United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. United States Magistrate Judge
case was referred to the undersigned by the Hon. William M.
Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A),
for all pretrial matters, and for hearing and disposition of
all non-dispositive motions or applications. Dkt. #15.
second amended complaint alleges disparate treatment on the
basis of sex; a hostile work environment; and retaliation in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e
et seq., and the New York State Human Rights Law
(“NYSHRL”), N.Y. Executive Law §§ 290
et seq., as well as violations of the Equal Pay Act,
29 U.S.C. § 206 et seq. Dkt. #148.
Decision and Order entered October 19, 2016, the Court
granted defendant's motion to compel plaintiff to
supplement her interrogatory response to identify any
individual she contacted regarding this lawsuit and include
the approximate date of any such contact, as well as a
general summary of any communication she had with such
person. Dkt. #187, p.5. The Court also granted the motion to
compel with respect to defendant's request that plaintiff
identify her telecommunications providers, as well as her
home and cellular telephone numbers and all electronic mail
addresses used by plaintiff since June of 2000. Dkt. #187,
pp.14-15. Although plaintiff argued that defendant sought
such information in anticipation of issuing a subpoena to her
telecommunications providers for the improper purpose of
obtaining information regarding who plaintiff was
communicating with, the Court determined that,
“[a]bsent notice of a subpoena of records from
plaintiff's telecommunications providers, plaintiff's
objections to such a subpoena are premature.” Dkt.
#187, pp.14-15 The Court was explicit that its
“determination with respect to the interrogatory is
without prejudice to plaintiff's right to move to quash
or modify a subpoena based upon the information disclosed in
response to this interrogatory.” Dkt. #187, p.15.
supplemental interrogatory response identified several
contacts, including Chris Gaglione in 2010 and an attempt to
contract Robert Dixon in 2010. Dkt. #206-2, pp.44-45.
Plaintiff provided information regarding her
telecommunications and e-mail providers as directed. Dkt.
issued two subpoenas to Cellco Partnership d/b/a Verizon
Wireless on March 29, 2017. Dkt. #206-2. The first subpoena
seeks production of billing statements for the cellular
telephone number relating to plaintiff for the calendar years
of 2010, 2011, 2012 and 2015. Dkt. #206-2, p.6. The second
subpoena seeks text message data between the cellular
telephones of plaintiff and Christopher Gaglione from 2010
through the present and text message data between the
cellular telephones of plaintiff and Robert Dixon during 2010
and 2011. Dkt. #206-2, p.3.
before the Court is plaintiff's motion to quash the
subpoenas. Dkt. #206. In support of the motion, plaintiff
argues that disclosure of text messages is prohibited by
statute; her billing records are irrelevant; and the scope of
the subpoenas are overbroad. Dkt. #206-3. Plaintiff notes
that the records subpoenaed are subsequent to her allegations
of receiving harassing telephone calls from Mr. Irving and
subsequent to her termination by defendant in 2007. Dkt.
#206-3, p.6. Plaintiff also argues that telephone records of
communications she may have had with anyone years after her
termination would not establish the existence of facts
supporting any claims or defenses in this action, especially
given plaintiff's admission that she communicated with
such individuals. Dkt. #206-3.
responds that the subpoena for the contents of
plaintiff's text messages is moot because the provider
has advised that it does not retain such messages. Dkt. #208.
As to the billing records, defendant argues that they will
establish, as Christopher Gaglione and Robert Dixon are
expected to testify at their depositions, that plaintiff
solicited them to act as witnesses in support of her lawsuit.
Dkt. #208. Defendant notes that after communicating with
plaintiff, Mr. Gaglione executed a declaration contradicting
his prior deposition testimony regarding plaintiff's
allegations. Dkt. #208. In response to plaintiff's
objection as to the scope of the subpoena, defendant argues
that the years of billing data requested comport with the
years plaintiff disclosed conversations with potential
witnesses, as well as the year Mr. Gaglione signed the
declaration contradicting his prior deposition testimony.
Dkt. #208. Defendant argues that the timing, volume and
frequency of contact between plaintiff and her coworkers is
relevant but unavailable from plaintiff and that the subpoena
is crafted as narrowly as possible given the vagueness of
plaintiff's supplemental interrogatory responses. Dkt.
#208. Defendant notes that plaintiff improperly failed to
preserve text messages with these potential witnesses. Dkt.
replies that the minimal relevance of the information sought
by the subpoena is outweighed by its intrusiveness into
irrelevant and personal information. Dkt. #209-2.
reach of a subpoena issued pursuant to Fed.R.Civ.P. 45 is
subject to the general relevancy standard applicable to
discovery under Fed.R.Civ.P. 26(b)(1).” Syposs v.
U.S., 181 F.R.D. 224, 226 (W.D.N.Y. 1998); See
Weinstein v. University of Connecticut, No. 07 Civ.
3219, 2012 WL 3443340, at *2 (D. Conn Aug. 15, 2012)
(citing Advisory Committee Notes to 1970 Amendments
to Rule 45 stating that “the scope of discovery through
a subpoena is the same as that applicable to Rule 34 and the
other discovery rules.”). As amended in 2015,
Fed.R.Civ.P. 26(b)(1) provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within the scope of discovery need not
be admissible in evidence to be discoverable.
Advisory Committee Notes to the 2015 Amendment clarifies that
the rule was amended to “encourage judges to be more
aggressive in identifying and discouraging discovery
overuse.” In addition, pursuant to Fed.R.Civ.P.
45(c)(3)(B)(I), “a court may quash, modify or condition
a subpoena to protect a person affected by the subpoena from
unnecessary or unduly harmful disclosures of confidential
information.” Syposs, 181 F.R.D. at 226.
Whether a subpoena imposes an undue burden depends upon
consideration of “relevance, the need of the party for
the documents, the breadth of the document requests, the time
period covered by it, the particularity with which the
documents are described and the burden imposed.”
Libaire v. Kaplan, 760 F.Supp.2d 288, 293-94
(E.D.N.Y. 2011). While the burden of demonstrating relevance
is borne by the party seeking discovery, Quotron Sys.,
Inc. v. Automatic Data Processing, Inc., 141 F.R.D. 37,
41 (S.D.N.Y. 1992), the burden of persuasion on a motion to
quash a subpoena is borne by the movant. Sea Tow
Int'l v. Pontin, 246 F.R.D. 421, 424 (E.D.N.Y.
2007). The decision whether to quash or modify a subpoena is
committed to the sound discretion of the trial court.
Libaire, 760 F.Supp.2d at 291.
light of the telecommunications provider's representation
to the defendant that the text messages themselves are
unavailable for production, the second subpoena is moot. As
to the first subpoena, while it is relevant that plaintiff
communicated with witnesses in this action regarding her
claims, records from plaintiff's telecommunications
providers are not necessary to establish what plaintiff has
already admitted. The records requested in the first subpoena
will not shed light on the substance of such communications,
nor will the timing of such communications - years after her
termination from defendant's employ - shed light on the
substance of plaintiff's claims or defendant's
defenses in this action. See Go v. Rockefeller
Univ., 280 F.R.D. 165, 176-77 (S.D.N.Y. 2012) (denying
motion to compel telephone records because they would not
prove the content of the calls reflected in the record, which
is what plaintiff really sought to prove). Requiring the
production of multiple years of billing records is
undoubtedly burdensome to the telecommunications provider
without any proportionate benefit to the fact finding
process. Accordingly, the motion to quash the subpoenas (Dkt.
#206), is granted.