*1 Dear counsel:

This will address: (1) Plaintiffs’ informal application to quash Defendants’ subpoenas (ECF Nos. 369, 382); (2) Defendants’ informal application to modify the designation placed on the identity of Plaintiffs’ confidential witness pursuant to the Discovery Confidentiality Order in this matter (ECF Nos. 344, 353-56); (3) Plaintiffs’ motion for an order closing “Phase I” discovery (ECF Nos. 373, 376); and (4) Defendants’ motion to preclude the testimony of Plaintiffs’ confidential witness. (ECF No. 388). Pursuant to Federal Rule of Civil Procedure 78, the Court resolves these applications without oral argument.

I. Plaintiffs’ Informal Application to Quash

On June 15, 2018, Defendants sent an e-mail to Plaintiffs’ counsel attaching subpoenas directed to Brian Mallon, John “Hank” Allison, and Jayat Kanetkar, and requesting that Plaintiffs’ counsel accept service on their behalf. (Pl. Aug. 17, 2018 Letter, Ex D, ECF No. 369-4). Mallon, Allison and Kanetkar, who are former members of the United States’ Joint Terrorism Task Force, have served as investigators for Plaintiffs’ counsel, and assisted counsel in forming and maintaining a relationship with a particular confidential witness.[1] Defendants subpoenas contain thirty-seven document requests, including several with numerous subparts. (See generally Pl. Aug. 17, 2018 Letter, Ex. A, ECF No. 369-1). On July 5, 2018, Plaintiffs’ counsel agreed to accept service of the subpoenas on the Former JTTF Agents’ behalf, (Pl. Aug. 17, 2018 Letter at 4, ECF No. 369), and, by letter dated August 17, 2018, Plaintiffs sought leave to file a motion to quash the subpoenas. (Id.). The parties thereafter agreed that the Court should treat Plaintiffs’ August 17, 2018 letter as a substantive application to quash, rather than requiring Plaintiffs to file a formal motion. (Def. Oct. 17, 2018 Letter, ECF No. 380). Plaintiffs argue, in essence, that Defendants served their subpoenas after the deadline for Phase 1 discovery, that the subpoenas are overbroad, unduly burdensome, and, in part, seek information that Plaintiffs already produced in their own responses to Defendants’ discovery requests, and that Defendants may intend to use the subpoenas to obtain discovery for use in another action. (See generally Pl. Aug. 17, 2018 Letter, ECF No. 369). Plaintiffs also contend that, given the Former JTTF Agents’ roles as Plaintiffs’ investigators, certain of the information responsive to Defendants’ subpoenas may be subject to protection under the attorney work product doctrine. (Id. at 7-8). Pursuant to this Court's October 22, 2018 Order, (ECF No. 381), Defendants filed their opposition on November 2, 2018. (ECF No. 382).

Plaintiffs’ application is governed by Federal Rule of Civil Procedure 45(d)(3), subtitled “Quashing or Modifying a Subpoena.” The party that seeks to quash a subpoena bears the “heavy burden” of showing that such relief is appropriate under Rule 45. Dexter v. Cosan Chem. Corp., No. 91-5436 (DRD), 2000 U.S. Dist. LEXIS 22134 at *8 (D.N.J. Oct. 24, 2000) (Debevoise, U.S.D.J.). Rule 45(d)(3)(A) provides that the Court must quash or modify a subpoena that:

In addition to these mandatory grounds for quashing or modifying a subpoena, Rule 45(d)(3)(B) provides that the Court may quash or modify a subpoena it if requires:

The Court notes that “[a] Rule 45 subpoena served in conjunction with discovery must [also] fall within the scope of proper discovery under Fed. R. Civ. P. 26(b)(1).” Schmulovich v. 1161 Rt. 9 LLC, No. 07-597 (FLW), 2007 WL 2362598, at *2, 2007 U.S. Dist. LEXIS 59705, at *4 (D.N.J. Aug. 13, 2007). Under Fed. R. Civ. P. 26(b)(1) “[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 ...” The Rule 26 relevancy requirement has been construed “broadly and liberally.” DIRECTV, Inc. v. Richards, No. 03-5606 (GEB), 2005 WL 1514187, at *3, 2005 U.S. Dist. LEXIS 43764, at *8 (D.N.J. June 22, 2005) (Brown, U.S.D.J.); see Fed. R. Civ. P. 26 advisory committee's note (2000) (observing that the Rule allows the court to permit discovery on “any matter relevant to subject matter involved in the action”).

