In PlayUp, Inc. v. Mintas, No. 2:21-cv-02129-GMN-NJK (D. Nev. July 18, 2025), Nevada Magistrate Judge Nancy J. Koppe, citing “repeated misrepresentations” from Counter-Defendant Daniel Simic and stating that “Mintas has made a strong showing of discovery misconduct”, granted Mintas’ motion for a forensic examination.
Case Discussion and Judge’s Ruling
In this case involving claims over a terminated potential acquisition, Judge Koppe noted: “These circumstances are no doubt personal for all involved—and the case involves a lot of money—which has spawned a contentious discovery process” and referenced a ruling from “nearly three years ago the ‘umpteenth’ discovery dispute briefed for judicial resolution”.
Mintas filed two motions for a forensic examination or to compel – one in April 2024 and one in October 2024. In each case, the Court denied the motion without prejudice: ordering Simic to undertake a thorough search for responsive documents in lieu of a forensic examination for the first one (after rejecting his argument that the documents were not in his possession, custody, or control), and ordering Simic to produce the responsive documents in native format and provide a supplemental declaration detailing his search efforts, including specific identification of each item/account searched and the manner of search undertaken for the second one. Mintas filed a third motion for forensic examination in March 2025.
In considering “whether Mintas has made a strong showing that Simic engaged in the kind of discovery misconduct that ordinarily triggers a forensic examination”, Judge Koppe considered three issues:
FTX Meeting Notes from November 15, 2021
Prior to the close of discovery, Simic produced only two documents comprising a total of four pages. Despite the fact that Simic was required to “[p]roduce the documents in native format, including metadata”, one of those documents was a PDF version of notes of a meeting with FTX on November 15, 2021 (SIMIC000004), which was “created the day it was produced”.
Judge Koppe noted: “What is even more problematic, Mintas provides evidentiary support showing that SIMIC000004 had been altered. More specifically, Mintas obtained an email from Michael Costa to Simic attaching a different version of the same meeting notes…The Costa email references the attached version of the notes as being “unedited from when they were written.”…Importantly for current purposes, however, SIMIC000004 differs in several material respects from the version attached to the Costa email…Hence, the pending motion lays the factual foundation to find that (1) the PDF of SIMIC000004 that Simic produced had been altered for litigation advantage, (2) Simic violated the Court’s order to produce the native version of SIMIC000004, and (3) Simic violated that order as a bad faith tactic to avoid confirmation of his evidence manipulation.”
Simic’s counsel initially claimed: “no native format exists for this particular document,” then suggested the client might be withholding it, and finally offered to produce it. The eventual production of a “native” Microsoft Word version was found to be a different version from previously produced ones and was created “the day before the case was initiated and after the version of SIMIC000004 produced by Costa,” leading Mintas to suggest “additional evidence of Simic’s discovery abuses, including evidence tampering.”
Judge Koppe explicitly stated, “Given the repeated misrepresentations, the Court has no confidence in the accuracy of the current representations made as to the document at issue, including whether the actual native version of these notes has truly been produced.”
Declaration Attesting to Search Efforts
Simic also failed to provide sufficient detail in his sworn declarations regarding his search for responsive documents on his text messages, laptop, and Microsoft Teams account, despite being ordered twice to do so with “specific identification of each item/account searched and the manner of search undertaken.”
Judge Koppe noted, “The lack of a proper declaration on this issue is particularly important in the context of this case given the serious concerns as to lack of candor, including as to inaccurate representations made at the hearing itself.”
Self-Selection of a Limited Time Period
Despite discovery requests spanning from January 1, 2019, to the present, Simic “focused” his search only on a few months in 2021.
Simic offered no justification for failing to search for documents after the 2021 period, even though “productions from FTX and various other third parties show that Simic sent and received hundreds of relevant and responsive emails related to Dr. Mintas and FTX in 2022 and 2023.”
Conclusion
Given these factors, Judge Koppe concluded: “Mintas has made a strong showing of discovery misconduct. Summed up in legal terminology pertinent to this motion, Simic has displayed many different types of behavior that warrant a forensic examination, including ‘failure[s] by the responding party to produce requested information,’ ‘serious questions’ about the reliability or completeness of the materials produced, ‘serious questions’ about the ‘candor’ of the producing party’s assertions, and ‘foot-dragging’ of the responding party.” She also found that “lesser remedies are not feasible in this case”.
Judge Koppe adopted Mintas’ proposed protocol for the examination, which covered factors such as examiner selection, scope of access by the examiner, search terms, timeframe for the search and process for review and production.
So, what do you think? Should the Court have done more, given Simic’s “repeated misrepresentations”? Please share any comments you might have or if you’d like to know more about a particular topic.
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