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FEARS v. WILHELMINA MODEL AGENCY

United States District Court, S.D. New York


March 29, 2004.

CAROLYN FEARS, et al., Plaintiffs, -against- WILHELMINA MODEL AGENCY, INC., et al., Defendants

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I write to resolve the dispute between plaintiff's and ID Model Management ("ID") concerning the subpoena duces tecum plaintiffs have served on ID.

ID objects to the subpoena on the grounds of relevance and overbreadth and characterizes it, as many attorneys characterize an adversary's discovery request, as a "fishing expedition." Unfortunately for ID, the Supreme Court has expressly permitted the parties to fish in discovery:

We agree . . . that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of `fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case.
Hickman v. Taylor, 329 U.S. 495, 507 (1947).

  Although broad, discovery is obviously not limitless, and to be discoverable the information sought must be relevant to Page 2 a claim or defense or defense of any party. Fed.R.Civ.P. 26(b)(1). In addition, where, as here, discovery is sought from a non party, the Court should be particularly-sensitive to weighing the probative value of the information sought against the burden of production on the non party. Fed.R.Civ.P. 45(c)(2)(B); American Elec. Power Co. v. United States, 191 F.R.D. 132, 137 (S.D. Ohio 1999); Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996); Semtek Int'l. Inc. V. Merkuriy Ltd., No. 3607 DRH, 1996 WL 238538 at *2 (N.D.N.Y. May 1, 1996).

  In addition, I believe that the scope of discovery to which plaintiff is entitled from ID is also limited by plaintiffs' reasons for seeking discovery from ID. Plaintiffs have not cited any specific reason to believe that ID has relevant evidence. Rather, plaintiffs' principal reason for seeking discovery from ID is to confirm the completeness of the defendants' document production. In this regard, plaintiffs cite the fact that relevant documents concerning the activities of certain trade associations have been produced by other non-party witnesses but not by defendants. Although this fact provides a good faith basis for plaintiffs' subpoena, it is evidence that ID has relevant documents that have not been produced by the defendants.

  With these principals in mind, I resolve plaintiffs' document requests as follows: Page 3

 

Request 1: ID's objections are overruled in part and production is ordered to the extent that this request seeks documents received from modeling industry trade associations. ID'S objection to producing "prejudicial" documents (see Transcript of Proceedings held on November 19, 2003 at 6) is overruled.
Request 2: ID'S objections are overruled and production is ordered to the extent that this request seeks documents from ID expressly addressed to modeling industry trade associations, i.e., documents in which the name of the modeling industry trade association appears in the address. Unless the name of the modeling industry trade association appears in the address of the document, the document need not be produced.
Request 3: ID'S objections are sustained. ID is not a defendant, and, based on the parties' respective arguments, I conclude that the burden of producing these documents outweighs any possible probative value. see Fed.R.Civ.P. 26(b)(2) (iii).
  Request 4: ID'S objections are sustained. ID is not a defendant, and, based on the parties' respective arguments, I conclude that the burden of producing Page 4 these documents outweighs any possible probative value. See Fed.R.Civ.P. 26(b)(2) (iii).

 

Request 5: ID's objections are sustained. ID is not a defendant, and, based on the parties' respective arguments, I conclude that the burden of producing these documents outweighs any possible probative value. See Fed.R.Civ.P. 26 (b)(2) (iii).
Request 6: Withdrawn by plaintiffs.
Request 7: Withdrawn by plaintiffs.
Request 8: ID's objections are sustained; the request is irrelevant.
Request 9: ID's objections are sustained. ID is not a defendant, and, based on the parties' respective arguments, I conclude that the burden of producing these documents outweighs any possible probative value. See Fed.R.Civ.P. 26(b)(2) (iii).
Request 10: ID's objections are sustained; the request is irrelevant.
  Request 11: ID's objections are overruled in part and production is ordered to the extent that ID has responsive documents in its possession, custody or control that relate to one of the named defendants in this matter. Page 5

 

Request 12: ID's objections are sustained; the request is irrelevant.
Request 13: ID'S objections are sustained; `the request is irrelevant.
Request 14: ID'S objections are sustained; the request is irrelevant. Price fixing is a per se violation of Section 1 of the Sherman Act. If plaintiffs succeed in proving the conspiracy they allege, the reasonableness of any agreed-upon price is immaterial. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 242-43 (1940); United States v. Trenton Potteries Co., 273 U.S. 392, 401 (1927); United States v. Chas. Pfizer & Co., 217 F. Supp. 199, 201 (S.D.N.Y. 1963).
Request 15: ID'S objections are sustained; the request is irrelevant.
  Request 16: To the extent that this request seeks documents beyond those the production of which has been ordered with respect to Requests 1 and 2, ID'S objections are sustained. ID is not a defendant, and, based on the parties' respective arguments, I conclude that the burden of producing these documents outweighs any possible probative value. See Fed.R.Civ.P. 26(b)(2) (iii). Page 6

 

Request 17: ID's objections are sustained. ID is not a defendant, and, based on the parties' respective arguments, I conclude that the burden of producing these documents outweighs any possible probative value. See Fed.R.Civ.P. 26(b)(2) (iii).
Request 18: ID's objections are sustained. ID is not a defendant, and, based on the parties' respective arguments, I conclude that the burden of producing these documents outweighs any possible probative value. See Fed.R.Civ.P. 26(b)(2) (iii).
Request 19: ID's objections are sustained; ID's opinion concerning the future of the modeling industry is irrelevant.
Request 20: ID's objections are sustained; the request is irrelevant.
  Finally, ID makes a bizarre due process argument, claiming it has not had notice or an opportunity to be heard (see Letter of Raymond J. Dowd, Jr., Esq., dated December 11, 2003, at 3-4). ID appeared before me, by its counsel, on November 19, 2003, submitted formal written objections to the subpoena on November 26, 2003, and supplemented those objections with a letter dated December 11, 2003. In light of these multiple opportunities that ID had to present it arguments, its counsel's due process argument is beyond frivolous. If counsel is arguing Page 7 that ID somehow has a right to be heard in the underlying action, in which it is not a party, I advised its attorney in November, 2003 that ID's remedy is to seek to intervene; If counsel is arguing that ID needs access to all the pleadings and motions filed in this case, counsel knows that those document are available to him in the Clerk's Office.

  ID is directed to produce The documents responsive to my rulings on Requests 1, 2 and 11 no later than April 5, 2004. ID shall bear its own costs in retrieving and producing these documents.*fn1

  SO ORDERED


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