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Cohen Kennedy Dowd & Quigley, P.C. 

The Camelback Esplanade I 

2425 East Camelback Road • Suite 1100 

Phoenix, Arizona 85016 

Telephone 602•252•8400 Facsimile 602•252•5339 

Daniel P. Quigley (009809) Email: dquigley@ckdqlaw.com Maureen M. Manning (028877) Email: mmanning@ckdqlaw.com Attorneys for Venus Medical, Inc. and Michael A. Howe, III 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

 

Petitioners Venus Medical, Inc. (“Venus”) and Michael A. Howe, III (collectively, 

“Petitioners”) respectfully move the Court to hold David G. Roberts and his company 

David G. Roberts & Associates (collectively, “Respondents”) in contempt for failure to 

comply with subpoenas issued and served on them in connection with Venus Medical, Inc. v. 

Skin Cancer & Dermatology Center, P.C., No. 1:12-cv-4425-MHC (the “Subpoenas”), a civil 

action pending in the United States District Court for the Northern District of Georgia, 

Atlanta Division (the “Georgia Litigation”). 

BRIEF DESCRIPTION OF THE GEORGIA LITIGATION

 The Georgia Litigation involves competing claims for breach of contract. In 2010, 

Venus entered into a Consulting Agreement with Skin Cancer & Dermatology Center, P.C., 

VENUS MEDICAL, INC. and MICHAEL A. 

HOWE, III, 

Petitioners, 

v. 

DAVID G. ROBERTS and DAVID G. 

ROBERTS & ASSOCIATES, 

Respondents. 

Misc. Action No.: _____________

USDC, Northern District of Georgia 

Case No. 1:12-cv-4425-MHC 

VENUS MEDICAL, INC. AND 

MICHAEL A. HOWE, III’S 

MOTION FOR CONTEMPT 

FOR FAILURE TO COMPLY 

WITH SUBPOENAS

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a Georgia corporation and Skin Cancer & Dermatology Center, P.C., a Tennessee 

corporation (collectively, the “Practices”). After two-and-a-half years of performing under 

that contract, the Practices failed to pay Venus the monthly consulting fee that was due on 

the first of December 2012, and further failed to cure the untimely payment within the time 

allowed by the parties’ contract. As a result, Venus exercised its contractual right to 

terminate the agreement. Following termination, the Practices claimed to examine, for the 

first time, Venus’ performance over the preceding two-and-a-half years. The results of that 

examination allegedly revealed that Venus’ performance was deficient, and the Practices 

thereafter attempted to rescind the contract based on their allegations of total nonperformance by Venus of its consulting duties. Venus initiated the Georgia Litigation in 

December 2012. 

 Mr. Roberts is not a party to the Georgia Litigation. He was, however, the President 

of the Practices from mid-2012 until the spring of 2015, when he became Vice President. In 

addition, he has been an employee of the Practices since January 2010 and a contracted 

consultant to the Practices since October 2010. Prior to that time, he was a part-owner of 

the Practices. 

 After a series of preliminary motions, discovery began in October 2014. At that time, 

Petitioners did not know that Mr. Roberts maintained his positions as a highly-compensated 

employee, a contracted consultant, and the President of the Practices. Petitioners therefore 

issued the Subpoenas to Mr. Roberts and his company, seeking evidence relevant to the 

Georgia Litigation. As discovery has progressed, it has become increasingly clear that Mr. 

Roberts is a pivotal witness and document custodian with respect to the Georgia Litigation. 

BACKGROUND RELEVANT TO MOTION

1. On November 3, 2014, Petitioners (as Plaintiffs in the underlying litigation) 

issued the Subpoenas to Respondents (see Subpoenas attached as Ex. A), and on November 

16, 2014, Respondents acknowledged service of those Subpoenas (see Acknowledgment of 

Service, attached as Ex. B.) 

. . . 

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2. Among other documents, the Subpoenas requested production of: 

a. All business, practice management or financial reports, 

recommendations or analyses you have prepared or provided to Dr. 

