Kiczuk v. USA
ORDER. RULING with respect to the Court's January 7, 2022, Order, ECF No. 27 . On January 7, 2022, the Court issued an Order via a docket entry granting, in part, and denying in part, Plaintiff's Motion to Quash Subpoena Duces Tecum, ECF. No. 17 . The attached ruling sets forth the Court's reasons for its Order, ECF. No. 27 . Signed by Judge S. Dave Vatti on 1/11/22. (Arroyo, Alexandra)
Case 3:21-cv-00707-KAD Document 28 Filed 01/11/22 Page 1 of 12
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
No. 3:21-CV-707 (KAD)
RULING ON PLAINTIFF’S MOTION TO QUASH SUBPOENA DUCES TECUM
1. The Factual and Procedural Background
On May 24, 2021, plaintiff Diane Kiczuk (hereinafter, the “plaintiff”) brought this action
against the United States of America (hereinafter, the “defendant”) in which plaintiff seeks
refunds of alleged overpayments to the defendant of federal income tax in certain tax years.
Doc. No. 1. The crux of plaintiff’s complaint is that in tax years 2015, 2016 and 2017, following
a successful application in or about March 2011 pursuant to Conn. Gen. Stat. § 5-192p, she
received service-connected disability pension benefits from her employer, the State of
Connecticut, as a result of injuries sustained in a fall at work and paid federal income tax when
such benefit payments were, in fact, non-taxable. Doc. No. 1, at ¶¶ 5-8, 14. Plaintiff alleges
that, under applicable federal statutes and regulations, these payments did not constitute gross
income that was taxable because such payments were received under a statute in the nature of a
workmen’s compensation act which provides compensation to employees for personal injuries
sustained in the course of employment. Doc. No. 1, at ¶ 14. Plaintiff acknowledges in her
complaint that a service-connected disability pension would be converted to a normal retirement
pension and would be taxable if an employee recovers from the predicate injury prior to normal
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retirement age and is not re-employed. Doc. No. 1, at ¶ 14g. Presumably, in light of this
acknowledgement, plaintiff alleged in her complaint that she turned 65 in July 2019 without
having recovered from her disability. Doc. No. 1, at ¶ 14h.
On October 12, 2021, defendant served a third-party document subpoena upon the
Connecticut Office of the State Comptroller seeking four categories of documents, which are set
All documents relating to all hearings involving Plaintiff before the Connecticut
Medical Examining Board, including but not limited to transcripts of testimony
and documents and exhibits submitted at both the March 26, 2010 hearing and the
March 11, 2011 hearing.1
All documents relating to the Connecticut Medical Examining Board’s decision,
in or about 2010, to reject Plaintiff’s application for disability retirement benefits.
All documents relating to the Connecticut Medical Examining Board’s decision,
in or about 2011, to grant Plaintiff’s application for disability retirement benefits.
All correspondence between Plaintiff and the Connecticut Medical Examining
Doc. No. 18-3, at 6. Defendant sought compliance with the document subpoena by the Office of
the State Comptroller by November 18, 2021. Doc. No. 18-3, at 1. On November 17, 2021, the
Office of the Comptroller, through counsel, notified the parties via email that it had gathered
documents responsive to the subpoena and that the documents totaled approximately 500 pages.
Doc. No. 23, at 2.
In any event, on November 11, 2021, plaintiff moved to quash the subpoena in its
entirety. Doc. No. 17. For purposes of standing, plaintiff claims a privacy interest in the
confidentiality of her medical records. Doc. No. 18, at 3-7. As to the merits of the document
While plaintiff submitted a successful application for disability retirement benefits in 2011
which was the subject of a March 11, 2011, hearing before the Connecticut Medical Examining
Board, she had also submitted a prior unsuccessful application in 2010, which was the subject of
the March 26, 2010 hearing. Doc. No. 22, at 3.
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requests, she argues that the documents sought are not relevant to the claim asserted in the
complaint because “in determining the taxability of disability pension payments made pursuant
to a statute, the task before a court is to examine the nature of the statute itself, not the facts
underlying the award of the particular disability pension or how the awarding body, in this case,
the Medical Examining Board, went about the performance of its task.” Doc. No. 18, at 12.
In its memorandum in opposition dated November 24, 2021, the defendant argues that the
plaintiff lacks standing to object to a non-party subpoena and that the records sought are relevant
or at least reasonably calculated to lead to information that could bear on issues and allegations
that plaintiff has raised in the complaint. See generally Doc. No. 22. The Court heard oral
argument on January 3, 2022, Doc. No. 26, and for the following reasons, plaintiff’s motion to
quash is GRANTED, in part, and DENIED in part.
