NYC Medical Practice, P.C. v. Shokrian

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NYC MEDICAL PRACTICE, P.C. d/b/a

GOALS AESTHETICS & PLASTIC

SURGERY and NYC MEDICAL

PRACTICE IP HOLDINGS, CORP.,

Plaintiffs, MEMORANDUM

AND ORDER

-against- 19 CV 162 (RPK)(RML)

DAVID SHOKRIAN; DAVID SHOKRIAN

P.C. (a New York Professional Corporation);

MILLENNIAL PLASTIC SURGERY, PLLC;

(a New York Professional Limited Liability

Company); FARAI MAKONI; IRINA

KHAIMOVA; EUROPEAN BEAUTY

CENTER; EBC PLASTIC SURGERY; ISIS

RICHARDSON; SURGERY 411 (a fictitious

Instagram profile); CHRISMARY

RODRIGUEZ; NATASHA LOBRANO;

JOHN DOES 1-50; and BUSINESS

ENTITIES A-K,

Defendants.

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LEVY, United States Magistrate Judge:

Defendant Isis Richardson (“Richardson”) moves to quash a subpoena served on

Instagram, Inc. (“Instagram”), a third party, by plaintiffs NYC Medical Practice P.C., d/b/a Goals

Aesthetics and Plastic Surgery, and NYC Medical Practice IP Holdings Corp. (“plaintiffs”). I

heard oral argument on October 1, 2019 and subsequently requested additional information from

Richardson. (See Transcript of Hearing, dated Oct. 1, 2019 (“Tr.”), Dkt. No. 83; Minute Entry,

dated Oct. 9, 2019.) For the reasons explained below, Richardson’s motion is granted.

BACKGROUND AND FACTS

Plaintiffs commenced this action on January 9, 2019, asserting twenty-three

federal and state causes of action against eleven defendants. (See Complaint, dated Jan. 8, 2019,

Dkt. No. 1.) Relevant to the instant motion is plaintiffs’ claim that Richardson defamed them

through content posted on the Instagram profile “Surgery411.”1 (See id. ¶¶ 79-88.) On

September 10, 2019, plaintiffs served a subpoena on Instagram seeking information pertaining to

four accounts that they believe are linked to Richardson: (1) Surgery411, (2) Simplyice, (3)

Surgery411backup, and (4) Silkroyalty.2 (Plaintiffs’ Opposition to Motion to Quash, dated Sept.

29, 2019 (“Pls.’ Opp.”), Dkt. No. 81.) As to each account, plaintiffs request “[d]ocuments

showing all permissible subscriber information” from December 7, 2018 to the present, including

the following:

a. The email address associated with the profile;

b. The IP address or addresses used between December 7, 2018

and present day to log into the profile;

c. The names and email addresses associated with any and all

“administrator” users or profiles;

d. The names and dates of all direct communications between

each Instagram profile identified and all other individuals from

December 7, 2018 to present day;

e. All “direct message” information, including but not limited to

the sender, the receiver, and the date of all correspondences.

1 Early in this litigation, Richardson denied being the operator of Surgery411, though her more

recent filings and testimony appear to admit that, at a minimum, she founded and has written for

Surgery411. (See, e.g., Motion to Quash, dated Sept. 27, 2019, Dkt. No. 77, at 3 (“Ms.

Richardson has written articles [for Surgery411] based on confidential source information[.]”);

Affidavit of Isis Richardson, sworn to Oct. 25, 2019 (“Richardson Aff.”), Dkt. No. 89, at 1 (“I

started Surgery411 in 2015 via the social media platform Instagram.”).)

2 Of the four subpoenaed accounts, only Silkroyalty remains active as of this writing.

Richardson has opened a new account, “surgery411gangmain,” which appears to be virtually

identical to the original Surgery411 account. Since Instagram may still hold the metadata

plaintiffs seek, I find that the deletion of these accounts has not mooted Richardson’s motion.

(Instagram Subpoena, annexed as Ex. A to Pls.’ Opp, at 4-5.) On September 27, 2019,

Richardson, who is representing herself in this litigation, moved to quash the subpoena, citing

the journalist’s privilege. (See Motion to Quash, dated Sept. 27, 2019 (“Mot. to Quash”), Dkt.

No. 77.) She claims to have written posts for Surgery411 based on information received from

confidential sources, whose identities she seeks to protect. 3 (Id. at 3-4.) I stayed the subpoena

pending a ruling on Richardson’s motion and plaintiffs agreed to hold without review any

documents received prior to my ruling.4 (See Order, dated Sept. 28, 2019; Letter of Joshua M.

