Flamiano v. Saratoga Springs City School District

Filing 4

ORDER it is hereby ORDERED, that the application is DENIED. Signed by Magistrate Judge Daniel J. Stewart on 9/19/2023. (Copies served via regular mail)(egr)

Case 1:23-mc-00028-LEK-DJS Document 4 Filed 09/19/23 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
IN RE: MATTER OF THE APPLICATION OF ALPHA
FLAMIANO FOR THE ISSUANCE OF A SUBPOENA
DUCES TECUM AND AN ORDER TO TAKE DISCOVERY
PURSUANT TO FCRP # 27

1:23-MC-28
(LEK/DJS)

APPEARANCES:

OF COUNSEL:

OFFICE OF MARTIN J. KEHOE, III

MARTIN J. KEHOE, III, ESQ.

Attorney for Petitioner
2009 Western Avenue
Albany, New York 12203

DANIEL J. STEWART
United States Magistrate Judge
DECISION and ORDER
Before the Court is an application by Alpha Flamiano, who is the Petitioner in an
administrative proceeding brought under the auspices of the New York State Department
of Education. See Dkt. No. 1-3. That proceeding was brought pursuant to, inter alia, the
Individuals with Disabilities Education Act, and relates to Petitioner’s efforts to secure
educational programming for her child. Dkt. No. 1-1 at p. 2. The application seeks the
issuance of an Order to Show Cause with respect to two proposed forms of relief: the
issuance of a judicial subpoena and an order pursuant to FED. R. CIV. P. 27 “for the
preservation of documents and testimony.” Dkt. No. 1. For the reasons which follow,
the request for an order from this Court is denied.
It appears from the application that as a part of the state administrative proceeding,
the Impartial Hearing Officer (“IHO”) issued a subpoena duces tecum to the Saratoga

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County Department of Social Services. Dkt. No. 1-1 at ¶ 14; Dkt. No. 1-4. A copy of
that subpoena was not included in the present application, but it appears that it directed
production of certain Department of Social Services records regarding child protective
services matters. See Dkt. No. 1-4. In a letter to the IHO, the Department of Social
Services objected to the production on numerous grounds, including the confidentiality
of the records under N.Y. Social Services Law section 422. Id. The application before
the Court does not indicate whether Petitioner sought some form of enforcement order
from the IHO or from state court. Instead, Petitioner now seeks an order directing the
Department of Social Services and the Respondent school district to show cause why this
Court should not issue a judicial subpoena directing production of these records.
“A federal court’s jurisdiction is not determined by its power to issue a subpoena;
its power to issue a subpoena is determined by its jurisdiction.” Matter of Marc Rich &
Co., A.G., 707 F.2d 663, 669 (2d Cir. 1983). “Because the subpoena process invokes the
authority of the issuing federal court, subject-matter jurisdiction over a pending federal
civil action is essential to the validity of a subpoena.” 9 Moore’s Federal Practice § 4504[1] (3d ed. 2023). Here, there is no underlying federal proceeding and so the Court
does not appear to have authority to issue a subpoena or to compel a response to the one
previously issued by the IHO. See generally FED. R. CIV. P. 45. The Court, therefore,
declines to issue any further order regarding the subpoena.
The proposed order to show cause also seeks an order under Federal Rule of Civil
Procedure 27. Dkt. No. 1. None of the supporting papers make further reference to this
proposed relief, however. Rule 27 permits a party to seek “an order authorizing the
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petitioner to depose the named persons in order to perpetuate their testimony.” FED. R.
CIV. P. 27(a)(1). “Rule 27 applies where testimony or evidence might be lost to a
prospective litigant, requiring an immediate taking of the deposition to preserve it for
future use.” In re Yamaha Motor Corp., U.S.A., 251 F.R.D. 97, 98 (N.D.N.Y. 2008).
“The sole purpose of Rule 27 is to perpetuate testimony.” Id. at 99. Here, Petitioner has
not identified any party she seeks to depose, nor identified any reason for needing to do
so at this time. Absent such a showing, relief under the rule in unavailable. In re Petition
of Allegretti, 229 F.R.D. 93, 96 (S.D.N.Y. 2005). Instead, Petitioner is seeking discovery
for purposes of a state administrative proceeding, but “Rule 27 may not be used as a
vehicle for discovery prior to filing a complaint.” Id. The request for relief under Rule
27, therefore, is denied.
ACCORDINGLY, it is hereby
ORDERED, that the application is DENIED; and it is further
ORDERED, that the Clerk shall provide a copy of this Decision and Order to
counsel for Petitioner via CM/ECF and additionally provide copies by mail to:
Nicholas M. Martin, Esq.
Office of the County Attorney
40 McMaster Street
Ballston Spa, New York 12020

Tara Moffett, Esq.
Girvin and Ferlazzo, PC
20 Corporate Woods Blvd.
Albany, New York 12211

IT IS SO ORDERED.
Dated: September 19, 2023
Albany, New York

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