2. Plaintiff’s Standing to Challenge the Subpoena
As an initial matter, the Court concludes that plaintiff has standing to challenge the
document subpoena served by the defendant upon the Connecticut Office of the State
Comptroller. “Pursuant to Rule 45 [of the Federal Rules of Civil Procedure], any party may
serve a subpoena commanding a non-party to produce designated documents.” Crespo v.
Beauton, No. 3:15-CV-412 (WWE) (WIG), 2016 WL 259637, at *2 (D. Conn. Jan. 21, 2016)
(citation and quotation marks omitted). “Rule 45 subpoenas are subject to the relevance
requirements set forth in Rule 26(b).” Crespo, 2016 WL 259637, at *2; citing Fed. R. Civ. P. 45.
Federal Rule of Civil Procedure 45(d)(3)(A) states, in pertinent part, that “[o]n timely motion,
the court for the district where compliance is required must quash or modify a subpoena that …
(iii) requires disclosure of privileged or other protected matter, and if no exception or waiver
applies.” (emphasis added). “The burden of persuasion in a motion to quash a subpoena issued
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in the course of civil litigation is borne by the movant.” Dukes v. NYCERS, 331 F.R.D. 464, 469
(S.D.N.Y. 2019) (citation and quotation marks omitted).
Here, plaintiff seeks to quash a subpoena served by the defendant upon a non-party to this
litigation. “A party ordinarily lacks standing to quash a subpoena directed at a non-party unless
the party is seeking to protect a personal privilege or right. If a party moves to quash a subpoena
directed at a nonparty, the claim of privilege or right must be personal to the movant, not the
nonparty the subpoena was served on.” Strike 3 Holdings, LLC v. Doe, 337 F.Supp.3d 246, 251–
52 (W.D.N.Y. 2018) (citation and quotation marks omitted); see also Weinstein v. University of
Conn., No. 3:11-CV-1906 (WWE), 2012 WL 3443340, at *2 (D. Conn. Aug. 15, 2012)
(“[n]umerous cases have held that a party lacks standing to challenge a subpoena absent a
showing that the objecting party has a personal right or privilege regarding the subject matter of
The documents sought by defendant from the Office of Comptroller relate to plaintiff’s
applications for disability retirement benefits and, as such, include medical records and
information pertaining to plaintiff’s physical conditions as well as testimony, correspondence
and decisional documents that likely include references to such information. Federal courts have
consistently recognized that individuals have a privacy interest in their medical records,
including a privacy interest sufficient to pursue a motion to quash a Rule 45 subpoena. See e.g.
Matson v. Bd. of Educ., City School Dist. of N.Y., 631 F.3d 57, 63-64 (2d Cir. 2011) (“there
exists in the United States Constitution a right to privacy protecting the individual interest in
avoiding disclosure of personal matters…[this] includes the right to protection regarding
information about the state of one’s health.”); Doe v. Southeastern Penn. Transp. Auth., 72 F.3d
1133, 1138 (3d Cir. 1995) (finding that medical records, “which may contain intimate facts of a
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personal nature, are well within the ambit of materials entitled to privacy protection” and are
“precisely the sort intended to be protected by the penumbras of privacy.”); Jacobs v.
Connecticut Community Technical Colleges, 258 F.R.D. 192, 194-95 (D. Conn. 2009) (holding
that plaintiff had a personal privacy right in his psychiatric and mental health records sufficient
for standing to challenge a Rule 45 third party subpoena seeking such records); Shutrump v.
Safeco Ins. Co. of America, No. 17-CV-22 (CVE) (TLW), 2017 WL 3579211, at *2 (N.D. Okla.
Aug. 18, 2017) (“Plaintiff clearly has a privacy interest in a file that contains his medical records,
and because plaintiff has a legitimate privacy interest in the contents of the file, he has standing
to challenge the subpoena.”); Merlo v. McDonough, No. 2:19-CV-5078 (ODW) (JC), 2021 WL
4434336 (C.D. Ca. Aug. 2, 2021) (plaintiff has a privacy interest in medical records sought
through a third party subpoena sufficient to qualify such records as “other protected matter and
afford standing to Plaintiff to challenge their disclosure through a motion to quash.”).
While defendant appears to suggest that plaintiff’s voluntary disclosure of medical
records to the Connecticut State Comptroller undermines plaintiff’s standing to challenge a Rule
45 subpoena seeking disclosure of those same records in connection with the instant action, Doc.
