Case 3:16-cv-04029-FLW-LHG Document 93-1 Filed 02/27/17 Page 1 of 14 PageID: 3218

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
x
THE OHIO CASUALTY INSURANCE
COMPANY and LIBERTY INSURANCE
UNDERWRITERS, INC.,

Plaintiff, : Civil Action No. 3:16-cv-04029-FLW

-against-

WAL-MART STORES, INC., WAL-MART

TRANSPORTATION, LLC, and ST. PAUL FIRE
& MARINE INSURANCE COMPANY,

Defendants.
x

MEMORANDUM OF LAW IN SUPPORT OF NON-PARTIES

TRACY MORGAN AND ARDLEY FUQUA'S APPEAL FROM
AND OBJECTION TO MAGISTRATE JUDGE'S ORDER

KASOWITZ, BENSON, TORRES

& FRIEDMAN LLP
Seth Davis
David E. Ross
1633 Broadway
New York, New York 10019
Tel: (212) 506-1700

Special Counsel to the Morelli Law Firm

Attorneys for Non-Parties Tracy Morgan
and Ardley Fuqua
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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT 1

BACKGROUND 3

A. Plaintiffs Served Multiple, Duplicative and Burdensome Subpoenas 3

B. Messrs. Morgan and Fuqua Object to the Supboenas, and Subject to Such
Objections, Provide Responsive Documents 3

C. Plaintiffs Continue To Press For Duplicative Discovery 6

ARGUMENT 7

A. Applicable Standards 7

B. Magistrate Goodman's Findings of Fact were Clearly Erroneous Because

Messrs. Morgan and Fuqua Have Produced Responsive Documents 8

C. This Court Should Also Reverse the Order Because the Subpoenas were
Improper and Abusive 9

CONCLUSION 11
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TABLE OF AUTHORITIES

Cases Page(s)

Bayer AG v. Betachem, Inc.,

173 F.3d 188 (3d Cir. 1999) 7

Dart Indus. Co. v. Westwood Chem. Co.,

649 F.2d 646 (9th Cir. 1980) 8

Halpin v. Barnegat Bay Dredging Co., Inc.,

2011 WL 2559678 (D.N.J. June 27, 2011) 9

In re 0 'Keeffe,
646 Fed. App'x. 263 (3d Cir. 2016) 7

Janssen Prod., L.P. v. Lupin Ltd.,

2014 WL 956086 (D.N.J. Mar. 12, 2014) 7

N.J. Physicians United Reciprocal Exch. v. Boynton & Boynton, Inc.,

2014 WL 4352327 (D.N.J. Sept. 2, 2014) 7

Richmond v. Lumisol Elec. Ltd.,

2014 WL 1716447 (D.N.J. April 30, 2014) 7

Tetratec Corp. v. E.I. Dupont De Nemours & Co., Inc.,

1992 WL 202169 (E.D. Pa. Aug. 12, 1992) 7, 8

Thompson v. Glenmede Trust Co.,

1995 WL 752422 (E.D. Pa. Dec. 19, 1995) 8

SAJ Distrib., Inc. v. Sandoz, Inc.,

2008 WL 2668953 (D.N.J. June 27, 2008) 9
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Pursuant to Fed. R. Civ. P. 72 and Local Civil Rule 72.1(c)(1), non-parties Tracy Morgan

and Ardley Fuqua ("Messrs. Morgan and Fuqua") respectfully submit this memorandum of law

in support of their appeal from and objection to the order of Magistrate Judge Lois H. Goodman,

dated January 19, 2017 [Dkt. No. 84].'

PRELIMINARY STATEMENT

Messrs. Morgan and Fuqua were among those severely injured (or killed) in 2014 when a

Wal-Mart tractor-trailer slammed into their vehicle on the New Jersey turnpike. Mr. Morelli and

his law firm represented six plaintiffs in lawsuits arising out of that collision. After filing suit

against Wal-Mart and others in this Court, Messrs. Morgan and Fuqua settled with Wal-Mart in

May 2015. Wal-Mart thereafter sued its insurers, including Ohio Casualty Insurance Company

and Liberty Insurance Underwriters, Inc. ("plaintiffs") in the above-referenced action, seeking

indemnification for their settlements with the injured claimants.

In 2016, plaintiffs served a raft of subpoenas on each of the settling claimants, and on Mr.