Lurie, Esq., dated Sept. 28, 2019, Dkt. No. 80.)

DISCUSSION

The threshold issue presented by this motion is whether Richardson has standing

to quash a subpoena served on a third party—Instagram. “A party generally lacks standing to

challenge a subpoena issued to a third party absent a claim of privilege or a proprietary interest

in the subpoenaed matter.” United States v. Nachamie, 91 F. Supp. 2d 552, 558 (S.D.N.Y.

2000). Standing has also been found where the movant “has a sufficient privacy interest in the

confidentiality of the records sought.” ADL, LLC v. Tirakian, No. 06 CV 5076, 2007 WL

1834517, at *2 (E.D.N.Y. June 26, 2007); see also Solow v. Conseco, Inc., No. 06 CV 5988,

2008 WL 190340, at *3 (S.D.N.Y. Jan. 18, 2008) (“While Rule 45 speaks of objections to

subpoenas being asserted by the person commanded to produce and permit inspection of the

subpoenaed documents, it is well-established that a party with a real interest in the documents

3 While the subpoenaed information would not necessarily reveal the legal names of the

individuals who communicated with Surgery411, it would reveal their Instagram usernames.

(See Tr. at 24:16-25:9.) This would be identifying in cases where the individual uses his or her

legal name as part of his or her Instagram username.

4 I reserved judgment on Richardson’s motion pending other motion practice in this case,

including plaintiffs’ motion to amend the complaint. I issued an Order and Report and

Recommendation on that motion on June 16, 2020.

has standing to raise objections to their production. . . . Thus, courts have recognized that parties

with a privacy interest in subpoenaed documents have standing to oppose the subpoena.”). In

this case, Richardson seeks to invoke the journalist’s privilege in order to establish standing with

respect to Surgery411 and the related account Surgery411backup.5

Both the Second Circuit and the state of New York recognize a form of

journalist’s privilege. See Gonzales v. Nat’l Broad. Co., 194 F.3d 29, 32 (2d Cir. 1999) (“This

circuit has long recognized the existence of a qualified privilege for journalistic information.”);

New York Shield Law (the “Shield Law”), N.Y. CIVIL RIGHTS LAW § 79–h, et seq. “[A]sserted

privileges in actions that raise both federal and pendent state law claims are governed by the

principles of federal law,” though the court may also consider the applicable state law and the

policies that underlie it. In re McCray, Richardson, Santana, Wise, and Salaam Litig., 928 F.

Supp. 2d 748, 753 (S.D.N.Y. 2013) (citing FED. R. EVID. 501); accord von Bulow by Auersperg

v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Schoolcraft v. City of New York, No. 10 CV

6005, 2014 WL 1621480, at *4 (S.D.N.Y. Apr. 22, 2014); Persky v. Yeshiva Univ., No. 01 CV

5278, 2002 WL 31769704, at *2 (S.D.N.Y. Dec. 10, 2002). Courts have found that the policies

underlying the state and federal articulations of the journalist’s privilege are “congruent.” See In

re McCray, 928 F. Supp. 2d at 753 (quoting von Bulow, 811 F.2d at 144); Schoolcraft, 2014 WL

1621480, at *4. Since the complaint in this case raises both federal and state law claims, the

laws of the Second Circuit govern Richardson’s motion.6

5 According to Richardson, she created Surgery411backup in 2019 in order to preserve the

content posted on the main Surgery411 page, in the event that posts were flagged for removal.

(See Richardson Aff. at 3.)

6 I further note that, while the discovery plaintiffs seek is most obviously relevant to the

defamation claim, plaintiffs’ counsel indicated at the July 15, 2020 status conference that the

information they seek could also be used to support current or future claims under the Racketeer

(Continued . . . )

In the Second Circuit, a journalist has a “qualified evidentiary privilege for

information gathered in a journalistic investigation.” Chevron Corp. v. Berlinger, 629 F.3d 297,

306 (2d Cir. 2011); see also Gonzales, 194 F.3d at 32; In re Petroleum Prods. Antitrust Litig.,

680 F.2d 5, 7-8 (2d Cir. 1982); Baker v. F & F Inv., 470 F.2d 778, 782-83 (2d Cir. 1972). There

is some debate as to whether this privilege is derived from the First Amendment or from federal

common law.7 See Gonzales, 194 F.3d at 35 n.6; Schiller v. City of New York, 245 F.R.D. 112,

118 (S.D.N.Y. 2007); Mandal v. City of New York, No. 02 CV 1234, 2004 WL 2375817, at *3

(S.D.N.Y. Oct. 21, 2004). Regardless, the privilege arises from “concern for the potential harm

to the ‘paramount public interest in the maintenance of a vigorous, aggressive and independent

press capable of participating in robust, unfettered debate over controversial matters.’”

