*1 Plaintiff Sasha Hoffman has moved for protective orders and to quash subpoenas issued by Defendants Thras.io, Inc.[1], Joshua Silberstein, and Carlos Cashman (collectively “Defendants”).[2] Docket Nos. 32, 36. For the following reasons, this Court grants the motions in part and denies them in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to Hoffman's complaint, in early 2019, Silberstein and Cashman recruited her to work in a senior management role at Thrasio.[3] Docket No. 1-1 ¶¶ 1, 17. Hoffman states that her “extensive executive management experience for multiple start-ups” and “her unique skill set, developed as a former investment banker with Barclays and Goldman Sachs, Head of Business Development for then start-up Plastiq, and former COO of Piaggio Fast Forward” made her the “right person” for the job. Id. ¶ 14. Hoffman alleges that although Thrasio could not pay her a salary commensurate with her experience, she nevertheless accepted the position because Defendants promised her between $1 million and $2 million in equity at the Q1 2019 valuation which would vest over 4 years. Id. ¶¶ 1, 18-20.

When Hoffman began working for Thrasio in May 2019, she signed a “Consulting Agreement” for a trial period from May 1, 2019 to July 31, 2019. Id. ¶ 34. Hoffman later signed additional agreements extending the term of her employment.[4] Id. Although none of the executed consulting agreements discuss an equity grant, Hoffman says that she signed them and continued working at Thrasio “in reliance on Defendants’ promises and representations concerning the Thrasio equity grant.” Id.

In October 2019, Hoffman and Defendants decided that she would discontinue her services to the company as of October 31, 2019. Id. ¶ 55. Hoffman alleges that prior to her departure, she met with Silberstein on October 30, 2019, and they agreed that Thrasio would have granted her $1.2 million in equity over a four-year vesting schedule based on the Q1 2019 valuation of the company. Id. ¶¶ 56-59. Hoffman would therefore be entitled to $150,000 in Thrasio equity for six months of work. Id. ¶ 59. After Hoffman's departure, she continued to discuss the equity grant with Silberstein until July 27, 2020, when Thrasio's general counsel informed her that the company would not be providing a “true up” of the grant. Id. ¶¶ 67-73.

Hoffman filed suit in state court on November 17, 2020, and Defendants removed the case to the United States District Court for the District of Massachusetts on December 15, 2020. Docket Nos. 1, 1-1. Currently pending against Defendants are Hoffman's claims of common law fraud (Count II), violation of the Securities Exchange Act, 15 U.S.C. § 78j(b) (Count III), and violation of Mass. Gen. Laws ch. 93A, § 11 (Count VI), as well as claims against Thrasio for breach of contract (Count IV) and promissory estoppel (Count V).[5] Docket No. 1-1.

*2 Defendants have issued subpoenas pursuant to Federal Rule of Civil Procedure 45 to the following third-party entities: Fuzzy Compass Inc., Plastiq, Inc., BUILD, Piaggio Fast Forward, Inc., Bay Shore Staffing, Inc., Uber Technologies, Inc., and CHIEF.[6] See Docket No. 32-1; Docket No. 36-1. On June 28, 2021, Hoffman filed a motion for a protective order and to quash the subpoenas served on Fuzzy Compass, Plastiq, BUILD, Piaggio, and Bay Shore, Docket No. 32, which Defendants opposed on July 12, 2021. Docket No. 38. Hoffman filed a second motion for a protective order and to quash the subpoenas served upon Uber and CHIEF on July 7, 2021. Docket No. 36. Thrasio opposed that motion on July 21, 2021. Docket No. 41. Hoffman filed a reply brief as to both motions on August 10, 2021, Docket No. 47, and Defendants filed a sur-reply on August 25, 2021. Docket No. 51. This Court heard oral argument on September 16, 2021.

