UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

 

Hermes International and Hermes of Paris, Inc.

Plaintiffs, 

v. 

Mason Rothschild 

Defendant. 

CIVIL ACTION NO:

_________________________ 

______________________________________ 

 

NON-PARTIES PRIVE PORTER, LLC AND JEFFERY BERK MOTION TO QUASH 

SUBPOENAS FOR DEPOSITION AND DOCUMENT PRODUCTION

Non-party Prive Porter, LLC (herein Prive Porter) and non-party Jeffery Berk (herein 

Berk) pursuant to Federal Rule of Civil Procedure 45 seek to quash (i) Hermes International and 

Hermes of Paris, Inc. (collectively Hermes) non-party subpoena for deposition directed at Prive 

Porter and (ii) Hermes non-party subpoena for deposition and documents directed at Berk. For 

all the reasons set forth herein, Prive Porter and Berk respectfully request the Court grant this 

Motion to Quash and award these non-parties the fees and costs they have incurred in responding 

to the subpoena and moving to quash. 

Factual Background: 

Prive Porter, LLC is a duly organized Florida limited liability company based out of 

South Florida, for over 10 years. On September 2, 2022, Prive Porter was served with a nonparty “Subpoena to produce documents, information or objects or to permit inspection of 

premises in a civil action” with a deadline of September 16, 2022, in connection with the case 

Hermes International et al v Mason Rothschild 1:22-CV-00384-JSR (SDNY). (Exh. A). On 

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September 9, Prive Porter was served with a separate non-party “Subpoena to Testify at a 

Deposition in a Civil Action” with a scheduled date of September 23, 2022, in the same matter. 

(Exh. B). The only identified location for the attendance of this deposition subpoena is “Via 

Zoom” creating an unknown and unreasonable location for the same to occur, and certainly 

beyond the 100 miles radius of the Southern District of New York.

On September 15, the undersigned conducted a meet and confer with counsel for 

Plaintiff, Gerald Ferguson. During the call, Prive Porter requested that Hermes withdraw the 

subpoena for documents and the subpoena for deposition on Prive Porter. Counsel for Hermes 

noted there was also a second non-party subpoena for production of documents and for 

deposition of non-party Jeffrey Berk, which has not yet been served. (Exh C). The identified

location of this non-party subpoena for Berk is “Via Zoom from 1216 Palm Trl, Delray Beach, 

FL 33483” creating compliance for same to occur in the Southern District of Florida. Upon 

request, counsel for Hermes provided a courtesy copy of same to the undersigned. The 

undersigned represents non-party Jeffrey Berk for the purposes of this Motion to Quash. 

However, Jeffrey Berk has still never been individually served with the non-party subpoena and 

the undersigned did not agree to accept service.

Hermes refuses to withdraw its non-party subpoena for documents to Prive Porter. 

During the meet and confer the undersigned explained that Hermes’ document requests to Prive 

Porter violated the SDNY Court’s Scheduling Order (ECF 48) (Exh. D attached hereto). The 

SDNY Court Order makes clear that all discovery must be complete by September 23. (ECF 48, 

¶D.6). The same Order notes that document requests may not “be served later than 30 days prior 

to the close of discovery....” (ECF 48, ¶D.1). The document requests to Prive Porter, LLC were 

served on September 2, and therefore are in violation of the Court’s Order. Despite this violation 

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of the Court Order, Hermes refused to withdraw its subpoena. 

During the first meet and confer, counsel for Hermes noted that it would provide to the 

undersigned the documents that were already produced by the Defendant. This production of 

documents by Defendant to Hermes regarding Prive Porter, would be given to the undersigned 

for review to allow Prive Porter to compare what documents were in its possession, and to 

identify any that had not been produced by Defendant. Importantly, the subsequent non-party 

production of documents by Prive Porter, matched those already produced by Defendant. 

