Almeida- Leon et al v. WM Capital Management Inc.,

Filing 286

ORDER ON MOTION FOR RECONSIDERATION granting 270 Motion for Reconsideration, vacating 267 Order dismissing as moot 244 George Perez Borrero's Appeal of the Magistrate Judge Decision to District Court. The Court AFFIRMS the Magistrate Judge's Order at ECF 234 and DENIES 244 George Perez Borrero's Appeal to the Magistrate Judge Decision to the District Court. Signed by Judge John Woodcock, Jr on 06/12/2019. (cs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FRANCISCO ALMEIDA-LEÓN,
et al.,
Plaintiffs,
v.
WM CAPITAL MANAGEMENT,
INC.
Defendant.

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Civil No. 3:16-cv-01394-JAW-BJM

ORDER ON MOTION FOR RECONSIDERATION
The Court grants a third party’s motion for reconsideration of its order
dismissing his appeal of a magistrate judge’s order denying his motion to quash a
subpoena to the Puerto Rico Examining Board of Certified Public Accountants.
Reaching the merits of his appeal, the Court rejects his appeal and affirms the
magistrate judge’s order, denying the third party’s motion to quash the subpoena and
motion for protection order.
I.

BACKGROUND
On December 10, 2018, WM Capital Management, Inc. (WM) served a

subpoena on the Puerto Rico Examining Board of Certified Public Accountants
(Board) for Board records concerning George Pérez Borrero, the manager of Tenerife
Real Estate Holdings, LLC, (Tenerife) one of the Plaintiffs and a Counterclaim
Defendant. See Order at 1 (ECF No. 234) (Magistrate Judge Order). On December

19, 2018, Tenerife filed a motion to quash the subpoena, Mot. to Quash Third Party
Subpoena by WM Capital (ECF No. 226) (Tenerife Mot.), and on December 20, 2018,
Mr. Pérez Borrero also filed a motion to quash the subpoena. Mot. to Quash Subpoena
Served on the Junta Examinadora de Contradores Públicos Autorizadoes and Mot.
for Protective Order (ECF No. 227) (Pérez Borrero Mot.). On January 17, 2019, WM
filed its opposition to the motions to quash subpoena. WM Capital’s Opp’n to Mots.
to Quash Third Party Subpoena and/or for Protective Order (ECF No. 230) (WM’s
Opp’n). On February 1, 2019, the Magistrate Judge issued an order, denying the
motions to quash the subpoena. Magistrate Judge Order at 1-4.
On February 15, 2019, Mr. Pérez Borrero objected to the Magistrate Judge’s
February 1, 2019 order. Appeal from Magistrate Judge Order at ECF Document No.
234 Pursuant to Rule 72 FRCP and Req. for Protective Order (ECF No. 244) (Pérez
Borrero Obj.). On February 19, 2019, WM filed its opposition to Mr. Pérez Borrero’s
objection.