No. 22 at 8, the Court does not agree that a voluntary prior disclosure of medical information to
one party somehow operates as a general and blanket waiver of privacy interests in those records
with respect to all third parties who eventually may seek access to those same records and
information. Defendant has not cited to any case that supports such an expansive proposition.
While the Court recognizes that, in particular cases, a plaintiff’s privacy interests in medical
records could be outweighed by their relevance to issues in the litigation, any such relevance
does not vitiate a plaintiff’s standing to challenge the Rule 45 subpoena as a threshold matter.
See Beeson v. Safeco Ins. Co. of America, No. CIV-20-327 (SLP), 2021 WL 5288599 (W.D.
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Okla. June 29, 2021) (finding that plaintiff had standing to challenge a Rule 45 subpoena seeking
medical records she voluntarily disclosed in connection with a prior car accident, but ordering
those medical records to be disclosed as they were relevant to plaintiff’s claims of injuries
arising from a subsequent accident). Accordingly, the Court concludes that plaintiff has standing
to challenge the document subpoena issued by the defendant to the State Comptroller and will
next address whether such documents are sufficiently relevant to issues raised in this matter that
such privacy interest is overcome.
3. The Relevance of the Subpoenaed Documents
Parties may obtain discovery regarding any non-privileged matter that is relevant to the
subject matter involved in the pending litigation. Fed. R. Civ. P. 26(b)(1). The information
sought does not need to be admissible at trial; it need only be reasonably calculated to lead to the
discovery of admissible evidence. Id. “Relevance” under Federal Rules of Civil Procedure
26(b)(1) has been defined broadly to include “any matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351(1978). In the discovery phase of a case, “[t]his
obviously broad rule is liberally construed.” Daval Steel Products v. M/V Fakredine, 951 F.2d
1357, 1367 (2d Cir. 1991) (citing Oppenheimer, 437 U.S. at 351). Since the concept of
relevance is not limited by considerations of evidentiary admissibility at the discovery stage, see
Fed. R. Civ. P. 26(b)(1), “[i]t is well established that relevance for the purpose of discovery is
broader in scope than relevance for the purpose of the trial itself.” Vaigasi v. Solow Mgmt. Corp.,
No. 11-Civ-5088 (RMB) (HBP), 2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016); accord Pal
v. Cipolla, No. 3:18-CV-616 (MPS) (TOF), 2020 WL 564230, at *7 (D. Conn. Feb. 5, 2020)
(relevance is “construed broadly” in discovery); Martino v. Nationstar Mortg. LLC, No. 3:17-
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CV-1326 (KAD), 2019 WL 2238030, at *1 (D. Conn. May 23, 2019) (at discovery stage,
relevance is “an extremely broad concept”).
In Take v. Commissioner of Internal Revenue Service, 804 F. 2d 553 (9th Cir. 1986), aff’g
82 T.C. 630 (1984), the Ninth Circuit Court of Appeals addressed the issue of whether disability
retirement benefits were excludable as gross income under the same statute and IRS regulations
at issue in the instant action. The Ninth Circuit concluded that statutes that do not restrict the
payment of benefits to cases of work-related injury or sickness are not to be considered
workmen’s compensation acts for purposes of an IRS exclusion from gross income, see Take,
804 F.2d at 557, and further held that courts must examine “the statute under which a taxpayer
receives benefits to determine whether the law qualifies for [an exclusion].” Take, 804 F. 2d at
558. Addressing a similar question in Rutter v. Commissioner of Internal Revenue, 760 F.2d
466, 468 (2d Cir. 1985), the Second Circuit Court of Appeals observed that “in determining
whether such payments are excludable from gross income, the regulation charges us to look to
the nature of the statute, rather than the source of the injury, and a statute that does not
distinguish between work-related injuries and other types of injuries is not in the nature of a
workmen’s compensation statute.” Relying upon Take and Rutter, plaintiff argues that the
documents sought by defendant from the Office of the State Comptroller are irrelevant because
the proper focus for inquiry in this matter is the nature of the statute pursuant to which plaintiff’s
benefits were awarded, not the source or nature of the injuries sustained. Doc. No. 18, at 12.
Defendant argues that the records sought bear directly upon allegations set forth in the complaint
and at issue in this litigation and meet established standards of relevance. Doc. No. 22, at 13.
The Court has reviewed the Connecticut Medical Examining Board’s April 12, 2011,
Notice of Decision awarding plaintiff disability retirement benefits. Doc. No. 18-1. The Notice
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is silent as to the specific statute pursuant to which the Board awarded benefits to the plaintiff.
