Diaz v. New York Paving Inc.

Filing 189

ORDER: denying 185 Letter Motion for Discovery. Application denied. Both this letter and plaintiffs' response reflects that EMQUE has not complied with paragraph 2.A of the Court's Individual Practices. While the Court is certainly mind ful of not putting an undue burden on a nonparty recipient of a subpoena, the best way for EMQUE to proceed is to hold a telephone conference with plaintiffs with a knowledgeable IT professional from each side on the line. EMQUE should respond as fu lly as possible to questions from plaintiffs regarding the documents they seek as it is only full and cooperative disclosure that will potentially obviate any need for deposition testimony. For their part, plaintiffs must cooperate to minimize the burden imposed on EMQUE.It may be that what plaintiffs ultimately need (as opposed to what they requested) can be swiftly and easily supplied by EMQUE. If not, it is EMQUE's responsibility to explain to plaintiffs exactly what the burden is. Failing to give that explanation may ultimately create more burden down the road. Accordingly, EMQUE's counsel is directed to arrange the telephonic conference to occur as soon as possible. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/30/2021) (ama)

Case 1:18-cv-04910-ALC-GWG Document 185 Filed 03/22/21 Page 1 of 6

LAW OFFICE OF STEVEN A. FELDMAN & ASSOCIATES, PLLC
763 DOGWOOD AVENUE
WEST HEMPSTEAD, NEW YORK 11552
TEL: [phone] FAX: [phone]
[e-mail]

Monday, March 22, 2021
VIA ECF
Honorable Gabriel W. Gorenstein
United States Chief Magistrate Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Re: Edgardo Diaz v. New York Paving, Inc. 18-cv-4910(ALC)(GWG) (SDNY)
Emque Systems Service, Inc.- Putative Non-Party Subpoena
Dear Judge Gorenstein:
We represent non-party Emque Systems Service, Inc. EMQUE
referenced
matter. We write
Individual Practices, Rule 2.A to move this Court to quash
-Party Subpoena ad testificandum and duces tecum
, pursuant to Federal Rule of Civil Procedure 45(d).1 As will be detailed below, EMQUE
has made prodigious efforts to resolve the issues underlying the Putative Subpoena vis-à-vis the
meet-and-confer process with all relevant parties, including Defendant. Despite EMQUE
compliance with Rule 2.A, Plaintiffs have unreasonably threatened EMQUE with a motion for
sanctions in connection with Plaintiffs highly inappropriate attempt to obtain discovery from a nonparty. The Putative Subpoena is improper because, inter alia, it is over-broad and unduly
burdensome to a non-party, and seeks materials which
seem irrelevant to t
otherwise. Additionally,
Plaintiffs have failed to provide any context as to why Plaintiffs need the materials and information
sought (via meet-and-confer or otherwise), much less sufficient context to allow non-party EMQUE
the requisite details necessary to make a final determination as to such relevancy. As such, Plaintiffs
Putative Subpoena must be quashed as both substantively and procedurally improper.
RELEVANT FACTS AND PROCEDURAL POSTURE
As this Court is aware, Plaintiffs are concrete and asphalt laborers who allege that Defendant,
their purported employer, violated applicable employments laws by failing to pay Plaintiffs for
prior/subsequent to
their paving shifts. See Compl., ECF No. 1. Defendant has denied any liability for numerous reasons,
including but not limited to the fact that Plaintiffs
yard at any point in time, and/or to perform any compensable work thereat. See Answer, ECF No. 25.
1

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Hon. Gabriel W. Gorenstein, U.S.C.M.J.
Monday, March 22, 2021
Page 2

