MARIO DANIELE v. LISA WHITTEMORE

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2523-20

MARIO DANIELE,

Plaintiff,

LISA WHITTEMORE, NORMAN
WHITTEMORE, MARGERY
HWANG, ANTHONY KINSLOW,
DR. PETER MULBERY, LINDSAY
DUELL, and HOWARD R. JACOBSON,

Defendants,

and

ROBERTA KERRY SHARICK, and
DAVID GRANT,

Defendants-Appellants.

Argued March 30, 2022 – Decided April 19, 2022

Before Judges Accurso and Marczyk.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0693-21.
Michael D. Zahler argued the cause for appellants
(Hodgson Russ LLP, attorneys; Michael D. Zahler and
Carmine J. Castellano (Hodgson Russ LLP) of the New
York bar, admitted pro hac vice, on the briefs).

Cassandra A. Willock argued the cause for respondent
Whole Foods Market Group, Inc. (Fishman McIntyre
Levine Samansky, PC, attorneys; Cassandra A.
Willock, on the brief).

PER CURIAM

This matter arises from a discovery dispute stemming from an Anti-

SLAPP1 lawsuit filed in New York by defendants, who were opponents of a

shopping center in which Whole Foods was to be an anchor tenant. The Anti-

SLAPP suit was filed by way of a counterclaim against plaintiff, who was the

developer of the center. Plaintiff initially filed an action against various

opponents of the project. Plaintiff dismissed the lawsuit shortly after it was

filed, but defendants continued to pursue their claims. Defendants subsequently

served a subpoena on Whole Foods in New Jersey. The subpoena seeks

documents regarding Whole Foods' communications with plaintiff with respect

1
New York Law allows parties to recover attorney fees, compensatory damages
and punitive damages where a SLAPP (strategic lawsuit against public
participation) suit defendant proves the action was commenced for "the purpose
of harassing, intimidating, punishing or otherwise maliciously inhibiting the free
exercise of speech, petition or association rights." New York Civil Rights Law
§70-a.
A-2523-20
2
to a Facebook page utilizing Whole Foods' logo, along with Whole Foods'

communications with the developer concerning opposition to the project,

opponents of the project, and the developer's communications regarding this

litigation. The subpoena further seeks the deposition of an individual with

knowledge of these matters. The trial judge granted Whole Foods' motion to

quash the subpoena. We reverse.

Defendants' counterclaim alleges plaintiff/developer and/or the

developer's representatives made intimidating contacts and threats of violence

towards the project's opponents. Defendants further allege plaintiff is suspected

of mailing anonymous, threatening letters to the opponents and falsely accusing

them of criminal conduct. Defendants issued a subpoena seeking nine categories

of documents and a one-day deposition of a Whole Foods representative. 2

2
The subpoena served on Whole Foods specifically requests the following:

(1) All Documents and communications Concerning the
Facebook page called "Bring Whole Foods to
Rochester, NY."; (2) All Documents and
Communications concerning Your granting of
permission, if any, to the Developer and/or Daniele to
use Your logo on social media and other websites; (3)
All Documents and Communications Concerning the
Developer's and/or Daniele's use of social media

A-2523-20
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Defendants argue the subpoena is narrowly tailored to discover what knowledge

Whole Foods has regarding the Facebook page entitled "Bring Whole Foods to

Rochester, NY" and derogatory messages on the page about the project's

opponents on the website. Defendants further seek information regarding the

developer's efforts to intimidate the project's opponents. Defendants submit the

subpoena seeks information relevant to the core allegations in the Anti-SLAPP

suit, specifically, the developer's intent and tactics utilized to intimidate the

project's opponents.

Whole Foods counters the trial court properly quashed the subpoena. It

asserts defendants do not allege it owns, maintains, or contributes to the

Facebook page at issue in the subpoena. Whole Foods notes it is not a named

regarding the Project; (4) All Communications between
You and the Developer and/or Daniele Concerning
opposition to the Project and/or opponents of the
Project; (5) All Communications with third parties
Concerning opposition to the Project and/or opponents
of the Project; (6) All Documents Concerning
opposition to the Project and/or opponents of the
Project; (7) All Documents and Communications
Concerning the Developer's and/or Daniele's response
to opposition to the Project and/or to opponents of the
Project; (8) All Documents and Communications
Concerning the Defendants in the Action; and (9) All
Documents and Communications Concerning the
Developer's and/or Daniele's response to litigation
involving the Project.
A-2523-20
4
party to the litigation, and defendants' counterclaim does not allege that Whole

Foods had any knowledge or information regarding plaintiff's intent or strategy

in filing the underlying lawsuit.

Whole Foods also contends the subpoenas issued in the underlying case

to affiliated entities of the developer did not demand the information requested

from Whole Foods, and the subpoena is overly broad and unlimited by any

timeframe. Whole Foods argues the subpoena is oppressive and unreasonable

because plaintiff attempted to discontinue the action two days after it was filed.

It further argues defendants failed to establish a witness from Whole Foods

could provide any relevant information regarding the Anti-SLAPP counterclaim.

Notably, the certification in support of the motion to quash was filed by outside

counsel and not a Whole Foods representative.

