Preview
BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 3 Trans ID: LCV20222888509
Philip A. Goldstein, Esq. (NJ Bar # 025732001)
MCGUIREWOODS LLP
1251 Avenue of the Americas, 20th Floor
New York, New York 10020
(212) 548-2167
pagoldstein@mcguirewoods.com
Attorney for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick
JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
Plaintiff,
Civil Action
-against- Docket No. BER-L-004241-18
NOTICE OF MOTION TO QUASH AND
P. GREGORY HESS, et al., FOR PROTECTIVE ORDER
Defendants. Motion Date: August 26, 2022
Oral Argument Requested if Motion Contested
TO: Jeffrey A. Bronster, Esq. Robert T. Gunning, Esq.
17 Wendell Place Morrison Mahoney, LLP
Fairview, New Jersey 07022 Waterview Plaza
jbronster@bronsterlaw.com 2001 US Highway 46, Suite 200
Attorneys for Plaintiff Parsippany, New Jersey 07054
rgunning@morrisonmahoney.com
Attorneys for Defendants
PLEASE TAKE NOTICE that on August 26, 2022, at 9:00 a.m., or as soon thereafter as
the matter can be heard, non-parties Merrill Lynch, Pierce, Fenner & Smith Incorporated
(“Merrill”), on behalf of itself and its employee William Bulick (“Mr. Bulick”) and Mr. Bulick,
by and through their undersigned attorneys, will move before the Superior Court of New Jersey,
Law Division, Bergen County, at the Courthouse located at the Bergen County Justice Center, 10
Main Street, Hackensack, New Jersey 07601, before the Honorable Robert C. Wilson, J.S.C., for
a Protective Order, pursuant to R. 1:9-2 and 4:10-3, (i) prohibiting Plaintiff from seeking testimony
from Mr. Bulick before his scheduled appearance at trial pursuant to the Subpoena ad
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Testificandum dated July 5, 2022 (“Second Subpoena”), and quashing the document requests in
the Second Subpoena, or in the alternative, narrowing the scope of the Second Subpoena, and, to
the extent Plaintiff seeks ESI, requiring that Plaintiff: (1) identify custodians and date ranges for
the requested ESI; (2) discuss with undersigned counsel proposed search terms; and (3) bear the
costs of the ESI search; (ii) granting Merrill and Mr. Bulick the costs and fees incurred in
connection with this Motion, including attorney’s fees; and (iii) granting all such other, further or
different relief which the Court deems just and proper.
PLEASE TAKE FURTHER NOTICE that in support of this motion, Merrill and Mr.
Bulick shall rely on the accompanying: (1) Memorandum of Law, which contains the grounds for
the relief sought; (2) Certification of Philip A. Goldstein, and the exhibits annexed thereto; and (3)
all prior pleadings and proceedings in this action. A proposed form of Order pursuant to R. 1:6-2
is submitted herewith.
PLEASE TAKE FURTHER NOTICE that, pursuant to R. 1:6-3, answering papers, if
any, shall be filed and served not later than eight (8) days prior to the return date of this motion.
PLEASE TAKE FURTHER NOTICE that Merrill and Mr. Bulick request oral argument
if this motion is contested.
PLEASE TAKE FURTHER NOTICE that the undersigned counsel for Merrill and Mr.
Bulick certifies that confidential personal identifiers have been redacted from documents
submitted herewith to the Court, and will be redacted from all documents submitted in the future
in accordance with R. 1:38-7(b).
The trial date for this matter is September 19, 2022. The Discovery End Date was January
31, 2021. No pre-trial conference, arbitration proceeding, mediation, or calendar call has been set.
No prior application for the above requested relief has been previously submitted.
