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Dennis I. Wilenchik, #005350

WILENCHIK & BARTNESS PC

The Wilenchik & Bartness Building

2810 North Third Street

Phoenix, Arizona 85004

admin@wb-law.com

Leo R. Beus, #002687

BEUS GILBERT PLLC

701 North 44th Street

Phoenix, Arizona 85008

lbeus@beusgilbert.com

Attorneys for Wyo Tech Investment Group, LLC

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

RESPONSE TO CWT PARTIES’ 

AMENDED MOTION FOR AN ORDER 

TO SHOW CAUSE

(Oral Argument Requested)

Counsel for Wilenchik & Bartness, P.C. (“W&B”) and Beus Gilbert, PLLC (“Beus 

Gilbert”) (collectively, “Responding Parties”), hereby respond to the CWT Parties’ Amended

Motion for an Order to Show Cause (“Amended Motion for OSC”), which was filed on May 15, 

2019 (Dkt. No. 135) and the Court’s Order filed on May 16, 2019 (“May 16 Order”) (Dkt. No. 

136) in this matter. The Responding Parties ask that the Court deny the Amended Motion for OSC 

and impose no sanctions. This Response is supported by the accompanying Memorandum of 

Points and Authorities.

. . .

. . .

Case 2:17-cv-04140-DWL Document 140 Filed 05/22/19 Page 1 of 19
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RESPECTFULLY SUBMITTED May 22, 2019.

WILENCHIK & BARTNESS, P.C.

s/ Dennis I. Wilenchik

Dennis I. Wilenchik, Esq.

The Wilenchik & Bartness Building

2810 North Third Street

Phoenix, Arizona 85004

admin@wb-law.com

BEUS GILBERT PLLC

Leo R. Beus, Esq.

701 North 44th Street

Phoenix, Arizona 85008

lbeus@beusgilbert.com

Attorneys for Wyo Tech Investment Group, LLC

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

First, the Responding Parties wish to apologize sincerely to both the Court and opposing 

counsel for this incident, and fully acknowledge that mistakes were made here regarding the 

Subpoenas responses. We cannot apologize enough. Indeed, we concede we were wrong and will 

not make any excuses. However, we wish to make clear to the Court that nothing here was done 

intentionally or to be in any way contemptuous of this Court. Second, W&B seeks to emphasize 

that Beus Gilbert was in no way at fault for any of this. Indeed, W&B takes full responsibility for 

failing to check further with Beus Gilbert regarding whether they had received checks following 

October 18, 2017. Third, since uncovering these errors, W&B has taken all efforts available to 

rectify the situation and comply with the Subpoenas over and above what is required. As of May 

22, 2019, Beus Gilbert has produced all 21 pages of responsive documents and W&B has 

produced 325 pages of responsive documents. Both firms strongly believe that they are in full 

compliance with the Subpoenas, but will continue to search diligently for responsive documents 

out of an extreme abundance of caution. Those documents were produced in a series of 

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productions beginning on May 14, 2019, which continued as additional responsive documents 

became known to counsel through May 22, 2019.

Dennis Wilenchik, owner of the firm, will take full responsibility for this. However, the 

Court should please keep in mind that after returning from vacation, out of the country, on April 

10, David Timchak, who was responsible for the case, had left the firm to go to the firm of 

Fennemore Craig during that time. When Mr. Wilenchik returned, he also learned the devastating 

news that his son Jack Wilenchik was diagnosed with stage 2 colon cancer, which he has advised 

opposing counsel of. He assigned lawyers in the firm to deal with the Subpoena issues and to 

respond fully. It is regrettable that he was unable to be more actively involved in that process but 

he had delegated it, being preoccupied with obviously more important issues on his mind. He 

specifically asked his attorneys and paralegal to check with Beus Gilbert regarding all payments, 

and this was simply not done fully, each person apparently thinking the other had checked. For 

that Mr. Wilenchik is sorry given what transpired. Mr. Wilenchik was told by Mr. Swensen that 

the Order was complied with. That was wrong. We cannot emphasize enough, however, that the

failure to fully produce were indeed just mistakes and the result of mere negligence. There was 

