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In Re Application of Emmanuel N. Lazaridis

September 1, 2011

IN RE APPLICATION OF EMMANUEL N. LAZARIDIS, PETITIONER.


The opinion of the court was delivered by: Lois H. Goodman United States Magistrate Judge

OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO QUASH

Presently before this Court is a motion brought by Respondent, the Bring Sean Home Foundation ("BSHF"), to quash the subpoena duces tecum served by Petitioner Emmanuel Lazaridis ("Lazaridis") that was issued pursuant to 28 U.S.C. § 1782 (the "Subpoena"), which grants federal district courts authority to assist in the production of evidence for use in a foreign or international tribunal. [Docket Entry No. 6]. BSHF requests that the Court issue a protective order preventing Lazaridis from obtaining the requested discovery and to impose monetary sanctions. The Court decides this motion on the papers and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court grants Respondent's motion to quash the Subpoena and for a protective order, but denies its request for sanctions.

I. BACKGROUND

A. The Subpoena

Lazaridis commenced this matter on April 12, 2010 by filing an ex parte application for discovery pursuant to 28 U.S.C. § 1782. [Docket Entry No. 1]. On that same date, Lazaridis also filed an application to proceed in forma paupris, which was granted on June 30, 2010. [Docket Entry No. 2]. On August 6, 2010, this Court issued an Order allowing Lazaridis to serve a subpoena duces tecum for the production of certain information from BSHF. [Docket Entry No. 3]. The Subpoena requests four general categories of information from BSHF: (1) all documents, as that term is broadly defined in the Subpoena, concerning Lazaridis; (2) all documents concerning members of the BSHF website with the user names forthelost, KatiMurphy, carlos, jl2saint, KarlHindle, Audax, Bob d'Amico, JosephCricket, Bree and lovelboys; (3) all documents concerning the National Centre for Missing in Europe Children; and (4) all documents concerning certain defined BSHF messages, including authorization logs, error logs, download logs, and other electronic documents concerning access to the BSHF messages, regardless of the means employed. Lazaridis Brief in Support of Application for Subpoena ("Lazaridis Brief") at Exhibit A [Docket Entry No. 1].

B. BSHF

BSHF is a non-profit organization incorporated in the State of New Jersey. BSHF Brief in Support of Motion to Quash ("BSHF Brief") at 2 [Docket Entry No.6-1]. BSHF provides assistance to victims of international child abduction, educates the public about international child abduction, works to prevent future abductions, and draws attention to the number of cases that currently exist, with the goal of returning abducted children to their home countries and reuniting them with their left-behind parents. Id. BSHF indicates that it has no active employees and is run on a part-time, volunteer basis. Id. at 23. BSHF maintains a public website that contains as many as 41 message forums with thousands of individual posts. Id. at 16.

C. The Foreign Action

Lazaridis alleges that he is a complainant and civil participant in a Greek criminal prosecution ( the "Greek Prosecution") for libel and slander, pending against several United States citizens before the Three-Member Magistrates Court of Athens ("TMMCA"). Lazaridis Brief at 2 [Docket Entry No. 1]. He contends that the requested documents will show that his reputation has been harmed, and that such a showing is necessary to assist the TMMCA and other Greek investigative authorities in determining the measure of harm, damages, and relief that would be appropriate in the Greek Prosecution. Id. at 14, Exhibit A. In short, Lazaridis asserts that the TMMCA has the power to award damages to victims of criminal activity and to bar further criminal violations against those victims, and that the information sought is needed to fashion those remedies. Id. Lazaridis also claims that as the complainant-victim, he has significant procedural rights to aid in the investigation and prosecution of the individuals charged in the Greek Prosecution. Id. at 3.

D. Issuance of the Subpoena

This Court granted Lazaridis's ex parte petition to serve a subpoena on BSHF. [Docket Entry No. 3]. Because the application was made ex parte, the Court allowed the Subpoena to be served but reserved judgment as to the propriety of the substance of the Subpoena under the discretionary factors articulated by the Court in Intel Corp. v. Advanced Micro Devices, Inc., 428 F. Supp.2d. 188, 192 (S.D.N.Y. 2006). The Court further provided that it would consider any objections raised by BSHF after the Subpoena was properly served. Id. As such, the Court made no determination regarding the nature of the foreign action, the relevance of the information sought, or the burden on BSHF. Id.

After being served, BSHF filed the instant motion to quash the Subpoena.

II. DISCUSSION*fn1

BSHF contends that the Subpoena is unduly burdensome under Federal Rule of Civil Procedure 45, and that the burden constitutes harassment and annoyance. BSHF Brief at 1 [Docket Entry No. 6-1]. Rule 45 allows a party served with a subpoena to move to quash or modify that subpoena if the discovery requested subjects the person to an undue burden. Fed. R. Civ. Pro. 45(c)(3)(A)(iv). An undue burden exists when the subpoena is "unreasonable or oppressive." Schmulovich v. 1161 Rt. 9 LLC, 2007 WL 2362598 at *4 ( D.N.J. 2007). There is no "strict definition of unreasonable or oppressive" and courts have used several factors in determining a subpoena's reasonableness: (1) the party's need for the production; (2) the nature and importance of the litigation; (3) the relevance of the material; (4) the breadth of the request for production; (5) the time period covered by the request; (6) the ...


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