STATE OF MAINE BUSINESS AND CONSUMER COURT CLWIBERLAND. SS. LOCATION: Portland Docket No. BC D-C V-ZOI 8-04 t/ EMILE CLAVET. Plainti? V. KEVIN DEAN and CECILE DEAN. MOTION FOR 26(c) PROTECTIVE ORDER AND INCORPORATED MEMORANDUM OF LAW Defendants and ounterclaim Plaintiff and WATER MARINA LLC and COWERED MARINA LLC. Parties-In-Interest Now come Defendant/Counterclaim Plaintiff Kevin B. Dean and Defendant Cecile Dean (collectively. the by and through their undersigned counsel. and hereby request that the Court enter a Rule 26(c) protective order barring Plaintiff/Counterclaim Defendant Emile Clavet from inquiring in discovery about certain marijuana-related issues which are irrelevant to the patties' disputes. Said inquires by Clavet advance no legitimate interests in this case. and are instead designed to annoy. embarrass and oppress the Deans. As such. the Deans respectfully request that the Court issue a protective order barring Clavet from seeking discovery as to these marijuana-related issues. In support of this Motion. the Defendants state as follows: Background As the Court knows. this case arises from a number of disputes that have arisen between lavet and Kevin Dean as a result of their decades-long business relationship. In his Complaint. BUSINESS COURT JPLI L18 PM 12 :55 I lectronically On"7- . Clavet takes issue with Kevin Dean's allegedly unfair and improper sale of the Marina Companies? (as that term is de?ned in the Complaint) non-cash assets at a higher price. to a third party, immediately after Kevin Dean purchased Clavct?s interest in the same assets for a lower. imputed value. All seven counts of Clavet?s Complaint are directed to recovering what he perceives to be the difference in valuation between what he received from Kevin Dean?s purchase of the lavet membership interests, and what he would have received had he gotten the bene?t of the deal with the third party. Notably absent from the Complaint is any discussion of any of Kevin Dean?s individual business endeavors those in which he was not in partnership with Clavet), including any marijuana-related businesses. None of these other business endeavors have any relevance to the allegations of the Complaint. Clavet also sought an attachment and attachment on trustee process as a result of his claims against the Kevin Dean (the ?Clavet Attachment Motion?). The materials Clavet submitted in support his attachment motion, including a detailed 27-paragraph af?davit by Clavet, do not make any reference to Kevin Dean?s standalone businesses, including those related to the marijuana industry. Kevin Dean ?led a counterclaim on a number of different bases, arguing that Clavet had breached his ?duciary duties to Dean and entities which they owned in common, in several instances over the course of their business relationship. As such, Kevin Dean asserted various causes of action that sound in breach of ?duciary duty, usurpation of corporate opportunities, etc. Kevin Dean cross-moved for attachment and attachment on trustee process (the ?Dean Attachment Kevin Dean?s counterclaims, the Dean Attachment Motion, and related documents (including af?davits from both Deans) are all devoid of any reference to Kevin Dean?s marijuana industry activities. They are devoid of reference to this industry because it is irrelevant to the business disputes among the parties. In his Opposition to the Dean Attachment Motion (the ?Clavet Opmsition?), Clavet raises the marijuana issue for the first time, and does so in a remarkably offensive and prejudicial way, stating baldly: ?Mr. Dean decided to become a marijuana traf?cker with Brian Bilodeau.? Clavet Opposition, p. 13. As a threshold matter, this statement is untrue, and is unsupported by any evidence whatsoever; the Clavet Opposition cites to 1] 17 of Clavet March 9, 2018 Af?davit (the lavet Opposition Af?davit?) in support of this spurious allegation. There is in 1 17 to support this wildly irresponsible and in?ammatory assertion. According to Clavet?s attorney, Kevin Dean?s alleged decision to become a ?marijuana trafficker with Brian Bilodeau? ?is connected with this case for two reasons. lavet Opposition, p. 13. First, he asserts (baselessly) that Kevin Dean needed the cash from the Marina Companies ?to fund his marijuana activities.? Id., p. 13. This is, of course. nothing more than irrelevant conjecture on Clavet?s part. Whether Kevin Dean needed the money for the marijuana business, or to give to an orphanage. is of no consequence at all to Clavet?s claim that he should have received the advantage of the third party sale. The merits of that claim, and Kevin Dean does not concede that there are