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NRA GROUP, LLC, Plaintiff v. Nicole DURENLEAU and Jamie Badaczewski, Defendants
ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On April 16, 2021, Plaintiff NRA Group, LLC (“Plaintiff” or “NRA”) initiated the above-captioned action by filing a complaint in this Court against a former employee, Defendant Nicole Durenleau (“Defendant Durenleau”), alleging a claim under the Computer Fraud and Abuse Act, (“CFAA”), 18 U.S.C. § 1030. (Doc. No. 1.) On May 19, 2021, Plaintiff filed an amended complaint, adding another former employee, Jamie Badaczewski, as a defendant (“Defendant Badaczewski”), and asserting additional claims under the CFAA, as well as claims of: violation of the Defend Trade Secrets Act, 18 U.S.C. § 1836; violation of the Pennsylvania Uniform Trade Secrets Act, 12 Pa. C.S. § 5302; civil conspiracy; and breach of the common law duty of loyalty. (Doc. No. 8.)
Before either Defendant was due to respond to the amended complaint, on June 9, 2021, Plaintiff filed a Motion for Protective Order and Special Relief (Doc. No. 14), with exhibits and a brief in support (Doc. No. 15). The motion relates to the issuance of a subpoena by Defendants’ counsel dated May 17, 2021, and directed to the Swatara Township Police Department (“STPD”) seeking the production of “[a]ny and all files, complaints, investigations, reports, letters, memorandums, emails and/or any other documents which reference or relate to Shell Sharma, Steve Kusic, Jill Kusic and/or NRA Group, LLC a/k/a National Recovery Agency.” (Doc. No. 15-1.) Prior to the issuance of the subpoena, Defendants’ counsel submitted a right-to-know request to the STPD seeking “any and all correspondence, reports and any other documents containing the name ‘Shell Sharma’ ” (Doc. No. 18-13 at 5), to which the STPD responded, in part, as follows: “Swatara Township has withheld information that is exempt from disclosure by law. We have provided you police blotter information and parts of the incident report with redaction of personal identification information and investigative material as outlined in Section 708(b).” (Doc. No. 18-13 at 2.)
According to Plaintiff's moving papers, the subpoena at issue was officially served on the STPD on May 19, 2021, after Defendants’ counsel provided notice of the subpoena to a detective with the STPD via email on May 17, 2021. (Doc. No. 15-2.) Plaintiff's former counsel received notice of the subpoena via email on May 17, 2021. (Doc. No. 15-6.) Before STPD's Solicitor had notice of service of the subpoena, and on the same day the subpoena was served, the STPD detective sent numerous documents in response to the subpoena to Defendants’ counsel via email, totaling 764 pages of materials. (Doc. No. 15 at 5-8.) Plaintiff's counsel asserts that these materials reflect the STPD's investigative work, including a significant amount of sensitive business information that Plaintiff provided to the STPD to aid in its investigation of a criminal complaint previously lodged by Plaintiff with the STPD against Defendant Durenleau related to the conduct that forms the basis of its claims against her. (Id. at 8-9.)
Plaintiff's counsel sent a letter dated May 20, 2021 to Defendants’ counsel objecting to the issuance of the subpoena as premature under the Federal Rules of Civil Procedure and requesting the withdrawal of the subpoena. (Doc. No. 15-5.) The next day, Plaintiff's counsel sent a letter stating its objection to the subpoena to the STPD. (Doc. No. 15-7.) Defendants’ counsel responded to Plaintiff's letter objecting to the subpoena by email, wherein he did not respond to the Plaintiff's procedural objection to the subpoena but instead asked if Plaintiff's counsel had any substantive issues with the subpoena. (Doc. No. 15-6 at 11.) Plaintiff's counsel responded by stating that the information sought was irrelevant to the claims at issue in this action. (Id. at 7-10.) Defendants’ counsel responded to the email by stating that, in light of the production of documents in response to the subpoena, which ceased upon STPD's receipt of Plaintiff's May 21, 2021 letter, “I believe this issue is moot at this point.” (Id. at 5.) Thereafter, Plaintiff's counsel requested that Defendants’ counsel withdraw the subpoena or face a motion to quash, and, in addition, indicated its position that the material received in response to the subpoena is protected under the Criminal History Records Information Act (“CHRIA”), 18 Pa. C.S. §§ 9101 et seq., and “should not be used in this action for any purpose.” (Id. at 4.) On May 26, 2021, Defendants’ counsel responded by email, stating that he would “withdraw the subpoena (without prejudice) to resolve th[e] issue.” (Id. at 3.) Upon Plaintiff's request, on June 1, 2021, Defendants’ counsel sent Plaintiff's counsel a file share link to access the documents produced in response to the subpoena. (Doc. No. 18-20.)