no intent or willfulness to violate the Court’s April 9, 2019 Order. The last person Mr. Wilenchik 

would want in any way to be in contempt of in any way is this Court and he certainly had no such 

intent as head of the firm. Moreover, the Responding Parties have absolutely no reason to flout

the Court’s order. The Responding Parties also have nothing to hide with respect to the Subpoena 

responses, and there are no nefarious motives at play here since we have always maintained that 

none of the payments made to W&B by Wyo or IEC at issue in any way have anything to do with 

the money interplead in this case some time ago and that they prove nothing insofar as our firm is 

concerned, and the same is true as to Beus Gilbert. Having said that, this is in no way any excuse 

to have fully complied by the date set.

Thus, in response to the Motion and Amended Motion for OSC, and the Court’s May 16, 

2019 Order, the Responding Parties conducted a thorough review of the handling of these 

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Subpoena responses and have determined that, in addition to Mr. Swensen’s acknowledged 

negligent mishandling, this issue was caused by an unfortunate combination of events at 

Wilenchik & Bartness over the past few months—in other words a “perfect storm” or “comedy of 

errors” (meant in the sense that is without even the slightest hint of humor) occurred as described 

below. Accordingly, the Responding Parties seek to inform the Court of the following to consider 

in determining whether any contemptuous conduct occurred: 

• The Responding Parties, in particular W&B, have scoured their accounting books 

to uncover all responsive documents, which as of this filing, have all been produced to the CWT 

Parties. In short, the Responding Parties have taken all possible measures to ensure compliance 

with the Subpoenas.

• W&B accepts all responsibility for the untimely and improperly-limited Subpoena 

responses on behalf of W&B and Beus Gilbert. Mr. Leo Beus relied upon Mr. Swensen’s 

representation that the Subpoenas were properly limited to January 1, 2016 to October 18, 2017, 

when he executed the Subpoena responses on behalf of Beus Gilbert. We emphasize that Mr. 

Beus’ responses were technically accurate statements, however certain payments were made to 

Beus Gilbert following the incorrectly limited time-frame that were not accounted for given the 

foregoing mistake. In short, Mr. Beus had no reason to believe that Mr. Swensen was incorrect 

and Mr. Beus should bear no blame whatsoever. 

• W&B did not have copies of the checks provided by Mr. Wurtzel, as the firm has 

never made or maintained copies of checks, but instead operates a semi-manual accounting 

system, which is no doubt consistent with other boutique litigation firms. In essence, the 

Subpoenas required the Responding Parties to learn W&B’s bookkeeping system, which is semimanual accounting and is rather complex. It is regrettable that mistakes were made here in fully 

understanding this.

• W&B personnel have worked tirelessly over the past week to bring the Responding 

Parties into full compliance with regard to the Subpoena responses and have made multiple 

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document productions in an effort to ensure that the CWT Parties were provided with as many

documents and as much information as possible as to not only payment but application of payment 

to accounts, and as quickly as possible.

As such, the Responding Parties request that the Court decline to enter an order holding 

them in contempt. The reasons are simple. This is not a situation where the Responding Parties 

were attempting to flout a Court order or hoodwink the Court or counsel, let alone on any point 

they care about—there was no contemptuous conduct here. Rather, this situation is the result of a 

series of negligent missteps by Mr. Tyler Swensen, who believed he was acting in good faith. The 

Responding Parties are not simply refusing to comply with a Court order, otherwise we would not 

have made the subsequent productions of responsive documents to the CWT Parties. Attached as 

Exhibit 1 is a Declaration from Mr. Swensen, which explains his good faith, but regrettably 

erroneous thought-process. He had exchanged various e mails with opposing counsel at all times 

attempting to resolve all issues once he realized his error.

