CRISTOBAL v. COUNTY OF MIDDLESEX et al

Filing 33

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/11/2018. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHRISTINE CRISTOBAL,
Civil Action No. 16-4493 (MAS)
Plaintiff,
v.

MEMORANDUM OPINION

COUNTY OF MIDDLESEX,
MIDDLESEX COUNTY SHERIFF’S
DEPARTMENT, MILDRED SCOTT,
KEVIN B. HARRIS, JOHN DOES 1-10,
AND JOHN DOE CORPORATIONS 1-10,
Defendants.

BONGIOVANNI, Magistrate Judge
This matter comes before the Court upon Plaintiff Christine Cristobal’s (“Plaintiff”)
Motion to Compel Compliance with a Subpoena against non-party New Jersey Civil Service
Commission (“Commission”) (Docket Entry No. 20). The Commission opposes Plaintiff’s
motion and filed a Cross-Motion to Quash the Subpoena (Docket Entry No. 23). The Court has
fully reviewed and considered all arguments made in support of and in opposition to Plaintiff’s
motion and the Commission’s Cross-Motion. The Court considers the motions without oral
argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below, Plaintiff’s
motion is DENIED and the Commission’s motion is GRANTED.
I.

Background and Procedural History
This case arises from Plaintiff’s termination from her job as a Sheriff’s Officer for

Middlesex County as a result of a Functional Capacity Evaluation by Kinematic Consultants,
Inc. Plaintiff states that defendants utilized the “Sheriff’s Department essential job functions

listing” to evaluate at least four other Middlesex County Sheriff’s Officers to determine whether
they could return to full duty work after illness or injury. (Pl.’s Br. in Supp. of Mot. at 2).
Plaintiff further states that three of the four employees who were disqualified from returning to
full duty work were women, therefore, it appears the standards set forth in the “Sheriff’s
Department essential job functions listing” have a disparate impact on women. (Id.).
On June 30, 2016 Plaintiff filed a complaint against Defendants County of Middlesex,
Mildred Scott, Middlesex County Sheriff’s Department, and Kevin B. Harris in the Superior
Court of the State of New Jersey, Middlesex County alleging violations of the New Jersey Law
Against Discrimination, N.J.S.A. 10:5-1 (“NJLAD”) and the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to 2. Defendants Mildred Scott, Middlesex County Sheriff’s Department, and
Kevin B. Harris filed a notice of removal on July 25, 20161. An initial scheduling conference
was held and a scheduling order was entered on September 12, 2016. (Docket Entry No. 8).
During the course of discovery, Plaintiff served a subpoena on the Commission requesting
information as to other Sheriff’s Officers disqualified from employment pursuant to N.J.A.C.
4A:2-2.3(a)(3).
Plaintiff filed a motion on November 10, 2017 seeking to enforce the subpoena served on
the Commission (Docket Entry No. 20). The Commission filed a motion to quash the subpoena
on December 4, 2017. (Docket Entry No. 23).
II.

Analysis
The subpoena at issue in this motion was served upon the Commission on July 19, 2017.

The subpoena seeks to obtain information as to other Sheriff’s Officers disqualified from
employment pursuant to N.J.A.C. 4A:2-2.3(a)(3) which was the regulation used to terminate

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Defendant County of Middlesex consented to the removal.