any. have nothing to do with whatever use Dean might have made of the supposedly ill-gotten pro?t from the sale to the third party. Second, Clavet points out that Kevin Dean and others are the subject of an on-going federal investigation regarding Kevin Dean's marijuana industry contacts. Id. pp. 14-15. According to Clavet. that investigation is additional motive for Kevin Dean (aside from his supposed interest in frustrating any judgment Clavet may obtain against him) ?to try to hide or dispose of assets that ultimately are proceeds of the Marina Companies fraud Mr. Dean perpetrated on him." Id.l Of course, while this is further rank speculation and highly offensive, the federal government's interest in Kevin Dean's marijuana is utterly irrelevant to this case. Clavet should stick to his job; the government can handle its own duties. Following his incendiary allegations in the Clavet Opposition, local media picked up on the story and reported on it extensively. For example, on May 215', the Bangor Daily News published an article entitled ?Maine businesses have financial ties to alleged marijuana trafficker.?2 That article makes it clear that Clavet?s allegations in his pleadings were the genesis of the reporting, noting as follows: The battle [between Clavet and the Deans] reveals more than a messy business breakup. Court and property records show Dean and companies he?s managed with lavet have multiple ?nancial connections to a man the federal government charged in February with operating illegal marijuana grows as part of a marijuana traf?cking and money laundering ring . . . . Attorneys for Dean denied his involvement in any marijuana traf?cking or illegal activities, but the attorney for his longtime business partner, Clavet, alleged otherwise, writing3 in a brief to the Court that Dean ?had decided to become a marijuana tra?icker" with the man facing federal charges. (Emphasis added). Additional negative coverage followed.?1 Citing 111] 56-63 of the Clavet Opposition Affidavits, which are a section of the same entitled ?Recent Developments with Kevin?s Marijuana Business Increase the Need for Attachment." 2 lil_1p: SUIX ll (last visited July 16,2018}. 3 The on-line version of the article contains a hyperlink after the word ?writing" linking to a copy of the Clavet Opposition with the ?marijuana trafficker? allegation called out. tlntuuiunls tlnt?umtnt pl 1 .i ll: l?H (last visited July 2018). The Clavet Opposition Af?daVit is also available on-Iine courtesy of the Bangor Daily News. Q'lgixcl?Allitlm it-Re-t (last visited July I6, 2018). ?Lewiston-Aubum businessmen exchange bitter lawsuits." (last visited July 17. 20 8). ?The high-stakes ?ght between the two former Auburn residents includes charges of lies and distortions.Clavet has since propounded discovery requests on the Deans and the Marina Companies. AM of the requests for production of documents (the seek discovery of documents related to Kevin Dean?s marijuana-related activities (true and accurate copies of the RPDs are attached hereto as Exhibit A). For example. the Deans direct the Court?s attention to 111] 27-28, 30-32 and 35 of the Kevin Dean 1 1118, 20, 26-27, 29-31 and 34 of the Cecile Dean 1111 15-17 and 19 ofthe Covered Marina LLC and 1111 10-12, 14-17, and 19.5 The Deans have objected to all discovery requests to the extent they touch on marijuana issues. Clavet has also noticed the deposition of Kevin Dean?s sister for Thursday, July 26, 2018 and the Deans have every reason to believe that, absent entry of a protective order, Clavet will inquire about the irrelevant and prejudicial marijuana issues during that deposition, as well as in any others that will follow. Argument Maine Rule of Civil Procedure 26(c) states that ?[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, any justice or judge of the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or under burden or expense . . . Among the remedies available to the Court is entry of an order ?that certain matters not be inquired into, or that the scope of discovery be limited to certain matters . . . Rule 26(c) goes on to state that the remedy of a protective order ?Shall be exercised with liberality toward the allegations of drug traf?cking and claims totaling millions of dollars . . cash to fund his marijuana activities appears to have become the moti court records." . From Clavet?s lawyer: ?Mr. Dean?s need for ve for him to cheat Mr. Clavet,? according to 5 This is not intended to be an exclusive recitation ofdi Dean?s marijuana industry interests. There are other RPDs, touch on that issue as well. scovery requests that are directed at, or relate to, Kevin as