Chung1 and/or the Practices between April 2010 and the present. 

b. All analyses, mark-ups, drafts, memoranda, communications 

or other documents that evidence, refer or relate to negotiation of 

the 2010 Restructured Agreement.2 

(Subpoena Item Nos. 4 & 5.) 

3. Respondents did not move to quash or modify the Subpoenas, did not seek 

relief from the Subpoenas in any way, and did not assert any objections to any of the 

itemized topics or to the Subpoenas’ terms. 

4. On December 1, 2014, Respondents produced 118 documents in response to 

the Subpoenas. 

5. Mr. Roberts was deposed in connection with the Georgia Litigation on June 

30, 2015. (Excerpts from Mr. Roberts’ deposition are attached as Ex. C (hereinafter, 

“Roberts Dep.”).) 

6. During his deposition, Mr. Roberts was shown two competing versions of a 

memorandum dated February 24, 2010, allegedly prepared by his wife, Gloria Roberts, which 

related to the negotiation of the 2010 Restructured Agreement. (Roberts Dep. at 88-97; 102-

111.) One version of the memorandum had been given to Mr. Howe contemporaneously 

with its creation in February 2010, and it was produced in discovery by Petitioners. The 

other version (never previously provided to Petitioners) had been produced in discovery by 

 

1 Dr. John Chung is a dermatologist in Dalton, Georgia. He is the sole owner of the 

Practices and is named as a defendant in the Georgia Litigation in connection with his 

personal guaranty of the Practices’ obligations under the Consulting Agreement. 

2 The “2010 Restructured Agreement” was defined to include six contracts, including 

the Consulting Agreement and a Stock Purchase Agreement, which were executed as part of 

a single transaction on April 25, 2010.

...

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the Practices. The second version contained alterations that provided support, where none 

existed before, for specific allegations made in the Practices’ counterclaim. 

7. Mr. Roberts never produced either version of the memorandum in response 

to the Subpoenas issued to him and his company. When asked at his deposition why, he 

said that he did not produce the memorandum because “[his] wife did it” and, later, “[i]t was 

in my wife’s filing cabinet and my wife did not recall.” (Id. at 95 & 101-02.) 

8. Due to the unexplained origin of the two competing versions, Petitioners 

issued a Notice of Inspection for the laptop computers of Mr. Roberts and his wife. (Notice 

of Inspection, attached as Ex. D.) Mr. and Mrs. Roberts thereafter retained independent 

legal counsel to represent them in connection with the inspection. Although Mr. Roberts 

initially indicated he would cooperate with the inspection, his attorney notified Petitioners’ 

counsel two business days before the scheduled inspection that Mr. Roberts was not 

prepared to comply with the inspection and that it needed to be postponed because Mr. and 

Mrs. Roberts had not yet been able to retain an independent forensic examiner to observe 

the inspection. (Email from J. Lorona to R. Rothman, July 30, 2015, attached as Ex. E.) The 

following day, in a telephonic hearing in the Georgia Litigation, Mr. Roberts’ attorney disclosed 

that his clients’ two laptop computers had already been delivered to an independent forensic 

examiner retained by Mr. Roberts. 

9. To expedite the process, Petitioners’ counsel consented to Mr. Roberts’ 

examiner conducting the examination so long as he complied with the terms of the Notice 

of Inspection and the prior stipulations agreed to among counsel. 

10. The forensic examination conducted by Mr. Roberts’ examiner revealed 

multiple other versions of the memorandum, but his initial examination was incomplete and 

he agreed to supplement his report. That supplemental report, along with belated 

disclosures from defense counsel in the Georgia Litigation, showed that Mr. Roberts was the 

email sender or email recipient of multiple versions of the memorandum. (See Emails 

attached as Ex. F.) He also wrote in one email that he was placing the document in his 

. . . 

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“correspondence file.” (See id. at May 10, 2013.) Yet, Mr. Roberts never produced any of those 

emails or any versions of the memorandum in response to Petitioners’ subsequent Subpoenas. 

