Académique Documents
Professionnel Documents
Culture Documents
Attorneys at Law
Re:
This firm is counsel to defendant Vekrum Kaushik in the above-entitled action. This
response is in opposition to the letter-motion filed by counsel for movant Elon Lebouvich a/k/a
Allen Lebo (Lebo or movant) seeking to quash the properly noticed subpoena duces tecum
(subpoena) upon Lebo. Dckt. No. 38.
Counsel for Lebo has made demands that this Court quash the subpoena served by
defendant on Sprint Corporate Security for the cellular telephone number of (516) 216-3398, a
number used or controlled by Lebo. Mr. Weinreb has either not properly conferred or merely
desires to increase the workload of this Court. Had Mr. Weinreb spoken with Lebo, he would have
been informed that this [Lebos] number was serviced by T-Mobile during the requested time
period. Exhibit A, Letter from Sprint Corporate Security to Sheehan & Associates, P.C., March
2, 2015.
Nevertheless, I understand the need to vigorously represent the interest of your client, even
when those interests are non-existent, such as Lebos cellular phone records maintained by Sprint
Corporate Security.
Mr. Weinreb interestingly cites to ADL, LLC v. Tirakian, No. CV2006-5076(SJF)(MDG,
2007 WL 1834517, at *2 (E.D.N.Y. June 26, 2007) for the proposition that a party has standing to
challenge a non-party subpoena where the party has a sufficient privacy interest in the confidentiality
of the records sought . . . I find that the Auditors have a sufficient privacy interest in the
confidentiality of the documents discussed above to have standing to challenge the subpoenas.
At bar, Lebo is not a party to this action. Nor, according to plaintiff, is Lebo a member of
1
plaintiff. In defendants interrogatories to plaintiff (first set), served on plaintiff on October 8, 2014,
Interrogatory No. 20 states: Set forth the relationship between BSI Mortgage IV LLC and Elon
Lebouvich a/k/a Elon Lebovitch a/k/a Allen Lebo. Exhibit B, Defendants Interrogatories to
Plaintiff (First Set). Plaintiff answered that Elon Lebovich is a broker trying to assist BSI. Exhibit
C, Plaintiffs Response to Defendants First Set of Interrogatories, December 1, 2014.
In ADL, LLC v. Tirakian, the Court decided that given the relevance of employment and
personnel files to the underlying claims of plaintiff based on negligent misrepresentation and fraud,
the Auditors (defendants). In the present situation, phone records for the time indicated are relevant
to defendants claims that plaintiff is not disclosing those persons (members) who possess a
beneficial interest in the outcome of this litigation.
The Supreme Court stated that an interest in an LLC is the sort of instrument that requires
case-by-case analysis; into the economic realities of the underlying transaction. Reves v. Ernst &
Young, 494 U.S. 56, 62, 110 S.Ct. 945, 108 L.Ed.2d 47 (1990) (In discharging our duty, we are
not bound by legal formalisms, but instead take account of the economics of the transaction under
investigation.).
Assuming arguendo that Sprint maintained records of Lebos cellular telephone records, the
actual production requests were highly limited in scope. First, only one (1) telephone number
associated with Lebo was listed in the subpoena. Second, only one (1) date of phone records for the
number associated with Lebo was listed in the subpoena. Finally, the subpoena only requested call
records for Lebos number between 1:00 PM and 7:30 PM, Eastern Standard Time (EST). Dckt.
No. 38-1, Attachment II, Production Requests 1-5.
As is likely evident from the arguments and facts placed before this Court in defendants
opposition to the motion to quash a subpoena and subpoena duces tecum served upon Yonel Devico,
this case comes down to who is/was in control of plaintiff.
On June 9, 2014, your undersigned and defendant Kaushik held a meeting with Lebo and
Mr. Weinreb in New York, NY. The goal of this meeting was to reach a settlement between
plaintiff and defendant. This meeting took place in the afternoon, from approximately 3:30 PM to
5:30 PM.
The records sought in this subpoena from Mr. Lebo, the broker directly assisting plaintiff,
would indicate just who in fact he called when transmitting settlement offers conveyed in good faith
by defendant Kaushik. Did Mr. Lebo call the Managing Member in Florida? Did Mr. Lebo call
Marbella, Spain, Monaco or the Kingdom of Morocco, places where Simy Devico, the second
named member of plaintiff resides? These records, while they would not, in themselves, be
dispositive, they would identify the person who was instructing, paying or otherwise maneuvering
him from behind the scenes against defendant.
A partys right to obtain material pursuant to a Rule 45 subpoena to a third party is as broad
as otherwise permitted under the discovery rules. See e.g. Charles Wright & Alan Miller, Federal
Practice and Procedure 2452 (3d. ed. 2008). Relevance within the meaning of Rule 26(b)(1) is
considerably broader than relevance for trial purposes. See Oppenheimer Fund v. Sanders, 437 U.S.
