Snell & Wilmer L.L.P. v. Serenbetz

MOTION for Summary Judgment

D. Neb.December 1, 2016

LAXALT 8t NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 2 3 4 5 6 7 8 9 IO WAYNE A. SHAFFER (SBN 1519) JANICE HODGE JENSEN (SBN 563) LAXALT & NOMURA, LTD. 9600 Gateway Drive Reno, Nevada 89521 Tel: 775-322-1170 Fax: 775-322-1865 wshaffer@laxalt-nomura.com jjensen(a{laxalt-nomura.com Attorneys for Snell & Wilmer, LLP and Craig Denney UNITED STATES DISTRICT COURT DISTRICT OF NEVADA- NORTHERN DIVISION SNELL & WILMER, LLP, an Arizona Case No.: 3: 16-CV -00129-MMD-VPC II Limited Liability Partnership, 12 13 14 I5 16 17 18 I9 20 2I 22 23 Plaintiff, vs. CLAY SERENBETZ, an individual, Defendants. CLAY SERENBETZ, an individual, Cross-Complainant, vs. CRAIG DENNEY, an individual, SNELL & WILMER, LLP, an Arizona Limited Liability Partnership, and DOES 1 thru 50, inclusive, 24 Cross-Defendants. 25 CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 26 SNELL & WILMER, LLP and CRAIG DENNEY, by their attorneys Laxalt & Nomura, 27 Ltd., move this Court pursuant to Fed. R. Civ. P. 56 for an Order granting summary judgment 28 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 1 of 12 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAXALT 8: NOMURA, ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 in their favor on the Cross-Complaint. It is clear that Cross-Complainant has no viable claim for relief and Cross-Defendants are entitled to judgment as a matter oflaw. This Motion is made and based upon the allegations of the Cross-Complaint, the Points and Authorities which follow, the discovery responses of Cross-Complainant, the Declaration of Cross-Defendant Craig Denney, and such other presentations as the Court may consider. DATED this 1st day of December, 2016. LAXALT & NOMURA, LTD. Attorneys for Cross-Defendants POINTS AND AUTHORITIES Snell & Wilmer, LLP (SNELL & WILMER) filed a Complaint against its former client, Clay Serenbetz (SERENBETZ), for recovery of unpaid legal fees in the sum of$95,847.28. In response, SERENBETZ filed a "Cross-Complaint" against SNELL & WILMER and attorney Craig Denney (DENNEY) alleging 1) legal malpractice, 2) public disclosure of private facts, and 3) breach of fiduciary duty. Each of the claims is based either upon an alleged disclosure of Serenbetz' private and confidential financial information or improper ex-parte communications. (Cross-Complaint ~~7, 9). On August 22, 2016, SNELL & WILMER and DENNEY filed a Motion to Dismiss, challenging the legal sufficiency of the allegations of the Cross-Complaint1• Following an initial case management conference, the parties were permitted to conduct limited discovery while that Motion was pending. (ECF No. 27) On November 14, 2016, SERENBETZ served discovery responses to DENNEY'S Interrogatories and Request for Production of Documents. 1 Cross-Defendants are not withdrawing their Motion to Dismiss. The Cross-Complaint was legally insufficient. 2 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 2 of 12 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 l.AXALT & NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 It is now even more apparent, based upon the flawed allegations as well as the insufficient evidence, that SERENBETZ has no viable claim for relief and SNELL & WILMER and DENNEY are entitled to have judgment entered in their favor. A. The Summary Judgment Standard Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine factual issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(e). While all justifiable inferences must be viewed in the light most favorable to the nonmoving party, the nonmoving party may not rest upon the mere allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit or other evidentiary materials provided by Rule 56( e), showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual issues of controversy in favor of the nonmoving party where the facts specifically averred by that party contradict facts specifically averred by the movant. Lujan v. Nat'/ Wildlife Fed'n, 497 U.S. 871, 888 (1990). Conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment. Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995) "[U]ncorroborated and self-serving testimony," without more, will not create a "genuine issue" of material fact precluding summary judgment. Villiarimo v. Aloha Island Air Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). B. Undisputed Facts As alleged by SERENBETZ, he retained SNELL & WILMER to represent him in a criminal action. After engaging the services of SNELL & WILMER, he refused to pay his attorneys for the legal fees they incurred on his behalf. See Declaration of Craig Denney, 3 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 3 of 12 LAXALT & NOMURA, ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attached as Exhibit "1" and incorporated herein by reference. SNELL & WILMER withdrew as his counsel, and asserted a retaining lien on the file. After SERENBETZ retained new counsel, DENNEY received an inquiry from the Court, asking about the file2. In response to that inquiry from the Court, Denney emailed the Court Administrator, with a copy to Cross- Complainant's new counsel, that a lien had been asserted against the file for unpaid legal fees. The entire email reads: Paris, Hello, my colleague Carrie Parker said you called regarding US v. Serenbetz and left a message regarding the file. The reason our lawfirm has not turned over Mr. Serenbetz's file is because we have asserted an attorney's lien on the file pursuant to NRS 7.055. On July 22, 2015, I informed Mr. Serenbetz and his new counsel (Brian Newman) that our firm was asserting an attorney's lien on the file based on the unpaid legal fees ($82,000) that Mr. Serenbetz owes our law firm for numerous hours of legal work completed during the months ofMay and June 2015. I signed off on the substitution of counsel last month. I see in the stipulation to continue sentencing that the defendant filed does not mention the reason for our firm withholding the file. As oftoday's date, we have not received payment from Mr. Serenbetz for the unpaid invoices. Please let me know if there are any other questions or a hearing is necessary. Here, SERENBETZ' discovery responses show that the single and isolated communication upon which he bases his claim was this email from DENNEY to the Court Administrator, copied to SERENBETZ' new counsel, in response to the court's inquiry about the attorneys' files. Ill 2 The Court docket reflects that on the same day DENNEY received an inquiry from the Court, the Court also granted SERENBETZ' new counsel's request for a continuance of SERENBETZ' sentencing, based upon new counsel's representation that "prior counsel [SNELL & WILMER] has not yet turned over Mr. Serenbetz's file to new counsel." See Order attached as Exhibit "2," and incorporated herein by reference. SERENBETZ' new counsel, Brian Newman, was well aware that a retaining lien had been asserted by SNELL & WILMER, as he had been copied on an email advising SERENBETZ of his debt and that an attorneys lien would be asserted. See email chain, including the July 22, 2015 email regarding the debt, attached as Exhibit "3" and incorporated herein by reference. 