Finally, the Responding Parties would be remiss to not point out that this entire situation 

was easily avoidable. Although we are not blaming Mr. Wurtzel for anything, the truth is had he 

sent even one e-mail, phone call, letter, or anything about not receiving the Subpoena responses, 

the Responding Parties would have been made immediately aware of that error, and could have 

avoided Court intervention entirely since he then also pointed out he had already some checks that 

had not been produced, which would have prompted further inquiry. Indeed, the Responding 

Parties again contend that LR Civ. 7.2(j) required Mr. Wurtzel to speak with us before filing the 

Motion for OSC, as this was a discovery motion. Again, this is not offered as an excuse by us for 

any of what happened, but should at least be considered.

Moreover, the request for sanctions in the amount of $500 per day dating back to April 27, 

2019, is not reasonable and has no support in law. To the contrary, well-settled case law holds 

that the sole purpose of civil contempt is not to punish a contemnor, but to provide a sanction that 

will motivate the contemnor to immediately comply with the Court’s Order and make the filing 

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party whole. We needed no such motivation to be clear. The mistakes here were self-inflicted but 

were not purposeful. A retroactive punishment does not fit that mold, as we had no indication that 

we were out of compliance with the Subpoenas until May 13, 2019, when the Motion for OSC 

was filed, which prompted a further review and investigation. Thus, the Responding Parties could 

not have been “motivated” to come into compliance with the Court’s April 12, 2019 Order until 

then because Responding Parties believed that the Subpoena responses were served and complied 

with, even if not fully complied with as we then learned.

II. ADDITIONAL FACTS

The Court is already aware of the salient facts relating to the Responding Parties’ accidental 

failure to serve the Subpoena responses on April 26, 2019, and the Responding Parties appreciate 

that the Court has accepted Ms. Stevens’ explanation as to what occurred. (Dkt. No. 136 at 4:4–

6.) Indeed, such mistakes as these regrettably happen. However, the Court is still unaware of 

several crucial events leading up to April 26, 2019. Some context and background information is

both appropriate and helpful to show how a “perfect storm” contributed to this situation.

W&B is a relatively small, 10+ attorney-size firm handling mostly commercial litigation 

matters. The instant case is one of several, approximately seven (7) litigation cases relating to Mr. 

Dennis Danzik (“Danzik Cases”) in some form or another, which W&B is handling. The Danzik 

Cases originated from New York and in Wyoming and are procedurally complex. These cases,

including federal cases against Danzik Applied Sciences and former Board members of RDX, 

have been ongoing for several years, and touch on bankruptcy and collections issues, as well as

numerous other issues. In other words, the Danzik Cases require careful and extended study for a 

newcomer to grasp. Until his departure on March 15, 2019, a now-former W&B associate 

attorney, Mr. David Timchak, was principally handling these matters for the firm. Ordinarily, that 

departure would have been a non-issue. However, very shortly thereafter, another W&B associate 

attorney, with a full caseload, also departed the firm without giving any advance notice. All the 

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while, Mr. Dennis Wilenchik, who is the lead counsel on this case, was travelling abroad in Europe 

and the Middle East, with limited access to e-mail and therefore updates regarding this litigation.

While Mr. Wilenchik was traveling abroad, given the unforeseen dearth of attorneymanpower in the office, senior associate attorney Tyler Swensen was forced to jump on this case

and others, several of which were also notoriously complex (as known around the office).

Compounding this difficult hurdle is the fact that W&B uses a semi-manual or “blended” 

accounting system, which Mr. Swensen did not (and could not reasonably be expected to) 

understand, which contributed to the erroneous statements made in the Subpoena responses.

Likewise, Chase Turrentine, a freshly-minted lawyer, who was just hired to replace the firstdeparting associate, was feverishly studying the case in an attempt to get “up to speed” and was 

likewise forced to handle the April 9, 2019 argument in this matter.

Mr. Wilenchik returned home on April 10, 2019. Unfortunately, while he was still abroad, 

his son, John “Jack” Wilenchik was diagnosed with Stage 2 colon cancer and would require an 

onslaught of doctor’s visits, immediate chemotherapy and radiation, followed by future surgery.

Mr. Wilenchik first learned of this upon his return home. Jack Wilenchik is likewise an attorney 

at W&B with a full-case load. Immediately upon learning this information, Dennis Wilenchik was 

forced to deal with not only the accompanying emotional strain, which is unimaginable, but also 

with ensuring that Jack’s caseload was properly handled and that necessary reassignments and 

other measures were made, which subsequently entailed hiring two new associate attorneys.