Gonzales, 194 F.3d at 33 (quoting Baker, 470 F.2d at 782).

Whether an individual qualifies as a “journalist” for the purpose of invoking the

privilege is determined based on intent and activity. See von Bulow, 811 F.2d at 142; see also

Clay Calvert, And You Call Yourself a Journalist?: Wrestling with a Definition of “Journalist”

in the Law, 103 DICKINSON L. REV. 411, 419 (1999) (describing the von Bulow test as having

“two prongs--an activity element and an intention element.”). The individual claiming the

privilege bears the burden of “demonstrat[ing], through competent evidence, the intent to use

material—sought, gathered or received—to disseminate information to the public and that such

Influenced and Corrupt Organizations Act (“RICO”). This court previously recommended the

denial of a motion to amend to add a RICO extortion claim on the basis that the claim was

against Richardson alone and a single person may not constitute an association-in-fact enterprise.

(See Report and Recommendation, dated June 16, 2020, Dkt. No. 100, at 5-7.) Plaintiffs’

counsel indicated that the subpoenaed information could be used as the basis for a second motion

to amend to add this claim. The information sought is, therefore, potentially relevant to both

federal and state law claims.

7 Without making any findings as to the origins of the privilege, I will refer to it herein as the

“First Amendment privilege” for ease.

intent existed at the inception of the newsgathering process.” von Bulow, 811 F.2d at 144.

Accordingly, “an individual successfully may assert the journalist’s privilege if he [or she] is

involved in activities traditionally associated with the gathering and dissemination of news, even

though he [or she] may not ordinarily be a member of the institutionalized press.” Id. at 142.

The individual claiming the privilege must additionally establish the independence of his or her

journalistic process. See Berlinger, 629 F.3d at 309-10.8

Surgery411 is an Instagram page started by Richardson in 2015, which posts

reviews and other information pertaining to the various players in the plastic surgery industry,

including both doctors and “recovery houses.”9 (Richardson Aff. at 1.) According to her sworn

affidavit, Richardson’s motivation for creating the page was her own negative experience with a

recovery house after traveling to undergo a procedure. (Id.) After determining that there was

8 Long before the advent of social media, a handful of district courts interpreted von Bulow to

require the proponent of the privilege to be “professionally engaged in newsgathering.” See In re

Pan Am Corp., 161 B.R. 577, 580 (S.D.N.Y. 1993); Don King Prods., Inc. v. Douglas, 131

F.R.D. 421, 424 (S.D.N.Y. 1990). I respectfully disagree with this interpretation, especially in

light of changes to the way news is gathered and disseminated in our current landscape. von

Bulow is clear that “protection from disclosure may be sought by one not traditionally associated

with the institutionalized press” and that “the talisman invoking the journalist’s privilege is intent

to disseminate to the public at the time the gathering of information commences.” 811 F.2d at

144-145. The von Bulow test is a functional one and I read it to apply to any individual who

engages in activities traditionally associated with newsgathering and who does so with the

requisite intent at inception. Berlinger adds the requirement that the proponent of the privilege

establish his or her independence. 629 F.3d at 309-310. I read neither case to exclude amateurs

who otherwise meet these requirements. By way of example, multiple courts have held the

privilege to apply to student journalists. See, e.g., Persky, 2002 WL 31769704, at *2 n.1

(distinguishing between the federal privilege, which does not require that the proponent be a

professional journalist, and the Shield Law, which does); Blum v. Schlegel, 150 F.R.D. 42, 45

(W.D.N.Y. 1993) (noting that “whether a person is a professional journalist is irrelevant” in

applying the federal privilege).

9 Per Richardson’s affidavit, a recovery house is a business that employs nurses and other staff to

care for plastic surgery patients following their procedures. (Richardson Aff. at 1.) They appear

to operate primarily in connection with medical tourism. (See id.)

little information available on the Internet as to the quality of these service providers, she

“decided to create a source of free reliable information to prevent patients from being hurt[.]”

