Okereke v. Allen
MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 6/6/2017. (seb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DR. EMMANUEL OKEREKE,
Civil Action No. 15-7083 (PGS)
JOHN CHARLES ALLEN, ESQ.,
BONGIOVANNI, Magistrate Judge
This matter comes before the Court upon Plaintiff Dr. Emmanuel Okereke’s (“Plaintiff”)
Motion to Quash Defendant John Charles Allen’s (“Defendant”) subpoena which was served
upon Ross University Medical School (“RUMS”). (Docket Entry No. 66). Defendant opposes
Plaintiff’s motion (Docket Entry No. 78). The Court has fully reviewed and considered all
arguments made in support of and in opposition to Plaintiff’s motion. The Court considers
Plaintiff’s motion without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth
more fully below, Plaintiff’s motion is GRANTED.
Background and Procedural History
This case arises from Defendant’s representation of Plaintiff in a lawsuit Plaintiff filed in
January 2011 against Ross University Medical School alleging violation of the New Jersey Law
against Discrimination, tortious interference, damage of reputation, and breach of contract. Pl.’s
Br. in Supp. of Mot. at 2. (hereinafter “the underlying lawsuit”) Plaintiff alleges that in the
underlying lawsuit, Defendant Allen committed several acts of malpractice. See Pl.’s Am.
Compl., Docket Entry No. 64. Plaintiff alleges that Defendant Allen did not instruct him as to
how to complete discovery responses, resulting in a motion to compel discovery or in the
alternative to dismiss the complaint, which resulted in the complaint being dismissed without
prejudice. Pl.’s Am. Complaint, ¶¶12-17. Plaintiff further contends that Defendant Allen sent
him another request to complete discovery but without advising him how to answer the
interrogatories. Id. at ¶¶18-19. Further that Defendant Allen failed to oppose a motion to
dismiss resulting a dismissal with prejudice. Id. at ¶¶33-35. It is conduct of this nature which
forms the basis of the instant claim of legal malpractice against Defendant Allen, his attorney in
the underlying lawsuit.
On May 9, 2014, Plaintiff filed a complaint in the United States District Court, Southern
District of New York seeking damages for Defendants alleged professional negligence. (Docket
Entry No. 2). Defendant filed a motion to dismiss (Docket Entry No. 10) which was denied on
April 17, 2015 (Docket Entry No. 18). The case was transferred to the United States District
Court, District of New Jersey on September 17, 2015. Defendant then filed a motion for
sanctions and to dismiss on September 30, 2015 (Docket Entry No. 40) which was denied on
September 22, 2016 (Docket Entry No. 60). The instant motion was filed on October 28, 2016.
Defendant filed his opposition brief on May 5, 2017 (Docket Entry No. 78) after the Court
granted numerous extension requests due to Defendant’s medical issues.
A. Standard of Review
Federal Rule of Civil Procedure 26 governs the scope of discovery in federal litigation.
Pursuant to Rule 26(b)(1), the scope of permissible discovery is quite broad. Indeed, “[p]arties
may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense…Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Rule 26(b)(1).
Nevertheless, while undeniably broad, there are limits to the permissible scope of discovery.
If a subpoena falls outside the scope of permissible discovery, the Court has authority to
quash or modify it upon a timely motion by the party served. Fed.R.Civ.P. 45(c)(3). Specifically,
four circumstances exist which require the Court to quash or modify a subpoena. Rule 45(c)(3)(A)
(A) On timely motion, the court by which a subpoena was issued shall quash or modify
the subpoena if it
fails to allow reasonable time for compliance;
requires a person who is not a party or an officer of a party to travel to a
place more than 100 miles from the place where that person resides…;
(iii) requires disclosure of privileged or other protected matter and no exception
or waiver applies; or
subjects a person to undue burden.
The subpoena at issue in this motion was served upon RUMS on September 20, 2016.
Pl.’s Br. in Supp. of Mot. at 2. The subpoena seeks to compel the production of:
“1. The complete academic and student file for [Plaintiff] with Ross University
Medical School (“Request 1”);
2. All Documents concerning [Plaintiff’s] Dismissal as a student at [RUMS]
3. All report cards/grades for [Plaintiff] with [RUMS] (“Request 3”);
4. Any and all other documents concerning [Plaintiff] (“Request 4”);
5. A copy of all legal pleadings filed on or after July 31, 2012 concerning
[Plaintiff] (“Request 5”);
6. Any and all documents or things that lawfully permit [Plaintiff] to refer to
himself as a Doctor.” (“Request 6”)
Id. at 3.
Plaintiff argues that although the subpoena was served upon non-party RUMS, Plaintiff
has standing to bring this motion because he has a personal privilege in the information sought
from RUMS. Id. at 4. Plaintiff states that the subpoena seeks the disclosure of “highly personal,
private information related to [Plaintiff’s] tenure as a student of [RUMS].” Id. at 5.
