UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEWYORK

VICTOR RESTIS and ENTERPRISES SHIPPING
AND TRADING S.A.
Plaintiffs,
- v. -
AMERICAN COALITION AGAINST NUCLEAR
IRAN, INC. a/k/a UNITED AGAINST NUCLEAR
IRAN, MARK D. WALLACE, DAVID IBSEN,
NATHAN CARLETON, and DOES 1-10,
Defendants.
Civil Action No. 13-cv-05032-ER-KNF
MEMORANDUMOF LAWIN SUPPORT OF PLAINTIFFS MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROMTHOMAS KAPLAN,
ANDREWSHAPIRO, AND TIGRIS FINANCIAL GROUP
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I. INTRODUCTION
Plaintiffs Victor Restis and Enterprises Shipping and Trading S.A. (collectively,
Plaintiffs), pursuant to Federal Rule of Civil Procedure 45 and this Courts Order of August 4,
2014 (Dkt. 215), submit this Memorandum in Support of their Motion to Compel Production of
Documents Responsive to Plaintiffs Subpoena Duces Tecum served on third parties Thomas
Kaplan, Andrew Shapiro, and Tigris Financial Group (collectively, the Tigris Third Parties).
These third parties who are represented by the same attorneys representing the Defendants
have refused to produce any documents in response to the subpoenas and refused to provide any
evidence that they even searched for any documents, amid clear evidence that they did not. As a
result, Plaintiffs respectfully move the Court to (a) compel production of all responsive
documents; and (b) award Plaintiffs appropriate fees and costs related to this motion.
II. LEGAL STANDARD
Parties may issue subpoenas for relevant information from third parties to an action under
Federal Rule of Civil Procedure 45. Subpoenas issued under Rule 45 are subject to Rule
26(b)(1)s overriding relevance requirement, which provides that [p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any partys claim or defense. Koch v.
Greenberg, No. 07-civ-9600, 2009 WL 2143634, at *2 (S.D.N.Y. July 14, 2009). If a non-party
wishes to assert a privilege in responding to a subpoena, Rule 45(d)(2)(A) requires that it do so
expressly and describe the nature of the withheld documents . . . in a manner that . . . will
enable the parties to assess the claim. Fleisher v. Phoenix Life Ins. Co., No. 11-cv-8405, 2013
WL 42374, at *2 (S.D.N.Y. Jan. 3, 2013).
Federal Rule 37(a)(2) permits a party to move for an order compelling disclosure or
discovery from a non-party to an action. Rule 45(g) also permits the enforcing court to hold a
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non-party in contempt for failure to obey the subpoena without adequate excuse. Of course, non-
parties cannot be forced to produce documents that do not exist, but the court need not rely on a
non-partys assertion that such documents do not exist. See Zervos v. S.S. Sam Houston, 79
F.R.D. 593, 595 (S.D.N.Y. 1978) (ordering party to produce documents who claimed that he did
not possess such documents); Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n.7
(S.D.N.Y. 1992) (granting motion to compel, in part, when party ma[d]e an adequate showing
to overcome this assertion that the non-moving party did not have documents in its possession).
III. ARGUMENT
A. The Tigris Third Parties and UANI
As recent news articles have detailed (attached as exhibits), the Tigris Third Parties are
individuals or entities that are deeply entwined with Defendants in this case. They appear to be
among the primary benefactors of Defendants and, therefore, are enabling Defendants
defamation campaign against Plaintiff, as well as this litigation.
1
In addition, reports indicate
that Kaplans business interests may also be aligned with Defendants stated mission of ending
the economic and financial support of the Iranian regime by corporations, firms, entities and
individuals (see Declaration of Serine Consolino Exhibit 1 (Ex. 1)) such that he stands to
profit from UANIs name and shame campaigns. See Ex. 2. A recent news article about
Kaplan pointed out that the companies he owns, for example, Tigris Financial Group (whose
1
UANI reported that it raised only $1,789,548 in contributions in 2012 for their entire
operations, based on fund-raising expenses of only $26,131. Ex. 15 at 1. Plaintiffs have
asked in discovery for information as to who is funding the defamation campaign and
resulting litigation against them. Defendants have refused to provide that information.
