*1 Dear Counsel:

As you know, pending before the Court are Defendants Siteworks Services NY, Inc. (“Siteworks”) and Thomas Garbett's (collectively, “Defendants”) motion to quash the subpoenas issued by Plaintiff Werner Deconstruction, LLC (“Werner Deconstruction”) [Docket Entry No. 17], non-party Simsmetal East LLC's (“SME”) brief joining in Defendants’ motion to quash and requesting the imposition of legal fees and costs [Docket Entry No. 19], and Werner Deconstruction's cross motion to enforce the subpoena served on SME [Docket Entry No. 20]. The Court has reviewed all of the arguments raised in support of and in opposition to Defendants, SME and Werner Deconstruction's motions. The Court considers said motions without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons stated below, Defendants’ motion is granted in part and denied in part, SME's motion to quash is granted, but its requests for reasonable attorneys’ fees and costs is denied, and Werner Deconstruction's cross motion to enforce the subpoena served on SME is denied.

I. Background

Given the parties, Court and SME's familiarity with the facts of this case, the Court does not restate them at length herein. Generally, this case arises out of the demolition of the Werner Generating Station in South Amboy, New Jersey (the “Project”). While contracts regarding said demolition were entered into at least as early as April 2012 (Werner Deconstruction Opp. Br. at 3), all of the claims asserted in this matter arise out of the Debris Removal Services Agreement Werner Deconstruction and Siteworks entered on February 6, 2015, according to which Siteworks was to remove a certain demolition debris pile (the “Demolition Debris Pile”) from the Project that contained approximately 20,000 tons of material that was contaminated with asbestos. (See generally Werner Deconstruction Cmplt.; Docket Entry No. 1). In the process of performing under the Debris Removal Services Agreement, Siteworks entered into agreements with two subcontractors, Minerva Enterprises, LLC (“Minerva”) and Ani & Joe Abatement Demolition, LLC (“Ani & Joe Abatement”). (Id. ¶¶ 9 & 10). Siteworks subcontracted with Minerva to remove certain debris from the Project and with Ani & Joe Abatement to provide asbestos abatement services in relation to the removal of the Demolition Debris Pile from the Project. (Id.)

In accordance with the Debris Removal Services Agreement, as of May 26, 2015, Werner Deconstruction had wired $2,414,904.96 into a bank account opened by Siteworks to receive payment for work performed in accordance with the parties’ contract (the “Pre-Payment Account”). (Id. ¶13, 21). The payments were made based on weekly invoices submitted by Siteworks, which estimated, among other things, the amount of debris to be loaded and transported and Siteworks’ anticipated costs to remove and transport the debris. (Id. ¶ 17). The payments were to be used by Siteworks solely for the performance of its contractual obligations under the Debris Removal Services Agreement. (Id. ¶16).

*2 Werner Deconstruction alleges that in May and September 2015, it learned that, contrary to Siteworks’ representations, Siteworks had failed to fully pay its subcontractors, Minerva and Ani & Joe Abatement, for the work they performed in connection with the Project. (Id. ¶¶ 22 & 23). Werner Deconstruction further alleges that in order to induce it to make additional payments to Siteworks, Siteworks “submitted invoices to Werner Deconstruction that misrepresented the status of payments that had been made by [Siteworks] for the removal of [the] Demolition Debris Pile from the Project.” (Id. ¶ 22). Werner further alleges that Siteworks failed to remove the entirety of the Demolition Debris Pile as required by the Debris Removal Services Agreement and, instead, abandoned the Project on June 29, 2015. (Id. ¶ 26).

In light of the foregoing, Werner Deconstruction initiated this litigation against Siteworks, Thomas Garbett and certain unnamed John Doe Defendants. In so doing, Werner Deconstruction asserted the following claims: (1) breach of contract based on Siteworks’ failure to (a) complete its work under the Debris Removal Services Agreement, (b) pay subcontractors, (c) indemnify Werner Deconstruction for construction lien claims filed by Siteworks’ subcontractors, (d) refund pre-payments made by Werner Deconstruction and (e) remove a contaminated tracking pad from the Project; (2) specific performance of contract; (3) quantum meruit; (4) negligence; (5) accounting; (6) fraud; (7) negligent misrepresentation; (8) conversion; and (9) New Jersey Consumer Fraud Act.[1]