Morelli and his law firm as their counsel, and on numerous doctors, managers, agents, lawyers

and financial professionals for Mr. Morgan, among others. Though the subpoenas were palpably

overbroad and improper, and duplicative, and appeared to have been served to harass rather than

obtain needed discovery, Mr. Morelli attempted to work with Mr. Koepff, plaintiffs' counsel, to

narrow the subpoenas and to produce what limited, responsive documents Messrs. Morgan and

Fuqua had to provide. Plaintiffs' counsel has nevertheless abusively sought duplicative

productions from Messrs. Morgan and Fuqua, and their professionals, has wrongly and

outrageously accused Mr. Morelli and Mr. Rozen of filing false affidavits attesting to their lack

of responsive documents, and otherwise conducted a scorched earth campaign against these non-

Submitted herewith is the Declaration of David E. Ross dated February 27, 2017 ("Ross Decl.").
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parties in violation of Rule 45, and norms of appropriate conduct. Notably, Wal-Mart has

produced to plaintiffs all documents exchanged in the underlying personal injury lawsuit

including e-mails with Mr. Morelli regarding the underlying settlements.

By Letter Order dated January 19, 2017, Magistrate Judge Goodman directed Messrs.

Morgan and Fuqua to comply with the subpoenas (the "Order").2 A copy of the Order is Exhibit

A to the Ross Dec1.3 Pursuant to Fed. R. Civ. P. 72 and Local Civil Rule 72.1(c)(1), and for the

reasons set forth below, Messrs. Morgan and Fuqua respectfully appeal from and object to the

Order, and submit that Magistrate Goodman's findings of fact were clearly erroneous, principally

because such findings were based on plaintiffs' misrepresentations that Messrs. Morgan and

Fuqua had not produced any responsive documents, and because the subpoenas violate Rule 45

as they are overbroad, duplicative and harassing. Contrary to plaintiffs' misrepresentations,

Messrs. Morgan and Fuqua have produced responsive documents to plaintiffs, and plaintiffs have

already obtained much -- if not all -- of the documents they claim to need from Wal-Mart's files,

and from Messrs. Morgan and Fuqua's respective medical professionals, as well as Mr.

Morgan's attorneys, agents, and business manager/accountant.

For the foregoing reasons and those set forth below, the Court should reverse the Order

and either strike plaintiffs' subpoenas or deem them satisfied.

2 Magistrate Goodman's Order was decided on submission, without oral argument.

3This appeal and objection is timely asserted within the 14-day period from "service" as provided in Fed. R. Civ. P.
72(a). Though Wal-Mart's counsel informally e-mailed the Order to Mr. Morelli on January 21, 2017, Mr. Morelli
subsequently requested formal service of same, which was effected by mail by Wal-Mart's counsel on February 15,
2017.

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I. BACKGROUND

A. Plaintiffs Served Multiple, Duplicative and Burdensome Subpoenas.

In or about March 2016, plaintiffs began serving subpoenas on certain of the severely

injured victims who had settled with Wal-Mart in 2015. Plaintiffs served duplicative subpoenas

on Messrs. Morgan and Fuqua, and on Jeffrey Millea, Kirsta Millea, Tyrone Gale, and Edward

Walpole. Plaintiffs then served duplicative subpoenas directed to Mr. Morelli and to his law

firm. These subpoenas were served on Mr. Morelli not only at his office but at his home as well,

apparently to harass him. Plaintiffs also served a subpoena on Mr. Rozen, another attorney who

worked with Mr. Morelli on this matter. Plaintiffs also served Mr. Morgan's entertainment

lawyer in Los Angeles, California, who was not involved in the underlying lawsuit. The same

duplicative subpoenas were also served on Mr. Morgan's two agents from Creative Artists

Agency, and his business manager/accountant from ML Management Associates, Inc.

This raft of subpoenas was served in violation of Rule 45. The subpoenas were and

remain duplicative. They were not served to minimize the burden and inconvenience on the

subpoenaed non-parties but rather to magnify the work, burden, duplication and effort required

to respond to them.

B. Messrs. Morgan and Fuqua Object to the Subpoenas, and Subject to Such
Objections, Provide Responsive Documents.

Despite the patent overbreadth, duplicativeness and burdensome nature of the

blunderbuss subpoenas, Mr. Morelli spoke several times with Mr. Koepff, in an effort to explain

the limited nature of the available documents, address the problems with the subpoenas, attempt

to limit their scope, and resolve the issues consensually. See Letter from Benedict Morelli to

Magistrate Goodman dated November 11, 2016, at 1-3; Exhibit B to the Ross Decl.