(Id.) Richardson describes herself as a “watchdog,” holding the industry accountable and

helping lower and middle income women access information about the safety and reputation of

service providers prior to undergoing a procedure.10 (Tr. at 16:19-24; Richardson Aff. at 2.)

Reviews are submitted to Richardson on the promise of confidentiality and are

frequently posted anonymously. (Richardson Aff. at 1-2; Tr. at 14:22-15:3, 17:1-4.) Before

posting a review, Richardson requests that the reviewer submit a receipt so that she can verify

that the reviewer actually received a service from the individual or entity that is the subject of the

review. (Richardson Aff. at 2.) Providers may not pay to have negative reviews removed. (Id.)

Richardson has additionally partnered with doctors providing safe and reliable services, who

make themselves available to answer patient questions on the platform. (Id.)

On these facts, I have no trouble concluding that Richardson has met the intent

prong of the von Bulow test with respect to Surgery411 and Surgery411backup. Her sworn

testimony establishes that she founded and maintains Surgery411 for the express purpose of

gathering and disseminating information to the public, in order to protect people from

unscrupulous doctors and recovery houses. Accordingly, I find that she had the requisite intent,

at the requisite time.

It is a closer question whether Richardson is involved in the types of “activities

traditionally associated with the gathering and dissemination of news.” von Bulow, 811 F.2d at

142. Richardson has alternately described Surgery411 as a blog and as a review site, akin to

10 Plaintiffs, for their part, take a very different view of what Richardson does, describing her as

“at best, an amateur muckraker or gossiping individual,” who operates a “gripe page.” (See Pl.’s

Opp. at 5.)

Yelp or Google Reviews. (See Mot. to Quash at 3; Richardson Aff. at 3.) In some cases, the

reviews posted on Surgery411 are merely screenshots of text messages or Instagram direct

messages written by a third party—the reviewer. See Surgery411gangmain (@surgery411

gangmain), INSTAGRAM, https://www.instagram.com/surgery411gangmain/?hl=en (last visited

Aug. 20, 2020). On the other hand, many of the posts do contain commentary and there is

evidence that Richardson exercises some degree of editorial discretion over what appears on the

site through her verification process. In this way, Surgery411 is different from a site like Yelp,

which simply provides a platform for user-created content with little moderation, and is more

akin to a blog. 11 Regardless of the analogy Richardson chooses to describe what she does, I find

that she is serving an informative function akin to that of the press, insofar as she has created a

platform that she uses to collect and publish information for public consumption, and thus has

met the activity prong of the vonBulow test.

In Berlinger, the most recent Second Circuit case to clarify the definition of

“journalist,” the court rejected documentary filmmaker Joe Berlinger’s claim of privilege where

the evidence showed that he had been solicited by the lead counsel in a high-profile class action

“to create a documentary of the litigation from the perspective of his clients” and had

“removed at least one scene from the final version of [the film] at their direction.” 629 F.3d at

305. In rejecting Berlinger’s claim of privilege, the court explained that:

[w]hile freedom of speech and of the press belongs to virtually

anyone who intends to publish anything (with a few narrow

exceptions), all those who intend to publish do not share an equal

11 Richardson’s chosen medium—Instagram—is furthermore irrelevant to the analysis. See von

Bulow, 811 F.2d at 144 (“The intended manner of dissemination may be by newspaper,

magazine, book, public or private broadcast medium, handbill or the like, for ‘[t]he press in its

historic connotation comprehends every sort of publication which affords a vehicle of

information and opinion.’”) (quoting Lovell v. Griffin, 303 U.S. 444, 452 (1938)).

entitlement to the press privilege from compelled disclosure. Those

who gather and publish information because they have been

commissioned to publish in order to serve the objectives of others

who have a stake in the subject of the reporting are not acting as an

independent press. Those who do not retain independence as to

what they will publish but are subservient to the objectives of

others who have a stake in what will be published have either a

weaker privilege or none at all.

Id. at 307-08. Thus, in evaluating an individual’s activities to determine whether he or she may

invoke the privilege, the court must ask not only whether the individual is acting in the role of

the press (and doing so with the requisite intent, at the requisite time), but also whether he or

she is acting in “the role of the independent press.” Id. at 307.

