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Securities and Exchange Commission v. Alternate Energy Holdings

May 1, 2012

SECURITIES AND EXCHANGE COMMISSION,
PLAINTIFF,
v.
ALTERNATE ENERGY HOLDINGS, INC.,
DONALD L. GILLISPIE, AND JENNIFER RANSOM, DEFENDANTS,
BOSCO FINANCIAL, LLC, AND ENERGY EXECUTIVE CONSULTING, LLC, RELIEF DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER RE: SECURITIES AND EXCHANGE COMMISSION'S AMENDED MOTION TO COMPEL (Docket No. 137)

Currently pending before the Court is the Securities and Exchange Commission's ("Plaintiff) Amended Motion to Compel (Docket No. 137). Having carefully reviewed the record, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. BACKGROUND

On July 29, 2011, Plaintiff moved this Court for an order requiring Defendant Alternate Energy Holdings, Inc. ("Defendant") to produce documents and information in its possession or under its control in response to written Requests for Production of Documents. See Pl.'s Mot. to Compel (Docket No. 84). In light of various events taking place in the course of this litigation, on October 29, 2011, the undersigned ordered the parties to (1) meet and confer to determine whether Plaintiff's July 29, 2011 motion can be resolved without Court involvement, and (2) submit a joint status report by January 6, 2012. See 10/29/11 Order, p. 3 (Docket No. 115).

The parties' January 6, 2012 Joint Status Report (Docket No. 130) suggested (at least in the Court's mind) some degree of cooperation between the parties involved in Plaintiff's underlying motion, exhibited by a rolling production of responsive materials over time. With all that in mind, on January 19, 2012, the Court denied Plaintiff's July 29, 2011 motion as moot, while nonetheless allowing Plaintiff to renew its motion by February 2, 2012 to address any outstanding issues not resolved by Defendant's document production in the meantime. See 1/19/12 Order, pp. 2-3 (Docket No. 136).

On February 2, 2012, Plaintiff filed the instant Motion to Compel, renewing its request for an order compelling the production of documents previously sought or, alternatively, written indication from Defendant that it has fully produced documents responsive to Plaintiff's requests. See Am. Mot. to Compel, p. 1 (Docket No. 137). Defendant opposes the motion, arguing that no meet-and-confer conference took place pursuant to Local Civil Rule 37.1 and, regardless, responsive documents have either already been produced or will be produced. See Def.'s Opp. to Am. Mot. to Compel, pp. 4-6 (Docket No. 140).

II. DISCUSSION

Of significant importance here is the fact that Defendant does not lodge any objection to Plaintiff's discovery requests. Instead, the thrust of Defendant's opposition to Plaintiff's latest Motion to Compel is that Defendant has already produced, or will soon produce, the requested information and that, had Defendant complied with its meet-and-confer obligations at the outset, there would have been no need to involve the Court.

As an initial matter, based upon the existing record, Plaintiff's counsel has sufficiently complied with Local Civil Rule 37.1 in conferring with Defendant's counsel before filing its Motion to Compel. Indeed, the information sought has been outstanding for over a year and Plaintiff has already moved the Court for corresponding relief. Then, believing it had not received all responsive documents by the Court-imposed February 2, 2012 deadline, it then moved to compel their production. In other words, the parties have already met and conferred with respect to the documents requested; while a more open dialogue as to the production's updated progress (particularly in light of any internal agreements to stay discovery while pursuing settlement) may very well have averted the need to ask the Court for relief, any failure to do so is not particularly consequential here -- especially when recognizing (1) the Court's imposition of an interrupting filing deadline, (2) upcoming depositions, and (3) approaching discovery deadlines.

Moreover, because Defendant apparently agrees to produce the information sought via Plaintiff's discovery requests, there appears to be little for this Court to actually order. Indeed, throughout Defendant's opposition to Plaintiff's Motion to Compel, Defendant consistently exhibits an intent to produce all available, responsive documents:

* Defendant is intending to conduct additional searches in order to identify and produce additional documents, which would include the categories of documents that are the subject of the Amended Motion to Compel, but, pursuant to the January 17, 2012 Order, Defendant's efforts in that regard have been suspended while concerted efforts to settle the case are being undertaken.

* If mediation fails, Defendant will, as the parties agreed, resume its production efforts.

* To date, Defendant AEHI has produced all of the documents regarding Board meetings and decisions that counsel has located.

* To the extent additional responsive records are found through searches of computers and hardcopy files after discovery resumes, ...


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