The Court also acknowledges the general rule that the individual who brings a motion to quash or modify a subpoena must also be the person to whom it was directed. Schmulovich, 2008 U.S. Dist. LEXIS 81317 at *12-13. “However, a party to an action has standing to quash or modify a non-party subpoena where the party claims a privilege or privacy interest in the subpoenaed information.” (Id.) (recognizing a party's standing to move to quash a non-party subpoena that would provide access to that party's bank account records.). The Court notes that it is Plaintiffs, rather than the Former JTTF Agents themselves, who seek to quash Defendants’ subpoenas. (See generally Pl. Aug. 17, 2018 Letter, ECF No. 369). The Court nevertheless finds that Plaintiffs have standing to challenge the subpoenas because certain of the information responsive to Defendants’ requests may be subject to the work product doctrine in light of the former agents’ roles as Plaintiffs’ investigators. (Id. at 7-8).

Turning to the substance of Plaintiffs’ application, the Court notes that Plaintiffs do not suggest that Federal Rule of Civil Procedure 45(d)(3)(A)(i) or (ii) require that the Court quash Defendants’ subpoenas, or that Rule 45(d)(3)(B)(i) or (ii) are applicable here. While Plaintiffs do argue that the subpoenas present an undue burden, ostensibly invoking Rule 45(d)(3)(A)(iv), they lack standing to make such an argument, as any burden of compliance will ultimately fall on the Former JTTF Agents, and not Plaintiffs. See Malibu Media, LLC v. Doe, No. 15-1742 (MCA), 2015 WL 5996319, *3, 2015 U.S. Dist. LEXIS 139966, *6-7 (D.N.J. Oct. 14, 2015) (Wettre, U.S.M.J.) (“Generally, a litigant cannot characterize a subpoena as unduly burdensome under Rule 45(d)(3)(A)(iv) when the subpoena is directed to a third party and thus creates no burden of compliance for the litigant.”); Malibu Media, LLC v. Doe. Civil Action No. 14-3945 (MAS) (DEA), 2015 WL 3795716, at *3, 2015 U.S. Dist. LEXIS 79005, at *7 (D.N.J. June 17, 2015) (Arpert, U.S.M.J.) (“Generally, a party cannot challenge a third-party subpoena based on a theory of undue burden.”). Though Plaintiffs do not explicitly set forth the legal basis for their application, the Court will presume that they seek to quash Defendants’ subpoenas pursuant to Rule 45d(3)(A)(iii) (regarding the disclosure of information that is privileged or otherwise protected), and on the ground that the subpoenas seek information that falls outside the bounds of permissible discovery. The Court will, therefore, focus its analysis on those points.

*3 Plaintiffs first argue that Defendants failed to serve their subpoenas within the time afforded under the October 14, 2016 Order Amending Discovery Deadlines, which closed Phase I discovery, while carving out an exception requiring responses to discovery requests and subpoenas served prior to September 30, 2016. (Pl. Aug. 17, 2018 Letter at 4-5, ECF No. 369 (citing Oct. 14, 2016 Order, ECF No. 255)). Plaintiffs contend that not only did Defendants neglect to timely serve their subpoenas, they also failed to inform the Court that they planned on seeking such third-party discovery when inventorying outstanding items in their April 2, 2018 letter and again during the May 15, 2018 conference with the undersigned. (Id. at 5). Plaintiffs argue, without explanation, that Defendants’ subpoenas therefore created a “prejudicial surprise.” (Id. at 5). Plaintiffs also suggest that, if the Court permits Defendants to proceed with their subpoenas, the discovery period may never end. (Id.).

The Court begins with Plaintiffs’ argument regarding the September 30, 2016 cut-off for new discovery requests. As Defendants point out, Plaintiffs first produced the confidential witness’ February 5, 2010 affidavit on or about September 30, 2016, which was, at the time, the final day of Phase I discovery. (See Def. Nov. 2, 2016 Letter at 1, ECF No. 259; August 3, 2016 Order at 3, ECF No. 237). Moreover, Plaintiffs first disclosed the identities of the Former JTTF Agents on or about November 14, 2016. Plaintiffs and the confidential witness continued to disseminate information underlying Defendants’ current document requests well into 2018. (Def. Nov. 2, 2018 Letter at 2, ECF No. 382). How, then, could Defendants have possibly issued their subpoenas to the Former JTTF Agents by September 30, 2016? Plaintiffs’ other arguments regarding the timing of Defendants’ subpoenas fare no better. Plaintiffs do not provide any explanation for their “prejudicial surprise” argument, nor is one evident under the circumstances at issue herein (i.e., what prejudice did Defendants cause by not advising Plaintiffs of the forthcoming subpoenas one or two months before issuing them?). Indeed, the Court finds that Defendants’ explanation for the timing of their subpoenas is reasonable. (See Def. Nov. 2, 2018 Letter at 4, ECF No. 382). Finally, Plaintiffs’ contention that Phase I discovery may continue in perpetuity is not persuasive. The Court notes that essentially every dispute that has arisen in this case in the last several years has related in some way to Plaintiffs’ confidential witness, including ongoing efforts to cure the potential prejudice caused by Plaintiffs’ eleventh-hour disclosure. Had Plaintiffs disclosed that witness earlier, it is a near certainty that Phase 1 discovery would now be complete. In any event, aside from obtaining discovery from the Former JTTF Agents and perhaps conducting their previously discussed investigation regarding Plaintiffs’ confidential witness,[2] it does not appear that any other Phase 1 discovery remains outstanding.

