*1 Currently before the Court is the City of Utica's (“City”) Motion to Quash filed on behalf of former parties including the City and three of its employees, Melissa Sciortino (“Sciortino”), Zachary Oren (“Oren”), and Edin Selimovic (“Selimovic”) (collectively “movants”). Dkt. No. 93. While it is somewhat unclear as to whether the motion (Dkt. No. 93) is submitted on behalf of the City as well as its employees (Sciortino, Oren, and Selimovic), the Court construes the motion as being made on behalf of the City and the individual employees. Compare Dkt. No. 93 at 1 [1] (Notice of Motion to Quash subpoenas served on Oren, Sciortino, and Selimovic) with Dkt. No. 93-1 at 1 (Memorandum in support of Motion to Quash submitted by the City “on behalf of itself and its employees”). Since the four subpoenas at issue directed to the City and the three employees are almost identical in the information sought, the Court construes the Motion to Quash (Dkt. No. 93) to include all four subpoenas.

The motion seeks to quash pro se Plaintiff Vladimir Jeanty's (“Plaintiff” or “Jeanty”) non-party subpoenas pursuant to Federal Rule of Civil Procedure 45(d)(3)(A). Dkt. No. 93. Movants argue the subpoenas at issue are (1) defective because they were not served with the required fees; (2) they are unduly burdensome in requesting irrelevant, voluminous information not proportional to the needs of the case; and (3) they seek privileged information. Dkt. No. 93-2. Plaintiff responded to the motion. Dkt. No. 96. For the reasons discussed below, the Motion to Quash is granted.

I. RELEVANT BACKGROUND AND THE CURRENT DISPUTE

Plaintiff brought this action against various Defendants including the non-party movants under 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendments arising out of the Defendants’ alleged failure to provide photographs sought in a New York Freedom of Information Law (“FOIL”) request made by Plaintiff as related to a previous action brought by Jeanty against various City police officers and officials arising out of his arrest in October of 2009 (the “2016 Action”). See generally Dkt. No. 32 (amended complaint).[2] All Defendants moved to dismiss the amended complaint, and the motions were granted entirely, except the motion of Defendant David Bagley (“Bagley”), an attorney for a City employee in the 2016 Action, which was granted in part. Dkt. No. 69. Thus, the only remaining cause of action is a First Amendment retaliation claim against Bagley who, along with former parties Oren and William Borrill (“Borrill”), both attorneys for the City, allegedly directed non-party Sciortino not to respond to Plaintiff's FOIL request relating to various photographs. Id. at 17, 28; see also Dkt. No. 32 at ¶ 48.

*2 Discovery ensued after all Defendants except Bagley were dismissed from this case. During discovery, Plaintiff served the disputed subpoenas on non-parties Sciortino, Oren, Selimovic, and the City seeking a broad range of documents regarding communications between various non-parties and between non-parties and Bagley. See Dkt. No. 92. The subpoenas also seek production of all electronic information from computer hard drives, including usernames and passwords, for Bagley and non-parties, and for their work and personal devices, including cell phones, for time periods going back as far as 2009. See id. As noted, the information sought by the subpoenas generally relates to FOIL requests for photographs and also a Joint Defense Agreement (“JDA”) related to Bagley's representation of one of the City Defendants in the 2016 Action. Id.

It is unclear from Plaintiff's response to the present motion if the subpoenas were properly served as Plaintiff has not provided proofs of service. See Dkt. No. 96; see also generally Docket. Nevertheless, the Court assumes the subject subpoenas were served properly as the movants do not raise the issue of service in their Motion to Quash. Moreover, it appears the motion was timely filed since it was filed before the return date of the subpoenas. See Dkt. No. 92 (subpoenas with return date of October 30, 2023) and Dkt. No. 93 (Motion to Quash filed October 13, 2023). As previously stated, the movants argue the subpoenas are defective, unduly burdensome and not proportional to the needs of the case, and the information sought is irrelevant and privileged. Dkt. No. 93-2. In response, Plaintiff submits discovery demands served on Bagley in this action, Bagley's responses to those demands, and other information related to the 2016 Action. Dkt. No. 96. Plaintiff does not submit a Memorandum of Law or any argument explaining why such documents are relevant to the subpoenas at issue, nor does Plaintiff address any of the movants’ arguments supporting their motion. See id.

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 45 allows a party to serve a subpoena for production of documents on a non-party. Fed. R. Civ. P. 45(a)(1). The non-party may move to quash or modify a subpoena as follows:

Fed. R. Civ. P. 45(d)(3)(A); see also Orlando v. The Kraft Heinz Co., No. 3:22-CV-01636, 2024 WL 552779, at *2 (D. Conn. Feb. 9, 2024) (“The non-party may object, and may move to quash, if the subpoena “(1) ‘fails to allow a reasonable time to comply’; (2) requires a non-party to travel beyond certain geographical limits; (3) requires disclosure of privileged materials; (4) subjects a person to ‘undue burden’ ....”) (citation omitted).

