Ao Alfa Bank v. Doe
| Decision Date | 09 November 2021 |
| Docket Number | C. A. WM-2020-0361 |
| Parties | AO ALFA BANK, Plaintiff, v. JOHN DOE, et al., Defendants. |
| Court | Rhode Island Superior Court |
For Plaintiff: Carl Fumarola, Esq.
For Defendant: Gerald J. Petros, Esq.; Ryan M. Gainor, Esq. Steven J. Boyajian, Esq.; William M. Daley, Esq.; Daniel F Sullivan, Esq.
DECISION
Before this Court for decision is a Motion to Quash Subpoena and for Protective Order from non-party April Lorenzen (Ms Lorenzen), founder of cybersecurity firm Zetalytics, and the objection to that motion from AO Alfa Bank (Alfa Bank). Additionally, Alfa Bank has submitted its Motion to Compel, to which Ms. Lorenzen objects. Jurisdiction is pursuant to G.L. 1956 §§ 9-18.1-3, 9-18.1-5, and 9-18.1-6, as well as Rules 45 and 26 of the Superior Court Rules of Civil Procedure.
Alfa Bank is a Russian banking institution that has filed a Complaint against unknown John Doe Defendants in the Fifteenth Judicial Circuit of Florida. (Ms. Lorenzen's Mem. Supp. Mot. Quash, Ex. A (Fla. Compl.), ¶¶ 12-13.) In its Complaint, Alfa Bank asserts two counts against John Doe Defendants under the Florida Civil Remedies for Criminal Practices Act (Florida RICO). Id. ¶¶ 67-82; see Fla. Stat. Ann. §§ 772.101 et seq. Alfa Bank alleges that unknown actors, the John Doe Defendants, perpetrated a series of cyberattacks in 2016 and 2017 against Alfa Bank and the Trump Organization. (Fla. Compl. ¶¶ 2, 3.) The John Doe Defendants allegedly executed the scheme by manipulating the Domain Name System (DNS)[1] process to create the "false appearance of a covert communication channel between Alfa Bank and the Trump Organization[.]" Id. ¶¶ 5-7. In filing its lawsuit, Alfa Bank seeks "to recoup its losses by identifying the unknown actors who carried out the cyberattacks, obtaining complete relief from those actors, and restoring its global reputation as the leading private bank in Russia." Id. ¶ 2.
Alfa Bank maintains that the John Doe Defendants purposefully planted false DNS data and shared this information with a group of anonymous researchers (the Anonymous Researchers or the Researchers)-a group described as a "Union of Concerted Nerds"-who were working together to investigate potential malfeasance due to reports of Russian interference in a United States presidential election. Id. ¶¶ 7, 42. Alfa Bank alleges that Ms. Lorenzen is one of the Anonymous Researchers who actively participated in the collection of the DNS data purportedly flagged and provided by the John Doe Defendants. See Pl.'s Mem. Opp'n Mot. Quash 9-11; Pl.'s Mem. Supp. Mot. Compel 6-9; see also Fla. Compl. ¶¶ 42-43 (describing Anonymous Researchers). Once in possession of the DNS data, Alfa Bank alleges that the Anonymous Researchers compiled the information and hypothesized reasons for the suspicious activity between Alfa Bank and the Trump Organization. (Fla. Compl. ¶¶ 44-45.) The Researchers purportedly would not have known about this activity but for the actions taken by the John Doe Defendants. Id. ¶ 47. The Anonymous Researchers shared their findings with various news organizations and on the internet as well. Id. ¶ 50. One of the Anonymous Researchers is known by the pseudonym "Tea Leaves." Id. ¶ 43. According to Alfa Bank, Tea Leaves acts as one of the Researchers' key leaders, thereby making them a person of great interest for Alfa Bank. See id. ¶¶ 43, 50.
Alfa Bank alleges that the cyberattacks by the John Doe Defendants took place within two specific time frames. First, it asserts that between May and September of 2016 "a series of up to 100 or more separate but related attacks" occurred when the John Doe Defendants "sent 'spoofed' emails purporting to come from the Trump Organization to Alfa Bank." Id. ¶¶ 6, 34. Second, Alfa Bank avers that on February 18, 2017, March 11, 2017, and March 13, 2017, the John Doe Defendants conducted additional cyberattacks by manufacturing and sending over 20, 000 DNS requests for invalid domain names to Alfa Bank. Id. ¶¶ 8, 37-39.
Alfa Bank claims that it has conducted a reasonable search to identify the John Doe Defendants and that the John Doe designation "serves as a placeholder until Alfa Bank is able to conduct discovery and uncover the actual names of [those] Defendants." Id. ¶ 14.
