United States District Court, D. New Jersey
OPINION AND ORDER
B. CLARK, III UNITED STATES MAGISTRATE JUDGE.
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
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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
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
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.
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