Case 2:09-cv-00104-LDG-GWF Document 54 Filed 01/31/11 Page 1 of 13

1 Robert H. Bretz, Esq.

California Bar No. 55087
2 578 Washington Blvd. #843
Marina del Rey, California 90292
3 (310) 578-1945
Attorney for Defendant
4

5 IN THE UNITIED STATES DISTRICT COURT

6 FOR THE DISTRICT OF NEVADA
7 * * *
8
SECURITIES AND EXCHANGE ) Case No.: 2:09-cv-00104-LDG-GWF
9 )
COMMISSION,
) DEFENDANT GLISSON’S OPPOSITION
10 ) TO PLAINTIFF’S RENEWED MOTION
Plaintiff, ) TO FURTHER EXTEND ADDITIONAL
11 ) DISCOVERY PERIOD OR TO CLARIFY;
vs. ) DECLARATION OF COUNSEL,
12 ) ROBERT H. BRETZ
MARCO GLISSON, )
13 ) Date of Hearing: No Hearing Date Set
Defendant ) Time of Hearing:
14 )
15
MARCO GLISSON, through his attorney of record, responds and objects to Plaintiff
16
Securities and Exchange Commission’s (“SEC”) Emergency Motion to Extend Or Clarify The
17
Discovery Cut-Off dated and filed January 24, 2011 (the “Motion”), as follows:
18
On January 13, 2011, the Court denied the Plaintiff’s motion to extend the additional
19
discovery period previously permitted by the Court pertaining to Marco Glisson’s activities in
20
2010. (The Plaintiff’s prior motion referred to the January 26th discovery cut-off date, and did
21
not indicate any confusion as to what that meant or otherwise ask for any clarification as to what
22
that meant or otherwise indicate a need to extend discovery for the purpose now indicated). The
23
Court’s prior minute order dated October 29, 2010, permitting additional discovery, indicated
24
that the extended discovery cut-off date was January 26, 2011 (“Discovery due by 1/26/2011”).
25
The basis for the SEC’s present Motion, known at the time of the prior motion, is said to
26
be that, although they have been “diligent” in pursuing the discovery they now seek pursuant to
27
subpoena, they need additional time to complete such discovery which has been scheduled by
28
them to take place after the operative January 26, 2011 discovery cut-off date (and that they are

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1 confused by the meaning of the Court’s language that discovery was due by January 26, 2011).
2 If the Plaintiff was truly confused, and was diligent, why wasn’t this issue raised shortly
3 after the issuance of the Court’s October 29, 2010 Order; or, at the latest, at the time when
4 Plaintiff recently asked the Court to further extend the discovery cut-off date? If the Plaintiff
5 was truly diligent, it would have propound written interrogatories to Defendant Glisson shortly
6 after October 29, 2010 asking him to identify bank accounts for him and his wife which were in
7 existence in 2010. Similarly, the Plaintiff’s request for production of documents in advance of
8 and attendant to the depositions was overly broad so as to be almost unintelligible and did not
9 specifically ask for the production of any bank document/information. (The subpoena to Mrs.
10 Glisson was not limited to the scope/time period required by the Court’s October 29, 2010 Order
11 [Glisson’s activities in 2010] as was, therefore, defective on its face). In fact, in reporting what
12 documents the Plaintiff was still looking for, after the production of documents by the deponents
13 in advance of their depositions, the Plaintiff did not reference any bank documents/information.
14 See Bretz Declaration at para.’s 16-17. It is submitted that the Plaintiff was far from “diligent”
15 in seeking the information which is the subject of the out-of-time subpoenas covered by the
16 Plaintiff’s Motion
17 The Plaintiff does not really explain in its Motion why it did not issue the subject
18 financial institution subpoenas right after the witnesses testified on January 10/11, 2011,
19 returnable prior to the January 26th discovery cut-off date. Instead, the Plaintiff waited until two
20 days before the discovery cut-off date before issuing the subject subpoenas and is now indicating
21 they were confused and uncertain as to whether or not the Court intended that the additional
22 discovery be completed by January 26, 2011, which would normally be understood to be the
23 case. (See the Declaration of Robert Bretz, Esq. indicating that, up to the point that the Motion
24 was filed, the Plaintiff’s attorney conducting discovery appeared to be operating with the
25 understanding that any additional discovery initiated by them had to be completed by January 26,
26 2011).
27 The Plaintiff was not really diligent in pursuing the bank information they now seek to
28 obtain beyond the previously extended discovery period. The Plaintiff is not really confused or

