Breaking Media, Inc. v. Jowers
Filing
27
OPINION AND ORDER re: 1 MISCELLANEOUS CASE INITIATING DOCUMENT - MOTION to Quash Non-Party Subpoena Other Court Name: United States District Court - Western District of Texas. Other Court Case Number: 1:18-cv-00444 (RP). (Filing F ee $ 49.00, Receipt Number A filed by Breaking Media, Inc., 13 AMENDED MOTION to Quash Non-Party Subpoena filed by Breaking Media, Inc.. For the foregoing reasons, Petitioner's motion is GRANTED in its entirety. Petitio ner may submit to the Court, within 14 days of the date of this Opinion, contemporaneous billing records, other documented expenses, and supporting papers in support of an award of fees and costs under Rule 45(d)(1). Respondent may file an opposition, if any, within 14 days of Petitioner's submission. The Clerk of Court is directed to terminate the motions pending at docket entries 1 and 13. (Signed by Judge Katherine Polk Failla on 4/7/2021) (nb)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BREAKING MEDIA, INC.,
Petitioner,
-v.EVAN P. JOWERS,
21 Misc. 194 (KPF)
OPINION AND ORDER
Respondent.
KATHERINE POLK FAILLA, District Judge:
Respondent Evan Jowers is a defendant in a lawsuit currently pending in
the United States District Court for the Western District of Texas, captioned
MWK Recruiting, Inc. v. Jowers, et al., No. 18 Civ. 444 (RP) (AWA) (W.D. Tex.)
(the “Underlying Suit”). (See Dkt. #1). In the Underlying Suit, plaintiff MWK
Recruiting, Inc. (“MWK”) alleges, inter alia, that Respondent misappropriated
trade secrets and breached several contracts. See MWK Recruiting, Inc. v.
Jowers, No. 18 Civ. 444 (RP) (AWA), 2019 WL 7761445, at *2 (W.D. Tex. July
29, 2019). As part of his defense, Respondent subpoenaed Petitioner Breaking
Media, Inc. — publisher of the legal news website Above the Law (“ATL”) —
seeking information, including documents and deposition testimony, primarily
regarding four articles published by ATL. Pending before the Court is
Petitioner’s amended motion to quash the subpoena pursuant to Federal Rule
of Civil Procedure 45 and for attorneys’ fees and expenses incurred in
responding to the subpoena. For the reasons set forth below, the Court grants
Petitioner’s motion in full.
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BACKGROUND 1
The Underlying Suit “is brought by MWK Recruiting, Inc., a legal
recruiting firm, against Evan Jowers, a former employee of the firm, alleging
that Jowers misappropriated trade secrets and breached the non-compete and
non-solicitation provisions of his employment agreement.” MWK Recruiting,
Inc. v. Jowers, No. 18 Civ. 444 (RP) (AWA), 2020 WL 1987921, at *1 (W.D. Tex.
Apr. 27, 2020). The parties have been acrimoniously litigating the Underlying
Suit for more than four years; the Court relates only such information about
the suit that is pertinent to resolving the instant motion.
As relevant here, ATL published two articles that reported on judicial
decisions issued in the Underlying Suit. (See April 2020 Article; December
2020 Article). Respondent asserts that ATL was improperly critical of him and
his counsel in these two articles, and alleges that this coverage was
“orchestrated” by Robert E. Kinney, MWK’s principal, who “has been a sponsor
of [ATL] for over a decade.” (Resp. Opp. 1, 4). Respondent alleges that, as a
1
The facts recounted herein are drawn from the parties’ submissions in connection with
the instant motion, including the Declaration of John Lerner in Support of Petitioner’s
Amended Motion to Quash (“Lerner Decl.” (Dkt. #14)), and the Declaration of David S.