4 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 4 of 12 LAXALT Be NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 In response to a number of interrogatories seeking clarification of the allegations of the 2 Cross-Complaint, SERENBETZ identified this email as the basis for his claims that Cross- 3 Defendants 1) disclosed private and confidential financial information to third parties (~ 7 of 4 the Cross-Complaint), 2) engaged in improper ex-parte communications with a Judicial Officer 5 (~ 9 ofthe Cross-Complaint), 3) publicized private and confidential financial information(~ 12 6 of the Cross-Complaint), and 4) used Cross-Complainant's private and confidential 7 information for their own benefit and bests interests(~ 21 of the Cross-Complaint). See Cross- 8 Complainant's Response to Interrogatories, attached hereto as Exhibit "4" and incorporated 9 herein by reference. I 0 The only document produced by Cross-Complainant as supporting his allegations in the II Cross-Complaint is the single email quoted above. See Cross-Complainant's Response to 12 Requests for Documents, attached hereto as Exhibit "5" and incorporated herein by reference. 13 This email will not support Cross-Complainant's claims and judgment should enter in favor of I4 Cross-Defendants. I5 c. I6 I7 Each of Serenbetz' Claims Fail as a Matter of Law and Judgment should be Entered in Favor of Cross-Defendants. 1. The Claim for "Legal Malpractice" fails as a matter of law. I8 In Nevada, the necessary elements of a claim for legal malpractice arising from an I9 attorney-client relationship are 1) the duty to use such skill, prudence, and diligence as other 20 members of the profession commonly possess and exercise; 2) breach of that duty; 3) a 2I proximate causal connection between the negligent conduct and the resulting injury; and 4) 22 actual loss or damage resulting from the professional's negligence. Charleston v. Hardesty, 23 108 Nev. 878, 839 P. 2d 1303 (1992). 24 SERENBETZ alleges that SNELL & WILMER and DENNEY "negligently, carelessly, 25 and recklessly" provided professional services and "violated their professional conduct 26 obligations" by engaging in "improper ex parte communications with the judicial officer in the 27 underlying criminal case." See Cross-Complaint at ~ 9. The only communication identified by 28 SERENBETZ in his discovery responses is the August 24, 2015 email. The email was clearly 5 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 5 of 12 LAXAL.T & NOMURA. ATTORNEYS AT LAW 9800 GATEWAY DRIVE RE:NO, NEVADA 89521 2 3 4 5 6 7 8 9 IO II I2 I3 14 15 16 17 I8 19 20 21 22 23 24 25 26 27 28 copied to SERENBETZ' new counsel, Brian Newman, so it was not "ex parte." The email was sent to Paris Rich, the Courtroom Administrator, not any judicial officer. The email was sent in response to an inquiry from Ms. Rich, not an unsolicited disclosure by Cross-Defendants. More importantly, addressing the legal malpractice claim, SERENBETZ admits he has not obtained the requisite appellate or post-conviction relief to support such a claim. SERENBETZ was charged in a criminal action (see Cross-Complaint at ~ 6) and SNELL & WILMER defended him as private counsel. The Nevada Supreme Court has held that in a claim for legal malpractice against private criminal defense counsel plaintiff must plead that he has obtained appellate or post-conviction relief in order to overcome a motion for summary judgment or a motion to dismiss. Morgana v. Smith, 110 Nev. 1025, 879 P. 2d 735 (1994). No such allegation was contained in the Cross-Complaint and in his discovery responses, SERENBETZ admits he has not obtained such relief. When asked to describe any post-conviction relief he had obtained, Serenbetz responded "The Responding Party has not obtained any post-conviction relief in the Underlying Action." See Exhibit "4," at Response to Interrogatory No. 13. Serenbetz' claim for legal malpractice fails as a matter oflaw. SERENBETZ' allegation of a violation of professional conduct obligations appears to refer to the Rules of Professional Conduct. The Nevada Supreme Court has held that such alleged violations do not create a private right of action. Mainor v. Nault, 120 Nev. 750, 101 P. 3d 308 (2004). SERENBETZ claims a violation of the Nevada Rules of Professional Conduct, Rule 1.8(b) and 1.6(a). His only support for those allegations is the single email. The email did not include any information "relating to the representation of the client" as required by Rule 1.8(b) and Rule 1.6(a). The email simply advised Ms. Rich, in response to her inquiry, that a lien was being asserted against the file. While an allegation of an alleged violation of the Rules of Professional Conduct will not support a private right of action, factually the email does not come under the umbrella of these ethical rules preventing disclosure of information related to the representation of the client. Finally, SERENBETZ provides no facts to show a plausible "actual loss or damage" proximately caused by the single email communication with Ms. Rich. When given the 6 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 6 of 12 LAXALT & NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 opportunity to respond to DENNEY'S request for a detailed description of his alleged harm or 2 damage, SERENBETZ simply responded that he "suffered prejudice, shame and 3 embarrassment"3 due to the allegedly negligent conduct of the Cross-Defendants. No 4 measurable damage is described, which is a necessary element of a legal malpractice claim. 5 For any of the above reasons, SERENBETZ' legal malpractice claim fails and 6 judgment should be entered in favor of Cross-Defendants. 7 2. The "Public Disclosure of Private Facts" fails as a matter of law. 8 In order to maintain an action for public disclosure of private facts, it must be proven 9 that a public disclosure of private facts has occurred which would be offensive and objectionable to a reasonable person of ordinary sensibilities. Montesano v. Donrey Media 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Group, 99 Nev. 644, 649, 668 P.2d 1081, 1084 (1983) (citations omitted). The Cross- Complaint did not specify or identify the confidential financial information that was alleged to have been publicly disclosed; did not identify the date and manner in which the information was disclosed; and did not identify what private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities. In his discovery responses, the only support for this claim was the single email to Ms. Rich, which was copied to SERENBETZ' own attorney. See Exhibit "4," at Response to Interrogatory No. 1, and No. 4. Revealing a claimed debt is not the disclosure of private financial information. In the email, SNELL & WILMER and DENNEY did not disclose anything about Serenbetz' assets, holdings or bank accounts. The email simply advised the court of the basis for the retaining lien on the file: a debt for attorneys' fees.4 In analyzing a claimed privilege based upon confidential communications, the Ninth Circuit Court of Appeals has held that attorney billing statements are not protected by the attorney-client privilege. Clarke v. American Commerce 3 It is difficult to imagine that SERENBETZ suffered "shame and embarrassment" from the disclosure of the debt that would compare to the shame and embarrassment of his criminal conviction, based upon his guilty plea, for possession of child pornography. 4 The Presentence Investigation Report on SERENBETZ in the underlying criminal case contained detailed financial information regarding SERENBETZ including a reference to a debt for "legal expenses." The Presentence report was prepared on August 5, 2015, prior to the August 24,2015 email to Ms. Rich. 7 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 7 of 12 LAXALT 8c NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 2 3 4 5 6 7 8 9 IO II I2 13 I4 I5 16 17 National Bank, 974 F. 2d 127 (9th Cir. 1992). Under the attorney-client privilege, confidential communications made by a client to an attorney to obtain legal services are protected from disclosure. However, not all communications between attorney and client are confidential or privileged. The amount of the fee is not considered a confidential communication. Thus, the amount of the debt is neither confidential. 