Securitas Electronic Security, Inc. v. DeBon

Filing 76

DECISION AND ORDER DISPOSING OF OBJECTIONS TO RULING OF MAGISTRATE JUDGE ON THIRD PARTY MOTION TO QUASH re: 74 Letter filed by Felix Gonzalez, Securitas Electronic Security, Inc., 63 Objection (non-motion) filed by Felix Gonzalez, Secur itas Electronic Security, Inc., 61 Order on Motion to Add Applicant, Order on Motion to Quash. For the reasons stated below, the court affirms five of Judge Fox's seven rulings, reverses two of them, and reinstates the subpoena to the extent indicated below. JMC has twenty business days from the date of this decision to provide the relevant documents to Securitas. (as further set forth herein). As so modified, the order of Magistrate Judge Fox is affirmed. To the request in Securitas' letter of inquiry dated March 3, 2022 (Dkt No. 74), the four months run from today. This constitutes the decision and order of the court. (Signed by Judge Colleen McMahon on 3/4/2022) (kv)

USDCSDNY
DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELECTRONICALLY FILED
X

------------------

SECURITAS ELECTRONIC SECURITY,
INC.,

DOC#:
'
II, o ,\TE FTI,ED: jy \~ r _

Plaintiff,
20 Civ. 5323 (CM)(JW)

-againstBRUCE DEBON,
Defendant,
Third party Plaintiff,
-againstFELIX GONZALES,
Third Party Defendant

- - - - - - - - - - - - - - - - - -X
DECISION AND ORDER DISPOSING OF OBJECTIONS TO RULING
OF MAGISTRATE JUDGE ON THIRD PARTY MOTION TO QUASH
McMahon, J.:
Third party witness Jeffrey Management Corporation ("JMC") moved to quash the
discovery subpoena served on it by Plaintiff. (Dkt. No. 49). JMC ' s motion was granted in all
respects by my now-retired colleague, The Hon. Kevin Nathaniel Fox, U.S.M.J. (Dkt. No. 61)
Plaintiff Securitas Electronic Security, Inc. ("Securitas") and Third-Party Defendant Felix
Gonzalez filed seven timely objections to Judge Fox's ruling. (Dkt. No. 63) The record does not
indicate that JMC filed any papers in response to Securitas' objections, and its time to do so has
long since expired.

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For the reasons stated below, the court affirms five of Judge Fox's seven rulings, reverses
two of them, and reinstates the subpoena to the extent indicated below. JMC has twenty business
days from the date of this decision to provide the relevant documents to Securitas.

Scope of Review
The scope of review by the district court on appeal from an order of a magistrate judge
depends on whether the order is dispositive or non-dispositive. A magistrate judge's order on
dispositive matter must be reviewed by the district court de nova in the face of an objection. Fed.
R. Civ. P. 72(b); 28 U.S.C. § 636(b)(l). In reviewing a magistrate judge's order on a nondispositive matter in the face of an objection, the district court may only modify or set aside any
portion of the order which it finds to be clearly erroneous or contrary to law - a deferential
standard. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(l)(A); Thomas E. Hoar, Inc. v. Sara Lee Corp.,
900 F.2d 522, 525 (2d Cir. 1990).
An order is "clearly erroneous" when the entire evidence leaves the district court "with the
definite and firm conviction that a mistake has been committed." FDIC v. Providence Coll., 115
F.3d 136, 140 (2d Cir. 1997) (quoting United States v. US. Gypsum Co., 333 U.S. 364, 395, 68
S.Ct. 525, 92 L.Ed. 746 (1948). An order is "contrary to law" when it "fails to apply or misapplies
relevant statutes, case law or rules of procedure." Thompson v. Keane, No. 95-cv-2442, 1996 WL
229887, at *1 (S.D.N.Y. May 6, 1996). A magistrate judge' s resolution of discovery disputes
deserves substantial deference. Thompson, 1996 WL 229887, at *l.
An order quashing a third party subpoena is a non-dispositive order, because it is not one
of the types of orders that, per 28 U.S.C.A. § 636 (b)(l)(A), magistrate judges are barred from
finally deciding: "Notwithstanding any provision oflaw to the contrary ... a judge may designate
a magistrate judge to hear and determine any pretrial matter pending before the court, except a