Opp’n to George Pérez Borrero’s Obj. to the Hon. Magistrate Judge

McGiverin’s Order on Docket 234 (ECF No. 245) (WM’s Opp’n to Obj.).
On May 8, 2019, the Court issued three extensive orders, denying the
Plaintiffs’ motions and granting WM’s motion for summary judgment. Order Denying
Co-Pls./Counter-Defs.’ Mot. to Alter or Am. at 1-16 (ECF No. 262); Order on CoPl./Counter-Def.’s Mot. for Summ. J. at 1-57 (ECF No. 263); Order on Def./CounterPl.’s Mot. for Summ. J. at 1-73 (ECF No. 264). In its order granting summary
judgment for WM, as later amended on May 9, 2019, the Court ordered WM to file a
proposed judgment consistent with the order by May 15, 2019 and allowed the
Plaintiffs until May 22, 2019 to file any specific objections to WM’s proposed
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judgment. Am. Order on Def./Counter-Pl.’s Mot. for Summ. J. (ECF No. 265). On
May 16, 2019, WM filed a proposed judgment, Mot. Submitting Proposed J. (ECF No.
269), and the Plaintiffs filed an objection on May 23, 2019. Resp. and Objs. to
Proposed J. in Docket #269, #269-1 and #269-2 (ECF No. 272).
Also, on May 9, 2019, the Court dismissed as moot a pending motion in limine
and Mr. Pérez Borrero’s objection to the Magistrate Judge’s February 1, 2019 order.
Order Dismissing as Moot Mot. in Limine (ECF No. 266); Order Dismissing as Moot
Appeal of Magistrate Judge’s Decision to District Ct. (ECF No. 267). On May 20, 2019,
Attorney Arlene Pérez Borrero filed a motion for reconsideration of the Court’s
dismissal of Mr. Pérez Borrero’s objection. Mot. for Recons. of Order at ECF Dockets
No. 267 (ECF No. 270) (Pérez Borrero Recons. Mot.). On June 3, 2019, WM requested
an extension of time to file a response to Mr. Pérez Borrero’s motion for
reconsideration, which the Court granted, and on June 10, 2019, WM filed its
response. Mot. Requesting Extension of Time to File Resp. in Opp’n to the “Mot. for
Recons. of Order at ECF Docket No. 267” (ECF No. 280); Order (ECF No. 281); Opp’n
to Mot. for Recons. Filled by George Pérez-Borrero (ECF No. 284) (WM’s Opp’n to Mot.
for Recons.).
II.

ARGUMENTS BEFORE THE MAGISTRATE JUDGE
A.

George Pérez Borrero’s Motion

In his motion to quash the third-party subpoena before the Magistrate Judge,
Mr. Pérez Borrero adopted the arguments Tenerife raised in its motion to quash.
Pérez Borrero Mot. at 2 (“Mr. George Pérez Borrero . . . joins the arguments presented

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by the Plaintiffs in their Motion to Quash filed on December 19, 2018”). In Tenerife’s
motion to quash, Tenerife argued (1) that the subpoena required disclosure of
privileged and proprietary information and documentation, (2) that the subpoena
sought information not relevant to the controversy before the court, (3) that WM had
issued the subpoena in bad faith to annoy, harass and oppress Tenerife and the
Plaintiffs, (4) that the subpoena subjected a non-party to an undue burden, (5) that
the subpoena sought information about Mr. Pérez Borrero in disregard for his
intimacy, privacy and confidentiality rights, (6) that WM served the subpoena
without any notice to Mr. Pérez Borrero, (7) that the subpoena was overbroad, (8)
that the information falls under Federal Rule of Evidence 501, (9) that the subpoena
violates Mr. Pérez Borrero’s right of privacy under the Constitutions of the United
States and the commonwealth of Puerto Rico, (10) that the documents fall outside the
scope of Federal Rule of Civil Procedure 26(b), and (11) that the disclosure of the
documents violates Tenerife’s due process rights. Tenerife’s Mot. at 1-7.
In his motion to quash before the Magistrate Judge, Mr. Pérez Borrero raised
the following arguments: (1) that the documents were proprietary, privileged,
confidential and not subject to production, (2) that the documents were not relevant
to the controversies in this case, (3) that Mr. Pérez Borrero testified at the deposition
as the administrator of Tenerife, not as a Certified Public Accountant, (4) that WM
served the subpoena to harass Mr. Pérez Borrero and to damage his reputation, (5)
that the subpoena subjected Mr. Pérez Borrero to an undue burden, (6) that the
disclosure of the documents violates the Board’s rules and regulations, (7) that the

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subpoena was overbroad, and (8) that the Court should issue a protective order. Pérez
Borrero’s Mot. at 1-6.
B.

WM’s Response

WM responded to the motions to quash on January 17, 2019. WM’s Opp’n. at
13. WM argued that (1) neither Tenerife nor Mr. Pérez Borrero had standing to
challenge the thirty-party subpoena, (2) Tenerife’s and Mr. Pérez Borrero’s motion to
quash failed to identify a statute, rule, or case which provided that the information
sought was confidential, (3) Tenerife and Mr. Pérez Borrero failed to establish a
undue burden with the subpoenaed documents, (4) that the evidence is relevant and
material, and (5) that in any event, the movants failed to comply with the District of
Puerto Rico’s Local Civil Rule 26(6). Id. at 1-13.
III.

