KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L. CITIGROUP CENTER, 27TH FLOOR, 201 SO. BISCAYNE BLVD., MIAMI, FL 33131

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:20-cv-23185-GAYLES

FABRIZIO DELLA POLLA,

 Plaintiff,

vs.

ALEXANDER PALENCIA,

Defendant.

_________________________________________/

PROPERTY MARKET GROUP, INC.’S MOTION TO QUASH OR MODIFY

FABRIZIO DELLA POLLA’S SUBPOENA DUCES TECUM

Non-Party, PROPERTY MARKETS GROUP, INC. (“PMG”), through undersigned 

counsel and pursuant to Fed. R. Civ. P. 45, hereby serves this Motion to Quash or Modify

Plaintiff, FABRIZIO DELLA POLLA’s Subpoena Duces Tecum (the “Subpoena”)1, and states 

as follows:

INTRODUCTION

The Subpoena seeks expansive records from PMG, a non-party. Defendant, 

ALEXANDER PALENCIA (“Palencia”), has moved to dismiss Plaintiff’s Amended Complaint, 

with prejudice [D.E. 17] and to stay discovery [D.E. 19] (collectively, the “Motions”). The

Motions are fully briefed and pending before the Court. While the Subpoena seeks expansive 

records from PMG over a nine (9) year period, the Court’s rulings on the Motions may narrow 

the scope of the Subpoena, or if either motion is granted, obviate or delay the need for PMG to 

produce documents. This is especially appropriate given that Defendant has objected to engaging 

 

1 The Subpoena, a copy of which is attached as Exhibit 1, was served on PMG on November 4, 

2020. Plaintiff agreed to provide PMG with a fourteen (14) day extension through and until 

December 2, 2020 for its response.

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in any discovery, including Fed. R. Civ. P. 26(a) disclosures which are likely to comprise the 

information sought form PMG, until resolution of the motion to dismiss. [D.E. 19]. In the interest 

of efficiency, preserving resources, and undue burden, PMG should not be required to produce 

documents, if at all, until the Court rules on the Motions (and PMG’s objection). Further, the 

Subpoena seeks documents protected by the attorney-client privilege.

Accordingly, this Court should modify or quash the Subpoena.

MEMORANDUM OF LAW

As set forth in Palencia’s Motion to Stay Discovery Pending Ruling on His Dispositive 

Motion to Dismiss and Memorandum of Law in Support [D.E. 19 at pp. 2-3], discovery may be 

stayed pending ruling on a motion to dismiss which is dispositive or likely to narrow the issues. 

Chudasama v. Mazda Motor Corp., 123 F. 3d 1353, 1367–68 (11th Cir. 1997) (“Facial 

challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss based on a 

failure to state a claim for relief, should . . . be resolved before discovery begins”); accord

McCullough v. Royal Caribbean Cruises, Ltd., No. 16-cv-20194, 2017 U.S. Dist. LEXIS 4057, 

at *3 (S.D. Fla. Jan. 11, 2017) (Gayles, J.); Fondo de Proteccion Soc. de Los Depositos 

Bancarios v. Diaz Reus & Targ, LLP, No. 16-cv-21266, 2016 U.S. Dist. LEXIS 195324, at *2 

(S.D. Fla. Dec. 29, 2016) (Torres, Mag. J.); Solar Star Sys., LLC v. BellSouth Telcomms., Inc., 

No. 10-cv-21105, 2011 U.S. Dist. LEXIS 38150, at *2 (S.D. Fla. Mar. 20, 2011) (Moreno, J.).

Fed. R. Civ. P. 45(d)(3) states that the “court for the district where compliance is required 

must quash or modify a subpoena that ... (iii) requires disclosure of privileged or other protected 

matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” 

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KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L. CITIGROUP CENTER, 27TH FLOOR, 201 SO. BISCAYNE BLVD., MIAMI, FL 33131

PMG has contemporaneously served its objection to the Subpoena based upon, in 

pertinent part, attorney-client privilege and undue burden.

2 The Subpoena seeks expansive 

documents and communications regarding persons and entities related to multiple real estate 

projects over a nine (9) year period, which necessarily includes communications between PMG’s 

representatives and its counsel. Indeed, in order to comply with the Subpoena, PMG will be 

required to search four (4) email custodians, one of which is an in-house lawyer for PMG. There 

are substantial communications subject to the attorney-client privilege. Fla. Stat. § 90.502(2) (“A 

client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the 

contents of confidential communications when such other person learned of the communications 

because they were made in the rendition of legal services to the client”).

Compliance with the Subpoena requires substantial electronically stored information 

searches for communications and documents over a nine (9) year period. Four (4) of the real 

estate projects at issue are active developments and there are likely thousands of emails and 

records. PMG will incur substantial inconvenience and expense in order to conduct those 

searches, review, and produce documents. Whatley v. World Fuel Servs. Corp., No. 20-20993-

MC, 2020 WL 2616209, at *3 (S.D. Fla. May 22, 2020) (Torres, Mag. J) (“Further, if the person 

to whom the document request is made is a non-party, the court may also consider the expense 

and inconvenience to the non-party”); Accord Fed. R. Civ. P. 26(b)(1) (balancing relevance and 

proportionality). If the Motions are denied, Plaintiff should be required to proceed first with 

seeking the subject records from Palencia before PMG is required to undertake the 

inconvenience and expense of the substantial search, review, and production process. Production 

of responsive records by Palencia would obviate or reduce the undue burden upon non-party 

 

2 A copy of PMG’s response to the Subpoena is attached as Exhibit 2. PMG hereby incorporates 

by reference its objection to the Subpoena.

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KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L. CITIGROUP CENTER, 27TH FLOOR, 201 SO. BISCAYNE BLVD., MIAMI, FL 33131

PMG. At a minimum, production by PMG should be conditioned upon compensation for the 

expense associated with compliance with the Subpoena. Fed. R. Civ. P. 45(d)(2)(B)(ii) (“If an 

objection is made ... [t]hese acts may be required only as directed in the order, and the order 

must protect a person who is neither a party nor a party's officer from significant expense 

resulting from compliance”).

WHEREFORE, Non-Party, PROPERTY MARKETS GROUP, INC., respectfully 

requests that this Court enter an Order quashing or modifying the subject subpoena, and for such 

other and further relief in favor of PMG as this Court deems just and proper.

CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)

Counsel for the movant has conferred with Plaintiff’s counsel in a good faith effort to 

resolve the issues raised in the motion and has been unable to do so.

Respectfully submitted,

By:/s/ Josh M. Rubens

Josh M. Rubens, Esq.

Fla. Bar No. 77603

KLUGER, KAPLAN, SILVERMAN, 

KATZEN & LEVINE, P.L.

Citigroup Center, 27th Floor

201 South Biscayne Boulevard

Miami, Florida 33131

Telephone: (305) 379-9000

Facsimile: (305) 379-3428

Email: jrubens@klugerkaplan.com

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KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L. CITIGROUP CENTER, 27TH FLOOR, 201 SO. BISCAYNE BLVD., MIAMI, FL 33131

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 2, 2020, a true and correct copy of the 

foregoing was filed and served via CMF/ECF on all counsel of record.

By: /s/ Josh M. Rubens___

Josh M. Rubens, Esq.

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