

`
`
`
`22, 2021, when Respondents filed a request for an additional extension of time, Respondents were
`
`served over 160 subpoenas ad testificandum from the General Counsel, were served eight more
`
`subpoenas duces tecum for executive witnesses, and were served five additional subpoenas duces
`
`tecum related to supervisors and alleged agents. Clearly, this is not a case in which an employer is
`
`refusing to provide documents or comply with a single subpoena with no other related issues to
`
`address. The June 28, 2021 subpoenas are significant and complex standing alone. The fact that
`
`these subpoenas are simply one part of a barrage of subpoenas only confirms the reasonableness
`
`of Respondents’ efforts in seeking additional time to file a petition to revoke.
`
`It also appears that the General Counsel is attempting to argue that Respondents’ filing a
`
`comprehensive petition to revoke that addressed the numerous issues raised by the extensive
`
`subpoenas served on June 28, 2021 constitutes contumacious conduct. Again, Respondents have
`
`been unable to find any authority to indicate that a party exercising its right to file a petition to
`
`revoke consistent with an agreement with opposing counsel and approved by the administrative
`
`law judge could in any way constitute contumacious conduct. If there has ever been a matter in
`
`which it is prudent for a party to confirm and clarify its position on the record, this is the case.
`
`In addition to characterizing Respondents’ efforts to file a petition to revoke as
`
`contumacious conduct, the General Counsel makes the disparaging allegation that Respondents’
`
`counsel did not confer on the petition to revoke issues in good faith and simply did so to push out
`
`the hearing date in this matter. While Respondents maintain their position that discussions and
`
`efforts to resolve petition to revoke issues can in no way constitute contumacious conduct, this
`
`claim by the General Counsel is simply not true. In fact, in the General Counsel’s efforts to bring
`
`into question the Respondents’ conferral efforts, they failed to identify and address Respondents’
`
`most significant effort to resolve issues related to its pending petition to revoke.
`
`10
`
`

`

`
`
`
`The General Counsel filed its opposition to Respondents’ August 10, 2021 petition to
`
`revoke on August 27, 2021.7 In the section of its memorandum criticizing Respondents’ efforts
`
`and actions related to its petition to revoke, the General Counsel goes into great detail to summarize
`
`the various email interactions. However, in the General Counsel’s summary, they stop their
`
`argument with their email sent to Respondents on August 17, 2021 (see p. 9-10, General Counsel’s
`
`Oct. 5, 2021 Motion). For whatever reason, in the General Counsel’s efforts to accuse Respondents
`
`of engaging in contumacious conduct, the General Counsel failed to mention Respondents’ email
`
`sent on Wednesday, August 18, 2021, which outlines a number of very specific proposals that
`
`would have reduced the scope and extent of Respondents’ petition to revoke (See Respondents’
`
`Exh. A).
`
`Respondents’ August 18, 2021 email is significant for several reasons. First, it establishes
`
`the efforts Respondents were making to try and resolve issues related to the petition to revoke.
`
`Respondents were not refusing to comply or stonewalling the General Counsel. The August 18,
`
`2021 email also confirms that there were significant issues related to the subpoena requests
`
`directed at email accounts and Respondents’ ability to respond (see Respondent Exh. A, p. 2).
`
`Specifically, Respondent notified the General Counsel as follows:
`
`On the email accounts, as I mentioned there is an expense associated with storing
`and searching email accounts on our Relativity system. It is impossible for us to
`review all email accounts based on the significant number of issues in this case.
`The only way to do this is to identify relevant email accounts and timeframes and
`then run relevant word or phrase searches based on the issues in the case.
`
`Id. Despite the clarification of the email issue and detailed proposals set out in Respondents’
`
`August 18, 2021 email, the General Counsel refused to provide any useful proposals or solutions
`
`
`7 The General Counsel acknowledges that its opposition to the Petition to Revoke was
`actually due on August 17, 2021.
`
`11
`
`

`

`
`
`
`that would allow for an effective and efficient response to the numerous subpoena requests,
`
`including the production of emails.
`
`C. Respondents’ Production to Date Confirms Compliance with Subpoena and Judge
`Tracy’s Order.
`
`The General Counsel’s third argument to support its position that Respondents have
`
`engaged in contumacious conduct involves two (2) claims. First, the General Counsel asserts that
`
`Respondents’ “lack of production” justifies a finding of contumacious conduct. Then, the General
`
`Counsel contends that the Respondents’ actions and efforts following Judge Tracy’s September 3,
`
`2021 Order denying Respondents’ Petition to Revoke somehow constitute contumacious conduct
`
`because Respondents have refused to “acknowledge” Judge Tracy’s Order for immediate for
`
`production. Despite these arguments, the actual facts and relevant events confirm that
`
`Respondents have not engaged in any contumacious conduct.
`
`As of the date of this Opposition to General Counsel’s Motion Seeking a Finding of
`
`Contumacious Conduct, Respondents have provided seven (7) batches of documents, on a rolling
`
`basis, to the General Counsel in response to the June 28, 2021 subpoenas. These seven batches
`
`have yielded the production of over 60,000 pages of documents. In order to properly evaluate and
`
`identify these 60,000 pages of documents, Respondents are in the process of reviewing over
`
`148,000 potentially responsive emails and thousands of other potentially responsive documents.
`
`Several individuals within Respondents’ counsel’s law firm are involved in this process.
`
`As can be confirmed in the email exhibits provided by both Respondents and the General
`
`Counsel, the issue of using search terms to allow for a more efficient search of the vast number of
`
`emails and other electronically stored information as been an on-going issue. In this matter, the
`
`General Counsel has the burden to prove the elements of its case. From the start, the General
`
`Counsel declined to provide relevant search terms. It is not Respondents’ obligations to try and
`
`12
`
`