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CERTIFICATION OF NO OTHER ACTIONS
I certify that this dispute is not the subject of any other action pending in any other court
or a pending arbitration proceeding to the best of my knowledge and belief. Also, to the best of
my knowledge and belief, no other action or arbitration proceeding is contemplated other than the
relief that is sought herein. Further, other than the parties set forth in the Complaint, I know of no
other parties that should be made a part of this lawsuit. In addition, I recognize my continuing
obligation to file and serve on all parties and the court an amended certification if there is a change
in the facts stated in this original certification.
DESIGNATION OF TRIAL COUNSEL
Pursuant to R. 4:25-4, be advised that Philip A. Goldstein has been designated as trial
counsel on behalf of Merrill and Mr. Bulick in the above captioned matter.
Dated: New York, New York
August 9, 2022
MCGUIREWOODS LLP
By: /s/ Philip A. Goldstein
Philip A. Goldstein (NJ Bar ID # 025732001)
1251 Avenue of the Americas, 20th Floor
New York, New York 10020-1104
Phone: (212) 548-2167
Fax: (212) 548-2150
Email: pagoldstein@mcguirewoods.com
Attorneys for Non-Parties Merrill Lynch, Pierce,
Fenner & Smith Incorporated and William Bulick
163017704_1
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JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
Plaintiff,
Civil Action
-against- Docket No. BER-L-004241-18
[PROPOSED] ORDER GRANTING
P. GREGORY HESS, et al., MOTION TO QUASH AND FOR
PROTECTIVE ORDER
Defendants.
This matter having been opened to the Court by McGuireWoods LLP, attorneys for non-
parties Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”), on behalf of itself and its
employee William Bulick (“Mr. Bulick”) and Mr. Bulick, pursuant to R. 1:9-2 and 4:10-3 for an
Order (i) prohibiting Plaintiff Joseph Villani (“Plaintiff”) from seeking testimony from Mr. Bulick
before his scheduled appearance at trial pursuant to the Subpoena ad Testificandum dated July 5,
2022 (“Second Subpoena”), and quashing the document requests in the Second Subpoena, or in
the alternative, narrowing the scope of the Second Subpoena, and, to the extent Plaintiff seeks ESI,
requiring that Plaintiff: (1) identify custodians and date ranges for the requested ESI; (2) discuss
with undersigned counsel proposed search terms; and (3) bear the costs of the ESI search; (ii)
granting Merrill and Mr. Bulick the costs and fees incurred in connection with this Motion,
including attorney’s fees, and it appearing to the Court that due notice of this Motion has been
given to all counsel, and the Court having considered all documents on file and the motion papers
submitted by the parties, and for good cause shown;
IT IS on this __ day of _____________, 2022,
1. ORDERED that Motion brought by Merrill Lynch, Pierce, Fenner & Smith
Incorporated, on behalf of itself and its employee William Bulick, and by Mr. Bulick, is
GRANTED; and it is further hereby
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2. ORDERED that Plaintiff is prohibited from seeking testimony from Mr. Bulick
before his scheduled appearance at trial; and it is further hereby
3. ORDERED that the document requests in the Second Subpoena are quashed; and
it is further hereby
4. ORDERED that within ___ days of the date this Order is uploaded to eCourts,
Plaintiff shall pay Merrill and Mr. Bulick the costs and fees incurred in connection with this
Motion, including attorney’s fees; and it is further hereby
5. ORDERED that a true copy of this Order shall be deemed served upon all counsel
of record by the Court’s filing of same to eCourts. Counsel for Merrill and Mr. Bulick shall serve
a copy of this Order upon any party of record who was not served by eCourts within ___ days of
receipt of this Order.
____________________________
Hon. Robert C. Wilson, J.S.C.
Opposed ______
Unopposed ______
Appearances By:
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Philip A. Goldstein, Esq. (NJ Bar ID # 025732001)
McGuireWoods LLP
1251 Avenue of the Americas, 20th Floor
New York, NY 10020
Tele: (212) 548-2167
Fax: (212) 548-2150
pagoldstein@mcguirewoods.com
Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated
and William Bulick
JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
Plaintiff,
DOCKET NO: BER-L-004241-18
v.
