DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK ea eee DATE FILED:__ 5/13/2024 ARLENE DELGADO, Plaintiff, 19-CV-11764 (AT) (KHP) -against- OPINION AND ORDER DONALD J. TRUMP FOR PRESIDENT, INC., TRUMP FOR AMERICA, INC., SEAN SPICER, ON MOTION TO COMPEL individually, REINCE PRIEBUS, individually, RESPONSE TO SUBPOENA STEPHEN BANNON, individually, Defendants. +--+ ----X KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE:
Plaintiff Arlene Delgado (“Ms. Delgado”) has moved to compel responses to her document subpoena on Fox Corp./Fox News Network, LLC (“Fox”).4 The subpoena requests “any and all documentation and communications (including but not limited to emails and text messages) referencing, concerning, regarding, or mentioning A.J. Delgado.” It requests documents for the period December 22, 2016 through May 2018. Additionally, it provides a request that searches be conducted of “Fox News and Fox Business shows’ staff, such as Sean Hannity and the staff of his show” and of “Fox Business Vice President of Programming at the time, Thomas (Tom) Bowman, as well as his staff at the time.” It requests that the following search terms be applied: “AJ, A.J., Arlene, Delgado, Jason Miller, pregnancy, pregnant.”
Fox responded to the motion and objects to the subpoena for various reasons, including that it requests irrelevant information, is overbroad, and overly burdensome. The Court had set
1 In light of Plaintiff’s pro se status, the Court construed Plaintiff’s letter at ECF No. 240 as a motion to compel and set a schedule for Fox to respond to the objections, which Fox did at ECF No. 291.
a conference to speak with the par�es about the subpoena. However, a�er reviewing the subpoena and the submissions of the par�es, the Court finds that a conference is not necessary and that it can resolve the mo�on on the papers before it.
For the reasons set forth below, the mo�on is DENIED and the subpoena is QUASHED. BACKGROUND2
Ms. Delgado brings this ac�on against Donald J. Trump for President, Inc. (“Campaign”), Sean Spicer, Reince Priebus, and Stephen Bannon3 and asserts the following claims: (1) breach of contract and the covenant of good faith and fair dealing; (2) promissory estoppel; (3) discrimina�on on the basis of sex, gender, and pregnancy in viola�on of the New York State
Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”); (4) retalia�on for complaining about discriminatory prac�ces in viola�on of the NYSHRL and NYCHRL; (5) interference with protected rights under the NYCHRL; (6) tor�ous interference with prospec�ve economic advantage; and (7) prima facie tort. She alleges that Defendants aided and abeted the discrimina�on and retalia�on and that the Campaign is vicariously liable for the acts of its employees, agents and independent contractors.
2 The summary of facts is taken from Plain�ff’s Amended Complaint. (ECF No. 94) 3 The original complaint was served on Bannon (ECF No. 27), but Bannon has never made an appearance in this case and failed to respond to the complaint. No proof of service of the Amended Complaint was filed with respect to Bannon. Trump for America, Inc. was a Defendant but was dismissed by s�pula�on and order. The other Defendants all appeared through the same counsel, answered the amended complaint, and have fully par�cipated in this ac�on. Ms. Delgado served as a Senior Advisor and Hispanic Outreach Director for the Campaign from in or about September 1, 2016 to January 20, 2017.4 Prior to being engaged by the Campaign, she made unpaid television and radio appearances suppor�ng Donald Trump
and his Campaign, including on Fox News and MSNBC. She alleges that Sean Hannity and Chris Hayes complimented her following her appearances. She also alleges that Trump complimented her on her public appearances on his behalf and promised her a job in the White House. In November 2016, Ms. Delgado learned that she and Jason Miller, her supervisor at the
Campaign, were expec�ng a child. She alleges that she was stripped of her campaign responsibili�es shortly a�er she announced her pregnancy and that Defendants retaliated against her and unlawfully interfered with her securing employment at the White House a�er Trump’s inaugura�on due to her pregnancy. She asserts that but for Defendants’ conduct, she would have been named Deputy Press Secretary at the White House. She alleges that
Defendants also interfered with her ability to secure unspecified jobs in media and publishing deals. In or around March 2017, Ms. Delgado, through her then counsel, informed Defendants she intended to file a complaint of discrimina�on. The par�es then agreed to mediate the
dispute. According to Ms. Delgado, the par�es reached a setlement in principal and then Defendants reneged on the agreement. She contends that therea�er, Defendants filed a baseless and retaliatory arbitra�on ac�on against her seeking damages for her alleged breach of
4 Ms. Delgado was classified as an independent contractor by the Campaign and then later was provided with an agreement that contained a non-disparagement, confiden�ality and arbitra�on provisions. The confiden�ality provision was later found by an arbitrator to be unenforceable. the confiden�ality and non-disparagement clauses of the agreement by her pos�ng purportedly confiden�al informa�on on the internet via tweets on what was then the Twiter pla�orm and by threa�ng to file a discrimina�on ac�on. Defendants, however, did not pursue the arbitra�on
a�er filing it, causing Ms. Delgado to file the instant ac�on. The Honorable Analisa Torres later denied Defendants’ mo�on to compel arbitra�on. (ECF No. 93) Discovery in this case has been extended mul�ple �mes, but ended on May 7, 2024 with the excep�on of specific conten�on interrogatories and requests to admit and resolu�on of the instant mo�on.
