Rodo Inc. v. Guimaraes
- Vernon Broderick
- 1:22-cv-09736
- U.S. District Court · Southern District of New York
- 3
In Rodo Inc. v. Guimaraes, Judge Broderick denied Rodo’s discovery request with leave to renew and ordered ExactCar to respond.
Rodo Inc., defendants Talles Guimaraes and Ari Cohen, and non-party ExactCar Inc.
What happened
In Rodo Inc. v. Guimaraes, Rodo asked the court to require non-party ExactCar Inc. to comply with a subpoena or require defendants Talles Guimaraes and Ari Cohen to produce similar materials. Rodo also requested its costs.
ExactCar had not responded to the subpoena or Rodo’s follow-up messages. The defendants said ExactCar had refused to let them obtain the materials and warned that doing so could violate their employment agreements. The court said whether the defendants could nevertheless be required to produce the materials depended on whether they had the practical ability to obtain them, a fact-intensive question.
Judge Broderick denied Rodo’s request with leave to renew. He ordered ExactCar to oppose the request by March 17, 2023, or Rodo could file a renewed motion by March 24. Rodo also had to serve ExactCar with the Order. The judge reserved a final decision about requiring the defendants to produce the materials and noted that the record strongly suggested ExactCar was acting in bad faith.
The detailed version
- Rodo Inc. v. Guimaraes · No. 1:22-cv-09736
- Vernon Broderick
- Mar. 1, 2023
Background
This Order resolved a discovery dispute about a subpoena issued to non-party ExactCar Inc. Rodo sought either to compel ExactCar to comply with the subpoena or to compel defendants Talles Guimaraes and Ari Cohen to produce comparable materials. Rodo also sought costs connected to the request.
Rodo reported that it served ExactCar with the subpoena on December 15, 2022, and sent four follow-up communications between January 12 and February 10, 2023. ExactCar did not respond, and attempts to reach the company by telephone were unsuccessful. Guimaraes also contacted ExactCar, but ExactCar denied permission to obtain the materials and warned the defendants that downloading them for production could violate their employment agreements. ExactCar had not appeared in the case to contest the subpoena. The court noted that ExactCar was aware of the litigation because its CEO, Kevin Azzouz, had filed a declaration in the case.
Court’s analysis
The court stated that a party may be required to produce documents when it has access to them and the practical ability to possess them, even if the documents are not available to the party requesting them. The court also noted that courts in the district have ordered defendants to produce documents despite possible contractual restrictions on disclosure. Because the practical-ability inquiry is fact-intensive, the court concluded that discovery should first be sought from ExactCar, which appeared to have ready access to the materials.
The court said it would reserve a final decision on whether to compel the defendants to produce the materials. It also stated that the current record strongly suggested ExactCar was operating in bad faith, while reserving final judgment about ExactCar’s conduct pending a response to the Order.
Disposition
The court denied Rodo’s request with leave to renew. It ordered ExactCar to file any opposition by March 17,
- If ExactCar opposed the request, Rodo could file a reply by March
- If ExactCar filed nothing by March 17, Rodo could file a renewed motion to compel and for an award of costs against ExactCar by March 24, with supplemental authority if desired. Rodo was also ordered to serve ExactCar with the Order by email and by a method authorized by Federal Rule of Civil Procedure
- The Clerk was directed to terminate the motion at Document 54.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.