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J. Henk Taylor (016321)

RYAN RAPP & UNDERWOOD, P.L.C.

3200 N. Central Ave, Suite 2250

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

Email: htaylor@rrulaw.com 

Jeffrey M. Eilender (admitted pro hac vice)

Bradley J. Nash (admitted pro hac vice)

Joshua Wurtzel (admitted pro hac vice)

SCHLAM STONE & DOLAN LLP

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 344-7677

E-Mail: jeilender@schlamstone.com 

E-Mail: bnash@schlamstone.com 

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II Limited

Partnership, Resource Recovery Corporation, and

Jean Noelting

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Wells Fargo Bank, N.A.

Plaintiff,

v.

Wyo Tech Investment Group, LLC, CWT 

Canada II Limited Partnership, Resources 

Recovery Corporation, and Jean Noelting,

Defendants.

Case No.: 2:17-CV-04140-DWL

CWT PARTIES’ OPPOSITION TO 

NONPARTIES WILENCHIK &

BARTNESS, P.C.’s AND LISA 

LOFTIS’s MOTION TO QUASH 

OR MODIFY SUBPOENAS AND 

CROSS MOTION TO COMPEL

WILENCHIK’S TESTIMONY

Oral Argument Requested

And related claims.

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-iTABLE OF CONTENTS

Page

PRELIMINARY STATEMENT.......................................................................................... 1

STATEMENT OF FACTS................................................................................................... 2

ARGUMENT........................................................................................................................ 5

I. THIS COURT SHOULD DENY THE MOTION TO QUASH THE SUBPOENA 

TO MS. LOFTIS AS MOOT .................................................................................... 5

II. THIS COURT SHOULD DENY THE MOTION TO MODIFY THE SUBPOENA 

TO WILENCHIK, AND SHOULD ORDER WILENCHIK TO COMPLY WITH 

IT ............................................................................................................................... 5

CONCLUSION .................................................................................................................. 11

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Defendants CWT Canada II Limited Partnership, Resource Recovery Corporation, 

and Jean Noelting (collectively, the “CWT Parties”) submit this memorandum of points 

and authorities, along with the Declaration of Joshua Wurtzel, in opposition to nonparties 

Wilenchik & Bartness, P.C.’s (“Wilenchik”) and its office manager, Lisa Loftis’s, motion 

to quash or modify the deposition subpoenas the CWT Parties served on them, and in 

support of the CWT Parties’ cross motion to compel Wilenchik’s testimony.

MEMORANDUM OF POINTS AND AUTHORITIES

PRELIMINARY STATEMENT

In their motion to quash or modify, Wilenchik and its office manager, Ms. Loftis, 

move to modify and quash the deposition subpoenas the CWT Parties served on them, 

respectively. This motion should be denied, and this Court should instead order Wilenchik 

to produce a Rule 30(b)(6) witness on all six topics in the subpoena to it.

Concerning the subpoena to Ms. Loftis, given that Wyo Tech has represented that 

it will designate Ms. Loftis as its Rule 30(b)(6) deponent, as we told Wilenchik by e-mail 

before it and Ms. Loftis filed this motion, we agree to depose Ms. Loftis in that capacity 

only—since the questions we would ask her in her personal capacity would, and her 

answers in response to those questions should, be identical. Thus, this part of the motion 

should be denied as moot.

Concerning the subpoena to Wilenchik, Wilenchik’s objections to our deposition 

topics are erroneous. Indeed, the Wilenchik’s objections ignore that Wilenchik claimed 

that it did not have any documents showing the clients on whose behalf or the matters for 

which hundreds of thousands of dollars in retainer payments from Wyo Tech and 

Inductance were made; and so, since there are supposedly no documents showing this 

information, we are entitled to seek this information through testimony. And Wilenchik’s 

objections other objections rely on its erroneous claim that this Court “accepted” 

