The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge
Before the Court is Plaintiff Dr. Ugo Alexis Ireh's motion to quash a subpoena duces tecum served upon his former employer, the Hospital of St. Raphael, by Defendants Nassau University Medical Center ("NUMC") and Nassau Health Care Corporation ("NHCC") [DE 30]. I have reviewed Plaintiff's moving papers ("Pl. Mem.") as well as Defendants' opposition papers ("Defs. Opp'n") [DE 31], and heard extensive oral argument from both parties. The parties have also submitted (1) a March 4, 2008 Order from Magistrate Judge King of the Northern District of Georgia which denied Plaintiff's motion to quash an identical subpoena duces tecum served upon another of Plaintiff's former employers, the Morehouse School of Medicine, (2) Plaintiff's Memorandum of Law in Support of his Motion for Reconsideration of Magistrate Judge King's March 4, 2008 Order ("Pl. N.D.Ga. Mem."), (3) Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Reconsideration of Magistrate Judge King's March 4, 2008 Order ("Defs. N.D.Ga. Opp'n"), (4) Plaintiff's Reply Memorandum of Law in Further Support of his Motion for Reconsideration of Magistrate Judge King's March 4, 2008 Order ("Pl. N.D.Ga. Reply"), and (5) an April 9, 2008 Order from District Judge Tidwell of the Northern District of Georgia denying Plaintiff's motion for reconsideration of Magistrate Judge King's March 4, 2008 Order. At the parties' request, the Court has also thoroughly considered the arguments raised in these motion papers. For the reasons stated more fully below, Plaintiff's motion to quash is GRANTED in part, to the extent that I am modifying the subpoena as set forth below.
Plaintiff commenced this action against Defendants Nassau University Medical Center and Nassau Health Care Corporation alleging discrimination and retaliation in violation of 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York Human Rights Law ("NYHRL"). Specifically, Plaintiff alleges that upon the completion of his tenure as a fourth-year medical resident, Defendants declined to renew his residency contract for a fifth year, and that this refusal was discriminatory and unlawfully based upon Plaintiff's race and national origin.
Before Plaintiff became employed by Defendants as a fourth-year resident, Plaintiff graduated from Morehouse School of Medicine (and apparently participated in a residency program there) and was subsequently employed by the Hospital of St. Raphael as a medical resident. Defs. Opp'n, Ex. D. Defendants served a subpoena upon non-party Hospital of St. Raphael seeking the production or inspection of Dr. Ireh's personnel file, academic file, and departmental file, as well as any documents concerning his application for employment and/or appointment as an academic resident, job duties and responsibilities, changes in position, transfers, promotions, compensation, benefits, attendance history, performance history (including performance and academic evaluations), discipline history, and allegations and/or complaints of discrimination and/or harassment, if any.
Pl. Mem., Ex. A. Defendants also served an identical subpoena upon the Morehouse School of Medicine. Plaintiff filed a motion in this district to quash the subpoena served upon non-party Hospital of St. Raphael and filed a motion in the Northern District of Georgia to quash the subpoena served upon non-party Morehouse School of Medicine.
Plaintiff bases his motion to quash on the following grounds: (1) Defendants did not obtain permission from the Court before issuing the subpoena, (2) the subpoenaed documents were not included in Defendants' document requests, (3) the information sought bears no relevance to the issues in this action and is not likely to lead to the discovery of admissible evidence, (4) the documents sought are prejudicial to Plaintiff, (5) the documents sought are "unreasonably cumulative or duplicative," and (6) the subpoena "requires disclosure of an un-retained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party." Pl. Mem. at 1.
Defendants respond initially that Plaintiff's motion to quash is untimely because, even though Plaintiff was aware of the subpoena as early as December 18, 2007, Plaintiff did not file the motion to quash until January 22, 2008 -- eleven days after the subpoena's return date. Defs. Opp'n at 2. Defendants also contend that Plaintiff lacks standing to challenge the subpoena because the Hospital of St. Raphael itself has not moved to quash the subpoena or claimed that any of the subpoenaed documents are confidential or privileged. Id. Defendants assert that "documents and information showing that Dr. Ireh had academic and clinical performance problems in the past" are "material and relevant to the defense of this matter." Id. With respect to Plaintiff's remaining contentions, Defendants assert that "court approval is not required to issue a non-party subpoena during the regular course of discovery," and there is no basis to quash the subpoena merely because Defendants did not request the documents at issue in a document request. Finally, Defendants contend the subpoena "does not seek the 'opinion of an un-retained expert.'" Id. at 3.
A. Timeliness of the Motion to Quash
Courts within this Circuit have interpreted Rule 45's requirement that a motion to quash be filed in a "timely" manner to mean that such a motion must be filed within the time set in the subpoena for compliance. See Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002); Nova Biomedical Corp. v. i-STAT Corp., 182 F.R.D. 419, 422 (S.D.N.Y. 1998). On December 18, 2007, Defendants gave Plaintiff notice that they intended to serve the subpoena upon the Hospital of St. Raphael on December 28, 2007 and that the return date of the subpoena was January 11, 2008. Defs. Opp'n, Ex. A. It appears that Plaintiff was informed on January 8, 2008 that the subpoena had been re-served upon the Hospital of St. Raphael on January 4, 2008 and had the same return date of January 11, 2008. Id., Ex. C. Plaintiff did not file the instant motion to quash until January 22, 2008 -- eleven days after the January 11, 2008 return date. Defendants' opposition, however, states that the Hospital of St. Raphael had still not produced any documents in response to the subpoena by that late date. See id. at 1.
"The decision of whether to quash or modify a subpoena is within the district court's discretion." Olszewski v. Bloomberg L.P., No. 96 Civ. 3393, 2000 WL 1843236, at *4 (S.D.N.Y. Dec. 13, 2000). Courts have often exercised their discretion to consider motions to quash that were not "timely" filed within the meaning of Rule 45 and applicable case law. Id. (considering untimely motion to quash); see also Grigsby & Assoc., Inc. v. Rice Derivative Holdings, L.P., No. 00 Civ. 5056, 2001 WL 1135620, at *4 (S.D.N.Y. Sept. 26, 2001) ...