`

`
`
`
`decipher and interpret the hundreds of confusing and complicated subpoena requests from the
`
`General Counsel. Respondent is not obligated to prove the General Counsel’s case. Once on
`
`notice that its subpoena requests related to emails and other electronically stored information
`
`imposed an impossible burden on Respondents, the General Counsel should have immediately
`
`worked with Respondents to allow for an efficient review and production of documents by limiting
`
`searches to relevant custodians and to specific search terms they consider relevant and effective.
`
`Ultimately, some understanding on acceptable search terms was reached. However, the General
`
`Counsel’s refusal to effectively participate in earlier discussions to properly narrow custodians and
`
`identify a manageable list of search terms delayed the Respondents’ efforts to produce documents
`
`in this case.8
`
`Contrary to the allegations made by the General Counsel, the actual and updated
`
`information on Respondents’ production show that it is inaccurate and irresponsible to claim that
`
`Respondents’ are refusing to comply with the June 28, 2021 subpoenas. The fact that Respondents
`
`have not produced all of the responsive documents as quickly as the General Counsel believes they
`
`should have been produced does not establish contumacious conduct. Based simply on the efforts
`
`Respondents have made to produce documents as of the date of this opposition, the General
`
`Counsel’s motion should be denied.
`
`Respondents’ final point focuses on a portion of Judge Tracy’s September 3, 2021 Order
`
`denying Respondents’ Petition to Revoke. On page 8 of the September 3, 2021 Order, Judge Tracy
`
`wrote:
`
`Unless otherwise agreed, Respondents are ordered to produce these documents
`immediately as this hearing has commenced. Respondents’ claims that the reviews
`of these documents will take months is not acceptable. Respondents received these
`requests in late June 2021. Respondents have already had two months to produce
`
`
`8 The General Counsel did not provide search terms to Respondents until September 24, 2021.
`
`13
`
`

`

`
`
`
`documents, and as of August 24, 2021, only a small portion of the requested
`documents have been produced.
`
`September 3, 2021, Order, p. 8. Throughout the General Counsel’s motion, they reference this
`
`specific language and, in an effort to support their motion, claim that this language required
`
`Respondents to perform the impossible and immediately produce all documents effective
`
`September 3, 2021. Respondents dispute this interpretation. Further, the General Counsel’s own
`
`actions and conduct confirm that they are misinterpreting this language to unjustifiably support
`
`this motion.
`
`The language in question starts off with the phrase “Unless otherwise agreed.” Respondents
`
`have always understood this to me that Respondents and the General Counsel were being allowed
`
`time to work out an agreement that would allow for the proper and efficient management of the
`
`subpoena requests and production of documents. While Respondents disagree with the General
`
`Counsel’s characterization that all conferral efforts were fruitless, the relevant facts confirm that
`
`there have been numerous and repeated conversations and communications between Respondents
`
`and General Counsel to resolve the significant subpoena issues in this case. Respondents have
`
`never refused to discuss fair and effective ways to allow for the proper management of the
`
`numerous and confusing subpoena requests issued by the General Counsel.
`
`To the contrary, a review of all the relevant email communications and summaries of
`
`telephonic communications indicate that the General Counsel has consistently maintained a
`
`position that it is entitled to receive documents to make it convenient for them. While Respondents
`
`agree and understand that there was a general understanding that the hearing in this matter would
`
`be opened and that the start of taking testimony would be delayed to permit time for the parties to
`
`14
`
`

`

`
`
`
`review documents, Respondents never had an understanding that it was required to provide the
`
`General Counsel a certain amount of lead-time.9
`
`Again, while the General Counsel may want its documents as soon as possible, the relevant
`
`facts in this matter do not establish that Respondents are refusing to comply. In fact, at the time
`
`the General Counsel filed its Motion on October 5, 2021, and as of the date of this opposition,
`
`there is nothing to establish or justify that the start of testimony on October 25, 2021 needs to be
`
`delayed. While the General Counsel may want to have the entire universe of possible documents
`
`in their possession prior to Octobe