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Wilenchik’s representations about what documents it had and how it managed client 

retainers for all purposes, and that these representations are beyond challenge. But 

contrary to Wilenchik’s claim, this Court did not accept Wilenchik’s representations for 

all purposes, and instead merely accepted them in declining to order it to produce 

documents it said did not exist and in declining to hold it in contempt. And also contrary 

to Wilenchik’s claim, during the May 29, 2019 show-causing, this Court expressly 

contemplated that we would depose Wilenchik on this exact topic—stating: “I just will 

further note that, again, I see a world where in later stages of this case there might be 

depositions from folks within the firm about how the accounting system works. So, 

this record should be crystal clear that I’m making rulings made on point-blank 

representations to me how the accounting system works. If these representations turn 

out to be inaccurate, that will be a big problem. But I accept what you’ve said. And 

given that, I don’t think that there’s anything else for me to compel with respect to these 

accounting issues.” Wurtzel Decl. Ex. A at 44:15-24.

STATEMENT OF FACTS

As this Court knows, on May 29, 2019, this Court held a show-cause hearing on 

the CWT Parties’ motion to hold Wyo Tech’s counsel, Wilenchik, in civil contempt for its 

failure to comply with the document subpoena the CWT Parties served on it. See Dkt. No. 

155. And as this Court will recall, this subpoena sought documents sufficient to show all 

payments—including date, amount, and source account—that Wyo Tech and Inductance 

made to Wilenchik, as well as documents sufficient to show the clients on whose behalf 

and the matters for which these payments were made. Dkt. No. 101 at 7-16.

As part of their contempt motion, the CWT Parties argued that Wilenchik should 

be held in contempt because it failed to produce any documents showing the clients on 

whose behalf or the matters for which hundreds of thousands of supposed-retainer 

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payments from Wyo Tech and Inductance were made. Dkt. No. 153 at 4.

During the show-cause hearing, Wilenchik claimed that these documents did not 

exist, stating that it “does not track payments coming in by client matter unless the 

payment comes from that client on that matter,” and since Wyo Tech and Inductance 

deposited money into Wilenchik’s trust account “for use on a variety of cases,” those 

funds were not “tracked at that stage by matter,” and were instead “tracked by payor.” 

Wurtzel Decl. Ex. A at 11:2-9. Thus, according to Wilenchik, the documents it produced 

before the show-cause hearing were “everything [it] had in [its] records” responsive to 

this request. Id. at 11:14-15.

In response to Wilenchik’s representations, this Court said that it shared the CWT 

Parties’ “skepticism of the idea that a $100,000 retainer check could come into your firm 

and there could be zero paperwork anywhere showing who gets credit for that or what 

client matters it subsequently got applied to when you were working on it.” Id. at 39:3-7. 

But Wilenchik stood on its representations, stating “there’s nothing more we can say, 

other than we’ve given [the CWT Parties’ counsel] all the documentation that’s out there,” 

and “if he wants to depose Miss Loftis and ask her those questions, fine.” Id. at 39:25-

40:3.

When it ruled on the CWT Parties’ contempt motion—declining to hold Wilenchik 

in contempt but sanctioning it and requiring it to pay the CWT Parties’ attorneys’ fees 

(Dkt. No. 155)—this Court stated that, like the CWT Parties, it was “initially skeptical 

that a firm wouldn’t have more documented paperwork internally showing after the 

money comes in how it gets allocated between those accounts.” Wurtzel Decl. Ex. A at 

43:17-20. But this Court then held: “[A]t the end of the day there’s only one party that has 

the foundation to make a representation on whether it’s complied with the subpoena, and 

that’s the Wilenchik firm, because they’re the ones who are familiar with their accounting 

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systems and how they track funds internally. They’ve represented that they’ve complied 

with the subpoena. I accept that representation.” Id. at 44:8-14.

This Court, however, also emphasized an important limitation to its holding: “I just 

will further note that, again, I see a world where in later stages of this case there might 

be depositions from folks within the firm about how the accounting system works.