5 One element of this claim is that there was publicity (rather than mere publication) of private matters. Even assuming the disclosure of the debt was a "private matter," the claim fails as there was no publicity. "Publicity" is different from "publication." As the Honorable Judge Pro explained in Kuhn v. Account Control Technology, Inc., 865 F. Supp. 1443 (D. Nev. 1994) there is a difference between publication and publicity. Publication, the Restatement explains, includes any communication by the defendant to a third person, while publicity, on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. In other words, it is not an invasion of the right of privacy ... to communicate a fact concerning the plaintiffs private life to a single person or even a small group of persons. 18 The August 24th email was only sent to Ms. Rich and SERENBETZ' new counsel (who 19 was already aware of the debt). SERENBETZ admits that he is unaware of any other persons, 20 who received the allegedly private financial information. See Exhibit "4," Response to 21 Interrogatory No. 3 and No. 4. There are no facts to support the claim of publicity and Cross- 22 Defendants are entitled to judgment as a matter of law on this claim. 23 Ill 24 Ill 25 Ill 26 Ill 27 28 5 In this very action, SERENBETZ has denied the debt to SNELL & WILMER. See ~ 7 of SERENBETZ' Answer to ~ 8 of the Complaint. If SERENBETZ is denying the debt, it cannot be his own "private and confidential financial information." 8 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 8 of 12 LAXALT &: NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVAOA 89521 3. The "Breach of Fiduciary Duty" claim fails as a matter oflaw. 2 In Nevada, the elements for a claim of breach of fiduciary duty are: 3 4 5 6 7 8 9 1. 2. 3. A fiduciary relationship exists between two persons such that one of them is under a duty to act for or give advice for the benefit of another upon matters within the scope of that relationship; Failure of the party owing the duty to use due care or diligence, act with utmost faith, exercise ordinary skill, or act with reasonable intelligence; Plaintiff suffered losses or injuries resulting from defendants' breach of duty; and 4. Causation and damages. 10 Stalk v. Mushkin, 125 Nev. 21, 199 P. 3d 838 (2009). While labeled a "breach of 11 fiduciary duty" claim, the third Claim for Relief simply reiterates the same claim of alleged 12 disclosure of SERENBETZ' private and confidential financial information. The third Claim 13 for Relief does allege the existence of a fiduciary relationship, and a duty of confidentiality, 14 which is generally true in an attorney-client relationship. However, the third Claim for Relief 15 fails to allege that SERENBETZ suffered any loss or injury "resulting from" the alleged breach 16 of duty. When asked to state the amount of damages he claims, SERENBETZ asserts 17 "$100,000" (surprisingly close to the unpaid attorneys' fees of $95,847.28 as alleged in the 18 Complaint). See Exhibit "4," at Response to Interrogatory No. 12. When asked to "state and 19 describe separately and in detail each single item and expense, loss or financial damage which 20 is claimed to have been incurred or which is believed will be incurred" by Serenbetz, he 21 responded that he is asserting "general damages in the amount of $100,000." He fails to 22 provide any factual information to support his claim that the single email caused him to suffer 23 "prejudice, shame and embarrassment." 24 This claim for breach of fiduciary duty is duplicative of the claim for legal malpractice 25 and is similarly unsupported by any facts. Judgment should be entered in favor of Cross- 26 Defendants. 27 /// 28 /// 9 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 9 of 12 LAXALT & NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 D. Conclusion and Relief Requested 2 SERENBETZ has failed to produce any admissible evidence that there is a genuine 3 issue of fact for trial. In addition to the legal insufficiency of the Cross-Complaint, which 4 would justify dismissal of the case, SERENBETZ' discovery responses reveal the total lack of 5 any viable claim. The email was admittedly sent, in response to an inquiry from the court. It 6 did not contain any of SERENBETZ' private or confidential financial information; it asserted a 7 debt owed. It was not communicated to the public at large, or to so many persons that it was 8 substantially certain to become public knowledge. The communication did not violate any 9 professional conduct rule. The email was simply a response to a question posed by the Court. 10 It does not support SERENBETZ' claims. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SNELL & WILMER and DENNEY respectfully request their Motion be granted and judgment enter in their favor. DATED this 1st day ofDecember, 2016. LAXALT & NOMURA, LTD. 9600 Gateway Drive Reno,Nevada 89521 Tel: 775-322-1170 Fax: 775-322-1865 Attorneys for Cross-Defendants 10 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 10 of 12 L AXAL.T 8: NOMURA . ATTORNEYS AT LAW 9600 GATEWAY DRI V E REN O , NEVADA 89521 CERTIFICATE OF SERVICE 2 Pursuant to FRCP 5(b) and Section IV of the District of Nevada Electronic Filing 3 Procedures, I hereby certify that I am an employee of Laxalt & Nomura, Ltd. , and that I caused 4 to be served a true and correct copy of the foregoing by E-Service by filing the foregoing 5 CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT with the Clerk of Court 6 using the CMIECF system, which will electronically mail the filing to the following email 7 addresses: 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 William E. Peterson SNELL & WILMER wpeterson(a),swlaw.com Nathan G. Kanute SNELL & WILMER nkanute(a),swlaw.com Gregory E. Coyer Okabe & Haushalter gcoyer(a),coyerlaw.com Kevin Gerry The Law Offices of Kevin Gerry kevingerry@earthlink.net DATED this 1st day of December, 2016. ~ployee hlaxalt & Nomura, Ltd. -=--::::::: II Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 11 of 12 INDEX OF EXHffiiTS 2 3 EXHIBIT DESCRIPTION PAGES 4 1 Declaration of Craig Denney 2 5 2 Order Granting Stipulation to Continue Sentencing 4 6 3 E-mail chain 4 7 4 Cross-Complainant's Response to Interrogatories 15 8 5 Cross-Complainant's Response to Requests for Production 11 9 IO II I2 13 I4 I5 I6 I7 I8 I9 20 2I 22 23 24 25 26 27 28 LAXALT &: NOMURA. ATTORNEYS AT LAW 9600 GATEWAY DRIVE RENO, NEVADA 89521 I2 Case 3:16-cv-00129-MMD-VPC Document 29 Filed 12/01/16 Page 12 of 12 EXHIBIT 1 DECLARATION OF CRAIG DENNEY EXHIBIT 1 Case 3:16-cv-00129-MMD-VPC Document 29-1 Filed 12/01/16 Page 1 of 2 I DECLARATION OF CRAIG DENNEY I. I am an adult, competent to testify to the contents of this Declara ion if called upon to do so. 2. Commencing in July 2012, as a member of Snell & Wilmer, LL , I represented Clay Serenbetz in connection with the investigation and defense of a crimi al prosecution filed against him in Reno, Nevada, entitled United States v. Serenbetz; USD Case No. 3:15-CR- 001-HDM. 3. I represented Mr. Serenbetz until August 2015, when Brian New an substituted in as counsel for him. 4. In the summer of 2015, I communicated with Mr. Serenbetz a out his outstanding debt to Snell & Wilmer, LLP for the legal services provided to him. I a vised Mr. Serenbetz and Mr. Newman that we would be asserting an attorney lien against his fi . 5. On August 24, 2015, I was advised that Judge McKibben's cou oom administrator Paris Rich had left a message, asking about the file. I responded to M . Rich's inquiry by email, advising that the firm was asserting an attorney's lien on the 1le based upon Mr. Serenbetz' unpaid legal fees. The email was copied to Mr. Serenbetz' new counsel, Brian Newman. 