Plaintiff's motion seeks a protective order preventing Defendants from utilizing the materials obtained via the May 17, 2021 subpoena, and further, seeks an award of its fees and costs incurred in filing the motion. (Doc. No. 15 at 16.) Defendants’ counsel filed a response to the motion (Doc. No. 17), along with a brief in opposition and exhibits (Doc. No. 18) on June 19, 2021. Plaintiff filed a reply brief, and the Court conducted a telephone conference with the parties on July 14, 2021 to address the issues raised by the motion. Accordingly, Plaintiff's motion is ripe for disposition.
Federal Rule of Civil Procedure 26 addresses the scope of discovery available in civil suits and provides that “[p]arties 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.” See Fed. R. Civ. P. 26(b)(1). If “the proposed discovery is outside the scope permitted by Rule 26(b)(1),” the court must limit discovery. See Fed. R. Civ. P. 26(b)(2)(c)(iii). Federal Rule of Civil Procedure 45 permits a party to issue a subpoena to other parties and non-parties to obtain discovery within the scope of Rule 26. See Fed. R. Civ. P. 45.
Courts have a great deal of discretion when resolving discovery disputes. See Gallas v. Supreme Court of Pa., 211 F.3d 760, 778 (3d Cir. 2000) (noting that a district court's ruling on discovery should be disturbed only “if the court's action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible”). Pursuant to Federal Rule of Civil Procedure 26(c), “[a] court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” and limit the scope of discovery. See Fed. R. Civ. P. 26(c)(1). Relief available under Rule 26(c) includes, but is not limited to, “forbidding the disclosure or discovery” and “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters[.]”
Plaintiff maintains that good cause exists for this Court to enter a protective order regarding the material produced in response to the subpoena for three reasons. First, Plaintiff maintains that the subpoena was procedurally improper because it was served prematurely, prior to the parties’ Rule 26 conference, in violation of Federal Rule of Civil Procedure 26(d)(1). (Doc. No. 15 at 10.) Second, Plaintiff argues that the subpoena was substantively improper because it sought the production of information irrelevant to the claims raised by way of the complaint/amended complaint. (Id. at 11.) Third, Plaintiff maintains that the subpoena sought the production of “protected matter” under CHRIA, which “prohibits criminal justice agencies from disseminating investigative information to any third party that is not also a criminal justice agency.” (Id. at 13) (quoting Piazza v. Young, No. 4:19-cv-00180, 2020 WL 6544979, at *1 (M.D. Pa. Nov. 6, 2020) (citing 18 Pa. C.S. § 9106(c)(4))).
Upon the Court's review of the parties’ briefs, the relevant authorities, and the record of this case, including the representations of the parties during the telephone conference addressing this motion, the Court finds that Plaintiff has demonstrated good cause for the entry of a protective order under Federal Rule of Civil Procedure 26(c). Rule 26(d)(1) of the Federal Rules of Civil Procedure, which governs the “timing and sequence of discovery,” dictates that “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” See Fed. R. Civ. P. 26(d)(1). At the time of the issuance of the subpoena (May 17, 2021), it is undisputed that the parties had not conferred as required by Rule 26(f). Defendant Durenleau at that time had not yet filed an answer to the pending complaint, which was replaced by the amended complaint adding Defendant Badaczewski on May 19, 2021. Defendant Durenleau ultimately filed an answer to the amended complaint (with a counterclaim) on June 18, 2021 (Doc. No. 16), while Defendant Badaczewski's answer to the amended complaint is due on July 20, 2021 (Doc. No. 12).
Defendants’ counsel issued the subpoena in violation of Rule 26 of the Federal Rules of Civil Procedure, and for that reason alone, it would have been subject to a motion to quash, had Plaintiff received notice of service of the subpoena prior to the STPD's production of documents in response to the subpoena. See Moyer v. Lebanon Cnty., No. 3:16-cv-01424, 2017 WL 6519032, at *2 (M.D. Pa. Dec. 20, 2017) (noting that “[a]ny discovery sought by way of a Rule 45 subpoena must fall within the permissible scope of discovery”). Accordingly, the Court concludes that good cause exists for the entry of a protective order regarding the documents obtained in violation of Rule 26. See, e.g., Elite Lighting v. DMF, Inc., et al., No. 13-1920, 2013 WL 12142840, at *3-4 (C.D. Cal. May 6, 2013) (concluding that third-party subpoenas issued prior to the Rule 26(f) conference constituted a clear violation of Rule 26(d)(1) and justified the entry of a protective order quashing the subpoenas); Desilva v. North Shore-Long Island Jewish Health System Inc., et al., No. 10-1341, 2010 WL 3119629, at *1 (E.D.N.Y. Aug. 9, 2010) (finding that, where plaintiff issued third-party subpoenas in violation of Rule 26(d)(1), defendants were entitled to a protective order); Crutcher v. Fidelity National Ins. Co., No. 06-5273, 2007 WL 430655, at *3 (E.D. La. Feb. 5, 2007) (finding subpoenas issued prior to the Rule 26(f) conference invalid).