DISCUSSION Federal Rule of Civil Procedure 45 permits a party to command a non-party to produce documents and provide deposition testimony. See Fed. R. Civ. P. 45(a). The issuing party “must
take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Additionally, the Court notes that a party’s requests under a Rule 45 subpoena are cabined by Rule 26(b), which limits discovery to information that is both relevant and proportional to the needs of the case. The court “must quash or modify a subpoena” that “requires disclosure of privileged or
other protected matter, if no exception or waiver applies” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3). Likewise, a court must quash a subpoena if it requests documents beyond the scope of discovery permitted under Rule 26(b). See Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y. 2010) (citing During v. City Univ. of N.Y., No. 05-cv-6992 (RCC), 2006 WL 2192843, at *2 (S.D.N.Y. Aug. 1, 2006) (collecting cases)). The party seeking discovery bears the ini�al burden of proving that the informa�on and tes�mony sought in the subpoena are relevant and propor�onal to the needs of the case, and the burden then shi�s to the party opposing discovery to show that the informa�on sought is
privileged or unduly burdensome. See Fed. R. Civ. P. 26(b); Fed. R. Civ. P.
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DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK ea eee DATE FILED:__ 5/13/2024 ARLENE DELGADO, Plaintiff, 19-CV-11764 (AT) (KHP) -against- OPINION AND ORDER DONALD J. TRUMP FOR PRESIDENT, INC., TRUMP FOR AMERICA, INC., SEAN SPICER, ON MOTION TO COMPEL individually, REINCE PRIEBUS, individually, RESPONSE TO SUBPOENA STEPHEN BANNON, individually, Defendants. +--+ ----X KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE:
Plaintiff Arlene Delgado (“Ms. Delgado”) has moved to compel responses to her document subpoena on Fox Corp./Fox News Network, LLC (“Fox”).4 The subpoena requests “any and all documentation and communications (including but not limited to emails and text messages) referencing, concerning, regarding, or mentioning A.J. Delgado.” It requests documents for the period December 22, 2016 through May 2018. Additionally, it provides a request that searches be conducted of “Fox News and Fox Business shows’ staff, such as Sean Hannity and the staff of his show” and of “Fox Business Vice President of Programming at the time, Thomas (Tom) Bowman, as well as his staff at the time.” It requests that the following search terms be applied: “AJ, A.J., Arlene, Delgado, Jason Miller, pregnancy, pregnant.”
Fox responded to the motion and objects to the subpoena for various reasons, including that it requests irrelevant information, is overbroad, and overly burdensome. The Court had set
1 In light of Plaintiff’s pro se status, the Court construed Plaintiff’s letter at ECF No. 240 as a motion to compel and set a schedule for Fox to respond to the objections, which Fox did at ECF No. 291.
a conference to speak with the par�es about the subpoena. However, a�er reviewing the subpoena and the submissions of the par�es, the Court finds that a conference is not necessary and that it can resolve the mo�on on the papers before it.