II. STANDARD OF REVIEW

“Discovery procedures set forth in the Federal Rules of Civil Procedure seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information.” Cartel Asset Mgmt. v. Ocwen Fin. Corp., No. 01-cv-01644-REB-CBS, 2010 WL 502721, at *9 (D. Colo. Feb. 8, 2010) (citing United States ex rel. Schwartz v. TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal. 2002)). Rule 26(b) dictates the scope and limits of permissible discovery. Fed. R. Civ. P. 26(b)(1). A Rule 45 subpoena is subject to Rule 26(b)’s restrictions. Miller v. Allstate Fire & Cas. Ins. Co., No. 07-260, 2009 WL 700142, at *2 (W.D. Pa. Mar. 17, 2009) (citation omitted). Thus, the information sought by a Rule 45 subpoena must be: (1) not privileged; (2) relevant to the claim or defense of any party; and (3) proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “A subpoena issued to a non-party pursuant to Rule 45 is subject to Rule 26(b)’s overriding relevance requirement.” EEOC v. Texas Roadhouse, Inc., 303 F.R.D. 1, 2 (D. Mass. 2014). The burden of establishing the relevance of the requested information is on the subpoenaing party. Viscito v. Nat'l Plan. Corp., No. CV 3:18-30132-MGM, 2020 WL 4274721 at *2 (D. Mass. July 24, 2020).

Rule 26(c)(1) provides that “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending .... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....” Fed. R. Civ. P. 26(c)(1). Rule 26 “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co v. Rhinehart, 467 U.S. 20, 36 (1984).

III. DISCUSSION

Hoffman moves to quash the subpoenas in their entirety because they do not seek information relevant to the claims or defenses in this case. Rather, Hoffman argues the subpoenas are designed either as an inappropriate fishing expedition into her work history, or they are intended to “to harass Hoffman and her family and to interfere with her business relationships in retaliation for bringing these claims.” Docket No. 36 at 4.

Hoffman also requests that this Court issue a protective order barring Defendants from issuing additional subpoenas “to any other persons or entities with whom: (i) Hoffman was affiliated, either as an employee or otherwise, after leaving Thras[ ]io; (ii) Hoffman is currently affiliated; and (iii) Hoffman may be affiliated in the future.” Docket No. 36 at 2.

*3 For their part, Defendants contend that the subpoenas are appropriate because they seek limited relevant information that bears on Hoffman's credibility, the reasonableness of Hoffman's reliance on Defendants’ alleged oral agreement, and the damages at issue in this case. Docket No. 38 at 2; Docket No. 41 at 2.

A. Standing

Defendants challenge Hoffman's standing to seek the requested relief pertaining to the Bay Shore subpoena. “A party has standing to move to quash a non-party subpoena if the information sought by the subpoena implicates a personal right or privilege of the party.” Ponder v. Ocwen Loan Servicing, LLC, No. CV 19-MC-91215-ADB, 2019 WL 2249675, at *2 (D. Mass. May 24, 2019) (citations omitted). “The personal right or privilege claimed need not be weighty: parties need only have some personal right or privilege in the information sought to have standing to challenge a subpoena to a third party.” Id. (citations omitted).

A party with a personal right or privilege “may [also] move for a protective order ... ‘as long as the moving party can tie the protected information to an interest listed in [Federal Rule of Civil Procedure 26(c)], such as annoyance, embarrassment, etc.’ ” Accusoft Corp. v. Quest Diagnostics, Inc., No. CIV. A. 12-40007-FDS, 2012 WL 1358662, at *10 (D. Mass. Apr. 18, 2012) (quoting Firetrace USA, LLC v. Jesclard, 2008 WL 5146691 (D. Ariz. Dec. 8, 2008)). The decision to enter a protective order is within the Court's discretion and does not depend on a legal privilege. Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005). At any rate, upon a finding that the information sought is duplicative, overly burdensome to produce, or irrelevant, a court may effect the relief sought by a party contesting a subpoena even if the moving party lacks standing to do so on its own behalf. See Fed. R. Civ. P. 26(b)(2)(C); see also Accusoft, 2012 WL 1358662, at *11.

The Bay Shore subpoena requests documents directly related to Hoffman and her involvement with Thrasio, but it also seeks documents related to an individual named Stephanie Amancio-Scott[7], her placement at Thrasio, and payments made relating to that placement. Docket No. 32-1 at 60-61. Insofar as Defendants request documents from Bay Shore connected with Hoffman (Requests 1-4, Docket No. 32-1 at 60), Hoffman certainly has a personal right to that information and standing to challenge the subpoena. Additionally, as set out more fully below in Section III(B)(3), even if Hoffman does not have a personal right or privilege as to the documents which pertain solely to Amancio-Scott, that information is irrelevant to this action. Accordingly, this Court may act on the entirety of the motion with respect to Bay Shore.

