Gray et al v. Easton et al

Filing 71

ORDER regarding pending motions to quash 41 44 47 50 and 45 . See attached. Signed by Judge Donna F. Martinez on 5/29/13. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LEELAND F. GRAY, et al.,
Plaintiffs,
v.
TOWN OF EASTON, et al.,
Defendants.

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CASE NO.

3:12cv166(RNC)

RULING ON MOTIONS TO QUASH
The plaintiffs, Leeland Gray, Kirsten Gray, 145 Eden Hill
Road, LLC, Deutsch American Partners, Ltd., and Gray Friesian Farm,
LLC bring this action against the Town of Easton, the Town's
Planning and Zoning Commission, the members of the Commission and
the Zoning Enforcement Officer. The plaintiffs allege that the
defendants selectively enforced the Town's zoning regulations in
violation of their right to Equal Protection under the Fourteenth
Amendment.1

The plaintiffs assert that the defendants required

them to comply with the zoning regulations, specifically § 7.4, but
did not require the same of others who were similarly situated.

To

obtain information regarding those whom the plaintiffs allege are
similarly situated, the plaintiffs served subpoenas for their

1

The plaintiffs assert their Equal Protection claim under two
theories: (1) a selective enforcement theory; see Harlen Associates
v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir.
2001) and (2) a class of one theory; see Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per curiam) and Clubside, Inc. v.
Valentin, 468 F.3d 144, 159 (2d Cir. 2006).

depositions and for the production of documents.2
moved to quash the subpoenas.

The nonparties

Pending before the court are the

motions to quash filed by Charlotte Stichter (doc. #41), Justine
Hahn (doc. #44), Charlotte Sharp (doc. #47) and Leann Enos (Doc.
#50).

Nonparty Eden Farm filed an objection (doc. #45) to the

subpoena, which the plaintiffs and the court construe as a motion
to quash. The court has carefully considered the arguments made by
counsel during oral argument and in their written submissions.
The nonparties first argue that the plaintiffs' subpoenas
should be quashed because the document requests are not relevant to
the plaintiffs' case.

A party "may obtain discovery regarding any

nonprivileged matter that is relevant to any party's claim or
defense."

Fed. R. Civ. R. 26(b)(1).

The information need not be

admissible at trial; it need only be reasonably calculated to lead
to the discovery of admissible evidence. Id. "Although a subpoena
may be quashed if it calls for clearly irrelevant matter, the
district judge need not pass on the admissibility of the documents
sought in advance of trial nor quash a subpoena demanding their
production if there is any ground on which they might be relevant."
Weinstein v. University of Connecticut, No. 3:11CV1906(WWE), 2012
WL 3443340, at *3 (D. Conn. Aug. 15, 2012).
permissible

2

discovery

is

clearly

quite

The "scope of

broad."

Id.

The

The production requests served on the nonparties are the

same.
2

nonparties' relevance objection is overruled.

The information

sought

that

is

relevant

to

the

plaintiffs'

claim

they

were

intentionally treated differently from others similarly situated.
See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(Class-of-one equal protection claims require a plaintiff to prove
that "she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference

in

treatment.");

Harlen

Associates

v.

Incorporated

Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)("To prevail on
a claim of selective enforcement, plaintiffs in this Circuit
traditionally have been required to show both (1) that they were
treated differently from other similarly situated individuals, and
(2) that such differential treatment was based on impermissible
considerations such as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or bad faith
intent to injure a person."); Clubside, Inc. v. Valentin, 468 F.3d
144, 159 (2d Cir. 2006) ("class-of-one plaintiffs must show an
extremely high degree of similarity between themselves and the
persons to whom they compare themselves").
The nonparties next argue that the subpoenas should be quashed
because compliance would be unduly burdensome.

Rule 45(c)(3) of

the Federal Rules of Civil Procedure provides that a court "shall"
quash or modify a subpoena if the subpoena "subjects a person to
undue burden."

Fed. R. Civ. P. 45(c)(3)(A)(iv).

3

"[T]he burden to

show undue burden rests on the witness who seeks to quash or modify
the subpoena." 9 James Wm. Moore et al., Moore's ¶ 45.66 (3d ed.
2012). See Travelers Indem. Co. v. Metropolitan Life Ins. Co., 228
F.R.D. 111, 113 (D. Conn. 2005) ("The burden of persuasion in a
motion to quash a subpoena is borne by the movant.")

