UNOPPOSED EMERGENCY MOTION (LR 26-7) FOR EXPEDITED BRIEFING SCHEDULE REGARDING THE TUCKER DEFENDANT'S MOTION TO ENFORCE THE AUGUST 28 ORDER FOR THE FTC TO PRODUCE A PRIVILEGE LOG

CAM FERENBACH, Magistrate Judge.

Defendants Scott A. Tucker, AMG Capital Management, LLC, Level 5 Motorsports, LLC, LeadFlash Consulting LLC, Black Creek Capital Corporation, Broadmoor Capital Partners, and Nereyda M. Tucker, as Executor of the Estate of Blaine A. Tucker's ("the Tucker Defendants") hereby move that the Tucker Defendants' Motion to Enforce the August 28 Order for the FTC to Produce a Privilege Log be subject to an expedited briefing schedule.

At issue is whether the FTC must produce a privilege log to the Tucker Defendants. With the deposition of the FTC's 30(b)(6) witness quickly approaching on November 13, which implicates the documents and responses at issue here, and the close of discovery occurring shortly thereafter on November 30, time is short for the Tucker Defendants to obtain relief. The accompanying Declaration from counsel for the Tucker Defendants sets forth further reasons that an expedited briefing schedule is necessary.

The Tucker Defendants consulted the FTC before bringing this emergency motion. The FTC advised the Tucker Defendants that it does not agree to the Tucker Defendants' characterization of the dispute or the emergent grounds surrounding the dispute, but the FTC does agree to an expedited briefing schedule to resolve the Tucker Defendants' motion. The parties agree that the deadline for the FTC to file its response to the Motion would be Tuesday, November 3, 2015 and the deadline for the Tucker Defendants to file their reply would be Thursday, November 5, 2015.

Defendants Scott A. Tucker, AMG Capital Management, LLC, Level 5 Motorsports, LLC, LeadFlash Consulting LLC, Black Creek Capital Corporation, Broadmoor Capital Partners, and Nereyda M. Tucker, as Executor of the Estate of Blaine A. Tucker's ("the Tucker Defendants") submit the following memorandum of points and authorities in support of the Unopposed Emergency Motion (LR 26-7) for an Expedited Briefing Schedule Regarding the Tucker Defendants' Motion to Enforce the August 28 Order for the FTC to Produce Privilege

MEMORANDUM OF POINTS AND AUTHORITIES

On Friday, October 23, 2015, the Tucker Defendants filed a motion seeking relief under previous orders entered by this Court (Docs 849 and 856). The issue is whether the FTC must produce a privilege log to the Tucker Defendants. With the deposition of the FTC's 30(b)(6) witness quickly approaching on November 13, which implicates the documents, responses, and privilege at issue here, and the close of discovery occurring shortly thereafter on November 30, the parties have agreed to request expedited consideration of the Tucker Defendants' motion. Fed. R. Civ. P. 1.

The Tucker Defendants have complied with the requirements of Local Rule 26-7(c) governing emergency discovery disputes, as detailed in the accompanying Declaration from counsel for the Tucker Defendants.

The parties agree that the deadline for the FTC to file its response to the Motion would be Tuesday, November 3, 2015 and the deadline for the Tucker Defendants to file their reply would be Thursday, November 5, 2015.

For the foregoing reasons, the parties request that the Court grant this Unopposed Emergency Motion and set the expedited briefing schedule as set forth above, and grant all other relief the Court deems just and proper.

CERTIFICATE OF SERVICE

I hereby certify that on October 26, 2015, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to counsel of record receiving electronic notification.

Declaration of Ryan Hudson in Support of the Emergency Motion

I, Ryan Hudson, hereby declare and state as follows:

1. My name is Ryan Hudson. I am a partner at the law firm of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP. I am counsel for the Tucker Defendants in this matter. I am an attorney admitted to practice law in the States of Kansas, Missouri, and Texas. I have been admitted pro hac vice in this matter. I am submitting this declaration in accordance with Local Rule 26-7.

2. The facts surrounding the Emergency Motion are as follows: the Tucker Defendants contend the FTC is violating this Court's Order (Doc. 849 and Doc. 856) that it must produce a privilege log to the Tucker Defendants. See LR 26-7(1). Counsel for Mr. Tucker have conferred with the FTC, which contends that its privilege declaration complies with the Court's orders. The parties have exhausted efforts to resolve their dispute without Court intervention.

3. Normally, the Tucker Defendants would move for relief on a discovery issue in the ordinary course. See id.

4. However, resolution of this issue is necessary in advance of the deposition of the FTC's Rule 30(b)(6) representative on November 13. That deposition likely will implicate similar privilege issues as those at issue in the instant motion to enforce. See id.

5. A ruling on the privilege log issue after the deposition could have multiple negative effects on both parties, including having to resume the deposition at a later date, and could deprive the Tucker Defendants of access to relevant discovery materials at the deposition and impair their ability to prepare their dispositive motions and prepare for trial. See id.

6. The office address of Tucker Defendats' counsel is 2600 Grand Blvd, Suite 1200, Kansas City, MO 64086. The email address for counsel is rhudson@berkowitzoliver.com and a direct phone line is 816.627.0269. See LR 26-7(2).

7. The office address of the FTC's counsel is 600 Pennsylvania Ave., NW Mail Stop CC-10232, Washington, D.C. 20580. The email address for counsel is nsinghvi@ftc.gov and a direct phone line is 202.326.3480. See LR 26-7(2).

8. I certify that after personal consultation and sincere effort to do so, the Tucker Defendants have been unable to resolve the matter without court intervention, as detailed more fully in Ryan Hudson's Declaration accompanying the Motion to Enforce the August 28 Order. See LR 26-7(3) and Doc. 864.

9. As counsel for the Tucker Defendants, we first contacted Mr. Singhvi for the FTC on Monday, October 19, about this possible motion, and met and conferred with him, as detailed more fully in my Declaration accompanying the recently filed Motion to Enforce. See Doc. 864.

10. Although the parties could not reach agreement regarding the substance of the Motion to Enforce, the parties agreed to the following briefing schedule: the Tucker Defendants would file their motion on October 23, 2015, the FTC would respond to the motion on November 3, 2015, and the Tucker Defendants would reply in support of their motion on November 5, 2015.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

[PROPOSED] ORDER GRANTING THE UNOPPOSED EMERGENCY MOTION

Before the Court is the Unopposed Emergency Motion from Defendants Scott A. Tucker, AMG Capital Management, LLC, Level 5 Motorsports, LLC, LeadFlash Consulting LLC, Black Creek Capital Corporation, Broadmoor Capital Partners, and Nereyda M. Tucker, as Executor of the Estate of Blaine A. Tucker ("Tucker Defendants").

The Court is of the opinion that good reason exists for the requested relief such that the motion should be and hereby is GRANTED.

The deadline for the FTC to file its response to the Tucker Defendants' Motion to Enforce the August 28 Order for the FTC to Produce a Privilege Log is Tuesday, November 3, 2015. The deadline for the Tucker Defendants to file their reply is Thursday, November 5, 2015.

IT IS SO ORDERED.