Screen v. Quality Protection Services, Inc. et al, No. 1:2020cv02506 - Document 44 (S.D.N.Y. 2020)
Court Description: ORDER granting 43 Letter Motion for Discovery. The application is GRANTED. The Clerk of Court is respectfully directed to sign the attached subpoenas and serve them on the New York City Fire Department and New York Department of Labor, respectively. So Ordered. (Signed by Judge Lorna G. Schofield on 12/8/2020) (va) Transmission to Finance Unit (Cashiers) for processing.
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Screen v. Quality Protection Services, Inc. et al Doc. 44 Case 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 1 of 8 C LIFTON B UDD & D E M ARIA , LLP ATTORNEYS AT LAW THE EMPIRE STATE BUILDING 350 FIFTH AVENUE, 61ST FLOOR NEW YORK, NY 10118 TEL (212) 687-7410 FAX (212) 687-3285 www.cbdm.com IAN-PAUL A. POULOS ASSOCIATE E-MAIL: IAPOULOS@CBDM.COM December 7, 2020 VIA ECF Hon. Lorna G. Schofield United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007 Re: Screen v. Quality Protection Services, Inc. et al 1:20-cv-02506-LGS Dear Judge Schofield: This firm represents the Defendants in the above-referenced action. We write with Plaintiff’s consent to request that the Court So-Order the attached subpoenas pursuant to Rule 45 of the Federal Rules of Civil Procedure, which are directed at the New York State Department of Labor (“NY DOL”) and the New York City Fire Department (“FDNY”). See Exhibit A & Exhibit B. On November 23, 2020, this Court ordered that the “Defendant[s] shall produce any documents obtained through the use of the [NY DOL and FDNY] authorizations to Plaintiff, prior to Defendants’ deposition of Plaintiff.” See ECF Doc. 42. As indicated in the same Order, the Plaintiff’s deposition is currently scheduled to proceed on December 15. The individual Defendants (Mirjanic and Brady) are scheduled for December 21 and 22. See ECF Doc. 42. After Plaintiff provided the above-mentioned authorizations, the Defendants immediately delivered them with attorney-signed subpoenas by FedEx Priority Overnight on November 25, 2020. See Exhibit C & Exhibit D. In the days that followed, Defendants contacted both agencies repeatedly to determine a timeframe for their anticipated response. The NY DOL indicated on December 2, 2020, that “these records can take up to 2 weeks to produce.” After more than ten phone calls from the undersigned’s office, the FDNY answered the phone on one occasion (December 3) and indicated to this firm’s paralegal that the FDNY is severely understaffed. No specific timeframe was provided for a response. For this reason, the parties request that Your Honor issue Court-ordered subpoenas compelling the NY DOL and FDNY to respond. In the alternative, and with the understanding that this Court Ordered no further extensions will be granted absent extraordinary circumstances, the Dockets.Justia.com Case 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 2 of 8 C LI F TON B UDD & D E M AR IA , LLP Page 2 December 7, 2020 Defendants respectfully request with Plaintiff’s consent that the Court adjourn depositions pending the NY DOL and FDNY’s response. Fact discovery closes on February 2, 2021. Compelling the agencies to respond will not affect other scheduled dates. Thank you for Your Honor’s time and consideration. Respectfully submitted, CLIFTON BUDD & DeMARIA, LLP Attorneys for the Defendants By:___/s/Ian-Paul A. Poulos_________________ Arthur J. Robb Ian-Paul A. Poulos CC: All Counsel of Record The application is GRANTED. The Clerk of Court is respectfully directed to sign the attached subpoenas and serve them on the New York City Fire Department and New York Department of Labor, respectively. So Ordered. Dated: December 8, 2020 New York, New York Case 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 3 of 8 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 ofof New York __________ District __________ Makeba Screen Plaintiff v. Quality Protection Services, Inc. et al. Defendant ) ) ) ) ) ) Civil Action No. 20-CV-02506-LGS SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION New York City Fire Department 9 MetroTech Center, Brooklyn, New York 11201 To: (Name of person to whom this subpoena is directed) u 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: Any and all communications, correspondence, applications, exam or training course results, and certifications maintained by the FDNY under the name Makeba Screen. Place: Clifton Budd & DeMaria, LLP Date and Time: 350 FIfth Avenue, Suite 6110 New York, New York 10118 12/14/2020 10:00 am u 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: 12/08/2020 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: Quality Protection Services, Inc., Mirjana Mirjanic, and Shane Brady Ian-Paul A. Poulos, Clifton Budd & DeMaria, LLP, The Empire State Building, 350 Fifth Avenue, STE 6110, NY, NY 10118, iapoulos@cbdm.com 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 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 4 of 8 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. 20-CV-02506-LGS 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) . u I served the subpoena by delivering a copy to the named person as follows: on (date) ; or u 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 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 5 of 8 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 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 6 of 8 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 ofof New York __________ District __________ Makeba Screen Plaintiff v. Quality Protection Services, Inc. et al. Defendant ) ) ) ) ) ) Civil Action No. 20-CV-02506-LGS SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION New York State Department of Labor Building 12, W.A. Harriman Campus, Albany, New York 12240 To: (Name of person to whom this subpoena is directed) u 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: Any and all unemployment insurance records belonging to Makeba Screen from September 30, 2019 through and including the present. Place: Clifton Budd & DeMaria, LLP Date and Time: 350 FIfth Avenue, Suite 6110 New York, New York 10118 12/14/2020 10:00 am u 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: 12/08/2020 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: Quality Protection Services, Inc., Mirjana Mirjanic, and Shane Brady Ian-Paul A. Poulos, Clifton Budd & DeMaria, LLP, The Empire State Building, 350 Fifth Avenue, STE 6110, NY, NY 10118, iapoulos@cbdm.com 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 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 7 of 8 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. 20-CV-02506-LGS 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) . u I served the subpoena by delivering a copy to the named person as follows: on (date) ; or u 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 1:20-cv-02506-LGS Document 44 Filed 12/08/20 Page 8 of 8 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).
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