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1 uncertain about the need to complete discovery before the extended discovery cut-off date. By
2 its Motion, the Plaintiff seeks to circumvent the requirements of the Court’s October 29th Order
3 (just as they did when they took the Defendants and his wife’s testimony on January 10/11, 2011,
4 and asked more than a hundred questions which were outside the parameters of the permitted
5 extended discovery which was expressly limited by the Court to Glisson’s activities in 2010).
6 The Court should deny the Motion indicating that the Plaintiff was required to complete
7 the additional discovery the Court permitted them on or before January 26, 2011, and; as was the
8 case when the Court previously denied the Plaintiff’s motion to further extend the discovery cut-
9 off date, there has been an insufficient showing of good cause in this case as to why the Court
10 should again extend the cut-off date for additional discovery by the Plaintiff.
11
I. THE PLAINTIFF’S MOTION IS MOOT BECAUSE THE SUBJECT SUBPOENAS
12
ARE DEFECTIVE BECAUSE THE PLAINTIFF ISSUED THE SUBJECT
13 SUBPOENAS WITHOUT PROVIDING GLISSON WITH THE NOTICE
REQUIRED UNDER FRCP RULE 45
14

15 Plaintiff did not provide Glisson with the notice required under FRCP Rule 45 (notice of
16 the subpoena requiring production of documents must be served on each party before it is
17 served). Although not mentioned in the Motion, the Plaintiff has acknowledged this deficiency
18 to Glisson’s attorney (and the Plaintiff then proceeded to prepare and attempted to late serve
19 Glisson’s attorney with the required notices on January 27, 2011 after the additional discovery
20 period and after service on the third parties being subpoenaed). See Bretz Declaration at
21 paragraph 2-4 & 19, including Exhibit D thereto. The subject subpoenas are, therefore,
22 defective; rendering the Motion moot.
23 The Motion does not provide the Court with copies of the subject subpoenas including
24 the FRCP notices to Glisson and/or confirm that the subpoenas were properly issued in
25 accordance with the requirements of FRCP Rule 45.
26 . . .
27 . . .
28 . . .

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1 II. THE ONLY JUSTIFICATION OFFERED BY THE PLAINTIFF AS TO WHY THE

2
JANUARY 26, 2011 DISCOVERY DEADLINE SET BY THE COURT SHOULD
NOT BE FOLLOWED, IS THE FACT THAT THE DEPOSITIONS OF THE
3 DEFENDANT AND HIS WIFE, ORIGINALLY SET FOR DECEMBER 10/11,
2010, WERE CONTINUED FOR THIRTY DAYS TO JANUARY 10/11, 2010
4
PURSUANT TO WRITTEN MUTUAL AGREEMENT OF THE PARTIES AS A
5 RESULT OF EMERGENCY SURGERY WHICH GLISSON’S WIFE WAS
FORCED TO UNDERGO ON DECEMBER 8, 2010
6

