In his Second Amended Complaint (“SAC”) [DE 41], Plaintiff alleges slander per se against Defendant Robert A. Sweetapple (Count 1) and retaliation under 42 U.S.C. § 1983 against Defendant Town of Gulf Stream (Count 2). Plaintiff specifically alleges that the “Town, either through the decisions of its top policymakers ... have [sic] chosen to use the Town's municipal powers to engage in a pattern of First Amendment retaliation against the Plaintiff. Additionally, the Town has possessed a pervasive and widespread custom, usage, or policy of retaliating against residents for First Amendment activities, including the Plaintiff.” [DE 41, ¶ 52].

Plaintiff alleges several specific instances of the Town retaliating against him and others, including “poison pen” letters written and distributed by the Town's mayor and the discussion of filing a RICO action against Plaintiff and his associates. Id. at 30–34, 52–69. He alleges that the Town's mayor and Defendant Sweetapple tried to put pressure of Plaintiff s son and business associates “in an effort to gain an undue advantage over Plaintiff in Plaintiff's lawsuits against the Town.” Id. at ¶ 30. Plaintiff again alleges in the SAC that the Town's mayor and Defendant Sweetapple attempted to “weaken Plaintiff by exerting pressure over his son.” Id. at ¶ 31. Plaintiff alleges that “[o]n or about April 24, 2014, [Defendant] Sweetapple himself publicly proclaimed that, as a result of Plaintiff's multiple lawsuits against the Town, Sweetapple was going to investigate and go after Plaintiff's son.” Id. at ¶ 37. According to Plaintiff, the Town's mayor filed a Florida Bar complaint on August 25, 2014, against Plaintiff's son, and the complaint was dismissed on May 20, 2015, with no adverse action taken by the Bar. Id. at ¶ 39, 41.

Jones Foster has represented the Town of Gulf Stream for a long period of time. [DE 65, p. 3]. Jones Foster ran a LexisNexis Comprehensive Person Report on Jonathan O'Boyle, Plaintiffs son, on April 21, 2014. See DE 65–1, Ex. B. The report itself states that the transactions were authorized by the consumer. Id. The parties explained at the discovery hearing that “the consumer” would be Jonathan O'Boyle. Plaintiff asserts, however, that Jonathan O'Boyle did not actually authorize such search, and that whoever ran the report must have chosen this option under the menu of choices offered by LexisNexis so that LexisNexis can comply with the Gramm–Leach–Bliley Act (“GLBA”). Plaintiff's counsel argued at the discovery hearing that Jones Foster obtained the report in violation of the GLBA; Jones Foster's counsel argued that it has no evidence that it would not have been able to uncover the same information about Jonathan O'Boyle if it had not selected that particular option on the LexisNext website. Jones Foster produced the report to Jonathan O'Boyle on June 26, 2015, in response to independent public records requests to the Town by Jonathan O'Boyle on May 29, 2015, and October 29, 2015. [DE 65, p. 4].

*2 The subpoena served upon Jones Foster requests all documents and communications concerning the LexisNexis Comprehensive Person Report prepared with respect to Jonathan O'Boyle; a copy of the report as kept in Jones Foster's files; a copy of all Lexis Nexis and/or Westlaw public records reports run by Jones Foster with respect to Plaintiff, Jonathan O'Boyle, Christopher O'Hare, William Ring, Ryan Witmer, Denise DeMartini, Giovani Mesa, and/or Nicklaus Taylor; all documents reflecting authorizations provided by Plaintiff, Jonathan O'Boyle, Christopher O'Hare, William Ring, Ryan Witmer, Denise DeMartini, Giovani Mesa, and/or Nicklaus Taylor with respect to Jones Foster performing a public records search under the Gramm–Leach–Bliley Act with respect to any such person; documents sufficient to identify the person at Jones Foster who performed the public records search to run the report; all documents and communications concerning Jones Foster's authorization or lack thereof by Jonathan O'Boyle to run the report; and all documents and communications concerning Jones Foster's legal obligation to obtain authorization from Jonathan O'Boyle for purposes of performing a public records search under the Gramm–Leach–Bliley Act. [DE 65–1, Ex. A].

In Defendant Town of Gulf Stream's motion, it objects to the subpoena on the basis that the subpoena seeks documents not relevant to the litigation and that the subpoena was issued for the ulterior purpose of obtaining extraneous information as part of an effort to develop new potential theories of liability against the Town. [DE 64].

In response, Plaintiff contends that a background search on LexisNexis cannot be performed on a whim and is protected by the Drivers Privacy Protection Act and/or the Gramm–Leach–Bliley Act (GLBA). [DE 66]. The LexisNexis report obtained by Plaintiff allegedly indicates a permissible GLBA use of “Transaction Authorized by Consumer”, but, according to Plaintiff, Plaintiff's son never actually gave such authorization. Id. Thus, Plaintiff maintains that the documents sought by the subpoena are relevant as the SAC alleges a pattern of retaliatory conduct by the Town and alleges that Defendant Sweetapple previously stated that he was going after Plaintiff's son to silence Plaintiff. Id. Finally, Plaintiff claims that the Town has not met its burden in its motion and that Plaintiff is entitled to an award of attorney's fees and costs. Id.

