AO Alfa Bank v. Doe
| Docket Number | C. A. WM-2020-0361 |
| Decision Date | 09 December 2021 |
| Parties | AO ALFA BANK, Plaintiff, v. JOHN DOE, et al., Defendants. |
| Court | Rhode Island Superior Court |
For Plaintiff: Carl Fumarola, Esq.
For Defendant: Gerald J. Petros, Esq.; Ryan M. Gainor, Esq. Steven J. Boyajian, Esq.; William M. Daley, Esq.; Daniel F Sullivan, Esq.
DECISION
Before this Court for decision is a Motion to Quash Subpoena and for Protective Order (Motion to Quash) filed by non-party ZETAlytics, LLC (ZETAlytics) and the objection to that motion from AO Alfa Bank (Alfa Bank). Additionally, Alfa Bank has submitted its Motion to Compel ZETAlytics to Produce Responsive Documents (Motion to Compel), to which ZETAlytics also objects. Jurisdiction is pursuant to G.L. 1956 §§ 9-18.1-3, 9-18.1-5, and 9-18.1-6, as well as Rules 45 and 26 of the Superior Court Rules of Civil Procedure.
The pertinent facts underlying these lawsuits are outlined in this Court's decision relating to April Lorenzen's (Ms. Lorenzen) Motion to Quash Subpoena and for Protective Order and Alfa Bank's Motion to Compel Ms. Lorenzen to Produce Responsive Documents. See AO Alfa Bank v. John Doe, et al., No. WM-2020-0361, 2021 WL 5492872, at *1-2 (R.I. Super. Nov. 9, 2021) (hereinafter Alfa I). This Court hereby incorporates by reference its recounting of the facts in its previous decision, as rendered and filed on November 9, 2021. See id. As such, this Court will only provide the facts it deems necessary for ruling on the instant motions.
After initiating its lawsuit, Alfa Bank has filed a voluminous number of subpoenas with the Fifteenth Judicial Circuit of Florida (the Florida Court). (ZETAlytics's Mem. Supp Mot. Quash (MTQ Mem.) Ex. 2 () (Fla. Docket).) The Florida Court issued a subpoena duces tecum without deposition for ZETAlytics to produce documents and a subpoena for ZETAlytics to attend a remote video conference and videotaped deposition on June 23, 2021. (Pl.'s Mem. Supp. Mot. Compel Exs. K, L.) On July 1, 2021, Alfa Bank requested that this Court domesticate and issue the subpoena duces tecum without deposition (Document Subpoena) and the subpoena for ZETAlytics's attendance at a remote video conference and videotaped deposition (Deposition Subpoena). See Letter from Trish Anzalone, Litigation Paralegal for Christopher Cavallo, to Brendan Oates, Court Clerk for Washington County Superior Court (July 1, 2021) (July Anzalone Letter). Both subpoenas were issued by the Clerk of the Washington County Superior Court on July 6, 2021. See MTQ Mem. Exs. 3, 4.
Following efforts by ZETAlytics and Alfa Bank to resolve discovery issues and related objections, see Pl.'s Mem. Opp'n Mot. Quash Exs. I-J, M, ZETAlytics filed a Motion to Quash the Deposition Subpoena on August 26, 2021. Alfa Bank filed its objection to ZETAlytics's Motion to Quash on September 28, 2021. Thereafter, Alfa Bank filed its Motion to Compel on October 7, 2021 and filed a Notice of Supplemental Authority on October 8, 2021. ZETAlytics then filed a Combined Memorandum in Opposition to the Motion to Compel and Reply in Support of the Motion to Quash Subpoena and for Protective Order on October 29, 2021.[1] The Court heard arguments for the two motions on November 5, 2021, and now renders its Decision on both motions.
Standards of Review
In Rhode Island, "discovery rules are liberal and have been construed to 'promote broad discovery.'" DeCurtis v. Visconti, Boren & Campbell, Ltd. 152 A.3d 413, 421 (R.I. 2017) (quoting Henderson v. Newport County Regional Young Men's Christian Association, 966 A.2d 1242, 1246 (R.I. 2009)). As a result, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" Super. R. Civ. P. 26(b)(1). Moreover, "[t]he court is bound . . . to give the concept of relevancy, as it applies to discovery purposes, a liberal application[.]" Borland v. Dunn, 113 R.I. 337, 341, 321 A.2d 96, 99 (1974).