Korzenik in Support of Petitioner’s Amended Motion to Quash and the exhibits attached
thereto (“Korzenik Decl., Ex. [ ]” (Dkt. #15)). The Court refers to the subpoena at issue
in the instant motion as the “Subpoena” (Korzenik Decl., Ex. A), and to the ATL articles
referenced in the Subpoena as follows: the “December 2020 Article” (Subpoena, Ex. A);
the “April 2020 Article” (id., Ex. B); the “Barnes Article” (id., Ex. C); and the “Hong Kong
Article” (id., Ex. D). For convenience, citations to the Subpoena and its exhibits utilize
the pagination assigned by the Court’s Electronic Case Filing (“ECF”) system.
For ease of reference, the Court refers to the parties’ submissions as follows: Petitioner’s
amended motion to quash is referred to as “Am. Mtn.” (Dkt. #13); Petitioner’s amended
memorandum of law in support of its motion to quash is referred to as “Pet. Am. Br.”
(Dkt. #16); Respondent’s brief in opposition to the motion to quash is referred to as
“Resp. Opp.” (Dkt. #23); and Petitioner’s reply memorandum of law in further support of
its motion to quash is referred to as “Pet. Reply” (Dkt. #25).
2
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result of ATL’s coverage, his prior counsel, the law firm DLA Piper, withdrew
from the case, and that since then he has been unable to find local counsel.
(Id. at 3-5). Petitioner responds that several other media outlets reported on
the same judicial decisions that the April 2020 Article and December 2020
Article covered, and that in any event, ATL’s coverage consisted primarily of
quotes from the relevant judicial decisions. (Lerner Decl. ¶ 3; see also
April 2020 Article; December 2020 Article).
In addition to seeking information about the April 2020 Article and
December 2020 Article, the Subpoena targets material related to two other ATL
articles. First, it seeks information about the Barnes Article, a 2013 article
discussing inappropriate remarks made by a legal recruiter. (Subpoena 8, 10).
As far as the Court can discern, the Barnes Article — as well as the recruiter
and subject matter discussed therein — has no connection or relevance to the
Underlying Suit. (See Barnes Article; see generally Resp. Opp. (failing to
mention or discuss the Barnes Article)). Second, the Subpoena seeks
information regarding the Hong Kong Article, which was published in 2015 and
is entitled “Kinney’s Evan Jowers Now Permanently Based In Hong Kong.”
(Hong Kong Article; see also Subpoena 8, 10). Petitioner states that this article
“was an ad placed, paid for[,] and written by Kinney Recruiting.” (Korzenik
Decl. ¶ 18).
The Subpoena is dated February 1, 2021, and required compliance —
including the production of 20 categories of documents and a deposition
pursuant to Fed. R. Civ. P. 30(b)(6) on 25 topics — on or before February 18,
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2021. (See Subpoena 4, 9-10, 16-18; see also Lerner Decl. ¶ 2; Korzenik Decl.
¶ 2). Petitioner disputes that it was properly served with the subpoena and
alleges that it did not have sufficient notice until February 17, 2021, the day
before it was to comply. (See Lerner Decl. ¶¶ 11-12). However, Petitioner’s
attorney states that he contacted Respondent’s attorney regarding the
Subpoena as early as February 15, 2021 (Korzenik Decl. ¶ 5), and Petitioner’s
chief executive officer concedes that he received email notice of the Subpoena
on February 2, 2021, and that he emailed Respondent’s counsel regarding the
Subpoena on February 12, 2021 (Lerner Decl. ¶ 6).
Petitioner’s counsel states that he attempted to meet and confer with
Respondent’s counsel regarding a stipulation to extend Petitioner’s time to
respond to the Subpoena on February 15, 2021, but the following day
Respondent’s counsel declined to consent to any extension. (Korzenik Decl.
¶¶ 8-9). As a result, Petitioner alleges that it was required to prepare its
motion to quash in only one day in order to file the motion before the
February 18, 2021 compliance date, purportedly causing needless expense.
(Id. at ¶¶ 10-11). Petitioner also alleges that it attempted to meet and confer in
good faith to narrow the scope of the Subpoena, but Respondent refused to
narrow the scope. (See id. at ¶¶ 13-19). Petitioner notes that at Respondent’s
counsel’s request, it made an adjustment to the December 2020 Article.