The trial court determined the information requested in the subpoena was

not relevant. The court noted that while plaintiff dismissed the underlying

lawsuit, defendants continued to pursue their counterclaim. Moreover, the court

stated Whole Foods was not a party to the underlying case, and that there were

no allegations made against Whole Foods. The court indicated that simply

because the company logo appears on a Facebook page should not subject Whole

Foods to the subpoena at issue. The trial court further noted there are no claims

A-2523-20
5
plaintiff was in any way involved with Whole Foods and there was "no rational

link" between Whole Foods and the lawsuit. The trial court characterized the

discovery request as a fishing expedition.

II.

Appellate courts "accord substantial deference to a trial court's disposition

of a discovery dispute." Brugaletta v. Garcia, 234 N.J. 225, 240 (2018) (citing

Capital Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80

(2017)). We defer to a trial judge's discovery rulings absent an abuse of

discretion or a judge's misunderstanding or misapplication of the law. Capital

Health, 230 N.J. at 79-80 (citing Pomerantz Paper Corp. v. New Cmty. Corp.,

207 N.J. 344, 371 (2011)).

It is well established that our discovery rules are to be construed liberally

in favor of broad pretrial discovery. Id. at 80 (quoting Payton v. N.J. Tpk. Auth.,

148 N.J. 524, 535 (1997)). Rule 4:10-2(a) provides:

Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter
involved in the pending action . . . . It is not ground for
objection that the information sought will be
inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery
of admissible evidence.

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In order to overcome the presumption in favor of discoverability, a party must

"show 'good cause' for withholding relevant discovery by demonstrating, for

example, that the information sought is a trade secret or is otherwise confidential

or proprietary." Capital Health, 230 N.J. at 80.

Although we have recently cautioned that judges should be mindful of the

burden and expense of extensive discovery demands directed at non-parties, our

review of this matter convinces us the judge was overly solicitous of Whole

Foods' non-party status. Trenton Renewable Power, LLC v. Denali Water Sols.,

LLC, ___ N.J. Super. ___ (2022). That Whole Foods is not a party to the New

York litigation does not insulate it from subpoena practice and having to respond

to reasonable discovery requests by parties to the suit. Similarly, that the

developer withdrew the complaint shortly after it was filed, but defendants

nevertheless pursued their counterclaim, is not a relevant consideration in

addressing the discovery dispute. While the trial judge in New York allowed

plaintiff to dismiss the complaint, the court denied plaintiff's motion to dismiss

the counterclaim. Accordingly, defendants have a right to conduct discovery

with respect to their counterclaim.

The trial court further determined the requested discovery was not

relevant and there was no rational connection between Whole Foods and the

A-2523-20
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underlying litigation. We disagree. The substance of the subpoenaed

information is relevant and reasonably calculated to lead to admissible evidence.

The subpoena seeks discovery related to information or documents Whole Foods

has with respect to defendants' Anti-SLAPP suit and the developer's efforts to

intimidate the project's opponents. It is not unreasonable to conclude that

plaintiff/developer may have communicated with Whole Foods with respect to

the status of the project, the contentious opposition, and related litigation. If

there were communications, these may be relevant to defendants' counterclaim.

If there were no such contacts, Whole Foods can respond accordingly.

While Whole Foods attempts to distance itself from the litigation, Whole

Foods is the anchor tenant in the development and appears to be at the center of

the underlying dispute, with respect to the opposition to the project.3 This is not

to suggest Whole Foods did anything to cause this controversy. However, it is

not a stretch to assume Whole Foods may be in possession of documents related

to the dispute involving the parties. While Whole Foods is not a party to the

litigation, it is still required to comply with a properly issued subpoena that

seeks relevant information.

3
Whole Foods states defendants "deceptively" refer to the project as the "Whole
Foods Plaza," but the developer actually referred to the project by that name in
the now dismissed lawsuit in New York.
A-2523-20
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Whole Foods argues defendants' counterclaim does not set forth any

allegation Whole Foods had any knowledge or information regarding plaintiff's

intent or strategy in filing the underlying lawsuit, but defendants are not required

to make that showing in advance of issuing a subpoena. That is why parties

conduct discovery—to investigate and obtain information about facts at issue in

a lawsuit. Given the New York court has allowed defendants' counterclaim to

proceed, they are permitted to pursue discovery. Whole Foods, in turn, must

comply with the subpoena. That is the essence of non-party discovery. To the

extent Whole Foods has no information in response to the subpoena, it can so

indicate.

While Whole Foods may be entitled as a non-party to broader discovery

protections than a party to litigation in certain circumstances, it has not made

the necessary showing based on the current record. See Trenton Renewable

Power, (slip op. at 16). Whole Foods relied on a certification from outside

counsel as opposed to an individual from Whole Foods with personal knowledge

regarding the availability of the discovery at issue and/or whether the requests

were unduly burdensome or oppressive. See R. 1:6-6 and R. 4:10-3. Again, the

information sought by way of the subpoena is relevant and reasonably calculated

to lead to admissible evidence. Thus, Whole Foods must respond to the

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subpoena. However, Whole Foods may interpose any appropriate objections,

consistent with Rule 4:10-2 and Rule 1:6-6, in responding to the subpoena or

seek a protective order pursuant to Rule 4:10-3. If the parties cannot resolve

any disagreement, "[w]e have no doubt that the court will be able to exercise its

discretion in resolving any additional disputes." Trenton Renewable Power, slip

op. at 19.

To the extent we have not otherwise addressed Whole Foods' arguments,

they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). For the

reasons noted above, we reverse the trial court's order quashing the subpoena.

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