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Gould v. O'Neal

United States District Court, D. New Jersey

September 26, 2019

JONATHAN GOULD, Plaintiff
v.
DETECTIVE ROBERT O’NEAL, et al Defendants.

          OPINION AND ORDER

          JAMES B. CLARK, III UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on the Motion by Plaintiff Jonathan Gould (“Plaintiff or “Mr. Gould”) to compel non-parties Chase Bank USA, N.A., JPMorgan Chase Bank, N.A., and JPMorgan Chase & Co. (collectively “Chase”) to comply with the Subpoena served on Chase on November 28, 2018 (the “November Subpoena”), ECF No. 57. Chase has opposed this Motion, ECF No. 59, and Plaintiff filed a reply, ECF No. 61. The Court has reviewed the parties’ written submissions and considers Plaintiffs motion without oral argument pursuant to L. Civ. R. 78.1(b). For the reasons set forth below, Plaintiffs Motion to Compel, ECF No. 57, is GRANTED.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         The Court’s February 8, 2018 Opinion dismissing Plaintiffs Complaint without prejudice, ECF No. 30, includes a detailed recounting of the background of this matter. To the extent relevant to this motion, the Court incorporates that factual and procedural history into this Opinion and summarizes the critical facts and procedural history herein.

         Sometime in 2014, the Essex County Prosecutors Office (the “ECPO”) opened an investigation into Plaintiffs alleged improper use of his mother’s credit card account with Chase. Amended. Complaint (“Am. Compl.”) ¶ 22, ECF No. 32. The defendants in this matter are employees of the ECPO. Id. ¶ 2. Robert O’Neal is a detective and John Campo is a sergeant (collectively, the “Defendants”). Id. ¶¶ 19, 20. Defendants accused Plaintiff of stealing more than $75, 000.00 from his mother, Dr. Carol Gould (“Dr. Gould”). Id. ¶ 4. In February 2015, Plaintiff was issued a Complaint charging him with second-degree theft by unlawful taking in violation of N.J.S.A. 2C:20-3(a). Id. ¶ 36.

         On February 26, 2015, Plaintiff appeared in Court pursuant to the Complaint, and entered a plea of not guilty. Id. ¶ 40. Sometime after the court hearing, Defendants visited Dr. Gould and spoke with her regarding Plaintiff’s use of her Chase credit card account. Id. ¶ 44. Dr. Gould advised Defendants that Plaintiff was an authorized user of the account and that she approved all of the charges that Defendants alleged were unlawful. Id. ¶ 45. Following this meeting, the ECPO administratively dismissed the criminal case against Plaintiff and the Superior Court of New Jersey entered a final order of expungement. Id. ¶¶ 48-49.

         On January 6, 2017, Plaintiff instituted this action against Defendants alleging claims of false arrest (Count One) and malicious prosecution (Count Two), both in violation of 42 U.S.C. § 1983. Complaint ¶¶ 52-72. After the Court granted Defendants’ motion to dismiss, ECF No. 31, Plaintiff filed an Amended Complaint realleging claims for false arrest and malicious prosecution. See Am. Compl. ¶¶ 54-74.

         Plaintiff asserts that the key issue in this matter is whether probable cause existed to arrest him for second-degree theft. Memorandum in Support of Plaintiff’s Motion to Compel (“Pl’s Mot.”), ECF No. 57-1 at 1. According to Plaintiff, the documents produced thus far indicate that the only factual basis for his arrest was based on the information the ECPO received from Chase. Id. Thus, Plaintiff contends that the substance of this communication is central to this litigation. Based on the documents produced by the ECPO, Plaintiff learned that the ECPO and Chase communicated by email, fax and telephone. Id. at 2.

         In July 2018, Plaintiff served three subpoenas (the “July Subpoenas”) on Chase requesting “[a]ll [d]ocuments concerning communications with the Essex County Prosecutor’s Office and/or any other government agency concerning Jonathan Gould and/or Carol Gould.” Pl.’s Mot., Ex. 3, ECF No. 57-3. In response to the July Subpoenas, Chase produced a single, nine-page document, which was heavily redacted. Pl.’s Mot., ECF No. 57-1 at 2. Although Chase did not object to Plaintiff’s July Subpoenas, Plaintiff claims that Chase did not produce a privilege log, nor did it produce documents or any other written communications with the ECPO. Id. Sometime after receiving Chase’s responsive document, Plaintiff notified Chase that he regarded the production as deficient. Id. at 2-3. Apparently, Plaintiff sought to obtain the same information from the ECPO, but when requested the ECPO informed Plaintiff that its file appeared to be incomplete. Id.

         Plaintiff alleges that on November 27, 2018, Chase requested a more broadly worded subpoena to allow Chase to produce the relevant documents. Id. at 3. In response, Plaintiff issued a fourth Subpoena on November 28, 2018 addressed to Chase Bank USA, N.A., JPMorgan Chase Bank, N.A., and JPMorgan Chase & Co. See Pl.’s Mot., Ex. 4, ECF No. 57-6 at 6. The November Subpoena requests production of the following:

All documents concerning any investigation concerning Jonathan Gould and/or his mother, Carol Gould (deceased), during the time period from January 1, 2011 through December 31, 2015. This includes all investigative files, electronic and/or other written correspondence, reports, memoranda, and any other investigative materials.

Id. Chase responded to the November Subpoena on December 3, 2018 stating that Chase would not search for responsive documents absent Plaintiff’s agreement in advance to pay the cost of having an outside vendor handle Chase’s response to the Subpoenas. Pl’s Mot., ECF No. 57-1 at 3; see also Declaration of David Shanies (“Shanies Decl.”), ECF No. 57-2 ¶ 17. To date, Plaintiff claims that Chase has not provided how it stores its data, what it would take to retrieve stored data, and has failed to explain why complying with the subpoena constitutes an undue burden. Id. As a result, Plaintiff filed the current motion to compel non-party Chase to comply with the November Subpoena.

         Chase objects to the November Subpoena on the following grounds: (1) Plaintiff has already obtained the information and documentation that it seeks from the ECPO; (2) the November Subpoena demands the production of documents that contain Chase’s sensitive, confidential and/or proprietary information; and (3) Chase should not bear the cost of complying with the November Subpoena. Memorandum of Law in Opposition to Plaintiff’s Motion to Compel (“Chase’s Opp’n”), ECF No. 59 at 8.[1]

         II. ...


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