(Lerner Decl. ¶ 5).
On February 17, 2021, Petitioner filed the instant motion to quash, along
with supporting papers. (Dkt. #1-3). In its submissions, Petitioner requested
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that the Court stay Petitioner’s obligation to comply with the Subpoena
pending resolution of the motion and sought leave to file an amended motion to
quash and supplemental briefing in further support of its motion. (Dkt. #3).
The Court granted Petitioner’s request and set a briefing schedule for the
motion to quash. (Dkt. #8). Petitioner filed an amended motion to quash and
supporting papers on March 4, 2021 (Dkt. #13-16); Respondent filed his
opposition papers on March 11, 2021 (Dkt. #23); and Petitioner filed its reply
on March 18, 2021 (Dkt. #25).
DISCUSSION
A.
The Court Grants the Amended Motion to Quash
The Subpoena requires Petitioner to produce 20 categories of documents,
and to provide a deponent pursuant to Fed. R. Civ. P. 30(b)(6) to speak on 25
topics, regarding four articles published by ATL. (Subpoena 9-10, 16-18).
Among other things, Respondent seeks: (i) all communications between ATL
and various parties to the Underlying Suit, (ii) research, (iii) documents
regarding editorial decisions, and (iv) deposition testimony related to the April
2020 Article, the December 2020 Article, the Barnes Article, and the Hong
Kong Article. (See id. at 7-18). Petitioner moves to quash the Subpoena
pursuant to the journalist’s privilege and as unduly burdensome pursuant to
Fed. R. Civ. P. 45. (See Am. Pet. Br. 8-10, 16-17). The Court agrees with
Petitioner on both grounds and grants the motion to quash.
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1.
The Journalist’s Privilege Applies
The Second Circuit “has long recognized the existence of a qualified
privilege for journalistic information.” Gonzales v. Nat’l Broad. Co., 194 F.3d
29, 32 (2d Cir. 1999). The privilege, rooted in the First Amendment and federal
common law, arises from a “concern for the potential harm to the ‘paramount
public interest in the maintenance of a vigorous, aggressive[,] and independent
press capable of participating in robust, unfettered debate over controversial
matters.’” Id. at 33 (quoting Baker v. F & F Inv., 470 F.2d 778, 782 (2d Cir.
1972)). The privilege may be invoked by an individual “involved in activities
traditionally associated with the gathering and dissemination of news, even
though he may not ordinarily be a member of the institutionalized press.” von
Bulow ex rel. Auersperg v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987).
However, to invoke the privilege, an individual must be acting in “the role of the
independent press” when “collecting the information in question.” Chevron
Corp. v. Berlinger, 629 F.3d 297, 307 (2d Cir. 2011).
The journalist’s (or reporter’s) privilege protects both confidential and
nonconfidential information. Gonzales, 194 F.3d at 35-36. Once established,
the journalist’s privilege is a qualified one that may be overcome. Id. In order
to “to prevent the unnecessary enmeshing of the press in litigation that arises
from events they cover” when — as here — the material sought is
nonconfidential, a “subpoena must be quashed unless the issuing party
demonstrates [i] ‘that the materials at issue are of likely relevance to a
significant issue in the case,’ and [ii] the materials at issue ‘are not reasonably
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obtainable from other available sources.’” Schoolcraft v. City of New York,
No. 10 Civ. 6005 (RWS), 2014 WL 1621480, at *2 (S.D.N.Y. Apr. 22, 2014)
(quoting Gonzalez, 194 F.3d at 36).
The journalist’s privilege is also recognized under the New York Shield
Law, which law provides “[q]ualified protection for nonconfidential news.” N.Y.
Civ. Rights Law § 79-h(c). 2 To obtain any such nonconfidential information, a
party must make a “clear and specific showing” that the information “(i) is
highly material and relevant; (ii) is critical or necessary to the maintenance of a
party’s claim, defense[,] or proof of an issue material thereto; and (iii) is not
obtainable from any alternative source.” Id.; see also Holmes v. Winter, 22
N.Y.3d 300, 308-09 (2013).