So, this record should be crystal clear that I’m making rulings based on point-blank 

representations to me how the accounting system works. If these representations turn 

out to be inaccurate, that will be a big problem. But I accept what you’ve said. And 

given that, I don’t think that there’s anything else for me to compel with respect to these 

accounting issues.” Id. at 44:15-24. 

While Wilenchik produced documents showing how payments from Wyo Tech and 

Inductance were ultimately applied, as it stands today, we don’t know the clients on 

whose behalf or the matters for which hundreds of thousands of dollars from Wyo Tech 

and Inductance were initially made and earmarked—since Wilenchik claimed that it 

does not have any documents showing this. Which clients and matters specific retainer 

payments were earmarked for when they were made—regardless of which clients and 

matters the funds were ultimately applied toward—is significant, because if some of these 

payments were initially earmarked for Dennis Danzik, his wife, his company, or his 

cronies, that makes it more probable that Mr. Danzik has an interest in the interpleaded 

funds. Thus, since Wilenchik has stated that it does not have any documents showing this 

information, the only way we can get this information is through a deposition. Further, as 

explained above, this Court—and even Wilenchik—expressly contemplated that we 

would depose the people at Wilenchik with personal knowledge about how these retainer 

payments were earmarked and what, if any, documents existed regarding this. So the 

purpose of our deposition subpoenas to Wilenchik and Ms. Loftis is to gather the 

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information about which Wilenchik claimed it didn’t have any documents, and to test 

Wilenchik’s representations above.

ARGUMENT

I. THIS COURT SHOULD DENY THE MOTION TO QUASH THE

SUBPOENA TO MS. LOFTIS AS MOOT

As we explained to Wilenchik by e-mail before it and Ms. Loftis filed this motion 

(Dkt. No. 179-1 at 15), we do not plan to depose Ms. Loftis twice. Instead, if Wilenchik 

will designate Ms. Loftis as its Rule 30(b)(6) deponent, then we are satisfied taking her 

deposition in that capacity only—since the questions we would ask her in her personal 

capacity would be the same as those we would ask Wilenchik. And Ms. Loftis’s answers 

should be the same regardless of whether she answers on her own behalf or on behalf of 

Wilenchik. If there is some reason we need to depose Ms. Loftis in her individual capacity 

as well—such as if she claims that Wilenchik doesn’t have knowledge about a particular 

topic but she personally does (which wouldn’t make sense anyway, since Wilenchik’s 

knowledge should be coextensive with hers)—then we reserve our right to seek further 

relief from this Court at that time. But as long as Ms. Loftis will be Wilenchik’s Rule 

30(b)(6) deponent, absent unforeseen circumstances, we agree to depose her only in that 

capacity. And so this Court should deny the motion to quash the subpoena to Ms. Loftis as 

moot.

II. THIS COURT SHOULD DENY THE MOTION TO MODIFY THE 

SUBPOENA TO WILENCHIK, AND SHOULD ORDER WILENCHIK TO

COMPLY WITH IT

In its motion, Wilenchik complains that our service of these subpoenas is 

“obnoxious,” “offensive,” “abusing,” “harassing,” and “completely groundless,” and 

claims that we have “no good-faith basis” for seeking to depose it and that we are doing 

so solely in the “vain hope of embarrassing or at least vexing” it. Dkt. No. 179 at 3-4. But 

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this is false. Indeed, while Wilenchik may (understandably) be frustrated with this case, 

the orders to produce, sanctions orders, and contempt orders that this Court has issued are 

all the result of Wyo Tech’s, its investors and affiliated nonparties’, and its counsel’s 

failure to comply with their discovery obligations. See Wurtzel Decl. Ex. Ex. A at 45:11-

14 (The Court: “I want to make crystal clear that I do find that CWT is the aggrieved party 

here who rightfully came to the Court for relief. They shouldn’t have to wait this long for 

discovery.); id.at 46:3-7 (The Court: “[T]he fact that I’m ruling the way I’m ruling 

shouldn’t in any way suggest that CWT did something wrong here. They’re the ones that 

were entitled to this discovery a long time ago, and I’m just trying to make sure they get 

it.”). Thus, Wilenchik’s purported incredulity with these subpoenas is entirely 

unwarranted. And Wilenchik’s claim that we are seeking discovery solely to 

“embarrass[]” or “vex[]” it is erroneous; to the contrary, every discovery demand we 

made in this case was made in a good-faith effort to get evidence showing that Dennis 

Danzik has an interest in the interpleaded funds, and it is Wyo Tech, its investors and 

affiliated nonparties, and its counsel that have stood in our way. 

