Diamond v. SLD 500 LLC

Background

Warren Diamond and Faith Diamond, as trustee of the Diamond Trust, brought a breach-of-contract action against 500 SLD LLC and Scott Diamond. The dispute concerns the parties’ ownership and management interests in real estate located in New York City.

The plaintiffs served a subpoena on Lacey Walker, Jr., a third party, on February 16, 2022. The subpoena sought testimony and documents, including Walker’s complete files, reports, notes, communications, data, curriculum vitae, publications, agreements, and billing records concerning work performed for or on behalf of Scott Diamond. Walker had previously worked as a computer-forensics expert in an unrelated New Jersey state case involving Warren Diamond and Scott Diamond.

The parties had not yet held the discovery-planning conference required by Federal Rule of Civil Procedure 26(f). The defendants moved to quash, or invalidate, the subpoena. They argued that it was premature, sought attorney-client or attorney work-product material, and imposed an undue burden on Walker. The motion was unopposed because the plaintiffs did not respond within the applicable deadline.

Court’s analysis

Federal Rule of Civil Procedure 26(d) generally bars a party from seeking discovery from any source before the parties confer as required by Rule 26(f), unless an exception applies or the court authorizes early discovery. The court concluded that no exception applied and that the prohibition covered discovery from third parties such as Walker.

The court also concluded that the subpoena had limited relevance. Walker had been engaged years earlier to review and analyze the forensic extraction and imaging of certain devices in Scott Diamond’s possession in an unrelated New Jersey case. The court understood that Walker did not possess personal knowledge of facts asserted in the plaintiffs’ complaint. Because the plaintiffs did not respond, they offered no explanation for why Walker’s testimony and records were needed in this contract action.

The court described these two defects as independently sufficient. It therefore did not decide whether the subpoena allowed a reasonable time for compliance, required disclosure of privileged or otherwise protected material, or imposed an undue burden under Rule 45.

Ruling

Judge P. Castel granted the defendants’ motion to quash the subpoena. The Clerk was directed to terminate the motion, identified as Document 34. The order addressed the subpoena and discovery process; it did not decide the underlying breach-of-contract claims.