Civil Action
P. GREGORY HESS, et al.,
CERTIFICATION OF PHILIP A.
Defendants. GOLDSTEIN IN SUPPORT OF MOTION
TO QUASH AND FOR PROTECTIVE
ORDER
I, Philip A. Goldstein, an attorney at law duly admitted to practice before the Courts of the
State of New Jersey, hereby certify the following to be true under penalty of perjury:
1. I am Counsel with the law firm McGuireWoods LLP, and I represent non-parties
Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”) and William Bulick (“Bulick”)
in connection with this action. The facts set forth below are of my own personal knowledge, and
if called upon as a witness, I could and would testify competently to such facts.
2. I am a member in good standing of the Bar of the State of New Jersey and duly
admitted to practice law in the courts of the State of New Jersey and the United States District
Court for the District of New Jersey pursuant to R. 1:21-1. I was admitted to practice law in
New Jersey in 2001. My New Jersey State Bar Identification Number is 025732001. I provide
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this Certification in connection with Merrill and Mr. Bulick’s Motion to Quash and/or for
Protective Order.
3. On or about May 22, 2022 Plaintiff issued a Subpoena ad Testificandum (the
“Initial Subpoena”) personally to Mr. Bulick, requiring his appearance as a witness on June 27,
2022 at 9:00 a.m. (Ex. A, Initial Subpoena).
4. On June 13 and June 21, 2022, counsel for Merrill and Plaintiff discussed a plan
for Mr. Bulick’s appearance at trial the week of July 4, 2022. The week of July 4, 2022 worked
for both Mr. Bulick and undersigned counsel’s schedules. Plaintiff’s counsel then requested that
Mr. Bulick be made available for a conference call to review his knowledge of the facts related
to Decedent and Decedent’s interactions with Defendant.
5. On a call with Plaintiff’s counsel on June 23, 2022, I explained that Merrill
employees are prohibited from disclosing clients’ non-public financial information absent a
subpoena or court order. I also explained that Merrill had no objection to making Mr. Bulick
appear at the mutually agreed upon date and time at trial the week of July 4, 2022. I discussed
with counsel that he can provide scope of testimony topics, questions, and documents to relay to
Mr. Bulick in preparation of his testimony. Counsel provided proposed exhibits for Mr. Bulick
which included select emails with Gregory Hess. (Ex. B, email dated June 24, 2022).
6. On June 24, 2022, counsel for Plaintiff and I had another call during which
issuing counsel threatened to require Mr. Bulick to appear on June 27, 2022 at the first day of
trial unless Plaintiff’s counsel could informally interview Mr. Bulick. Plaintiff’s counsel made
this threat even though: (1) Mr. Bulick would not testify on June 27, 2022, (2) I informed issuing
counsel that I was unavailable on June 27, 2022, and (3) Plaintiff’s counsel previously agreed
that Mr. Bulick would be called to testify the week of July 4, 2022.
7. The trial was adjourned to commence on September 19, 2022.
8. In an email dated July 5, 2022, Plaintiff’s counsel has threatened to request a
hearing in limine to declare Mr. Bulick a “hostile witness” if he is not made available to be
interviewed by counsel. (Ex. C, email dated July 5, 2022).
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9. On July 5, 2022, Plaintiff’s counsel issued a second Subpoena ad Testificandum
(the “Second Subpoena”). (Ex. D, Second Subpoena). The Second Subpoena calls for: (1) Mr.
Bulick’s appearance at trial on September 19, 2022, and (2) the production of documents going
back over ten years.
10. On July 20, 2022, Merrill served its objections to the Second Subpoena. (Ex. E,
Ltr. to Plaintiff’s Counsel). Merrill does not object to Mr. Bulick’s appearance at trial; however,
Merrill objects to the document production in the Second Subpoena because Mr. Bulick is not
the custodian of records for Merrill. Merrill also outlined its objections to the vague and
overbroad requests for documents in the Second Subpoena and objected to the extent they
impose an undue burden on Merrill, a non-party.