Needless to say, Mr. Wilenchik was unable to focus his attention to an ideal degree on this 

particular issue. He informed opposing counsel of this in an e-mail and they expressed their 

sympathy, which was appreciated. While regrettable, it is hopefully understandable. Mr. 

Wilenchik understandably delegated this task of compliance. 

Nevertheless, while juggling his onerous caseload, Mr. Swensen had several conversations 

with Mr. Turrentine and others in the office, which, for one reason or another, resulted in one 

highly-regrettable miscommunication. Mr. Swensen believed in good faith that this Court’s April 

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12, 2019 Order, while denying the request to quash the Subpoenas outright, still permitted the 

Responding Parties to assert their objections, particularly the relevance objections with respect to 

the Subpoenas requested time-frame. Mr. Swensen concedes that he failed to review the Court’s 

April 12, 2019 Order before drafting the Subpoena responses, but nevertheless thought that the 

responses he prepared would not flout this Court’s Order. See Exhibit 1 at ¶ 10. Mr. Swensen 

makes no excuses for this mistake and takes full responsibility, which the Responding Parties 

hope the Court will accept.

Finally, the Responding Parties emphasize that neither W&B nor Beus Gilbert have 

anything to hide with respect to their responses to the CWT Parties’ Subpoenas. There is no 

nefarious or ulterior motives here, nor is there any reason why the Responding Parties would seek 

to improperly impede or hinder this discovery. Nor is there any ongoing refusal by the Responding 

Parties to respond to the Subpoenas, and to the contrary, the Responding Parties have worked 

tirelessly to produce the responsive documents over the past few days. There is no contemptuous 

conduct here. The instant issue is nothing more than the product of Mr. Swensen’s honest mistake 

taken in combination with a series of highly unfortunate circumstances.

III. ANALYSIS

A. A FINDING OF CONTEMPT IS NOT APPROPRIATE

Federal Rule of Civil Procedure 45(g) provides that the Court: “may hold in contempt a 

person who, having been served, fails without adequate excuse to obey the subpoena or an order 

related to it.” Civil contempt is characterized by the Court's desire to compel obedience to a Court 

Order or to compensate the contemnor's adversary for the injuries which result from the 

noncompliance. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983); 

United States v. Bright, 596 F.3d 683, 695–96 (9th Cir.2010). 

“The party alleging civil contempt must demonstrate that the alleged contemnor violated 

the court's order by ‘clear and convincing evidence,’ not merely a preponderance of the evidence.”

In re Dual–Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.1993). An 

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alleged contemnor may defend against a finding of contempt by demonstrating a present inability 

to comply. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983);

see also Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir.1998) (holding that once a prima facie 

showing of contempt is made, “the burden then shifts to the alleged contemnor ‘to produce 

evidence explaining his noncompliance’”). 

The Responding Parties assert that the foregoing reasons proffered constitute an “adequate 

excuse” as contemplated by the rule, emphasize that there was no intentional or wilful misconduct 

here, and that they took prompt action to ameliorate their mistake and began (and finished) 

producing documents immediately thereafter. The accidental failure to serve the CWT Parties 

with the Subpoena responses by April 26, 2019, was only made known to the Responding Parties 

on May 13, 2019. Once made known, as previously discussed, the Responding Parties took all 

available actions to come into compliance as quickly as possible. Thus, a finding of contempt is 

inappropriate in this instance.

B. THE COURT SHOULD NOT ORDER RETROACTIVE SANCTIONS

In the original Motion and Amended Motion, the CWT Parties contend that the Court

should order the Responding Parties to (1) pay the CWT Parties’ legal fees incurred in making 

these Motions, and (2) further order the Responding Parties to pay $500 per day from April 27 to 

the date of full compliance with the Court’s order. (Dkt. No. 131 at 3:11–17 and Dkt. No. 135 at 

10:23–28). At the outset, the Responding Parties contend that because a contempt finding is 

unwarranted, any sanctions are also unwarranted. Furthermore, these proposed sanctions would 

not serve the remedial purpose of a contempt citation. Indeed, “[a] court may wield its civil

contempt powers for two purposes: (1) “to coerce the defendant into compliance with the court's 

order”; and (2) “to compensate the complainant for losses sustained.” Shell Offshore Inc. v.

