65 Subpoenas

The New York Appellate Division for the Second Judicial Department in the main affirmed the grant of a protective order in litigation between two law firms

The plaintiff, a law firm, commenced this action against the defendants Geller Law Group, P.C. (hereinafter the Geller Law Group) and Mark Geller (hereinafter together the defendants), and another, to recover damages for breach of an of-counsel agreement between the plaintiff and the Geller Law Group dated April 1, 2012. Pursuant to the agreement, the plaintiff was to provide certain legal services relating to no-fault litigation cases filed by the Geller Law Group in Kings County. The complaint alleged, among other things, that the plaintiff provided services pursuant to the agreement until on or about June 23, 2014. Following years of contentious discovery, in 2019, the plaintiff served subpoenas duces tecum on, among others, 65 insurance and leasing companies against which the Geller Law Group had commenced actions in Kings County since April 1, 2012, “to present,” including nonparties MetLife Auto &Home Ins. Co. (hereinafter MetLife) and Empire Fire & Marine Insurance Company (hereinafter Empire). The Geller Law Group moved, inter alia, to quash the subpoenas and for a protective order limiting the plaintiff’s use of any documents received through the subpoenas, and MetLife and Empire separatelymoved, among other things, to quash the subpoenas that had been served upon them and for a protective order against further discovery. In an order dated August 17, 2020, the Supreme Court, inter alia, in effect, granted those branches of the separate motions of MetLife and Empire which were for a protective order against further discovery to the extent of issuing a protective order, among other things, limiting the scope of subpoenas the plaintiff may serve on each of those nonparties to actions commenced between April 1, 2012, and July 17, 2014, and, sua sponte, in effect, issued a protective order, inter alia, limiting the scope of subpoenas the plaintiff may serve on other nonparty insurance and leasing companies against which the Geller Law Group commenced actions to actions commenced between April 1, 2012, and July 17, 2014. The plaintiff appeals.

Protection

Here, the Supreme Court providently exercised its discretion in issuing a protective order limiting the scope of subpoenas the plaintiff may serve on MetLife, Empire, and other nonparty and leasing companies, since the prior subpoenas served by the plaintiff sought documents relating to actions filed by the Geller Law Group since April 1, 2012, “to present,” and were overbroad (see Orange & Rockland Utils., Inc. v County of Rockland, 206 AD3d at 669; Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890, 892; cf. Matter of Cheryl LaBella Hoppenstein 2005 Trust, 186 AD3d 1230, 1233). However, the court should not have limited the scope of subpoenas the plaintiff may serve to actions commenced between April 1, 2012, and July 17, 2014. Rather, based on the language of the agreement and the parties’ submissions at this stage of the proceedings, the subpoenas should be limited to actions commenced between April 1, 2012, and August 16, 2014 (see CPLR 3101[a]; Morrow v Gallagher, 163 AD3d 804, 805).

Contrary to the plaintiff’s contention, the protective order otherwise limits the scope of the subpoenas only to the extent indicated therein. 

(Mike Frisch)