2
Both “parties’ briefs assume that New York law controls this issue, and such implied
consent is sufficient to establish choice of law.” MIG, Inc. v. Paul, Weiss, Rifkind,
Wharton & Garrison, LLP, 701 F. Supp. 2d 518, 532 (S.D.N.Y. 2010) (internal citations
and modifications omitted) (quoting Motorola Credit Corp. v. Uzan, 388 F.3d 39, 61 (2d
Cir. 2004), aff’d, 410 F. App’x 408 (2d Cir. 2011) (summary order)); see also Mortg.
Resol. Servicing, LLC v. JPMorgan Chase Bank, N.A., No. 15 Civ. 293 (LTS) (JCF), 2017
WL 2889501, at *2 (S.D.N.Y. July 6, 2017); Amtrust N. Am., Inc. v. Safebuilt Ins. Servs.,
Inc., 186 F. Supp. 3d 278, 281-82 (S.D.N.Y. 2016). In any event, after conducting a
choice of law analysis, the Court determines New York law applies here.
A federal court sitting in diversity applies the choice of law rules of the forum state. See
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Because privilege rules
are considered “conduct-regulating,” New York applies the law of the “locus” of the
conduct at issue, “because of [the locus jurisdiction’s] interest in affecting the conduct
of those who act within the jurisdiction and of a reliance interest on the part of the
actors whose conduct is at issue.” AroChem Int’l, Inc. v. Buirkle, 968 F.2d 266, 270 (2d
Cir. 1992) (citing Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 198 (1985)). Here,
the matters sought to be discovered stem from conduct based in New York because,
inter alia, (i) ATL is headquartered in New York, (ii) ATL primarily carries out its
publishing activities in New York, and (iii) New York has expressed a strong interest in
protecting the activities of its domiciliary news publishers through application of its
privilege law. Cf. Stephens v. Am. Home Assurance Co., No. 91 Civ. 2898 (JSM) (KAR),
1995 WL 230333, at *6-7 & n.24 (S.D.N.Y. Apr. 17, 1995).
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Here, the Underlying Suit raises claims under a federal statute, the
Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836(d), as well as state law,
see MWK Recruiting, Inc. v. Jowers, No. 18 Civ. 444 (RP) (AWA), 2020 WL
7229977, at *11 (W.D. Tex. Dec. 8, 2020) (denying Respondent’s motion for
judgment on the pleadings as to MWK’s DTSA claim). “[A]sserted privileges in
actions that raise both federal and pendent state law claims are governed by
the principles of federal law.” In re McCray, Richardson, Santana, Wise, &
Salaam Litig., 928 F. Supp. 2d 748, 753 (S.D.N.Y. 2013) (“In re McCray”), report
and recommendation adopted, 991 F. Supp. 2d 464 (S.D.N.Y. 2013). Thus,
Petitioner’s assertion of privilege will be considered under the Second Circuit’s
articulation of the journalist’s privilege, with consideration of the congruent
federal and state policies. Cf. Gonzalez, 194 F.3d at 33 (holding that nonconfidential materials are protected under the journalist’s privilege because
there is a “broader concern for the potential harm to the ‘paramount public
interest in the maintenance of a vigorous, aggressive and independent press’”
(quoting Baker, 470 F.2d at 782)).
Petitioner asserts the journalist’s privilege over the materials relating to
the April 2020 Article, the December 2020 Article, and the Barnes Article. (Am.
Pet. Br. 3-5). Respondent does not dispute the applicability of New York law or
the journalist’s privilege as articulated by the Second Circuit. (Resp. Opp. 5-8).
Nor does Respondent dispute that ATL has properly invoked the journalist’s
privilege. Instead, he argues that the qualified privilege may be overcome in
this instance. (Id. at 5). The Court pauses briefly to note that ATL clearly
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meets the requirements to invoke the privilege as it is in the business of
reporting on and publishing information about legal news. Furthermore,
Respondent seeks to compel Petitioner to disclose unpublished editorial and
reporter work product. (See generally Subpoena). As such, the Court
determines that the qualified journalist’s privilege applies here.
