Molesphini v. Giordano
- Katherine Failla
- 1:20-cv-05427
- U.S. District Court · Southern District of New York
- 6
In Molesphini v. Giordano, Judge Failla denied limited third-party discovery and kept discovery stayed while the motion to dismiss remains pending.
The plaintiffs, Craig Molesphini and Elephant Entertainment Inc., cannot obtain the requested records through a federal subpoena while discovery is stayed, but may apply to the New Jersey Superior Court for permission to inspect and use them. The defendants remain protected by the discovery stay while their motion to dismiss is pending.
What happened
In Molesphini et al. v. Giordano et al., the plaintiffs asked to subpoena bank and related records from the Monmouth County Prosecutor’s Office while discovery was stayed. They said the records could be lost or destroyed after the criminal case’s expungement and were important to their claims.
The court rejected that request. It concluded that expunged records are extracted and isolated rather than destroyed, and that New Jersey law allows a party to seek permission from the New Jersey Superior Court to inspect and use them when there is good cause, a compelling need, and the records concern the subject of litigation.
Judge Katherine Polk Failla denied the plaintiffs’ application, terminated the pending motions, and left discovery stayed while the defendants’ motion to dismiss is resolved. The court said the plaintiffs may seek the records through New Jersey’s expungement procedure.
The detailed version
- Molesphini v. Giordano · No. 1:20-cv-05427
- Katherine Failla
- July 28, 2025
Background
The plaintiffs, Craig Molesphini and Elephant Entertainment Inc., sought limited discovery from a third party: the Monmouth County Prosecutor’s Office. They wanted to subpoena bank and related records collected during the New Jersey criminal prosecution of Anthony Giordano. The plaintiffs said those records concerned the alleged diversion of Molesphini’s investment funds and might be affected by the expungement of records following Giordano’s successful completion of a New Jersey diversion program.
Discovery in the federal case was already stayed while the defendants’ potentially dispositive motion to dismiss was pending. The plaintiffs asked the court to lift that stay for the limited purpose of issuing the subpoena. They argued that the records might be destroyed or otherwise become unavailable and that they would be significantly harmed if they could not obtain them.
Court’s Analysis
The court denied the application. It relied on its earlier conclusions that New Jersey expungement generally extracts and isolates criminal records rather than destroys them, and that the definition of expunged records under New Jersey law does not necessarily exclude bank or financial records.
The court also relied on New Jersey Supreme Court precedent stating that expunged records may be inspected when the New Jersey Superior Court finds good cause and a compelling need based on specific facts, and when the records concern the subject of litigation or judicial proceedings. Under New Jersey Revised Statute § 2C:52-19, the plaintiffs may apply to the Superior Court for permission to inspect and use the records. The court stated that the current federal action may qualify as the relevant litigation for that application.
Disposition
Judge Katherine Polk Failla denied the plaintiffs’ application for limited third-party discovery and declined to allow them to subpoena the records directly from the Monmouth County Prosecutor’s Office while discovery remained stayed. The court said the plaintiffs were free to pursue the records through New Jersey’s expungement procedure. It directed the Clerk of Court to terminate the motions at docket entries 64 and 65, and discovery remains stayed pending resolution of the defendants’ motion to dismiss. The order did not resolve that motion to dismiss or the underlying claims.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.