6. Other than Ms. Rich and Mr. Newman, I am not aware of any ot er person outside of Snell & Wilmer, LLP who received the email. 7. Mr. Serenbetz's files, much of which contained duplicative m terial already in his possession, were transferred to Mr. Serenbetz's new attorneys a little ove a week after thee- mail was sent to Ms. Rich. I declare under penalty of perjury that the foregoing is true and co ct. DATED this Z.'f7.y of /VOV€M8Ef<. , 2016. --Case 3:16-cv-00129-MMD-VPC Document 29-1 Filed 12/01/16 Page 2 of 2 EXHIBIT2 ORDER GRANTING STIPULATION TO CONTINUE SENTENCING EXHIBIT2 Case 3:16-cv-00129-MMD-VPC Document 29-2 Filed 12/01/16 Page 1 of 4 Case 3:15-cr-00001-HDM-VPC Document 38 Filed 08/24/15 Page 1 of 3 1 RYAN OKABE for OKABE & HAUSHALTER 2 1230 Rosecrans Ave Floor 3, Manhattan Beach, CA 90266 3 (310) 543-7708 email: southbaylawyer.com 4 CA State Bar #208935 BRIAN A. NEWMAN for 5 OKABE & HAUSHALTER 3838 Carson Street, Suite 300/302 6 Torrance, California 90053 (424) 275-4014; Fax: (424) 275-4015 7 Email: jjnewbee.newman@gmail.com State Bar #89975 8 CA State Bar #208935 9 10 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Defendant Clay Serenbetz UNITED STATES DISTRICT COURT DISTRICT OF NEVADA UNITED STATES OF AMERICA, CASE NO.: 3:15CR-00001-HDM-VCF ORDER GRANTING Plaintiff, vs. CLAY SERENBETZ, Defendant. STIPULATION ~~~ TO CONTINUE SENTENCING [SECOND REQUEST] 22 It IS HEREBY STIPULATION AND AGREED by and through Brian A. 23 Newman of the Law Offices of Okabe & Haushalter, counsel for CLAY 24 SERENBETZ; DANIEL G. BODGEN, United States Attorney, and CARLA 25 HIGGINBOTHAM, Assistant United States Attorney, counsel for the 26 UNITED STATES OF AMERICA; that defendant Clay Serenbetz's 27 sentencing hearing currently scheduled for September 23, 2015 at 28 Case 3:16-cv-00129-MMD-VPC Document 29-2 Filed 12/01/16 Page 2 of 4 Case 3:15-cr-00001-HDM-VPC Document 38 Filed 08/24/15 Page 2 of 3 11:00 a.m. be continued for ninety (90) days, to December 1, 2015 2 at 10:30 a.m. 3 Continuance is necessary because: 4 1. The Law Offices of Okabe & Haushalter substituted into 5 the case on August 12, 2015 (the date the substitution order was 6 signed) . 7 2. Prior counsel has not yet turned over Mr. Serenbetz's 8 file to new counsel. 9 3. New counsel needs additional time to obtain prior 10 counsel's file, analyze the presentence report, conduct research 11 on the sentencing issues, and prepare and file a sentencing 12 position with the Court. 13 4. Mr. Serenbetz is amenable to this request for a 14 continuance. Defense counsel has discussed the justifications 15 for continuing the sentencing hearing with him. Mr. Serenbetz is 16 not in custody. 17 5. This is the first request for a continuance made by new 18 counsel, although prior counsel made one request for a 19 continuance that was granted on July 8, 2015. 20 6. The current sentencing date, September 23, 2015, is set 21 on the Jewish High Holy Day, which is celebrated by defense 22 counsel. 23 I I 24 I I 25 I I 26 I I 27 I I 28 I I 2 Case 3:16-cv-00129-MMD-VPC Document 29-2 Filed 12/01/16 Page 3 of 4 Case 3:15-cr-00001-HDM-VPC Document 38 Filed 08/24/15 Page 3 of 3 1 This request for a continuance is not for the purpose of 2 unnecessary delay. A miscarriage of justice would occur by 3 failing to grant this request, thus denying Mr. Serenbetz's 4 counsel adequate time necessary for effective preparation, taking 5 into account the exercise of due diligence. 6 7 DATED: August 21, 2015 Is/ Brian A. Newman 8 9 10 BRIAN A. NEWMAN for Law Offices of Okabe & Haushalther Attorneys for Defendant Clay Serenbetz 11 DATED: August 21, 2015 Is/ Carla Higginbotham 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CARLA HIGGINBOTHAM Assistant United States Attorney [VIA EMAIL AUTHORIZATION] t~] ORDER IT IS HEREBY ORDERED that Defendant Clay Serenbetz's sentencing hearing now scheduled for September 23, 2015 at 11:00 a.m. in United States District Court, District of Nevada, Reno Courthouse, Courtroom 4 is hereby continued to December 1, 2015 at 10:30a.m. The delay in the proceedings is granted to provide the Defendant and defense counsel reasonable time necessary for effective preparation for sentencing, taking into account the exercise of due diligence. The ends of justice would best be serviced by this continuance of the hearing date. IT IS SO ORDERED. h . 24th IT IS SO ORDERED t lS day of August, 2015. HOWARD D. McKIBBEN, Senior United States District Judge 3 Case 3:16-cv-00129-MMD-VPC Document 29-2 Filed 12/01/16 Page 4 of 4 EXHIBIT3 E-MAIL CHAIN EXHIBIT3 Case 3:16-cv-00129-MMD-VPC Document 29-3 Filed 12/01/16 Page 1 of 4 ------------------Subject: FW: United States v Serenbetz Importance: High From: Denney, Craig Sent: Monday, August 24, 2015 2:12PM To: Paris Rich@nvd.uscourts.gov Cc: Denney, Craig; Brian Newman (jjnewbee.newman@gmail.com) Subject: United States v Serenbetz Importance: High Paris, Hello, my colleague Carrie Parker said you called regarding US v. Serenbetz and left a message regarding the file. The reason our lawfirm has not turned over Mr. Serenbetz's file is because we have asserted an attorney's lien on the file pursuant to NRS 7.055. On July 22, 2015, I informed Mr. Serenbetz and his new counsel (Brian Newman) that our firm was asserting an attorney's lien on the file based on the unpaid legal fees ($82,000) that Mr. Serenbetz owes our law firm for numerous hours of legal work completed during the months of May and June 2015. I signed off on the substitution of counsel last month. I see in the stipulation to continue sentencing that the defendant filed does not mention the reason for our firm withholding the file. As of today's date, we have not received payment from Mr. Serenbetz for the unpaid invoices. Please let me know if there are any other questions or a hearing is necessary. Craig S. Denney Snell & Wilmer L.L.P. 50 W. Liberty Street, Suite 510 Reno,Nevada 89501 Office: 775-785-5411 Fax: 775-785-5441 Mobile: 775-830-2432 cdenney@swlaw.com www.swlaw.com Denver, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt Lake City, Tucson From: Denney, Craig Sent: Wednesday, July 22, 2015 5:06 PM To: Clay Serenbetz Cc: Denney, Craig; Byrne, Pat; Brian Newman Subject: United States v Serenbetz 1 Case 3:16-cv-00129-MMD-VPC Document 29-3 Filed 12/01/16 Page 2 of 4 Clay: Your new attorney Brian Newman has contacted me to sign off on the substitution of counsel form in the federal criminal case in Nevada. I will sign off the form. You currently owe Snell & Wilmer approximately $82,000 in fees for legal services in May and June. Our firm intends to assert an attorneys lien on the firm's case file pursuant to Nevada law. Please provide prompt payment of the unpaid fees that are currently owed to the firm. I will ask my assistant to begin to make copies of the file to be released to your new counsel pending your payment of the two unpaid invoices. Please confirm receipt of this message. Thank you. Craig Denney Snell & Wilmer L.L.P. www.swlaw .com Begin forwarded message: From: Brian Newman Date: July 22,2015 at 4:55:48 PM MDT To: Subject: United States v Serenbetz Mr. Denney: This law firm has been retained to represent Clay Serenbetz. Attached is a substitution of attorney form. I called your office earlier and left a message that we are sub'ing in. Please sign the form and return it to me so that I can file it with the comt. Also, please forward your file to me at your earliest convenience. Thank you, Brian A. Newman Brian A. Newman for Law Offices of Okabe & Haushalter 3838 Carson Street, Suite 300/302, Torrance, California 90053 (424) 275-4014; FAX: (424) 275-4015 1230 Rosecrans Ave Floor 3, Manhattan Beach, CA 90266 (31 0) 543-7708 IF YOU HAVE NOT RECEIVED ALL OF THE PAGES, PLEASE CALL AS SOON AS POSSIBLE: (424) 275-4014 THIS MESSAGE AND ANY FILES TRANSMITTED WITH IT IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. Ifthe reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, disclosure, distribution or copying of the information transmitted by this communication is strictly prohibited and may be subject to legal restriction or sanction, therefore, if you have received this communication in error, please notify this office immediately by telephone to arrange for the return or destruction 2 Case 3:16-cv-00129-MMD-VPC Document 29-3 Filed 12/01/16 Page 3 of 4 ofthe original message and all copies. THANK YOU. Law Offices ofOkabe & Haushalter 3838 Carson Street, Suite 300/302, Torrance, California 90053, (424) 275-4014; FAX: (424) 275- 4015; 1230 Rosecrans Ave Floor 3, Manhattan Beach, CA 90266, (31 0) 543-7708. 