11. Finally, Plaintiff’s requests in the Second Subpoena related to electronically
stored information (“ESI”) are not reasonably accessible to Merrill. See Ex. E (Ltr. to Plaintiff’s
Counsel). To the extent the documents requested are available, once the data is retrieved, it must
be processed by a Merrill discovery vendor, at substantial cost to Merrill. Additionally,
collecting and searching large volumes of custodian ESI can take several weeks, with several
more weeks necessary to review and produce any search term and date culled documents.
12. Attached hereto as Exhibit F are true and correct copies of the unpublished case(s)
cited in the accompanying Memorandum of Law: (1) Dotson v. Edmonson, No. 16-15371, 2017
U.S. Dist. LEXIS 159571, (E.D. La. Sept. 8, 2017); and (2) Meade v. Cardinale & Jackson
Crossing Assocs., LLC, No., No. A-3358-11T1, 2013 N.J. Super. Unpub. LEXIS 203 (App. Div.
Jan. 31, 2013).
I certify under penalty of perjury that the foregoing statements made by me are true. I am
aware that if any of the foregoing statements made by me are willfully false, I am subject to
punishment.
Executed on August 9, 2022 in Beach Haven, New Jersey.
s/ Philip A. Goldstein
Philip A. Goldstein
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JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
Plaintiff,
DOCKET NO: BER-L-4241-18
v.
Civil Action
P. GREGORY HESS, et al.,
Defendants.
NON-PARTIES MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
AND WILLIAM BULICK’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO
QUASH AND FOR PROTECTIVE ORDER
Philip A. Goldstein, Esq. (NJ Bar ID # 025732001)
McGuireWoods LLP
1251 Avenue of the Americas, 20th Floor
New York, NY 10020
Tele: (212) 548-2167
Fax: (212) 548-2150
pagoldstein@mcguirewoods.com
Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated
and William Bulick
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TABLE OF CONTENTS
Page
I. INTRODUCTION ............................................................................................................. 1
II. FACTUAL AND PROCEDURAL BACKGROUND....................................................... 2
III. ARGUMENT ..................................................................................................................... 4
A. Legal Standard ....................................................................................................... 4
B. This Court Should Issue a Protective Order Prohibiting Counsel from
Seeking Testimony or Conversations from Bulick Prior to Trial .......................... 4
C. The Court Should Quash the Document Production Request in the Second
Subpoena ................................................................................................................ 5
1. The Subpoena Improperly Seeks Documents from a Non-
Custodian. .................................................................................................. 5
2. The Second Subpoena Is Overly Broad And Unduly Burdensome. .......... 7
D. Merrill Should Not Be Required To Bear The Expense Of An ESI Search. ......... 7
IV. CONCLUSION .................................................................................................................. 9
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TABLE OF AUTHORITIES
Page(s)
Cases
Beckwith v. Bethlehem Steel Corp.,
440 A.2d 1372 (N.J. Sup. Ct. Ch. Div. 1981) ............................................................................8
Berrie v. Berrie,
457 A.2d 76 (N.J. Super. Ct. Ch. Div. 1983) .............................................................................7
Brex v. Smith,
146 A. 34 (N.J. Ch. 1929) ..........................................................................................................5
Dotson v. Edmonson,
No. 16-15371, 2017 U.S. Dist. LEXIS 159571 (E.D. La. Sept. 8, 2017) ..................................6
Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A.,
333 N.J. Super. 291 (App. Div. 2001) .......................................................................................1
Gerling Int’l Ins. Co. v. Comm’r,
839 F.2d 131 (3d Cir. 1988).......................................................................................................6
Greenblatt v. New Jersey Bd. of Pharmacy,
214 N.J. Super. 269 (App. Div. 1986) .......................................................................................4
Hirl ex rel. Hirl v. Bank of America, N.A.,
401 N.J. Super. 573 (N.J. Super. Ct. App. Div. 2008)...............................................................5
