Filsoof v. Cole
- Naomi Buchwald
- 1:21-cv-01791
- U.S. District Court · Southern District of New York
- 5
In Filsoof v. Cole, Judge Buchwald denied reconsideration of an order quashing a subpoena and denied certification for an immediate appeal.
Rachel Carol Filsoof, Andrew J. Cole, and the nonparty witness whose subpoena was challenged were affected; the subpoena remained quashed, and Cole could not obtain reconsideration or certification for an immediate appeal.
What happened
In Filsoof v. Cole, the court had previously granted Rachel Carol Filsoof’s request to quash a subpoena directed to a nonparty witness who was one of her former boyfriends. Andrew J. Cole asked the court to reconsider that decision.
Cole argued that the earlier briefing had not directly presented whether the witness’s testimony was relevant. The court rejected that argument, stating that it had already considered and rejected the relevance issue and that Cole had not shown overlooked controlling law or newly discovered evidence.
Judge Naomi Reice Buchwald denied Cole’s motion for reconsideration and also denied his request to certify the ruling for an immediate appeal. The court directed the clerk to terminate the reconsideration motion.
The detailed version
- Filsoof v. Cole · No. 1:21-cv-01791
- Naomi Buchwald
- May 2, 2022
Background
On March 9, 2022, the court entered an amended order granting Filsoof’s motion to quash a subpoena directed to a nonparty witness who was one of Filsoof’s former boyfriends. The original version of that order identified the witness by full name, but the court sealed it and issued an amended version to protect the witness’s privacy.
Cole moved for reconsideration on March 21, 2022. Filsoof opposed the motion, and Cole filed a reply.
Motion for reconsideration
The court explained that reconsideration is an extraordinary remedy generally available only when the moving party identifies controlling decisions or information that the court overlooked. Cole argued that reconsideration was appropriate because the briefing on the motion to quash had not squarely presented the issue of relevance.
The court rejected that argument. It stated that its decisions are not driven only by the arguments or legal authorities presented by counsel and that the earlier order had expressly considered and rejected Cole’s relevance position. The earlier order explained that discovery is limited to relevant evidence and that the court had found no examples of subject matter that would be relevant or admissible under Federal Rules of Evidence 403 and 404. The court also noted the protections available through a protective order and limits on depositions.
The court further held that Cole still had not established that the witness’s testimony was discoverable. Cole had offered a good-faith belief that the witness possessed relevant knowledge, but the court said that this was insufficient. It also noted that Cole had provided no factually analogous case law supporting discovery based on an alleged “modus operandi in romantic interpersonal relationships,” no formal offer of proof supporting relevance, and no clear explanation for insisting on the deposition. The court described the motion as an impermissible attempt to obtain a second opportunity to litigate the issue.
The court also addressed standing. Although Cole argued that the earlier order had not expressly ruled on Filsoof’s standing to challenge the subpoena, the court stated that its finding on standing had been implicit and then expressly ruled that Filsoof had standing to object.
Disposition
The court denied Cole’s motion for reconsideration. It separately denied Cole’s request to certify the ruling for an interlocutory appeal under 28 U.S.C. § 1292(b), finding that he had not satisfied the requirements for that rare form of immediate appeal. Judge Naomi Reice Buchwald directed the clerk to terminate the motion pending at ECF No. 189.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.