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motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or
quash an indictment or information made by the defendant, to suppress evidence in a criminal case,
to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon
which relief can be granted, and to involuntarily dismiss an action." 28 U.S.C.A. § 636 (b)(l)(A).
Therefore, the appropriate standard for reviewing Judge Fox's order is whether it is clearly
erroneous or contrary to law.
The Magistrate Judge 's Order Should Be Affirmed in Part and Reversed in Part
For the most part, Judge Fox's order survives scrutiny under that deferential standard (and
would survive even if the court were to review those rulings de nova). As to two of the seven
rulings to which objection is made, however, I agree with Securitas that the rulings are clearly
erroneous and should be vacated.
Objection One: The court sustains the objection and reverses Judge Fox's order insofar as
he quashed the subpoena's request for copies of all communications between DeBon and nonparty JMC between January 1, 2018 and the date of the subpoena. Third parties with relevant
information are not exempt from discovery simply because no claims are asserted against them.
The complaint in this action alleges that defendant DeBon contacted customers of his former
employer - including specifically JMC - from and after January 1, 2018, for the purpose of
diverting his employer's business from Securitas. The subpoena seeks any written record of such
communications, as well as other communications between DeBon and JMC during this limited
period. The subpoena is reasonably limitation in time to relevant periods; it encompasses the period
when DeBon owed Securitas a duty of undivided loyalty as its employee. Emails containing such
communications - whether to or from DeBon - are plainly relevant to the matter in suit, and their
relevance outweighs the burden of producing such emails, which is slight - a simple search of the

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"to" and "from" fields yields the entire universe of such communications, and the universe of
documents that might include these communications has already been identified (at Securitas'
expense). The emails need not be reviewed for privilege as they could not possibly be privileged;
DeBon's presence as either the sender of the receiver of such communications destroys any
possible privilege. There is, therefore, no undue burden on JMC.
Objection Two: The court sustains the objection to Securitas' request for copies of all
emails during the same time period that refer to DeBon and to that extent affirms the Magistrate
Judge's order. The request is overbroad. Moreover, the request, whether intentionally or not,
covers potentially privileged materials, since if DeBon did contact JMC in order to induce it to
changed vendors, it is highly likely that JMC would have consulted counsel to discuss its options.
Finally, MJC ' s internal deliberations about any approach from DeBon, even if not privileged, are
neither relevant to the issues to be tried in this lawsuit nor likely to lead to the discovery of
admissible evidence. It is possible that some emails responsive to this request might be producible,
but it is not the place of this court to prune an overbroad request for documents. I do note that
JMC's response to the request for copies of all communications between DeBon and JMC for the
relevant period should yield the relevant and admissible information that plaintiff seeks.
Objection Three: Same ruling as Objection Two. The request is for any JMC documents
that mention not renewing JMC ' s contract with Securitas. The issue in this case is not whether
JMC did or did not contemplate not renewing its contract with Securitas - which it was perfectly
free to do - but whether it did so at the behest of DeBon, in violation of some legal duty DeBon
may have had to his employer. Again, responses to the request for copies of all communications
between DeBon and JMC should yield any relevant and admissible information on this subject.

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Objection Four: The court overrules the objection and affirms Judge Fox's order insofar as
he quashed the subpoena's request for copies of all emails that contain Securitas "Documents" or
"Information." If DeBon emailed Securitas Documents or Information to JMC, those emails will
necessarily be produced in response to the request for communications between DeBon and JMC.
This request is, to that extent, duplicative of the previous request.
Objection Five: The court sustains the objection and reverses Judge Fox's order insofar as
he quashed the subpoena's request for copies of all communications or documents that refer to
JMC's entering into a contract or doing business with Croker. To the extent that there exist any
non-privileged documents generated during the relevant period that specifically refer to doing
business with Croker, they could lead to the discovery of relevant and admissible evidence and
they must be produced. Whether documents so produced confirm Securitas' allegation that DeBon
instigated any such communications is another matter; JMC is correct that nothing at law prevented
it from doing business with a competitor of Plaintiffs. However, non-privileged documents that
discuss this subject could reveal the existence of otherwise undiscoverable oral communication
between JMC and DeBon on this subject.
Objection Six: The objection is overruled, and the order of Judge Fox is affirmed. JMC is
not a party to any agreement between Plaintiff and Defendant, and no claim is being asserted
against JMC arising out of or relating to such an agreement. Therefore, any musings of JMC
concerning the scope of any duty or agreement between Plaintiff and Defendant - a contract to
which it was a stranger - are irrelevant and not likely to lead to admissible evidence. Whether JMC
thought that DeBon was or was not free to treat with is not at issue in this lawsuit; the only thing
that is at issue is whether DeBon did in fact treat with JMC in violation of some legal duty that he
owed Securitas.

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Objection Seven: The objection is overruled, and the order of Judge Fox is affirmed. If
DeBon communicated with JMC about the app, it will be revealed when his communications with
JMC are produced. The request is otherwise overbroad.
As so modified, the order of Magistrate Judge Fox is affirmed.
To the request in Securitas' letter of inquiry dated March 3, 2022 (Dkt No. 74), the four
months run from today.
This constitutes the decision and order of the court.
Dated: March 4, 2022

U.S .D.J.

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