Kerr v. Able Sanitary & Env. Servs., Inc.,
295 N.J. Super. 147 (App. Div. 1996) .......................................................................................4
In re Kuntz,
124 S.W.3d 179 (Tex. 2003)......................................................................................................6
Learning Connections, Inc. v. Kaufman,
280 F.R.D. 639 (M.D. Fla. 2012)...............................................................................................6
Meade v. Cardinale & Jackson Crossing Assocs., LLC,
No. A-3358-11T1, 2013 N.J. Super. Unpub. LEXIS 203 (App. Div. Jan. 31,
2013) ..........................................................................................................................................1
Roth v. First Nat. State Bank of New Jersey,
169 N.J. Super. 280 (1979) ........................................................................................................5
Spaeth v. Srinivasan,
403 N.J. Super. 508 (App. Div. 2008) .......................................................................................1
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State v. Cooper,
2 N.J. 540, 67 A.2d 298 (1949)..................................................................................................4
Trenton Renewable Power, LLC v. Denali Water Solution, LLC,
269 A.3d 519 (N.J. Super. Ct. App. Div. 2022).........................................................................8
Twiss v. State,
591 A.2d 913 (N.J. 1991)...........................................................................................................5
Statutes
15 U.S.C. § 6801 ..............................................................................................................................4
15 U.S.C. § 6802(e)(8) .....................................................................................................................4
15 U.S.C. § 6809(4)(A)....................................................................................................................4
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Non-parties Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”) on behalf of
itself and its employee William Bulick (“Mr. Bulick”) and Mr. Bulick, through the undersigned,
respectfully submit this memorandum of law in support of their motion to quash and/or for a
protective order pursuant to R. 1:9-2 and 4:10-3.
I. INTRODUCTION
Neither Merrill nor Mr. Bulick are parties to this case. Rather, Merrill and Mr. Bulick are
neutral third-parties that have no stake in the outcome of this litigation. Merrill was simply the
custodian of accounts held by the Decedent Benny Villani. Mr. Bulick is an employee of Merrill.
There are no substantive allegations asserted against Merrill or Mr. Bulick in this matter. 1
Counsel for Merrill and Mr. Bulick had meet and confer discussions and exchanged
correspondence with issuing counsel for Plaintiff in a good faith effort to avoid the necessity of
bringing this Motion. In a bizarre series of events, issuing counsel initially agreed upon a mutually
agreeable time for Mr. Bulick to testify at trial the week of July 4, 2022 in response to a trial
witness subpoena with an appearance date of June 27, 2022. However, on the eve trial, issuing
counsel reneged on that agreement and insisted that Mr. Bulick and undersigned counsel appear
on June 27 (even though Mr. Bulick would not be called to testify that day and undersigned counsel
was not available) unless undersigned counsel permitted issuing counsel to interview and prepare
1
There are no claims alleged against Merrill or its employees, including Mr. Bulick, and Merrill remains
a non-party to the underlying lawsuit. To the extent that there were claims, however, those claims are subject
to mandatory arbitration and Merrill expressly reserves the right to file a motion to compel arbitration.
Under New Jersey law, filing an answer or a pre-answer motion to dismiss does not waive this right to
compel arbitration. See, e.g., Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 333 N.J.
Super. 291, 296 (App. Div. 2001) (“The mere filing of a complaint or an answer to the complaint is not a
waiver of arbitration. The court has the power, any time before judgment, to refer the dispute to
arbitration.”); Spaeth v. Srinivasan, 403 N.J. Super. 508, 516-17 (App. Div. 2008) (finding that the
defendant did not waive arbitration despite not raising arbitration as an affirmative defense); Meade v.