Turning to whether Respondent has adequately established that the
qualified privilege may be overcome, the Court concludes that Respondent fails
to meet both prongs of the Gonzalez test as it applies to nonconfidential
information. To review, the first prong requires the party seeking to compel
disclosure to demonstrate that the information sought is of “likely relevance”
and goes to a “significant issue” in the case. Gonzalez, 194 F.3d at 36; see also
In re McCray, 928 F. Supp. 2d at 757-58. While “this standard is less exacting
than that which applies to confidential materials, a litigant seeking
nonconfidential materials will not be granted unfettered access” to a reporter’s
files. Sikelianos v. City of New York, No. 05 Civ. 7673 (RJS) (JCF), 2008 WL
2465120, at *1 (S.D.N.Y. June 18, 2008). The second prong “requires the
issuers of subpoenas to make reasonable efforts through discovery to obtain
the information from alternative sources to defeat the privilege.” New Eng.
Teamsters & Trucking Indus. Pension Fund v. N.Y. Times Co., No. 14 Misc. 59
(RWS), 2014 WL 1567297, at *4 (S.D.N.Y. Apr. 17, 2014) (citing Gonzalez, 194
F.3d at 36).
First, the material sought by Respondent is not “of likely relevance to a
significant issue in the case,” Gonzalez, 194 F.3d at 36, and as such, the
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motion to quash must be granted. In sum, Respondent argues that the
subpoenaed materials are relevant to establishing that MWK is litigating the
Underlying Suit in bad faith, because Respondent alleges that MWK
communicated with ATL in order to “influence the outcome of the case through
improper channels” by garnering coverage of the case that portrayed
Respondent and his counsel in a negative light. (Resp. Opp. 6). Specifically,
Respondent argues that these materials are critical “in order to demonstrate
[MWK’s] motives to taint the litigants and the litigation [in the Underlying Suit]
through improper and likely false or misleading communications,” which
communications “serve one purpose and one purpose only — to render Jowers
without any local counsel[.]” (Id. at 6-7).
These contentions are plainly insufficient to establish that the materials
sought are relevant to any significant issue in the Underlying Suit. MWK’s
purported actions to render Respondent without local counsel, even if true, are
completely irrelevant to any claim or defense in the Underlying Suit, which
concerns whether Respondent misappropriated MWK’s trade secrets or
disclosed confidential information in violation of a contract between the parties.
Accord Sikelianos, 2008 WL 2465120, at *1 (declining to override privilege
because issue of damages and need to refresh witnesses were insufficiently
relevant to significant issue). Even if Respondent were able to prove that MWK
intended to prevent him from obtaining local counsel by dint of information
produced by ATL, such proof would be irrelevant to whether Respondent
actually misappropriated trade secrets or breached any contracts with MWK.
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Accord In re McCray, 928 F. Supp. 2d at 758 (denying motion to compel where
information sought would be relevant to plaintiffs’ credibility, not to claim or
defense). Accordingly, Respondent fails to establish that the information
sought is “of likely relevance to a significant issue in the case.” Gonzalez, 194
F.3d at 36.
Additionally, Respondent fails to establish that the material sought is
“not reasonably obtainable from other available sources.” Gonzalez, 194 F.3d
at 36. In his opposition, Respondent states only that MWK lodged objections to
his discovery request as to MWK’s relationship — if any — with ATL (see Resp.
Opp. 7-8), but this statement is similarly insufficient to establish that the
material is not reasonably obtainable from MWK or other sources. For
example, Respondent could have obtained this information during the
deposition of Kinney, MWK’s principal (see id. at 6 (“Mr. Kinney’s
communications regarding the [Underlying Suit] to [ATL] ... will likely
demonstrate how Kinney ... tried to influence the outcome of the case through
improper channels.”)), yet Respondent fails to state whether he asked about
this information or otherwise addressed Kinney’s relationship with Petitioner at
Kinney’s deposition (see id. at 7-8). Similarly, Respondent provides no
information about any efforts to follow up on MWK’s objections to the relevant
discovery request in the Underlying Suit. (See id.). As such, Respondent fails
to provide even the most basic information regarding efforts to obtain this
information from alternate sources, necessitating the quashing of the
Subpoena. Accord New Eng. Teamsters & Trucking Indus. Pension Fund, 2014
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WL 1567297, at *5 (declining to overcome qualified journalist’s privilege where
party failed to provide “any deposition testimony from [litigant’s] records
custodians or Rule 30(b)(6) witness or interrogatory responses from any [of
litigant’s] witnesses” to establish that subpoenaed information was not
reasonably available from litigant before subpoenaing journalist).