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Unfortunately, Mr. Koepff has responded in a thoroughly unprofessional manner and has

sought to increase, rather than decrease the burden on Messrs. Morgan and Fuqua. When Mr.

Morelli explained that neither he nor his clients had any responsive e-mails with Wal-Mart and

its counsel relative to the settlements, Mr. Koepff requested that Mr. Morelli and Mr. Rozen

provide declarations to that effect. Messrs. Morelli and Rozen then provided declarations

confirming same, copies of which are Exhibit C to the Ross Decl. However, Mr. Koepff refused

to accept the sworn representations, accusing both attorneys, without any basis, of perjury. A

copy of Mr. Koepff s Letter to Magistrate Goodman dated October 3, 2016 is Exhibit D to the

Ross Decl.

Notwithstanding the evident problems with the subpoenas, beginning in September 2016,

Messrs. Morgan and Fuqua produced the following documents to plaintiffs on a rolling basis:

1. Dr. Wayne Gordon's narrative reports and underlying test data were provided to plaintiffs
on September 16;

2. Signed Health Insurance Portability and Accountability Act ("HIPAA") authorization

forms were provided to plaintiffs before October 7;

3. Medical records from all facilities where treatment was provided (i.e. Robert Wood
Johnson Hospital, JFK Johnson Rehabilitation Institute) were turned over to Wal-Mart
during the underlying lawsuit, which were then provided to plaintiffs; and

4. Tax records from the last three years were provided to Wal-Mart during the underlying
lawsuit, which were then provided to plaintiffs.

Thus, Messrs. Morgan and Fuqua -- either directly or through their professionals, and

through the production Wal-Mart made of documents previously provided by Messrs. Morgan

and Fuqua, or Mr. Morelli as their counsel -- effectively complied with the subpoenas.4

4
Conceding the overbreadth of the original subpoenas, plaintiffs cut them back to the following, and while still
overbroad and duplicative of multiple subpoenas, plaintiffs have received from the various professionals for Messrs.
Morgan and Fuqua all or virtually all of the requested documents that existed and were in their possession: medical
examinations, and the results or views reached in connection with such examinations; proposed life care plan;
federal and state personal tax returns from 2009 through 2014; potential future earnings; earnings from the past five
years prior to the accident; physical or mental examinations done by or on behalf of Wal-Mart; prognosis in

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Plaintiffs have effectively conceded as much. In a letter to Magistrate Goodman dated

January 30, plaintiffs' counsel concedes, "[for the most part, other non-parties have produced

responsive documents in response to the subpoenas, including Tracy Morgan's agents." See

Exhibit F to the Ross Decl.

Thus, plaintiffs admit that they have received the very documents that they continue to

press Messrs. Morgan and Fuqua to produce. For example, plaintiffs obtained, through the

HIPAA authorizations signed by Messrs. Morgan and Fuqua, medical records from all medical

facilities and doctors that treated Messrs. Morgan and Fuqua for injuries related to the collision.

Thus, even if Messrs. Morgan and Fuqua had copies of those records, plaintiffs already have

same and do not need another copy. Likewise, the subpoenas served on Mr. Morgan's agents,

his business manager/accountant, and Messrs. Morgan and Fuqua's attorneys sought financial

records. As those professionals have complied with the subpoenas, even if Messrs. Morgan and

Fuqua had copies of those records, plaintiffs already have those documents and do not need

another copy. This, of course, is in addition to medical records, financial records and disclosures

plaintiffs have already received from the files of Wal-Mart and other non-parties, which Mr.

Morelli and his clients produced to Wal-Mart during the underlying lawsuit.

It is therefore clear that plaintiffs have the records they claim to need, and now are

pursuing these subpoenas for harassment. Even when plaintiffs have received a production, they

have complained that it was "paltry." Ross Decl., Exhibit F at 1. Rule 45 does not give

plaintiffs license to make Messrs. Morgan and Fuqua turn their lives inside out to satisfy

recovering from injuries; and Mr. Morgan's post-settlement national television appearance(s), operation of a
Lamborghini in midtown Manhattan, and his ability to walk around New York, A copy of plaintiffs' counsel's e-
mail, dated September 13, 2016, limiting the subpoenas is Exhibit E to the Ross Decl.

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plaintiffs' unreasonable and duplicative demands. A rule of reason, and a sense of

proportionality, must be applied.