B. The Subpoenas Are Generally Overbroad And/Or Seek Irrelevant Information

Although Defendants characterize the subpoenaed information as garden-variety discovery, it is anything but. As discussed below, the majority of the document requests are so extensive they essentially amount to Hoffman's full personnel file from each entity and as such, are too broad.

Thrasio's subpoenas to Uber[8] and CHIEF[9] request four categories of information: (1) Hoffman's application for employment or admission with the organization; (2) any “consulting or independent agreement” between Hoffman and the organization; (3) any “potential or actual equity award” from the organization to Hoffman; and (4) Hoffman's involvement, employment, and communications with Thrasio. Docket No. 36-1 at 21, 35.

*4 Hoffman's complaint asserts detrimental reliance on Defendants’ purported representations regarding a grant of equity in Thrasio. See, e.g., Docket No. 1-1 ¶¶ 96, 114. To succeed on her claims, Hoffman must prove that she was reasonable and justified in her reliance on Defendants’ promises. See Arabian Support & Servs. Co., Ltd. v. Textron Sys. Corp., 368 F. Supp. 3d 211, 227 (D. Mass.), aff'd, 943 F.3d 42 (1st Cir. 2019) (citations omitted). Although Defendants are correct that that Hoffman's understanding of equity compensation may be relevant to the underlying claims and defenses, they overlook the fact that the analysis of these attributes must be made based on Hoffman's experience when she entered into the alleged agreement with Thrasio. Hoffman's after-acquired knowledge is irrelevant to what she knew at the time of the agreement. Because Hoffman became involved with Uber and CHIEF after leaving Thrasio, any information the two entities may have relating to her comprehension of equity grants is not relevant here. In addition, there is little reason to believe that Hoffman's applications for a position at a company or membership in a networking group wholly unrelated to Thrasio would include information relevant to the claims in this case. As such, Thrasio's subpoenas to Uber and CHIEF request irrelevant information and must be quashed.

Defendants’ subpoenas to Plastiq[10], Fuzzy Compass[11], Piaggio[12], and BUILD seek six broad categories of information. Each subpoena requests “any and all” documents and/or communications that “refer to, relate to, evidence, or reflect” (1) Hoffman's application for employment; (2) any “consulting or independent agreement” between Hoffman and the organization; (3) any “potential or actual equity award” to Hoffman; (4) any “claims, disputes, or litigation” between Hoffman and the organization; (5) any internal complaints involving Hoffman; and (6) the circumstances around Hoffman's departure. Docket No. 32-1 at 7-8, 20-21, 33-34, 46-47.

Defendants assert that by including information about her prior experience and employers in her complaint[13], Hoffman has opened the door to an examination of her full employment history. Docket No. 38 at 8; Docket No. 51 at 3.[14] This Court disagrees.

Hoffman's knowledge about equity grants prior to her tenure at Thrasio is certainly relevant to the question of whether Hoffman's reliance was reasonable. The subpoenas to Hoffman's former employers, however, go too far. Specifically, there is no indication that information in Hoffman's applications for employment, consulting/independent agreements between Hoffman and the organizations, internal complaints involving Hoffman, and/or the circumstances around Hoffman's departure from the organizations is sufficiently relevant to the reasonableness of Hoffman's reliance on Defendants’ alleged promises of equity. The two remaining categories of documents (potential or actual equity awards from the organizations to Hoffman and claims, disputes, or litigation between Hoffman and the organizations) are, with some narrowing, sufficiently relevant as to all of the subpoenaed pre-Thrasio entities except BUILD. If Hoffman's proposed or actual compensation at any of her former employers included an equity grant, that would be relevant to her experience and understanding related to the same. Similarly, if Hoffman was involved in any kind of a dispute with a former employer over a potential or actual equity award, that would be relevant as well. Disputes related to anything other than an equity award, however, are irrelevant.

*5 Hoffman was never employed by the nonprofit BUILD. Docket No. 34 ¶ 3. Rather, she was an unpaid board member from 2012 to 2017. Id. Defendants do not contend that Hoffman ever worked at BUILD, and the information requested is not in any way tailored to Hoffman's involvement with the organization.