EMQUE is a non-party small business with no knowledge of any individual Plaintiffs, and with
Instead, EMQUE
involvement with this matter is limited to the fact that it created/
proprietary
payroll system approximately 25-30 years ago. Apart from upgrades from a character based to a
graphical based system, EMQUE and has performed very limited maintenance/repairs and on rare
occasions since.
Moreover, All of EMQUE's customers belong to industries that were essentially closed during
the last year, as a result of the COVID-19 pandemic. Now, as a result of easing restrictions, EMQUE
been inundated with requests for custom programming to help customers deal with the new
financial/operational challenges they face. At the same time due to their financial challenges, EMQUE
is unable to increase its staff, of 4 active employees, especially in light of the economic conditions. To
meet their demands, EMQUE would be required to divert or hire existing staff to comply with such a
broad and vague request that would severely impacting operations.
A review of the docket initially shows that this Court entered into a Case Management
Plan/Scheduling Order which specifically declined to mandate that any electronically stored
information be produced in a specific format. See ECF No. 36. It further shows that Plaintiffs and
Defendant exchanged discovery demands in or around October, 2018. See ECF Nos. 60-1; 66-5. This
review next shows that, in the approximately 29 months that have elapsed, Plaintiffs never
proactively pursued any of the payroll/payroll adjacent information and documents from Defendant
prior to burdening EMQUE. Compare Exhibit
; with the Docket (noting no motions or
correspondence seeking the information demanded has been brought by Plaintiffs). Finally, review
shows that the only
payroll/payroll adjacent documents concerns the amount of documents produced. See ECF No. 123
only that Defendant produce payroll information for putative class
members, and not seeking that Defendant produce such information in any specific format, or
produce distinct payroll information not previously produced for Opt-in Plaintiffs).
As a final matter, EMQUE has been made aware that Defendant produced more than sixteen
thousand pages of payroll data. It did so beginning in February 2019, and continued to make
supplemental productions throughout 2019 and 2020. Indeed, EMQUE has become aware that
for putative class members demanded by Plaintiffs previously. See ECF No.
123. EMQUE also understands that all payroll data was produced as kept in the ordinary course of
business, via PDF format. Most importantly, EMQUE understands that Plaintiffs never raised any
including format of same until it began harassing EMQUE as of
issue with Defen
March, 2021. As a final matter, EMQUE understands that the only concern Plaintiffs seem to have
payroll information is that the
format seems to have
made
Rather than contend with this burden of their own
making, Plaintiffs instead desire to pass that burden along to a non-party. In this regard, EMQUE

Case 1:18-cv-04910-ALC-GWG Document 185 Filed 03/22/21 Page 3 of 6
Hon. Gabriel W. Gorenstein, U.S.C.M.J.
Monday, March 22, 2021
Page 3
understands the Putative Subpoena is being pursued solely in an attempt to force EMQUE to expend
countless hours attempting to produce the exact same information Plaintiffs already possess, in
easier.
With this limited, improper objective, Plaintiffs then
Subpoena upon EMQUE on or about Monday, March 8, 2021 by simply emailing same to the inbox
of EMQUE’s deceased representative Michael Quagliarello, who has been deceased since
October 6, 2015; as such, EMQUE actually did not receive formal notice of the Putative Subpoena
until it received a facsimile copy of same on or about Monday, March 15, 2021.2 Thus the Putative
Subpoena effectively demanded EMQUE produce voluminous records within two days of notice, and
be prepared to be deposed on said voluminous production within four days of notice. See id; Exhibit
.
procedural and substantive failures of the Putative Subpoena, and requesting a fulsome meet-andconfer with all relevant parties, including Defendant, to resolve any outstanding issues applicable to
same. See
(EMQUE notes Defendant is a relevant party because the information Plaintiffs
seeks should be in the possession of Defendant, and because said information contains proprietary
and confidential information belonging to Defendant in any event.)
Rather than comply with their obligations to meet-and-confer with all relevant parties,
about Wednesday, March 17 to force EMQUE
ivulge the information demanded in the
3
-and-confer, Plaintiffs
Putative Subpoena.
4 Instead, they waited almost 48 hours to send EMQUE a threatening correspondence on
refused.
Friday, March 19, 2021, demanding that EMQUE confirm it would comply with the Putative Subpoena
by end of day, or face a possible motion for sanctions. See id.
push for EMQUE
ena upon pain of sanctions, despite EMQUE
repeated request that Plaintiffs comply with their discovery obligations and engage in the fulsome
meet-and-confer process envisioned by this Court. Such obstructive and improper conduct then
necessitated the filing of the instant correspondence. See id.
LEGAL ARGUMENT
Initially, and in recognition of the ever-present potential for discovery abuse, Courts are
authorized to limit discovery to that which is proper and warranted in the circumstances of the case.
See Fed. Rule Civ. P. 26(b)(1); Cohen v. City of New York, No. 05 Civ. 6780, 2010 WL 1837782, at *3
(S.D.N.Y. May 6, 2010); Katz v. Batavia Marine Sporting Supplies, 984 F.2d 422, 424 (Fed. Cir. 1993);

