I. Background

*1 The instant proceeding arises out of a deposition subpoena served by the town of Palm Beach (the “Town”) on Lamia Jacobs in a federal case pending in the Southern District of Florida, 100 Emerald Beach Way LC v. Town of Palm Beach, No. 19-cv-80656-RS (S.D. Fla. 2019) (“Florida Federal Action”), which was initiated by 100 LC Emerald Beach Way (“100 LC”), a limited liability company that owns and operates a property in Palm Beach.

The Florida Federal Action is the latest in a series of disputes between 100 LC and its neighbors, John and Margaret Thornton. There, 100 LC asserts an equal protection claim, alleging that Town officials colluded with the Thorntons to harass 100 LC with baseless code-enforcement proceedings and simultaneously turned a blind eye to the Thorntons’ own code violations. Mot. to Quash, Doc. No. 1, at 1; Ex. B. to Mot. to Quash, Doc. No. 1-1.

Currently before the court is Jacobs’ motion to quash the subpoena (doc. no. 1). For the reasons that follow, the motion is DENIED.

II. Discussion

“A subpoena issued to a non-party pursuant to Rule 45 is subject to Rule 26(b)(1)’s overriding relevance requirement,” which provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense....” Torcasio v. New Canaan Bd. of Ed., 2016 WL 312102, at *1 (D. Conn. Jan. 26, 2016) (internal citations omitted); Fed. R. Civ. P. 26(b)(1). Under the Federal Rules, “the court for the district where compliance is required must quash or modify a subpoena that ... subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). The movant bears the burden of persuasion on a motion to quash. See Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005).

“An evaluation of undue burden requires the court to weigh the burden to the subpoenaed party against the value of the information to the serving party.” Id. In assessing whether a subpoena poses an undue burden, courts weigh several factors, including relevance, the requesting party's need for the discovery, and the burden imposed. See id.

“Within this Circuit, courts have held nonparty status to be a ‘significant’ factor in determining whether discovery is unduly burdensome.” Tucker v. Am. Int'l Grp., Inc., 281 F.R.D. 85, 92 (D. Conn. 2012) (internal citation omitted). Moreover, with respect to senior executives, depositions are permissible “when such senior executives have had direct involvement in the underlying claims, or if the subordinates are unable to testify in a meaningful fashion at their depositions.” Truscz v. UBS Realty Investors LLC, 2011 WL 577331, at *5 (D. Conn. 2011) (internal citations omitted). “However, when the discovery to be obtained is through the deposition of a senior executive, a court must remain mindful that permitting unfettered discovery of corporate executives would threaten disruption of their business and could serve as a potent tool for harassment in litigation.” Mendillo v. Prudential Ins. Co. of Am., 2013 WL 6511944, at *2 (D. Conn. Dec. 12, 2013) (internal citations omitted).

*2 In addition, “the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that[ ] the discovery sought ... can be obtained from some other source that is more convenient.” Fed. R. Civ. P. 26(b)(2)(C)(i).

In the present case, the Town seeks to depose Jacobs about issues relevant to the Florida Federal Action – namely, the code-enforcement proceedings brought by the Town against 100 LC, as well as 100 LC's actions against the Thorntons for code violations allegedly committed on their property, which are relevant because 100 LC seeks as damages the attorneys’ fees it incurred in those suits.[1] See 100 LC Dep., Doc. No. 3-1, at 97:19–98:7, 101:8–101:21 (deposition testimony of Lukas Aleksiejuk, 100 LC's corporate representative).

Jacobs argues that the Town has failed to demonstrate that Jacobs possesses unique information that could not otherwise be obtained from document discovery or from Aleksiejuk, the designated corporate representative who was recently deposed on 100 LC's behalf. See Mot. to Quash, Doc. No. 1, at 7. In support, the Town emphasizes that Aleksiejuk “oversees 100 LC's property as his full-time job, is on the property year-round, and is most knowledgeable about what happens on the property and its surroundings on a daily basis.” Mot. to Quash, Doc. No. 1, at 8–9.

That argument is unavailing. As the Town indicated, Jacobs is the sole owner and member of 100 LC, and makes the decisions “for all important things” relative to 100 LC. See 100 LC Dep., Doc. No. 3-1, at 23:21–24:13. Of particular relevance, Jacobs authorizes payment for any attorneys’ fees that 100 LC incurs – authority that is not shared with Aleksiejuk. See 100 LC Dep., Doc. No. 3-1, at 104:15–105:11.

Moreover, as the Town asserts, Jacobs served as the sole manager of 100 LC until 2017. That is significant because at least one of the disputes between 100 LC and the Thorntons that appears to be relevant began during Jacobs’ tenure as the sole manager, and well before Aleksiejuk started his role as property manager in April 2018. As stated in the Florida Federal Action complaint, the Thorntons sued 100 LC in 2014 over a wall on 100 LC's property that allegedly encroached on their property rights. Ex. B to Mot. to Quash, Doc. No. 1-1, at 15. Shortly after the suit was dismissed, the Thorntons sent a demand letter purporting to reserve the rights and claims in the dismissed suit. Id. In response, 100 LC sued the Thorntons seeking declaratory judgment in 2017. Id. According to the complaint, the discovery in those lawsuits “revealed that the Thorntons and the Town have colluded to treat [100 LC] in a discriminatory manner for the Thorntons’ benefit and to [100 LC's] detriment.” Id. at 16. For those reasons, I conclude that the Town has established that Jacobs may possess at least some unique and direct knowledge relevant to the issues pending before the Florida federal court.

The Connecticut Superior Court recently rejected similar arguments raised by Jacobs in a Florida state court proceeding between 100 LC and the Thorntons, John L Thornton vs. Bradley Jacobs, FSTCV196042536S (Nov. 7, 2019). See Mem. of Decision, Doc. No. 3-4. Although that proceeding involves different causes of action, Jacobs was likewise not a party to that suit and the property manager had been deposed. Accordingly, the reasoning of the Connecticut court in denying Jacobs’ motion to quash a subpoena made upon her is instructive:

Mem. of Decision, Doc. No. 3-4, at 12.[2]

With respect to the burden imposed, although Jacobs is indeed a non-party, it is not evident to me that Jacobs would incur a “significant expense” in going forward with the deposition, unlike some of the non-parties in the cases on which Jacobs relies. See, e.g., Tucker v. American Int'l Group, Inc., 281 F.R.D. 85, 994 (D. Conn. 2012) (denying motion to compel when the expense in retrieving the requested computers, records, policies, and system information “would include the need to obtain additional equipment and staff to restore the records sought and attorneys to be present to prevent disclosure of confidential records”). Significantly, the deposition is scheduled to take place in Greenwich, Connecticut, the state in which Jacobs resides. See Doc. No. 1-1, at 2.

Finally, I note that although 100 LC designated Aleksiejuk to testify on its behalf as a corporate representative pursuant to the Town's Rule 30(b)(6) subpoena, that does not preclude the Town from deposing Jacobs. See Fed. R. Civ. P. 30(b)(6) (stating that the rule “does not preclude a deposition by any other procedure allowed by these rules”). As stated in the Advisory Committee notes, the procedure outlined in Federal Rule of Civil Procedure 30(b)(6) “supplements the existing practice whereby the examining party designates the corporate official to be deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he may depose them.” Id.

On balance, the relevant considerations do not warrant precluding the deposition of Jacobs. For that reason, the motion to quash the deposition is denied. Jacobs should submit to a deposition within 14 days of this order. The clerk is directed to close the case.

So ordered.

Dated at Bridgeport, Connecticut, this 21st day of January 2020.