THE MAGISTRATE JUDGE’S ORDER
In his February 1, 2019 order, the Magistrate Judge reviewed the underlying

facts. Magistrate Judge Order at 1. Noting that “the Plaintiffs control Tenerife,” the
Magistrate Judge observed that Mr. Pérez Borrero “signed the agreement on
Tenerife’s behalf in his administrative capacity as its resident agent.” Id. The
Magistrate Judge wrote that when WM deposed Mr. Pérez Borrero on December 5,
2018, Mr. Pérez Borrero gave “shifting answers” and displayed “evasiveness”
regarding his CPA license. Id. WM issued a subpoena to the Board and the Board
produced the requested documents. Id. Nevertheless, Mr. Pérez Borrero and the
Plaintiffs sought to quash the subpoena on the primary ground that the Board had
produced privileged and confidential information.

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Id. at 1-2.

In addition, the

movants argued that the produced documents were “irrelevant to the case,” that the
subpoena was “overly broad,” that the subpoena “unduly burden[ed] the Board,” and
that the subpoena was “designed to harass.” Id. WM responded that neither party
had standing to challenge the subpoena, that the Board willingly produced the
information, so the Board was not unduly burdened, that the subpoena related to
witness credibility, which is always relevant, and that the movants’ failure to comply
with the local rules precluded their requested relief. Id. at 2.
The Magistrate Judge observed that under Federal Rule of Civil Procedure 45,
a court “must” quash a subpoena if the subpoena “requires disclosure of privileged or
other protected matters.” Id. (citation omitted). But the Magistrate Judge found the
movants’ contentions about privilege “skeletal at best.” Id. Indeed, citing First
Circuit precedent, the Magistrate Judge concluded that the movants waived their
undeveloped argument. Id. The Magistrate Judge noted that Mr. Pérez Borrero “did
not address why the Board readily produced documentation in violation of its own
rules, why he has a personal right to documents he did not create, or what privileges
the records of his CPA license suspension, the fact of which is available on the central
database of CPAs.” Id. The Magistrate Judge stated that Tenerife invoked Federal
Rule of Evidence 501, which Tenerife contended gives Mr. Pérez Borrero a right of
privacy “that merits protections normally accorded in an attorney-client
relationship.” Id.
The Magistrate Judge rejected the movants’ relevancy argument, finding that
the status of Mr. Pérez Borrero’s CPA license became relevant on his trustworthiness,
credibility and partiality because of his “misleading answers at the deposition.” Id.
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at 3. After analyzing the terms of the subpoena, the Magistrate Judge concluded that
the subpoena was not overly-broad, nor did it seek professional information about
Mr. Pérez Borrero unrelated to his deposition testimony.

Id.

In addition, the

Magistrate Judge rejected the movants’ arguments about the burden on the Board or
harassment of either Mr. Pérez Borrero or Tenerife “because the information is
neither privileged nor irrelevant.” Id. Finally, citing Jee Family Holdings, LLC v.
San Jorge Children’s Healthcare, Inc., 297 F.R.D. 19, 21 (D.P.R. 2014), the Magistrate
Judge concluded that the movants did not have standing to pursue the motion to
quash. Id.
IV.

THE OBJECTION AND THE RESPONSE
A.

George Pérez Borrero’s Objection

George Pérez Borrero objected to the Magistrate Judge’s February 1, 2019
order; Tenerife did not.
In his objection, Mr. Pérez Borrero asserts that the Magistrate Judge’s
February 1, 2019 order “deprives [him] of his fundamental constitutional rights,
under the Fourth and Fourteenth Amendments of the Constitution of the United
States.”

Pérez Borrero Obj. at 2.