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CEO is Defendant Mark Wallace), actually gain financially by uncertainty in the Middle East.
See id. (highlighting that a 2011 prospectus issued by a silver mining company owned by Tigris
stated that [in]vestment demand for silver exposure remains strong . . . driven in part by . . .
unrest in the Middle East.). As a result, UANIs hard-line campaigns against Iran contribute to
the very uncertainty that, in turn, benefits Kaplan, Tigris Financial Group, Wallace, and other
Kaplan-controlled companies in which Wallace is involved.
Thomas Kaplan is a billionaire investor who made his fortune by investing in gold and
other natural resources. Ex. 3. He got his start with help from the family of Leon Recanati, a
Greek-Israeli entrepreneur whose family owns and still operates Overseas Shipholding Group
(OSG), a rival shipping company to Enterprises Shipping and Trading. See Exs. 4, 5. OSG
operates oil tankers that compete directly with Mr. Restis tanker company, Golden Energy
Maritime Corp., whose initial public offering had to be abandoned in 2013 when Defendants
launched their defamation campaign that is at the heart of this litigation. See Am. Compl. 97.
OSG would stand to profit if Mr. Restis and his companies were no longer able to operate.
Kaplan married Leon Recanatis daughter Dafna Recanati and was introduced to Israeli investor
Avi Tiomkin, by Dafna Recanatis mother. See Ex. 6. Kaplan and Tiomkin became partners and
worked together until Kaplan decided to focus on other interests, including major bets in silver
and gold. Id.
Kaplan and his company Tigris Financial Group have extensive ties with UANI, although
they have to date refused to produce a single document in response to subpoenas issued by
Plaintiffs. Kaplan is believed to be a significant donor to UANI either directly or indirectly, but
both UANI and Kaplan have refused to disclose this information, and this is currently being
litigated. While he is not listed anywhere on UANIs public disclosures or on the groups
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website, Kaplan has identified himself with, and acknowledged being a part of, UANI. In his
acceptance speech for an award in April 2014, Kaplan stated that as much as United Against
Nuclear Iran may not have had Tomahawk missiles and aircraft carriers at its disposal, weve
done more to bring Iran to heel than any other private sector initiative and most public ones.
Ex. 2 (emphasis added).
There is also clear evidence that Kaplan supports UANI financially, if not directly, by
employing a number of UANIs employees. By providing salaries or other benefits to UANIs
officials or employees, Kaplan offsets expenses that UANI otherwise would have to pay. First
and foremost, Defendant Mark Wallace, founder and CEO of UANI, serves as an officer and/or
director of at least six of Kaplans companies (Tigris Financial Group, Silver Opportunity
Partners, Niocan, Inc., Nio-Metals, Cougar Gold LLC, and Electrum Group). Wallace has not
drawn a salary from UANI since 2009, so Wallace appears to be getting this financial benefit
indirectly through UANI supporter Kaplan. Id.
Additionally, Steven S. Drachman worked as the chief compliance officer of Electrum
from January 2012 to March 2013. Since April 2013, he has also served as a senior consultant
to UANI. Id. Kaplan also employed another UANI employee, Lara Pham, who served as a
Mining and Metals Analyst at Electrum Group between 2009 and 2013, while also serving as the
Director of Operations at UANI. Id. Eugene Kim was a summer intern at UANI from June to
July 2009, and went on to work as an associate at Electrum from July 2011 to July 2014. Id.
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Jonathan Powell, an Advisory Board member of UANI and The Institute for Strategic Dialogue
2
,
was a college classmate of Kaplans and serves as a Senior Advisor to Tigris Financial Group.
See Ex. 7. In total, these arrangements provided UANI and its people the means by which to
defray the costs UANI would have on its own. Defendants have to date refused to disclose
whether the Tigris Third Parties also contribute money directly to UANI to fund its campaigns
and/or this litigation.