11. The forensic examination revealed that the memorandum had been revised on 

Mrs. Roberts’ computer on at least two occasions in May 2013, approximately six months 

after the Georgia Litigation was filed. (See Revised Forensic Report at 12, attached as 

Exhibit G (showing that original document created on February 24, 2010 was last revised on 

May 12, 2013 and that another version was also created and revised on May 13, 2013).) A 

May 12, 2013 email from Mrs. Roberts states that she had “added” some things to the threeyear old memorandum based on hand-written notes she retained from the meeting that is 

the subject of the memorandum. (Exhibit F at 7.) 

12. Notably, the Respondents’ forensic examination was limited to searching only 

for the memorandum at issue and emails to which that document was attached. Moreover, 

the examiner did not search for documents discussing the memorandum, as requested by 

Petitioners. 

13. Petitioners have discovered other deficiencies in the Respondents’ document 

production. During his deposition, Mr. Roberts revealed that he had not produced a 

financial document, called a “monitor,” that he routinely prepared for Dr. Chung and the 

Practices, nor did he produce any of the underlying financial documents on which that 

“monitor” was based. (Roberts Dep. at 206.) In fact, Mr. Roberts produced no financial 

documents of any kind in response to Subpoena Item Nos. 7 and 8. The only “financial” 

information he produced were reports related to his own compensation from the Practices, 

which were responsive to Subpoena Item No. 2. 

14. When Mr. Roberts finally produced the “monitor” (approximately eight 

months after he originally responded to the Subpoena), he produced a single sheet of paper, 

which had been modified and updated by Mr. Roberts during the course of the lawsuit. 

Indeed, notwithstanding service of the Subpoena, Mr. Roberts apparently continued his 

. . . 

. . . 

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practice of “writing over” the monitor, without preserving the earlier version, each time he 

updated Dr. Chung. 

15. There may be additional documents missing from the Respondents’ 

production. Respondents produced anywhere from zero documents to less than five 

documents in response to Subpoena Item Nos. 1, 6, 7, 8, 9, 10, 11, and 12. 

16. Based on the failures described above, a complete forensic search is warranted 

and necessary to ensure compliance with the Subpoenas. 

17. Petitioners’ counsel has endeavored to have the deficiencies in Respondents’ 

productions cured absent court intervention, but to no avail. Frustratingly, defense counsel 

in the Georgia Litigation points to Mr. Roberts’ personal attorney, and Mr. Roberts’ personal 

attorney points to defense counsel. 

ARGUMENT AND CITATION OF AUTHORITY

Rule 45(g) of the Federal Rules of Civil Procedure authorize a court to hold a nonparty in contempt of court where the party has been properly served with a subpoena but 

has failed, without adequate excuse, to comply with the terms of the subpoena. FED. R. CIV.

P. 45(g); Martha’s Vineyard Scuba Headquarters, Inc. v. Wrecked & Aban, 280 F.R.D. 76, 77 (D. 

Mass. 2011). 

1. Exceptional Circumstances Justify Transfer of this Motion. 

Before turning to the merits of this Motion, however, Petitioners request that the 

Court transfer this Motion to the Issuing Court—i.e., the United States District Court for the 

Northern District of Georgia. A transfer to the Issuing Court is appropriate if (i) 

Respondents consent, or (ii) this Court finds that exceptional circumstances exist justifying 

the transfer. FED. R. CIV. P. 45(f). The Advisory Committee notes to Rule 45(f) explain that 

“transfer may be warranted in order to avoid disrupting the issuing court’s management of 

the underlying litigation....” See also In re UBS Financial Services, Inc., --- F. Supp. 3d ----, 2015 

WL 4148857, at *1 (D.D.C. July 9, 2015) (“Among other elements, courts determining 

whether ‘exceptional circumstances’ exist to warrant transfer have considered ‘[case] 

. . . 