Further, Wilenchik argues that there is “no rational basis” for us to depose it to 

“test” the representations it made to this Court at the show-cause hearing, because this 

Court “has already stated that it ‘accepts the representations made by counsel for Wyo 

Tech that counsel have complied with the subpoena.’” Dkt. No. 179 at 3. But as shown

above, this Court stated that it accepted Wilenchik’s representations that it had complied 

with the document subpoena served on it solely for purposes of ruling on our contempt 

motion at the show-cause hearing. See Wurtzel Decl. Ex. Ex. A at 44:7-14. This Court 

did not hold that Wilenchik’s representations were accepted for all purposes, or that the 

CWT Parties had no right to further challenge them. To the contrary, as explained above, 

just after stating that it accepted Wilenchik’s representations, this Court stated that it 

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“see[s] a world where in later stages of this case there might be depositions from folks 

within the firm about how the accounting system works.” Id. at 44:15-18.

Wilenchik also argues that the CWT Parties are “obviously seeking to manufacture 

discrepancies between W&B’s deposition testimony and its prior subpoena responses and 

representations to the Court when there are absolutely none.” Dkt. No. 179 at 4. But 

Wilenchik’s claim that, at its deposition, it does not plan to contradict itself is not a 

replacement for its deposition testimony. And Wilenchik’s complaint that we refuse to 

accept an affidavit from Ms. Loftis or have an informal conversation with her (id. at 4, 8) 

is not a reason to prevent us from taking Wilenchik’s deposition either, since we are 

entitled to get Wilenchik’s formal testimony under oath.

Moreover, Wilenchik argues that it is “not willing” to “violate its obligations to 

maintain client confidences and attorney-client privilege.” Dkt. No. 179 at 8. But as 

explained below, the deposition subpoena we served does not ask it to do this. Wilenchik 

also argues that it is “not willing” to “disclose its own confidential and proprietary 

business practices.” Id. But if Wilenchik’s representations during the contempt briefing 

and the show-cause hearing were true, then Wilenchik has already publicly disclosed all 

of this information. And if there are “business practices” related to the topics in the 

deposition subpoena that Wilenchik did not already disclose, then that is all the more 

reason why a deposition of Wilenchik is necessary.

In any event, though reluctantly, Wilenchik agrees to appear for a Rule 30(b)(6) 

deposition, and so the sole dispute before this Court is the scope of this deposition.

Topic Nos. 1 and 2

These topics seek testimony about the “payments—including date, amount, and 

source account—made to” Wilenchik by Wyo Tech and Inductance. Dkt. No. 179-1 at 9. 

Wilenchik agrees to provide testimony on these topics. See id. at 17.

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Topic Nos. 3 and 4

These topics seek testimony about the “client(s) on whose behalf” and the 

“matter(s) for which” the “payments in Request Nos. 1 and 2 above were made.” Id. at 9. 

Wilenchik objects to these topics on the grounds that they “impermissibly seek 

discovery of attorney-client privileged communications (assuming any occurred) 

regarding how certain funds were to be ‘earmarked’ when they were deposited or, 

alternatively, such questions would require W&B’s representative to speculate about the 

payor’s intentions and thoughts about the use of the funds when they were being 

deposited”; and also that they are “wholly inappropriate.” Dkt. No. 179 at 9. Wilenchik 

instead proposes that these topics be “limited exclusively to questions about the factual 

matters of which invoices the payments in Request Nos. 1 and 2 have actually been used 

to pay.” Id. But these objections are erroneous, and this limitation is improper.