7 In its Memorandum, Plaintiff seeks to justify to the Court the need for more time to
8 complete discovery because the planned depositions of the Defendant and his wife “were
9 delayed by a month due [to] the failure of both individuals to discharge their discovery
10 obligations in a timely fashion”. Motion, page 3/lines 13-16.
11 As previously confirmed in Plaintiff’s prior motion to extend discovery, and in the
12 accompanying Bretz Declaration, the subject depositions were continued to January 10/11, 2011
13 in Los Angeles, by written mutual agreement of the parties, because Mrs. Glisson (Thidart
14 Tungswongsathong) was forced to undergo emergency surgery on December 8, 2010 (two days
15 before her scheduled deposition) which required hospitalization for a couple of days following
16 the surgery and bed rest and recuperation at home for a week after her release from the hospital.
17 See the hospital admittance and discharge documents/exhibits submitted by Plaintiff in support
18 of its prior motion to extend the discovery cut-off date, and the accompanying Bretz Declaration.
19 The Plaintiff’s “failure to discharge their discovery obligations in a timely fashion”
20 argument is a “red herring”. The continuation of the depositions were necessary and was agreed
21 to by the Plaintiff. Nowhere does the Plaintiff explain why it could not/did not propound written
22 discovery to Glisson, at any time during the additional 90-day discovery period previously
23 granted Plaintiff by the Court (on October 29, 2010) requiring him to identify his and his wife’s
24 bank accounts that were open during 2010 (which, presumably, is within the Court’s Glisson
25 activities during 2010 limitation applicable to such additional discovery).
26 The Plaintiff was not diligent in its efforts to obtain the discovery it now seeks outside the
27 extended discovery period; and Defendant Glisson was not the cause of such lack of diligence by
28 Plaintiff.

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1 III. THE RELEVANCY OF THE DISCOVERY SOUGHT BY THE PLAINTIFF’S

2
DEFECTIVE SUBPOENAS HAS NOT BEEN ESTABLISHED BY THE
PLAINTIFF’S MOTION
3

4 Glisson’s sales of CMKM stock during the 2010 time period is not covered by the
5
Plaintiff’s complaint in this case. The Plaintiff has indicated in the parties’ Joint Interim Report
6
Pursuant To Local Rule 26-3 dated January 26, 2011 that it may seek to amend the Complaint to
7
cover such activity and time period, but no such motion has been made. See Joint Report at page
8

9 1/lines 8-9 (“Based on the facts learned during the reopened discovery concerning Glisson’s

10 activities in the securities of CMKM during 2010, the Commission is considering a motion for
11
leave to amend the pleadings”). The subject subpoenas to the Defendant’s banks cover financial
12
transactions in 2010. The Plaintiff says in the Motion at page 2/lines 12-14 and in the
13
Declaration in support of its Motion at paragraph 4 lines 22-24 of the Memorandum that, “Upon
14

15 information and belief, these [bank] accounts contain proceeds realized in connection with 2010

16 sales of unregistered shares of CMKM securities, and thus directly relate to the Commissions’
17
claims”. (It is assumed that the “claims” being referred to are the supplemental claims to be
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covered by the possible amendment to the Complaint the Plaintiff is considering). But, nowhere
19

20
in the Motion including the Declaration does the Plaintiff explain what information and belief

21 they actually have that is being referred to in the Declaration that makes the bank account
22 information they are seeking relevant to their case.
23
Notably, the legal basis for the pre-2010 claims made by the Plaintiff in its Complaint
24
supporting the allegation that the shares of CMKM stock had to be registered before Glisson
25

26 could sell them was that the normal “investor” exemption from such registration requirement is

27 not available to Glisson because his activity qualified him as a securities “dealer” because
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Glisson was both buying and selling shares of CMKM stock in the same time period which was

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1 equivalent to “making a market” in CMKM securities (an activity engaged in by securities

2
“dealers” in the normal course of their business). The reason that this 2010 time period is not
3
relevant to the Commissions’ case against Glisson is that he did not purchase any CMKM stock
4

5 in 2010. See the Plaintiff’s Motion For Summary Judgment dated October 9, 2009 (which was

6 denied by the Court on September 24, 2010) at page 14 of the Memorandum ("Glisson engaged
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in the business of buying and selling deregistered CMKM stock, and thus acted as and
8
constituted a "dealer" in accordance with the definition set forth in Section 3(a)(5) of the
9
Exchange Act); and the accompanying Bretz Declaration at paragraph 13 (“At his deposition on
10

11 January 11, 2011, during the additional discovery period permitted by this Court, Glisson

12 testified that he had not purchased any CMKM stock in 2010”).