In this case, there is no evidence that Richardson has been solicited or

commissioned to advance a particular point of view in the way that Berlinger had been. While

the reviews posted on Surgery411 are, of course, from the perspective of patients, this is not in

itself disqualifying. There is no evidence that Richardson is paid to publish posts from a

particular perspective or that she removes content at the direction of anyone else. To the

contrary, there is evidence that she has a policy against removing negative posts for pay.12 (See

Richardson Aff. at 2.) Accordingly, I find that the concerns regarding independence that were

at issue in Berlinger are not present here and that Richardson has presented sufficient indicia of

independence to avail herself of the privilege.

This motion raises novel issues regarding the application of the journalist’s

privilege in the Internet age. Though the court could find no precedent contemplating these

precise facts, two cases from other jurisdictions prove instructive. In Blumenthal v. Drudge, the

12 The fact that she has partnered with doctors (Richardson Aff. at 2) is further evidence that she

is not simply the mouthpiece of the disgruntled customer, but rather that she has sought to

include a variety of perspectives from within the industry.

District of D.C. held that Matt Drudge, the operator of the online gossip column “The Drudge

Report,” could invoke the First Amendment privilege in order to protect the identities of the

sources of allegedly defamatory information he had posted. 186 F.R.D. 236, 244 (D.D.C. 1999).

Similarly, in O’Grady v. Superior Court, a case involving the alleged misappropriation of

Apple’s trade secrets, the California Court of Appeal reversed the denial of a protective order in

favor of the operators of various “online news magazines” dedicated to Apple products. 44 Cal.

Rptr. 3d 72, 76-77 (Cal. Ct. App. 2006). In analyzing the applicability of the First Amendment

privilege to the website operators, the court explained:

we can see no sustainable basis to distinguish petitioners from the

reporters, editors, and publishers who provide news to the public

through traditional print and broadcast media. It is established

without contradiction that they gather, select, and prepare, for

purposes of publication to a mass audience, information about

current events of interest and concern to that audience.

Id. at 106.

While the law in this Circuit is clear that the privilege does not apply to all those

who intend to publish, it is simultaneously clear that the privilege is not limited to members of

the credentialed press. See Berlinger, 629 F.3d at 307; von Bulow, 811 F.2d at 142. Instead,

the test in this Circuit is a functional one, permitting an individual to avail him or herself of the

privilege where he or she is acting in a role akin to that of the independent press and doing so

with the requisite intent at inception. See id. I hold, on the facts of this case, that Richardson

meets these requirements with respect to Surgery411 and Surgery411backup. Plaintiffs have

presented no compelling arguments to the contrary, resting solely on the argument that

Richardson may not avail herself of the Shield Law because she is not a professional journalist.

(See Pls.’ Opp. at 4-6.) Indeed, plaintiffs have failed to address the First Amendment privilege

in their briefing at all.13

My holding that Richardson may invoke the journalist’s privilege with respect to

Surgery411 and Surgery411backup does not bring an end to the analysis, as the First

Amendment privilege is not absolute and may be overcome by plaintiffs. The showing

necessary to overcome the privilege depends on whether the information sought is confidential

or non-confidential, with a more stringent standard applying in the former scenario. If the

information is confidential, the opponent of the privilege must make a clear and specific showing

that the information is (1) highly material and relevant; (2) necessary or critical to the

maintenance of the claim; and (3) not obtainable from other available sources. Petroleum Prods.,

680 F.2d at 7. If the information is non-confidential, the opponent of the privilege need only

show that the materials are (1) of likely relevance to a significant issue in the case and (2) not

reasonably obtainable from other available sources. Gonzales, 194 F.3d at 36. The proponent of

the privilege carries the burden of demonstrating that the information was conveyed in

confidence. See Berlinger, 629 F.3d at 310.

In this case, Richardson has stated in her sworn affidavit that reviews are

submitted on the promise of confidentiality and that many of her sources would not submit

13 Richardson, for her part, cites to both the First Amendment and the Shield Law as forming the

basis of the privilege she seeks to invoke. (See Mot. to Quash.) Unlike plaintiffs, however,

Richardson is pro se. The Second Circuit has instructed that pro se litigants are to be afforded

“special solicitude,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), and their submissions

are to be “construed liberally and interpreted to raise the strongest arguments that they suggest,”

Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis removed)

(citations and internal quotation marks omitted). In this case, I find that Richardson’s briefing

clearly suggests an argument that she should be considered a journalist eligible to invoke some

form of the journalist’s privilege. I decline to penalize a pro se defendant for failing to identify

with specificity which body of privilege law should apply.

reviews if they believed their identities would be revealed. (Richardson Aff. at 1-2) I therefore

find that Richardson has established the confidentiality of the information sought and that the

more stringent standard set forth in Petroleum Products applies. Because plaintiffs have not

briefed the First Amendment privilege, let alone the issue of whether it has been overcome, I find

that they have not met their burden under this standard. Accordingly, Richardson’s motion to

quash is granted as to Surgery411 and Surgery411backup.