First, the attorney-client privilege does not protect “‘information regarding the fee 

arrangements’” between attorney and client. Reiserer v. United States, 479 F.3d 1160, 

1165 (9th Cir. 2007) (citation omitted). Indeed, “fee information generally is not 

privileged” because “[p]ayment of fees is incidental to the attorney-client relationship, and 

does not usually involve disclosure of confidential communications arising from the 

professional relationship.” Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988); 

see also In re Grand Jury Proceedings, 33 F.3d 1060, 1063 (9th Cir. 1994) (“‘Information 

regarding the fee arrangement is ordinarily not part of the subject matter of the 

professional consulting and therefore is not privileged communication even though it may 

evidence wrongdoing by the client.’”) (citation omitted). Thus, for what clients or matters 

Wilenchik earmarked Wyo Tech’s and Inductance’s retainer payments is not privileged—

even if Wilenchik had discussions with Wyo Tech and Inductance about what these 

payments were for—since any discussions about payment are “incidental” to the attorneyCase 2:17-cv-04140-DWL Document 184 Filed 08/05/19 Page 10 of 15
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client relationship, and would not include requests for or provisions of legal advice. See 

Tornay, 840 F.2d at 1426. And in any event, Wilenchik—which has the burden to show 

that the information sought is privileged—does not even say whether it had any of these 

discussions with Wyo Tech or Inductance. See Dkt. No. 179 at 9. Also, we are not asking 

Wilenchik to “speculate” about any payor’s intention; instead, we plan to ask it which 

matters and clients it earmarked these payments for.

Further, during the extensive litigation regarding the document subpoena we served 

on Wilenchik—which sought this same information—Wilenchik never claimed that this 

information was privileged, and argued only that it didn’t have documents responsive to 

these requests. Nor has Wilenchik explained why information concerning how it 

earmarked retainer payments is any more privileged than information concerning how 

these retainer payments were ultimately used—about which it agrees to provide 

testimony—or how this information would be privileged in a deposition but not in an 

affidavit or off-the-record phone call with Ms. Loftis—which Wilenchik has also offered.

Second, these topics are not “wholly inappropriate.” To the contrary, Wilenchik 

claimed at the show-cause hearing that it does not have any documents showing this 

information. See Wurtzel Decl. Ex. A at 11:2-9, 14-15. Thus, we now seek this 

information through deposition testimony. 

Topic No. 5

This topic seeks testimony about Wilenchik’s “system and protocols related to the 

record-keeping, management, and preservation of documents reflecting client payments, 

charges, and invoices.” Dkt. No. 179-1 at 9. 

Wilenchik objects to this topic on the ground that it is “aimed solely at ‘testing’ the 

representations made by Wyo Tech’s counsel that were already accepted by the Court, 

when there has been no reason shown or given for questioning those representations.” 

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Dkt. No. 179 at 9. Wilenchik further argues that this topic “should be stricken entirely,” or 

if not stricken entirely, limited solely to questions about “how and where the records 

produced contain the information sought by the CWT Parties.” Id. at 10.

But Wilenchik ignores that, as explained above, this Court accepted its 

representations about its accounting system solely for the purpose of ruling on the 

contempt motion at the show-cause hearing, and this Court expressly contemplated that 

the CWT Parties may challenge these representations at a deposition of Wilenchik. See 

Wurtzel Decl. Ex. A at 44:15-24. 

Further, while we will take Wilenchik up on its offer to explain the documents it 

produced, we are also entitled to discover why—and whether it is true that—Wilenchik 

has no documents showing the clients on whose behalf or the matters for which hundreds 

of thousands of dollars of retainer payments from Wyo Tech and Inductance were made.

Topic No. 6

This topic seeks testimony about Wilenchik’s “search for, and collection and 

review of, documents in response to” the subpoena we served on it and this Court’s April 

9, 2019 order compelling Wilenchik to produce documents in response to the subpoena. 