In addition, the Court agrees with Plaintiff that the subpoena was substantively improper because it sought the production of information that was irrelevant to the claims at issue. A court addressing the propriety of a subpoena must evaluate whether it is limited to information that “ ‘is relevant to any party's claim or defense and proportional to the needs of the case’ as provided in [Federal Rule of Civil Procedure] 26(b)(1), or whether the [issuing party is] embarking on a ‘fishing expedition.’ ” See id. (citing United States v. Cuthbertson, 630 F.2d 139, 144 (3d Cir. 1980)). As noted by Plaintiff, the party issuing the subpoena bears the burden of establishing that the materials sought are within the scope of permissible discovery. See Shetayh v. State Farm Fire & Cas. Co., No. 5:20-cv-00693, 2020 WL 6817325, at * 2 (E.D. Pa. Nov. 20, 2020).
The Court is persuaded that, at the time the subpoena was issued, it did not seek information relevant to the claims in this case, and therefore would have been subject to a motion to quash on that basis. As noted by Plaintiff, Defendants’ counsel's May 21 email regarding the subpoena stated that it sought information that “goes directly to Ms. Durenleau and Ms. Badaczewski's defenses and counterclaims in this matter,” (Doc. No. 15-6 at 8); however, at the time of the issuance of the subpoena on May 17, neither Defendant had filed an answer or a counterclaim, and in fact, Ms. Badaczewski was not yet a defendant in this action, as the amended complaint asserting claims against her was filed on May 19, 2021.1 Further, while Defendant Durenleau subsequently filed an answer and counterclaim on June 18, 2021, Defendant Badaczewski's response to the amended complaint is not due until July 20, 2021. The Court notes that Defendants’ counsel's May 21 email confirms that the information sought by the subpoena relates primarily to allegations of sexual harassment and retaliation by NRA, which are at issue in a separate proceeding before the EEOC,2 stating that he is “mainly interested in complaints by NRA employees against Mr. Sharma [Plaintiff's COO] from 2010 to present.” (Doc. No. 15-6 at 8.)3
While Plaintiff argues that the documents produced constitute “protected matter” under CHRIA and that fact provides an additional basis for the issuance of a protective order with regard to the documents, the Court declines to make a finding as to whether the 764 pages of documents maintained and produced by the STPD constitute “protected matter” under CHRIA in the absence of an in camera review of those documents. However, the Court sees no reason to conduct such a review of documents obtained in clear violation of the Federal Rules of Civil Procedure. Because the documents were obtained pursuant to a subpoena issued in violation of Federal Rule of Civil Procedure 26, they are properly subject to a protective order until such time as Defendants would attempt to obtain such documents in accordance with the Federal Rules of Civil Procedure.
AND SO, on this 16th day of July 2021, upon consideration of the foregoing, IT IS ORDERED THAT:
1. Plaintiff's motion for a protective order (Doc. No. 14) is GRANTED;
2. Defendants may not use any of the documentation produced by the Swatara Township Police Department in response to the May 17, 2021 subpoena issued by Defendants’ counsel (the “Subpoenaed Documents”), unless such documents are obtained independently in compliance with the Federal Rules of Civil Procedure;
3. Defendants and their counsel shall immediately delete and destroy any and all electronic and hard copies of the Subpoenaed Documents and shall confirm that destruction in writing to Plaintiff's counsel within five (5) days of the date of this Order; and
4. Plaintiff may, within fourteen (14) days of the date of this Order, file a separate motion regarding its request for an award of reasonable expenses and attorney's fees pursuant to Federal Rule of Civil Procedure 37(a)(5).
FOOTNOTES
1. In opposition to Plaintiff's motion, Defendants’ counsel submitted as an exhibit a demand letter dated May 17, 2021 that he sent to NRA on Ms. Badaczewski's behalf, detailing allegations of harassment/retaliation by NRA. (Doc. No. 18-12.)
2. Defendant Durenleau has administrative charges pending before the EEOC and PHRC related to alleged harassment/retaliation by Plaintiff and its employees. (Doc. No. 16 at 2 n.1.)
3. Defendant Durenleau has filed a counterclaim alleging negligent hiring/retention against NRA arising out of her alleged harassment/retaliation by NRA's employees. (Doc. No. 16.) NRA has filed a motion to dismiss the counterclaim on the basis that Defendant Durenleau is required to exhaust her administrative remedies with regard to such a claim before the EEOC and PHRC before asserting it in this Court. (Doc. Nos. 20, 21.) That motion has not been fully briefed.
Yvette Kane, District Judge
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Docket No: No. 1:21-cv-00715
Decided: July 16, 2021
Court: United States District Court, M.D. Pennsylvania.
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