United States District Court, E.D. New York
April 1, 2005.
JAQUIONE JOHNSON, Plaintiff,
BRYCO ARMS, et al., Defendants. JOAN TRUMAN SMITH, Plaintiff, v. BRYCO ARMS, et al., Defendants.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM & ORDER
This is an action in tort arising from the so-called "Wendy's
Massacre." Criminals entered a Wendy's food store and attempted
to kill all of the employees by shooting each of them in the back
of the head at point-blank range; five of the seven victims died.
Harmed by the event, plaintiffs sue the distributor and retailer
of the handgun, claiming that it fell into the hands of the
criminals because of defendants' negligence.
At issue at the discovery stage is whether defendants are
entitled to take depositions of three law enforcement employees.
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure,
defendant Atlantic Gun & Tackle Distribution Co., Inc.
("Atlantic"), appeals from the Magistrate Judge's March 8, 2005 Order, granting the Bureau of
Alcohol, Tobacco, Firearms and Explosives' ("ATF") motion to
quash the deposition subpoenas served by Atlantic on ATF Special
Agent Cameron Conklin, ATF Special Agent John Kilnapp and ATF
Compliance Inspector Erika Whelan. Defendant AcuSport
cross-appeals, adopting all the arguments propounded by Atlantic.
Essentially the issue is whether defendants need the information
from these individuals in light of what they have or will have.
Since the Magistrate Judge has been closely supervising discovery
and has a good grasp of what the parties' needs and positions
are, this court sustains her decision granting the motion to
Plaintiffs allege that the gun used in the shootings was
manufactured at a Bryco Arms plant. It was sold by B.L. Jennings,
Inc. to AcuSport Corporation, a wholesale distributor. AcuSport
sold the gun to Atlantic Gun & Tackle Distribution Co., Inc.
("Atlantic"), a retailer in Bedford Heights, Ohio. The gun was
then allegedly sold by Atlantic to Angela Freeman. Plaintiffs
allege she never intended to keep or use the gun herself. Their
claim is that Ms. Freeman purchased the gun for her then husband,
Bernard Gardier. Defendants have emphasized that "ATF and law
enforcement reports indicate," to the contrary, that subsequent
to the sale, "Mr. Gardier stole the subject pistol from Ms.
Freeman and traveled with it to New York," where he and Jamal
Gales allegedly sold it to a private individual.
21 C.F.R. § 16.22(c) Summary (Jan. 12, 2005) (emphasis added). Both
plaintiffs and defendants agree that the gun was then sold at
least twice more in the illegal underground handgun market until
it was purchased by John Taylor, who along with his accomplice,
shot seven people.
Defendants contend that two of the law enforcement officers
whom they seek to depose, Special Agents Conklin and Kilnapp, were involved in the
investigation of: (1) the sale of the subject gun; (2) the
subsequent theft, possession, and illegal transportation to New
York of the gun by Bernard Gardier and Jamal Gales; (3) the
subsequent sales of the gun in New York; (4) the ultimate
involvement of the gun in the criminal shooting at Wendy's
restaurant; and (5) the prosecutions of Bernard Gardier and Jamal
More spefically, according to defendants, Special Agent Conklin
interviewed Freeman, Gardier, and Gales, and ultimately arrested
Gardier and Gales for stealing the gun and illegally transporting
it to New York and selling it. Special Agent Kilnapp investigated
the purchase of the gun by Ms. Freeman and interviewed her. Ms.
Freeman provided Special Agent Kilnapp with a second pistol she
purchased from Atlantic after the subject pistol was stolen.
Inspector Whelan allegedly conducted various compliance
inspections of Atlantic over a period of years. These compliance
inspections are the subject of a series of compliance inspection
documents which ATF produced to plaintiffs pursuant to Joan
Truman Smith's May 14, 2004 subpoena.
Defendants' position is that the testimony of these witnesses
is critical to their defense of plaintiffs' claims that the
subject gun was knowingly or negligently sold to a straw
purchaser by the dealer. In January 2005, Atlantic served
subpoenas on ATF and on the three ATF employees, seeking
documents and testimony from Special Agents Cameron Conklin and
John Kilnapp of the Cleveland Office of ATF, as well as from ATF
Compliance Inspector Erika Whelan.