Plaintiffs also argue that Defendants’ subpoenas “contain requests that are prima facie overbroad ...” (Pl. Letter at 6, ECF No. 369). First, Plaintiffs contend that the requests are overbroad in temporal scope, as they go beyond the period the Former JTTF Agents worked with Motley Rice, and seek information dating back as far as 1994 (and therefore information that the agents obtained during their employment with the United States Government). (Id.). Plaintiffs also “strongly contest the relevance of the majority of the topics covered in the requests” and represent that “the overwhelming focus of the documents requested have nothing to do with the underlying claims in this litigation”, but provide no examples. (Id. at 8). Plaintiffs further argue that Defendants’ requests are overbroad in that they lack any meaningful specificity, highlighting request number 4 as an example. (Id.). Citing the breadth of Defendants’ requests and alleged focus on irrelevant information, Plaintiffs also argue that Defendants’ subpoenas “evince a harassing intent on the part of the Defendants.” (Id.).

*4 Given the circumstances of this case, the temporal scope of Defendants’ requests – nearly 25 years – is so overbroad that it raises serious concerns regarding both relevance and proportionality. The Court does not agree, however, with Plaintiffs’ suggestion that Defendants’ subpoenas should necessarily be limited to the time period that the Former JTTF Agents worked with Motley Rice. With regard to Plaintiffs’ blanket relevancy objection, the Court finds that most of Defendants’ requests, which pursue information regarding the confidential witness, plainly seek relevant information, at least in part.[3] The Court also notes, however, that certain requests (e.g., Request Nos. 4, 5, 7, 10, 20, 37), are so broad that they trigger both relevancy and proportionality concerns, while others require the Former JTTF Agents to make legal determinations regarding Plaintiffs’ allegations (e.g., Request Nos. 4, 20, 32, 37). These are issues, however, that could and should have been either significantly narrowed or resolved altogether through a good faith meet-and-confer process. Nothing in the parties’ papers suggests that they made a meaningful attempt to do so.[4] The parties should be in a better position to have such discussions now that Defendants have deposed Plaintiffs’ confidential witness at length, ostensibly learning more about certain of the people, organizations and relationships at issue in Defendants’ subpoenas. The Court will require that the parties meet and confer in a good faith attempt to resolve or minimize their remaining disputes regarding those subpoenas, guided by the Court's findings herein. Additionally, while neither party raised the issue in their briefing, the Court notes that one request– Number 28 – appears to require the Former JTTF Agents to break the law by producing information that the United States Government has marked as “classified”, “secret”, or “top-secret”. That request is stricken.

Finally, and as noted above, Plaintiffs contend that certain of the requests might implicate information that the Former JTTF Agents obtained during their years of government service, or that is subject to the attorney work product doctrine, given the Former JTTF Agents’ roles as investigators for Plaintiffs’ counsel. (Id. at 7-8). Neither Plaintiffs nor the agents have specifically identified any such documents, let alone made arguments regarding such documents, and the Court cannot make determinations of this nature in a vacuum. If any documents responsive to the subpoenas are legitimately subject to protection, Plaintiffs and/or the Former JTTF Agents should prepare an appropriate privilege log and, after attempting to resolve any disputes in a good faith meet-and-confer session, the parties should raise any remaining issues with the Court. At this juncture, nebulous concerns that some unidentified documents might be subject to some sort of legal protection do not provide the Court with a legitimate basis to quash Defendants’ subpoenas.

Based on the foregoing, Plaintiffs’ informal application to quash is DENIED. On or before February 28, 2019, the parties shall meet and confer in a good faith attempt to reach an agreement regarding the scope (both temporal and subject matter – including any objections to relevance and/or proportionality) of those subpoenas in light of the guidance provided herein. To the extent any disputes remain following the parties’ efforts, the parties shall, on or before March 29, 2019, raise them in letters of no more than five pages. Those letters shall include a description of the parties’ efforts to reach an amicable resolution. The Court will address any such disputes in short order. If the parties reach an agreement regarding the subpoenas, they shall so advise the Court, which will set a deadline for the Former JTTF Agents’ response.

