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In re Dunne

United States District Court, D. Connecticut

September 27, 2018

IN RE SEAN DUNNE Debtor.
v.
RICHARD M. COAN, TRUSTEE, et al. Appellee. SEAN DUNNE, Appellant,

          MEMORANDUM OF DECISION

          Michael P. Shea, U.S.D.J.

         Appellant and bankruptcy debtor Sean Dunne (“Dunne”) appeals from an order by the United States Bankruptcy Court for the District of Connecticut (the “Bankruptcy Court”) granting appellee and Bankruptcy Trustee Richard M. Coan's (the “Trustee's”) motion to compel Dunne to produce certain emails under Fed.R.Civ.P. 37 and 45. For the reasons that follow, I AFFIRM in part and VACATE and REMAND in part for further consideration.

         I. RELEVANT BACKGROUND

         The following facts are drawn from the parties' briefs and the record on appeal. On March 29, 2013, Dunne filed a voluntary petition for Chapter 7 bankruptcy protection in the Bankruptcy Court. (ECF No. 15 at 1.) On March 27, 2015, the Trustee commenced an adversary proceeding in the same court. (Id.) This appeal arises from a subpoena issued to Dunne in the adversary proceeding, to which he is not a party.

         On July 25, 2016, the Trustee served a Rule 45 subpoena on Dunne, but for months Dunne failed to make any response despite his counsel's assertion in a separate bankruptcy proceeding in Ireland that a production was imminent. (Id. at 1-2, 9-24.) On December 19, 2016, the Trustee filed a motion to compel. (Dkt.[1] No. 246.) The motion sought an order compelling production of documents responsive to the subpoena, an order holding Dunne in contempt, and an order awarding the Trustee reasonable attorney's fees and costs for bringing the motion. (See Dkt. No. 246 at 1-20.) The Bankruptcy Court held a hearing on January 3, 2017, at which Dunne agreed to produce the documents two days later; the Bankruptcy Court warned Dunne's lawyer that if he did not produce the documents he said he had in his possession by then, the Court would impose attorneys' fees as sanctions. (Dkt. No. 260 at 34-35.) On January 5, 2017, Dunne produced 1, 563 pages of documents to the Trustee, which did not include any email documents. (Dkt. No. 313 at 2.) At the January 3 hearing, the Court also allowed Dunne to file a motion to quash by January 10, 2017, to challenge aspects of the subpoena counsel viewed as overbroad or burdensome-even though the deadline for serving objections set forth in Rule 45 had long since expired. (Dkt. No. 260 at 35-36); see Fed.R.Civ.P. 45(d)(2)(B). Dunne filed a motion to quash on January 10, 2017, asserting, among other things, that he had “demonstrated his good-faith by producing all responsive documents that he has identified to date . . . .” (Dkt. No. 256 at 1-2.)

         Shortly thereafter, the Bankruptcy Court issued a Scheduling Order requiring Dunne's counsel to file by February 3, 2017 “an affidavit certifying that all documents responsive to the Discovery Motions within the possession and/or control of the Debtor have been produced to the Trustee.” (Dkt. No. 271 at 1.) After Dunne failed to do so, on February 24, 2017, the Bankruptcy Court issued an Order to Show Cause. (Dkt. No. 277.) Dunne filed a response on February 27, 2017 asserting that he had misunderstood the Court's scheduling order and attached the certification he had previously provided to the Trustee. (Dkt. No. 279.) That Certification, dated February 2, 2017, provided as follows:

I, Sean Dunne, certify that I have conducted a good faith search to locate documents responsive to the requests for production contained in the July, 2016 subpoena served upon me, and that all responsive documents located as a result of said good faith search have been provided to counsel for production.
I hereby declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

(Dkt. No. 279.) This appeared to quell the controversy until months later, on July 5, 2017, when the Trustee filed a Renewed Motion to compel under Fed.R.Civ.P. 37 and 45. (Dkt. No. 313.)