340, 351 (1978) (citation omitted). Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence. Rule
26(b)(1); see also Oppenheimer Fund, 437 U.S. at 351.
Lebos counsel has no argument as to the subpoena request being overbroad, as the duration
of the request was for six and one-half (6.5) hours. Considering a central element of this case is to
determine the real parties in interest to this action, the limited and direct subpoena is neither
burdensome or encumbers any privacy interest Lebo may have in keeping the Court from learning
who in fact he was transmitting defendants offers to at that specific time on that one specific date.
Finally, Mr. Weinreb cites to Corbett v. eHome Credit Corp. for the proposition that when
assessing whether or not discovery is overbroad or unduly burdensome, the Court should look at the
burden placed on non-parties. No. 10-CV-26 (JG)(RLM), 2010 WL 3023870, at *2-3 (E.D.N.Y.
Aug. 2, 2010). Continuing, as cited by Lebos counsel, Corbett states that a subpoena that pursues
material with little apparent or likely relevance to the subject matter . . . is likely to be quashed as
unreasonable even where the burden of compliance would not be onerous. Therefore, even if the
within subpoena is not burdensome, Mr. Weinreb states it should be quashed because it pursues
material with little apparent or likely relevance to the subject matter.
For the factual considerations provided and the relevancy of the information requested to
enable defendant to adequately litigate this action, it is respectfully requested that the within motion
on behalf of Lebo seeking to quash the subpoena duces tecum of his non-existent Sprint phone
records be denied.
Respectfully submitted,
/s/ Spencer Sheehan
Spencer Sheehan
Attachments/Exhibits (3)
cc:
EXHIBIT A
EXHIBIT B
DEFENDANT VEKRUM
KAUSHIKS
INTERROGATORIES TO
PLAINTIFF (FIRST SET)
Defendants.
-------------------------------------------------------------------X
PROPOUNDING PARTY: Defendant Vekrum Kaushik
RESPONDING PARTY:
The terms BSI, you, your, or Plaintiff means Plaintiff BSI Mortgage
IV LLC, its past and present members, past and present officers, past and present directors,
past and present employees, past and present partners, past and present corporate parent, past
and present subsidiaries or past and present affiliates and any and all past and present persons
acting for, on behalf of or in concert with BSI Mortgage IV LLC.
2.
name or a pronoun referring to a party, means the party and, where applicable, (his/her/its)
members, agents, representatives, officers, directors, employees, partners, corporate parent,
subsidiaries, or affiliates.
3.
The word person(s) includes not only natural persons, but also firms,
corporations,
subsidiaries,
divisions,
departments,
joint
ventures,
As used herein, any reference to any person includes the present and former
The singular of each word shall be construed to include its plural and vice
versa, and the root word and all derivations (i.e., ing, ed, etc.) shall be construed to
include each other.
6.
iii.
iv.
v.
vi.
7.
control of a person shall be construed to include such persons agents, representatives, and
attorneys.
8.
The word including shall have its ordinary meaning and shall mean
including but not limited to and shall not indicate limitation to the examples or items
mentioned.
9.
The words to present mean to the date on which you respond to these
photographs, as those terms are defined in Rule 1001 of the Federal Rules of Evidence,
and should be construed in the broadest sense permissible. Accordingly, document(s)
includes, but is not limited to, all written, printed, recorded or graphic matter, photographic
matter, sound reproductions, or other retrievable data (whether recorded, taped, or coded
The term "identify", with respect to a person, means to give, to the extent
known, the:
i.
ii.
iii.
iv.
Once a person has been identified in compliance with this paragraph, only the
name of that person needs to be listed in response to later discovery requesting the
identification of that person.
13.
The term "identify", with respect to documents, means to give, to the extent
known, the:
i.
ii.
iii.
iv.
v.
vi.
vii.
14.
Type of document;
General subject matter of the document;
Date of the document;
Author(s), addressee(s), and recipient(s) of the document;
The location of the document;
The identity of the person who has custody of the document;
Whether the document has been destroyed, and if so,
a.
The date of its destruction;
b.
The reason for its destruction; and
c.
The identity of the person who destroyed it or caused it
to be destroyed.
vii.
viii.
Spouse;
Natural and adoptive parents;
Children and siblings;
Half siblings (a person with whom the subject shares only one
biological parent);
Stepparents, stepchildren and stepsiblings;
In-laws:
a.
Fathers-in-law;
b.
Mothers-in-law;
c.
Brothers-in-law;
d.
Sisters-in-law;
e.
Sons-in-law; and
f.