Specifically, they include 13 totals emails, in a single chain substantially surrounding the 

scheduling of a phone call. Despite the limited universe of documents from Defendant, Hermes 

persisted in requesting these document productions, without any justification or support that 

Defendant failed to produce the full universe of documents related to Prive Porter.

Since Hermes would not withdraw its non-party subpoena for documents, and in an effort 

to streamline this process, Prive Porter served a series of responses and objections regarding a 

number of requests, including specifically Nos. 13-14 (see Exh. E). Although the issuance of the 

non-party subpoenas violated the SDNY Court Order, Prive Porter still acted in good faith 

cooperation by providing responses. Prive Porter incurred an undue burden and served its 

responses and objections noting same, and timely provided to Hermes the limited universe of 

documents between Prive Porter and Defendant Rothschild on September 16.

These subpoena requests also sought an intrusive look into non-party Prive Porter and 

non-party Jeffery Berk’s business(es), wholly unrelated to the actual claims or defenses in the 

underlying litigation. (See Exh. E, including specifically Nos. 13-14). Prive Porter has informed 

Hermes that there are no additional documents responsive to the requests related to 

communications between Defendant and non-party Prive Porter. Regardless, Hermes persists on 

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the document requests propounded against Jeffery Berk as part of his subpoena, despite further 

violations of the Scheduling Order. Hermes never sought relief from the SDNY Court regarding 

extending of the Scheduling Order with regards to discovery matters, including an extension to 

take additional discovery on Defendant or on the non-parties herein. 

On September 19 the undersigned had a second meet and confer with another of 

Plaintiffs’ counsel, Oren Warshavsky, again about the non-parties’ request for Hermes to 

withdraw its subpoenas. During this second meet and confer, the undersigned again noted that 

the depositions could not move forward because of unavailability of the deposition dates that 

were provided (September 22-23, with September 23 being the close of discovery) and therefore 

compliance was not possible. Jeffrey Berk is the Managing Director of Prive Porter, and would 

serve as a corporate representative for a potential deposition. In his capacity as Managing 

Director of Prive Porter, he conducted the email exchange with Defendant. These 

communications with Defendant Rothschild were not done in Berk’s individual capacity. The 

unavailability of Jeffrey Berk as Prive Porter’s representative is directly tied to not being 

physically in Florida or New York during this entire week (September 19-23) due to prior 

obligations and unrelated business activities/meetings in Washington D.C. 

In yet further anticipatory violations of the Scheduling Order, Hermes proposed rescheduling the non-party depositions at a later date, after the close of discovery. However, 

counsel for Hermes confirmed that they had not conducted a deposition of Defendant on these 

documents or topics and refused to do the same. The undersigned requested that Hermes seek 

relief from the SDNY Court for an extension of the discovery period to conduct a continued 

deposition on these documents and topics with Defendant, but Hermes rejected this request. 

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Memorandum of Law 

As this Court recently found in another matter: 

Federal Rule of Civil Procedure 45(d)(3) specifies when a court should, or must, 

quash a subpoena to a third-party. The applicable legal standard depends on the 

nature of the documents called for by the subpoena. As relevant here, a Court 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.” Fed. R. Civ. P. 45(d)(3)(A)(iii), (iv).... The objecting party bears the 

burden of establishing that (1) the requested materials are privileged, otherwise 

legally protected, or confidential research, development, or commercial information 

or that (2) compliance would entail an undue burden.... Rule 45(d)(3) explicitly 

places the burden on the party serving the subpoena to show a substantial need for 

the materials that cannot otherwise be met without undue hardship. 

In re Subpoena Dated June 18, 2020, No. 20-MC-82327-BER, 2021 WL 7540812, at *3 (S.D. 

Fla. Apr. 14, 2021). 

 Although the underlying case is in the SDNY, the appropriate location to bring this 

Motion to Quash is the Southern District of Florida. In fact, supporting case law from SDNY 

explains this instant situation and why the Southern District of Florida is appropriate for handling 

this dispute. 