         The Trustee attached two exhibits to that motion that contained emails to and from Dunne between 2011 and 2012 at the email address sean.dunnebb@gmail.com (the “BB Gmail Account”). (Dkt. No. 313 at 12-60.) The Trustee argued that these emails, which were obtained from third parties in other actions pertaining to Dunne's bankruptcy, as well as Dunne's previous testimony that he regularly used at least one email account, showed that Dunne's production of documents in response to the subpoena was deficient, because it did not contain any emails. (Dkt. No. 313 at 7-8.) The renewed motion again sought an order compelling production, a finding of contempt, and attorneys' fees. (Dkt. No. 313 at 10.) Dunne filed an objection on July 26, 2017 asserting, among other things, that the BB Gmail Account had long since been closed because of hacking. (Dkt. No. 315 at 2-3.) Dunne did not provide an affidavit or any other evidence to support the assertions made in his objection. (Id.)

         The Bankruptcy Court held a hearing on July 27, 2017 on the Trustee's renewed motion to compel. (Dkt. No. 361.) At the hearing, the Trustee's counsel provided additional emails to the Bankruptcy Court from 2016 and 2017 to and from another of Dunne's email accounts, SeanDunne366@gmail.com (the “366 Gmail Account”). (Dkt. No. 361 at Tr. 10-13.) Counsel for Dunne argued that both email accounts were hacked and had been closed, but did not present any additional evidence at the hearing, relying instead on Dunne's February 2, 2017 certification. (Dkt. No. 361 at Tr. 20:12-21:19.) The Bankruptcy Court orally granted the Trustee's motion to compel, found Dunne in contempt, indicated that it would award attorneys' fees, and ordered that Dunne would be in further contempt if he did not cooperate with the Trustee's efforts to get the emails from a third-party like AT&T or Gmail. (Dkt. No. 361 at 45:25-46:19.) At the court's request, the Trustee submitted a draft order on July 28, 2017 (Dkt. No. 327), which the Bankruptcy Court ordered in substantially identical form on August 2, 2017. (Dkt. Nos. 329 (the “Order”).)

         The Order set forth factual findings reciting the above history and that “Dunne did not claim that he produced email or that email was not responsive to the Subpoena;” “Dunne's Certification is the only basis provided for not producing email to the Trustee;” “Dunne provided no affidavit or certification in response to the Motion, but instead relied upon the Certification at the Hearing;” “Dunne's Certification does not state: (i) that no email responsive to the Subpoena existed; or (ii) that emails were not reasonably accessible because of undue burden or cost;” and that “Dunne did not establish cause for failing to obey the Subpoena and produce responsive email, including the email the Trustee received from other sources.” (Dkt. No. 329 at 2, ¶¶ 6- 10.) Based on those findings, the Bankruptcy Court ordered as follows:

• ORDERED: Pursuant to Fed.R.Bankr.P. 9016, incorporating Fed.R.Civ.P. 45(g), Dunne is in contempt for failing to obey the Subpoena; and it is further
• ORDERED: Pursuant to Fed.R.Bankr.P. 7037, incorporating Fed.R.Civ.P. 37, Dunne shall produce all documents responsive to the Subpoena, which production shall include a list of all email accounts that Dunne has used since January 1, 2010; and it is further
• ORDERED: Pursuant to Fed.R.Bankr.P. 9016, incorporating Fed.R.Civ.P. 45(e)(1)(D), the Trustee shall serve a copy of this order on the appropriate subsidiaries or divisions of Google and AT&T, and Google and AT&T shall produce all electronic mail from the accounts seandunnebb@gmail.com and seandunne366@gmail.com; and it is further
• ORDERED: Dunne shall cooperate in the production of the electronic mail from said accounts; and it is further
• ORDERED: Pursuant to Fed.R.Bankr.P. 7037, incorporating Fed.R.Civ.P. 37(a)(5), Dunne shall pay the Trustee's reasonable expenses and attorneys' fees in connection with the Initial Motion and the Motion. The Trustee shall file an affidavit setting forth his claim for reasonable expenses and attorneys' fees on or before August 18, 2017.

(Dkt. No. 329 at 2-3.) On August 16, 2017, Dunne filed a notice of appeal of the Order to this ...


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