For the reasons set forth below, the mo�on is DENIED and the subpoena is QUASHED. BACKGROUND2
Ms. Delgado brings this ac�on against Donald J. Trump for President, Inc. (“Campaign”), Sean Spicer, Reince Priebus, and Stephen Bannon3 and asserts the following claims: (1) breach of contract and the covenant of good faith and fair dealing; (2) promissory estoppel; (3) discrimina�on on the basis of sex, gender, and pregnancy in viola�on of the New York State
Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”); (4) retalia�on for complaining about discriminatory prac�ces in viola�on of the NYSHRL and NYCHRL; (5) interference with protected rights under the NYCHRL; (6) tor�ous interference with prospec�ve economic advantage; and (7) prima facie tort. She alleges that Defendants aided and abeted the discrimina�on and retalia�on and that the Campaign is vicariously liable for the acts of its employees, agents and independent contractors.
2 The summary of facts is taken from Plain�ff’s Amended Complaint. (ECF No. 94) 3 The original complaint was served on Bannon (ECF No. 27), but Bannon has never made an appearance in this case and failed to respond to the complaint. No proof of service of the Amended Complaint was filed with respect to Bannon. Trump for America, Inc. was a Defendant but was dismissed by s�pula�on and order. The other Defendants all appeared through the same counsel, answered the amended complaint, and have fully par�cipated in this ac�on. Ms. Delgado served as a Senior Advisor and Hispanic Outreach Director for the Campaign from in or about September 1, 2016 to January 20, 2017.4 Prior to being engaged by the Campaign, she made unpaid television and radio appearances suppor�ng Donald Trump
and his Campaign, including on Fox News and MSNBC. She alleges that Sean Hannity and Chris Hayes complimented her following her appearances. She also alleges that Trump complimented her on her public appearances on his behalf and promised her a job in the White House. In November 2016, Ms. Delgado learned that she and Jason Miller, her supervisor at the
Campaign, were expec�ng a child. She alleges that she was stripped of her campaign responsibili�es shortly a�er she announced her pregnancy and that Defendants retaliated against her and unlawfully interfered with her securing employment at the White House a�er Trump’s inaugura�on due to her pregnancy. She asserts that but for Defendants’ conduct, she would have been named Deputy Press Secretary at the White House. She alleges that
Defendants also interfered with her ability to secure unspecified jobs in media and publishing deals. In or around March 2017, Ms. Delgado, through her then counsel, informed Defendants she intended to file a complaint of discrimina�on. The par�es then agreed to mediate the
dispute. According to Ms. Delgado, the par�es reached a setlement in principal and then Defendants reneged on the agreement. She contends that therea�er, Defendants filed a baseless and retaliatory arbitra�on ac�on against her seeking damages for her alleged breach of
4 Ms. Delgado was classified as an independent contractor by the Campaign and then later was provided with an agreement that contained a non-disparagement, confiden�ality and arbitra�on provisions. The confiden�ality provision was later found by an arbitrator to be unenforceable. the confiden�ality and non-disparagement clauses of the agreement by her pos�ng purportedly confiden�al informa�on on the internet via tweets on what was then the Twiter pla�orm and by threa�ng to file a discrimina�on ac�on. Defendants, however, did not pursue the arbitra�on
a�er filing it, causing Ms. Delgado to file the instant ac�on. The Honorable Analisa Torres later denied Defendants’ mo�on to compel arbitra�on. (ECF No. 93) Discovery in this case has been extended mul�ple �mes, but ended on May 7, 2024 with the excep�on of specific conten�on interrogatories and requests to admit and resolu�on of the instant mo�on.