He states that the Magistrate Judge’s order

“sanctions an illegal production of documents.” Id. at 3. Mr. Pérez Borrero writes
that he “relied that the proceedings before The Board were confidential and not
subject to the disclosure to third parties, based on Regulation Number 8644
Uniformed Regulation of the Examining Boards Attached to the State Department of
the Commonwealth of Puerto Rico.” Id. Mr. Pérez Borrero quotes Article 6.14
relating to the confidentiality of the investigation and the corresponding file. Id.
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Mr. Pérez Borrero claims that WM “induced this Honorable Court to err, in its
Motion in Opposition to Motion to Quash stated that there is no Article 6.14 that
creates the privilege nature of the documents requested.” Id. To the contrary, says
Mr. Pérez Borrero, “Article 6.14 of Regulation 8644 is clear that the Board files are
confidential.” Id. at 3-4. Mr. Pérez Borrero insists that the fact “the Board disclosed
the documents to WM does not negate the nature of the confidentiality of the
documents and the privileged nature of the same.” Id. at 4.
In support, Mr. Pérez Borrero cites Federal Rule of Evidence 501, which
provides that state law governs privilege regarding a claim or defense for which state
law supplies the rule of decision.” Id. (quoting FED. R. EVID. 501). Mr. Pérez Borrero
says that the Board’s regulation provides the rule of decision for this contested
information. Id.
Mr. Pérez Borrero warns the Court that it will create a “dangerous precedent”
if the Court allows disclosure of the Board’s documents, contending that it could
“dissuade victims, witnesses and other to openly participate and negotiate in
proceedings before The Board.”

Id. at 4-5.

He insists that WM’s use of the

subpoenaed documents “further violates George Pérez Borrero’s right to privacy and
his desire that these documents remain confidential.” Id. at 5. He asks the Court to
vacate the Magistrate Judge’s order, require that WM withdraw the Board
documents from the record of this case, and order WM not to use these documents for
any purpose. Id. Mr. Pérez Borrero worries that WM has “proffered that it intends
to use the documents illegally produced by The Board in this case which certainly
continue the damage to the appearing party by rehashing documents that should
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remain confidential and any use of them of out of context would only cause harm.”
Id.
Mr. Pérez Borrero writes that Federal Rule of Civil Procedure 45(c)(3)(B)(i) and
(3)(A)(iii) provide that “a Court may quash or modify a subpoena to protect a person
subject to or affected by a subpoena” if the subpoena “requires disclosure of a trade
secret or other confidential information or requires disclosure of privileged or other
protected matter.”

Id. at 6.

He maintains that the documents requested “are

protected by privilege and the appearing party is seeking that they remain as such.”
Id.
In addition to his objection to the Magistrate Judge’s order, Mr. Pérez Borrero
requests the Court issue a protective order, arguing that the Board “illegally
produced” them in contravention of its regulations. Mr. Pérez Borrero “requests this
Honorable Court that it issues a protective order that precludes the further disclosure
of the illegally (sic) documents from The Board and that it precludes WM of the use
of the same in any forum.” Id. Mr. Pérez Borrero also requests that the documents
“be removed from the Court file, where they could be accessed by third parties.” Id.
at 6-7.
Mr. Pérez Borrero asks the Court to vacate the Magistrate Judge’s order
allowing the production of documents, issue a protective order to preclude the use of
privileged documents in this case, and order the elimination of produced documents
from the record in this case. Id. at 7.
B.

WM’s Response

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WM argues Mr. Pérez Borrero’s objection does not absolve his prior perfunctory
skeletal argument and thus, the Magistrate Judge was correct in concluding the
argument was waived. WM’s Opp’n to Obj. at 2-3. WM says Mr. Pérez Borrero “never
cited a ‘Uniform Regulation 8644’” and the provided translation violates the District
of Puerto Rico’s local rules. Id. at 3-4. Regardless, WM says Mr. Pérez Borrero fails
to show that Magistrate Judge’s decision was clearly erroneous or contrary to law
because his argument lacks merit. Id. at 5-6.
V.