Plaintiff further argues that the information sought in the subpoena is not relevant
because it is not related “to the cause of action at issue here: legal malpractice.” Id. at 6. Plaintiff
contends that the documents sought are not relevant to Defendant’s failure to submit discovery
responses or failure to oppose a motion to dismiss during his representation of Plaintiff. Id. at 67. Plaintiff states that Defendant’s “only possible purpose in compelling the production of these
irrelevant documents is to embarrass, harass, and humiliate Plaintiff.” Id. at 7.
Additionally, Plaintiff argues that the subpoena seeks the disclosure of private, privileged
material. Id. at 8. Plaintiff states that there are two types of privacy protected by the
Constitution: “One is the individual interest in avoiding disclosure of personal matters, and
another is the interest in independence in making certain kinds of important decisions.” Id.
(citing Whalen v. Roe, 429 U.S. 589, 599-600 (1977). Plaintiff argues that the information
sought is precisely the type of personal information described in Whalen and that Plaintiff
“undoubtedly has an expectation of privacy regarding his student and academic records from
[RUMS].” Pl.’s Br. in Supp. of Mot. at 8.
Plaintiff further argues that “[u]nder New Jersey law, the disclosure of highly personal
records as are at issue here can only be compelled on a particularized showing of need” and that
Defendant cannot meet that standard. Id. at 9. Plaintiff cites Harmon v. Great Atlantic & Pacific
Tea Co., 273 N.J. Super. 552 (App. Div. 1994), in which the Court held that the intrusion on
plaintiff’s privacy by seeking to obtain bank statements and credit card receipts was unwarranted
absent a showing of need. Plaintiff states that “there is no question that these records are as
personal, sensitive and private as the check and credit card records in Harmon. Pl.’s Br. in Supp.
of Mot. at 10. Plaintiff further states that “A person’s interest in preserving the confidentiality of
sensitive information contained in his personnel files has been given forceful recognition in both
federal and state legislation.” Id. (citing Detroit Edison Co. v. NLRB, 440 U.S.301 (1979)).
Finally, Plaintiff argues that the subpoena is unduly burdensome. Id. Plaintiff states that
the subpoena seeks to compel the production of “the complete academic and student file for
Emmanuel Okereke with [RUMS]” and “any and all other documents concerning Emmanuel
Okereke.” Plaintiff argues that “[t]hese broad sweeping requests fall far short of meeting the
particularity requirement of Federal Rule of Civil Procedure 34(b)(1)(a)” which states that a
request must describe with reasonable particularity each item or category of items to be
inspected. Id. at 11-12. Furthermore, Plaintiff states that since RUMS is a non-party, it is
afforded a greater protection from discovery than a normal party. Id. at 12 (citing Stamy v.
Packer, 138 F.R.D. 412, 419 (D.N.J. 1990).
Defendant argues that the information requested is relevant because Plaintiff is claiming
that Defendant’s alleged negligence caused Plaintiff to suffer damages and has prevented
Plaintiff from being able to practice medicine in the United States. Def.’s Letter in Opp’n at 1-2.
Defendant asserts that the information requested will show that Plaintiff was not a successful
medical student and was academically disqualified from medical school. Id. at 2. Defendant
contends that Plaintiff’s academic records will show that Plaintiff’s claims against Defendant are
“wholly without merit and that the only just result would be for his complaint…to be dismissed.”
Plaintiff counters that instead of bolstering Defendant’s case, introduction of Plaintiff’s
“purportedly poor academic performance” would actually strengthen Plaintiff’s case against
RUMS since Plaintiff alleges that he was given poor grades in a discriminatory and unfair
manner. Pl.’s Reply Letter at 3. Plaintiff again asserts that his academic record is not relevant to
this case as it is a legal malpractice matter. Id. Plaintiff cites Passante v. Yormark, 138 N.J.
Super. 233, 239 (App. Div. 1975) for the assertion that a litigation attorney’s duty is to take any
steps necessary in the proper handling of the case, including the duty of investigating the facts,
formulating a litigation strategy and filing within a reasonable time any action necessary to
effectuate recovery. Pl.’s Reply Letter at 3.
The Court finds that the information requested is not relevant to this matter. Plaintiff’s
academic record is not relevant to whether or not Defendant was negligent in his representation
of Plaintiff. The Court so finds given that the legal malpractice matter stems from the
Defendant’s handling of discovery in the underlying lawsuit. Simply put, here Plaintiff alleges
that the underlying lawsuit was dismissed because his attorney did not assist him in the
preparation of his discovery responses, that his attorney did not ensure that Plaintiff’s discovery
responses were complete and timely and that his attorney did not oppose a motion to dismiss.
The Court is hard-pressed to find that Plaintiff’s academic performance record, poor or
otherwise, is relevant to the allegations contained in this Complaint.
For the reasons set forth above, Plaintiff’s Motion to Quash is GRANTED. An
appropriate Order follows.
Dated: June 6, 2017
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
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