well as certain lnterrogatories that could very well accomplishment of its purpose to protect parties and witnesses.? Here, entry of a protective order barring Clavet from inquiring about Kevin Dean?s marijuana business or his marijuana industry connections is absolutely necessary to protect the Deans from annoyance, embarrassment and oppression. and entry of such a protective order will have no adverse impact on Clavet and his prosecution of his case. Kevin Dean?s involvement in the marijuana business in Maine has absolutely no bearing on this case. That participation is entirely within Maine law; moreover, he and Clavet have no business in common that has anything to do with the marijuana business. The matters of which Clavet complains have no connection whatsoever with Dean?s marijuana business; the same holds true for the business ventures Kevin Dean addresses in his counterclaims. Nor does Clavet?s effort to prove that there was a breach of ?duciary duty in connection with the third?party sale transaction in question depend in any way on what Dean might have wanted to do with the proceeds of that transaction invest in a marijuana business or donate the money to an orphanage. Again, the only conceivable purpose of Clavet?s inquiry into the marijuana business is to embarrass and harass Dean. As set forth above, Clavet posits two supposed bases for inquiring into marijuana issues: it relates to Kevin Dean?s alleged motive for the purported Marina Properties fraud and it relates to his ability to satisfy a ?iture (and entirely hypothetical) judgment in Clavet?s favor. See Clavet Opposition, pp. 13-15. Neither base provides a valid reason for Clavet to use inquiries regarding Dean?s marijuana business as a means to harass the Deans and third parties. First, Kevin Dean?s ?nancial motives for the Marina Properties transaction is entirely irrelevant to this matter. Whether or not Kevin Dean defrauded Clavet and breached his ?duciary duties (he did not) and whether or not Cecile Dean either aided and abetted a breach of fiduciary duty and was the recipient of a fraudulent transfer (she did not and was not). these issues do not turn in any way on whatever needs Kevin Dean had for money. or what he intended to do with the money from the sale transaction. ?Motive" is an element of any of the causes of action Clavet is asserting against the Deans. Second. Clavet?s concern about the Deans? ability to satisfy any judgment he may eventually obtain is premature, and entirely misplaced. Clavet would have the Court believe that the federal investigation into Kevin Dean?s marijuana interests is additional impetus for Kevin Dean to hide assets. Clavet Opposition, pp. 14-15. At this stage of the case, this is an absurd preposition. Collectability issues are n_ot a pr0per basis for pre-judgement discovery; instead, those issues must be addressed when and if Clavet obtains a judgment on his causes of action. 69; 14 M.R.S.A. 3120-3136. Moreover, Clavet has already obtained an order of attachment and attachment on trustee process in the amount of approximately $3 million. This provides Clavet with the procedurally correct and lawful means of securing any judgment he may obtain. There is no place and no need for discovery concerning Kevin Dean?s alleged needs or uses of funds in his marijuana business or any of his other businesses for that matter. Of course, Clavet and his counsel know what needs to be proved in order to establish Clavet?s claims; it has nothing to do with the marijuana business. In reality, Clavet is raising marijuana issues for an entirely improper purpose: to annoy, embarrass and oppress the Deans. His objective is not to discover evidence that is relevant to the parties? disputes; instead it is to gain an tactical advantage over the Deans by investigating and airing irrelevant and wildly prejudicial allegations Dean decided to become a marijuana traf?cker with Brian Bilodeau.?) in the hope that the resulting embarrassment and prejudice will make the Deans more amenable to a resolution on Clavet?s terms. In this regard, the Deans are mindful of Maine Rule of Professional Conduct which states that lawyer shall not report or threaten to report misconduct to a criminal. administrative or disciplinary authority solely to obtain an advantage in a civil matter.? While it may be premature to suggest that that Rule has been violated at this time, Clavet?s continued allusion to Dean?s supposed criminal marijuana activities gives rise to serious concerns. There is at least an appearance that Clavet may be considering a report of the same to the authorities in order to gain advantage in this case because