Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

February 6, 2004.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge


The defendants and certain nonparty financial institutions have made an application, pursuant to Fed.R.Civ.P. 45, that subpoenas issued by the plaintiff to the financial institutions be quashed. The movants maintain that the subpoenas impose an undue burden on the financial institutions, are overly broad, seek irrelevant information and, if enforced, will permit the plaintiff to access information that should be shielded from the plaintiff under the attorney-client communication privilege. The movants also seek a protective order from the Court, pursuant to Fed.R.Civ.P. 26(c), that would require the plaintiff to refrain from issuing any additional subpoenas without prior Court approval.

The plaintiff urges that the above-referenced motion be denied. The plaintiff contends that the instant subpoenas seek information similar to information sought from financial institutions via subpoena earlier in the litigation without objection from the defendants. The plaintiff also contends that the subpoenas are narrowly drawn to obtain information solely from specified accounts that are associated with the defendants and maintained at the subject financial Page 2 institutions. Furthermore, the plaintiff maintains that the information sought will enable it to trace funds that it alleges were fraudulently obtained by the defendants and which are the subject matter of this action.

  With respect to the movants' request for a protective order, the plaintiff maintains that none is needed, as it has not issued subpoenas improperly.

  Fed.R.Civ.P. 45(c)(3)(A) provides, in pertinent part, that:

On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
* * *
(iii) requires disclosure of privileged or other protected matter and no exception or, waiver applies or (iv) subjects a person to undue burden.
Documents sought via subpoena must be relevant to the subject matter of the action; a subpoena which calls for the production of irrelevant material should not be enforced. See Eisemann v. Greene, No. 97 Civ. 6094, 1998 WL 164821, at *2 (S.D.N.Y. 1998).

  Based upon the submissions made by the parties, the Court finds that the information sought via the subpoenas is relevant to the subject matter of this action. The information sought may enable the plaintiff to establish its claim that funds were allegedly obtained from it for one purpose and then diverted improperly to other endeavors.

  The submissions made by the parties indicate that subpoenas seeking similar information were previously issued by the plaintiff without objection from the defendants. The movants have not explained what, if any, circumstances have changed that make the information sought Page 3 through the instant subpoenas irrelevant, where previously subpoenas seeking similar information were not objected to on the ground of relevance.

  The movants also contend that responding to the subpoenas would be burdensome. However, no competent evidence has been submitted from a representative of any of the financial institutions to support that claim. Absent such evidence in the record, the Court is not able to determine the degree, if any, to which any of the financial institutions would be burdened if it had to respond to a subpoena issued by the plaintiff for information about a designated account.

  The movants' remaining claim, that a response to a subpoena that seeks account information pertinent to Carl D. Simoni, P.C. might infringe upon the attorney-client communication privilege because client names and possibly a transaction(s) in which a client was involved might be revealed, is curious. The purpose of the attorney-client communication privilege is to protect only those confidential communications exchanged between an attorney and his or her client that are necessary for the client to obtain and the attorney to provide informed legal advice. Information concerning the identity of a client typically does not fall within the privilege. See In re Grand Jury Subpoena Duces Tecum Served Upon Gerald L. Shargel, Esq. v. United States, 742 F.2d 61, 62 (2d Cir. 1984). Furthermore, the movants have not explained how a particular transaction(s) might be revealed through the documents the plaintiff seeks or how the confidential aspect of the attorney-client communication could be maintained when the financial institution, that presumably was not a party to the attorney-client exchange, is made privy to the communication through the submission (deposit) made to that institution. Page 4

  As noted above, the movants seek a protective order that would bar the plaintiff from issuing additional subpoenas in this action without first obtaining an order from the Court. The movants contend that such an order will prevent the plaintiff from misusing the discovery tools available through the Federal Rules of Civil Procedure to obtain information that will aid the plaintiff in litigating in another forum(s).

  The information obtained by the parties through the pretrial discovery activities in this litigation should be used for the prosecution or defense of this action solely. To this extent, the movants' application is granted. However, no need exists for the Court to bar the plaintiff from issuing subpoenas without prior Court approval since the record is barren of any evidence that the plaintiff has issued subpoenas improperly.

  For the reasons set forth above, the instant motion to quash subpoenas and for a protective order, except to the extent noted above, is denied.



© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.