2.
The Subpoena Is Unduly Burdensome
Petitioner also seeks to quash the Subpoena pursuant to Rule 45 as
unduly burdensome. (Pet. Am. Br. 16-17). “Subpoenas issued under Rule 45
are subject to the relevance requirement of Rule 26(b)(1).” In re Refco Sec.
Litig., 759 F. Supp. 2d 342, 345 (S.D.N.Y. 2011) (citing During v. City Univ. of
N.Y., No. 05 Civ. 6992 (RCC), 2006 WL 2192843, at *2 (S.D.N.Y. Aug. 1, 2006)).
Rule 26(b)(1) permits the discovery of material if it is relevant to a party’s claim
or defense and proportional to the needs of the case. A court can, for good
cause, issue an order to protect a party or person from undue burden. Fed. R.
Civ. P. 26(c)(1). Additionally, “a party issuing a subpoena must take
reasonable steps to avoid imposing an undue burden on the person subject to
the subpoena, and a court must, on a timely motion, quash or modify a
subpoena if it subjects a person to undue burden.” Homeward Residential, Inc.
v. Sand Canyon Corp., No. 12 Civ. 5067 (JFK) (JLC), 2017 WL 4676806, at *18
(S.D.N.Y. Oct. 17, 2017) (citing Fed. R. Civ. P. 45(d)(1)-(3)).
A determination of whether a subpoena imposes an undue burden
requires the court to weigh the burden to the
subpoenaed party against the value of the information
to the serving party. Whether a subpoena imposes an
“undue burden” depends upon such factors as
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relevance, the need of the party for the documents, the
breadth of the document request, the time period
covered by it, the particularity with which the
documents are described and the burden imposed.
Copantitla v. Fiskardo Estiatorio, Inc., No. 09 Civ. 1608 (RJH) (JCF), 2010 WL
1327921, at *10 (S.D.N.Y. Apr. 5, 2010) (internal quotation marks omitted)
(quoting Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113
(D. Conn. 2005)). “However, courts also give special weight to the burden on
non-parties of producing documents to parties involved in litigation.” Travelers
Indem. Co., 228 F.R.D. at 113.
The Court first addresses whether the Subpoena, as it relates to the
Hong Kong Article, imposes an undue burden on Petitioner because Petitioner
does not assert the journalist’s privilege as to this article. (See Pet. Am. Br. 56). Instead, Petitioner objects to the production of materials and to sitting for a
deposition regarding this article on relevancy and proportionality grounds.
(Id.). Respondent does not respond to Petitioner’s objections to the Subpoena
as it relates to the Hong Kong Article. (See generally Resp. Opp.). Nor does
Respondent offer any argument or rationale as to why the material sought
regarding the Hong Kong Article is relevant to the Underlying Suit. (Id.). As
such, the Court agrees with Petitioner that requiring ATL to undertake the
costly efforts of combing through its files, reviewing and producing material
relevant to this article, and producing a representative to sit for a deposition to
discuss this article (see Pet. Am. Br. 5-6, 16-17), would be unduly
burdensome — especially because Respondent has not articulated any reason
why the material is relevant. Thus, to the extent the Subpoena seeks material
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about the Hong Kong Article, it is not proportional to any relevance vel non that
this material may have to the Underlying Suit.