After initiating its lawsuit, Alfa Bank filed thirty-nine subpoenas with the Fifteenth Judicial Circuit of Florida. (Ms. Lorenzen's Mem. Supp. Mot. Quash, Ex. C (Court Docket in Matter of AO Alfa-Bank v. John Doe, C. A. No. 50-2020-CA-006304-XXXX-MB) (Fla. Docket).) The Fifteenth Judicial Circuit issued a subpoena duces tecum without deposition for Ms. Lorenzen on August 21, 2020, and a subpoena for a remote videotaped deposition on April 16, 2021. Id. On September 3, 2020, Alfa Bank requested that this Court issue a foreign subpoena for document production (the Document Subpoena) directed to Ms. Lorenzen, which was issued by the Court Clerk on September 8, 2020. See Foreign Subpoena (Sept. 8, 2020). In the following months, counsel for Alfa Bank and Ms. Lorenzen were in communication concerning the Document Subpoena. See Pl.'s Mem. Supp. Mot. Compel, Exs. H, I, J. In a February 15, 2021 letter, Alfa Bank limited the Document Subpoena to the following two requests:
Ms. Lorenzen did not respond to the Document Subpoena. See Docket. Alfa Bank then requested the issuance of a foreign subpoena on April 26, 2021, for Ms. Lorenzen to appear for a videoconference deposition (the Deposition Subpoena). Id. The Clerk of this Court issued the Deposition Subpoena that same day. Id. On May 20, 2021, Ms. Lorenzen filed her Motion to Quash that Subpoena. Id. On June 18, 2021, Alfa Bank filed its Motion to Compel Ms. Lorenzen's response to the Document Subpoena, accounting for the modified requests contained within the February 15, 2021 letter. Id. The Court heard arguments for the two motions on July 23, 2021, and now renders its Decision on both motions.
Standards of Review
In Rhode Island, "discovery rules are liberal and have been construed to 'promote broad discovery.'" DeCurtis v. Visconti, Boren & Campbell, Ltd. 152 A.3d 413, 421 (R.I. 2017) (quoting Henderson v. Newport County Regional Young Men's Christian Association, 966 A.2d 1242, 1246 (R.I. 2009)). As a result, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" Super. R. Civ. P. 26(b)(1). Moreover, "[t]he court is bound . . . to give the concept of relevancy, as it applies to discovery purposes, a liberal application[.]" Borland v. Dunn, 113 R.I. 337, 341, 321 A.2d 96, 99 (1974).
While Rhode Island discovery is broad, "the imposition of an unreasonable burden is an abuse of the discovery process and will not be tolerated." Eleazer v. Ted Reed Thermal, Inc., No. C.A. 87-624, 1989 WL 1110555, at *1 (R.I. Super. Jan. 27, 1989). As such, "[a] litigant may not engage in merely speculative inquiries in the guise of relevant discovery." Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1328 (Fed. Cir. 1990). Moreover, courts are not "free-standing investigative bodies whose coercive power may be brought to bear at will" against private individuals and entities. Houston Business Journal, Inc. v. Office of Comptroller of Currency, U.S. Department of Treasury, 86 F.3d 1208, 1213 (D.C. Cir. 1996). Rather, courts are called to "facilitate" and aid in the resolution of justiciable actions brought before them. See id.
The limitations placed on discovery guide a court's adjudication of discovery disputes and motions because, "[a]lthough mechanisms for effective discovery are essential to the fairness of our system of litigation, . . . they also carry significant costs[.]" Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). In addition to the general limitations placed on the use of discovery, non-parties are entitled to special protections from burdens created by the discovery process. See Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998); Exxon Shipping Co. v. United States Department of Interior, 34 F.3d 774, 779 (9th Cir. 1994); see also Ceroni v. 4Front Engineered Solutions, Inc., 793 F.Supp.2d 1268, 1277 (D. Col. 2011).
Finally, it is well settled that the trial court has broad discretion over matters of discovery. See Martin v. Howard, 784 A.2d 291, 296 (R.I. 2001) (citing Colvin v. Lekas, 731 A.2d 718 (R.I. 1999)); see also Bashforth v. Zampini, 576 A.2d 1197, 1201 (R.I. 1990). This discretion extends to motions to compel and quash discovery. Colvin, 731 A.2d at 720 (citing Corvese v. Medco Containment Services, Inc., 687 A.2d 880, 881 (R.I. 1997)).
As an initial matter, John Doe actions are recognized under Rhode Island Law. General Laws 1956 § 9-5-20 provides that:
"Whenever the name of any defendant or respondent is not known to the plaintiff, the...
To continue reading
Request your trial