3 Case 3:16-cv-00129-MMD-VPC Document 29-3 Filed 12/01/16 Page 4 of 4 EXHIBIT4 CROSS-COMPLAINANT'S RESPONSE TO INTERROGATORIES EXHIBIT4 Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 1 of 15 OKABE & HAUSHAL TER 1 Gregory E. Coyer (Nevada State Bar #10013) 2 600 Tonopah Drive, Suite 220 Las Vegas, Nevada 89106 3 Telephone: (702) 802-3088 gcoyer@coyerlaw.com 4 THE LAW OFFICES OF KEVIN GERRY 5 Kevin Gerry (California State Bar #129690) 711 N. Soledad Street 6 Santa Barbara, California 93103 Telephone: (31 0) 383-1724 7 E-Mail: kevingerry@earthlink.net 8 Attorneys for Defendant and Cross-Complainant Clay Serenbetz 9 10 11 12 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 13 14 SNELL & WILMER, LLP, an Arizona 15 f-imited Liability Partnership, 16 17 vs. Plaintiff, 18 CLAY SERENBETZ, an individual, 19 20 Defendant. 21 CLAY SERENBETZ, an individual, 22 Cross-Complainant, vs. 24 ~RAIG DENNEY, an individual, SNELL 25 ~WILMER, LLP, an Arizona Limited 26 ,_iability Partnership, and DOES 1 thru 50, nclusive, 27 Cross-Defendants. 28 Case No.: 3:16-CV-00129-MDM-VPC CROSS-COMPLAINANT'S RESPONSE TO INTERROGATORIES FROM CROSS- DEFENDANT CRAIG DENNEY (FIRST SET) 1 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 2 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Pursuant to Fed~ral Rule of Civil Procedure 26(b)(1) and Federal Rule of Civil Procedure 33(b ), Defendant and Cross-Complainant Clay Serenbetz (hereinafter "Responding Party") hereby responds to the Interrogatories served by Cross-Defendant Craig Denney as follows: INTRODUCTION A. No Prejudice To Admission Of Evidence Due To Incomplete Discovery The Discovery in this case has just begun. Therefore, Responding Party's Responses to these Interrogatories are made without prejudice to Responding Party's right to introduce any and all evidence of any kind in the proceedings in this action. The Responding Party specifically reserves the right to introduce at trial or any subsequent proceeding any evidence from any witness, even if the evidence has not been provided in these responses whether as the result of mistake, oversight, inadvertence, misinterpretation, or otherwise. 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Right To Supplement or Modify Responses The Responding Party is responding in good faith to the Interrogatories as he interprets and understands them. The Responding Party is engaged in a continuing investigation in an attempt to locate and/or confirm the presence or absence of additional information and/or documentation. Therefore, Responding Party reserves the right to amend and/or supplement these Responses to Interrogatories if new or more accurate information becomes available or if errors are discovered in these responses. These Responses to Interrogatories are given without prejudice and Responding Party reserves the right to rely upon at any subsequent proceeding, any subsequently discovered information, documents and/or evidence. 2 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 3 of 15 1 2 3 4 5 C. No Admissions A response to any of the Interrogatories, other than an explicit admission thereto, does not constitute an admission by the Responding Party that he agrees with any characterization or definition contained therein, or that the information sought relevant to or is likely to lead to the discovery of admissible evidence. Except for facts explicitly admitted herein, no admission of 6 7 any nature whatsoever is to be implied by or inferred from any response stated anywhere in 8 this document. In responding to the Interrogatories and unless otherwise stated herein, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 Responding Party does not waive, concede or admit to the relevancy, materiality or admissibility of any information sought by these discovery requests or any responses thereto. D. Privileged or Protected Material The Responding Party objects to each and every Interrogatory on the grounds, and to the extent, that it calls for the production of information and/or documentation which contains information (a) that is protected from discovery pursuant to the attorney-client privilege, the attorney work product doctrine and/or the right of privacy; (b) that was prepared in anticipation of litigation; or (c) that is otherwise protected from disclosure under the laws of the State of Nevada and/or the United States. RESPONSES TO INTERROGATORIES INTERROGATORY NO.1: With regard to your allegation that Cross-Defendants disclosed your "private and confidential financial information to third parties" set forth in paragraph 7 of your Cross- 26 27 Complaint: 28 3 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 4 of 15 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 a) Describe in detail the financial information that you claim was private and confidential information that was disclosed to third parties; b) For each alleged disclosure of private and confidential financial information made to third parties, state the date(s) that each disclosure took place, the manner that each disclosure took place (for example letter, e-mail or spoken word) and the identity by name, address and telephone number of each "third party" that received the disclosure; and c) Identify each document disclosed by Cross-Defendants to each third party which contained your "private and confidential financial information" by author, date of disclosure, how the document was disclosed and to whom the document was disclosed. RESPONSE TO INTERROGATORY NO.1: a) The private and confidential information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document 18 with the Response to Requests for Documents served concurrently herewith. 19 b) The disclosure is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom 20 Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, 21 22 23 24 25 26 27 28 on August 24, 2015 re: United States v Serenbetz. c) The Responding Party has produced a copy of said document concurrently with the Response to Requests for Documents served concurrently herewith. 