At a minimum, some of the documents sought likely will shed light on this issue. Further, while
the Court recognizes that there is a legitimate question under Take and Rutter whether facts
regarding the plaintiff’s underlying injury and the circumstances surrounding that injury would
be admissible at all during a final adjudication of this matter, that is not the standard that is
applicable at the discovery stage of these proceedings. Given that the Office of the Comptroller
has identified 500 pages of material responsive to the categories of information sought in the
document subpoena, this Court cannot say with any certainty that there is no information in those
documents that bears on, or that reasonably could lead to other matters that could bear on, any
issue that is or may be in the case. It is certainly plausible that there may be information
pertaining to plaintiff’s successful 2011 application for disability retirement benefits that may be
pertinent or may lead to other information pertinent to the finder of fact’s ultimate determination
of whether those benefits were under a statute in the nature of a workmen’s compensation act.
Cf. Stanley v. United States, Civ. Nos. 93-S-2340, 2341, 2342 and 2382, 1995 WL 525592 (D.
Colo. April 11, 1995) (denying summary judgment with respect to the question of whether
disability retirement benefits awarded to plaintiff under a statute in the nature of a workmen’s
compensation act because the outcome depended, in part, on resolution of certain disputed facts).
Furthermore, medical records and decisional documents pertaining to plaintiff’s
successful 2011 application for benefits are also directly relevant or at least reasonably
calculated to lead to the discovery of potentially admissible evidence with respect to the issue of
whether plaintiff recovered from the injuries that were the predicate of her successful claim prior
to her normal retirement age such that they could be converted to taxable benefits. As a
preliminary point, it is not entirely clear to the Court whether this issue is an element of the cause
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of action asserted by the plaintiff or more in the nature of an affirmative defense that potentially
could be asserted by the defendant during this litigation depending on development of facts in
the course of discovery. The Court need not resolve the appropriate procedural posture this issue
may have at a penultimate determination on the merits, but need only consider this issue in the
context of the broad scope of discovery permissible at this stage of the proceedings based on the
allegations raised in the complaint. Here, plaintiff has specifically alleged in the complaint that
“[t]he Plaintiff turned 65 in July 2019 without having recovered from her disability.” Doc. No.
1, at ¶ 14h. Further, in the parties’ joint 26(f) Report, Doc. No. 11, the parties identified
“[w]hether Plaintiff recovered from her alleged injury before reaching her normal retirement
age” and “[d]etails surrounding Plaintiff’s injury” as anticipated topics for discovery, which is
entirely consistent with the allegation set forth in plaintiff’s complaint.2 The parties themselves
took pains to emphasize to the Court that the scope of discovery that might be required in this
case was more expansive than readily apparent from the face of the complaint and the narrow
confines that plaintiff now seeks to impose. As the parties observed, “the needs of the case are
The 26(f) report is not a trivial pleading and the parties’ representations in that report,
particularly one jointly undertaken, are not without consequence. The Court very often relies
upon those representations in assessing the needs of the case and the parameters of case
management. See, e.g., State Farm Fire & Cas. Ins. Co. v. Sayles, 289 F.3d 181, 182 (2d Cir.
2002) (citing Rule 26(f) Report to support assertion that a fact was undisputed); S.C. Johnson &
Son, Inc. v. Henkel, No. 3:19-CV-805 (AVC), 2020 WL 5640528 (D. Conn. Sept. 22, 2020)
(undisputed facts set forth in parties’ Rule 26(f) report could be relied upon by the factfinder as
stipulations); Doe v. Westport Bd. of Educ., No. 3:18-CV-1683 (KAD), 2020 WL 869861, at *1
n.1 (D. Conn. Feb. 21, 2020) (“[I]n the parties’ Rule 26(f) Report, this fact was listed as
undisputed ... taking this issue out of the case.”); Pal v. Cipolla, No. 3:18-CV-616 (MPS), 2020
WL 564230 (D. Conn. Feb. 5, 2020) (Court declined to phase discovery as requested by
defendants where parties represented in their 26(f) report that phased discovery would be
unnecessary); RIDE, Inc. v. APS Tech., Inc., No. 3:11-CV-1721 (JCH), 2015 WL 9581728, at *4
(D. Conn. Dec. 30, 2015) (citing Rule 26(f) Report to support assertion that a material fact was
undisputed); Murray v. Town of Stratford, 996 F.Supp.2d 90, 97 n.11 (D. Conn. 2014) (“The
Court also relies upon the forty-two paragraph Statement of Undisputed Facts found in the
parties’ Rule 26(f) Report of Parties’ Planning Meeting, filed June 27, 2011[.]”).