there is no other conceivable utility or relevance to these issues. The Court should prevent further inquiry into marijuana activities because they are irrelevant, and in order to assure that there will be no further harassment or appearance of violation of the Bar Rules. This Court should ?exercise[] with liberality? its power under Rule 26(c) and enter a protective order preventing Clavet from continuing his attempts to leverage allegedly criminal issues for civil gain. All discovery related to Dean?s marijuana business or his interest in the marijuana industry should be stopped forthwith. WHEREFORE, Dean requests that the Court enter a Protective Order: Barring Clavet from conducting any discovery directed to any party to this lawsuit or third party regarding Kevin Dean?s marijuana business or marijuana industry investments or connections (including, but not limited to Brian Bilodeau and the ongoing federal investigation); and Granting such other relief as the Court deems appropriate. Dated: July 18. 2018 2253' George J. Mar?u?. Bar No. 1273 David C. Johnson. Bar No. 9447 Attorneys for Defendants/Counterclaim Plaintiff. and Parties in Interest MARCUSICLEGG One Canal Plaza, Suite 600 Portland, ME 04101 (207) 828-8000 umurcus diohnsun r" STATE OF MAINE SUPERIOR COURT CUMBERLAND. ss. BUSINESS AND CONSUMER COURT LOCATION: PORTLAND DOCKET NO. BCD-CV-2018-04 EMILE CLAVET. EMILE FIRST REQUEST FOR DOCUMENTS PROPOUNDED KEVIN DEAN V. KEVIN DEAN. CI 3.1., NOW COMES Plaintiff/Counterclaim Defendant. Emile Clavet. by and through his undersigned counsel- and requests pursuant to M. R. P1 34 that DefendanL?Counterclaim Plaintiff. Kevin Dean produce to undersigned counsel copies of, or permit inSpection and copying of. the following documents. within 30 days: DEFINITIONS "Marina Sale" means the sale of assets by the Marina Companies to TCRG Opportunity LLC referred to in the A?idavit of Kevin Dean. ?Marina Companies" means Blue Water Marina LLC and Covered Marina LLC. or either of them. ?Texas Lawsuit" means Case No. 2017DCV-1238-B ?led in the 117"h District Court, captioned TCRG Opportunity): LL vs Kevin Dean, Cecile Dean. Debbie Dean, 6! a] "Charity Shores Subdivision" means the lots and subdivision referred to in Your Counterclaim at Paragraph 19. RE UESTS 1. All personal ?nancial statements you have furnished to any lender or prospective lender at any time since January 1, 2015. 2. All ?nancial statements including balance sheets, income statements, statements of cash flows= and general ledger on no less frequent a basis than quarterly for any entity in which you have an ownership interest. 3. All communications with any representative of TCRG Opportunity LLC or Bobby Patton relating to the Marina Companies or to any of the assets that were sold by the Marina Companies to TCRG Opportunity LLC this requeSI speci?cally includes communications before and after the sale of those assets. and it speci?cally includes communications with Keith Donley, regardless whether you considered him a representative of TCRG Opportunity LLC or of Bobby Patton. 4. All documents relating to any sale of assets by the Marina Companies to TCRG Opportunity LLC. 5. All communications received at any time between Jan 1, 2015 and Dec- 31. 2016 from any lender to the Marina Companies. 6. All communications with Charles Zahn relating to the Texas Lawsuit or the Marina Sale. 7. All communications with Shawn Bell relating to the Texas Lawsuit or the Marina Sale. 8. All communications with Cecile Dean regarding the Marina Sale, the Texas Lawsuit, or the claims and counterclaims at issue in this Litigation. 9. All communications with Emile Clavet regarding the Marina Sale or the Texas Lawsuit 10. All communications to or from Emile Clavet relating to the Charity Shores Subdivision. 1 1. All documents in your possession relating to the Charity Shores Subdivision. 12. All ?nancial plans or projections prepared by you or provided to you relating to the Charity Shores Subdivision. 13. All documents re?ecring or constituting the business plan referred to in Paragraph 9 of your Counterclairn. 14. All communications you have had with any person regarding purchase of the assets or the ownership of the Getchell Agency. 15. All communications you or anyone acting on your behalf has had with the bankruptcy trustee in the Getchell Agency bankruptcy proceeding. 16. All documents relating in any way to any invesrment in any oil or gas wells in the State of Texas made by you or by any entity in which you have an ownership or economic interest. You may exclude from this request documents that relate solely to investments by Provider Oil and Gas. or that relate solely to investments by entities in which your only ownership interest consists of publicly-traded shares acquired through a registered broker-dealer. 