Jones Foster argues in its motion that there is good cause to quash the subpoena because its sole purpose is to develop new and independent claims by non-party Jonathan O'Boyle. [DE 65]. Jones Foster explains that, on October 12, 2015, Jonathan O'Boyle made a follow-up public records request seeking documents related to the report; however, no public records exist that will identify who ran the Lexis report. Id. Thus, Jonathan O'Boyle is improperly using a discovery process in his father's unrelated case to get the same information. Id. According to Jones Foster, Jonathan has stated in the past that he is very angry that the report was created and that he plans on taking legal action. Id.

In response, Plaintiff argues that the documents sought are relevant to and probative of both the retaliation claim against the Town and the slander per se claim against Sweetapple. [DE 67].[1] Plaintiff explains that the subpoena does not just seek information concerning the report, but it also seeks information about any other possible reports relating to Plaintiff, Plaintiffs employees/colleagues, and others named in the Town's RICO lawsuit. Id. Plaintiff is concerned that Jones Foster may have conducted other searches relating to Plaintiff or people with whom he is associated. Id. Plaintiff contends that, just because the information sought may be related to Jonathan O'Boyle's future claims, does not mean that the information is irrelevant in Plaintiff's case. Id. Plaintiff emphasizes that the subpoena is very limited and is not in any way burdensome. Id. Finally, he states that Jones Foster has not met its burden for getting a protective order and that he is entitled to attorney's fees and costs. Id.

*3 At the hearing on the motions, counsel for Defendant Town of Gulf Stream and counsel for Jones Foster first argued that, through the subpoena, non-party Jonathan O'Boyle is trying to drum up new claims not related to this case, especially since the report was not mentioned in the SAC. Counsel pointed out that Plaintiff has conceded that the Florida Bar complaint filed against Jonathan O'Boyle was filed by the Town's mayor and was not authorized by the Town. Finally, counsel emphasized the fact the report was run could not constitute a retaliatory action by the Town when Plaintiff did not even find out it had been run until the report turned up in a later public records request. In other words, the running of the report could not have been completed in order to silence Plaintiff if he did not even know about it.

Plaintiff's counsel explained that the report was not mentioned in the SAC because Plaintiff learned about the report after the SAC was filed. Next, Plaintiff's counsel conceded that the documents requested in the subpoena are actually only relevant to the retaliation claim and not to the slander claim. Plaintiff's counsel argued that the report run on Jonathan O'Boyle was not a run of the mill search on a public site such as Google, that it turned up confidential information like Jonathan O'Boyle's social security number and addresses, and that the search was run in violation of the GLBA. Counsel contended that the running of a background search is not in and of itself retaliation but that the fact that someone was willing to allegedly violate federal law to run a background search is probative of retaliation. In other words, the search was illegal and therefore shows the great lengths the Town (ostensibly through the law firm that represents the Town in certain matters) was willing to go to in order to prevent Plaintiff from exercising his First Amendment rights. Plaintiff's counsel emphasized that the report was also run two days before the alleged public proclamation by one of the Town's representatives that he was out to get Jonathan O'Boyle in order to silence Plaintiff.

In response, counsel for the Town argued that the running of the report did not lead to any actual retaliatory act against Plaintiff and that the motive of the law firm who represents the Town in various matters adverse to Plaintiff in running the report is not relevant to Plaintiff's First Amendment retaliation claim. Plaintiff's counsel maintained in reply that the running of the search is less relevant than the underlying conversations and directives regarding the running of the search.

Federal Rule of Civil Procedure 26(b)—which governs the scope of discovery—provides, in pertinent part, that

Fed.R.Civ.P. 26(b)(1).[2]

*4 Under Rule 26(c)(1), “[a] party or any person from whom discovery is sought may move for a protective order ... to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). For good cause, a court may issue a protective order providing a variety of remedies, such as precluding the discovery altogether. Fed.R.Civ.P. 26(c)(1)(A)-(B). The party seeking a protective order must demonstrate “ 'good cause' for the protection sought.” Wrangen v. Pennsylvania Lumbermans Mut. Ins. Co., 593 F.Supp.2d 1273, 1277 (S.D.Fla.2008). “ 'Good cause' has been defined as a 'sound basis or legitimate need to take judicial action.' ” Id. (quoting In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir.1987)). “The party requesting a protective order must make a specific demonstration of facts in support of the request. A court must then balance the competing factors involved in determining whether good cause has been shown.” Id. The court may grant a party's request for a protective order if a subpoena served on a third party requests irrelevant information. Auto–Owners Ins. Co. v. Southeast Floating Dock, Inc., 231 F.R.D. 426, 429 (M.D.Fla.2005). Federal Rule of Civil Procedure 45 gives the Court the power to quash or otherwise modify a subpoena. Fed.R.Civ.P. 45(d)(3).