“To determine whether a subpoena imposes an undue burden, courts weigh the burden to the subpoenaed party against the value of the information to the serving party by considering factors such as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” Trooper 1 v. New York State Police, No. 22-CV-893, 2024 WL 165159, at *5 (E.D.N.Y. Jan. 16, 2024) (citing Citizens Union v. Att'y Gen. of New York, 269 F. Supp. 3d 124, 138 (S.D.N.Y. 2017) (citations omitted)); see also Henry v. Bristol Hosp., Inc., No. 13-CV-826, 2020 WL 1158464, at *1 (D. Conn. Mar. 10, 2020) (“[C]ourts give special weight to the burden on non-parties of producing documents to parties involved in litigation.”). Determinations of issues of “undue burden” are committed to the sound discretion of the trial court. See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 68-70 (2d Cir. 2003); see also Herbert v. Lando, 441 U.S. 153, 177 (1979) (“[T]he district courts should not neglect their power to restrict discovery” under Fed. R. Civ. P. 26(c) and “should not hesitate to exercise appropriate control over the discovery process.”).

*3 Even if the discovery sought by Plaintiff was found to be relevant, this Court must still weigh Plaintiff's right to obtain that discovery against the burden imposed on the party from whom the discovery is sought. See Warnke v. CVS Corp., 265 F.R.D. 64, 69 (E.D.N.Y. 2010) (citing Mirkin v. Winston Res., LLC, No. 07 Civ. 02734, 2008 WL 4861840, at *1 (S.D.N.Y. Nov. 10, 2008)). “Because the trial court is in the best position to weigh[ ] fairly the competing needs and interest of parties affected by discovery, Rule 26 confers broad discretion to weigh discovery matters.” Id. (citations and internal punctuation omitted). Moreover, a court may issue an order “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense ....” Id. (citing Fed. R. Civ. P. 26(c)).

Further, as relevant here to the movants’ argument that the subpoenas seek privileged information, the “ ‘common interest’ doctrine, erroneously called ‘common interest privilege’ or ‘joint defense privilege,’ is an exception to the general rule that voluntary disclosure of confidential, privileged material to a third party waives any applicable privilege,” Sokol v. Wyeth, Inc., No. 07 Civ. 8442, 2008 WL 3166662, at *5 (S.D.N.Y. Aug. 4, 2008) (citation omitted). “It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). It exists “to protect the free flow of information from client to attorney ... whenever multiple clients share a common interest about a legal matter.” Id. at 243-44. The doctrine “is not an independent source of privilege or confidentiality” so that “[i]f a communication is not protected by the attorney-client privilege or the attorney work-product doctrine, the common interest doctrine does not apply.” Sokol, 2008 WL 3166662, at *5 (citations omitted); see also HSH Nordbank AG New York Branch v. Swerdlow, 259 F.R.D. 64, 71 (S.D.N.Y. 2009).

The general requirements and the purpose of the attorney-client privilege are well established. “The attorney-client privilege forbids an attorney from disclosing confidential communications that pass in the course of professional employment from client to lawyer. ‘The relationship of attorney and client, a communication by the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which protection is claimed, all must be established in order for the privilege to attach.’ ” Carter v. Cornell University, 173 F.R.D. 92, 94 (S.D.N.Y. 1997) (quoting Schwimmer, 892 F.2d at 243). “The privilege is intended to encourage clients to be forthcoming and candid with their attorneys so that the attorney is sufficiently well-informed to provide sound legal advice.” Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995)).

“The work-product doctrine, codified for the federal courts in Fed. R. Civ. P. 26(b)(3), is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (citing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)) (internal quotation marks omitted). Rule 26(b)(3) states that, subject to limited exceptions: “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A).

III. DISCUSSION

A. Scope of the Subpoenas

*4 As recounted above, the subpoenas at issue seek a broad range of documents regarding communications between various non-parties, most of whom are attorneys, and between non-parties and Bagley; all electronic information such as computer hard drives, including usernames and passwords, for Bagley and the non-parties; and information from all of the City's attorneys and employees’ work and personal computing devices including cell phones for time periods going back as far as 2009. See Dkt. No. 92.

B. Required Subpoena Fees

Initially, the movants argue the subpoenas are defective because they were not served with the required fees. Dkt. No. 93-2 at 6. However, the subpoenas at issue did not seek testimony of any witnesses, which is the only part of subpoenas to which the fees relate. Fed. R. Civ. P. 45(b)(1); see also First City, Texas-Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250, 255, n.6 (S.D.N.Y. 2000). Thus, the lack of payment of fees is not a basis to quash the subpoenas.

