Pirnik v. Fiat Chrysler Automobiles N.V. et al
Filing
244
MEMORANDUM OPINION AND ORDER: For the foregoing reasons, the Court concludes that Plaintiffs have the better of the argument. Accordingly, the Government's motion to quash or modify the subpoena to Garris pursuant to Rule 45 is DENIED. Unless t he Court orders otherwise, Plaintiffs shall conduct the deposition of Garris within the next three weeks. All other dates and deadlines in the Pirnik action remain in effect. The Clerk of Court is directed to docket this Memorandum Opinion and Order in both 18-CV-3460 and 15-CV-7199. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/24/2018) (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VICTOR PIRNIK, individually and on behalf of all others
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similarly situated,
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Plaintiff,
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-v:
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FIAT CHRYSLER AUTOMOBILES, N.V., et al.,
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Defendants.
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GARY KOOPMANN, TIMOTHY KIDD, and VICTOR PIRNIK, :
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Plaintiffs,
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UNITED STATES DEPARTMENT OF TRANSPORTATION, :
et al.,
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Defendants.
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08/24/2018
15-CV-7199 (JMF)
18-CV-3460 (JMF)
MEMORANDUM OPINION
AND ORDER
JESSE M. FURMAN, United States District Judge:
At issue in these cases is whether Plaintiffs can depose Robert Garris, a former employee
of the National Highway Traffic Safety Administration (“NHTSA”). Plaintiffs in Pirnik v. Fiat
Chrysler Automobiles N.V., 15-CV-7199 (JMF), subpoenaed Garris to testify and, at or about the
same time, submitted a request to the United States Department of Transportation (“USDOT”),
of which NHTSA is a part, seeking permission to conduct the deposition pursuant to agency
regulations knowing as “Touhy regulations.” USDOT denied the request, and Plaintiffs then
filed Koopman v. United States Department of Transportation, 18-CV-3460 (JMF), challenging
that denial under the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. In an Opinion and
Order entered on August 16, 2018, this Court held that the USDOT’s Touhy regulations “are
invalid to the extent that they extend to former employees” and that USDOT’s denial of
Plaintiff’s request, which had been based on those regulations, was therefore “arbitrary and
capricious and in excess of statutory jurisdiction.” Koopmann v. United States Dep’t of Transp.,
18-CV-3460 (JMF), 2018 WL 3946450, at *6 (S.D.N.Y. Aug. 16, 2018). Nevertheless, the
Court observed that Defendants in Koopmann (collectively, the “Government”) “could
conceivably challenge the subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure,
which authorizes a court to ‘quash or modify a subpoena’ on various grounds.” Id. at *7
(quoting Fed. R. Civ. P. 45(d)(3)(A)). Accordingly, it directed the parties to submit letters
addressing, among other things, “whether the Court should (a) deem Defendants to have made a
Rule 45 motion to quash or modify the subpoena to Garris in the Pirnik action and (b) decide that
motion based on the parties’ briefing in [Koopmann].” Id. The parties have filed letters and
agree that the Court should indeed deem the Government to have made a Rule 45 motion and
that there is no need for additional briefing. (18-CV-3460, Docket Nos. 30, 31).
Having reviewed the parties’ letters and applicable law, the Court now rejects the
Government’s argument, pursuant to Rule 45, that Garris’s testimony would “impos[e] an undue
burden.” (Docket No. 30, at 2). To begin with, the Court is skeptical that the Government — as
opposed to Garris, the recipient of the subpoena — has standing to argue that the subpoena poses
an undue burden. Cf., e.g., Manolis v. Brecher, No. 11-CV-2750 (RMB) (HBP), 2013 WL
4044808, at *2 n.1 (S.D.N.Y. Aug. 9, 2013) (“As a general rule, a party lacks standing to
challenge subpoenas issued to non-parties on the grounds of relevancy or undue burden.”);
Knoll, Inc. v. Moderno, Inc., No. C 12-80193-MISC (SI), 2012 WL 4466543, at *2 (N.D. Cal.
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Sept. 26, 2012) (“[A] party moving to quash a non-party subpoena has standing when the party
has a personal right or privilege in the information sought to be disclosed.”); United States v.