First, turning to PPL's motion to quash, the Court notes that subsection (d)(3) of Rule 

45 dictates that a motion to quash a subpoena must be timely filed with “the court for 

the district where compliance is required,” not with the issuing court. Fed. R. Civ. P. 

45(d)(3)(A), (B); see also Fed. R. Civ. P. 45(f) advisory committee's note to 2013 

amendment (“Under Rules 45(d)(2)(B), 45(d)(3), and 45(e)(2)(B), subpoena-related 

motions and applications are to be made to the court where compliance is required 

under Rule 45(c).”); KGK Jewelry LLC v. ESDNetwork, No. 11 Civ. 9236 (LTS) 

(RLE), 2014 WL 1199326, at *2 (S.D.N.Y. Mar. 21, 2014). The purpose of this 

requirement is to protect non-parties subject to subpoenas from the burdens of 

litigating in the issuing district rather than in their home district and to ensure 

that the court adjudicating a subpoena dispute has personal jurisdiction over 

the non-party. See Fed. R. Civ. P. 45(f) advisory committee's note to 2013 

amendment (“To protect local nonparties, local resolution of disputes about 

subpoenas is assured by the limitations of Rule 45(c) and the requirements in Rules 

45(d) and (e) that motions be made in the court in which compliance is required 

under Rule 45(c).”); 9 Moore's Federal Practice – Civil § 45.50 (2020) (“The proper 

court in which to file a motion to quash or modify the subpoena is the court for the 

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district where compliance is required ... because a district court must have personal 

jurisdiction over a nonparty to compel compliance with a subpoena.” (citing Fed. R. 

Civ. P. 45(d)(3)(A); Gucci Am., Inc. v. Weixing Li, 135 F. Supp. 3d 87, 93 

(S.D.N.Y. 2015))).

Arrowhead Cap. Fin., Ltd. v. Seven Arts Ent., Inc., No. 14 CIV. 6512 (KPF), 2021 WL 411379, 

at *2 (S.D.N.Y. Feb. 5, 2021)(emphasis added)

As a result, the proper Court in which to file this motion to quash is the Southern District 

of Florida, as compliance with the subpoenas are in this District. Moreover, it must be in this 

District because a district court must have personal jurisdiction over a nonparty to compel 

compliance with a subpoena. See Fed. R. Civ. P. 45(d)(3)(A); see also Arrowhead Cap. Fin., Ltd. 

v. Seven Arts Ent., Inc., No. 14 CIV. 6512 (KPF), 2021 WL 411379, at *2 (S.D.N.Y. Feb. 5, 

2021). The SDNY Court does not have jurisdiction over Prive Porter or Berk for this matter.

Separately, since not properly served, and even if Hermes provides proof of same, the 

subpoena directed at Berk individually does not provide enough time to comply. While Rule 45 

does not expressly provide what “a reasonable time to comply” entails, this district has 

determined that fourteen days is reasonable. Lauderhill Mall Inv., LLC v. Arch Specialty Ins. Co., 

No. 14-CV-21003, 2014 WL 11906637 at *1 (S.D. Fla. July 29, 2014). Rule 45 enables a court 

to quash or modify a subpoena if it requires a person to comply beyond geographical limits, 

which encompasses a 100-mile radius around where such person resides, is employed, or 

regularly transacts business in person. Fed R. Civ. P. 45(d)(3)(A)(ii). See Regueiro v. Am. 

Airlines, Inc., No. 19-CV-23965-JEM, 2022 WL 2359764, at *2 (S.D. Fla. May 19, 2022). 

Undersigned was not even made aware of the Berk subpoena until the first meet and confer call 

on September 15. As a result, the Berk subpoena is not timely under Rule 45. 

Hermes improperly attempts to use the subpoenas to circumvent the SDNY Court’s 

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discovery scheduling Order. “A Rule 45 subpoena duces tecum cannot be used as a form of 

discovery to circumvent deadlines, but may be used to secure the production at trial of original 

documents previously disclosed during discovery.” Antech Diagnostics, Inc. v. Posner, No. 17-

80185-CV, 2017 WL 6948590, at *1 (S.D. Fla. Nov. 14, 2017) citing Puritan Inv. Corp. v. ASLL 

Corp., No. Civ. A. 97-1580, 1997 WL 793569, at *1 (E.D. Pa. Dec. 9, 1997); 9A Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure § 2459 (3d ed. 1998, updated 2013). 