STANDARD OF REVIEW
The Magistrate Judge’s order is on a non-dispositive matter. Under Federal

Rule of Civil Procedure 72(a), this Court reviews a non-dispositive order of the
Magistrate Judge to determine whether it is “clearly erroneous” or “is contrary to
law.” FED. R. CIV. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). Under this standard,
the Court reviews factual findings for clear error, Phinney v. Wentworth Douglas
Hosp., 199 F.3d 1, 4 (1st Cir. 1999), and gives plenary review to pure questions of
law. PowerShare v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010).
A second issue is whether the objecting party, here Mr. Pérez Borrero, raised
the same issues before the Magistrate Judge that he is raising here. “[P]arties must
take before the magistrate [judge], ‘not only their best shot but all of their shots.’”
Jardin De Las Catalinas Ltd. P’ship v. Joyner, 861 F. Supp. 2d 12, 16-17 (D.P.R.
2012) (quoting Borden v. Sec’y of Health and Human Servs., 836 F.2d 4, 6 (1st Cir.
1987) (quoting Singh v. Superintending Sch. Comm., 593 F. Supp. 1315, 1318 (D. Me.
1984))). If Mr. Pérez Borrero did not raise an issue before the Magistrate Judge, he

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is not entitled to appeal a waived issue. Viewed liberally, comparing the issues
Tenerife and Mr. Pérez Borrero raised before the Magistrate Judge, the Court is
satisfied that Mr. Pérez Borrero raised before the Magistrate Judge the same
arguments that he is now pressing on appeal. 1
VI.

DISCUSSION
Mr. Pérez Borrero’s objection to the Magistrate Judge’s Order fails as a matter

of procedure and as a matter of substance.
A.

Procedure

In Mr. Pérez Borrero’s original motion to quash WM’s subpoena, although he
referenced Article 6.14, he did not submit a copy of an English translation of the
regulation for the Magistrate Judge to consider and did not otherwise develop his
argument for why the information provided by the Board is confidential and
privileged. See Pérez Borrero Mot. at 3. This buttressed the Magistrate Judge’s
conclusion that he waived the argument that the information disclosed was
confidential and privileged. See Magistrate Judge Order at 2. Moreover, in his
objection to the Magistrate Judge’s Order, although he provided an English
translation of Article 6.14, it is his own unofficial translation, and thus, violates Local
Rule 5(g). See Pérez Borrero Obj. at 3 (“Emphasis and Translation ours”); D.P.R. LOC

WM asserts that Mr. Pérez Borrero’s is referring to a separate and distinct document in his
objection to the Magistrate Judge’s decision than the one referenced previously in his motion to quash.
WM’s Opp’n to Mot. for Recons. at 4-5. In comparing his motion to quash with his objection to the
Magistrate Judge’s order, it is unclear if Mr. Pérez Borrero is citing a different document than the one
he previously relied on in his motion to quash. If the document was not previously referenced, WM is
correct that Mr. Pérez Borrero’s argument is indeed untimely. See Joyner, 861 F. Supp. 2d at 16-17.
Ultimately, given that the Court finds Mr. Pérez Borrero’s objection fails on another procedural ground
as well as on its merits, resolution of this issue is immaterial.

1

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R. 5(g) (“All documents not in the English language which are presented or filed,
whether as evidence or otherwise, must be accompanied by a certified translation into
English prepared by: (1) Interpreter certified by the Administrative Office of the U.S.
Courts . . . (2) a translator who has approved Phase I (written legal translation) of
the Federal Court Interpreters Certification Examination . . . (3) a translator,
certified by the American Translator Association, or who has a post-graduate degree
from an accredited post-graduate education translation program”). The First Circuit
has stated that district courts should not consider any documents presented in the
Spanish language, Gonzalez-De-Blasini v. Family Dept., 544 F.3d 58, 88-89 (1st Cir.
2004), and that “[v]iolations of the English requirement will constitute reversible
error whenever the appellant can demonstrate that the untranslated evidence has
the potential to affect the disposition of an issue raised on appeal.” Puerto Ricans For
Puerto Rico Party v. Dalmau, 544 F.3d 58, 67 (1st Cir. 2008) (internal quotation
marks and citations omitted).
Accordingly, because Mr. Pérez Borrero’s motion to quash and his objection to
the Magistrate Judge’s Order largely rely on Article 6.14 as the basis for his argument
that the disclosed information was privileged and confidential and because Mr. Pérez
Borrero failed to place Article 6.14 before the Court, the Court finds no error in the
Magistrate Judge’s rejection of this argument.
B.

