Zagroba et al v. York Contracting Corp. et al
Filing
69
ORDER granting 55 Motion to Quash: See attached Order. Ordered by Magistrate Judge Lois Bloom on 5/26/2011. (Turilli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ZBIGNIEW ZAGROBA, PIOTR WINIARSKI,
and RYSZARD ZYCH, individually and on
behalf of other persons similarly situated who
were employed by YORK RESTORATION
CORP. and GEORGE YORK,
Plaintiffs,
ORDER
10 CV 2663 (ARR)(LB)
- against YORK RESTORATION CORP. and GEORGE
YORK,
Defendants.
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YORK RESTORATION CORP. and GEORGE
YORK,
Third-Party Plaintiffs,
- against BAMFORD CONSTRUCTION, INC.,
Third-Party Defendant.
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BLOOM, United States Magistrate Judge:
Plaintiffs Zbigniew Zagroba, Piotr Winiarski, and Ryszard Zych bring this action on
behalf of themselves and all other persons similarly situated against defendants York Restoration
Corp. and George York to recover unpaid overtime wages under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201, et seq., and the New York Labor Law. Plaintiffs now move
pursuant to Rule 45(c) of the Federal Rules of Civil Procedure, or alternatively Rule 26(c), to
quash or modify the subpoenas that defendants served on Chase Manhattan Bank (“Chase”) and
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Polish & Slavic Federal Credit Union (“FCU”). For the reasons set forth below, plaintiffs’
motion is granted.
BACKGROUND
Plaintiffs commenced this wage and hour collective action on June 10, 2010, alleging that
defendants engaged in a policy and practice of failing to pay their employees all earned wages
and overtime compensation. By Memorandum and Order dated April 25, 2011, the Court
granted plaintiffs’ motion for conditional certification as a collective action under the FLSA.
(Docket entry 54.) On April 19, 2011, defendants served subpoenas on Chase and FCU seeking
the bank records of the three named plaintiffs and four opt-in plaintiffs. One subpoena directed
Chase to produce “all cancelled checks, cashed checks, wire transfer authorizations or any other
related transfer documents from Graham Wine & Liquor d/b/a/ B.Q.E. Wine & Liquor presented
to and/or deposited in Chase Manhattan Bank account number . . . to the following individuals:
Zbigniew Zagroba, Piotr Winiarski, Ryszard Zych a/k/a Zych Mieczyslaw Ryszard a/k/a Ryszard
Mieczyslaw Zych, Marcin Dragowski, Miroslaw Krejpcio, Orlow Janusz, and Jaroslaw
Makowski.” (Docket entry 55-2.) The other subpoena directed FCU to produce “[a]ll cancelled
checks, cashed checks, wire transfer authorizations or any other related transfer documents
presented to and/or deposited in” FCU accounts held by Zagroba, Winiarski, or Zych. (Docket
entry 55-3.) On May 2, 2011, plaintiffs moved to quash or modify these subpoenas. (Docket
entry 55.) Plaintiffs request that the Court quash the subpoenas in their entirety, or in the
alternative, modify the subpoenas and direct Chase and FCU to produce only payroll checks for
the time period during which plaintiffs allege they were employed by defendants, and/or to
produce checks from specifically identified subcontractors, such as Bamford Construction and
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Solty’s Construction.
Defendants oppose plaintiffs’ motion and plaintiffs have replied. 1
(Docket entries 58 and 62.)
DISCUSSION
“Generally, absent a claim of privilege, a party does not have standing to object to a
subpoena served on a non-party.” In re Flag Telecom Holdings, Ltd., No. 02 Civ. 3400, 2006
U.S. Dist. LEXIS 69140, at *2 (S.D.N.Y. Sept. 13, 2006) (citing Langford v. Chrysler Motors
Corp., 513 F.2d 1121, 1126 (2d Cir. 1975)). “However, a party may have ‘a sufficient privacy
interest in the confidentiality of records pertaining to their personal financial affairs so as to give
them standing to challenge the subpoenas.’” Id. (quoting Sierra Rutile Ltd. v. Katz, No. 90 Civ.
49131994, 1994 U.S. Dist. LEXIS 6188, at *2 (S.D.N.Y. May 11, 1994)). As plaintiffs have a
privacy interest in their own bank records, plaintiffs have standing to challenge the subpoenas
that defendants served on Chase and FCU.
“Subpoenas issued under Rule 45 of the Federal Rules of Civil Procedure are subject to
Rule 26(b)(1)’s overriding relevance requirement.” During v. City Univ. of N.Y., No. 05 Civ.
6992 (RCC), 2006 U.S. Dist. LEXIS 53684, at *6-7 (S.D.N.Y. Aug. 1, 2006) (citations omitted).
Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged 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.” Fed. R. Civ. P. 26(b)(1). Even if a subpoena seeks the production of relevant
information, Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure requires the Court to
quash or modify a subpoena that “requires disclosure of privileged or other protected matter,” or
1
On May 25, 2011, the parties requested a one week stay of this action to discuss settlement and the Court granted
the parties’ request. (Docket entry 68.) The stay does not affect this Order.
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“subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(iii) and (iv). The parties have
not cited, and the Court is not aware of, any case in this Circuit addressing a motion to quash
subpoenas of a plaintiff’s bank records in a FLSA action.
Plaintiffs argue that the information sought by defendants’ subpoenas is irrelevant to the
instant action. Plaintiffs also argue that the subpoenas are overbroad insofar as they request
plaintiffs’ bank records beyond any paychecks from defendants’ subcontractors during the period
of plaintiffs’ employment. 2 Defendants argue that plaintiffs’ bank records are likely to produce
relevant information regarding who employed plaintiffs, how many hours plaintiffs worked, and
how much plaintiffs were paid. Specifically, defendants contend that plaintiffs’ bank records
could show that: 1) plaintiffs received paychecks from defendants’ numerous subcontractors; 2)
plaintiffs received income from sources other than defendants’ subcontractors; 3) plaintiffs made
purchases for travel or other similar activities; 4) plaintiffs formerly resided at locations far from
their job sites; 5) plaintiffs made purchases during work hours away from their job sites; or 6)
plaintiffs paid rent or mortgages to entities to whom plaintiffs identified their employer in rental
or loan applications.
Moreover, defendants contend that “any legitimate privacy concerns Plaintiffs have over
disclosure of bank deposit and withdrawal records can and should be addressed with a
confidentiality order.” Indeed, some district courts in this Circuit have found that privacy
concerns relating to subpoenaed bank records can be adequately protected by a confidentiality
order. See Iglesias-Mendoza v. La Belle Farm, Inc., No. 06 Civ. 1756 (KMK)(GAY), 2008 U.S.
Dist. LEXIS 47431, at *3 (S.D.N.Y. June 12, 2008) (concluding that subpoenas for defendants’
2
Defendants’ opposition agrees to limit the subpoenas to the time period between 2004 and the present. (Docket
entry 59, Rooney Decl., ¶4.)
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bank records in FLSA action “should be enforced with an appropriate confidentiality order”);
Conopco, Inc. v. Wein, No. 05 Civ. 9899 (RJH)(THK), 2007 U.S. Dist. LEXIS 53314, at *5
(S.D.N.Y. July 23, 2007) (finding that defendant’s privacy interests in her subpoenaed bank
records “can be protected by a variety of means, most notably the Confidentiality Order entered
in this action”). However, those decisions found the subpoenaed financial information relevant
to the claims and defenses in the action.
Here, defendants’ proffered reasons for needing plaintiffs’ bank records, with the
exception of paychecks from defendants’ subcontractors, are attenuated at best.
With the
exception of paychecks from subcontractors, plaintiffs’ bank records will not lead to evidence
that could bear on any issue in this case. To the extent defendants seek records regarding how
much plaintiffs were paid while working on defendants’ job sites, such information is properly
the subject of a subpoena. However, defendants have already served a subpoena on TD Bank
and received the paychecks issued to plaintiffs from Bamford Construction, one of the
subcontractors who allegedly employed plaintiffs. (Docket entry 55-1, Lusher Decl., ¶15.)
Moreover, to the extent plaintiffs were paid in cash, it is unclear how defendants’ request for
“cancelled checks, cashed checks, wire transfer authorizations or any other related transfer
documents” would lead to relevant discovery herein.
Nonetheless, the Court finds that
defendants’ subpoenas are proper with respect to any records reflecting plaintiffs were paid by
defendants’ subcontractors. As there is no indication in the instant record that plaintiffs worked
for any other subcontractor besides Bamford Construction or Solty’s Construction, the Court
hereby modifies defendants’ subpoenas and directs Chase and FCU to produce only cancelled or
cashed checks issued to plaintiffs from Bamford Construction and Solty’s Construction from
2004 through the present. As the Court finds that plaintiffs’ other financial information sought
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by defendants is not relevant to claims and defenses in this action, the Court grants plaintiffs’
motion to modify the subpoenas served on Chase and FCU. 3
CONCLUSION
For the reasons set forth above, plaintiffs’ motion to quash or modify the subpoenas that
defendants served on Chase and FCU is granted.
SO ORDERED.
___________/S/____________
LOIS BLOOM
United States Magistrate Judge
Dated: May 26, 2011
Brooklyn, New York
3
Plaintiffs alternatively move for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure.
As Rule 45(c) of the Federal Rules of Civil Procedure provides a sufficient basis to decide the instant motion, there
is no need for a protective order pursuant to Rule 26(c).
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