Greenpeace, Inc., 815 F.3d 623, 629 (9th Cir. 2016); see also Ohr ex rel. NLRB v. Latino Express,

Inc., 776 F.3d 469, 479–80 (7th Cir.2015) (“A civil contempt order can serve to coerce a party to 

obey a court order, or it can be intended to compensate a party who has suffered unnecessary 

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injuries or costs because of contemptuous conduct.”). In this case, neither sanction is warranted, 

nor necessary. First, the Responding Parties have immediately taken all efforts on their own behalf 

to come into voluntary compliance with the Court’s Order. Stone v. City and Cty. Of San 

Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992) (“The burden then shifts to the contemnors to 

demonstrate why they were unable to comply. They must show they took every reasonable step 

to comply.”) (internal citations omitted.) Thus, the Court need not “coerce” the Responding 

Parties’ to comply with the April 9, 2019 Order. Second, there were no losses sustained by the 

CWT Parties, which could not have been avoided altogether had the Responding Parties been 

advised about the situation per Rule 7.2(j), given that this is a discovery dispute. 

Furthermore, retroactive sanctions dating back to April 27, 2019 (one day after the 

Subpoena responses were due), would not serve the remedial purpose of a civil contempt finding, 

given that the failure to serve the Subpoena responses by April 26, 2019, was a complete accident, 

which the Court and CWT Parties’ counsel has already accepted. United States v. Powers, 629 

F.2d 619, 625 (9th Cir. 1980) (Punishment for civil contempt is usually considered to be remedial. 

The penalty is designed to enforce compliance with a court order.”) In other words, imposing 

retroactive sanctions, after the Responding Parties have become in full compliance with the 

Subpoenas, could not “motivate” the Responding Parties now to comply with the Subpoenas 

immediately, since that have already happened. If any sanctions were to be imposed, which the 

Responding Parties contend should not, the sanctions would only be even arguably justifiable

from the date of the CWT Parties’ Amended Motion (May 15, 2019) to the date of the Responding 

Parties’ full compliance with the subpoena (May 22, 2019). Finally, the proposed sanctions are 

incredibly overbearing. As calculated to date, these sanctions would amount to an astonishing 

$25,000. Should W&B undertake the burden of paying that fine in full, it could conceivably 

disrupt the firm’s cash flows and jeopardize payroll.

. . .

. . .

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IV. CONCLUSION

For these reasons, the Responding Parties respectfully request that the Court deny the CWT 

Parties’ Amended Motion for OSC and issue no sanctions in this matter for contempt.

RESPECTFULLY SUBMITTED May 22, 2019.

WILENCHIK & BARTNESS, P.C.

s/ Dennis I. Wilenchik

Dennis I. Wilenchik, Esq.

The Wilenchik & Bartness Building

2810 North Third Street

Phoenix, Arizona 85004

admin@wb-law.com

BEUS GILBERT PLLC

Leo R. Beus, Esq.

701 North 44th Street

Phoenix, Arizona 85008

lbeus@beusgilbert.com

Attorneys for Wyo Tech Investment Group, LLC

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CERTIFICATE OF SERVICE

I hereby certify that on May 22, 2019, the foregoing document was electronically 

transmitted to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice 

of Electronic Filing to the individuals registered.

By: s/ Wendy L. Echols

Case 2:17-cv-04140-DWL Document 140 Filed 05/22/19 Page 12 of 19
EXHIBIT 1

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Dennis I. Wilenchik, #005350

WILENCHIK & BARTNESS PC

The Wilenchik & Bartness Building

2810 North Third Street

Phoenix, Arizona 85004

admin@wb-law.com

Leo R. Beus, #002687

BEUS GILBERT PLLC

701 North 44th Street

Phoenix, Arizona 85008

lbeus@beusgilbert.com

Attorneys for Wyo Tech Investment Group, LLC

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

DECLARATION OF 

TYLER Q. SWENSEN

TYLER Q. SWENSEN, under penalty of perjury, states as follows:

1. My name is Tyler Q. Swensen. I am over the age of 18 and make the following 

statements based on my personal knowledge.