Hermes refusal to seek an extension of time to take discovery and additional deposition 

testimony from Defendant, and instead violate the Court Order and seek it from non-parties is 

improper. 

Non-party Prive Porter and non-party Berk should not suffer the undue burden of these 

discovery efforts that Hermes has tried to schedule for the last two days of the discovery period. 

This District’s local rules provide further clarity on the timing and sequence of the requested 

non-party depositions and requests. “Party and non-party depositions must be scheduled to occur, 

and written discovery requests and subpoenas seeking the production of documents must be 

served in sufficient time that the response is due on or before the discovery cutoff date. Failure 

by the party seeking discovery to comply with this paragraph obviates the need to respond or 

object to the discovery, appear at the deposition, or move for a protective order.” See SDFL

Local Rule 26.1(d), Completion of Discovery. 

Even if these depositions were timely served and set, and even if these non-parties were

available for sitting during such depositions, they would be cumulative and duplicative of 

information that Hermes could and should get from Defendant. Hermes is unable to show a 

substantial need for the materials and information that cannot otherwise be met without undue 

hardship on Prive Porter, especially in light of Hermes unwillingness to seek the information 

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from Defendant first. These non-party discovery requests create an undue burden to be subjected 

to depositions. During each meet and confer, Hermes has not been able to sufficiently articulate 

what is sought to be elicited from these non-parties that would be different information which 

could be obtained from Defendant. In Maxwell v. Health Center of Lake City, No. 3:05-CV1056-J-32MCR, 2006 WL 1627020 (M.D. Fl. June 6, 2006) the defendant in an employment 

case requested plaintiff’s personnel files and health insurance and medical information from 

nonparty providers. As a threshold matter, the court noted generally that “since this matter 

concerns nonparties, the Court should also consider the interests of the nonparties and whether 

Defendant can obtain the information it requests from another source.” Id. at *2 (emphasis 

added). In Aeritas LLC v. Delta Airlines, Inc., No. 1:13–CV–00346–RWS–WEJ, 2013 WL 

454452, at *2 (N.D. Ga. Feb. 7, 2013) the Court stated that absent agreement it would have 

“modified the subpoena...because much of what is sought from non-party NCR should be 

available from one or more of the defendants in the underlying lawsuit.” Accord Brilliant 

Alternatives, Inc. v. Feed Mgmt Sys., Inc., No. 1:09–CV–2348–RWS, 2011 WL 723336, at *6 

(N.D. Ga. Feb. 22, 2011) (denying motion to compel directed to non-party because “the 

Plaintiffs sought much of the same information already requested from the Defendants...”). 

During the meet and confer, counsel for Hermes alleges that it only recently found out 

about these documents and the identification of Prive Porter, upon an alleged late production of 

same from Defendant. Defendant Rothchild’s alleged late production does not, however, shift the 

burden and expense of subjecting non-party Prive Porter and non-party Jeff Berk to untimely 

discovery efforts. As one recent case explained, Plaintiff should have taken up its discovery

concerns with the SDNY Court: “The appropriate recourse for Plaintiff would have been to file a 

timely discovery motion ... Its failure to do so does not excuse it from complying with the 

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requirements of Rule 45, and the decision to quash a subpoena that does not allow a reasonable 

time for compliance under Rule 45(d)(3)(A)(i) is not discretionary.” Dika-Homewood, LLC v. 

Off. Max, Inc., No. 22-MC-80766, 2022 WL 3682214, at *1 (S.D. Fla. June 16, 2022). 