This Court therefore limits Defendants’ subpoenas to each of Hoffman's former employers by striking Requests 1, 2, 5, and 6, and modifying Requests 3 and 4 as follows: Request 3 – Produce any and all communications and documents that refer to, relate to, evidence, or reflect any potential or actual equity award to Sasha Hoffman; Request 4 – Produce any and all communications and documents that refer to, relate to, evidence, or reflect any claims, disputes, or litigation involving a potential or actual award of equity involving Sasha Hoffman and [the former employer]. This Court quashes the BUILD subpoena in its entirety.[15]

During her tenure at Thrasio, Hoffman introduced the company to Bay Shore, a staffing agency that Hoffman had worked with, but not for, prior to joining Thrasio. Docket No. 34 ¶ 6. Hoffman states that she never discussed a promise of an equity grant from Thrasio with Bay Shore. Id. ¶ 7. Thrasio hired and later terminated one of the candidates presented by Bay Shore, Stephanie Amancio-Scott. Id. ¶ 8.

Defendants’ subpoena to Bay Shore requests information directly related to Hoffman, as well as information pertaining to Stephanie Amancio-Scott. Docket No. 32-1 at 60-61. Specifically, Defendants seek documents that refer or relate to: (1) Hoffman and Thrasio; (2) Hoffman's “professional experience, work history[,] and consulting business”; (3) Hoffman's statements about Thrasio “and its officers, employees, and independent contractors”; (4) payments made to Hoffman; (5) payments made by Bay Shore to Amancio-Scott; (6) Amancio-Scott's placement at Thrasio; and (7) payments made and/or received by Bay Shore related to the placement of Amancio-Scott at Thrasio. Docket No. 32-1 at 60-61.

Defendants argue that these requests are relevant because: (1) Hoffman introduced Thrasio to Bay Shore, and Thrasio subsequently used Bay Shore's staffing services; (2) Defendants believe Bay Shore paid Hoffman in connection with the placement of Stephanie Amancio-Scott at Thrasio which speaks to the damages in this case[16]; and (3) “Defendants have reason to believe that Hoffman discussed the reasons for her departure from Thrasio with Bay Shore.” Docket No. 38 at 12-13.

*6 That Hoffman introduced Thrasio to Bay Shore and that Thrasio later engaged Bay Shore's staffing services does not render the requested information relevant to the issues in this case. Even if Hoffman did receive payment from Bay Shore related to Amancio-Scott's placement, Defendants have not shown how such a payment is at all relevant to the damages here. Rather, the underlying issue is whether Hoffman and Defendants entered into an enforceable agreement regarding a grant of equity in Thrasio. Defendants similarly fail to show how payments made to Amancio-Scott and documents relating to Amancio-Scott's placement at Thrasio bear any relevance to the issues at hand. Finally, while Defendants assert that they “have reason to believe” that a discussion occurred between Hoffman and Bay Shore relating to Hoffman's departure from Thrasio, they offer nothing more in support of their contention. Defendants’ conclusory statements are insufficient to overcome the breadth of the Bay Shore subpoena and do not make the requested information relevant.[17]

For the reasons stated above, Defendants’ subpoena to Bay Shore must be quashed.

C. Motion For Protective Order

Hoffman also requests a protective order “prohibiting Defendants from issuing any further subpoenas to any other persons or entities with whom: (i) Hoffman was affiliated, either as an employee or otherwise, after leaving Thras.io; (ii) Hoffman is currently affiliated; and (iii) Hoffman may be affiliated in the future.” Docket No. 36 at 2. In support of her request, Hoffman argues that she is prevented from engaging in a “critical component” of her work life (i.e. updating her LinkedIn and other online profiles with information about her latest business undertakings) because she is afraid that Defendants will use the information she posts to issue more subpoenas “as a fishing expedition or to harass Hoffman and her family and to interfere with her business relationships in retaliation for bringing these claims.” Id. at 4, 5. Hoffman states that she is worried that Defendants will subpoena “any entity they can find that has any connection to [her], including entities with which [she has] newly-formed relationships.” Docket No. 37 ¶ 5.

Hoffman has not shown good cause for such a sweeping order. Where appropriate, this Court has the ability to quash unwarranted individual discovery, as it has done here. I therefore decline at this time to issue a protective order regarding future subpoenas.

IV. ORDER

For the foregoing reasons, this Court:

This Court declines to award fees or costs to either side.