Daughters-in-law;
Grandparents;
Grandchildren.
INSTRUCTIONS
1.
These requests for interrogatories are directed toward all information known
or available to Plaintiff BSI Mortgage IV LLC not its attorney, Mr. Alan Weinreb, The
Margolin & Weinreb Law Group, LLP 165 Eileen Way, Ste. 101, Syosset, NY 11791
including information contained in the records and documents in BSI Mortgage IV LLCs
custody or control or available to BSI Mortgage IV LLC upon reasonable inquiry.
2.
control of, or is available or accessible to plaintiff or any of its agents, consultants, counsel,
investigators, representatives or any other person or persons acting for it or on its behalf.
3.
Vekrum Kaushik hereby requests, pursuant to Federal Rule of Civil Procedure 26(e), that
after responding to these interrogatories, plaintiff supplement and/or correct any responses
later learned to be incomplete or incorrect immediately upon learning that a prior response
was incomplete or incorrect.
4.
exercising due diligence to secure the information to do so, then respond to the extent
possible and explain its inability to provide a complete answer. State whatever information
or knowledge plaintiff has about the unanswered portion of any interrogatory.
5.
claim of privilege set forth the nature of the claimed privilege and the nature of the
information with respect to which it is claimed.
6.
answer shall state the name, address, position, and organization of the author and each
recipient of the document, the custodian of the document, the date of the document, and a
brief description of the subject matter of the document.
7.
full name, present or last known address, telephone number, and position of employment at
the time in question.
8.
address, telephone number, and the type of business in which the entity engages.
9.
occurrence, dealing or instance, state the date when it occurred, the place where it occurred,
the identity of each person participating therein, the person on whose behalf each such person
participated or purported to participate, the nature and substance of all communications
occurring during, or in connection with the act, transaction, occurrence, dealing or instance,
and identity all documents referring thereto or reflecting the act, transaction, occurrence,
dealing or instance.
10.
privilege, attorneys work product or trial preparation materials, you are requested to identify
each such document, in writing, on or before the date of the production set forth herein,
together with the following information: the nature, date, subject matter and author of the
document, as well as the identity of all persons to whom the document was directed,
addressed or received, and the paragraphs of the discovery requests to which the document
corresponds. For each such document, you are further required to state the basis for your
claim of privilege, attorneys work product, or trial preparation materials.
11.
Whenever an interrogatory asks for a date, state the exact day, month and
on grounds of burdensomeness, explain in as much detail as possible the basis for your
contention.
13.
LLC or BSI Mortgage IV LLC fails to answer in whole or in part, the subject matter of that
request will be deemed confessed and stipulated as fact to the Court.
14.
answered.
was involved with and/or has personal knowledge regarding the formation, creation and/or
filing registration of BSI Mortgage IV LLC in the State of Delaware.
Answer No. 3:
Interrogatory No. 4:
Identify any past and present member, past and present manager, past and present
managing member, past and present managing director, past and present chief executive
officer, past and present officer, past and present president, past and present partner, past and
present authorized agent, past and present investor or past and present fiduciary that have
been in communication with FCI Lender Services, Inc. and the dates of communication.
Answer No. 4:
Interrogatory No. 5:
Please identify any person(s) who had any contact with any third party regarding the
securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral,
written or otherwise, concerning the transfer, assignment, purchase or assumption of the
subject loan by BSI Mortgage IV LLC.
Answer No. 5:
Interrogatory No. 6:
Please identify any person(s) known or believed by anyone at BSI Mortgage IV LLC
who had received physical possession of the note and allonges, the mortgage, or any document
(including but not limited to assignment, endorsement, allonges, Pooling and Servicing
Agreement, Assignment and Assumption Agreement, Trust Agreement, letters or email or
faxes of transmittals including attachments) that refers to or incorporates terms regarding the
securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral,
written or otherwise, that would affect the funding, or the receipt of money from a third party
in a transaction, and whether such money was allocated to principal, interest or other
obligation related to the subject loan.
Answer No. 6:
Interrogatory No. 7:
Set forth the relationship between BSI Mortgage IV LLC and Rodie Bensimon a/k/a
Rodie Simon Bensimon a/k/a Rodie Ben Simon a/k/a Simon Charles Ben a/k/a Rodie Ben
Bensimon.
Answer No. 7:
Interrogatory No. 8:
Please identify custodian(s) of the records that would show all entries regarding the
flow of funds concerning the transfer, assignment, purchase or assumption of the subject loan
to BSI Mortgage IV LLC subject loan transaction prior to and after closing of the loan. (Flow
of funds, means any record of money received, any record of money paid out and any
bookkeeping or accounting entry, general ledger and accounting treatment of the subject loan
transaction at your company or any affiliate including but not limited to whether the subject
transaction was ever entered into any category on the balance sheet at any time or times,
whether any reserve for default was ever entered on the balance sheet, and whether any entry,
report or calculation was made regarding the effect of this loan transaction on the capital
reserve requirements of your company or any affiliate.)