C. Burdensomeness and Proportionality of Subpoenaed Information

Next, the movants argue the subpoenas are unduly burdensome and not proportional to the needs of the case. Dkt. No. 93-2 at 6-7. The Court agrees. The subpoenas as written seek an expansive amount of information, including documents, text messages, emails, data from computer hard drives, and cell phone data and records, including information that dates back to 2009 and forward to the time the subpoenas were served. Dkt. No. 92. “A party ... responsible for issuing subpoenas must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The Court ... must enforce this duty and impose an appropriate sanction ... on a party ... who fails to comply.” Fed. R. Civ. P. 45(d)(1).

In response to the Motion to Quash, Plaintiff has provided absolutely no explanation of how the vast amount of information sought from former parties is relevant to the sole remaining claim of retaliation against Bagley. See Dkt. No. 96. Further, Plaintiff has made no effort to limit the information sought since the motion was filed, nor has he provided any particularity to describe the documents sought and how they relate to the remaining claim. Accordingly, the Court finds the subpoenas impose an undue burden on the movants since Plaintiff has made no effort to show the value of the information to the remaining claim or the need for the documents. In considering the breadth of the documents and information requested, the time period covered by them, and Plaintiff's failure to show any relevance to the documents or provide particularity with which the documents are described, the Court concludes the burden imposed on the non-party movants to respond to the subpoenas is a substantial and undue burden. See Trooper 1, 2024 WL 165159, at *5 (citation omitted). However, the Court declines to sanction Plaintiff in view of his pro se status but may consider sanctions if such overly broad and burdensome subpoenas are served in the future. Fed. R. Civ. P. 45(d)(1).

D. Common Interest Doctrine, Attorney-Client Privilege, and Attorney Work Product

Much of the information sought by the subpoenas at issue pertains to (1) documents, emails, text messages, and computers that belong to non-parties Oren, Borrill, and Charles Brown, and Defendant Bagley, all of whom acted as attorneys for the City or for City employees during the period at issue concerning the 2016 Action; (2) information pertaining to communications between these attorneys and employees of the City, Sciortino and Selimovic, at the time of the 2016 Action; and (3) communications between these attorneys concerning the JDA, and the JDA itself, related to Bagley's defense of one of the City defendants in the 2016 Action. See Dkt. No. 92 at 4-7, 23-25, 37-38, 54-55. The movants argue the subpoenaed information is privileged because it seeks communications between attorneys defending the City and its employees in the 2016 Action, and between the attorneys and their clients who were City employees during the 2016 Action. Dkt. No. 93-2 at 7-10. Thus, the information sought by the subpoenas involves confidential communications between lawyers and their clients during the course of legal representation related to the 2016 Action.

*5 Plaintiff has made no showing that there has been any waiver of attorney-client relationships here, or that the subpoenaed information is not work-product, or that the common interest doctrine should not apply. The movants were defending the City or its employees in the 2016 Action when the documents and information sought were generated, and the City employees who were not parties to the 2016 Action were responding to requests by the attorneys involved in defending the 2016 Action. The subpoenaed documents and information clearly were generated to defend the City and its employees who were parties to the 2016 Action. Moreover, a party may not discover information that is prepared “in anticipation of litigation or for trial by or for another party or its representative ... unless they are otherwise discoverable under Rule 26(b)(1); and ... the party shows that it has a substantial need for the materials ... and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(i), (ii).

For these reasons, the Court finds the attorney-client privilege and work-product privilege apply to the information sought by the subject subpoenas. The Court also finds the common interest doctrine applies since the City, the non-party City attorneys and employees, and Bagley all shared a common interest to defend the City and its employees in the 2016 Action.

In sum, Plaintiff has not shown the relevancy of the information sought to the remaining claim of retaliation against defendant Bagley; he has not shown the information is discoverable and not privileged; and he has not shown any substantial need for the materials to prepare his case. Accordingly, the Court finds the subpoenas should also be quashed because they seek information privileged from discovery.

IV. CONCLUSION

For the reasons stated above, the Court finds the records Plaintiff seeks are overly burdensome, not relevant, and not proportional to the needs of the case. The Court also finds the documents sought are privileged. Therefore, the Court grants the movants’ Motion to Quash.

WHEREFORE, it is

ORDERED that the motion (Dkt. No. 93) of non-parties City of Utica, Zachary Oren, Melissa Sciortino, and Edin Selimovic for an Order to quash pro se Plaintiff's subpoenas (Dkt. No. 92), is hereby GRANTED without prejudice; and it is further

ORDERED that no costs or sanctions are awarded to the non-party movants; and it is further

ORDERED that the Clerk is directed to serve this Decision and Order on the parties and the non-party movants in accordance with the Local Rules.

IT IS SO ORDERED.