Dkt. No. 179-1 at 9.

Wilenchik objects on the ground that this topic is “aimed solely at re-opening the 

entire OSC hearing in which any noncompliance with the prior subpoena was rectified 

and resolved.” Dkt. No. 179 at 10 (emphasis added). But as explained above, factual 

disputes about Wilenchik’s accounting system and why it did not have documents 

showing how hundreds of thousands of dollars of retainer payments were earmarked were 

not dispositively “rectified and resolved.”

Wilenchik also argues that we agreed that the $10,000 it paid toward our attorneys’ 

fees in accordance with this Court’s sanctions order “‘resolve[d] the issue of sanctions 

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relating to [the] contempt motion.’” Id. (quoting Dkt. No. 179-1 at 21). But we are not 

seeking to reopen the contempt motion, and as Wilenchik concedes (Dkt. No. 179 at 10), 

we conditioned this agreement on the absence of evidence that “comes out showing that 

Wilenchik’s (or Beus Gilbert’s) representations to the court during the contempt hearing 

and in the contempt briefing were not true.” See Dkt. No. 179-1 at 21. And while 

Wilenchik argues that “[n]o such evidence has ‘come out’” (Dkt. No. 179 at 10), the only 

way this evidence would “come out” would be through the sworn testimony of 

Wilenchik—likely the only party with personal knowledge about its search for and 

collection and review of documents. Indeed, this Court relied on Wilenchik’s exclusive 

personal knowledge about its compliance with the subpoena in declining to order it to 

produce further documents or hold it in contempt. See Wurtzel Decl. Ex. A at 44:8-14

(The Court: “[A]t the end of the day there’s only one party that has the foundation to 

make a representation on whether it’s complied with the subpoena, and that the Wilenchik 

firm, because they’re the ones who are familiar with their accounting systems and how 

they track funds internally. They’ve represented that they’ve complied with the subpoena. 

I accept that representation.”). And so we should be able to get sworn testimony from 

Wilenchik on this topic.

CONCLUSION

This Court should deny the motion to quash the subpoena to Ms. Loftis as moot, 

further deny the motion to modify the subpoena to Wilenchik, and order Wilenchik to 

produce a Rule 30(b)(6) witness to testify on all six topics in the subpoena to it.

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Dated:August 5, 2019

Phoenix, Arizona

Respectfully submitted,

RYAN RAPP & UNDERWOOD, P.L.C.

By: /s/ Henk Taylor (016321)

J. Henk Taylor (016321)

3200 N. Central Ave., Suite 1600

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

E-Mail: htaylor@rrulaw.com

SCHLAM STONE & DOLAN LLP

Jeffrey M. Eilender (admitted pro hac 

 vice)

Bradley J. Nash (admitted pro hac vice)

Joshua Wurtzel (admitted pro hac vice)

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 34407677

E-Mail: jeilender@schlamstone.com

E-Mail: bnash@schlamstone.com

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II 

Limited Partnership, Resource Recovery 

Corporation, and Jean Noelting

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ORIGINAL e-filed and COPIES

e-mailed this 5th day of August

2019 as follows:

Dennis I. Wilenchik

Tyler Swenson

Chris Meyers

Chris Feasel

WILENCHIK & BARTNESS P.C.

2810 North Third Street

Phoenix, AZ 85004

E-Mail: diw@wb-law.com

E-Mail: tylers@wb-law.com

E-Mail: chrism@wb-law.com

E-Mail: chrisf@wb-law.com 

Leo R. Beus

BEUS GILBERT PLLC

701 North 44th Street

Phoenix, AZ 85008

E-Mail: lbeus@beusgilbert.com

Attorneys for Wyo Tech Investment 

Group, LLC

/s/ J. Henk Taylor

J. Henk Taylor

Case 2:17-cv-04140-DWL Document 184 Filed 08/05/19 Page 15 of 15