Nachamie, 91 F. Supp. 2d 552, 558 (S.D.N.Y. 2000) (“A party generally lacks standing to
challenge a subpoena issued to a third party absent a claim of privilege or a proprietary interest
in the subpoenaed matter.”). But the Court need not decide that question because it concludes
that the Government’s arguments fall short on the merits.
Notably, because Garris is a former employee, his deposition, by definition, does not
raise many of the typical concerns underlying the “undue burden” analysis. See, e.g., CCA of
Tennessee, LLC v. Dep’t of Veterans Affairs, No. 09-CV-2442 (WQH) (CAB), 2010 WL
1734953, at *8 (S.D. Cal. Apr. 27, 2010) (finding an undue burden because of “the specialized
nature of [the proposed deponent’s] work, her heavy patient load, [and] the lack of substitute
staff psychologists,” among other considerations). Nor is the request here “cumulative and
duplicative” or “too attenuated.” See Vale v. Great Neck Water Pollution Control Dist., No. 14CV-4229 (AYS), 2016 WL 11269253, at *3 (E.D.N.Y. May 31, 2016). As Plaintiffs explain,
Garris’s testimony is relevant to the issue of scienter, and his deposition would not be cumulative
because “he is the only independent party that can testify as to what information was provided to
[the Pirnik Defendants’] employees.” (18-CV-3460, Docket No. 26, at 20). And, as far as the
Court is aware, Garris is the only NHTSA employee that Plaintiffs seek to depose. In sum, in
“engag[ing] in a balancing test to determine whether undue burden exists,” Aristocrat Leisure
Ltd. v. Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 299 (S.D.N.Y. 2009), the Court
concludes that Garris’s deposition would not be unduly burdensome.
The Government plainly has standing to challenge the subpoena to Garris on the other
ground it presses, that the subpoena calls for disclosure of information protected by the
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deliberative-process privilege, because the Government is the holder of that privilege. See, e.g.,
Pleasant Gardens Realty Corp. v. H. Kohnstamm & Co., 08-CV-5582 (JHR/JS), 2009 WL
2982632, at *2-5 & n.10 (D.N.J. Sept. 10, 2009); Estate of Ungar v. Palestinian Auth., 400 F.
Supp. 2d 541, 554 (S.D.N.Y. 2005) (“In the absence of a claim of privilege, a party usually does
not have standing to object to a subpoena directed to a non-party witness.” (internal quotation
marks omitted)), aff’d, 332 F. App’x 643 (2d Cir. 2009); Mir v. Med. Bd. of Cal., No. 12-CV2340 (DHB) (GHC), 2016 WL 3406118, at *3 (S.D. Cal. June 21, 2016) (“[T]he Executive
Director for [the agency] . . . has standing to assert the [deliberative-process] privilege.”). But
the deliberative-process privilege extends only to “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001) (internal quotation marks omitted). It does not protect “purely
factual information” or communications with regulated entities. United States v. Wey, 252 F.
Supp. 3d 237, 249 (S.D.N.Y. 2017) (quoting MacNamara v. City of New York, 249 F.R.D. 70, 78
(S.D.N.Y. 2008)); see also Citizens Union of City of New York v. Attorney Gen. of New York,
269 F. Supp. 3d 124, 159 (S.D.N.Y. 2017). And here, Plaintiffs principally seek factual
information about what Garris communicated to FCA. (See 18-CV-3460, Docket No. 1, at ¶ 19).
In any event, the privilege does not call for quashing or modifying the subpoena ex ante; at most,
it calls for allowing a lawyer from the Government to attend the deposition to object to particular
questions on privilege grounds. See, e.g., In re Application of Chevron Corp., 749 F. Supp. 2d
135, 141 (S.D.N.Y. 2010) (denying motion to quash subpoenas and directing parties to make
their specific objections during the deposition).
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For the foregoing reasons, the Court concludes that Plaintiffs have the better of the
argument. Accordingly, the Government’s motion to quash or modify the subpoena to Garris
pursuant to Rule 45 is DENIED. Unless the Court orders otherwise, Plaintiffs shall conduct the
deposition of Garris within the next three weeks. All other dates and deadlines in the Pirnik
action remain in effect. The Clerk of Court is directed to docket this Memorandum Opinion and
Order in both 18-CV-3460 and 15-CV-7199.
SO ORDERED.
Date: August 24, 2018
New York, New York
_______________________________
JESSE M. FURMAN
United States District Judge
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