United States District Court, D. Connecticut
RULING ON EMERGENCY MOTION TO QUASH [DKT.
Vanessa L. Bryant United States District Judge.
the Court is an Emergency Motion to Quash the subpoenas
served on four non-party witnesses, requiring them to appear
and testify at the Prejudgment Remedy ("PJR")
Hearing on November 6, 2017. The non-party witnesses are
Howard Rifkin, Corporation Counsel for the City of Hartford;
I. Charles Matthews, Chairman of the Hartford Stadium
Authority; Sean Fitzpatrick, Director of Development
Services; and Michael Looney, Deputy Director of Public
Works. Defendants / Counterclaim Plaintiffs issued these
subpoenas on October 30, 2017. The following day the
non-party witnesses filed the instant motion pursuant to
Fed.R.Civ.P. 45(d)(3), requesting that the Court quash the
subpoena on three grounds: (1) the subpoenas "fail[ ] to
allow a reasonable time to comply" under Fed.R.Civ.P.
45(d)(3)(A)(i); (2) the subpoenas "subject a person to
undue burden" under Fed.R.Civ.P. 45(d)(3)(A)(iv); and
(3) the scope of the subpoenas are outside the scope of the
PJR Hearing. For the following reasons, the motion is
Fed.R.Civ.P. 45(d)(3)(A)(i), a court is required to quash a
subpoena when it "fails to allow a reasonable time to
comply." This subpoena was served seven days in advance
of the hearing. Courts within this circuit have ruled the
service of a subpoena five to nine days in advance of a
hearing is not "reasonable time to comply." See
Bouchard Transp. Co., Inc. v. Assoc. Elec. & Gas Ins.
Servs. Ltd., No. 15 Civ. 6586 PAC, 2015 WL 6741852, at
*2 (S.D.N.Y. Nov. 4, 2015) (finding five days between receipt
of the subpoena and the deposition date to be an unreasonable
amount of time); Brown v. Hendler, No. 09 Civ. 4486
(RLE), 2011 WL 321139, at *2 (S.D.N.Y. Jan. 31, 2011) (ruling
nine days between service of the subpoena and the deposition
date to violate Rule 45) (citing cases). Although the cases
cited pertain to the scheduling of depositions, which are
typically scheduled further in advance than PJR hearings, the
Court finds these cases instructive as the parties in this
case have been aware of the PJR hearing date for two months
and thus had ample time to issue the subpoenas. The subject
matters of the subpoenas are complex and detailed. To testify
competently, the targets would have to identify, review and
acquire a command of complex and detailed construction and
financial records. The Court finds that the subpoenas were
not served within a reasonable time to afford the targets the
required time to prepare and appear to testify competently.
See Fed.R.Civ.P. 45(d)(3)(A)(iv).
Exhibit D to the Motion to Quash is an email between
Defendants' counsel and the non-parties' counsel and
it reflects the anticipated content of the questioning at the
PJR Hearing-content that is not relevant to the Court's
consideration in awarding a prejudgment remedy. See
Fed.R.Evid. 401 ("Evidence is relevant if: (a) it has
any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action."). Specifically,
defense counsel plans to question the witnesses about the
City's financial matters regarding the Yard Goats'
stadium project and the arrangements for Arch presumably to
take over the project.
standard for awarding a prejudgment remedy is whether there
is probable cause, i.e. "a bona fide belief in the
existence of the facts essential under the law for the
actions [that] would warrant a man of ordinary caution,
prudence and judgment, under the circumstances, in
entertaining it." TES Franchising, LLC v.
Feldman, 286 Conn. 132, 137-38 (2008) (quoting Wall
v. Toomey, 52 Conn. 35, 36 (1884)). Defenses and
counterclaims can only defeat probable cause where they are
factually and legally simple and clear. See Babiarz v.
Hartford Special, Inc., 2 Conn. App. 388, 393 (1984).
Therefore, the City's finances and arrangements with Arch
are not relevant to any of Defendants' affirmative
defenses or counterclaims in the context of the PJR
scope of discovery under a Rule 45 subpoena is the same as
that permitted under Rule 26." East Point Sys., inc.
v. Maxim, No. 3:13-cv-00215 (VAB), 2015 WL 1971453, at
*3 (D. Conn. Apr. 30, 2015). Under Rule 26(b)(1), relevant
information is discoverable so long as it is proportional,
"considering the importance of the issues at stake in
the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit." Fed.R.Civ.P.
26(b)(1). The Court notes that such evidence ultimately may
be relevant to the merits of the case, but finds that the
nature of the anticipated testimony is outside the scope of
information relevant to the PJR Hearing.
foregoing reasons, the Motion to Quash is GRANTED.
 The affirmative defenses are: (1)
Arch's contributory negligence in failing to investigate
the Centerplan's alleged default; (2) estoppel; (3)
unclean hands; (4) Arch's prior breach of contract of the
Indemnity Agreements and bonds. [Dkt. 37 (First Am. Ans. and
Counterclaim) at 10-13]. The counterclaims are (1) Arch's
breach of contract regarding the Indemnity Agreements and
bonds; (2) breach of the implied covenant of good faith and
fair dealing; (3) surety bad faith; (4) tortious interference