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Plaintiff’s employment. (Pl.’s Br. in Supp. of Mot. at 2). Specifically, the subpoena seeks the
testimony and production of:
1) Preliminary Notices of Disciplinary Action charging NJAC 4A:2-2.3(a)(3) –
Inability to perform Job Duties issued by Middlesex County and/or Middlesex
County Sheriff’s Office; and
2) Final Notices of Disciplinary Action charging NJAC 4A: 2-2.3(a)(3) –
Middlesex County.
(See Docket Entry No. 20-2)
Plaintiff does not present any argument in support of her motion to compel compliance
with the subpoena, but merely cites to Federal Rules of Civil Procedure 45 and 26(b), the latter
of which permits discovery of any non-privileged material “relevant to the claim or defense of
any party. (Id. at 3). 2
Pamela Ullman (“Ms. Ullman”), Deputy Attorney General in the Division of Law,
Department of Law and Public Safety, State of New Jersey submitted a certification stating that
she has been assigned the responsibility of handling the subpoena on behalf of the Commission
and its Custodian of Records. (Ullman Certification ¶1). Ms. Ullman states in the email
attachment to her certification that the Commission files cannot be searched to list them by
disciplinary action. (Ms. Ullman’s 10/26/17 email to Donald Burke; Docket Entry No. 23-7).
Ms. Ullman explains the process that the Commission would have to go through to obtain the
requested information:
“The [Commission] does not maintain a central repository of PNDAs
[Preliminary Notice of Disciplinary Action] and FNDAs [Final Notice of
Disciplinary Action] that have been submitted by appointing authorities. These
records, when they are received from the agencies, are added to the employee’s
personnel file in the Electronic Document Image Tracking System (EDITS)
system. A single employee EDITS file can include any number of pages,
depending on the employee’s length of service and the number of personnel
actions in the employee’s history. The subpoena is not limited to a particular
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Since it was not raised by the Commission, for the purposes herein, the Court is assuming that the information
sought is relevant and otherwise discoverable, i.e. not privileged.

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individual, County department and/or time frame. According to CAMPS records,
there are over 2,000 active Middlesex County employees, and over 8,000 inactive
County employees since 2004. In order to determine if PNDAs or FNDAs exist
for these employees, staff would need to run a CAMPS report of approximately
10,000 employees and then I believe they can run a search for those which have
disciplinary action involved. They would then have to manually enter each of
these employees’ names into EDITS, and then search through each employee’s
EDITS file to determine whether a PNDA or FNDA exists because EDITS cannot
be electronically queried to search for specific imaged documents contained
within an employee’s personnel file, such as a PNDA or FNDA. Then if a PNDA
or FNDA exists, [Commission] staff would need to review each record to
determine whether the charge of N.J.A.C. 4A:2-2.3(a), inability to perform duties
is included.” (Id.).
Ms. Ullman notes that after providing Plaintiff’s counsel with the foregoing information
regarding the process that would be required to obtain the requested information, she had hoped
“we can figure out a way to proceed that will avoid motion practice and will not be unduly
burdensome and basically impracticable for the agency to comply with.” (Ms. Ullman’s 10/26/17
email to Donald Burke). Rather than responding to Ms. Ullman’s suggestion or making an effort
to narrow his request, Plaintiff’s counsel filed a motion to enforce the subpoena on November
10, 2017.
The Commission argues that producing the records would be an “extreme burden” due to
the aforementioned process that would be necessary. (Commission’s Br. in Supp. of CrossMotion and Opp’n to Pl.’s Mot. at 4). Additionally, the Commission argues that it would need to
dedicate a staff member to perform this search full-time for several weeks. (Id. at 6). The
Commission states that it does not have staff available to dedicate solely to this project. (Id.).
Plaintiff did not submit a reply to the Commission’s assertions.
The Court finds that the subpoena is unduly burdensome under Fed.R.Civ.P. 45.
Furthermore, Fed.R.Civ.P. 45(d)(1)(D) states “The person responding need not provide discovery
of electronically stored information from sources that the person identifies as not reasonably

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accessible because of undue burden or costs. On motion to compel discovery…the person
responding must show that the information is not reasonably accessible because of undue burden
or cost.”
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)
provides that:
(A) On timely motion, the court by which a subpoena was issued shall quash or modify
the subpoena if it
(i)
fails to allow reasonable time for compliance;
(ii)
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
(iv)
subjects a person to undue burden.
(Id.)
The Court finds that the Commission has met the burden of showing that the information
requested by Plaintiff is not reasonably accessible. The Court further finds that requiring the
Commission to dedicate a staff member to the full-time, weeks long, search would be unduly
burdensome. (See Commission’s Br. in Supp. of Cross-Motion and Opp’n to Pl.’s Mot. at 6.).

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III.

Conclusion
For the reasons set forth above, Plaintiff’s Motion to Compel Compliance with the

subpoena is DENIED and the Commission’s Cross-Motion to Quash the Subpoena is
GRANTED. An appropriate Order follows.
Dated: May 11, 2018
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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