Thras.io, Inc. is now known as Thrasio, LLC. Docket No. 38 at 1.

Judge Saris referred the instant motions to the undersigned on July 20, 2021 and July 22, 2021. Docket Nos. 39, 42.

Hoffman describes Thrasio currently as “the largest acquirer of Amazon businesses and one of the top 25 sellers on Amazon” (Docket No. 1-1 ¶ 12), but states that, at the time she was recruited, it was “just a promising start-up.” Id. ¶ 1.

See Docket Nos. 13-2, 13-3, 13-4.

Judge Saris dismissed Plaintiff's claim for misclassification as an independent contractor (Count I) on May 10, 2021. Docket No. 28.

Thrasio also issued a subpoena to Wayfair, Inc., where Hoffman's boyfriend worked. See Docket No. 36-1 at 2-15; Docket No. 37 ¶ 2. Based on Hoffman's representation that she did not work for Wayfair, Thrasio withdrew its subpoena to the same. Docket No. 41 at 1 n.1. Hoffman's motion to quash the Wayfair subpoena is therefore moot.

Thrasio hired Amancio-Scott through Bay Shore. Docket No. 34 ¶ 8.

Hoffman began working for Uber in or around January of 2020. Docket No. 37 ¶ 4.

CHIEF is a private networking group that Hoffman joined well after leaving her position at Thrasio. Docket No. 37 ¶ 3. Hoffman is a member of CHIEF, not an employee. Id.

Hoffman worked as Plastiq's Head of Business Development between July 2012 and July 2014. Docket No. 1-1 ¶ 14; Docket No. 34 ¶ 2.

Hoffman co-founded the travel company Fuzzy Compass in or around December 2014; she ceased providing services to Fuzzy Compass in 2016. Docket No. 34 ¶ 4.

Hoffman worked with Piaggio from May 2015 until July 2018, first as a consultant and then as the Chief Operating Officer. Docket No. 1-1 ¶ 14; Docket No. 34 ¶ 5.

See Docket No. 1-1 ¶ 14.

In support of this argument, Defendants rely on Turnley v. Banc of Am. Inv. Servs., Inc., No. 07CV10949-NG, 2008 WL 5412886, at *2 (D. Mass. Dec. 8, 2008). It is true that, like the plaintiffs in Turnley, Hoffman raised her employment history in her complaint by alleging extensive prior work experience. However, when the Turnley plaintiffs “put their prior [employment] track record at issue,” it was in a different context than here (i.e., a discrimination complaint). Id. at *2. To succeed on their discrimination claim, the Turnley plaintiffs had to show “what they would have earned had they not been discriminated against, i.e., the commissions they would have earned had their territories not been assigned in a biased way.” Id. This showing necessarily required information from the plaintiffs’ prior employment records. The same information is not relevant to the claims or defenses in this case.

Defendants’ additional arguments do not change this Court's analysis. Although a party's credibility may be relevant, an attempt to impeach that credibility does not, on its own, justify a sweeping search of the party's employment records. See Smith v. Turbocombustor Tech., Inc., 338 F.R.D. 174, 177 n.4 (D. Mass. 2021) (citing Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437 CFD, 2007 WL 2786421 at *3 (D. Conn. Sept. 25, 2007)). In addition, Defendants assert, in conclusory fashion only, that the information sought by the subpoenas to Hoffman's former employers is relevant to assess Hoffman's claim of damages but offer no explanation as to why that might be the case. Docket No. 38 at 2, 7; Docket No. 41 at 6. At issue is whether Defendants made Hoffman an enforceable promise of equity in Thrasio; it is not apparent that information from Hoffman's prior employers will impact the amount of damages in this case.

Defendants assert that “[i]t is beyond dispute that any compensation received by Hoffman related to the services she provided to Thrasio are relevant to this case” but do not elaborate further. Docket No. 38 at 12.

This Court is also unmoved by Defendants’ contention that the requests directed to Bay Shore are somehow relevant because Hoffman identified Amancio-Scott as someone likely to have discoverable information in her initial disclosures. Docket No. 38 at 12. The disclosure identifies Amancio-Scott as someone with knowledge about Hoffman's relationship with Thrasio and Thrasio board meetings. Docket No. 38-1 at 5. Those topics do not appear at all related to the information sought by the subpoena.