Moll v. Telesector Resources Group, Inc.

Filing 211

ORDER granting 206 Motion to Quash. Signed by Hon. H. Kenneth Schroeder Jr. on 5/23/2017. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CINDY MOLL,
Plaintiff,
v.
04-CV-0805S(Sr)
TELESECTOR RESOURCES GROUP, INC.,
Defendant.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M.
Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters, and for
hearing and disposition of all non-dispositive motions or applications. Dkt. #15.

Plaintiff’s second amended complaint alleges disparate treatment on the
basis of sex; a hostile work environment; and retaliation in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the New York
State Human Rights Law (“NYSHRL”), N.Y. Executive Law §§ 290 et seq., as well as
violations of the Equal Pay Act, 29 U.S.C. § 206 et seq. Dkt. #148.

By Decision and Order entered October 19, 2016, the Court granted
defendant’s motion to compel plaintiff to supplement her interrogatory response to
identify any individual she contacted regarding this lawsuit and include the approximate
date of any such contact, as well as a general summary of any communication she had

with such person. Dkt. #187, p.5. The Court also granted the motion to compel with
respect to defendant’s request that plaintiff identify her telecommunications providers,
as well as her home and cellular telephone numbers and all electronic mail addresses
used by plaintiff since June of 2000. Dkt. #187, pp.14-15. Although plaintiff argued
that defendant sought such information in anticipation of issuing a subpoena to her
telecommunications providers for the improper purpose of obtaining information
regarding who plaintiff was communicating with, the Court determined that, “[a]bsent
notice of a subpoena of records from plaintiff’s telecommunications providers, plaintiff’s
objections to such a subpoena are premature.” Dkt. #187, pp.14-15 The Court was
explicit that its “determination with respect to the interrogatory is without prejudice to
plaintiff’s right to move to quash or modify a subpoena based upon the information
disclosed in response to this interrogatory.” Dkt. #187, p.15.

Plaintiff’s supplemental interrogatory response identified several contacts,
including Chris Gaglione in 2010 and an attempt to contract Robert Dixon in 2010. Dkt.
#206-2, pp.44-45. Plaintiff provided information regarding her telecommunications and
e-mail providers as directed. Dkt. #206-2, p.51.

Defendant issued two subpoenas to Cellco Partnership d/b/a Verizon
Wireless on March 29, 2017. Dkt. #206-2. The first subpoena seeks production of
billing statements for the cellular telephone number relating to plaintiff for the calendar
years of 2010, 2011, 2012 and 2015. Dkt. #206-2, p.6. The second subpoena seeks
text message data between the cellular telephones of plaintiff and Christopher Gaglione
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from 2010 through the present and text message data between the cellular telephones
of plaintiff and Robert Dixon during 2010 and 2011. Dkt. #206-2, p.3.

Currently before the Court is plaintiff’s motion to quash the subpoenas.
Dkt. #206. In support of the motion, plaintiff argues that disclosure of text messages is
prohibited by statute; her billing records are irrelevant; and the scope of the subpoenas
are overbroad. Dkt. #206-3. Plaintiff notes that the records subpoenaed are
subsequent to her allegations of receiving harassing telephone calls from Mr. Irving and
subsequent to her termination by defendant in 2007. Dkt. #206-3, p.6. Plaintiff also
argues that telephone records of communications she may have had with anyone years
after her termination would not establish the existence of facts supporting any claims or
defenses in this action, especially given plaintiff’s admission that she communicated
with such individuals. Dkt. #206-3.

