Filsoof v. Cole

Filing 128

ORDER granting 127 Letter Motion for Discovery. SO ORDERED.. (Signed by Judge Naomi Reice Buchwald on 11/19/2021) (kv)

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Case 1:21-cv-01791-NRB Document 127 Filed 11/16/21 Page 1 of 1 November 16, 2021 Via ECF Hon. Naomi Reice Buchwald United States District Judge United States District Court Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street, Courtroom 21A New York, New York 10007-1312 Re: Rachel Carol Filsoof v. Andrew J. Cole., Case No. 21-cv-1791-NRB Joint Letter Requesting the So-Ordering of Two Subpoenas Dear Judge Buchwald: We are co-counsel to Plaintiff Rachel Carol Filsoof in the above-referenced action. We write on behalf of both parties to respectfully request that the Court so-order the two subpoenas attached hereto as Exhibits A and B. As set forth in the parties’ joint letter dated November 9, 2021 (Doc. 120), the parties have agreed to jointly submit 2 new subpoenas to be so-ordered, one directed to Verizon (Plaintiff's wireless carrier on December 2 and 3, 2020), and one directed to Apple. Pursuant to the Court’s directive, the parties have used the Southern District of New York’s form for subpoenas. These two subpoenas are attached hereto as Exhibits A and B. In light of the above, the parties respectfully request that the Court so-order the two subpoenas attached hereto as Exhibits A and B at its earliest convenience. We thank the Court for its consideration. Respectfully submitted, /s/ Tom M. Fini Tom M. Fini, Esq. cc: all counsel of record (via ECF) Case 1:21-cv-01791-NRB Document 127-1 Filed 11/16/21 Page 1 of 6 EXHIBIT A Case 1:21-cv-01791-NRB Document 127-1 Filed 11/16/21 Page 2 of 6 AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action UNITED STATES DISTRICT COURT for the Southern District of New York __________ District of __________ Rachel Carol Filsoof ) ) ) ) ) ) Plaintiff v. Andrew J. Cole Defendant Civil Action No. 1:21-cv-01791(NRB) SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION Verizon Attn: Verizon Security Team To: (Name of person to whom this subpoena is directed) ✔ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: Please see attached Exhibit A. Place: Catafago Fini LLP, One Grand Central Place, 47th Floor New York, New York, 10165 or by email tom@catafagofini.com Date and Time: 12/17/2021 12:00 pm Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time: The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: November 19, 2021 CLERK OF COURT OR Signature of Clerk or Dp Attorney’s signature The name, address, e-mail address, and telephone number of the attorney representing (name of party) , who issues or requests this subpoena, are: Rachel Carol Filsoof and Andrew J. Cole Tom Fini, One Grand Central Place, 47th Floor, New York, New York, 10165 tom@catafagofini.com 212-239-9669 Daniel J. Schneider, 261 Madison Ave, 26th Floor, New York, New York 10016 dschneider@fsfllp.com 212-972-7040 Notice to the person who issues or requests this subpoena A notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4). Case 1:21-cv-01791-NRB Document 127-1 Filed 11/16/21 Page 3 of 6 AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2) Civil Action No. 1:21-cv-01791(NRB) PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for (name of individual and title, if any) on (date) . I served the subpoena by delivering a copy to the named person as follows: on (date) ; or I returned the subpoena unexecuted because: . Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of $ My fees are $ . for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc.: 0.00 . Case 1:21-cv-01791-NRB Document 127-1 Filed 11/16/21 Page 4 of 6 AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3) Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013). Case 1:21-cv-01791-NRB Document 127-1 Filed 11/16/21 Page 5 of 6 Case 1:21-cv-01791-NRB Document 127-1 Filed 11/16/21 Page 6 of 6 Case 1:21-cv-01791-NRB Document 127-2 Filed 11/16/21 Page 1 of 6 EXHIBIT B Case 1:21-cv-01791-NRB Document 127-2 Filed 11/16/21 Page 2 of 6 AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action UNITED STATES DISTRICT COURT for the Southern District of New York __________ District of __________ Rachel Carol Filsoof ) ) ) ) ) ) Plaintiff v. Andrew J. Cole Defendant Civil Action No. 1:21-cv-01791(NRB) SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION To: Apple Inc. (Name of person to whom this subpoena is directed) ✔ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: Please see attached Exhibit A Place: Catafago Fini LLP, One Grand Central Place, 47th Date and Time: Floor New York, New York 10165 or email tom@catafagofini.com 12/17/2021 12:00 pm Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time: The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: 11/12/2021 November 19, 2021 CLERK OF COURT OR Signature of Clerk or Deputy Clerk Attorney’s signature The name, address, e-mail address, and telephone number of the attorney representing (name of party) , who issues or requests this subpoena, are: Rachel Carol Filsoof and Andrew J. Cole Tom Fini One Grand Central Place, 47th Floor, New York, New York 10165, tom@catafagofini.com, 212-239-9669 Daniel J. Schneider 261 Madison Avenue, 26ht Floor, New York, New York 10016 dschneider@fsfllp.com 212-972-7040 Notice to the person who issues or requests this subpoena A notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4). Case 1:21-cv-01791-NRB Document 127-2 Filed 11/16/21 Page 3 of 6 AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2) Civil Action No. 1:21-cv-01791(NRB) PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for (name of individual and title, if any) on (date) . I served the subpoena by delivering a copy to the named person as follows: on (date) ; or I returned the subpoena unexecuted because: . Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of $ My fees are $ . for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc.: 0.00 . Case 1:21-cv-01791-NRB Document 127-2 Filed 11/16/21 Page 4 of 6 AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3) Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013). Case 1:21-cv-01791-NRB Document 127-2 Filed 11/16/21 Page 5 of 6 Case 1:21-cv-01791-NRB Document 127-2 Filed 11/16/21 Page 6 of 6

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