In addition, other connections between Kaplan and UANI indicate that Kaplan provides
financial and other support to UANI and its activities and campaigns, such as the one targeting
Plaintiffs. As one example, Kaplan is a member of and donor to the International Council of
Harvard Universitys Belfer Center for Science and International Affairs. See Ex. 8. The
Recanati-Kaplan Foundation (Kaplans and his wifes family foundation) contributed $149,000
to the Belfer Center in 2012. See Ex. 9 In 2013, the Belfer Center appointed a new executive
director, Gary Samore, who had just finished serving as an anti-proliferation advisor to the
Obama administration. See Ex. 10. Shortly thereafter, Samore became UANIs President. See
Ex. 11. Additionally, ISD funds an ongoing series of visiting professorships at Oxford and
Cambridge. See Ex. 12. In 2014, the Recanati-Kaplan Foundation provided ISD with the funds
for its Visiting Professorship in Intelligence Studies at Oxford.
Other indirect connections exist between Kaplan and UANI that assist UANI financially.
UANI operates rent free out of offices in 45 Rockefeller Center, New York in office space
2
The Institute for Strategic Dialogue (ISD) is a London-based think tank that UANI has
partnered with. The two groups share a common Advisory Board and are sometimes known
as UANI-ISD. See Ex. 7.
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donated by Continental Properties. See Ex. 13 at 9. Continental Properties managing director is
Mark Fisch. See Ex. 14. Fisch and Kaplan jointly fund the Kaplan-Fisch Fellowship at the NYU
Institute for Fine Arts. Id. Furthermore, Continental Properties employee Kim Hillman is also a
director of UANI. See Ex. 15 at 7.
As it turns out, Kaplan and UANI also share legal counsel in Brian Stack of Stack
Fernandez Anderson & Harris P.A. (where UANI head and Defendant Mark Wallace worked for
five years). Stack and his firm have and may still represent Thomas Kaplan and his family trusts
in litigation and other matters. See Consolino Decl. 18. Kaplans relationships with and other
indirect support of UANI raises the question of whether Kaplan with his familys interests as
competitors of Plaintiffs is directly or indirectly paying part or all of the litigation costs of this
case.
B. Tigris Third Parties have Thwarted Plaintiffs Attempts at Conducting Discovery
On March 28, 2014, Plaintiffs served each of the Tigris Third Parties with subpoenas
seeking seven categories of documents, including all communications relating to Plaintiffs,
documents relating to Defendants defamatory publications, and documents relating to financial
or other support given to Defendants. See Ex. 16. On April 14, 2014, Defendants counsel Brian
Stack (also a UANI Board Member and Kaplans counsel in other matters) served Responses and
Objections to the Subpoenas on behalf of the Tigris Third Parties, asserting boilerplate objections
on the basis of, among other things, privilege, overbreadth and burden. See Ex. 17. The Tigris
Third Parties then provided a single response for all categories of documents requested: Non-
Party has no responsive documents within Non-Partys personal possession, custody and
control. Id.
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Plaintiffs knew that this was not true. On May 16, 2014, counsel for Plaintiffs wrote to
Mr. Stack challenging the Tigris Third Parties responses that they had no responsive documents
by pointing to an email chain produced by Defendant UANI itself that indicated that there ought
to be responsive documents in the Tigris Third Parties possession. See Ex. 18. This email chain
was authored by the Tigris Third Parties and related directly to Plaintiffs. See Ex. 19 (filed under
seal). According to Plaintiffs letter, the Tigris Third Parties failure to produce these documents
suggests, at a minimum, that the search conducted by your clients was inadequate and that if a
thorough search had been conducted, other responsive documents would have been discovered.
Ex. 18. Mr. Stack briefly responded on May 22, stating that he would not be able to respond
substantively to Plaintiffs requests until after June 6, 2014, a delay of more than two weeks. Ex.