C. Plaintiffs Continue To Press For Duplicative Discovery.

Despite the good faith efforts of Messrs. Morgan and Fuqua, and of Mr. Morelli as their

counsel, reasonably to comply with the subpoenas, plaintiffs have continued their oppressive

pursuit of duplicative discovery. Plaintiffs' conduct has included misrepresentations to

Magistrate Goodman. For example, on at least two occasions, plaintiffs represented to

Magistrate Goodman that neither Morgan nor Fuqua have produced any responsive documents.

On October 3, 2016, plaintiff represented to the court that "no documents have been produced."

Ross Decl., Exhibit D at 1. And on November 9, in a declaration, plaintiff represented that "not

a single responsive document has been produced in response to this subpoena" by either Morgan

or Fuqua. A copy of Mr. Koepff's declaration is Exhibit G to the Ross Decl.

These representations were false. By both dates, plaintiffs had at least received Dr.

Gordon's narrative reports and underlying test data as well as signed HIPAA authorization forms

for Messrs. Morgan and Fuqua. In addition to making misrepresentations to Magistrate

Goodman, plaintiffs' unprofessional and improper conduct extended to outrageous accusations

of perjury against Messrs. Morgan and Fuqua's attorneys, as detailed above.

Now, it appears that plaintiffs' sole complaint is that they have yet to receive "over 150

emails exchanged with Walmart's lawyers and documents provided to Walmart's lawyers" as

part of the underlying lawsuit. Ross Decl., Exhibit F at 1-2. However, as Mr. Morelli has made

clear, neither Mr. Morgan nor Mr. Fuqua are in possession of these e-mails. Furthermore,

plaintiffs admit they already have those very e-mails in any event: "Wal-Mart previously

produced to us approximately 143 emails that were exchanged between Wal-Mart and Mr.

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Morelli with respect to the settlement of Tracy Morgan's claims." Ross Decl., Exhibit G at 6.

Additionally, plaintiffs have admitted that "Wal-Mart previously produced to us approximately

34 emails that were exchanged between Wal-Mart and Mr. Rozen with respect to the settlement

of Tracy Morgan's claims." Id. at 7.

On November 9, 2016, plaintiffs moved to compel production of the subpoenaed

documents. [Dkt. No. 69]. On November 11, Mr. Morelli, on behalf of Messrs. Morgan and

Fuqua, submitted a letter in opposition to plaintiffs' motion, including objecting to the subpoenas

on various grounds. Ross Decl., Exhibit B. On November 16, plaintiffs filed a reply to the letter

in opposition. [Dkt. No. 77]. On January 19, 2017, Magistrate Goodman issued the Order

finding that Messrs. Morgan and Fuqua had failed timely to assert written objections to the

subpoenas, and thus had waived them, and in any event, found that the subpoenas were proper,

and ordered compliance therewith.

IL ARGUMENT

A. Applicable Standards.

This Court reviews a Magistrate Judge's findings of fact for clear error. See Janssen

Prod., L.P. v. Lupin Ltd., 2014 WL 956086, at *2 (D.N.J. Mar. 12, 2014) (reversing magistrate

judge's order under clearly erroneous standard). A Magistrate Judge's finding of fact is clearly

erroneous when, "although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and film conviction that a mistake has been committed." Id. at

*3; Richmond v. Lumisol Elec. Ltd, 2014 WL 1716447, at *2 (D.N.J. April 30, 2014) (reversing

magistrate judge's order under clearly erroneous standard). "An abuse of discretion arises when

the [lower] court's decision rests upon a clearly erroneous finding of fact . . .". In re 0 'Keeffe,

646 Fed. App'x. 263, 265 (3d Cir. 2016).

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A subpoena served under Rule 45 must fall within the scope of proper discovery under

Fed. R. Civ. P. 26(b)(1). See N.J. Physicians United Reciprocal Exch. v. Boynton & Boynton,

Inc., 2014 WL 4352327, at *3 (D.N.J. Sept. 2, 2014). The right to discovery is not unlimited and

may be circumscribed. See Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). Non-

parties are "afforded greater protection from discovery than a normal party." N.J. Physicians,

2014 WL 4352327, at *3; see also Tetratec Corp. v. EZ Dupont De Nemours & Co., Inc., 1992

WL 202169, at *1 (E.D. Pa. Aug. 12, 1992) ("When ruling on discovery motions, courts have

held that non-parties are entitled to greater protection than parties."). Federal courts have

imposed broader restrictions on the scope of discovery when a non-party is targeted. See

Thompson v. Glenmede Trust Co., 1995 WL 752422, at *4 (E.D. Pa. Dec. 19, 1995); Dart Indus.

Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980).

B. Magistrate Goodman's Findings of Fact were Clearly Erroneous Because

Messrs. Morgan and Fuqua Have Produced Responsive Documents.

In the Order, Magistrate Goodman relied on plaintiffs' misrepresentations that Messrs.

Morgan and Fuqua had not produced any responsive documents. Magistrate Goodman's factual

findings were clearly erroneous because Messrs. Morgan and Fuqua have produced documents

that were responsive to plaintiffs' subpoenas. Not only had Messrs. Morgan and Fuqua produced

the very documents they were ordered to produce, but so have the other non-parties, in addition

to Wal-Mart.

Even plaintiffs concede that they are already in possession of the very documents they

seek to obtain from Messrs. Morgan and Fuqua. For example, plaintiffs concede that other non-

parties have produced documents responsive to their subpoenas concerning the medical history

of Messrs. Morgan and Fuqua. Ross Decl., Exhibit F at 2. Through the HIPAA authorization

forms provided by Messrs. Morgan and Fuqua, plaintiffs "have gotten documents from a number

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of doctors and hospitals that treated the claimants in the Morgan Action." Id. Plaintiffs have

also been advised by JFK Johnson Rehabilitation Institute that responsive documents will be

produced. Id. Also, the e-mails that plaintiffs continue to claim they need, they already possess,

as Wal-Mart long ago produced them to plaintiffs. Ross Decl., Exhibit G at 6-7.

Accordingly, Magistrate Goodman's findings of fact premised on the conclusion that

Messrs. Morgan and Fuqua had failed directly or indirectly to produce responsive documents,

were clearly erroneous. See SAJ Distrib., Inc. v. Sandoz, Inc., 2008 WL 2668953, at *1 (D.N.J.

June 27, 2008) (plaintiff's motion to compel discovery was denied because defendant already

produced the data requested in the subpoenas).

Clearly, a "mistake" has been committed here warranting reversal of the Order, as the

subpoenas have effectively been complied with and plaintiffs cannot establish that they need this

duplicative discovery. Janssen, 2014 WL 956086 at *3.

C. This Court Should Also Reverse the Order Because the Subpoenas were
Improper and Abusive.

The Order states "even if some of the information sought were already in plaintiffs'

possession, or were available from other sources, this does not prevent plaintiff from ascertaining

what documents are in the possession of Mr. Morgan and Mr. Fuqua." Ross Decl., Exhibit A at

2. In that regard, the Order conflicts with Fed. R. Civ. P. 26(b)(2)(C)(i) which provides that a

Court must limit the frequency or extent of discovery when it is "unreasonably cumulative or

duplicative, or can be obtained from some other source that is more convenient, less

burdensome, or less expensive." See SAJ Distrib., 2008 WL 2668953, at *3 ("The Court notes

that while the discovery rules are liberal in nature and parties are entitled to broad discovery,

discovery is not a never-ending proposition.")

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Here, as detailed above, the subpoenas to Messrs. Morgan and Fuqua are unreasonably

cumulative and duplicative. Plaintiffs already have the medical records and financial records

they claim to need. As such, the subpoenas are plainly duplicative, and thus should be stricken.

See Halpin v. Barnegat Bay Dredging Co., Inc., 2011 WL 2559678, at *12 (D.N.J. June 27,

2011) ("A subpoena is considered unduly burdensome when the court finds that it is

unreasonable or oppressive.").

This Court should not permit plaintiffs to continue to misuse the subpoena process to

harass Messrs. Morgan and Fuqua. Even though plaintiffs have received the same responsive

documents from one, two or more, of the non-parties, plaintiffs have persisted in seeking the

identical discovery from Messrs. Morgan and Fuqua.

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CONCLUSION

For the foregoing reasons, Messrs. Morgan and Fuqua respectfully request this Court

reverse the Order and either strike plaintiffs' subpoenas or deem them satisfied.

Dated: February 27, 2017

New York, New York

Respectfully submitted,

KASOWITZ, BENSON, TORRES

& FRIEDMAN LLP

By: /s/ Seth Davis

Seth Davis (sdavis@kasowitz.com)
David E. Ross (dross@kasowitz.com)

1633 Broadway
New York, New York 10019
Tel: (212) 506-1700

Special Counsel to the Morelli Law Firm

Attorneys for Non-Parties Tracy Morgan and
Ardley Fuqua

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