The instant motions surround subpoenas served by Werner Deconstruction. Three subpoenas were served on banks at which Siteworks is believed to maintain one or more accounts: (1) T.D. Bank; (2) JP Morgan Chase; and (3) (JP Morgan) Chase Bank. Eighteen others were addressed to the following non-bank entities: (1) Gerdau Ameristeel US Inc.; (2) Gerdau Ameristeel Perth Amboy Inc.; (3) Gerdau Ameristeel Energy, Inc.; (4) Gerdau Ameristeel Sayerville Inc.; (5) Cinelli Scrap Metals, Inc.; (6) Cinelli Iron & Metal, Co.; (7) Cinelli Metal Recycling, LLC; (8) Cinelli Trucking Company; (9) Cinelli Iron and Metal Retail Division, Inc.; (10) Curcio Scrap Metal, Inc.; (11) Simsmetal East LLC (“SME”); (12) Garfield Iron & Metal Co.; (13) Beacon Metal, Co., Inc.; (14) Beacon Metal South Company, Inc.; (15) Beacon Metal South Company, Inc.; (16) Beacon Metal, Co., Inc.; (17) Atlantic Coast Dismantling, LLC; and (18) Metalink, LLC.

The T.D. Bank subpoena seeks the following information regarding four specific bank account numbers:

(Certification of Michael L. Braunstein filed in support of Werner Deconstruction's Motion to Quash (the “Braunstein Cert.”), Ex. C). Similarly, both of the subpoenas issued to the JP Morgan Chase entities seek:

(Id.)

With respect to the subpoenas served on the non-bank entities, 16 request:

(Id., Ex. D, E, F, G, H, I, J). The other two seek:

(Id., Ex. J, K (Emphasis in original)).

II. Analysis

In determining whether the subpoenas issued by Werner Deconstruction should be quashed or enforced, the Court examines whether the discovery sought via same falls within the permissible scope of discovery. See OMS Investments, Inc. v. Lebanon Seaboard Corp., Civil Action No. 08-261 (AET), 2008 WL4952445, *2 (D.N.J. Nov. 18, 2008); Schmulovich v. 1161 Rt. 9 LLC, Civil Action No. 07-597 (FLW), 2007 WL 2362598, *2 (D.N.J. Aug. 15, 2007) (citing Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D. Kan. 2003)) (holding that “Rule 45 subpoena served in conjunction with discovery must fall within the scope of proper discovery under FED.R.CIV.P. 26(b)(1).”) Rule 26(b) governs the scope of discovery in federal litigation. Pursuant to Rule 26(b)(1):

If a subpoena falls outside the scope of discovery permitted by Rule 26(b)(1), then, upon a timely motion, the Court has authority to quash or modify same. Rule 45(d)(3). Indeed, the Court must quash or modify a subpoena that “subjects a person to undue burden.” Rule 45(d)(3)(A)(iv). In addition, all discovery is subject to the limitations imposed by Rule 26(b)(2)(C). Finally, as always, the Court has broad discretion in managing requests for discovery and determining the appropriate scope of discovery. See Salamone v. Carter's Retail, Inc., Civil Action No. 09-5856 (GEB), 2011 WL 310701, *5 (D.N.J. Jan. 28, 2011); In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982) (finding that conduct of discovery is committed to sound discretion of the Court).

With these principles in mind, the Court considers the 3 bank subpoenas and 18 non-bank entity subpoenas issued by Werner Deconstruction. The Court notes that, generally, a motion to quash or modify a subpoena must be brought by the individual to whom it was directed. See Thomas v. Marina Assocs., 202 F.R.D. 433, 434-435 (E.D. Pa. 2001). However, “a party has standing to bring a Motion to Quash or modify a subpoena upon a non-party when the party claims a personal privilege in the production sought.” Schmulovich v. 1161 R. 9, LLC, Civil Action No. 07-597 (FLW), 2007 WL 2362598, at *2 (D.N.J. Aug. 15, 2007) (citing DIRECTV, Inc. v. Richards, No. Civ. 03-5606 (GEB), 2005 WL 1514187, at *1 (D.N.J. June 27, 2005)) (citing Catskill Dev., LLC v. Park Place Entertainment Corp., 206 F.R.D. 78, 93 (S.D.N.Y. 2002)). For example, a party has sufficient standing to challenge a subpoena issued to a bank that seeks disclosure of that party's financial records. Schmulovich, 2007 WL 2362598, at *2. Further, as stated above, regardless of to whom the subpoena was directed, the discovery sought by same must fall within the scope of discovery permitted under Rule 26(b)(1).