20. However, Mr. Stack never responded in any way to Plaintiffs requests. On June 20, 2014
counsel for Plaintiffs sent Mr. Stack a letter again requesting that he explain his clients failure to
produce clearly responsive documents. Ex. 21. On June 23, 2014, Mr. Stack responded that I
asked the non-parties to check again if they were in possession of any responsive documents.
They have not located any additional responsive documents as of this date. Ex. 22. As for the
email chain authored by the Tigris Third Parties that Plaintiffs pointed out, Mr. Stack claimed
that it appears to be non-responsive despite the fact that clearly pertained to Plaintiffs and
directly responded to the Subpoena requests. This assertion then undercuts the response that
there are no responsive documents.
On June 24, 2014 counsel for Plaintiffs wrote Mr. Stack requesting specific information
as to how the Tigris Third Parties conducted their search for responsive documents, which again
appeared to be inadequate. See Ex. 23. As Plaintiffs pointed out in their letter, if the Tigris
Third Parties had simply searched for the word Restis, this email chain and at least two other
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iterations of it would have been found. Because they failed to produce any documents, it again
appeared that the Tigris Third Parties had failed to conduct any search at all. As a result, the
June 24 letter asked for additional information regarding which email accounts and databases
were searched, what keywords were used in these searches, and whether any documents were
being withheld under a claim of privilege. None of these questions would pose an undue burden
on the Tigris Third Parties, since this information on the searches themselves is easily within the
possession of counsel. Moreover, these are reasonable questions in light of the fact that counsel
for Plaintiffs provided Mr. Stack with an illustrative sample of a responsive document that
should have been produced, but was not.
On June 27, 2014 Mr. Stack replied, but refused to answer any questions as to the scope
and methods of the Tigris Third Parties searches, stating that the existence of a single
potentially responsive email was not sufficient to accuse the Tigris Third Parties of failing to
meet their obligations under Rule 45. See Ex. 24. Instead of answering Plaintiffs questions,
Mr. Stack threatened to move for sanctions under Rule 45 if Plaintiffs challenged his failure to
produce. Id. While Defendants use the tactic of intimidation in their name and shame
campaigns, their counsel ought to know better and not rely on bluster and threats to avoid the
simple fact that he was presented with a responsive document, refused to produce even that same
responsive document, and is once again frustrating the discovery process with his tactics.
Moreover, the media reports that now reveal various financial and other connections
between UANI and Kaplan and the Tigris Third Parties also undercut the assertion that no
responsive documents exist between the entities.
It has now been almost three months since the Tigris Third Parties were served with the
Subpoenas, but they have not produced a single document. Indeed, from their failure to produce
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an e-mail which we identified for them, it appears that they have performed no search
whatsoever for responsive documents, but have simply insisted that they have no responsive
documents. Counsel for the Tigris Third Parties (also Defendants counsel) has consistently
sought to delay production of documents and has repeatedly refused to substantively respond to
Plaintiffs requests. Accordingly, Plaintiffs move to compel the Tigris Third Parties to produce
documents in response to the Tigris Third Parties Subpoenas duces tecum.
IV. CONCLUSION
Based on the foregoing, the Court should grant Plaintiffs motion to compel the
production of documents by third parties Thomas Kaplan, Andrew Shapiro, and Tigris Financial
Group and award Plaintiffs reasonable fees and costs.
Dated: August 13, 2014 Respectfully submitted,
CHADBOURNE & PARKE LLP
Benjamin D. Bleiberg
Serine Consolino
30 Rockefeller Plaza
New York, NY 10112
(212) 408-5100
bbleiberg@chadbourne.com
sconsolino@chadbourne.com
Counsel for Plaintiffs Victor Restis and
Enterprises Shipping and Trading S.A.
By: /s/ Abbe David Lowell
Abbe David Lowell
Michael Bhargava
Jeremy Siegel
1200 New Hampshire Avenue, N.W.
Washington, DC 20036
(202) 974-5600
adlowell@chadbourne.com
mbhargava@chadbourne.com
jsiegel@chadbourne.com
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