17. All documents relating in any development made by you or by and in which Emile Clavet has 11 way to any investment in any commercial real estate any entity in which you have an ownership or economic interest 0 ownership interest. You may exclude from this request any! documents that relate solely to investments by entities in which your only ownership interest consists of publicly-traded shares acquired through a registered broker-dealer. 18. All documents relating in any way to any investment in any residential real estate development made by you or by any entity in which you have an ownership or economic interest and in which Emile lavet has no ownership interest. You may exclude from this requeSt documents that relate solely to investments by entities in which your only ownership interest consists of publicly-traded shares acquired through a registered broker-dealer. 19. All communications with Brian Bilodeau relating to the property located at 72 Danvilie Corner Road. Auburn Maine or any development activity, marijuana growing. storage, processing. purchase or sale at that property or any other business matter relating to the prOperty at that address, including but not limited to any debt or mortgage related to that property, and any payoff or forgiveness of indebtedness related to that property. 20. All communications between you and Stephen Femald regarding any potential or actual commercial real estate transaction at any time from January 1,2008 to the present. 21. All communications with Brian Bilodeau or any person acting on behalf of Brian Bilodeau, relating to the growing, manufacture or sale of marijuana or to any investigation by law enforcement regarding any such activities. 22. All documents re?ecting or relating to the transfer of your ownership interest in Blue Water Marina LLC to Cecile Dean. 23. Documents re?ecting or constituting all trusts, inter vivos transfers, wills, bequests you have created or had created for estate planning purposes. 24. All documents re?ecting or relating to the transfer of your ownership interest in Covered Marina LLC to Cecile Dean. 25. All documents re?ecting or relating to the potential or actual transfer of your ownership interest in Blue Water Marina LLC to any other person at any time. 26. All documents re?ecting or relating to the potential or actual transfer of your ownership in interest in Covered Marina LLC to any Other person at any time. 27. All documents relating to the acquisition or disposition of any real property by Blue Water Marina LLC at any time from January 1, 2015 to the present. 28. All documents relating to the acquisition or disposition of any real property by Covered Marina LLC at any time from January 1, 2015 to the present. 29. All documents that support your calculation of damages or other monetary relief (including restitution or unjust enrichment) to which you claim you are entitled on any of the counts of your Counterclaim. 30. All communications with Brian Bilodeau. Richard (?Stitch?) Daniels, or Tyler Poland relating in any way to the growing, purchase, sale or distribution of marijuana or products derived from marijuana. including communications relating to the acquisition. distribution. use of proceeds of any transactions involving the sale or distribution of marijuana or products derived from marijuana 31. All documents relating to Operations, income, expenses, or activities at 586 Lewisron Junction Road in Auburn, Maine from January 1, 2016 to the present. 32. All documents relating to operations, income, expenses, or activities at 230 Merrow Road in Auburn. Maine from January 1, 2016 to the present. 33. Your personal tax returns, including all schedules, for tax years 2014 - 2017. 34. L'nredacted cell phone records for every cellular telephone you have used as yom' ovm phone for personal or business use, for the period January 1, 2015 through December 31. 2017. 35. All documents relating to C21 Investments Inc. (a Canadian company); to Proudest Monkey Holdings to Canby Cannery to North American Health Group, Or to New England Manufacturing Supply, LLC the documents requested include but expressly are not limited to documents relating to the transactions C21 Investments Inc. has publicly announced to acquire one or more of the foregoing entities. I Dated: June 12. 2018 Cliff'?rd H. RuprechL Bar No. 8714 ROACH HEWITT RUPRECHT SANCHEZ BISCHOFF, RC. 66 Pearl Street, Suite 200 Portland. ME 04101 (207) 747-4870 . Liu?iku?tt Attorneys for Emile Clave!