Here, there is no question that Defendants have standing to move to quash the subpoenas served on their banks as they clearly have a personal privilege over their financial records. See Schmulovich, 2007 WL 2362598, at *2. Equally clear is the fact that SME has standing to challenge the subpoena served on it. Less apparent is whether Defendants have standing to object to the subpoenas served on the non-bank entities. Because Defendants question the relevance of the information sought via same and because information sought through subpoenas must fall within the permissible scope of discovery (see OMS Investments, Inc. v. Lebanon Seaboard Corp., Civil Action No. 08-261 (AET), 2008 WL4952445, *2 (D.N.J. Nov. 18, 2008); Schmulovich v. 1161 Rt. 9 LLC, Civil Action No. 07-597 (FLW), 2007 WL 2362598, *2 (D.N.J. Aug. 15, 2007) (citing Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D. Kan. 2003) (holding that “Rule 45 subpoena served in conjunction with discovery must fall within the scope of proper discovery under FED.R.CIV.P. 26(b)(1)”)), the Court finds that Defendants have standing to challenge the non-bank subpoenas on relevance grounds. Even if, as Werner Deconstruction suggests, Defendants lack standing to challenge a subpoena through a motion to quash or modify on the grounds of relevancy (Werner Deconstruction Opp. Br. at 19 (quoting Aetrex Worldwide, Inc. v. Burten Distrib., Inc., Civil Action No. 13-1140 (SRC), 2014 WL 7073466 at *–––– – ––––, 2014 U.S. Dist. LEXIS 172857 at *11-12 (D.N.J. Dec. 12, 2014) (quoting Universitas Educ., LLC v. Nova Group, Inc., 11 Civ. 1590 (LTS) (HBP), 2011 WL 13061050 at *––––, 2013 U.S. Dist. LEXIS 1720 at *16 (S.D.N.Y. Jan. 4, 2013))), Defendants would, at a minimum, be permitted “to move for a protective order to enjoin the production of irrelevant information for subpoenas issued to non-parties.” Aetrex Worldwide, 2014 U.S. Dist. LEXIS 172857 at * 12. As a result, the Court shall examine whether the information sought in the non-bank subpoenas is relevant.

*5 The Court first addresses the bank subpoenas. Given the allegations in the Complaint, the Court finds that the bank subpoenas generally seek relevant information. Though the timeframe contained therein is overbroad.

While contracts regarding the Project were entered into at least as early as April 2012 (Werner Deconstruction Opp. Br. at 3), all of the claims asserted in this matter arise out of the Debris Removal Services Agreement Werner Deconstruction and Siteworks entered on February 6, 2015. The Court understands that “Werner Deconstruction suspects that [Siteworks] and Garbett's fraudulent activities were not limited to its conversion of funds that Werner Deconstruction had wired to the prepayment account” and that Werner Deconstruction believes that “[i]t is clear that the circumstances surrounding [Siteworks’] activities under the BTU Solutions [LLC]/[Siteworks] subcontract are suspicious.”[3] (Id. at 16-17). In this regard, Werner Deconstruction notes that Siteworks “only issued credits totaling $3,503,185.84 even though BTU Solutions had estimated that $13 million worth of salvageable scrap could be removed from the Station.” (Id. at 17 (citing Kemper Cert. Ex. B; Rossi Cert. ¶ 2)). Nevertheless, no allegations have been made in this lawsuit against Siteworks based on its subcontract with BTU Solutions. Instead, the only claims alleged involve the Debris Removal Services Agreement, which, again, was entered on February 6, 2015.

Under these circumstances, the Court finds that Werner Deconstruction's request for Defendants’ financial records dating back to November 2013 are overbroad. Indeed, given the allegations set forth in Werner Deconstruction's Complaint, there is no reason to believe that Defendants’ financial records predating February 2015 will be relevant to the claims and defenses asserted in this matter. The Court shall not permit parties to engage in fishing expeditions. See Claude B. Bamberger Int'l, Inc. v. Rohm and Haas Co., No. CIV. 96-1041 (WGB), 1998 WL 684263, at *2 (April 1, 1998). As a result, the bank subpoenas shall be modified to pertain to the timeframe: February 2015 to present. In all other respects, the bank subpoenas are hereby enforced.

