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FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

[plfName]	)	Case No (LT)
Petitioner	)	[caseNo]
)
v.	)
)
[defName]	)
Respondent	)

PETITIONER’S RESPONSE TO RESPONDENT’S MOTION TO QUASH

Petitioner, [plfName], on this [d] day of [MMM] [YYYY], respectfully asks this Honorable Court to deny ‘[quashMotion]’ (hereinafter “That Motion”).

Key Points:

Grounds	Pertinent facts, Relevant evidence; Standing, Merits

Table of Contents:

Context	2nd Page
Response	3rd Page
Certificates	8th Page
Affidavit	9th Page

Background:	Petitioner propounded discovery

Problem:	Respondent moved to quash the discovery request

Request:	This Court permits the subject discovery

Rule 1.410(c) | Fla. R. Civ. P. | Subpoena

“but the court, on motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive... On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought or the form requested is not reasonably accessible because of undue costs or burden ...the court may nonetheless order discovery... considering the limitations set out in rule 1.280(d)(2)"

§120.569(2)(k) | Florida Statutes | Decisions Which Affect Substantial...

“1. Any person subject to a subpoena may, before compliance and on timely petition, request the presiding officer having jurisdiction of the dispute to invalidate the subpoena on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of irrelevant material.”

Precedence

DOAH Case No. 06-2115	- Case Law (10/26/06)

DOAH Case No. 18-0373	- Case Law (1/22/19)

DOAH rejected similar motions to quash

Abbreviations

[C###]	-	Paragraph ### from The Complaint1/
[M###]	-	Page ### from That Motion2/
[S###]	-	Page ### from The Subpoena3/

RESPONSE

Substantive Facts

Petitioner sued Respondent for employment discrimination on several bases (under §760 FS).

The allegations in his complaint that are most pertinent to this discovery dispute involve:

[adverseAct001] ([CXXX]);

[adverseAct002] ([CXXY]); and

[adverseAct003] ([CXXZ]);

[para001]

[para002]

[para003]

Procedural Facts

On [MMMa] [Da], [YYYYa], [plaintiffPropoundedDiscovery].

On [MMMb] [Db], [YYYYb], [defendantMovedToQuash].

[para004]

[para005]

[para006]

Direct Rebuttal

Respondent’s argument for an order to quash fails for two major reasons: lack of standing and lack of merit.

[discoverableItem001]

[para007] [MXXA]:

“[defQuote001]”

[para008] [MXXXB]:

“[defQuote002]”

This argument fails.

It is well settled that a defendant lacks standing to assert a privilege for a non-party (see Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005)). This is especially true when the defendant – itself - has not “alleged any personal right or privilege with respect to the materials subpoenaed” (see Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)).

[para009]

[para010]

For one, earnings information provides statistical evidence in civil rights litigation. In Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974), the appellate court established that a “prima facie case of discrimination may be established by statistical evidence, and statistical evidence alone”. This element of proof has been reinforced thousands of times over (see Buckley v Hospital Corp. of America, Inc., 758 F.2d 1525 (11th Cir. 1985)).

Secondly – and as Petitioner foretold in his Initial Disclosures – Respondent’s “reckless indifference” to an entire demographic group is grounds for punitive damages (accord 42 USC §1981a(b)).

Thus, Respondent’s argument for quashing [discoverableItem001] lacks both standing and merit.

[discoverableItem002]

[para010] [MXXC]:

“[defQuote003]”

[para011] [MXXD]:

“[defQuote004]”

[para012]

[discoverableItem003]

[para013] [MXXE]:

“[defQuote005]”

[para014] [MXXF]:

“[defQuote006]”

[para015]

[discoverableItem004]

[para016] [MXXG]:

“[defQuote007]”

[para017] [MXXH]:

“[defQuote008]”

As explained in ¶14-16, Respondent lacks standing to assert a non-party’s privilege (also see Trahan v. Sandoz Inc., 2014 WL 12628614, at *3 (M.D. Fla. July 23, 2014)).

[para018]

[discoverableItem005]

[para019] [MXXI]:

“[defQuote009]”

[para020] [MXXJ]:

“[defQuote010]”

[para021]

[discoverableItem006]

[para022] [MXXK]:

“[defQuote011]”

[para023] [MXXL]:

“[defQuote012]”

[para024]

Relevant Evidence

Instead, this Honorable Court should permit the disputed discovery because it will yield relevant evidence. Rule 401 Fed. R. Evid. states that evidence is relevant if “it has a tendency to make a fact more or less probable... and the fact is of consequence”. Moreover, Rule 26(b)(1) Fed. R. Civ. P. permits Petitioner’s discovery because he seeks non-privileged matters proportional to the needs of his case.

Petitioner contends that his [discoverableItems] will help a jury determine the facts laid out in [his/her] Complaint (and amplified by his affidavit).

CONCLUSION

WHEREFORE, Petitioner respectfully asks this Court to deny [quashMotion].

Dated this [D]th day of [MMM] [YYYY].

Respectfully submitted,

/s/ [plfName]

[plfName], Petitioner

[plfAddy]

P: [plfPhn]

E: [plfEml]

W: TextBookDiscrimination.com

Get Booked Up on Justice!

CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of Rule 9.210(a)(2) Fla. R. App. P.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [D] day of [MMM] [YYYY], I electronically filed the foregoing with the Clerk of Courts by using the eALJ system; which will send a notice of electronic filing to the attached service list.

/s/ [plfName]

Endnotes:

1/ The Complaint = “Complaint Against [defName]” (Dkt No. 1).
2/ That Motion = “[quashMotion]” (Dkt No. [NN]).
3/ The Subpoena = ‘[issuedSubpoena]’ (Dkt No. [NN]; Exhibit;).

How-To Guide: (interactive)

TextBookDiscrimination.com/Guides/Responses/Quash.html

SERVICE LIST

[defAtt], Esquire ([barNum]) E: [defEml] P: [defPhn] (defendant’s trial lawyers)

PETITIONER’S AFFIDAVIT

FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

[plfName]	)	Case No (LT)
Petitioner	)	[caseNo]
)
v.	)
)
[defName]	)
Respondent	)

PETITIONER’S AFFIDAVIT IN SUPPORT OF PETITIONER’S RESPONSE TO RESPONDENT’S MOTION TO QUASH

The affiant, [plfName], swears or affirms as follows:

Background

I am over the age of eighteen (18).

I am a plaintiff in the above-captioned case.

This affidavit is made in good faith.

Familiarity

I have read DOAH’s Uniform Rules of Procedure as well as Chapter 60Y from the FCHR’s set of Florida Administrative Codes.

The information in this affidavit is based on my own personal knowledge.

Facts

[pertinentFact001]

[pertinentFact002]

[pertinentFact003]

[pertinentFact004]

[pertinentFact005]

[pertinentFact006]

Verification Under Oath Pursuant to §92.525(1)(c)

Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true to the best of my knowledge and belief.

STATE OF FLORIDA COUNTY OF [countyName]	[D]/[M]/[YYYY]
[plfName], Petitioner/Affiant

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