13
The Plaintiff is really on an out-of-time “fishing expedition” pertaining to the subject
14
bank account records which, no matter what they hope to “catch” cannot help them with their
15
case.
16

17 IV. THE COURT DENIED THE PLAINTIFF’S PRIOR MOTION AND SHOULD
LIKEWISE DENY THEIR LATEST MOTION AND STICK TO THE
18 PREVIOUSLY EXTENDED COMPLETION OF DISCOVERY DATE
19
OF JANUARY 26, 2011

20 Having previously granted the Plaintiff one extension of the discovery cut-off date, the
21 Court should not further extend the operative additional discovery date including because there
22 needs to be some finality to discovery in this case. The Defendant should not be faced with the
23 reopening of discovery every time the SEC decides to “second guess” themselves as to what
24 discovery they want to obtain in support of their case, including after and because the Court
25 denied their motion for summary judgment and they are now (after the close of discovery) trying
26 to bolster their case. Normal discovery ended in 2009. It is now 2011; and there is no end in
27 sight as far as the Plaintiff is concerned.
28 In an effort to give the Court some comfort that this is the last time the Plaintiff will ask
for an extension of the discovery period, the SEC says at page 4/line2-3 that, “The Commission

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1 will not propound any additional discovery, considers its non-expert discovery efforts complete
2 and seeks the limited [approximately one month further] extension of the discovery cut-off for
3 the sole purpose of ensuring that the documents subpoenaed on January 24, 2011 are able to be
4 received in conformity with the Court’s October 29, 2010 discovery order.
5 First, the issuance of the six [defective] subpoenas on January 24th was not in conformity
6 with the Court’s Order - - it was an effort to circumvent the Court’s Order to suit the Plaintiff’s
7 own purposes.
8 Second, the Plaintiff’s statement that they consider their non-expert discovery efforts
9 complete needs to be carefully considered in light of the fact that, as far as Glisson can
10 remember, the Plaintiff never designated any expert(s) to testify in support of their case. Having
11 given the Plaintiff an inch, the Plaintiff has and will apparently continue to try to stretch that inch
12 into a mile. Discovery that was not completed by the Plaintiff by January 26, 2011 should not be
13 permitted.
14 As the Court is probably now aware, the Plaintiff filed a motion on January 27, 2011
15 seeking to continue the preparation and filing of the parties’ joint pre-trial order in this case by
16 approximately five (5) months based upon the argument that they needed extra time to review
17 the bank account information that they are trying to obtain pursuant to the subpoenas they issued
18 to be returnable beyond the existing discovery cut-off date designated by the Court just in case
19 they decide sometime in the future to seek to amend the Complaint to cover Glisson’s 2010
20 activity. Will this “daisy chain” of requests for special consideration by the Plaintiff ever end?
21 The Court denied the Plaintiff’s motion for summary judgment. The Court denied the Plaintiff’s
22 prior motion to further extend the discovery period in this case beyond January 26, 2011. Glisson
23 would like to go to trial as soon as possible.
24 Toward that objective, Glisson respectfully requests that the Court deny the Plaintiff’s
25 pending Motion (which will obviate the need for the Plaintiff’s requested lengthy extension of
26 the filing of the parties’ joint pre-trial order [and trial setting in this case] which the Plaintiff is
27 also seeking (to “boot strap” via the pending Motion if the Court’s decides to further extend the
28 discovery period in this case to February 21, 2011 as requested by Plaintiff).