2 See Correspondence from Steven Feldman, Esq. to Steven Wittels, Esq.,

dated March 17, 2021, annexed hereto

3

See Email Correspondence dated March 17, 2021, annexed hereto at Exh

4

See

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Hon. Gabriel W. Gorenstein, U.S.C.M.J.
Monday, March 22, 2021
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Jack Frost Laboratories, Inc., v. Physicians & Nurses Manufacturing Corp., 1994 WL 9690 at *2
(S.D.N.Y. Jan.13, 1994). These include factors such as cost-shifting for non-party discovery and
witnesses. Moreover,
Even where information is relevant, [FRCP] Rule 26(b)(2)(C)(i)-(iii) authorizes a
court to limit otherwise permissible discovery where, among other things, the
discovery sought is "unreasonably cumulative," the party seeking the discovery has
had "ample opportunity" to obtain the information sought, or "the burden or expense
of the proposed discovery outweighs its likely benefit." Additionally, Rule 26(c)(1)
provides that, where "good cause" is demonstrated, the court may forbid discovery
"to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense . . .. " Rule 26(c) "confers broad powers upon the court to limit or
prevent discovery even though the information sought is relevant and within the

John Wiley & Sons, Inc. v. BOOK DOG BOOKS, LLC, No. 13 Civ. 816 (WHP)(GWG) (S.D.N.Y. Mar.
26, 2014) (citing Coyne v. Houss, 584 F. Supp. 1105, 1109 (E.D.N.Y. 1984)).
Here, the Putative Subpoena should be quashed as it ultimately seeks unreasonably
cumulative actually identical payroll information, just in a format meant only to
burden of review. Further, Plaintiffs have had more than two years – i.e. ample opportunity to
procure this exact information from Defendant, and have failed to do so. Moreover, given that
Plaintiffs already have the payroll information necessary to prosecute their claims in their
possession, any extra cost applicable (particularly to a non-party) cannot outweigh the expense
and/or burden of associated with producing same. As such, the Putative Subpoena should be
quashed on general relevancy/burden grounds alone.
Next, and as it pertains to the fact that the Putative Subpoena is addressed to EMQUE, [n]onparties may occasionally have to testify and give evidence for and against litigants, but non-parties
should not be burdened in discovery to the same extent as the litigants themselves. Requests to nonKatz v. Batavia Marine
Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993). Overbroad requests which impose an
undue burden on a non-party must be denied. See Convolve, Inc. v. Dell, Inc., No. C 10-80071 WHA.
(N.D. Cal. May. 9, 2011). Thus litigants seeking to subpoena a non-party are obligated to take
reasonable steps to avoid imposing undue burden or expense on such non-party, and/or to otherwise
apprise said non-party of the subject matter of the subpoena and the limits on discovery under
Federal Rules 26 and 34. See Atwell v. City of New York, No. 07 Civ. 2365(WHP), 2008 WL 5336690,
at *1 (S.D.N.Y. Dec. 15, 2008) (citing Burns v. Bank of Am., No. 03 Civ. 1685(RMB)(JCF), 2007 WL
1589437, at *14 (S.D.N.Y. June 4, 2007) (Francis, Mag. J.)).