While Rhode Island discovery is broad, "the imposition of an unreasonable burden is an abuse of the discovery process and will not be tolerated." Eleazer v. Ted Reed Thermal, Inc., No. C.A. 87-624, 1989 WL 1110555, at *1 (R.I. Super. Jan. 27, 1989). As such, "[a] litigant may not engage in merely speculative inquiries in the guise of relevant discovery." Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1328 (Fed. Cir. 1990). Moreover, courts are not "free-standing investigative bodies whose coercive power may be brought to bear at will" against private individuals and entities. Houston Business Journal, Inc. v. Office of Comptroller of Currency, U.S. Department of Treasury, 86 F.3d 1208, 1213 (D.C. Cir. 1996). Rather, they are called to "facilitate" and aid in the resolution of justiciable actions brought before them. See id.
The limitations placed on discovery guide a court's adjudication of discovery disputes and motions because, "[a]lthough mechanisms for effective discovery are essential to the fairness of our system of litigation, . . . they also carry significant costs[.]" Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). In addition to the general limitations placed on the use of discovery, non-parties are entitled to special protections from burdens created by the discovery process. See Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998); Exxon Shipping Co. v. United States Department of Interior, 34 F.3d 774, 779 (9th Cir. 1994); see also Ceroni v. 4Front Engineered Solutions, Inc., 793 F.Supp.2d 1268, 1277 (D. Colo. 2011).
Finally, it is well settled that the trial court has broad discretion over matters of discovery. See Martin v. Howard, 784 A.2d 291, 296 (R.I. 2001) (citing Colvin v. Lekas, 731 A.2d 718 (R.I. 1999)); see also Bashforth v. Zampini, 576 A.2d 1197, 1201 (R.I. 1990). This discretion extends to motions to compel and quash discovery. Colvin, 731 A.2d at 720 (citing Corvese v. Medco Containment Services, Inc., 687 A.2d 880, 881 (R.I. 1997)).
As an initial matter, John Doe actions are recognized under Rhode Island Law. General Laws 1956 § 9-5-20 provides that:
"Whenever the name of any defendant or respondent is not known to the plaintiff, the summons and other process may issue against him or her by a fictitious name, or by such description as the plaintiff or complainant may select; and if duly served, it shall not be abated for that cause, but may be amended with or without terms as the court may order." Section 9-5-20.
Nevertheless our courts have held that there is a due diligence obligation imposed on a plaintiff to identify and name the John Doe defendants, where possible, "in order to bring the real defendant into the litigation and to subject that defendant to the jurisdiction of the particular court by proper reasonable notice and diligent service." Grossi v. Miriam Hospital, 689 A.2d 403, 404 (R.I. 1997).
Rule 45(a)(1)(D) of the Superior Court Rules of Civil Procedure authorizes the issuance of subpoenas for the purpose of commanding non-parties to the action to "attend and give testimony or to produce and permit inspection, copying, testing, or sampling of designated documents, electronically stored information, or tangible things in the possession, custody, or control of that person[.]" Importantly, non-party subpoenas still require the application of "[t]he broad standard of relevance contained in Rule 26(b)[.]" Robert B. Kent et al., Rhode Island Civil Procedure § 45:4 (Updated Dec. 2020).
Rules 26(c) and 45(c) set forth protections for a non-party subject to subpoenas. Pursuant to Rule 26(b)(1) of the Superior Court Rules of Civil Procedure, "[i]t is not ground for objection [to a discovery request] that the information sought will be inadmissible at the trial[.]" Moreover, Rule 26(c) governs the issuance of protective orders and provides that, on a motion by a party "accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown," a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" A party must provide a particularized need for protection to establish good cause. Estate of Chen v. Lingting Ye, 208 A.3d 1168, 1172-74 (R.I. 2019). Courts "shall" quash a subpoena "if it fails to allow reasonable time for compliance, requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects a person to undue burden." Kent et al., cited supra, § 45:5 (citing Super. R. Civ. P. 45(c)(3)). Courts must then "balance the competing interests between a party's right to discover relevant and nonprivileged information that may be pertinent to his or her case or defense and the harm that may be caused to the deponent if such a deposition were to take place." Estate of Chen, 208 A.3d at 1175.
Additionally a court "may" quash a subpoena if the "subpoena requires the recipient to disclose trade secrets, other confidential research, development, or commercial information, or an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party[.]" Kent et al., cited supra, § 45:5 (citing Super. R. Civ. P. 45(c)(3)). However, "if the inquiring party can show a substantial need for the testimony or material that otherwise cannot be met without undue hardship[, ]" then the court may choose not to...
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