Cardinale & Jackson Crossing Assocs., LLC, No., No. A-3358-11T1, 2013 N.J. Super. Unpub. LEXIS 203,
at *15-16 (App. Div. Jan. 31, 2013) (affirming the trial court’s ruling that the filing of a motion to dismiss
did not result in waiver of the right to arbitration).
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Mr. Bulick prior to being called as a trial witness. Mr. Bulick is a neutral witness that issuing
counsel never sought to depose during discovery.
Ultimately, the trial date was continued and counsel has now issued a second trial subpoena
to Mr. Bulick. However, this time, the trial subpoena, which is directed personally to Mr. Bulick,
is extraordinarily overbroad and includes requests for Merrill account records, and emails going
back over a decade, none of which were sought during discovery in this case. Undersigned counsel
informed issuing counsel that to obtain Merrill records, he will need to issue a subpoena to the
custodian of records for Merrill. Undersigned counsel even offered to check with Merrill to see
whether it would authorize accepting service of such a subpoena via email. Issuing counsel has
declined the offer and now insists that Mr. Bulick personally produce Merrill records, which is
improper.
While undersigned counsel has made every effort to avoid unnecessary motion practice,
issuing counsel’s actions are harassing and burdensome and Merrill and Mr. Bulick seek the
protection of the Court.
II. FACTUAL AND PROCEDURAL BACKGROUND
On or about, May 22, 2022, Plaintiff issued a Subpoena ad Testificandum (the “Initial
Subpoena”) personally to Mr. Bulick, requiring his appearance at trial as a witness starting June
27, 2022 at 9:00 a.m. See Goldstein Cert. ¶ 3, Ex. A (“Initial Subpoena”). On June 13 and June
21, 2022, counsel for Merrill and Plaintiff discussed a plan for Mr. Bulick’s appearance at trial the
week of July 4, 2022. See Goldstein Cert. ¶ 4. The week of July 4, 2022 worked for both Mr.
Bulick and undersigned counsel’s schedules. Issuing counsel then requested that Mr. Bulick be
made available for a conference call to review his knowledge of the facts related to Decedent and
Decedent’s interactions with Defendant. See id. For unknown reasons, Plaintiff’s counsel declined
to depose Mr. Bulick during discovery. Counsel for Merrill explained that Merrill employees are
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prohibited from disclosing clients’ non-public financial information absent a subpoena. See
Goldstein Cert. ¶ 5. Undersigned counsel also explained that Merrill had no objection to making
Mr. Bulick appear at the mutually agreed to date and time at trial the week of July 4, 2022. See id.
On June 24, 2022, issuing counsel and undersigned counsel had another call during which
issuing counsel threatened to require Mr. Bulick and undersigned counsel to appear on June 27,
2022 at the first day of trial unless issuing counsel could informally interview Mr. Bulick. See
Goldstein Cert. ¶ 6. Issuing counsel made this threat even though: (1) Mr. Bulick would not testify
on June 27, 2022, (2) undersigned counsel informed issuing counsel that he was unavailable on
June 27, 2022, and (3) issuing counsel and the undersigned previously agreed that Mr. Bulick
would be called to testify the week of July 4, 2022. See id. Thereafter, the trial was adjourned to
September 19, 2022. See Goldstein Cert. ¶ 7.
Issuing counsel also has threatened to hold a hearing in limine to declare Mr. Bulick a
“hostile witness.” See Goldstein Cert. ¶ 8, Ex. C (email dated July 5, 2022). It is entirely unclear
what basis issuing counsel would have to declare Mr. Bulick a “hostile witness” when Mr. Bulick
is simply employed by Merrill, the neutral custodian for Decedent’s accounts. Further, issuing
counsel had every opportunity to subpoena Mr. Bulick for deposition during discovery.
