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Eurochem Trading USA Corp. v. Ganske

United States District Court, W.D. Wisconsin

October 17, 2019

EUROCHEM TRADING USA CORPORATION, Plaintiff,
v.
W. KENT GANSKE, individually and d/b/a and sole proprietor of AG CONSULTANTS, and JULIE L. GANSKE, Defendants. W. KENT GANSKE, individually and d/b/a AG CONSULTANTS, and JULIE GANSKE, Counter-Plaintiffs and Third-Party Plaintiffs, and WS AG CENTER, INC., Third-Party Plaintiffs,
v.
EUROCHEM TRADING USA CORPORATION, Plaintiff and Counter-Defendant, and EUROCHEM GROUP AG, SCOTT SIMON, IVAN BOASHERLIEV, BENTREI FERTILIZER, LLC and BEN-TREI, LTD., Third-Party Defendants.

          ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE.

         On October 21 this court will hold a bench trial on defendants' W. Kent Ganske and Julie Ganske's claims that they were fraudulently induced into signing a Guaranty that obligated them to pay monies owed by W. Kent Ganske's company, WS AG Center, Inc., to plaintiff Eurochem Trading USA Corporation (“ECTUS”). Two motions are before the court: (1) the Ganske parties' motion to compel plaintiff to produce emails between the parties from 2014- 2016 (dkt. 174); and (2) ECTUS's motion to quash witness subpoenas for Scott Simon and Charles Bendana (dkt. 182). As stated below, the motion to compel will be denied and the motion to quash will be granted.

         I. Ganske Motion to Compel (dkt. 174)

         The Ganske parties move to compel ECTUS to produce documents responsive to RFP Nos. 29 and 35. RFP 29 requested “All communications between the parties” and RFP 35 requested “All Communications between You and any of the Parties from 2014 to the Present.” In its written responses served on June 3, 2019, ECTUS explained that responsive documents had already been provided to the Ganskes as part of the discovery exchanged in the parallel arbitration proceeding between ECTUS and WSAG. During that proceeding, WSAG had sought all communications between the parties from May 2015 to the date of service of the request, and ECTUS had produced those documents. The disclosure of documents covering the time frame from May 2015 to the present seemed to be satisfactory to the Ganskes, because they did not raise the issue in their first motion to compel filed June 27, 2019. See dkt. 117.

         On October 4, 2019 - the last day of discovery before the October 21, 2019 bench trial - counsel for the Ganskes contacted counsel for ECTUS and complained that no documents before November 2016 and been provided by ECTUS in response to RFP's 29 and 35. Dkt. 176, exh. A. This was incorrect: as just discussed, ECTUS had provided responsive documents dating back to April 10, 2015 in the arbitration proceeding. Nonetheless, ECTUS's lawyers said they would go back and produce emails from 2014 to the present between the Ganskes and ECTUS. Id. Later that day, however, ECTUS's lawyers advised the Ganske's lawyers that ECTUS did not have documents going back to 2014 in its database and therefore would not be producing additional documents. Id. The Ganskes then filed the instant motion to compel.

         Documents pre-dating April 2015 are not relevant. The Guaranty that is the subject of ECTUS's complaint was signed in March and May, 2017, by Kent Ganske and Julie Ganske, respectively. The conduct upon which the Ganske's third-party complaint is based began in 2016 at the earliest. Finally, the Ganskes have failed to make any persuasive argument as to why emails between the parties predating by two years any of the conduct at issue in this case is relevant. Accordingly, the motion to compel will be denied.

         II. ECTUS's Motion to Quash Subpoenas (dkt. 182)

         On October 11, 2019, counsel for the Ganskes emailed to ECTUS's counsel subpoenas for two ECTUS employees: (1) Scott Simon, who lives in Oklahoma; and (2) Charlie Bendana, who lives in Switzerland. Counsel for ECTUS responded that he was not authorized to accept service of either trial subpoena. ECTUS now moves to quash the subpoenas under Fed.R.Civ.P. 45 (d)(3)(A)(ii), on the grounds that the subpoenas were not properly served, and that neither witness is within the territorial reach of the court's subpoena power under Fed.R.Civ.P. 45.

         Trial subpoenas are governed by Rule 45 of the Federal Rules of Civil Procedure. Subsection (b) of the rule imposes limitations on service of a subpoena. Among the requirements, a copy of the subpoena must be delivered to the named person and, if the subpoena requires that the person's attendance, fees must be tendered “for 1 day's attendance and the mileage allowed by law.” Fed.R.Civ.P. 45(b)(1). Subsection (c) restricts the geographic scope of the court's subpoena power. It states:

(c) Place of Compliance
(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
(B) within the state where the person resides, is employed or regularly transacts business in ...

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