Substance

Beyond this procedural lapse, the merits of Mr. Pérez Borrero’s objection to the
disclosure of his status as a Certified Public Accountant are based on an erroneous

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premise: namely, that whether he is a licensed Certified Public Accountant in Puerto
Rico is a private, privileged matter. It is demonstrably not. Whether a person is
licensed as a Certified Public Accountant is a matter of public concern and of public
record. See WM’s Opp’n Attach. 5, CPAverify at 1 (“Name: Perez Borrero George,
Jurisdiction: PR, License Number: 4523, Status: Suspended, Enforcement, NonCompliance or Disciplinary Action: Contact State Board for Details”).
The next question is whether the reason Mr. Pérez Borrero’s license was
suspended is properly discoverable from the Board charged with oversight of
Certified Public Accountants in Puerto Rico. Even assuming that the Court may
consider Mr. Pérez Borrero’s unofficial translation, he quoted the Board’s Article
6.14, which makes the Board’s investigations confidential:
This provision has the purpose of protecting the progress of the
investigations, that they are not hindered or unduly interfered upon and
that the capacity of the Board to acquire information from possible
victims or witnesses about the conduct that threatens against the civil
rights with the effect of impeding effective compliance with the Law.
Pérez Borrero Recons. Mot. at 3-4 (quoting Art. 6.14). By its terms, this part of Article
6.14 addresses the confidentiality of an ongoing Board investigation to maintain its
integrity. The rest of Article 6.14 reads:
The confidential nature extends to the Board file. These files are not
subject to discovery of evidence and shall be considered privileged.
Id.
In response to WM’s subpoena, the Board produced a resolution that the Board
adopted on June 20, 2012, confirming that it had indefinitely suspended Mr. Pérez
Borrero’s license as a Certified Public Accountant. It also produced a letter from the
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Puerto Rico Certified Public Accountants Association dated October 24, 2009,
bringing allegations concerning Mr. Pérez Borrero to the attention of the Board.
Finally, it produced a stipulation dated September 12, 2006 signed by Mr. Pérez
Borrero and the Board and filed in the commonwealth of Puerto Rico Court of First
Instance, San Juan Superior Court, Civil No. KPE06-2551, providing that Mr. Pérez
Borrero agreed not to identify himself as a Certified Public Accountant because he
was not licensed as a Certified Public Accountant and that he had made the
commitment to renew his license. The Court does not view the documents the Board
disclosed in response to the WM’s subpoena as constituting “the Board file” and it is
skeptical that the documents the Board disclosed would be covered by Article 6.14.
The Magistrate Judge concluded that Mr. Pérez Borrero failed to develop his
argument:
Pérez’s argument that the information produced is confidential and
privileged according to the Board’s own policies is skeletal at best . . . .
Furthermore, Pérez did not address why the Board readily produced
documentation in violation of its own rules, why he has a personal right
to documents he did not create, or what privileges the records of his CPA
suspension, the fact of which is available online on central database of
CPAs. Tenerife also invoked Federal Rule of Evidence 501, but its
relevancy-based argument failed to explain why Pérez has a right of
privacy in these documents that merits protections normally granted to
attorney-client privilege and little else.
Magistrate Judge Order at 2. The Court is left with the same unanswered questions
that the Magistrate Judge posed. Certainly, a stipulation filed with the Puerto Rico
Court of the First Instance must be a public document. Mr. Pérez Borrero has given
the Court no reason to conclude that a resolution adopted by the Puerto Rico
Examining Board of Certified Public Accounts suspending a certified public
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accountant’s license and a letter from the Puerto Rico Certified Public Accountants
Association to the Board are not matters of public record. But more significantly, if
the records that the Board produced were in fact confidential and private under
Article 6.14, Mr. Pérez Borrero failed to address why the Board produced them in
contravention of its own rule.
The Court rejects Mr. Pérez Borrero’s claim that the documents were not
relevant.