4 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 5 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO.2: Describe what benefit you allege was received by Cross-Defendants in the disclosure of your private and confidential financial information to third parties as set forth in paragraph 7 of the Cross-Complaint. RESPONSE TO INTERROGATORY NO.2: The Responding Party asserts that the Cross-Defendants attempted to obtain a benefit or advantage in their efforts towards the collection of their legal bill. INTERROGATORY NO.3: With regard to your allegation that Cross-Defendants "engaged in improper ex-parte communications with the Judicial Officer in the Underlying Case" set forth in paragraph 9 of the Cross-Complaint: a) Describe in detail each allegedly improper ex-parte communication; b) For each occurrence of each allegedly improper communication with the Judicial Officer, state the date(s) that each communication took place, the manner that each communication took place (for example letter, e-mail or spoken word) and the identity by name of each Judicial Officer to whom the communication was made; c) Identify each document which contains an allegedly improper ex-parte communication made with the Judicial Officer by author, date of disclosure, how the document was disclosed and to whom the document was disclosed: d) Identify by name, address and telephone number, each person believed to have been present at the time each allegedly improper ex-parte communication took place; and e) Identify by name, address and telephone number each person that you contend should have been provided notice of each allegedly improper ex-parte communication. 5 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 6 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 RESPONSE TO INTERROGATORY NO.3: a) The improper ex-parte communication is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document with the Response to Requests for Documents served concurrently herewith. b) The improper ex-parte communication is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. c) The E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. d) The parties set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben. Responding Party is presently unaware of the names, addresses, telephone numbers, e-mail addresses and/or any other identification or contact information regarding additional persons that received the aforementioned information. e) The Responding Party asserts that the communication is improper even with notice given due to the private and confidential subject matter of the communication. INTERROGATORY NO. 4: 24 With regard to your allegation that Cross-Defendants "publicized private and confidential 25 26 27 28 financial information of and concerning Cross-Complainant Clay Serenbetz" as set forth in paragraph 12 of your Cross-Complaint: 6 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 7 of 15 2 3 4 5 a) Describe in detail the financial information that you claim was private and confidential information which was publicized; b) For each alleged publication of private and confidential financial information, state the date(s) that each publication took place, the manner that each publication took place (for example letter, e-mail or spoken word) and the identity by name, address and telephone 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 number of each person that received the publicized information; c) Identify each document believed to have been -publicized" which contained private and confidential financial information of and concerning you by author, date of disclosure, how the document was disclosed and to whom the document was disclosed: and d) Describe the alleged publicity that took place with regard to the publication of any private and confidential financial information of and concerning you, including the nature of the publicity, the number of persons that received the information, and identify by name, address and telephone number each person believed to have received such information. RESPONSE TO INTERROGATORY NO. 4: a) The private and confidential information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document concurrently with the Response to Requests for Documents served concurrently herewith. b) The publication information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. 7 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 8 of 15 c) The E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. 2 McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United 3 States v Serenbetz. 4 d) The private and confidential information that the Responding Party is allegedly in debt to a 5 well known criminal defense attorney and a well known criminal defense law firm is originally 6 7 set forth in the is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom 8 Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, 9 10 11 on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document concurrently with the Response to Requests for Documents served concurrently herewith. Responding 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Party is presently unaware of the names, addresses, telephone numbers, e-mail addresses and/or any other identification or contact information regarding additional persons that received the aforementioned information. INTERROGATORY NO. 5: With regard to your allegation that Cross-Defendants used Cross-Complainant Clay Serenbetz's private and confidential information for their own benefit and best interests by disclosure of the information to third parties as set forth in Paragraph 21 of your Cross- Complaint: a) Describe in detail the financial information that you claim was private and confidential information that was disclosed to third parties; b) For each alleged disclosure of private and confidential financial information made to third parties, state the date(s) that each disclosure took place, the manner that each disclosure took 8 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 9 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 place (for example letter, e-mail or spoken word) and the identity by name, address and telephone number of each -third party" that received the disclosure; and c) Identify each document disclosed by Cross-Defendants to each third party which contained your "private and confidential financial information" by author, date of disclosure, how the document was disclosed and to whom the document was disclosed. RESPONSE TO INTERROGATORY NO.5: a) The private and confidential information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party has produced a copy of said document concurrently with the Response to Requests for Documents served concurrently herewith. b) The publication information is set forth in the E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. c) The E-Mail from Craig Denney to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. INTERROGATORY NO.6: Describe what benefit you allege was received by Cross-Defendants in the disclosure of 24 your private and confidential financial information to third parties as set forth in paragraph 21 of 25 the Cross-Complaint. 26 27 28 9 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 10 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE TO INTERROGATORY NO.6: The Responding Party asserts that the Cross-Defendants attempted to obtain a benefit or advantage in their efforts towards the collection of their legal bill. INTERROGATORY NO.7: Describe in detail how the alleged negligent conduct of Cross-Defendants resulted in harm or damage to you. RESPONSE TO INTERROGATORY NO.7: The Responding Party suffered prejudice, shame and embarrassment due to the negligent conduct of Cross-Defendants in disclosing Responding Party's private and confidential financial information to third parties. INTERROGATORY NO. 8: Identify each Rule of Professional Conduct that you claim was violated by any Cross-Defendant and describe the conduct claimed to be in violation of each such Rule. RESPONSE TO INTERROGATORY NO.8: Nevada Rule of Professional Conduct 1.8(b), which states that a "lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent." Responding Party asserts that the disclosure of the Responding Party's private and confidential financial information to third parties without the Responding Party's authorization or informed consent is a violation of Nevada Rule of Professional Conduct 1.8(b). Nevada Rule of Professional Conduct 1.6(a) imposes a duty on all lawyers not to reveal information relating to the representation of their clients to anyone unless there is 10 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 11 of 15 1 an applicable exception. (McKay v. Board of County Commissioners (1987) 103 Nev. 490; 2 Todd v. State (1977) 113 Nev. 18). Nevada Rule of Professional Conduct 1.6 restricts the 3 4 5 6 7 8 9 10 11 12 13 lawyer from revealing all information relating to the representation of the client. (see the State Bar of Nevada's Standing Committee on Ethics and Professional Responsibility- Formal Opinion No. 41 (2009). The Responding Party asserts that the disclosure of the Responding Party's private and confidential financial information to third parties without the Responding Party's authorization or informed consent is a violation of Nevada Rule of Professional Conduct 1.6(a). INTERROGATORY NO. 9: State the amount of damages, if any, you allegedly sustained as the result of Cross-Defendants' alleged negligence, recklessness and 14 violations of the Rules of Professional Conduct. 