UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RYAN ZAMLER,

Plaintiff,

Case No. 14-14189

v.

HONORABLE DENISE PAGE HOOD

ASHTON TECHNOLOGIES, INC., 

and ASHTON AUTOMOTIVE 

TESTING, INC., Jointly & Severally,

Defendants.

_________________________________________/

ORDER GRANTING IN PART AND DENYING IN PART

EMERGENCY MOTION TO STAY AND ENJOIN COMPLIANCE

WITH DEFENDANTS’ SUBPOENAS DATED JANUARY 5, 2016

In this religious and national origin discrimination and retaliation action,

Defendants issued subpoenas duces tecum dated January 5, 2016, to Fifth Third Bank

(seeking Plaintiff’s personal bank records), Wonderland Marine West, Inc. (seeking

records from plaintiff’s new employer), the International Jet Sports Boating

Association (seeking records of past work/employment), and the American Power

Boat Association (seeking records of past employment/work), seeking production of

documents at 10:00 a.m. on January 14, 2016. Defendants also issued a suboeana

dated January 5, 2016, to Heath Williams, compelling Mr. Williams to appear for

deposition at 10:00 a.m. on January 14, 2016. 

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On January 7, 2016, Plaintiff filed a motion to quash the above-described

“subpoenas and/or for a protective order precluding enforcement of the subpoenas

because, inter alia, the subpoenas were issued long after the close of the third and

final period of discovery and are thus invalid, the subpoenas relate to a defense which

the defendants never raised in this case, the subpoenas seek irrelevant information and

are intended to merely harass [P]laintiff, and the subpoenas are grossly over-broad.”

(Doc. No. 29) 

On January 11, 2016, Plaintiff filed an Emergency Motion to Stay and Enjoin

Compliance regarding the above-described subpoenas (“Emergency Motion”). (Doc.

No. 30) Defendants have filed a response. The Court, having concluded that the

decision process would not be significantly aided by oral argument, orders that the

motion be resolved on the motion and briefs submitted by the parties. E.D. Mich. L.R.

7.1(f)(2). 

In filing the Emergency Motion, Plaintiff seeks “to prevent the subpoena

recipients from producing the disputed records before the Court can rule on plaintiff’s

motion to quash.” In his barebones brief, Plaintiff does not state why or how

production of information by any of the subpoena recipients will harm or prejudice

him. In their response, Defendants contend that Plaintiff’s Emergency Motion should

be denied for the following reasons: 

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(a) the underlying motion to quash lacks merit because the subpoenas were

all issued as follow-up to Plaintiff’s deposition that took place on

December 22, 2015 (after the close of discovery) and are typical followup subpoenas in employment discrimination cases;

(b) the Emergency Motion is largely moot because Fifth Third Bank and

Wonderland Marine West, Inc. have already produced documents in

response to their respective subpoenas, and International Jet Sports

Boating Association has advised Defendants’ counsel (but not yet

formally responded) that it does not have any responsive documents;

(c) Heath Williams has evaded service and not responded to Defendants’

counsel’s efforts to contact him;

(d) Plaintiff’s counsel was present and objected to questions at Plaintiff’s

deposition regarding the third parties subpoenaed, should have

concluded that the subpoenas at issue would be made, and could have

moved to preclude the subpoenas; and

(e) Plaintiff’s counsel has improperly interfered with at least two of the

subpoena by contacting and telling the recipients, ex parte, that the

subpoenas should not be complied with until the motion to quash is

heard, which Defendants argue is a sanctionable action. Citing Moses v.

Am. Apparel Retail, Inc., 2015 U.S. Dist. LEXIS 103797 (W.D. Tenn.

July 10, 2015); Price v. TransUnion, LLC, 847 F.Supp.2d 788, 794 (E.D.

Pa. 2012); Michigan Rule of Professional Conduct 3.4(a).

Defendants do not indicate whether they have heard or received any communication

or information from American Power Boat Association.

Having reviewed the parties’ briefs, the Court concludes that the relief

requested by Plaintiff in his Emergency Motion is not possible as it relates to any

subpoena recipient that has already complied with the subpoena issued to it. The

Court cannot undo compliance with those subpoenas. Furthermore, Plaintiff has not

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alleged how he will be harmed or prejudiced by any of the subpoenaed being

produced to, and in the possession of, Defendants’ counsel (or the Defendants). The

Court denies the Emergency Motion with respect to those subpoenas for which

compliance has already occurred.

As it relates to any subpoena recipient that has not yet complied with the

subpoena dated January 5, 2016 that it/he received, the Court concludes that the stay

of compliance is warranted because Defendants will suffer no injury while waiting for

the Court to determine whether the subpoenas should be quashed. See, e.g., Harris v.

United States, 413 F.2d 314, 315 (9th Cir. 1969) (citing Reisman v. Caplin, 375 U.S.

440, 449 (1964)). The hearing on whether the subpoenas should be quashed is

scheduled before Magistrate Judge David Grand on January 27, 2016. At that time,

the merits of whether the subpoenas were properly issued, whether Plaintiff’s counsel

improperly interfered with the subpoenas, whether one or both parties should be fined

or sanctioned as it relates to the subpoenas dated January 5, 2016, and any other

related issues, can be addressed. The Court grants the Emergency Motion with respect

to those subpoenas for which compliance has not yet occurred.

Accordingly, for the reasons set forth above, the Court GRANTS IN PART

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AND DENIES IN PART Plaintiff’s Emergency Motion to Stay and Enjoin

Compliance (Doc. No. 30).

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: January 15, 2016

I hereby certify that a copy of the foregoing document was served upon

counsel of record on January 15, 2016, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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