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complexity, procedural posture, duration of pendency, and the nature of the issues pending 

before or already resolved by, the issuing court in the underlying litigation. [Cits.].”) 

Abundant grounds exist for this Court to find “exceptional circumstances” to 

transfer this Motion, most notable among them being that this Motion raises some of the 

same issues that are already pending before the Issuing Court. Specifically, on August 17, 

2015, Petitioners moved for an award of discovery sanctions against the defendants in the 

Georgia Litigation, in part based on Mr. Roberts’ discovery failures outlined above. That 

motion is now fully briefed. As noted above, while Mr. Roberts is not a named defendant in 

that case, he is a generously-compensated senior executive officer of and consultant to the 

Practices. Indeed, the Practices designated him as a “custodian” of potentially relevant 

information in the Georgia Litigation. But despite all of this, the Practices have thus far 

refused to acknowledge that documents possessed by Mr. Roberts are within their “control,” 

as contemplated by Rule 34. Accordingly, Petitioners have been left with no other choice 

but to file the instant Motion to avoid the possibility of being left without recourse for the 

Respondents’ disregard of their discovery obligations. 

As the Advisory Committee notes make plain, Rule 45 favors local resolution of 

subpoenas to avoid imposing unreasonable burdens on nonparties. But even setting aside 

that the Respondents’ intimate relationship with the Practices in the Georgia Litigation 

distinguish them from the typical “nonparties” contemplated by Rule 45, a transfer here 

would impose little, if any, additional burden on the Respondents. Because of his role with 

the Practices, Mr. Roberts routinely visits the Practices, which are located within the Issuing 

Court’s district. Mr. Roberts also has been hard at work on the Practices’ behalf in the 

Georgia Litigation. For example, Mr. Roberts elected to travel to the Issuing Court’s district 

multiple times in the past few months to observe various depositions taken in the Georgia 

Litigation. Most recently, on September 24, 2015, the Practices submitted an affidavit from 

Mr. Roberts in opposition to the Petitioners’ motion for partial summary judgment. 

. . . 

. . . 

Case 2:15-mc-00062-DLR Document 1 Filed 10/02/15 Page 7 of 13
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Accordingly, because of the judicial efficiency that it would promote and the minimal, 

if any, burden it would impose on the Respondents,3 the Petitioners respectfully request that 

this Court find that exceptional circumstances justify transfer of this Motion to the Issuing 

Court. 

2. Mr. Roberts Failed to Produce All Documents Requested in the Subpoenas. 

As to the merits of this Motion, Mr. Roberts’ deposition testimony and the 

subsequent discovery efforts by Petitioners’ counsel in the Georgia Litigation have 

established that Respondents did not comply with the Subpoenas served upon them, and 

that their excuse for failing to comply was neither adequate nor accurate. Respondents were 

also relying on an erroneous and unreasonable lay opinion regarding what documents were 

in their possession, custody, or control. Because of those failures, Petitioners have 

substantial reason to doubt the adequacy and reasonableness of Respondents’ search for and 

production of documents in response to the Subpoenas. 

As noted above, Respondents failed to produce a number of documents in response 

to the Subpoenas. Specifically, they failed to produce the financial monitor that Mr. Roberts 

periodically prepared for Dr. Chung and the Practices, which would have been responsive to 

Subpoena Item No. 4, and did not produce any similar, related, or underlying documents 

pertaining to those monitors or any other financial reports prepared for the Practices. 

Respondents also failed to produce a copy of any version of the February 24, 2010 

memorandum (or any related documents or emails), which would have been responsive to 

Subpoena Item No. 5. Respondents have no adequate excuse for these failures and should 

be held in contempt. 

Finally, Respondents produced between zero and less than five documents in 

response to eight of twelve requested categories of documents. While it is possible that this 

 

3

 Nor would the transfer require a change in counsel, since pursuant to Rule 45(f), 

upon transfer, “if the attorney for a person subject to a subpoena is authorized to practice in 

the court where the motion was made, the attorney may file papers and appear on the 

motion as an officer of the issuing court.” 