15 16 17 18 19 RESPONSE TO INTERROGATORY N0.9: $100,000.00. INTERROGATORY NO. 10: Identify the amount of damages, if any, you sustained as the result 20 of Cross-Defendants' alleged publication of private and confidential financial information 21 22 23 24 25 26 27 28 of and concerning you. RESPONSE TO INTERROGATORY NO. 10: $100,000.00. INTERROGATORY NO. 11: Identify the amount of damages, if any, you sustained as the result of Cross-Defendants' alleged disclosure of your private and confidential financial information to third parties. 11 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 12 of 15 2 3 4 5 RESPONSE TO INTERROGATORY NO. 11: $100,000.00. INTERROGATORY NO. 12: State and describe separately and in detail each single item and expense, loss or financial damage which is claimed to have been incurred or which is believed will be incurred 6 7 solely by reasons of the claims referred to in the Cross-Complaint. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE TO INTERROGATORY NO. 12: The Responding Party asserts general damages in the amount of $1 0 0, 0 0 0. 0 0. INTERROGATORY NO. 13: Describe any post-conviction relief you have obtained in the Underlying Action and how such relief was necessitated by the conduct of Cross-Defendants. RESPONSE TO INTERROGATORY NO. 13: The Responding Party has not obtained any post-conviction relief in the Underlying Action. Dated: November 14, 2016 KEVlN GERR'i)LES ., -Attorney for Defendant and/~ss- omplainant Clay Serenbetz 12 RESPONSE TO INTERROGATORIES FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 13 of 15 1 VERIFICATION BY PARTY 2 3 Snell & Wilmer, LLP v Clay Serenbetz and Related Cross-Action 4 United States District Court Case No. 3: 16-CV-00129 5 6 7 I, Clay Serenbetz, declare: 8 9 I am a pa1iy to the above-entitled action and I know the contents of the foregoing 10 Responses to Interrogatories from Cross-Defendant Craig Denney. The Responses to 11 12 13 14 15 Interrogatories from Cross-Defendant Craig Denney are true based on my own personal knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true. 16 I declare under penalty of perjury that the above is true and correct and that this 17 verification is executed this November Ji_, 2016, in Devens, Massachusetts. 18 19 20 21 22 23 24 25 26 27 28 ~£;-.~ /' Clay Serenbetz Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 14 of 15 Case 3:16-cv-00129-MMD-VPC Document 29-4 Filed 12/01/16 Page 15 of 15 EXHIBITS CROSS-COMPLAINANT'S RESPONSE TO REQUESTS FOR PRODUCTION EXHIBITS Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 1 of 11 OKABE & HAUSHAL TER 1 Gregory E. Coyer (Nevada State Bar #1 0013) 2 600 Tonopah Drive, Suite 220 Las Vegas, Nevada 89106 3 Telephone: (702) 802-3088 gcoyer@coyerlaw. com 4 THE LAW OFFICES OF KEVIN GERRY 5 Kevin Gerry (California State Bar #129690) 711 N. Soledad Street 6 Santa Barbara, California 93103 Telephone: (310) 383-1724 E-Mail: kevingerry@earthlink.net 7 8 Attorneys forDefendant and Cross-Complainant Clay Serenbetz 9 10 11 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 12 13 14 15 16 17 18 19 20 NELL & WILMER, LLP, an Arizona imited Liability Partnership, Plaintiff, vs. LAY SERENBETZ, an individual, Defendant. 21 LAY SERENBETZ, an individual, ;22 Cross-Complainant, 23 24 vs. RAIG DENNEY, an individual, SNELL 25 WILMER, LLP, an Arizona Limited 26 iability Partnership, and DOES 1 thru 50, nclusive, 27 28 Cross-Defendants. Case No.: 3:16-CV-00129-MDM-VPC CROSS-COMPLAINANTS RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) 1 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 2 of 11 2 3 4 5 6 7 8 Pursuant to Federal Rule of Civil Procedure 26(b)(2) and Federal Rule of Civil Procedure 34(b)(2), Defendant and Cross-Complainant Clay Serenbetz (hereinafter "Responding Party") hereby serves this Response to the Requests for Documents served by Cross-Defendant Craig Denney as follows: INTRODUCTION 9 A. No Prejudice To Admission Of Evidence Due To Incomplete Discovery 10 11 12 13 14 15 The Discovery in this case has just begun. Therefore, Responding Party's Responses to these Requests for Documents are made without prejudice to Responding Party's right to introduce any and all evidence of any kind in the proceedings in this action. The Responding Party specifically reserves the right to introduce at trial or any subsequent proceeding any evidence from any witness, even if the evidence has not been provided in these responses 16 whether as the result of mistake, oversight, inadvertence, misinterpretation, or otherwise. 17 18 19 20 21 22 23 24 25 26 27 28 B. Right To Supplement or Modify Responses The Responding Party is responding in good faith to the Requests for Documents as he interprets and understands them. The Responding Party is engaged in a continuing investigation in an attempt to locate and/or confirm the presence or absence of additional information and/or documentation. Therefore, Responding Party reserves the right to amend and/or supplement these Responses to Requests for Documents if new or more accurate information becomes available or if errors are discovered in these responses. These Responses to Requests for Documents are given without prejudice and Responding Party reserves the right to rely upon at any subsequent proceeding, any subsequently discovered information, documents and/or evidence. 2 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 3 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. No Admissions A response to any of the Requests for Documents, other than an explicit admission thereto, does not constitute an admission by the Responding Party that he agrees with any characterization or definition contained therein, or that the information sought relevant to or is likely to lead to the discovery of admissible evidence. Except for facts explicitly admitted herein, no admission of any nature whatsoever is to be implied by or inferred from any response stated anywhere in this document. In responding to the Requests for Documents and unless otherwise stated herein, Responding Party does not waive, concede or admit to the relevancy, materiality or admissibility of any information sought by these discovery requests or any responses thereto. D. Privileged or Protected Material The Responding Party objects to each and every Interrogatory on the grounds, and to the extent, that it calls for the production of information and/or documentation which contains information (a) that is protected from discovery pursuant to the attorney-client privilege, the attorney work product doctrine and/or the right of privacy; (b) that was prepared in anticipation of litigation; or (c) that is otherwise protected from disclosure under the laws of the State of Nevada and/or the. United States. RESPONSES TO REQUESTS FOR DOCUMENTS REQUEST NO. 1: All documents referenced in any of your responses to Interrogatories served contemporaneously with this Request. 