Rebecca Montesa v. David Schwartz

November 3, 2015

2015 WL 13016354

United States District Court, S.D. New York.

Rebecca Montesa, et al., Plaintiffs, v. Daniel Schwartz, et al., Defendants.

12 Civ. 6057 (CS)(JCM) Signed 11/03/2015

Attorneys and Law Firms

Laura Dawn Barbieri, Arthur Z. Schwartz, Advocates for Justice, Chartered Attorneys, New York, NY, for Plaintiffs. David J. Butler, Patrick Alan Harvey, Randall M. Levine, Stephanie Schuster, Morgan, Lewis & Bockius, Washington, DC, Adam W. Deitch, Mark David Harris, Proskauer Rose LLP, New York, NY, Jessica Zietz, Proskauer Rose LLP, Boca Raton, FL, Marian C. Rice, Meredith Diane Belkin, L'Abbate, Balkan, Colavita and Contini, LLP, Garden City, NY, for Defendants.

ORDER JUDITH C. McCARTHY, United States Magistrate Judge *1 On or about September 10, 2015, the Court received a letter (“Saltzman Letter”) from non-parties Lisa Saltzman and Joseph Saltzman (collectively, the “Saltzmans”), (Sealed Docket No. 514), which the Court construed as a motion to quash a subpoena. The subpoena at issue is one served upon non-party New York State Education Department (“NYSED”) by the plaintiffs in this action. The Saltzmans learned about the subpoena from NYSED, in a letter it sent on or about August 6, 2015. (Id. at 2). NYSED's letter disclosed that it was required to respond to the subpoena and, as a result, it would disclose “personally identifiable information” of their minor child. (Id.). However, NYSED also indicated that the disclosure would comply with the Family Education Rights Privacy Act, 20 U.S.C. § 1232g(b) (“FERPA”), but for limited additional disclosures as required by this Court. (Id.). Specifically, NYSED's disclosure would include the child's initials, student identification numbers, the last four digits of the child's Medicaid identification number and the name of the municipality in which the child resides. (Id.). The Saltzmans move to quash the subpoena, only as it relates to their child, to protect their privacy. (Docket No. 514). By Order dated September 21, 2015, the Court directed the parties and NYSED to file any objections or state they had no objection to the Saltzman Letter. (Docket No.15). All defendants and NYSED filed letters stating they had no objection to the Saltzman's motion. (Docket Nos. 517, 518, 520, 521). Plaintiffs, however, opposed the motion to quash. (Docket No. 519). Plaintiffs contend that the disclosure is integral to illustrating the claims in their complaint and to disprove some or all of the defendants' defenses. (Id. at 1-2). Plaintiffs also assert that the disclosures are sufficiently redacted to protect the Saltzmans' and their child's privacy. (Id. at 3). Rule 45 of the Federal Rules of Civil Procedure (“Rule 45”) sets forth the parameters by which this Court may quash or modify a subpoena. Rule 45(d)(3). The Court must quash a subpoena if, as relevant here, it “requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Rule 45(d)(3)(A)(iii). Motions “to quash a subpoena are ... ‘entrusted to the sound discretion of the district court.’ ” In re Fitch Inc., 330 F.3d 104, 108 (2d Cir. 2003) (quoting United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000)). “[T]he party invoking a privilege bears the burden of establishing its applicability to the case at hand.” Atwell v. City of New York, No. 07 Civ. 2365, 2008 WL 5336690, at *1 (S.D.N.Y. Dec. 15, 2008) (alteration in original) (quotation marks and citation omitted).1 At the same time, Rule 26(b)(1) of the Federal Rules of Procedure (“Rule 26(b)(1)”) permits discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense,” and clarifies that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Rule 26(b)(1) (alteration provided); see also Ackerman v. New York City Dep't of Info. Tech. & Telecomm., No. 09 Civ. 2436, 2010 WL 1172625, at *1 (E.D.N.Y. Mar. 24, 2010) (citing Rule 26(b)(1)). *2 Construing the Saltzman's pro se application broadly,2 they contend that the subpoena to NYSED requires NYSED to disclose privileged or other protected matter and thus must be quashed as to their child. (See Docket No. 514). However, NYSED disclosed to the Saltzmans that “the documents to be released will be covered by a protective order which, along with FERPA, requires redaction of most personally identifiable information.” (Docket 514 at 2). NYSED expressly described the redactions it would undertake. (Id). In sum, neither the child's name, nor any other information that could lead someone to guess the child's name, would be disclosed. (Id.). In addition, notwithstanding FERPA's protections, FERPA expressly permits the release of educational information if it “is furnished in compliance with a lawfully issued subpoena, and the parents are made aware of the subpoena prior to disclosure.” Storck v. Suffolk County Dep't of Soc. Servs.,122 F. Supp. 2d 392, 402 (E.D.N.Y. 2000). Here, no one disputes the lawfulness of the subpoena served by plaintiffs. NYSED also provided proper notice to the Saltzmans. Moreover, the plaintiffs seek, by way of the subpoena, matters that are relevant to their claims and defense. For these reasons, the Court concludes that the Saltzmans did not meet their burden to establish that privileged or protected information would be disclosed by NYSED, where “no exception or waiver applies.” Rule 45(d)(3)(A)(iii). Accordingly, the Saltzmans' motion to quash plaintiffs' subpoena to NYSED, as it relates to their minor child, is denied. The Clerk is respectfully requested to promptly mail to non-parties Lisa Saltzman and Joseph Saltzman a copy of this Order, as well as Docket Nos. 517, 518, 519, 520, 521, to the address indicated on the docket. The Clerk is also respectfully requested to terminate Lisa Saltzman and Joseph Saltzman as interested parties in this action. SO ORDERED.

All Citations Slip Copy, 2015 WL 13016354

Footnotes 1 In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009), and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and any others cited herein, only available by electronic database, accompany this Order and shall be simultaneously delivered to pro se non-parties. 2 Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (quotation marks and citations omitted) (“A document filed pro se is to be liberally construed”); Massie v. Metropolitan Museum of Art, 651 F. Supp. 2d 88, 93 (S.D.N.Y. 2008) (quoting Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002)) (the Second “Circuit construes pro se submissions ‘liberally, applying a more flexible standard’ ”).