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1 V. CONCLUSION
2 The subject subpoenas are defective (Plaintiff’s failure to comply with FRCP 45’s prior
3 notice to parties), rendering the instant Motion moot. The Plaintiff knew and proceeded on the
4 assumption that the Court’s October 29, 2010 Order required them to complete their additional
5 discovery by January 26, 2011. The Plaintiff was not diligent in pursuing bank account
6 identification information from the Glissons, including because they never sent Glisson any
7 interrogatories (or requests for production of documents) asking him to identify the 2010 bank
8 accounts which are the subject of this Motion, and they waited almost two weeks after the
9 depositions were concluded to issue the subject subpoenas. The subject Motion is the predicate
10 for the Plaintiff seeking to delay the trial of this case including the submission of the parties’
11 joint pre-trial order; and, if successful with this Motion, the Plaintiff will likely seek further
12 discovery and related accommodations from the Court. For the reasons set forth herein and
13 elsewhere in this Opposition, Glisson asks that the Court deny the Motion so that discovery can
14 finally end.
15 DATED this 31st day of January, 2012.
16
Respectfully submitted,
17
_
18 /s/:Robert H. Bretz, Esq.
19
Robert H. Bretz, Esq.
California Bar No. 55087
20 578 Washington Blvd. #843
Marina del Rey, California 90292
21
(310) 578-1945
22 Attorney for Defendant

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1 DECLARATION OF ROBERT BRETZ, ESQ.

2
I, ROBERT H. BRETZ, ESQ., hereby declare, as follows:
3

4 1. I am attorney of record for Marco Glisson and I am otherwise competent to provide

5 the within testimony based on my own personal knowledge.

6
2. When I first received and read the SEC’s Motion (to further extend the additional
7
discovery period in this case to accommodate the issuance of six more subpoenas) on January 26,
8
2011, I communicated with the Plaintiff and noted that I had not received any FRCP Rule 45
9

10 notice(s) covering the issuance of the subpoenas.

11 3. The Plaintiff’s attorney, Paris Wynn, Esq., told me that the financial institutions to
12
whom the subpoenas were directed had already acknowledged service of the subpoenas, and that
13
he believed that notices had been timely sent to me, and that he would check and get back to me.
14

15
4. The next day, January 27, 2011, I received via e-mail copies of Rule 45 notices

16 covering the subject subpoenas dated January 27, 2011 (no service by mail copies of the January
17 27th notices have been received by me, and such method of service is not indicated on the proof
18
of service forms dated January 27, 2011 accompanying the notices). See Exhibit D hereto.
19
5. Prior to receiving the Motion including the Plaintiff’s request for clarification, based
20

21 on my involvement including discussions with the Plaintiff’s attorney pertaining to the Court’s

22 Order dated October 29, 2010, I understood that the Plaintiff’s attorney believed that the Plaintiff
23
was required to complete all additional discovery permitted by the Order on or prior to January
24
26, 2010.
25
6. This specific issue came up when Plaintiff’s attorney was talking to me about
26

27 scheduling the depositions of the Glissons for January 2011 and he noted that any follow-up

28 discovery would need to be completed (not initiated) by January 26, 2011, which didn’t leave

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1 him with much time.

2
7. Nevertheless, Plaintiff’s attorney thereafter confirmed to me in writing that the
3
Plaintiff was agreeable to scheduling the Glissons’ testimony to take place in Los Angeles on
4

5 January 10 and 11, 2011.

6 8. Attached hereto as Exhibit A is a true and correct copy of such communications with
7
the Plaintiff dated 12-21-10 and 12-27-10 (Bretz: “Will you please confirm back to me that (1)
8
the subject depositions are now scheduled, by agreement, to take place in Los Angeles, in your
9
office beginning at 9:00 A.M. on January 10, 2011” and Wynn/SEC: “I have you down for
10

11 January 2011 [sic 2011] and January 11, 2010 [sic 2011])”.

12 9. Since we had addressed this issue previously, when Plaintiff’s attorney alerted me to
13
the fact that the Plaintiff was filing the instant Motion, he said that “[The subpoenas] call for the
14
production of documents by February 14, 2011, which is arguably outside the January 26, 2011
15
discovery cut-off date” (rather than indicating that there was any actual confusion on his part
16

17 about the need to complete discovery by January 26, 2011).