The Court separately determines that, for essentially the same reasons
that Respondent has failed to overcome the journalist’s privilege, the Subpoena
would be unduly burdensome to the extent it seeks material related to the
remaining three articles. Petitioner states that “the material sought cannot be
located without the expenditure of unreasonable burden, time and/or cost, or
it is not maintained in a manner that is subject to retrieval with reasonable
cost and effort.” (Pet. Am. Br. 17). Petitioner further argues that it had
insufficient time to prepare for the deposition sought in the Subpoena. (Id. at
15). Petitioner asserts that compliance with the Subpoena would “interfere
with its ability to carry out its primary function as reporters and gatherers of
news[.]” (Id. at 17).
The Court finds that the material sought from ATL “is not sufficiently
relevant to the claims or defenses at issue in [the Underlying Suit] so as to
justify its production” or a deposition. Homeward Residential, Inc., 2017 WL
4676806, at *18. As explained above, Respondent concedes that the material
has no bearing whatsoever on the merits of the Underlying Suit, and is relevant
only to his argument that MWK is conspiring with ATL to prevent him from
securing local counsel by giving him and his counsel bad publicity. This is an
insufficient reason to impose the burden of extensive document discovery and
a deposition on Petitioner, especially when Respondent offers only conclusory
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allegations in support of his accusations of impropriety. 3 As such, although
Petitioner does not provide an exhaustive accounting of the burden that would
be imposed by compliance with the Subpoena, given the irrelevance of the
material sought, the Court determines Petitioner has adequately demonstrated
undue burden.
Furthermore, Rule 45 requires that “a party issuing a subpoena must
take reasonable steps to avoid imposing an undue burden” on a third party.
Fed. R. Civ. P. 45(d)(1). Respondent clearly has not done so here, because as
explained above in greater detail, he has made no showing that he even
attempted to pursue the material sought here through other means — for
example, by deposing Kinney or moving to compel MWK. In sum, because the
material sought by Respondent is not relevant to any claim or defense in the
Underlying Suit, and because Respondent failed to take any reasonable steps
to obtain the information sought through other means, the Court finds that the
Subpoena is unduly burdensome and grants Petitioner’s motion to quash. 4
3
Even accepting Respondent’s contention that his failure to secure counsel is relevant to
the Underlying Suit, Respondent also fails to establish that the material sought is
relevant to this failure to secure counsel. For example, Respondent’s failure to secure
counsel may be due to the merits of the Underlying Suit, Respondent’s unwillingness to
pay fees requested by prospective counsel, the media coverage of the Underlying Suit by
other outlets, or any number of reasons that are equally plausible to Respondent’s
theory that MWK is conspiring with ATL to deprive him of counsel by reporting on
judicial decisions issued in the Underlying Suit.
4
Because the Court determines that the Subpoena (i) is unduly burdensome and
(ii) seeks information that is protected by the journalist’s privilege, and accordingly
quashes the Subpoena after considering the merits of the parties’ arguments, the Court
need not address the procedural issues raised by Petitioner, such as service and
timeliness.
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B.
Petitioner Is Entitled to Reasonable Attorneys’ Fees and Expenses
Petitioner seeks reasonable attorneys’ fees and expenses incurred in
responding to the Subpoena pursuant to Federal Rule of Civil Procedure
45(d)(1). (Am. Mtn.). Under Rule 45(d)(1), when a party issues a subpoena
without taking “reasonable steps to avoid imposing undue burden or expense”
on a third party, the issuing court “must ... impose an appropriate sanction —
which may include lost earnings and reasonable attorney’s fees” — on the party
or attorney responsible for the failure to do so. Fed. R. Civ. P. 45(d)(1)
(emphasis added). Courts typically undertake a two-part inquiry to determine
whether sanctions are warranted under Rule 45(d)(1): “[i] whether the
challenged subpoena imposed an undue burden or expense on the person(s)
subject thereto; and [ii] if so, what, if any, ‘reasonable steps’ the subpoenaing
party and its counsel took to avoid imposing such a burden.” Saint-Jean v.
Emigrant Mortg. Co., No. 11 Civ. 2122 (SJ), 2015 WL 13735434, at *3 (E.D.N.Y.