Answer No. 8:
Interrogatory No. 9:
Please state whether BSI Mortgage IV LLC or any past and present member, past and
present fiduciary, past and present active or passive investor, past and present manager, past
and present managing member, past and present managing director, past and present chief
executive officer, past and present officer, past and present president, past and present partner,
past and present authorized agent, past and present employees, past and present independent
contractors, or other past or present agents, past or present servants of BSI Mortgage IV LLC
or any immediate family member thereof had (i) any direct contact with defendant Vekrum
Kaushik (notwithstanding the within action) at any time since the inception of BSI Mortgage
IV LLC (ii) any previous relationship with defendant Vekrum Kaushik. If yes, please provide
the date, method and natural person that communicated with defendant Vekrum Kaushik.
Answer No. 9:
Interrogatory No. 10:
Set forth the dates for which BSI Mortgage IV LLC operated at its usual place of
business at 2500 East Hallandale Beach Blvd., PH 10, Hallandale Beach, FL 33009.
Answer No. 10:
Interrogatory No. 11:
Set forth the approximate percentage of business activity of BSI Mortgage IV
LLC which is conducted in (i) Florida, (ii) New York, (iii) California, (iv) Delaware and (v)
all other States of the United States and foreign countries.
Answer No. 11:
Interrogatory No. 12:
Set forth whether any past and present member, past and present fiduciary, past and
present active or passive investor, past and present manager, past and present managing
member, past and present managing director, past and present chief executive officer, past
and present officer, past and present president, past and present partner and past and present
authorized agent of BSI Mortgage IV LLC or any immediate family member thereof,
presently and/or previously possesses/possessed keys or other lawful implements of entry to
the dwelling and/or other structures located at 65 Hildreth Avenue, Bridgehampton, NY
11932. If yes, when and how did they come into possession of said keys or other lawful
implements of entry (i.e., modification of door locks and/or deadbolts)?
Answer No. 12:
Interrogatory No. 13:
Please set forth whether past or present members of BSI Mortgage IV LLC as
identified by plaintiff or BSI Mortgage IV LLC have been a party to a foreclosure action
within any State of the United States.
Answer No. 13:
Interrogatory No. 14:
Set forth the full and complete name (including but not limited to middle, maiden
and married names) and alternative spelling thereof for the two listed members of BSI
Mortgage IV LLC as identified by plaintiff in the filing with this honourable Court of August
13, 2014.
Answer No. 14:
Interrogatory No. 15:
Please state the name, address and phone number of each past and present member,
past and present fiduciary, past and present active or passive investor, past and present
manager, past and present managing member, past and present managing director, past and
present chief executive officer, past and present officer, past and present president, past and
present partner and past and present authorized agent of BSI Mortgage IV LLC and identify
all documents that illustrate the date each individual named herein entered into such capacity
with BSI Mortgage IV LLC.
Answer No. 16:
Interrogatory No. 17:
Other than persons identified above, identify any and all persons who have or had
personal knowledge of the subject loan transaction, underwriting of the subject loan
transaction, securitization, sale, transfer, assignment or hypothecation of the subject loan
transaction, or the decision to enforce the note or mortgage in the subject loan transaction.
Answer No. 17:
Interrogatory No. 18:
Please identify any person(s) in custody of any document which refers to any
instruction or authority to enforce the note or mortgage in the subject loan transaction.
Answer No. 18:
Interrogatory No. 19:
Did any investor/certificate holder approve or authorize foreclosure proceedings on
the subject property? If yes, set forth the name address and telephone number of such
individual.
Answer No. 19:
Interrogatory No. 20:
Set forth the relationship between BSI Mortgage IV LLC and Elon Lebouvich a/k/a
Elon Lebovitch a/k/a Allen Lebo.
Answer No. 20:
Set forth the time spent by past or present members of BSI Mortgage IV LLC at
its usual place of business at 2500 East Hallandale Beach Blvd., PH 10, Hallandale Beach,
FL 33009.
Dated:
By:
TO:
_____________________________
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
Attorneys for Defendant Vekrum Kaushik
10 Middle Neck Road
Suite 200
Great Neck, NY 11021
Tel: (347) 635-4160
Fax: (516) 234-7800
spencer@spencersheehan.com
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
under the circumstances, the contentions contained in the annexed documents are not frivolous.
Dated: Nassau, New York
October 8, 2014
___________________________
SPENCER SHEEHAN, ESQ.
EXHIBIT C
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE