Thursday, April 9, 2015

Bergstein & Ullrich prevail in quashing non-party subpoena in developer's religious discrimination case

When does a non-party subpoena go too far? And when does it implicate First Amendment values? In this case, a federal court quashed non-party subpoenas served on community activists in connection with a developer's civil rights lawsuit against an upstate New York community.

The case is Bloomingburg Jewish Center v. Village of Bloomingburg, decided on April 6. The plaintiffs argue that certain development projects were rejected because the Town and Village acquiesced in alleged anti-Hasidic sentiment in the community. Plaintiff served non-party subpoenas on community activists for records and other communications among themselves and public officials to help prove the case. Judge Forrest quashed the subpoenas as to the non-party activists. I represented one of the activists, Weinstein, who filed the motion to quash along with other non-parties.

Here is how the court summarizes the dispute:

Plaintiffs allege that defendants, along with a number of individuals from the community, have engaged in a consistent pattern of religious discrimination and undertaken actions to thwart plaintiffs’ planned developments. Important to the subpoenas at issue on this motion is that plaintiffs assert that the RCC, and individuals associated with the RCC, form a vocal core of the opposition to their development efforts. Plaintiffs assert that the RCC has proposed and worked for the election of candidates sympathetic to the anti-development position (which, according to plaintiffs, is based on an anti-Semitic and anti-Hasidic views).
The demands were wide-ranging. Here is a flavor:

Request No. 1: All documents and communications on any topic at all, with a variety of representatives, employees, or agents of the Town of Mamakating (the “Town”) or the Village.

Request No. 2: All documents and communications concerning (1) plaintiffs’ proposed developments, (2) any plaintiff, (3) Hasidic Jews, (4) or any organization affiliated with the Hasidic Jewish community.

Request No. 3: All documents and communications on any topic at all, with any person affiliated with the RCC, the Rural Heritage Party, Hoppe, Weinstein, Persaud, or David Berg.

Request No. 4: All documents and communications on any topic at all concerning the RCC and the Rural Heritage Party.

Request No. 5: All documents and communications concerning any actions taken or statements made by any defendant or any employee, official, or representative of the Village or Town concerning Hasidic Jews, plaintiffs or their affiliates, or that might lead to the discovery of evidence of disparate treatment.

Request No. 6: All documents and communications concerning any complaints made in connection with plaintiffs’ proposed developments, or any property thought to be associated with Shalom Lamm, Kenneth Nakdimen, and/or any Hasidic person in the Village or Town.

Request No. 7: All documents and communications concerning any complaints made in connection with any other property than those referenced in No. 6 above.
The subpoenas are premature, overbroad and implicate First Amendment concerns. They are premature because plaintiff might get similar information from public officials before burdening non-parties with these demands. They are overbroad for a variety of reasons, including the fact that the demands seek information that may be unrelated to the disputes in this case. As the court writes, "It is unfair to suggest that emails that could relate to nothing more than a birthday party but that involves one of the identified people would become discoverable material in this lawsuit. Similarly, a complaint regarding snow-plowing down Main Street would likewise be discoverable. This asks too much of third parties. They implicate the First Amendment because the demands may chill activist speech." The First Amendment is also implicated, Judge Forrest, writes:

In practice, rights guaranteed by the First Amendment enable people to hold diverse political and religious views, to voice their opposition to the views and beliefs of others in written and spoken communication, and to seek to elect those whom they believe will represent their views—even when those views are not shared and sometimes condemned by others.

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