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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

SURREPLY TO CWT PARTIES’ 

REPLY BRIEF 

(Oral Argument Requested)

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

Gilbert”) (collectively, “Responding Parties”), hereby file this Surreply to the CWT Parties’ Reply 

in Further Support of Contempt Motion (“Reply”). This Surreply is supported by the 

accompanying Memorandum of Points and Authorities.

RESPECTFULLY SUBMITTED May 29, 2019.

WILENCHIK & BARTNESS, P.C.

s/ Tyler Q. Swensen

Dennis I. Wilenchik, Esq.

The Wilenchik & Bartness Building

2810 North Third Street

Phoenix, Arizona 85004

admin@wb-law.com

Case 2:17-cv-04140-DWL Document 152 Filed 05/29/19 Page 1 of 8
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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

The Responding Parties must address the mischaracterizations and misstatements by the 

CWT Parties in their Reply dated May 28, 2019. On May 21, 2019, the Responding Parties

(particularly W&B) produced 325 pages of documents in their possession which were responsive 

to the Subpoenas Duces Tecum served on them by CWT. W&B worked with its bookkeeper to 

produce every shred of paper in its records responsive to the CWT Subpoena. Then, on May 22, 

2019, the Responding Parties filed their Response to the CWT Parties’ Amended Motion for an 

Order to Show Cause, (Dkt. No. 140), in which they honestly stated that they “are in full 

compliance with the Subpoenas.” The Responding Parties continue to believe that to be true. 

Shortly thereafter and continuing through the end of the week on May 24, 2019, W&B 

and CWT Parties’ counsel, specifically Mr. Joshua Wurtzel, engaged in substantial dialogue in 

which Mr. Wurtzel demanded additional information (and documents that W&B does not have), 

which was outside the scope of, or not required by, the CWT Subpoenas. These demands were 

frankly entirely confusing to W&B. Nevertheless, W&B repeatedly responded to Mr. Wurtzel 

in good faith in an attempt to address his unwarranted demands and he seemed to appreciate 

W&B’s efforts. Thus, it came as a complete shock to the Responding Parties when CWT sought 

leave to file a Reply and the corresponding Declaration of Mr. Wurtzel. Indeed, on May 24, 2019, 

W&B and Mr. Wurtzel held a teleconference to discuss these items raised and to permit Mr. 

Wurtzel to assist in explaining to W&B what exactly he was looking for. However, Mr. Wurtzel 

only suggested this was a discovery “meet and confer” discussion after it occurred when, in fact, 

W&B made the offer to hold that teleconference to explain these issues to Mr. Wurtzel, not the 

other way around. See Exhibit C to Reply Declaration of Joshua Wurtzel at *1 and *3.Thus, Mr. 

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Wurtzel’s new objections again fail to comply with LR Civ. 7.2(j). See Krueger Investments, LLC 

v. Cardinal Health 110, Inc., 2012 WL 3264524, at *2–3 (D. Ariz. August 9, 2012) (striking 

motion to compel subpoenaed witness for failure to comply with Rule 7.2(j)). In any event, the 

statements made in Mr. Wurtzel’s Declaration and the CWT Parties’ Reply cannot go 

unchallenged.

First, the Reply seeks to take W&B to task because “for at least four of the payments 

Wilenchik identified as coming from Inductance or Wyo Tech, Wilenchik has failed to produce 

documents showing the source account from which these payments were made.” (Dkt. No. 143 at 

2:13-18). CWT’s conclusory accusation is based on the false presumption that W&B must have 

such documents in its possession. W&B does not keep copies of incoming checks and cannot 

be expected to produce documents which it does not have. W&B has produced all documents 

in its possession relating to these incoming payments, including copies of checks that were 

obtained from Wyo Tech and Inductance and documents showing application of the funds from 

those checks. Nothing more was or should be required. Nevertheless, W&B agreed to try to find 

the account numbers related to those checks.

It was not until Friday, May 24, 2019, that Mr. Wurtzel produced his “grid,” which he 

attached as Appendix A to the Reply (Dkt. No. 143 at 10-11). Mr. Wurtzel produced that grid only 

minutes before W&B’s phone call referenced in his declaration. In that telephonic conference, 

Mr. Wurtzel demanded that W&B produce copies of all checks in its possession which were 

responsive to the Subpoena requests. W&B reiterated, once again, that it does not keep or maintain 

copies of any checks in the regular course of business. Undeterred, Mr. Wurtzel then demanded 

that W&B access its online banking system to recover those checks. He was told that W&B did 

not have online banking access set up. Mr. Wurtzel then declared in conclusory fashion that W&B 

had an obligation under the Subpoenas to still get copies of those checks pursuant to supposed 

case law, holding that banking documents were in the “custody, possession, or control” of a 

subpoenaed party. In response, W&B told Mr. Wurtzel that its bookkeeper was out on 

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bereavement leave for her nephew’s funeral from May 23, 2019 to May 28, 2019, and the 

bookkeeper is the only person with access to W&B bank, but would pass along this request and 

get back with him. Indeed, on May 28, 2019, before CWT Parties filed their Reply, W&B 

attempted to contact Mr. Wurtzel to notify him that its bookkeeper had returned to the office, 

called her contact at the bank, and was preparing to retrieve these checks from the bank. W&B 

also informed Mr. Wurtzel in an e-mail from Dennis Wilenchik that W&B had contacted its bank 

when Ms. Loftis got back after the Memorial Day holiday to get these checks as a courtesy beyond 

the checks already provided. Put simply, W&B does not have these checks in its direct 

possession—they are not at the office. If it indeed is the case that W&B has an obligation under 

the Subpoenas to retrieve these checks from its bank, then its bookkeeper is the only individual 

who can do so, and she was out on bereavement leave until May 28, 2019, and is now in the 

process of retrieving these checks immediately, as the CWT Parties’ attorneys were informed last 

Friday by e-mail. 

