Barkai v. Nuendorf
- Kenneth Karas
- 7:21-cv-04060
- U.S. District Court · Southern District of New York
- 11
In Barkai v. Neuendorf, Judge McCarthy granted in part and denied in part a subpoena challenge, quashing four requests and requiring responses to two others.
Ariel Dan Barkai and the nonparty recipients of his subpoena were directly affected. The order also concerned the discovery relevant to Barkai’s remaining claims against Police Officers Anthony Culianos and Kyla Caraballo, sued as Kyla Donegan.
What happened
In Barkai v. Neuendorf, Ariel Dan Barkai, who represented himself, subpoenaed records from several nonparties in his civil-rights case against police officers. The subpoena sought records concerning harassment charges, phone calls, surveillance footage, communications between law-enforcement offices, and alleged threats.
The court granted the motion to quash Barkai’s first, second, fourth, and sixth requests because they were overbroad or not relevant to his remaining claims. The court denied the motion to quash the third request as moot because the nonparties would provide the available records, and found the eighth request moot because the nonparties agreed to search for and produce responsive documents.
Judge McCarthy ordered responses to the third and eighth requests by July 9, 2024. The order addressed subpoena discovery and did not decide the merits of Barkai’s remaining claims.
The detailed version
- Barkai v. Nuendorf · No. 7:21-cv-04060
- Kenneth Karas
- June 26, 2024
Background
Ariel Dan Barkai, proceeding without a lawyer, brought a civil-rights action under 42 U.S.C. § 1983 against members of the Clarkstown Police Department. The remaining claims arose from his August 31, 2020 seizure under New York Mental Hygiene Law § 9.41 and included an unlawful-seizure claim, a First Amendment retaliation claim, an assault claim under state law, and a wrongful-arrest claim under state law.
Barkai served a subpoena on nonparties including the Rockland County District Attorney, the Rockland County District Attorney’s Office, Detective Robert Neuendorf, and Missel Infante. The nonparties moved to quash the subpoena under Federal Rule of Civil Procedure 45, and Barkai opposed the motion.
Legal standard
Rule 45 permits a court to quash or modify a subpoena that imposes an undue burden. Discovery must also seek nonprivileged information relevant to a claim or defense and proportional to the needs of the case under Rule 26(b)(1). The party seeking discovery must show that the requested information is relevant and material. If relevance is shown, the party seeking to quash the subpoena must show undue burden.
The subpoena requests
First request
Barkai sought all files and other records related to two harassment charges prosecuted against him. The court found the request overbroad because it sought the entire file and not a focused set of documents. The court also found the records irrelevant to Barkai’s remaining claims, including his retaliation claim against Officer Culianos. Barkai had not shown that Officer Culianos knew about the harassment charges or seized him because of information in those records. The court granted the motion to quash the first request.
Second request
Barkai sought all files related to an August 20, 2020 telephone call between him and Detective Neuendorf. The court found the request irrelevant because Neuendorf was no longer a defendant, the call occurred before the August 31 seizure, and Barkai sought the records mainly to determine whether Neuendorf had lied. The court explained that the relevant probable-cause inquiry concerns what the arresting officers knew when they arrested Barkai. Barkai did not claim that Officers Culianos or Donegan knew about the August 20 call or relied on it when deciding to arrest him. The court granted the motion to quash the second request.
Third request
Barkai sought all files related to his August 31, 2020 telephone call with Missel Infante. The nonparties agreed to produce Infante’s handwritten notes, another employee’s handwritten notes, and relevant entries in the District Attorney’s Office computer system. They also represented that no audio recording of the call existed. Because Barkai already possessed, or would shortly receive, responsive materials, the court denied the motion to quash the third request as moot.
Fourth request
Barkai sought surveillance footage from his June 20, 2020 visit to the District Attorney’s Office. He argued that the footage would show that Neuendorf had lied and would undermine the basis for the welfare check and seizure. The court found that Barkai could not connect the footage to any of his four remaining claims and granted the motion to quash the fourth request.
Sixth request
Barkai sought communications between the District Attorney’s Office and the Police Department concerning Sergeant Bax’s assignment as a contact point for him. The court found that Sergeant Bax did not become involved until after the August 31 incident, did not investigate that incident, and had no personal knowledge of what occurred that day. The court granted the motion to quash the sixth request.
Eighth request
Barkai sought records concerning alleged threats of self-harm or threats to others from March 1 through August 31, 2020. Although the nonparties said they did not know of responsive documents, they agreed to search for and produce any responsive records. The court therefore found the eighth request moot.
Ruling and effect
The court stated that the motion to quash was granted in part and denied in part. In its conclusion, the court granted the motion to quash the first, second, fourth, and sixth requests, found the third and eighth requests moot under the stated arrangements, and directed the nonparties to respond to the third and eighth requests by July 9, 2024. The order concerned discovery and did not resolve the merits of Barkai’s remaining claims. Judge McCarthy also directed the Clerk of Court to mail the order to Barkai.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.