18 10. Attached hereto as Exhibit B is a true and correct copy of Plaintiff’s attorney’s e-mail
19
communication to me dated January 24, 2011.
20
11. The Plaintiff’s case against Marco Glisson is based on the theory that Glisson was
21

22
acting as a “dealer” in the sale and purchase of CMKM securities, and therefore his sales of

23 CMKM stock had to be registered under Section 5 of the Securities Act of 1933 since the normal
24
exemption permitting a private investor to offer and sell securities (Section 4 of the Act) did not
25
apply (because Glisson should be regarded as acting as a securities “dealer”).
26
12. The Plaintiff argues that the frequent purchase and sale of a substantial volume of
27

28 CMKM securities by Glisson from the December 2005 through April 2007 time period should be

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1 regarded as being the same as the “market maker” function performed by many securities
2
"dealers” resulting in Glisson being regarded as a “dealer” of securities who was required to
3
register sales of his CMKM stock before selling.
4

5 13. At his deposition on January 11, 2011, during the additional discovery period

6 permitted by this Court, Glisson testified that he had not purchased any CMKM stock in 2010.
7
14. The Plaintiff has not charged Glisson with any false or misleading statements and/or
8
activities in connection with his trading in CMKM stock – just the registration violation.
9
15. The Plaintiff never served Glisson with any interrogatory asking him to identify
10

11 bank accounts that were open during 2010. Likewise, the Plaintiff’s Request For Production to

12 Glisson dated November 4, 2010, and the subpoena duces tecum to Mrs. Glisson dated
13
November, 2010, did not specifically ask the deponents to produce any bank account
14
documents/information.
15
16. In connection with the production of documents to the Plaintiff on December 27,
16

17 2010, I wrote Plaintiff’s attorney indicating, “If there are any other categories of documents

18 called for by the deposition notice to produce to Marco Glisson pursuant to the SEC’s deposition
19
notice, which you do not find enclosed, please let me know at your earliest convenience so I can
20
go back to Mr. Glisson and inquire before the scheduled deposition on January 10, 2010 [sic
21

22
2011]”); and Plaintiff’s attorney’s responsive communication to me dated January 28, 2011

23 indicated that the “production seems woefully inadequate” because it did not include “a single
24
email” as called for by “Requests Nos. 1-3”) - - which e-mails were subsequently produced by
25
Glisson and his wife.
26
17. Looking at the requests to produce, and as evaluated by the Plaintiff’s attorney
27

28 following production by the deponents, there is no discernable request for bank account

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1 information/documents.
2
18. Attached as Exhibit C, for example, is a true and correct copy of Plaintiff’s Request
3
For Production Of Documents to Glisson dated November 4, 2010, which does not specifically,
4

5 or in any discernable manner, reference production of bank account documents.

6 19. Attached hereto as Exhibit D are true and correct copies of certain relevant pages of
7
the Plaintiff’s [defective] FRCP 45 notices to me confirming that such deficient notices were not
8
sent until January 27, 2011 via e-mail.
9
This Declaration is made and given under penalty of perjury under the laws of the
10

11 United States. This Declaration is executed in Los Angeles County, California, on January 31,

12 2011.
13
DATED this 31st day of January, 2011.
14
/s/: ROBERT H. BRETZ, ESQ.
15 ROBERT H. BRETZ, ESQ.
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1 CERTIFICATE OF SERVICE
2
Pursuant to Fed. R. Civ. P. 4(B), I hereby certify service of the foregoing DEFENDANT
3
GLISSON’S OPPOSITION TO PLAINTIFF’S RENEWED MOTION TO FURTHER
4

5 EXTEND ADDITIONAL DISCOVERY PERIOD OR TO CLARIFY; DECLARATION OF

6 COUNSEL, ROBERT H. BRETZ, pursuant to Rule 12(B)(3) of The Federal Rules of Civil
7
Procedure via the Court’s Electronic EM/ECF Filing System.
8
Molly M. White, Esq.
9 Paris A. Wynn, Esq.
U.S. SECURITIES AND EXCHANGE COMMISSION
10
Los Angeles Regional Office
11 5670 Wilshire Blvd., 10th Floor
Los Angeles, CA 90036-3648
12

13
Dated this 31st day of January, 2010.
14

15
/s/: Candice R. Salerno
16
an employee of Robert H. Bretz, Esq.
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