Turning to the non-bank subpoenas, the Court grants Siteworks and SME's motion to quash same. All of the non-bank subpoenas relate to Defendants’ disposal of salvageable scrap removed from the Werner Generating Station. However, as just noted, none of the allegations or claims set forth in the Complaint pertain to this activity. Instead, Werner Deconstruction's Complaint only addresses Siteworks’ conduct under the Debris Removal Services Agreement. No mention is made of Siteworks’ subcontract with BTU Solutions, i.e., its agreement to remove the power house from the Werner Generating Station and to remove and sell salvageable scrap.

*6 Contrary to Werner Deconstruction's arguments, the fact that it has asserted fraud, conversion and accounting claims in relation to Siteworks’ purported failures under the Debris Removal Services Agreement does not somehow render discovery related to Siteworks’ performance under its subcontract with BTU Solutions relevant. That subcontract is not currently at issue in this case. No facts or claims have been alleged regarding it. Rule 26(b)(1) was amended in 2000 and again in 2015 to make clear that it is no longer sufficient for discovery to be relevant to the general subject matter of a case. Instead, discovery must be “relevant to any party's claim or defense[.]” Rule 26(b)(1). Werner Deconstruction's suspicions that “[Siteworks] and Garbett's fraudulent activities extend beyond the Debris Removal Services Agreement” and its desire to “uncover the magnitude of the fraud perpetuated by [Siteworks]” simply are insufficient to render the information sought through the non-bank subpoenas relevant.

Under the circumstances of this case, where Werner Deconstruction's allegations address only the Debris Removal Services Agreement, discovery regarding the Siteworks / BTU Solutions subcontract is not appropriate. Instead, it represents a fishing expedition that courts shall not allow. See Claude B. Bamberger, 1998 WL 684263, at *2. As a result, the Court shall not compel SME or the other non-bank entities to respond to the subpoenas issued by Werner Deconstruction. Instead, SME and Defendants’ motions to quash are granted in this regard.

Despite the fact that the Court has quashed the subpoena issued to SME, the Court nevertheless denies SME's request for reasonable attorneys’ fees and costs. The Court does not find Werner Deconstruction's refusal to withdraw its subpoena objectionable. Contrary to SME's suggestion, Werner Deconstruction's motion to compel SME's compliance with its subpoena was not baseless. Instead, Werner Deconstruction cited three cases, none of which have been overturned, that stand for the proposition that Rule 26(b)(1) has created a broad vista for discovery and all of which support its request to enforce the SME subpoena: Malibu Media, LLC v. John Does # 1-30, Civil Action No. 12-1896-MAS-DEA, 2012 WL 6203697, *––––, 2012 U.S. Dist. LEXIS 175919, *14 (D.N.J. Dec. 12, 2012); Malibu Media, LLC v. John Does 1-15, civil Action No. 12-2077, 2012 WL 3089698, *––––, 2012 U.S. Dist. LEXIS 105786, *24 (E.D. Pa. July 30, 2012); Tele-Radio Sys., Ltd. v. De Forest Elecs., Inc., 92 F.R.D. 371, 375 (D.N.J. 1981).

These three cases, however, all rely on Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed. 2d 253 (1978), which, in discussing Rule 26(b)(1), held: “The key phrase in this definition -- ‘relevant to the subject matter involved in the pending action’ -- has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Notably, Oppenheimer was decided long before Rule 26(b)(1) was amended in 2000 and 2015. As it currently stands, Rule 26(b)(1) no longer contains the “key phrase” relied upon and discussed in Oppenheimer. As a result, the Court was not persuaded by Werner Deconstruction's arguments regarding the relevance of the information sought through the non-bank subpoenas, like that served on SME. Nevertheless, Werner Deconstruction's arguments in favor of enforcing the SME subpoena were not, as SME claims, without foundation. Consequently, the Court declines to impose attorneys’ fees and costs under the circumstances present here.

III. Conclusion

For the reasons stated above, Defendants’ motion to quash is granted in part and denied in part. SME's motion to quash is granted, but its request for attorneys’ fees and costs is denied. Finally, Werner Deconstruction's cross motion to compel is denied. The subpoenas issued to the bank entities are hereby enforced with the modified timeframe discussed above. The non-bank entity subpoenas are quashed in their entirety.

*7 IT IS SO ORDERED.