The other two accounts that are the subject of plaintiffs’ subpoena, Simplyice and

Silkroyalty, do not appear to have any connection to Richardson’s journalistic activities on

Surgery411—Simplyice is a personal account that Richardson opened in 2013, when she was an

undergraduate, and Silkroyalty is an account dedicated to beauty and hair products.14 (See

Richardson Aff. at 3-4.) While the journalist’s privilege does not apply to these accounts, I

find that Richardson has a sufficient privacy interest in the metadata pertaining to her personal

communications on these accounts to confer standing.15 See Solow, 2008 WL 190340, at *4

(finding standing based on “the personal and sensitive nature of the information sought”).

14 The court has viewed Silkroyalty and notes that it does not, on its face, contain any references

to Surgery411. See Silkroyalty (@silkroyalty), INSTAGRAM, https://www.instagram.com/

silkroyalty/ (last visited Aug. 20, 2020). As discussed above, Simplyice does not appear to be an

active account any longer; therefore the court was unable to view it.

15 Even if standing to quash did not exist, the court has an obligation to limit irrelevant discovery

and may do so sua sponte. See FED. R. CIV. P. 26(b)(2)(C) (“On motion or on its own, the court

must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule

if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be

obtained from some other source that is more convenient, less burdensome, or less expensive; (ii)

the party seeking discovery has had ample opportunity to obtain the information by discovery in

the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).”);

FED. R. CIV. P. 26(b)(1) (“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[.]”); see also

Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (where standing had not

been established, upholding trial court’s order quashing a third party subpoena because the

(Continued . . . )

Having determined that standing exists, the court must “weigh[] the relevance or

probative value of the documents being sought against the privacy interest[] [Richardson] has

asserted.” Id. In this case, the information sought has virtually no relevance to the claims at

hand. Plaintiffs’ subpoena seeks information as to whom Richardson communicated with and

when on accounts with no relation to Surgery411.16 This is a textbook example of a fishing

expedition. Not only is the request invasive and disproportionate to the needs of the case, but

plaintiffs make no attempt to explain the information’s relevance, other than by reference to the

fact that the accounts are each connected to Richardson. (See Pl.’s Mem. at 3); see also Pratt v.

Indian River Cent. Sch. Dist., No. 09 CV 411, 2012 WL 13172929, at *3 (N.D.N.Y. Dec. 13,

2012) (“In the first instance, the party seeking discovery bears the burden to establish

relevance.”). Accordingly, I find that the relevance of the information is outweighed by

Richardson’s interest in privacy as to her personal communications on accounts unrelated to

Surgery411. Richardson’s motion to quash as to Simplyice and Silkroyalty is therefore granted.

information sought “had no relevance to the main issues in the case”); Kiobel v. Royal Dutch

Petroleum Co., No. 02 CV 7618, 2009 WL 1810104, at *5 n.10 (S.D.N.Y. June 25, 2009) (“[A]

court must limit discovery sua sponte if the court determines that the discovery meets any of the

Rule 26(b)(2)(C) criteria.” (emphases in original)).

16 As discussed above, plaintiffs seek, inter alia, “[t]he names and dates of all direct

communications between each Instagram profile identified and all other individuals from

December 7, 2018 to present day” and “[a]ll ‘direct message’ information, including but not

limited to the sender, the receiver, and the date of all correspondences.” (See Instagram

Subpoena, at 4-5.) While this information may not, in each instance, reveal the legal name of the

individual with whom Richardson communicated, it would reveal his or her Instagram username.

(See Tr. at 24:16-25:9.) This would be identifying where the individual uses his or her legal

name as part of his or her Instagram username, as many Instagram users do.

CONCLUSION

For the reasons stated above, Richardson’s motion to quash is granted as to all

four subpoenaed Instagram accounts. The parties are directed to submit a proposed joint

schedule for completing discovery within fourteen days of the date of this Memorandum and

Order.

SO ORDERED.

Dated: Brooklyn, New York

August 25, 2020

/s/

ROBERT M. LEVY

United States Magistrate Judge