DISCUSSION Federal Rule of Civil Procedure 45 permits a party to command a non-party to produce documents and provide deposition testimony. See Fed. R. Civ. P. 45(a). The issuing party “must
take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Additionally, the Court notes that a party’s requests under a Rule 45 subpoena are cabined by Rule 26(b), which limits discovery to information that is both relevant and proportional to the needs of the case. The court “must quash or modify a subpoena” that “requires disclosure of privileged or
other protected matter, if no exception or waiver applies” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3). Likewise, a court must quash a subpoena if it requests documents beyond the scope of discovery permitted under Rule 26(b). See Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y. 2010) (citing During v. City Univ. of N.Y., No. 05-cv-6992 (RCC), 2006 WL 2192843, at *2 (S.D.N.Y. Aug. 1, 2006) (collecting cases)). The party seeking discovery bears the ini�al burden of proving that the informa�on and tes�mony sought in the subpoena are relevant and propor�onal to the needs of the case, and the burden then shi�s to the party opposing discovery to show that the informa�on sought is
privileged or unduly burdensome. See Fed. R. Civ. P. 26(b); Fed. R. Civ. P. 45(d)(3)(A)(iv); Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 284 F.R.D. 132, 135 (S.D.N.Y. 2012). “When evalua�ng undue burden, the court considers the relevance of the informa�on sought, the party's need for the informa�on, the breadth of the request, and the burden imposed.” Lelchook v. Lebanese Canadian Bank, 670 F. Supp.3d 51, 55 (S.D.N.Y. 2023).
The decision to grant or deny a motion to quash is left to the district court's sound discretion. John Wiley & Sons, Inc. v. Doe, 284 F.R.D. 185, 189 (S.D.N.Y. 2012). In this case, the subpoena seeks “any and all documents and communica�ons referencing, concerning, regarding, or men�oning A.J. Delgado.” Any request that seeks “any and all documents and communica�ons” concerning a person is grossly overbroad and does not comport with Rule 26(b) or Rule 45. See Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789
(ER)(JLC), 2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016) (finding a subpoena reques�ng “all documents and communica�ons” rela�ng to an individual overbroad) (collec�ng cases). The subpoena is not tailored to claims in this case, requests irrelevant informa�on, and is unduly burdensome on a non-party. As to relevance, Fox is not alleged to have had any involvement in the hiring, management or firing of Plain�ff from the Campaign. Nor is Fox alleged to have had any involvement in decision-making regarding whether Plain�ff would be extended a job at the
White House. And while Plain�ff alleges that she appeared on Fox during Trump’s 2016 campaign, she does not allege that she applied to work at Fox in any par�cular posi�on, or was extended an offer by Fox, at any �me a�er she stopped working for the Campaign, or that Defendants spoke to specific individuals at Fox to interfere with a specific job opportunity. The gravamen of Plain�ff’s complaint is that she was denied a job at the White House as Deputy
Press Secretary where, Plain�ff asserts, she would have earned more than $700,000 in three years of that role. As to propor�onality, it is en�rely specula�ve whether Fox has any informa�on at all relevant to this case. Thus, the informa�on sought is not propor�onal to the needs of the case given the claims at issue, the informa�on already received through discovery, and the costs and burdens of conduc�ng such a broad search, par�cularly when it might result
in no relevant informa�on. Fox has objected to the subpoena as burdensome, and this Court agrees that it is unduly burdensome to a non-party. Contrary to what Plain�ff has argued, a request for ESI of mul�ple custodians over a one-and-a-half-year period u�lizing the broad search terms proposed by
Plain�ff does not take mere minutes to respond to. Par�es responding to subpoenas must collect relevant ESI in a forensically sound manner, while incurring costs to host the ESI, process the ESI into forms suitable for applica�on of search terms, review and analyze the ESI, apply search terms to the ESI, conduct a legal review of the ESI for privilege, and prepare any applicable privilege log, among other things. Although ESI so�ware has improved over the years it has existed, costs associated with ESI produc�on con�nue to increase due to growth in
the volume of data, more prevalent use of new and complex forms of data (e.g., Slack, video conferencing, social media messaging) and the explosion of sources of data (e.g., mul�ple devices and pla�orms used by each custodian). And, atorney review �me is expensive as well. Although Fox does not es�mate the costs of responding, the Court is aware from its own knowledge of the ESI process that the burden imposed on Fox by Plaintiff’s request is high given the speculative and marginal value of the information Plaintiff may discover.
In sum, Plaintiff has failed to show the information requested in the subpoena is relevant and proportional to the needs of the case and the Court also finds that it is unduly burdensome anon-party. Accordingly, Plaintiff’s motion to compel is DENIED, the subpoena is QUASHED and Fox is not required to respond. Therefore, the Court will not address the subpoena at the conference on May 15, 2024 and Fox is excused from attendance.
SO ORDERED. New York, New York 4th, y fike May 13, 2024 Kethaune H ‘
Katharine H. Parker U.S. Magistrate Judge