Conclusion:

Non-party Prive Porter, LLC and non-party Jeffery Berk pursuant to Federal Rule of 

Civil Procedure 45 seek to quash (i) Hermes non-party subpoena for deposition directed at Prive 

Porter for September 23 and (ii) Hermes non-party subpoena for deposition and documents 

directed at Berk for September 22. Hermes refuses to seek deposition testimony from Defendant 

Rothschild regarding the alleged communications between Prive Porter and Defendant. Both 

Prive Porter and Berk are unavailable to be deposed on the listed dates and any dates after this 

time period would violate the SDNY Court’s Scheduling Order. The depositions would be 

duplicative and cumulative of testimony from each non-party and that Hermes can and should 

seek from Defendant. Lastly, the separate document requests in association with the unserved 

subpoena to Berk are untimely and would further violate the SDNY Court Scheduling Order. For 

all these reasons the motion to quash should be granted and Prive Porter and Berk should be 

awarded their attorneys fees and expenses in association with bringing this motion. 

L.R. 7.1 CERTIFICATE OF GOOD FAITH CONFERENCE

I HEREBY CERTIFY that that counsel for the movant has conferred twice via telephone 

and via email with all parties or non-parties who may be affected by the relief sought in the motion 

in a good faith effort to resolve the issues raised in the motion, and counsel for Hermes has opposed 

the relief sought herein. 

 

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Date: September 21, 2022 Respectfully Submitted:

By: /s/Darren Spielman

Darren Spielman, Esq. Florida Bar No. 010868

The Concept Law Group, P.A. 

6400 North Andrews Avenue, Suite 500 

Fort Lauderdale, Florida 33309 

(t): (754) 300-1500 

(f): (754) 300-1501 

DSpielman@ConceptLaw.com 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 21 day of September 2022, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 

is being served this day on all counsel of record or pro se parties identified on the attached Service 

List via email.

/s/Darren Spielman

Darren Spielman

Deborah A. Wilcox

Baker & Hostetler LLP

Key Tower

127 Public Square

Ste 2000

Cleveland, OH 44114

216-861-7864

Email: dwilcox@bakerlaw.com

Kevin M Wallace

Baker & Hostetler LLP (NYC)

45 Rockefeller Plaza

New York, NY 10111

(212)-589-4637

Email: kwallace@bakerlaw.com

Lisa Bollinger Gehman

Baker & Hostetler LLP

1735 Market Street

Suite 3300

19103

Philadelphia, PA 19103-7501

215-564-2684

Email: lgehman@bakerlaw.com

Case 9:22-mc-81473-XXXX Document 1 Entered on FLSD Docket 09/21/2022 Page 10 of 12
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Oren J. Warshavsky

Baker & Hostetler LLP (NYC)

45 Rockefeller Plaza

New York, NY 10111

(212)-589-4200

Email: owarshavsky@bakerlaw.com

Gerald Joseph Ferguson

Baker & Hostetler LLP (NYC)

45 Rockefeller Plaza

New York, NY 10111

(212)-589-4238

Fax: (212)-589-4201

Email: gferguson@bakerlaw.com

ATTORNEYS FOR PLAINTIFFS

Christopher Jon Sprigman

Lex Lumina, PLLC

745 Fifth Avenue, Suite 500

10151

New York, NY 10012

434-249-4345

Email: chris@lex-lumina.com

Rhett Owen Millsaps , II

Lex Lumina PLLC

745 Fifth Ave

Ste 500

New York, NY 10151

646-535-1137

Fax: 646-906-8657

Email: rhett@lex-lumina.com

Mark P McKenna

Lex Lumina PLLC

745 Fifth Ave

Ste 500

New York, NY 10151

630-430-8051

Email: mark@lex-lumina.com

Rebecca Tushnet

1575 Massachusetts Ave.

Hauser 520

Case 9:22-mc-81473-XXXX Document 1 Entered on FLSD Docket 09/21/2022 Page 11 of 12
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02138

Cambridge, MA 02138

703-593-6759

Email: rtushnet@lex-lumina.com

ATTORNEYS FOR DEFENDANT

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