Torcasio v. New Canaan Board of Education et al

Filing 77

RULING. For the reasons set forth in the attached Ruling, the Court GRANTS defendants' 59 Motion for Protective Order and Motion to Quash as to Mrs. Gluck, and DENIES as moot, defendants' 59 Motion for Protective Order and Motion to Quash as to Mr. Dicostanzo. Signed by Judge Sarah A. L. Merriam on 1/26/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ANTONIA TORCASIO
:
:
v.
:
:
NEW CANAAN BOARD OF ED.,
:
et al.
:
:
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Civil No. 3:15CV00053(AWT)

January 26, 2016

RULING ON DEFENDANTS’ MOTION TO QUASH
AND MOTION FOR PROTECTIVE ORDER [Doc. #59]
Pending before the Court is a motion by defendants New
Canaan Board of Education (“BOE”), the Town of New Canaan (the
“Town”) and Bruce Gluck (“Gluck”) (BOE, the Town, and Gluck are
hereinafter sometimes collectively referred to as the
“defendants”) for a protective order and to quash the subpoenas
for the depositions of Taina Gluck, the wife of defendant Gluck,
and Mr. Dicostanzo, husband of a BOE employee. [Doc. #59].
Plaintiff has filed a response in opposition [Doc. #60], to
which defendants have filed a reply [Doc. #62]. Plaintiff has
also filed a supplement to her response to the motion to quash
and for protective order. [Doc. #70]. For the reasons
articulated below, the Court GRANTS defendants‟ Motion to Quash,
and for Protective Order as to Mrs. Gluck, and DENIES as moot,
defendants‟ Motion to Quash and for Protective Order as to Mr.

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Dicostanzo. [Doc. #59].
A.

Background
Plaintiff Antonia Torcasio (“plaintiff”), a female, was

formerly employed as a “lunch person” by the food services
division of the BOE. [Doc. #1, Compl., at ¶9]. Defendant Gluck
was the Director of Food Services for the BOE, and at all
relevant times, plaintiff‟s supervisor. Id. at ¶¶8, 12.
Plaintiff alleges that she was subjected to adverse employment
actions and a hostile work environment due to her gender, by
defendant Gluck. See generally id. at ¶¶13-30. Plaintiff alleged
the following causes of action: (1) Violation of Title VII,
Disparate Treatment Based on Gender (versus the BOE); (2)
Violation of Title VII, Disparate Treatment Based on Gender
(versus the Town); (3) Violation of Title VII, Hostile Work
Environment, Sexual Harassment (versus the BOE); (4) Violation
of Title VII, Hostile Work Environment, Sexual Harassment
(versus the Town); (5) Intentional Infliction of Emotional
Distress (versus Gluck); (6) “CGS 10-235” (Indemnification of
teachers, board members, employees and certain volunteers and
students in damage suits) (versus the BOE); (7) Negligent
Supervision (versus the BOE); and (8) Negligent Supervision
(versus the Town). On November 25, 2015, Judge Thompson granted

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defendants‟ motion to dismiss as to the negligent supervision
counts (seven and eight) of the Complaint. [Doc. #54]. On
December 28, 2015, defendants filed their answer and asserted
the following affirmative defenses: failure to state a claim
upon which relief can be granted; failure to mitigate damages;
setoff to account for health insurance premiums paid on
plaintiff‟s behalf; governmental immunity; and lack of adverse
employment action. [Doc. #74 at 6-7].
B.

Legal Standard
“Pursuant to Rule 45, any party may serve a subpoena

commanding a nonparty „to attend and testify[.]‟” Weinstein v.
Univ. of Connecticut, Civ. No. 3:11CV1906(WWE), 2012 WL 3443340,
at *2 (D. Conn. Aug. 15, 2012) (quoting Fed. R. Civ. P.
45(a)(1)(A)(iii)). “A subpoena issued to a non-party pursuant to
Rule 45 is subject to Rule 26(b)(1)‟s overriding relevance
requirement.” Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y.
2010) (citation and internal quotation marks omitted). Upon
timely motion, a Court must quash or modify a subpoena that
“requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or subjects a person to undue
burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv).

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“The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden[.]” Fed. R. Civ. P. 26(c)(1). The burden of showing
good cause for the issuance of a protective order falls on the
party seeking the order. See Brown v. Astoria Fed. Sav. & Loan
Ass‟n, 444 F. App‟x 504, 505 (2d Cir. 2011). “To establish good
cause under Rule 26(c), courts require a particular and specific
demonstration of fact, as distinguished from stereotyped and
conclusory statements.” Jerolimo v. Physicians for Women, P.C.,
238 F.R.D. 354, 356 (D. Conn. 2006) (citations and internal
quotation marks omitted).
C.

