Commercial Division Blog

Posted: January 17, 2024 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Third-Party Discovery, Subpoena, Motion to Quash

Court Quashes Subpoena as “Fishing Expedition”

On December 19, 2023, Justice Margaret A. Chan of the New York County Commercial Division, issued a decision in Millenium Consolidated Holdings, LLC v. Bluefin Capital Management, LLC, Index No. 656387/2022, granting Plaintiff’s motion to quash a subpoena on its former employee on the basis that it was overbroad and an improper “fishing expedition.” The Court explained:

[I]t is well settled that a party may not use ‘procedural mechanism of a subpoena duces tecum to expand the discovery available under existing law’ (Matter of Terry D., 81 NY2d 1042, 1045 [1993]). To this end, a subpoena duces tecum cannot be used to ascertain the existence of evidence or as a fishing expedition (see id at 1044 [‘a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence’]; Law Firm of Ravi Batra, PC. v Rabinowich, 77 AD3d 532, 533 [1st Dept 2010] [‘a subpoena duces tecum 'may not be used for the purpose of discovery or to ascertain the existence of evidence' and a subpoena should be quashed when the subpoena is being used for a fishing expedition to ascertain the existence of evidence’]; Humphrey v Kulbaski, 78 AD3d 786, 787·788 [2d Dept 2010] [quashing subpoena that demanded production of ‘all ... files and records’ pertaining to plaintiffs treatment received at a hospital without narrowing request to target the subject of litigation]). ‘Rather, its purpose is 'to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’’ (Matter of Terry D., 81 NY2d at 1044, quoting Matter of Constantine v Leto, 157 AD2d 376, 378 [3d Dept 1990]).

Here, the Subpoena contains a single request: ‘Any and all documents and communications produced to [Zhou] by Millennium in connection with the FINRA Dispute, including without limitation all documents concerning the claims, counterclaims, and defenses asserted in connection with the FINRA Dispute’ (NYSCEF # 74). In propounding this request, Bluefin neither imposes a limiting principle tailored to the issues in this litigation nor attempts to articulate what categories of relevant and material documents Zhou may possess from the FINRA proceedings. Rather, the Subpoena is a textbook example of shooting first and asking questions later. Indeed, Bluefin is directing Zhou-an apparently friendly subpoena target-to produce all documents produced by Millennium, regardless of their relevance to the instant action, and is doing so to ascertain-on its own terms after the dust settles-the existence of potentially relevant evidence amid a trove of documents. Courts may favor efficiency in the discovery process, but this court will not countenance such a blatant fishing expedition by Bluefin.

Of course, there may be potentially relevant documents produced by Millennium during the FINRA arbitration that are in Zhou's possession. Bluefin is therefore free to propound a new subpoena to Zhou seeking specific categories of material and necessary documents that it believes Zhou possesses. And Millennium, in turn, remains free to raise objections to those categories of documents and challenge the validity of the Subpoena as necessary (see Hyatt v State of Cal Franchise Tax Bd, 105 AD3d 186, 195 [2d Dept 2013] [‘A person other than one to whom a subpoena is directed has standing to move to quash the subpoena where he or she has a proprietary interest in the subject documents or where they involve privileged communications’]). But it ultimately does not fall on the court to prune the scope of the Subpoena and ‘cull the good from the bad’ (Soho Generation of NY. v Tri-City Ins. Brokers, 236 AD2d 276, 277 [1st Dept 1997]). Accordingly, the Subpoena, in its current form, is quashed in its entirety.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning the proper scope of a subpoena or moving to quash a subpoena.