ATF declined to produce the three witnesses for deposition, "in
large part because of the burden that such depositions would
cause to ATF." Mar. 8, 2005 Order of Mag. Judge at 2 (citation
omitted). ATF contended before the Magistrate Judge that the
depositions sought would divert the officers from their law enforcement responsibilities.
ATF also argued that permitting depositions in the instant case
would increase the likelihood that ATF would be burdened with
similar requests in the future. See id. It contended that much
of the information sought by Atlantic was protected by the
Consolidated Appropriations Act of 2005, because significant
portions were derived from trace data and records maintained by
the federal firearms licenses pursuant to law. See id. But cf.
City of New York v. Beretta U.S.A. Corp., 00-CV-3641 (E.D.N.Y.
Apr. 1, 2005) (holding that the Consolidated Appropriations Act
of 2005 does not bar discovery in this case).
ATF also claims that the three witnesses have no
specific recollection of the underlying
investigation. Specifically, neither Agent Conklin or
Agent Kilnapp investigated the actual shootings at
issue; rather, they investigated only the chain of
custody of the weapon. Similarly, Inspector Whelan's
knowledge is limited to her annual inspections of
Atlantic. Finally, ATF contends that it has already
disclosed over 650 pages of documents in this case,
and these documents should provide all the relevant
information that defendant needs.
Mar. 8, 2005 Order of Mag. Judge at 2.
The Magistrate Judge rejected defendant's submission,
Although defendant argues that ATF's burden in
producing witnesses is "easily outweighed by the
extreme importance of their testimony in this case,"
it is unclear exactly what information defendant is
seeking to elicit from these witnesses that is not
contained in the documents and files already produced
by ATF. Given the limited nature of the witnesses'
involvement in this case, their asserted lack of
independent recollection and the absence of an
explanation from defendant regarding its compelling
need for the requested depositions, this Court finds
that the burden imposed upon ATF, a non-party to this
action, seriously outweighs the need for the
depositions of these three ATF witnesses.
Id. at 3 (footnote omitted). III. Law
A. Rule 72(a)
Rule 72(a) of the Federal Rules of Civil Procedure provides for
review of a magistrate judge's order:
Within 10 days after being served with a copy of the
magistrate judge's order, a party may serve and file
objections to the order. . . . The district judge to
whom the case is assigned shall consider such
objections and shall modify or set aside any portion
of the magistrate judge's order found to be clearly
erroneous or contrary to law.
FED.R.CIV.P. 72(a). The appeal is timely.
B. Standard of Review of Federal Agency's Decision Not to
Comply with a Subpoena
1. Rules 26 and 45 of the Federal Rules of Civil Procedure
In general, a party may obtain discovery of any non-privileged
matter that is relevant to a claim or defense of any party.
FED.R.CIV.P. 26(b)(1). The court has discretion to circumscribe
discovery even of relevant evidence by making "any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense. . . ."
FED.R.CIV.P. 26(c). See Herbert v. Lando, 441 U.S. 153, 177
(1979). Concerned with any of these factors, the court may
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only
on specified terms and conditions, including a
designation of the time or place;
(3) that the discovery may be had only by a method of
discovery other than that selected by the party
seeking discovery; (4) that certain matters not be inquired into, or
that the scope of the disclosure or discovery be
limited to certain matters;
(5) that discovery be conducted with no one present
except persons designated by the court;
(6) that a deposition, after being sealed, be opened
only by order of the court;
(7) that a trade secret or other confidential
research, development, or commercial information not
be revealed or be revealed only in a designated way;
(8) that the parties simultaneously file specified
documents or information enclosed in sealed envelopes
to be opened as directed by the court.
FED. R. CIV. P. 26(c).
Rule 45(c) of the Federal Rules of Civil Procedure provides
additional protection for non-parties to litigation subject to a
subpoena by mandating that a court "quash or modify the subpoena
if it . . . subjects a person to undue burden."
"Determinations of issues of `undue burden' are committed to
the discretion of the trial court." Jones v. Hirschfeld,
219 F.R.D. 71, 74 (S.D.N.Y. 2003). In making this determination, a
court should limit a party's discovery if it determines that:
(i) the discovery sought is unreasonably cumulative
or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or
less expensive; (ii) the party seeking discovery has
had ample opportunity by discovery in the action to
obtain the information sought; or (iii) the burden or
expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the
case, the amount in controversy, the parties'
resources, the importance of the issues at stake in
the litigation, and the importance of the proposed
discovery in resolving the issues. FED.R.CIV.P. 26(b)(2).