Discussion
Defendants seek to quash the subpoena for the deposition of

Taina Gluck (“Mrs. Gluck”), defendant Gluck‟s wife, and the
prospective subpoena for the deposition of the husband of Joann
Pascarelli, who is a food services manager in the New Canaan
Public Schools food services department. [Doc. #59]. Defendants
also seek a protective order. Id.
As an initial matter, plaintiff represents in her response
that she will not subpoena Mr. Discostanzo, the husband of Joann
Pascarelli. [Doc. #60 at ¶1]. Accordingly, plaintiff‟s motion to

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quash and for protective order is DENIED as moot with respect to
Mr. Discostanzo.
Defendants argue that plaintiff seeks the deposition of
Mrs. Gluck for purposes of gaining information regarding
defendant Gluck‟s medical condition in 2010. [Doc. #59 at 2-3].
Defendants argue that Mrs. Gluck‟s testimony is not relevant,
and that her deposition would infringe upon the marital
communications privilege and adverse spousal testimony
privilege. [Doc. #59 at 7]. Plaintiff responds that she seeks to
depose Mrs. Gluck only with respect to the first four counts of
the Complaint, “which regard Title VII employer liability only”
and the testimony sought will not be “material” to count five of
the Complaint against defendant Gluck. [Doc. #60 at ¶2].
Plaintiff further represents that “the events to be covered by
the deposition will not include confidential communications
between spouses” and that the deposition will be “limited to
what [Mrs.] Gluck witnessed and what she stated to persons other
than her spouse.” Id. at ¶3. In reply, defendants contend that
notwithstanding these representations, it is not apparent how
Mrs. Gluck‟s deposition is reasonably calculated to lead to the
discovery of admissible evidence. [Doc. #62 at 2]. Accordingly,
defendants suggest that “Plaintiff should proffer a more

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concrete explanation as to the subject matter of Mrs. Gluck‟s
deposition and the necessity of the deposition.” Id.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
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 this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “In response to a motion to quash a
subpoena, „[t]he party issuing the subpoena must demonstrate
that the information sought is relevant and material to the
allegations and claims at issue in the proceedings.‟ ... Once
the party issuing the subpoena has demonstrated the relevance of
the requested documents, the party seeking to quash the subpoena
bears the burden of demonstrating that the subpoena is
overbroad, duplicative, or unduly burdensome.” Libaire v.
Kaplan, 760 F. Supp. 2d 288, 291 (E.D.N.Y. 2011) (citations
omitted).
Without addressing the arguments asserting privilege or
standing, the Court finds that plaintiff has failed to
demonstrate how the information sought by deposing Mrs. Gluck is

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relevant and material to the allegations and claims at issue in
these proceedings. First, to the extent that plaintiff seeks to
depose Mrs. Gluck regarding defendant Gluck‟s 2010 medical
condition, the Court has previously ruled that his 2010 medical
condition is not relevant to the claims or defenses in this
matter. See Doc. #76 Ruling on Motions to Compel, at 9-13.
Although plaintiff claims that Mrs. Gluck will be deposed on
“events which are material” to the claims against the Town and
the BOE, she fails to articulate which events, and how they are
material to the claims in the Complaint. Without more, it is
difficult to discern the relevance and/or importance of Mrs.
Gluck‟s testimony to resolving the issues raised in counts one
through four of the Complaint. In that regard, the Court credits
the defendants‟ argument that Mrs. Gluck has not been identified
by plaintiff, or any other potential witness, as having been a
witness to, or making statements of her own relating to, the
allegations in the Complaint. [Doc. #62 at 2]. Accordingly, the
Court finds on the record before it, that plaintiff has failed
to make a sufficient proffer of relevancy concerning the
deposition of Mrs. Gluck.
Further, the Court notes that the parties have engaged in
nearly seven months of discovery, from approximately May 2015
through December 31, 2015. See Doc. ##15, 20, 32, 51. As of July

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31, 2015, plaintiff had taken six fact witness depositions, and
reportedly anticipated taking at least four more. [Doc. #32 at
1-2]. At this late stage of fact discovery, which has now
closed, it would appear that plaintiff‟s efforts to subpoena
Mrs. Gluck are nothing more than a fishing expedition.
Accordingly, without a specific proffer of the testimony that
plaintiff seeks to obtain from Mrs. Gluck, and how such
testimony would be relevant and/or critical to the claims in the
Complaint, the Court finds that Mrs. Gluck, a non-party, would
be unduly burdened if she was required to appear and testify at
a deposition. See Libaire, 760 F. Supp. 2d at 293 (“[A] court is
required to weigh the burden to the subpoenaed party against the
value of the information to the serving party.” (citation
omitted)). Therefore, the Court GRANTS defendants‟ motion to
quash and for protective order as to Mrs. Gluck.
D.

Conclusion
Therefore, for the reasons stated, the Court GRANTS

defendants‟ Motion to Quash, and for Protective Order as to Mrs.
Gluck, and DENIES as moot, defendants‟ Motion to Quash and for
Protective Order as to Mr. Dicostanzo. [Doc. #59].
This is not a Recommended Ruling. This is an order
regarding discovery and case management which is reviewable

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pursuant to the “clearly erroneous” statutory standard of
review. 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the Court
unless reversed or modified by the district judge upon motion
timely made.
SO ORDERED at New Haven, Connecticut this 26th day of
January 2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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