3 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 4 of 11 1 2 3 4 5 RESPONSE TO REQUEST NO. 1: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. 6 7 8 REQUEST NO. 2: All documents alleged to have been disclosed by Cross-Defendants to third parties 9 which contain your private and confidential financial information as set forth in paragraph 7 10 11 12 13 14 15 16 17 18 19 of your Cross-Complaint. RESPONSE TO REQUEST NO. 2: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. REQUEST NO. 3: All documents alleged to have been disclosed by Cross-Defendants to third parties 20 which contain your private and confidential financial information as set forth in paragraph 21 21 22 23 24 25 26 27 28 of your Cross-Complaint. RESPONSE TO REQUEST NO.3: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. 4 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 5 of 11 REQUEST NO. 4: 2 All documents which contain alleged improper ex-parte communications made by 3 Cross-Defendants with a Judicial Officer in the Underlying Case as set forth in paragraph 9 of 4 your Cross-Complaint. 5 6 7 8 9 10 11 12 13 RESPONSE TO REQUEST NO.4: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. REQUEST NO. 5: All documents to support your allegation that Cross-Defendants publicized private and 14 confidential financial information of and concerning you as set forth in paragraph 12 of your 15 16 17 18 19 20 21 22 23 24 Cross-Complaint. RESPONSE TO REQUEST NO. 5:, Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. REQUEST NO. 6: All documents which reflect any alleged benefit received by Cross-Defendants as set 25 forth in paragraph 7 of your Cross-Complaint. 26 27 28 5 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 6 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 RESPONSE TO REQUEST NO. 6: Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party does not possess any documents responsive to this Request. REQUEST NO. 7: All documents which reflect any damages you claim were caused as a result of Cross- Defendants' alleged negligence, recklessness and violations of the Rules of Professional Conduct. RESPONSE TO REQUEST NO. 7: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States ·District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party 14 will produce a copy of said document concurrently with this Response. 15 16 17 REQUEST NO. 8: All documents which reflect damages you claim as a result of Cross-Defendants' 18 alleged publication of private and confidential financial information of and concerning you. 19 20 21 22 23 RESPONSE TO REQUEST NO. 8: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party 24 will produce a copy of said document concurrently with this Response. 25 26 27 28 REQUEST NO. 9: All documents which reflect damages you claim as a result of Cross-Defendants' alleged disclosure of your private and confidential financial information to third parties. 6 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 7 of 11 1 2 3 4 5 RESPONSE TO REQUEST NO. 9: Craig Denney E-Mail to Paris Rich, Courtroom Administrator to Judge Howard D. McKibben, United States District Court, District of Nevada, on August 24, 2015 re: United States v Serenbetz. Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party will produce a copy of said document concurrently with this Response. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 26 27 28 REQUEST NO. 10: All documents which reflect any post-conviction relief you have obtained in the underlying action. RESPONSE TO REQUEST NO. 10: Pursuant to Federal Rule of Civil Procedure 34(b)(2), Responding Party does not possess any documents responsive to this Request. Dated: November 14, 2016 , ESQ.,- Attorney for C ss-Complainant Clay Serenbetz 7 RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 8 of 11 VERIFICATION BY PARTY 2 3 Snell & Wilmer, LLP v Clay Serenbetz and Related Cross-Action 4 United States District Court Case No. 3:16-CV-00129 5 6 7 I, Clay Serenbetz, declare: 8 9 10 11 12 13 14 15 I am a party to the above-entitled action and I know the contents of the foregoing Responses to Requests for Production of Documents from Cross-Defendant Craig Denney (First Set). The Responses to Requests for Production of Documents from Cross-Defendant Craig Denney (First Set) are true based on my own personal knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true. 16 I declare under penalty of perjury that the above is true and correct and that this 17 verification is executed this November 1'{, 2016, in Devens, Massachusetts. 18 19 20 21 22 23 24 25 26 27 28 Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 9 of 11 From: Date: Mon. Aug 24, 2015 at 3:00PM Subject: Re: United States v Serenbetz To: Cc: "Denney, Craig" , "Brian Newman Thanks, Craig. At this point, the Court has no other questions. Thanks. From "Denney, Craig" Cc ''Denney, Craig" , "Brian Newman Date: 08/24/2015 02:12 Subject: United States v Serenbetz Paris, Hello, my colleague Carrie Parker said you called regarding US v. Serenbetz and left a message regarding the file. The reason our lawfirm has not turned over Mr. Serenbetz's file is because we have asserted an attorney's lien on the file pursuant to NRS 7.055. On July 22, 2015, I informed Mr. Serenbetz and his new counsel (Brian Newman) that our firm was asserting an attorney's lien on the file based on the unpaid legal fees ($82,000) that Mr. Serenbetz owes our law firm for numerous hours of legal work completed during the months of May and June 2015. I signed off on the substitution of counsel last month. I see in the stipulation to continue sentencing that the defendant filed does not mention the reason for our firm withholding the file. As of today's date, we have not received payment from Mr. Serenbetz for the unpaid invoices. Please let me know if there are any other questions or a hearing is necessary. Craig S. Denney Snell & Wilmer L.L.P. 50 W. Liberty Street, Suite 51 0 Reno, Nevada 89501 Office: 775-785-5411 Fax: 775-785-5441 Mobile: 775-830-2432 cdenney@swlaw.com y.ww.swlaw.com cid:image002.png@01 CE6D01.CAEF7 A50 Denver, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt lake City, Tucson Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 10 of 11 PROOF OF SERVICE i ... 2 I, the undersigned, certify and declare that I am over the age of 18 years, employed in 4 the County of Santa Barbara, State of California, and not a party to the above-entitled cause. 5 On November 14, 2016, I served a true copy of the: 6 7 8 9 10 II 12 13 14 15 16 CROSS-COMPLAINANT'S RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) by personally delivering it to the person (s) indicated below in the manner as provided in Federal Rule of Civil Procedure 5(b); by depositing it in the United States Mail in a sealed envelope with the postage thereon fully prepaid to the following: Nathan G. Kanute, Esq. Snell & Wilmer, LLP 50 West Liberty Street, Suite 510 Reno, NV 89501-1961 nkanute@swlaw.com Plaintiff Snell & Wilmer, LLP 17 Wayne A. Shafer, Esq. Cross-Defendants Snell & Wilmer and Craig Denney Laxalt & Nomura, Ltd. 18 9600 Gateway Drive Reno, NV 89521 19 wshaffer@laxalt-nomura.com 20 21 22 23 Gregory E. Coyer Okabe & Haushalter 600 Tonopah Drive, Suite 220 Las Vegas, Nevada 89106 gcoyer@coyerlaw .com Defendant and Cross-Complainant Clay Serenbetz 24 25 26 I hereby certify under the penalty of perjury that the foregoing is true and correct. 27 28 Dated this 14th day of November, 2016 By:~ RESPONSE TO REQUESTS FOR DOCUMENTS FROM CROSS-DEFENDANT CRAIG DENNEY (FIRST SET) Case 3:16-cv-00129-MMD-VPC Document 29-5 Filed 12/01/16 Page 11 of 11