The Court agrees with the Magistrate Judge’s observation that the

documents may not have been relevant but for Mr. Pérez Borrero’s own “misleading
answers at the deposition,” which “merited the subpoena for disciplinary
documentation, and those documents appear to bear out [WM’s] suspicions.”
Magistrate Judge Order at 3. Mr. Pérez Borrero testified at his deposition that his
license was suspended in 2007 or 2008 because he was sick and he did not continue
with professional courses, that he had not renewed his CPA license since then and
was looking forward to doing so that year, that he had been sick recently, that his
license was not renewed because he had not complied with the credit requirements,
that he received discipline from the Board but could not say anything about it, that
he was suspended because he had not paid his dues, that he repaid his dues and
“everything was cleared,” and that after the first incident, he never had another
incident. WM’s Opp’n, Attach. 1, Dep. of George Pérez Borrero 20:4-21, 150:1-155:3.
Once Mr. Pérez Borrero testified about the status of his Certified Public Accountant’s
license in such a confusing and contradictory way, the Court agrees with the
Magistrate Judge that WM was justified in seeking corroboration from the Board

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because the true status of Mr. Pérez Borrero’s license had a bearing on his credibility
as a witness. Magistrate Judge’s Order at 3 (“A witness’s trustworthiness, credibility,
and partiality are always relevant because they speak to potential biases and how
much weight testimony deserves”).
The Court is not convinced by Mr. Pérez Borrero’s reference to Federal Rule of
Evidence 501 because the Court is not satisfied that the documents the Board
produced in response to WM’s subpoena are privileged, and Federal Rule of Evidence
501 is a rule of evidence, not of discovery.
Nor is the Court impressed with Mr. Pérez Borrero’s contention that the
subpoena was burdensome and overbroad. On these issues, Mr. Pérez Borrero does
not have standing. The subpoena was directed not at him but at the Board and the
Board has never contended that the subpoena was either burdensome or overbroad.
Rule 45(d)(1) states that an attorney who is issuing a subpoena “must take reasonable
steps to avoid imposing undue burden or expense on the person subject to the
subpoena.” FED. R. CIV. P. 45(d)(1) (emphasis supplied). This language has been
interpreted as giving standing to the person against whom the subpoena has been
issued to raise the burden or overbreadth of the subpoena. Jee Family, 297 F.R.D. at
21 (“[D]efendant does not have standing to move for a protective order preventing
disclosure of third parties’ financial information”). Mr. Pérez Borrero has the right
to assert that the information being sought from the Board is privileged, but he does
not have the right to assert on behalf of the Board that it is burdensome for the Board
to respond or that the Board cannot comply with the subpoena because it is

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overbroad. 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2459 (3d ed. 2008) (“Ordinarily a party has no standing to seek to quash
a subpoena issued to someone who is not a party to the action, unless the objecting
party claims some personal right or privilege with regard to the documents being
sought”).
The Court finally rejects Mr. Pérez Borrero’s arguments that the Board’s
disclosure of its actions regarding his license as a Certified Public Accountant in
Puerto Rico somehow violates an inchoate claim of constitutional dimensions. Other
than saying it is so, Mr. Pérez Borrero offers no authority for his constitution-based
contentions.
As the Court concludes that Mr. Pérez Borrero failed to demonstrate that the
Magistrate Judge’s February 1, 2019 is either clearly erroneous or contrary to law,
the Court affirms the Magistrate Judge’s order and rejects Mr. Pérez Borrero’s
demand for the issuance of a protection order.
VII.

CONCLUSION
The Court GRANTS George Pérez Borrero’s Motion for Reconsideration of

Order at ECF Dockets No. 267 (ECF No. 270) and VACATES its Order (ECF No. 267)
which dismissed as moot George Pérez Borrero’s Appeal of the Magistrate Judge
Decision to District Court (ECF No. 244). The Court DENIES George Pérez Borrero’s
Appeal to the Magistrate Judge Decision to the District Court (ECF No. 244),
AFFIRMS the Magistrate Judge’s Order (ECF No. 234), denying George Pérez
Borrero’s motion to quash the subpoena and his motion for protection order.

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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 12th day of June, 2019.

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