Judge Grants Globalgurutech's Motion to Compel Production of Private Investigator Docs

U.S. District Judge Susan Brnovich for Arizona in Phoenix granted Globalgurutech’s (GGT) Dec. 22 motion to compel Xfinity Mobile’s production of private investigator documents, said her Thursday order (docket 2:22-cv-01950). Xfinity Mobile’s Nov. 11, 2022, trademark infringement lawsuit alleges GGT and owner Jakob Zahara are phone traffickers selling improperly procured Xfinity Mobile (XM) cellphones. GGT’s motion to compel stems from a discovery dispute where the defendants requested that the court compel XM to produce “all communication, including emails, letters and texts” between the plaintiff and an undercover investigator it referenced in its amended complaint. Xfinity’s counsel hired Ina Xhoxhaj of Stumar Investigations to investigate GGT before it filed the complaint and plans to have her testify at trial, said the order. Xfinity included her declaration in support of its motion for expedited discovery. Xhoxhaj outlined what she believes is GGT’s “scheme of selling XM phones overseas,” including many facts XM alleges in its amended complaint, the order said. GGT requested that XM produce the communications between Stumar Investigations and XM. Xfinity declined, instead submitting one invoice from Stumar and a supplemental response claiming the rest of the requested documents were “privileged,” it said. XM also did not produce a privilege log for the request until it's “narrowly tailored in time and scope and defined in relevance,” the order said. GGT defendants seek the rest of the requested documents they need for trial. The court disagreed with XM’s assertion that Arizona Revised Statutes § 32-2455(A) prohibits the disclosure of a private investigator’s report to anyone other than the client. “A plain reading of the statute is that the person(s) or company conducting the licensed investigation may not divulge information gathered during the investigation to anyone other than a client," said the order, but it doesn't state or imply that a client "may not divulge this information as needed once they are the ones in possession of the information." In asserting that its communications with the investigator are protected under attorney-client privilege, XM “failed to establish” how the statute “carte blanche protects private investigator reports from discovery," and failed to meet its burden of establishing privilege without the statute, said the order. XM instead submitted a “boilerplate” refusal to provide the requested documents, the order said. Plaintiffs “have failed to establish the work-product doctrine or attorney-client privilege by failing to produce even a threadbare privilege log or persuade the Court that there is an outright ban on disclosure via statute,” said the order. The court won’t allow XM to use a “privileged report as a sword to prevent Defendant from adequately defending against the claims,” it said. The court finds that the private investigator documents aren’t privileged; but to “balance” XM’s concerns over future investigations with GGT defendants’ needs to defend themselves now, the court will order the parties to meet and confer on a protective order, the judge said.