Defendant responds that the subpoena for the contents of plaintiff’s text
messages is moot because the provider has advised that it does not retain such
messages. Dkt. #208. As to the billing records, defendant argues that they will
establish, as Christopher Gaglione and Robert Dixon are expected to testify at their
depositions, that plaintiff solicited them to act as witnesses in support of her lawsuit.
Dkt. #208. Defendant notes that after communicating with plaintiff, Mr. Gaglione
executed a declaration contradicting his prior deposition testimony regarding plaintiff’s
allegations. Dkt. #208. In response to plaintiff’s objection as to the scope of the
subpoena, defendant argues that the years of billing data requested comport with the

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years plaintiff disclosed conversations with potential witnesses, as well as the year Mr.
Gaglione signed the declaration contradicting his prior deposition testimony. Dkt. #208.
Defendant argues that the timing, volume and frequency of contact between plaintiff
and her coworkers is relevant but unavailable from plaintiff and that the subpoena is
crafted as narrowly as possible given the vagueness of plaintiff’s supplemental
interrogatory responses. Dkt. #208. Defendant notes that plaintiff improperly failed to
preserve text messages with these potential witnesses. Dkt. #208.

Plaintiff replies that the minimal relevance of the information sought by the
subpoena is outweighed by its intrusiveness into irrelevant and personal information.
Dkt. #209-2.

“The reach of a subpoena issued pursuant to Fed. R. Civ. P. 45 is subject
to the general relevancy standard applicable to discovery under Fed. R. Civ. P.
26(b)(1).” Syposs v. U.S., 181 F.R.D. 224, 226 (W.D.N.Y. 1998); See Weinstein v.
University of Connecticut, No. 07 Civ. 3219, 2012 WL 3443340, at *2 (D. Conn Aug. 15,
2012) (citing Advisory Committee Notes to 1970 Amendments to Rule 45 stating that
“the scope of discovery through a subpoena is the same as that applicable to Rule 34
and the other discovery rules.”). As amended in 2015, Fed. R. Civ. P. 26(b)(1)
provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant
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information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within the scope of discovery need not
be admissible in evidence to be discoverable.
The Advisory Committee Notes to the 2015 Amendment clarifies that the rule was
amended to “encourage judges to be more aggressive in identifying and discouraging
discovery overuse.” In addition, pursuant to Fed. R. Civ. P. 45(c)(3)(B)(I), “a court may
quash, modify or condition a subpoena to protect a person affected by the subpoena
from unnecessary or unduly harmful disclosures of confidential information.” Syposs,
181 F.R.D. at 226. Whether a subpoena imposes an undue burden depends upon
consideration of “relevance, the need of the party for the documents, the breadth of the
document requests, the time period covered by it, the particularity with which the
documents are described and the burden imposed.” Libaire v. Kaplan, 760 F. Supp.2d
288, 293-94 (E.D.N.Y. 2011). While the burden of demonstrating relevance is borne by
the party seeking discovery, Quotron Sys., Inc. v. Automatic Data Processing, Inc., 141
F.R.D. 37, 41 (S.D.N.Y. 1992), the burden of persuasion on a motion to quash a
subpoena is borne by the movant. Sea Tow Int’l v. Pontin, 246 F.R.D. 421, 424
(E.D.N.Y. 2007). The decision whether to quash or modify a subpoena is committed to
the sound discretion of the trial court. Libaire, 760 F. Supp.2d at 291.

In light of the telecommunications provider’s representation to the
defendant that the text messages themselves are unavailable for production, the
second subpoena is moot. As to the first subpoena, while it is relevant that plaintiff
communicated with witnesses in this action regarding her claims, records from plaintiff’s
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telecommunications providers are not necessary to establish what plaintiff has already
admitted. The records requested in the first subpoena will not shed light on the
substance of such communications, nor will the timing of such communications - years
after her termination from defendant’s employ - shed light on the substance of plaintiff’s
claims or defendant’s defenses in this action. See Go v. Rockefeller Univ., 280 F.R.D.
165, 176-77 (S.D.N.Y. 2012) (denying motion to compel telephone records because
they would not prove the content of the calls reflected in the record, which is what
plaintiff really sought to prove). Requiring the production of multiple years of billing
records is undoubtedly burdensome to the telecommunications provider without any
proportionate benefit to the fact finding process. Accordingly, the motion to quash the
subpoenas (Dkt. #206), is granted.

SO ORDERED.

DATED:

Buffalo, New York
May 23, 2017

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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