United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE
matters come before the Court on Motions by Caryn Chazen,
wife of Defendant Michael Chazen, to Quash a Subpoena served
upon her, ECF No. 24, and by Plaintiff United States of
America to Compel Deposition and Responses to Discovery from
Defendant. ECF No. 28. Both motions are opposed. ECF Nos. 25,
31. The Court has fully reviewed the submissions of the
parties and movants, and considers same without oral argument
pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth
below, Plaintiff's Motion to Compel Deposition and
Responses to Discovery is GRANTED, and the
Motion of Ms. Chazen to Quash the Subpoena is
facts and procedural history of this 10-year-old case are
well known to the parties and need not be recited at length.
Briefly, the underlying action concerns unpaid income taxes,
penalties, and interest for the tax years 1995 through 2003.
On September 23, 2009, U.S. District Judge Mary L. Cooper
entered a Consent Judgment in favor of Plaintiff USA and
against Defendant “in the amount of $406, 084.05 as of
May 5, 2008, together with all interest and penalties that
have accrued and will continue accruing according to
law” for those tax years. ECF No. 81. Concomitant with
the entry of that Order, a notice was entered on the docket
stating, “Civil case terminated.” See
October 9, 2009 Docket entry. There was no further activity
on the docket until July 7, 2018, when Plaintiff moved for an
Installment Payment Order. ECF No. 14. There Plaintiff stated
Defendant had defaulted on two payment plans entered into
pursuant to the Federal Debt Collection Procedures Act, 28
U.S.C. §§ 3001 through 3008. Id. Under the
first agreement, Mr. Chazen was to pay $25, 000 by December
23, 2009, and then pay $75, 000 more by December 31, 2009,
and $75, 000 each year thereafter, until the balance of the
judgment was paid in full. Id. at p.3. Plaintiff
contends Defendant made none of these payments. Id.
Under the second agreement, Defendant was to pay $1, 000 a
month. Id. Plaintiff says Defendant made $16, 000 in
payments before defaulting on this plan. Id.
Defendant contends he has paid close to $75, 000 under the
plan. Plaintiff states that since the entry of the Consent
Judgment the amount at issue has risen to in excess of $572,
October 2018, Ms. Chazen moved to quash Plaintiff's
Subpoena under which she was to produce “documents
reflecting current payoff amount of any mortgage or other
security interest on 5 Andrea Court, Manalapan N.J. 07726,
” and submit to a deposition. ECF No. 24.
November 8, 2018, Plaintiff filed its Motion to Compel
Defendant to appear for a deposition and to “provide
proper responses to the Government's interrogatories and
document requests.” ECF No. 28.
Supreme Court has stated, “[t]he rules governing
discovery in postjudgment execution proceedings are quite
permissive.” Republic of Argentina v. NML Capital,
Ltd., 573 U.S. 134, 138 (2014). Fed.R.Civ.P. 69(a)(2)
provides: “In aid of the judgment or execution, the
judgment creditor…may obtain discovery from any
person-including the judgment debtor-as provided in these
rules or by the procedure of the state where the court is
located.” See also 12 C. Wright, A. Miller,
& R. Marcus, Federal Practice and Procedure § 3014,
p. 160 (2d ed. 1997) (court “may use the discovery
devices provided in [the federal rules] or may obtain
discovery in the manner provided by the practice of the state
in which the district court is held”). “The
general rule in the federal system is that, subject to the
district court's discretion, “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense.” Republic of
Argentina, 573 U.S. at 139 (quoting Fed. Rule
Civ. Proc. 26(b)(1)); see also Pearson v. Miller,
211 F.3d 57, 65 (3d Cir. 2000). Information sought by the
parties need not be admissible in evidence to be
discoverable. Fed.R.Civ.P. 26(b)(1). During discovery,
“[a] party may serve on any other party a request
within the scope of Rule 26(b)” to produce
documents “in the responding party's possession,
custody, or control.” Fed.R.Civ.P. 34(a)(1). Of course,
the responding party is not obliged to produce documents it
does not possess or can not obtain. See Bumgarner v.
Hart, Civ. No. 05-3900, 2007 WL 38700, at *5 (D.N.J.
Jan. 4, 2007) (holding that the Court cannot order production
of documents that are not in the responding party's
possession or control). Not only must the requested documents
be in the responding party's possession or control, they
also must be relevant. The precise boundaries of the Rule 26
relevance standard depend upon the context of each particular
action, and the determination of relevance is within the
discretion of the District Court. Barnes Found. v. Twp.
of Lower Merion et al., Civ. No. 96-372, 1996 WL 653114,
at *1 (E.D.Pa. 1996).
the scope of discovery is undoubtedly broad, the Federal
Rules also provide that a Court “must limit the
frequency or extent of discovery otherwise allowed” if
it concludes that: (1) the discovery sought is cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive; (2)
the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or (3) the
proposed discovery is outside the scope permitted by Rule
26(b)(1). Fed.R.Civ.P. 26(b)(2)(C). Further, “the Court
has a responsibility to protect privacy and confidentiality
interests” and “has authority to fashion a set of
limitations that allow as much relevant material to be
discovered as possible...while preventing unnecessary
intrusions into legitimate interests that may be harmed by
the discovery of material sought.” Schmulovich v.
1161 Rt. 9 LLC, Civ. No. 07-597, 2007 WL 2362598, at
*1-2 (D.N.J. Aug. 15, 2007); see also Pearson, 211
F.3d at 65; Fed.R.Civ.P. 26(c). Finally, Rule 37(a) allows a
party to file a motion to compel discovery where the opposing
party fails to respond adequately to a document request
propounded pursuant to Rule 34. Fed.R.Civ.P. 37(a)(3)(B)(iv).
Ultimately, it is within the Court's discretion whether
to grant a motion to compel disclosure. In re Cendant
Corp. Sec. Litig., 343 F.3d 658, 668 (3d Cir. 2003).
Court will address each motion in turn.
Ms. Chazen's Motion to Quash
seeks to collect the unpaid amount due pursuant to the 2009
Consent Judgment against Defendant. Considering the failure
of Defendant to fully satisfy this Judgment and pursuant to
Fed.R.Civ.P. 26, Plaintiff served a Subpoena Duces Tecum on
Defendant's wife. By that Subpoena Plaintiff sought
documents regarding payments made on a mortgage loan that is
secured by the marital residence and to depose Ms. Chazen.
See ECF No. 24-1.
Chazen seeks to quash the Subpoena. In her one-page letter
Motion, Ms. Chazen contends the Subpoena is “unduly
burdensome, unreasonable, and not warranted.” ECF No.
24. She further states there is “no relevancy to the
information being ...