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Hon. Gabriel W. Gorenstein, U.S.C.M.J.
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Moreover:
In addition to shifting costs for non-parties' compliance with a subpoena, Rule 45
directs district courts to "impose an appropriate sanction which may include . . .
reasonable attorney's fees on a party or attorney who fails to comply" with the
Rule's mandate to "take reasonable steps to avoid imposing undue burden or expense
on a person subject to the subpoena." Fed. R. Civ. P. 45(d)(1). That provision
authorizes district courts to "protect non-parties from abusive subpoenas" by
"award[ing] . . . attorneys' fees for litigating the subpoena."
In re Rule 45 Subpoena Issued to Cablevision Systems Corp. Regarding IP Address
69.120.35.31, 2010 WL 2219343, at *11 (E.D.N.Y. Feb. 5, 2010). Indeed, Section 28 U.S.C. § 1927
s, not merely to deter and
IN RE TIRES R US LTD, No. 1-11-50395-ess (Bankr. E.D.N.Y. June 17, 2016).
It is obvious that the Putative Subpoena was not narrowly drawn, in that it seeks all contracts
and records, all invoices and statements, and all communications between EMQUE and Defendant
for a period covering 25 (or more) years. See
It also obvious that Plaintiffs did not take
any (much less reasonable) steps to avoid imposing undue burden in that the Putative Subpoena
seeks vast and unmitigated information on the method and manner in which EMQUE could assume a
and already produced by Defendant. See
id.
the fact that:
(i) Plaintiffs have never sought to compel this information directly from Defendant (despite being in
possession of payroll records since February, 2019); and (ii) (as EMQUE understands its), Plaintiffs
already have all payroll information they need to prosecute their claims in their possession.
Thus, to expect EMQUE to produce voluminous documents and appear for a deposition solely
(and already possess) is inequitable, and finds no support in any precedent. Additionally, Plaintiffs
have failed to comply with the procedural requirements necessary to subpoena a non-party in that
they have yet to file proof of service of the Putative Subpoena, and have so far refused to agree to an
undertaking to reimburse the full costs of compliance, including attorneys' fees pursuant to FRCP
Rule 45(c)(2)(B).
As such, the Putative Subpoena should be categorically Quashed on these grounds as well.
Finally, t
les. Notably, Plaintiffs conduct throughout as detailed
herein
February 12, 2021 Order [ECF # 178] extending two (2) years of
ongoing discovery to April 1, 2021, as it
ed ALL] parties to cooperate in the future to the
P
conduct also
violates Rule 2.A., which (like the order), requires the parties meet and confer on discovery motions

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Hon. Gabriel W. Gorenstein, U.S.C.M.J.
Monday, March 22, 2021
Page 6
including discovery motions involving non-parties under Rule 45 of the Federal Rules of Civil

Discovery Motions. No application relating to discovery (that is, any dispute arising
under Rules 26 through 37 or Rule 45 of the Federal Rules of Civil Procedure) shall
be heard unless the moving party has first conferred in good faith by telephone or in
person with all other relevant parties in an effort to resolve the dispute.
Individual Rules of Honorable Gabriel W. Gorenstein Rule 2 A.

h . . . with all other relevant
same should be denied.
In conclusion,
threats and tactics made; (i) without the benefit of any
meet and confer, (ii) in a transparent effort to avoid any reasonable discovery negotiations, (iii)
without ensuring that the subpoena sought is narrow and reasonably-tailored, (iv) in favor of
unnecessary and vexatious legal jockeying and motion practice instead, must be roundly quashed.
Accordingly, we respectfully request that your Honor quash the Putative Subpoena pursuant
to Federal Rule of Civil Procedure 45(d); otherwise direct Plaintiff to cease contacting our client
directly; and demand that Plaintiffs first seek discovery via the parties to the litigation before
burdening EMQUE with something it may have already obtained or may obtain through the ordinary
meet and confer process. EMQUE further requests this Court award costs to EMQUE as against
Plaintiffs concerning the drafting of this correspondence, and any other relief deemed just. Thank
you for your consideration of this matter.

Respectfully submitted,
______/s/_______________________
Steven A. Feldman, Esq.