. . .

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meager production is because the documents do not exist, the known failures, discussed 

above, strongly suggest an overall lack of the required diligence from the Respondents in 

meeting their discovery obligations. 

3. Mr. Roberts Has Control and an Obligation to Produce Documents in His Wife’s 

Possession. 

Respondents also failed to produce documents responsive to the Subpoenas based on 

Mr. Roberts’ legally insufficient contention that he had no obligation to produce them 

because his wife typed them and kept them in her filing cabinet. 

Like discovery among parties, the mandate of Rule 45(a)(iii) is not limited to the 

production of documents within the physical possession of a subpoenaed party. It also 

requires the production of documents that are within that party’s control. FED. R. CIV. P.

45(a)(iii). “Control” is applied broadly, and it includes the legal right to obtain documents as 

well as the “practical ability” to obtain them. See In re Flag Telecom Holdings, Ltd. Sec. Litig., 

236 F.R.D. 177, 180 (S.D.N.Y. 2006) (citing Riddell Sports, Inc. v. Brooks, 158 F.R.D. 555, 558 

(S.D.N.Y. 1994)). 

Mr. Roberts and his wife are married. They live together. They work together. The 

documents at issue relate to Mr. Roberts’ work for Dr. Chung and the Practices. And, both 

Mr. and Mrs. Roberts have attempted to aid defense counsel in the Georgia Litigation by 

providing documents and other information. See United States v. Freidus, 1989 U.S. Dist. 

LEXIS 13454, at *5-6 (S.D.N.Y. Nov. 10, 1989). Thus, Mrs. Roberts’ possession of and 

involvement with these documents is in no way wholly independent of her husband’s 

interests in the underlying litigation. There is simply no basis for concluding that Mr. 

Roberts does not have sufficient “control” of the documents his wife wrote, typed, or kept 

in her filing cabinet. 

Mr. Roberts undoubtedly had the practical ability to obtain documents in his wife’s 

possession, whether they were from her email account or stored in her filing cabinet in their 

home. See generally Andrews v. Holloway, 256 F.R.D. 136, 151 & n.13 (D.N.J. 2009) (holding 

that defendant had obligation to produce documents that he had a right to access, including 

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documents in the possession of his family). If the rule were otherwise, every subpoenaed 

party or litigant could avoid all discovery efforts simply by handing relevant documents over 

to their spouse. Freidus, 1989 U.S. Dist. LEXIS 13454, at *5-6 (holding that husband had 

control over documents in his wife’s possession that were maintained in the marital 

residence); see also Bough v. Lee, 29 F. Supp. 498, 501 (S.D.N.Y. 1939) (“Control, not mere 

possession, is the determining factor. Otherwise a person subpoenaed to produce 

documents or records could engage in a game of hide and seek, thus frustrating the orders of 

the Court” (internal citation omitted)). The Federal Rules of Civil Procedure do not tolerate 

these types of shell games. 

By failing to produce the documents in Mrs. Roberts’ possession, Respondents failed 

to obey the Subpoenas and should be held in contempt. 

4. Mr. Roberts Has Actual Possession of a Number of Responsive Documents Never 

Produced.

Even if one were to credit Respondents’ excuse for failing to produce the single 

version of the memorandum that was supposedly kept in Mrs. Roberts’ filing cabinet, 

Petitioners’ counsel’s investigation has revealed that Respondents’ justification was not even 

true. It is undisputed that Mr. Roberts had actual physical possession of multiple other 

versions of the memorandum as well as emails transmitting or discussing that memorandum. 

(See Emails attached as Ex. F.4) Mr. Roberts produced none of these emails and no copies 

of the memorandum he claimed to have placed in his correspondence file. Given the limited 

nature of the forensic examination, it is possible, if not likely, that Mr. Roberts has even 

more documents that have yet to be produced. Respondents and their attorney, however, 

. . . 

. . . 

. . . 

