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UNITED STATES DISTRICT COURT

[courtDistrict], [courtDivision]

[plfName]	)	Case No (LT)
Plaintiff	)	[caseNo]
)
v.	)
)
[defName]	)
Defendant	)

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO QUASH

Plaintiff, [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:	Plaintiff propounded discovery

Problem:	Defendant moved to quash the discovery request

Request:	This Court permits the subject discovery

Rule 26(b)(1) | Fed. R. Civ. P. | Discovery Scope and Limits

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case”

Rule 45(d)(3) | Fed. R. Civ. P. | Subpoena Enforcement

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash...”

Precedence

2:18-cv-00826-JLB-NPM	- USFLMD (8/17/20)

USFLMD recently denied a motion to quash

Abbreviations

[C###]	-	Paragraph ### from The Complaint1/
[M###]	-	Page ### from That Motion2/
[S###]	-	Page ### from The Subpoena3/
USFLMD	-	US District Court, Florida, Middle District

RESPONSE

Substantive Facts

Plaintiff sued Defendant for employment discrimination on several bases (under 42 USC §1981, 42 USC §2000, §760 FS, etc.).

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

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

Thus, Defendant’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, Defendant 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 Plaintiff’s discovery because he seeks non-privileged matters proportional to the needs of his case.

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

CONCLUSION

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

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

Respectfully submitted,

/s/ [plfName]

[plfName], Plaintiff

[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 Local Rule 1.05(a).

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 its online filing page. I also emailed it 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)

PLAINTIFF’S AFFIDAVIT

UNITED STATES DISTRICT COURT

[courtDistrict], [courtDivision]

[plfName]	)	Case No (LT)
Plaintiff	)	[caseNo]
)
v.	)
)
[defName]	)
Defendant	)

PLAINTIFF’S AFFIDAVIT IN SUPPORT OF PLAINTIFF’S RESPONSE TO DEFENDANT’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 the Local Rules of Court, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the Middle District’s Discovery Handbook.

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

Facts

[pertinentFact001]

[pertinentFact002]

[pertinentFact003]

[pertinentFact004]

[pertinentFact005]

[pertinentFact006]

Verification Under Oath Pursuant to 28 USC §1746

I declare under penalty of perjury that the foregoing is true and correct. Executed on this [D]th day of [MMM] [YYYY].

UNITED STATES OF AMERICA	[D]/[M]/[YYYY]
[plfName], Plaintiff/Affiant

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