2. I am currently employed as a Senior Associate at the law firm of Wilenchik & 

Bartness, P.C. I have been employed by the firm for 14.5 of the last 16 years.

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3. As a preface to the statements made hereinafter, I want the Court to know that I fully 

recognize and acknowledge my handling of the responses by Wilenchik & Bartness, P.C. (“WB”) 

and Beus Gilbert, PLLC (“BG”) to the Subpoenas served on them by CWT in this interpleader 

action was deficient. Indeed, I made mistakes both in preparing those responses and in failing to 

immediately recognize the deficiencies and erroneous statements contained in them. Both WB 

and BG and their named partners who signed the responses, Dennis Wilenchik and Leo Beus,

were relying on me to prepare proper responses to the Subpoenas. I let them down.

4. I want the Court to know that my statements in this Declaration are not intended to 

excuse or justify my admittedly negligent and deficient handling of the tasks at issue, but rather 

simply to explain what happened and to make it clear that at no time did I or Messrs. Beus and 

Wilenchik ever intend to willfully flout this Court’s Orders or show disrespect to the Court or the 

judicial system we all serve.

5. Between March 15, 2019, and April 10, 2019, Dennis Wilenchik was traveling in 

Europe and the Middle East.

6. During that same three-week period, two associate attorneys left WB. The first gave 

two weeks’ notice before departing, but the other gave no notice at all. In a firm that typically 

employs only 9-12 attorneys, this was a significant reduction in manpower that was exacerbated 

by Mr. Wilenchik’s absence.

7. In addition to the foregoing, on or about March 30, 2019, Jack Wilenchik, another 

associate at WB, and the only son of Dennis Wilenchik, was diagnosed with colon cancer. As a 

result of that diagnosis, Jack Wilenchik was required to immediately begin undergoing treatment 

and his father was understandably concerned, and upon his return to the U.S., began spending a 

great deal of his time and attention assisting Jack both with his cases and his medical issues. 

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8. The confluence of these events required me, as one of the Senior Associates, to take 

on several additional cases, including the instant action, with little or no forewarning. Both the 

instant case and another matter I was asked to jump into involved complex procedural histories 

going back several years and while I did the best I could, it was essentially impossible to digest 

and comprehend all of that background information in just a matter of days.

9. I did not begin working on this matter until after the Court had issued its April 9, 

2019 ruling regarding WB and BG’s pending motions.

10. Chase Turrentine, from WB, had handled the oral argument on those motions and 

after speaking with him, it was my understanding that the Court had denied the motions and held 

that CWT was entitled to responses to its discovery requests, including the Subpoenas issued to 

WB and BG. I did not read the Court’s Order at that time and had the impression, based on my

miscommunication with Mr. Turrentine, that, although responses to the Subpoenas were now 

required by April 26, 2019, WB and BG were not precluded from raising objections. This was an 

incorrect assumption on my part.

11. The fact that I still mistakenly believed in good faith WB, BG and Wyo Tech were 

not precluded from raising objections to CWT’s discovery requests is evidenced by the fact that I 

helped prepare objections to CWT’s discovery requests on behalf of Wyo Tech and engaged in 

discussions with opposing counsel, Joshua Wurtzel, about those objections, which led to the May

1, 2019, telephonic conference with the Court addressing that discovery dispute. I would not have 

taken, and did not take the position I did on that issue, had I believed that the Court had already 

ruled and addressed that same issue.

12. As a result of the above-described events, Dennis Wilenchik was relying heavily, if 

not exclusively, on me to handle matters associated with this litigation, including the preparation 

of the responses of WB and BG to the CWT Subpoenas.

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13. It was my understanding that BG had not received any payments for any work it had 

done on behalf of Wyo Tech, Danzik Applied Sciences, Inductance, or anyone associated with 

those entities and WB had not received any such payments prior to October 2017. I was mistaken 

and should have investigated the facts more intensively. I wish I had.