 

4

 The following email accounts are associated with Mr. Roberts: mdplanning@cox.net, 

mdplanning@shaw.ca, mdplanning@cox.net, and gwki@cox.net. 

...

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have refused to supplement Respondents’ production.5 Respondents have no adequate 

excuse for failing to produce these documents. 

All of these documents—the emails and the various versions of the memorandum 

attached to them—were in Respondents’ actual possession when they responded to the 

Subpoenas. The failure to produce them was without excuse, and Respondents should be 

held in contempt for disobeying the Subpoenas. 

5. Respondents’ Failures and Omissions Justify an Order Demanding that Respondents Make 

a Reasonable and Thorough Search for Other Documents Not Previously Produced.

In light of the undisputed failures and omissions outlined above as well as 

Respondents’ narrow and mistaken view of what documents are in their “possession, 

custody, or control,” Petitioners have substantial reason to doubt the adequacy of 

Respondents’ entire production in response to the Subpoenas. Respondents are now 

refusing to address these noted deficiencies or conduct a further search for responsive 

material. 

RELIEF REQUESTED

Petitioners respectfully request the following relief: 

(1) That this Court issue an Order transferring this Motion to the Issuing Court; 

or, in the alternative: 

(2) That Respondents be held in contempt for failure to comply with the 

Subpoenas served upon them; 

(3) That Respondents be ordered to fully cooperate with the Petitioners to make a 

reasonable, thorough, and complete supplemental production in response to the Subpoenas. 

Specifically, with respect to the production of electronically stored information, Petitioners 

request that an appropriately credentialed forensic examiner with an electronic discovery 

 

5

 At one point, Mr. Roberts’ attorney requested copies of the Subpoenas and said that 

he would be working to supplement the earlier productions because defense counsel in the 

Georgia Litigation told him he suspected that the initial responses—spearheaded by Mr. 

Roberts—had not been fulsome. 

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company conduct the search based upon reasonable, negotiated search terms and search 

parameters at the Respondents’ expense. With respect to the production of paper 

documents, Petitioners request that Respondents’ counsel personally handle the search for 

and review of the potentially responsive documents; 

(4) That Respondents be charged with the costs and fees incurred by Petitioners 

in having to bring this Motion; and 

(5) That the Court grant such other relief as is proper. 

Respectfully submitted this 2nd day of October, 2015. 

 Cohen Kennedy Dowd & Quigley, P.C.

 The Camelback Esplanade I 

 2425 East Camelback Road, Suite 1100 

 Phoenix, Arizona 85016 

 Attorneys for Petitioners 

 By: _/s/Daniel P. Quigley 

 Daniel P. Quigley 

 Maureen M. Manning 

 

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CERTIFICATE OF SERVICE

I hereby certify that on October 2, 2015, I electronically transmitted the attached 

document to the Clerk’s office using the CM/ECF System for filing and caused a true and 

correct copy of the same to be mailed on October 2, 2015 via U.S. Mail to the following: 

Jess A. Lorona 

Lorona | Mead, PLC 

3838 N. Central Ave., Suite 100 

Phoenix, AZ 85012 

 Attorney for David G. Roberts and David G. Roberts & Associates 

Robert L. Rothman 

Jennifer L. Shelfer 

Scott A. Wandstrat 

Arnall Golden Gregory LLP 

171 17th Street NW, Suite 2100 

Atlanta, GA 30363 

 Attorneys for Venus Medical, Inc. and Michael A. Howe, III in 

 Georgia Litigation 

Michael A. Dailey 

Stephen J. Anderson 

Anderson Dailey, LLP 

2002 Summit Boulevard, Suite 1250 

Atlanta, GA 30319 

 Attorneys for Skin Cancer & Cosmetic Dermatology Center, P.C., 

 Skin Cancer & Cosmetic Dermatology Center, P.C., John Y. Chung, 

 and Linda Chung in Georgia Litigation 

_/s/Rachael McDanel____ 

Case 2:15-mc-00062-DLR Document 1 Filed 10/02/15 Page 13 of 13