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greater than the amount in controversy may imply” and “[w]hile the instant suit seeks recovery
in the amount of $10,081.00, Plaintiff is 67 years old, has other claims pending before the IRS on
the same issue, and thus the determination of this suit will impact the taxability of many more
years’ income for Plaintiff.” Doc. No. 11, at 6. Lastly, both parties acknowledged in briefs in
connection with the motion to quash that the issue of whether plaintiff recovered from her
injuries prior to her normal retirement age was arguably salient to this litigation. Doc. No. 22 at
16; Doc. No. 23 at 5.
While plaintiff, despite earlier acknowledgement of the scope of discovery that might be
required in this matter, now suggests that medical records and information from 2011 would not
be relevant to the question of whether plaintiff recovered from her injuries eight years later in
July 2019, Doc. No. 23 at 5, the Court disagrees. Plaintiff’s medical records submitted in
connection with her 2011 application, transcripts of hearings and decisional documents from the
Connecticut Medical Examining Board’s may contain details of the nature of plaintiff’s injuries,
symptoms of those injuries and objective findings related to those injuries, which when
compared to medical records closer in time to plaintiff’s normal retirement age, may suggest that
plaintiff did recover or at least permit defendant to develop facts from which they might refute
plaintiff’s allegation that she did not recover. Accordingly, the Court concludes that the
information defendant seeks from the Office of the State Comptroller regarding plaintiff’s
medical records submitted in connection with her 2011 successful application for disability
benefits, her correspondence with the Board concerning that claim and the transcript, exhibits
and decisional documents from the hearing on that application are all relevant or at least bear on
or reasonably could lead to other matters that could bear on an issue that is or may be in the case,
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i.e. whether plaintiff recovered from those predicate injuries prior to reaching normal retirement
age in July 2019.
The Court notes that the defendant’s document subpoena also requests similar records in
connection with plaintiff’s unsuccessful 2010 application for disability retirement benefits. The
court does not believe such records to be relevant. Nor do they reasonably bear on any issue in
this case. Plaintiff did not receive any benefits in connection with this application. This
application is not referenced in the plaintiff’s complaint and does not form the basis of any claim
set forth in the complaint. It is undisputed that plaintiff received benefits only in connection with
her 2011 application, continues to receive benefits solely in connection with that application and
claims that those benefits received pursuant to the 2011 application are not taxable because they
are excluded from gross income. This claim does not depend to any degree on records related to
the unsuccessful 2010 application. The 2010 records, hearing transcripts and decisional
documents also will not shed light on whether plaintiff recovered by July 2019 from injuries that
were the lynchpin of her successful 2011 claim. The 2011 records are certainly sufficient for the
defendant to mount any such defense or at least rebut any such contention by the plaintiff.
For the foregoing reasons, plaintiff’s Motion to Quash Subpoena Duces Tecum is
GRANTED, in part, and DENIED in part, and the third party document subpoena to the
Connecticut Office of the State Comptroller is modified such that the Office of the Comptroller
is ORDERED to produce the following documents: (1) all documents relating to and submitted
in connection with plaintiff’s successful 2011 application for disability retirement benefits,
including but not limited to transcripts of testimony, documents and exhibits submitted at the
hearing held before the Connecticut Medical Examining Board on March 11, 2011; (2) all
documents relating to the Connecticut Medical Examining Board’s decision on or about April
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12, 2011, to grant plaintiff’s application for disability retirement benefits; and (3) all
correspondence between plaintiff and the Connecticut Medical Examining Board relating to her
successful 2011 application for disability retirement benefits.
Further, in light of the sensitive, private and confidential nature of the medical records
and information to be produced by the Office of the State Comptroller, the Court ORDERS that,
after receipt of documents responsive to the Court’s Order from the Office of the Comptroller,
the content of any documents containing plaintiff’s medical information or references to such
medical information shall be designated Confidential-Attorneys Eyes Only and the content of
such documents shall be subject to all limitations and conditions applicable to such a designation
under the District Court’s Standing Protective Order. Defendant is also ORDERED to provide a
copy of all documents received in response to this order from the Office of the Comptroller to
plaintiff’s counsel within seven (7) days of receipt.
This is not a recommended ruling. This is an order regarding case management which is
reviewable 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, on this 11th day of January, 2022, at Bridgeport, Connecticut.
/s/ S. Dave Vatti .
Hon. S. Dave Vatti
United States Magistrate Judge
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