Second, the Reply complains that “for at least three payments Wilenchik identified as 

coming from Inductance or Wyo Tech, Wilenchik has failed to produce documents showing the 

clients on whose behalf or the matters for which these payments were made.” (Dkt. No. 143 at 

2:19–22). This is also an incorrect statement and reflects Mr. Wurtzel’s misunderstanding as to 

W&B’s bookkeeping system. In its May 21, 2019 production, W&B produced volumes of 

invoices related to these matters and reflecting application of payments to them. The only 

documents reflecting exactly how the payments/monies were applied to individual matters are 

those invoices, which W&B has repeatedly told Mr. Wurtzel. There is no other documentation 

reflecting how the funds were applied among matters. In order to determine how the funds were 

applied to the various cases, Mr. Wurtzel needs to review the retainer account ledgers produced 

and track the funds using those invoices. Mr. Wurtzel continually insists that W&B did not 

produce documents in its possession reflecting this information, he is flat wrong. Moreover, 

despite being told as much, W&B’s only obligation under the Subpoena is to produce documents 

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responsive to the requests, if Mr. Wurtzel is unable to understand those documents, that is his 

problem. It does not necessarily mean that W&B has not complied with the Subpoena. Although, 

as a gesture of good faith, W&B has told him that it will explain these documents to him.

Third, CWT Parties complain that “Wilenchik produced handwritten ledgers showing 

hundreds of thousands of dollars in ‘Danzik Retainer’ payments, as well as other handwritten 

documents reflecting additional payments. But for many of these payments, Wilenchik did not 

produce source-account, client, or matter information—and we cannot even tell who made these 

payments to Wilenchik.” (Dkt. No. 143 at 2:19–22). At the outset, this particular objection is 

simply a regurgitation of CWT’s complaint about W&B providing checks identified in the 

documents that was addressed above. W&B reiterates that it does not have those documents in its 

immediate possession, and that there are not any more documents explaining that ledger that have 

been withheld. W&B even offered to have Mr. Wurtzel discuss this topic with its bookkeeper. As 

such, W&B is not out of compliance with the Subpoena. 

Furthermore, the CWT Parties’ entire position boils down to a demand that W&B explain 

the documentation it produced. That, however, is not W&B’s obligation under the Subpoena but 

W&B even offered to do this too. W&B has offered in good faith to provide those explanations 

to Mr. Wurtzel, even despite the filing of the CWT Parties’ Reply yesterday. The CWT Parties’ 

ongoing demands amount to a mistaken assertion that because W&B does not have any responsive 

documents in its possession which inform the parties one way or another who made these 

additional payments on the handwritten ledger, that must mean W&B has therefore “failed to 

comply with the Subpoena and this Court’s April 9 Order.” CWT is wrong. Once again, W&B is 

not obligated to track down and produce documents that are not in its possession, even if those 

documents would shed light on some of Mr. Wurtzel’s questions. Nor is W&B required to “prove 

a negative”—i.e., provide documentation showing that other payments did not come from Wyo 

Tech or Inductance in order to be deemed in compliance with the Subpoena. As for retrieving the 

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checks from the bank, Mr. Wurtzel asked for this and W&B is actively working on responding to 

that request, despite W&B’s previous production of checks it did obtain from the client.

Finally, Mr. Wurtzel falsely complains:

Wilenchik still continues to withhold documents showing payments 

to it from Inductance. Indeed, attached to the Wurtzel Reply 

Declaration as Exhibit F is a copy of a December 13, 2018 check from 

Inductance to Wilenchik for $100,000. Wilenchik did not produce this 

check or any other documents showing payment. While Wilenchik did 

produce documents showing [redacted], it is not clear this is the same 

payment—and even if it is, as shown in Appendix A, Wilenchik has 

not produced any documents showing the source account for this 

payment.” (Dkt. No. 143 at 4:22-5:3).

Contrary to CWT’s and Mr. Wurtzel’s assertions, W&B did produce documents reflecting this 

payment on WB000005, WB000011, and WB000281. While the check was written on December 

13, 2018, it was not deposited until January 16, 2019 (which is even reflected at the bottom of 

Dkt. No. 144-6), and recorded in the firm’s handwritten ledger on January 14, 2019. With respect 

to the rest of this objection, which is merely a reprise of its demand for checks from W&B’s bank, 

W&B does not have this check in its direct possession, but has made the offer (and now effort) in 

good faith to retrieve the check from its bank. 

The Responding Parties are disappointed in what is starting to look like a vendetta and 

campaign to smear W&B as opposed to a legitimate attempt to obtain relevant evidence. Despite 

W&B’s good-faith production of all documents in its possession, and its continual attempts to 

fully cooperate with Mr. Wurtzel to resolve any lingering issues (including its offer to retrieve the 

checks from its bank), and despite these documents’ marginal relevance in this case, the CWT 

Parties continue to assert that W&B is not in compliance with the Subpoena and seemingly will 

not be satisfied unless and until W&B is held in contempt and sanctioned. In short, even though 

W&B has produced all documents in its possession, and is working to retrieve all of these checks 

from its bank in a gesture of good faith, CWT’s real motivation here has nothing to do with any 

legitimate discovery purpose. 

Case 2:17-cv-04140-DWL Document 152 Filed 05/29/19 Page 6 of 8
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RESPECTFULLY SUBMITTED May 29, 2019.

WILENCHIK & BARTNESS, P.C.

s/ Tyler Q. Swensen

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 29, 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 152 Filed 05/29/19 Page 8 of 8