"The Court's

evaluation of undue burden requires weighing the burden to the
subpoenaed party against the value of information to the serving
party." Jackson v. AFSCME Local 196, 246 F.R.D. 410, 412 (D. Conn.
2007).

"Whether a subpoena imposes an undue burden depends upon

such factors as relevance, the need of the party for the documents,
the breadth of the document request, the time period covered by it,
the particularity with which the documents are described and the
burden imposed." Id.

"The determination of issues of burden and

reasonableness is committed to the sound discretion of the trial
court."

Travelers Indem. Co., 228 F.R.D. at 114.

The nonparties make no showing as to the nature and extent of
the actual burden they would face in responding to the plaintiffs'
requests; rather they argue that the requests are unduly burdensome
because they are not parties to the case and the requests are not
relevant. As to the first point, the Federal Rules of Civil
Procedure
discovery.

specifically

allow

a

party

to

obtain

third-party

As to the second point, the categories of documents

seek information regarding the nonparties' horse activities, which
as

previously

indicated,

are

of

4

evident

importance

to

the

underlying action.

Moreover, the court has no evidence of the

quantity of documents sought.

On the record before the court, the

nonparties have not met their burden of showing undue burden.
Retractable

Technologies,

Inc.

v.

International

See

Retractable

Technologies, No. 3:11mc28, 2011 WL 3555848, at *3 (W.D. Va. Aug.
11, 2011) (court overruled nonparty's burdensomeness objection
where nonparty contended that "subpoena's overbreadth is evident on
its face, and that [it] need not provide any additional evidence of
the burden it would have to confront if ordered to comply").
The nonparties next contend the subpoenas should be quashed
because they seek information regarding a term that is not used in
the zoning regulation at issue.

They contend that it is "unduly

burdensome for a non-party witness to be demanded to appear at a
deposition when it is testifying and producing documents based upon
a definition that does not exist."
objection is overruled:

(Doc. #41 at 7.)

This

the plaintiffs clearly define the term at

issue in the subpoena.
The nonparties also argue that the subpoenas should be quashed
because they seek confidential information, including financial
records

and

tax

returns.

Generally,

"tax

returns

and

other

information regarding income are discoverable if relevant to the
issues in a lawsuit." Yancey v. Hooten, 180 F.R.D. 203, 215
(D.Conn. 1998).

Nonetheless, the court recognizes the interest in

protecting the confidentiality of financial information even if

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some of it is relevant.

Id.

Some decisions of this court, indeed,

have imposed an even higher standard for the production of tax
returns.

See, e.g., Gattegno v. Pricewaterhousecoopers, LLP, 205

F.R.D. 70, 73 (D. Conn. 2001)(tax return is discoverable only if:
"(1) it clearly appears they are relevant to the subject matter of
the action or to the issues raised thereunder, and (2) there is a
compelling need therefor because the information contained therein
is not otherwise readily obtainable").
is sustained in part.

The nonparties' objection

During oral argument, plaintiffs clarified

that they seek only revenue from commercial horse activities and
only want tax information if they cannot obtain that information
from other sources.

Under these circumstances, plaintiffs should

first pursue the requested revenue information from other sources.
The information may be produced pursuant to a stipulated protective
order to protect confidential and private information from public
disclosure and from use for any purpose other than prosecuting the
above-captioned action.3
Finally, the nonparties argue that the plaintiffs should be
required to seek information from the defendants before resorting
to nonparty discovery.

"If the material sought by subpoena is

readily available, either from a party to the action or from a
public source, obtaining it through subpoena on a nonparty often

3

Plaintiffs indicate that a protective order is in place
already. (Doc. #27.)
6

will

create

documents

an

from

undue
another

burden.

The

source,

mere

however,

availability
does

not

of

the

preclude

a

subpoena directed to a nonparty if the party serving the subpoena
can show that it is more expeditious to obtain the documents from
the witness." 9 James Wm. Moore et al., Moore's ¶ 45.66 (3d ed.
2012). There has been no showing that the requested information is
available from the defendants.
The motions to quash (doc. #41, 44, 45, 47 and 50) are denied.
Plaintiffs represented during oral argument that they would be
flexible and accommodating as to the production requests and would
seek to minimize the intrusion as to the nonparties.

Counsel are

encouraged to work together to achieve this goal.
SO ORDERED at Hartford, Connecticut this 29th day of May,
2013.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

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