While judges may "prevent [a] proposed deposition when the
facts and circumstances are such that it creates an inappropriate
burden or hardship," In re Subpoena Issued to Dennis Friedman,
350 F.3d 65
, 70 (2d Cir. 2003), the "burden of persuasion in a
motion to quash a subpoena and for a protective order is borne by
the movant." 219 F.R.D. at 74-75. See also Dove v. Atlantic
Capital Corp., 963 F.2d 15
, 19 (2d Cir. 1992) (citing Penthouse
Int'l, Ltd. v. Playboy Enters., Inc., 663 F.2d 371
, 391) (2d
Cir. 1981); Concord Boat Corp. v. Brunswick Corp.,
169 F.R.D. 44, 48-49 (S.D.N.Y. 1996); FED. R. CIV. P. 26 advisory
committee's note ("Rule 26(c) . . . confers broad powers on the
courts to regulate or prevent discovery even though the materials
sought are within the scope of [discovery under FED. R. CIV. P.]
26(b), and these powers have always been freely exercised.");
Herbert, 441 U.S. at 177 ("[T]he district courts should not
neglect their power to restrict discovery" under FED. R. CIV. P.
26(c) and "should not hesitate to exercise appropriate control
over the discovery process.").
2. Administrative Procedure Act Standard
ATF contends that its decisions to decline to make three
witnesses available for deposition may be reversed by the Court
"only if the Court determines that the decisions were arbitrary,
capricious or contrary to law," a standard borrowed from the
Administrative Procedure Act ("APA"). APA, 5 U.S.C. § 706(2)(A)
("The reviewing court shall hold unlawful and set aside agency
action, findings, and conclusions found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law."). In support of its position that the APA
language provides the appropriate standard of review, ATF cites
cases from the United States Court of Appeals for the Fourth
Circuit, the United States Court of Appeals for the Eleventh Circuit, the United States Court of Appeals for the Third Circuit
and the United States District Court for the District of
In a footnote, ATF concedes that the "Second Circuit has not
resolved the issue of the standard of review of a federal
agency's decision not to comply with a subpoena" and cites EPA
v. General Electric Co., 212 F.3d 689 (2d Cir. 2000). In that
case, the Court of Appeals for the Second Circuit, on rehearing,
struck language in a December 14, 1999 opinion, "which would
otherwise [have been] a holding in [the] case," which determined
that an agency's refusal to comply with a subpoena amounted to an
"agency action" reviewable under APA § 702, and that the APA's
standard of review provision, 5 U.S.C. § 706(2)(A), should be
used to evaluate the propriety of that action. Id. at 690. The
Court of Appeals explicitly declined to decide whether the APA
standard or, alternatively, the standard contained in Federal
Rule of Civil Procedure 45 should govern review of an agency's
refusal to comply with a subpoena. More recently, in SEC ex rel.
Glotzer v. Stewart, 374 F.3d 184, 191 (2d Cir. 2004), the Court
of Appeals reiterated that "whether APA § 706 governs courts'
review of agency non-compliance with discovery requests [is] far
from settled." It also noted that "some of our sister circuits
have affirmatively held that APA § 706 does not apply to motions
to compel agency compliance with subpoenas." Id. (citing Exxon
Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774, 778-79 (9th
Cir. 1994); Linder v. Calero-Portocarrero, 251 F.3d 178, 180-81
(D.C. Cir. 2001).
IV. Application of Law to Facts
In the instant case there is no need to decide what burden
applies. Whatever the standard, the Magistrate Judge's decision
should be affirmed on the merits and for the reasons she relies
on. The chain of sale and custody of the subject handgun is a
significant issue of this litigation. The law enforcement
investigation into that sale and the gun's subsequent chain of
custody is the focus of defendant's subpoenas to Agents Conklin
and Kilnapp. Defendants argue that the plaintiffs' public
nuisance claims against Atlantic are directed in large part to
Inspector Whelan's findings during her annual inspections and to
those resulting violations involving defendant Atlantic.
The ATF employees' views are essentially hearsay. What is
important is the evidence they relied upon. The jury in the
instant cases will have this evidence as a result of discovery
available to the parties.
The order of the Magistrate Judge quashing the subpoenas
against ATF personnel is affirmed.
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