II. Defendants’ Informal Application to Modify Confidentiality Designations

The Court next turns to Defendants’ request to modify the confidential witness's designation under the Discovery Confidentiality Order. (ECF Nos. 344, 353-56). In short, when disclosing the confidential witness's name to Defendants, Plaintiffs designated that information as “Confidential” under the Discovery Confidentiality Order in this matter. Defendants were therefore unable to disclose the witness's identify to any third-parties, thereby limiting their ability to independently investigate the witness. While Defendants have attempted to conduct that investigation by referring solely to the witness's pseudonym, those efforts have been unsuccessful, for various reasons. (See Def. Apr. 17, 2018 Letter at 5, ECF No. 355). Defendants therefore requested that the Court narrow or remove the confidentiality restrictions on the witness's identity.

*5 Plaintiffs advised, and Defendants confirmed, that the parties (including independent counsel for the confidential witness) successfully negotiated a modification to the Discovery Confidentiality Order that would resolve this issue. (Pl. Aug. 17, 2018 Letter at 3, ECF No. 369; Def. Nov. 2, 2018 Letter at 1, n.1, ECF No. 382). Defendants ultimately decided against pursuing that proposed amendment with the Court, as they instead elected to file a motion to preclude the confidential witness's testimony altogether. As the Court describes below in Section IV, however, Defendants’ motion to preclude is premature. It would be inappropriate to move forward with that motion on what Defendants have themselves argued is an incomplete factual record.[5] Defendants shall therefore present the parties’ agreed, proposed modification to the Discovery Confidentiality Order for the Court's consideration and, once that Order is duly amended, shall promptly go about their proposed, independent investigation of Plaintiff's confidential witness. Defendants shall compete that investigation on or before March 29, 2019.

III. Plaintiffs’ Motion for an Order Closing “Phase 1” Discovery

Given the need to complete the third-party discovery described herein (i.e., subpoenas to the Former JTTF agents and Defendants’ investigations concerning Plaintiffs’ confidential witness), Plaintiffs’ motion to close the Phase 1 discovery period is DENIED WITHOUT PREJUDICE. The Court stresses, however, that the parties will have to establish good cause to conduct any additional discovery. The Court anticipates that Phase I discovery will end with the limited third party discovery discussed in this motion.

IV. Defendants’ Motion to Preclude the Testimony of Plaintiffs’ Confidential Witness

Defendants have filed a motion asking the District Court for an order precluding Plaintiffs’ confidential witness from testifying in this matter. (ECF No. 388). The Court notes, however, that all of the third party discovery discussed herein concerns that confidential witness and may, ostensibly, impact the District Court's decision on that application. Defendants’ motion to preclude is therefore DENIED WITHOUT PREJUDICE to Defendants’ ability to re-file it, with leave of Court, after the completion of Phase 1 discovery, at a time that the Court ultimately deems appropriate. See supra Section II.

V. CONCLUSION

For the reasons set forth above, it is on this 11th day of February, 2019,

ORDERED that Plaintiffs’ informal application to quash the subpoenas Defendants served on the Former JTTF Agents, (ECF No. 369), is DENIED; and it is further

ORDERED that Defendants’ document request number 28 is hereby stricken from those subpoenas; and it is further

ORDERED that, on or before February 28, 2019, the parties shall meet and confer in a good faith attempt to reach an agreement regarding the scope (both temporal and subject matter – including any objections to relevance and/or proportionality) of those subpoenas in light of the guidance provided herein; and it is further

ORDERED that, to the extent any disputes remain following the parties’ efforts, the parties shall, on or before March 29, 2019, raise them in letters of no more than five pages. Those letters shall describe the parties’ efforts to reach an amicable resolution. If the parties reach an agreement regarding the subpoenas, they shall so advise the Court, which will set a deadline for the Former JTTF Agents’ responses; and it is further

ORDERED that, on or before February 21, 2019, Defendants shall submit a proposed form of order enacting the modifications to the Discovery Confidentiality Order agreed to by the parties and independent counsel for the confidential witness; and it is further

ORDERED that, to the extent Defendants seek to conduct any additional investigation of Plaintiffs’ confidential witness following amendment of the Discovery Confidentiality Order, Defendants shall complete such investigation on or before March 29, 2019; and it is further

*6 ORDERED that Plaintiffs’ motion for an order closing Phase 1 discovery, (ECF No. 372), is DENIED WITHOUT PREJUDICE; and it is further

ORDERED that Defendants’ motion to preclude the testimony of Plaintiffs’ confidential witness, (ECF No. 388), is DENIED WITHOUT PREJUDICE; and it is further

ORDERED that, going forward, the parties shall not file any motions without leave of Court.

SO ORDERED