14. Because I erroneously believed that WB and BG were still entitled to object to the 

temporal scope of the Subpoenas and mistakenly believed that neither firm had received any 

payments prior to October 2017, I drafted the responses based on those faulty premises and asked 

Messrs. Beus and Wilenchik to sign them, which they did in reliance on my judgment.

15. I then turned the delivery of those signed Responses over to our Senior Paralegal, 

Victoria Stevens, on April 26, 2019.

16. As Ms. Stevens has stated in her Declaration, she honestly believed that she had 

forwarded the Responses to Mr. Wurtzel on April 26, 2019. I fully believed that this occurred. I 

further believed that, given Mr. Wurtzel’s near-constant communications efforts with me in the 

discovery throughout this case, that if Mr. Wurtzel had not received those Subpoena responses, 

he would have notified me immediately.

17. To my surprise, in my multiple email exchanges with Mr. Wurtzel after April 26, 

2019, not once did he mention WB’s and BG’s Responses to the CWT Subpoenas. In fact, he did 

not mention them in the discussions and communications leading up to nor at any time during our 

teleconference about discovery disputes with the Court on May 1, 2019.

18. Thus, I assumed that the CWT Parties had accepted my objections and responses 

and that the issue was resolved. Never for a moment did I think that opposing counsel had not 

received those Responses on April 26, 2019.

. . .

. . .

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19. It was not until Mr. Wurtzel filed his Motion for OSC on May 13, 2019, that I 

discovered our failure to transmit the Responses on April 26, 2019.

20. After realizing our error, I immediately undertook efforts not only to supply the 

prior Responses to the Subpoenas, but to also address Mr. Wurtzel’s objections to them. I freely 

admit that I should have done a more thorough job from the outset of ascertaining the scope and 

effect of the Court’s April 9, 2019 ruling. I also should have personally consulted with 

representatives of BG to verify what, if any, payments they had received that might be responsive 

to the CWT Subpoena.

21. I was admittedly negligent in my handling of this matter, but I never intentionally 

or knowingly disregarded or flouted any directive of the Court. For certain, neither Mr. Wilenchik 

nor Mr. Beus did so, since they were relying entirely on me to deal with the situation. Nor did I 

ever have any motive or reason to, apart from legitimate discovery objections, to refuse to provide 

those Subpoena responses.

22. Since discovering the mistakes and errors I committed along with others involved 

in the situation, I have exerted every possible effort to ensure WB’s and BG’s compliance with 

the Court’s directives related to the firms’ Responses to the CWT Subpoenas. To that end, I 

consulted with representatives of BG and prepared a supplemental Response to the Subpoenas

containing all relevant records. I also reviewed the documentation in WB’s possession and 

provided Mr. Wurtzel with additional information and explanations linking incoming payments 

responsive to the Subpoenas with outgoing payments made to cover attorneys’ fees incurred on 

various client matters, to ensure that he could understand the information contained in the 

documents provided.

23. On May 14, 2019, I met with WB’s office manager (who is also the bookkeeper)

several times to learn the firm’s accounting system and ledgers and collect all responsive 

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documents in the firm’s possession. I also learned that WB does not maintain or keep copies of 

checks. However, we began producing documents to opposing counsel immediately. Mr. Wurtzel 

included those initial productions in his Amended Motion for OSC, as Exhibits I and J. (Dkt. Nos. 

135-11 and 135-12.)

24. Although I am currently out of Arizona, it is my understanding that compliance 

efforts are ongoing in good faith and additional production(s) have been made.

25. Again, I apologize to the Court and opposing counsel for my mishandling of this 

situation and ask the Court to take into consideration the confluence of factors that created what 

might be described as a “perfect storm” leading to a series of errors in judgment and execution, 

none of which were intentionally devious or willfully contemptuous.

I declare under penalty of perjury that the foregoing statements in this declaration are true 

and correct to the best of my knowledge.

Dated this 22nd day of May, 2019.

Tyler Q. Swensen

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