At the outset, the Court finds that both Defendant Town of Gulf Stream and non-party Jones Foster do have standing to challenge the subpoenas at issue; under Federal Rule of Civil Procedure 26(c), a party to a lawsuit or any person from whom discovery is sought may move the Court for entry of a protective order and challenge third-party subpoenas on the basis that they seek irrelevant information. See Auto–Owners Ins. Co., 231 F.R.D. at 429. The Court has considered the SAC and the allegations made therein. After balancing the competing factors involved, the Court finds that Defendant Town of Gulf Stream and non-party Jones Foster have, in fact, established good cause for the entry of a protective order. There are several reasons for this finding.

First, the portions of the subpoena that request documents in any way related to non-parties Christopher O'Hare, William Ring, Ryan Witmer, Denise DeMartini, Giovani Mesa, and/or Nicklaus Taylor are clearly irrelevant under the standard described in Rule 26(b). None of these individuals are party to the current action; their only nexus to the SAC at all is that the Town and some of its representatives considered filing a RICO action against them. Any request for documents involving these individuals is irrelevant to the instant lawsuit. Moreover, Plaintiff has provided no good faith basis whatsoever for believing that Jones Foster has run background reports on these individuals. Plaintiff's subpoena seeks irrelevant information based upon pure speculation as to those individuals.

Second, during the discovery hearing, the Court stated that whether or not the documents described in the subpoena that relate to Plaintiff or his son are relevant appeared to be a close question. Upon further review of the pleadings, arguments of the parties, and the law, however, the Court finds that the question is really not that close because the bottom line is that the subpoena does seek irrelevant information. The fact that Jones Foster ran one LexisNexis background search on Jonathan O'Boyle, which report Jones Foster claims it never shared with anyone outside the law firm, is completely unrelated to the claims alleged by Plaintiff in the SAC. Jones Foster has already produced the report on Jonathan O'Boyle to him upon a public records search, and Jonathan O'Boyle should not be permitted to utilize the discovery process in his father's First Amendment retaliation case to obtain additional context for the running of the report. The information sought is not relevant to Plaintiff's claim or the defense of Defendants.[3]

*5 Third, Plaintiff's counsel was unable to explain how running a general background search on a public search engine or a general case law search on a site like Westlaw, which searches Plaintiff's counsel conceded are run as a matter of course in lawsuits, is substantially different from running a background report on LexisNexis. The mere fact that Jones Foster may have allegedly violated a federal statute in running the report does not demonstrate the Town's propensity to retaliate against Plaintiff when the report was never directly used for any retaliatory action. Further, the Court is not convinced that it would have been a violation of the law for Jones Foster to have run this report in the manner alleged. See 15 U.S.C. § 6802(e)(2). Nor did Plaintiff's counsel provide any concrete support or case law for his position that running the report was a violation of the law. Moreover, as pointed out at the hearing, the running of the report was not itself a retaliatory act when Plaintiff was not even aware of the report being run. Plaintiff could not have felt that the Town was threatening him by delving into his son's background if Plaintiff did not even know this was happening.

After considering the Rule 26(b) factors, it is clear that the information sought in the subpoena is disproportionate to the needs of this case. See Fed.R.Civ.P. 26(b). The information sought is also irrelevant. Permitting this subpoena to proceed would cause the parties to run down a rabbit hole chasing irrelevant information on collateral matters, resulting in the needless and wasteful expenditure of time and money by the parties. That is not what Federal Rules of Civil Procedure 1 and 26(b)(2) envision. Both motions are granted.

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Defendant, Town of Gulf Stream's Motion for Protective Order Quashing Subpoena Duces Tecum Issued to Jones, Foster, Johnston, & Stubbs, P.A. [DE 64] is GRANTED and that Non–Party Jones Foster Johnson & Stubbs, P.A.'s Motion for Protective Order [DE 65] is GRANTED. The subpoena issued to Jones Foster is hereby quashed. Plaintiff's request for attorney's fees is denied as the motions have been granted.

DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 8th day of February, 2016.

At the hearing held on February 3, 2016, Plaintiff counsel's retreated somewhat from this argument by conceding that the documents sought are not relevant to the slander claim against Defendant Sweetapple.

In United States Supreme Court Chief Justice John Roberts' 2015 Year–End Report on the Federal Judiciary, he discusses the December 1, 2015 amendment to Rule 26(b) and states that the amended rule requires lawyers to “size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.” Chief Justice's 2015 Year–End Report, www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf at p. 7. He further explains that the 2015 civil rule amendments are a “major stride toward a better federal court system. But they will achieve the goal of Rule 1—'the just, speedy, and inexpensive determination of every action and proceeding'—only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making change real.” Id. at p. 9. The Court agrees with the Chief Justice's comments.

Plaintiff's responses to the motions for protective order mistakenly invoked the “reasonably calculated to lead to discovery of admissible evidence” standard of the prior version of Rule 26(b)(1). [DE 66, ¶ 11; DE 67, p. 1, fn. 1]. However, the December 1, 2015 amendment to Rule 26(b)(1) has eliminated that language from the Rule. See, e.g., Henry v. Morgan's Hotel Group, Inc., 15–CV–1789 (ER)(JLC), 2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016) (finding that subpoenas should be quashed because information sought was not sufficiently relevant under new Rule 26 standard).