Oct. 7, 2015) (citing Molefi v. Oppenheimer Tr., No. 03 Civ. 5631 (FB) (VVP),
2007 WL 538547, at *2 (E.D.N.Y. Feb. 15, 2007)). 5
To satisfy the first prong, courts have recognized that the “undue
burden” analysis is tied to the relevance of the material sought and is directly
related to the court’s decision to quash a subpoena for imposing an undue
burden. See Molefi, 2007 WL 538547, at *3 (“When a subpoena should not
have been issued, literally everything done in response to it constitutes ‘undue
5
Prior to the 2013 amendments to Fed. R. Civ. P. 45, the provisions in subdivision (d)
were in subdivision (c). See Fed. R. Civ. P. 45(d) advisory committee’s note to 2013
amendment (“Subdivision (d) contains the provisions formerly in subdivision (c).”).
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burden or expense’ within the meaning of Civil Rule 45(c)(1).” (quoting Builders
Ass’n of Greater Chi. v. City of Chicago, No. 96 Civ. 1122 (GSB), 2002 WL
1008455, at *4 (N.D. Ill. May 13, 2002))); see also Copantitla, 2010 WL
1327921, at *10 (collecting cases). “Sanctions are properly imposed and
attorney’s fees are awarded where, as here, the party improperly issuing the
subpoena refused to withdraw it, requiring the non-party to institute a motion
to quash.” Night Hawk Ltd. v. Briarpatch Ltd., L.P., No. 03 Civ.1382 (RWS),
2003 WL 23018833, at *9 (S.D.N.Y. Dec. 23, 2003) (awarding attorneys’ fees
incurred by party successfully moving to quash a non-party subpoena that
sought irrelevant testimony as unduly burdensome pursuant to Rule 45); see
also Molefi, 2007 WL 538547, at *3. Here, the material sought by Respondent
is irrelevant to the merits of the Underlying Suit, and as noted above, Petitioner
has sufficiently established that compliance would impose an undue burden.
Turning to the second prong, Respondent refused to narrow the scope of
the Subpoena or otherwise address any of Petitioner’s objections on privilege,
relevance, and proportionality grounds, which objections Petitioner raised in
multiple meet-and-confers. (See Korzenik Decl. ¶¶ 13-19). Accord Angelo,
Gordon & Co., L.P. v. MTE Holdings, LLC, No. 20 Misc. 23 (AT), 2020 WL
4700910, at *3 (S.D.N.Y. Aug. 13, 2020) (granting attorneys’ fees and quashing
subpoena pursuant to Rule 45 where insufficient notice given and issuing
party “took no steps to modify the subpoena upon notice of its deficiencies”);
Am. Int’l Life Assurance Co. v. Vasquez, No. 02 Civ. 141 (HB), 2003 WL 548736,
at *2-3 (S.D.N.Y. Feb. 25, 2003) (imposing sanctions for lost wages and
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awarding attorneys’ fees incurred in bringing motion to quash after attorney
issuing subpoena refused to comply with non-party’s request to voluntarily
withdraw subpoena that sought privileged information). Here, Respondent
(i) was on notice that much of the material sought was privileged; (ii) failed to
articulate how the material was relevant to the Underlying Suit, and (iii) in
support of its Subpoena, advanced spurious allegations of bad faith — without
any evidence — in an effort to impugn Petitioner. As such, the Court finds that
the Subpoena should never have issued and determines that Petitioner is
entitled to recover reasonable attorneys’ fees and expenses incurred in
responding to the Subpoena.
CONCLUSION
For the foregoing reasons, Petitioner’s motion is GRANTED in its entirety.
Petitioner may submit to the Court, within 14 days of the date of this Opinion,
contemporaneous billing records, other documented expenses, and supporting
papers in support of an award of fees and costs under Rule 45(d)(1).
Respondent may file an opposition, if any, within 14 days of Petitioner’s
submission. The Clerk of Court is directed to terminate the motions pending at
docket entries 1 and 13.
SO ORDERED.
Dated: April 7, 2021
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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