Issuing counsel issued a second Subpoena ad Testificandum dated July 5, 2022 (the
“Second Subpoena”). See Goldstein Cert. ¶ 8, Ex. D (“Second Subpoena”). The Second Subpoena
calls for: (1) Mr. Bulick’s appearance at trial on September 19, 2022, and (2) the production of
documents going back over ten years. See id. On July 20, 2022, Merrill served its objections to
the Second Subpoena. See Goldstein Cert. ¶ 10, Ex. E (Ltr. to Plaintiff’s Counsel). Merrill does
not object to Mr. Bulick’s appearance at trial; however, Merrill objected to the document
production in the Second Subpoena because Mr. Bulick is not the custodian of records for Merrill.
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See id. Additionally, it is unclear why issuing counsel is seeking documents from Mr. Bulick
when it appears that he already has the emails and documents received from a party to this
litigation, i.e., defendant Gregory Hess. Lastly, the document requests in the Second Subpoena
are overly broad and unduly burdensome on non-party Mr. Bulick.
III. ARGUMENT
A. Legal Standard
Pursuant to R. 1:9-2, a court may, on motion, quash or modify a subpoena if compliance
would be “unreasonable or oppressive.” See Greenblatt v. New Jersey Bd. of Pharmacy, 214 N.J.
Super. 269, 275 (App. Div. 1986) citing State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949).
Similarly, R. 4:10-3 permits a target of discovery to seek a protective order shielding him from
discovery that would result in “annoyance, embarrassment, oppression, or undue burden or
expense.” Kerr v. Able Sanitary & Env. Servs., Inc., 295 N.J. Super. 147, 155 n.4 (App. Div.
1996) (motion to quash discovery subpoena is considered equivalent of motion for protective
order).
B. This Court Should Issue a Protective Order Prohibiting Counsel from
Seeking Testimony or Conversations from Bulick Prior to Trial
The Gramm-Leach-Bliley Act (“GLBA”) prohibits Merrill from providing nonpublic
financial and account information absent one of the following: (1) subpoena; (2) judicial process
– the court could order Merrill to produce the information; or (3) customer authorization. See 15
U.S.C. § 6801 et seq.; 15 U.S.C. § 6802(e)(8) (listing exceptions). “Nonpublic personal
information,” in turn, is defined as financial information “(i) provided by a consumer to a financial
institution; (ii) resulting from any transaction with the consumer or any service performed for the
consumer; or (iii) otherwise obtained by the financial institution.” 15 U.S.C. § 6809(4)(A).
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New Jersey courts also recognize that financial institutions have a general duty of
confidentiality to their customers. See, e.g., Hirl ex rel. Hirl v. Bank of America, N.A., 401 N.J.
Super. 573 (N.J. Super. Ct. App. Div. 2008). In Twiss v. State, 591 A.2d 913 (N.J. 1991), the
court observed that New Jersey recognizes a bank’s duty to keep confidential the bank records of
a customer. See also Roth v. First Nat. State Bank of New Jersey, 169 N.J. Super. 280, 284 (1979)
(holding there is an obligation of confidentiality in respect to a client’s financial relationship with
a bank); Brex v. Smith, 146 A. 34, 36 (N.J. Ch. 1929) (holding that information contained in bank
records is a property right and therefore, there is an implied obligation on the part of the bank to
keep such information confidential unless compelled by court order to do otherwise).
Issuing counsel insists on informally interviewing Mr. Bulick prior to the trial. See
Goldstein Cert. ¶ 8, Ex. C (email dated July 5, 2022). Merrill has not objected to Bulick’s
appearance at trial and has, in good-faith, provided issuing counsel with ample opportunity to
provide scope of testimony topics, questions, and documents to relay to Mr. Bulick in preparation
of his testimony. See Goldstein Cert. ¶ 5. Pursuant to requirements established by the GLBA and
under New Jersey law related to customer privacy, Merrill and Mr. Bulick are prohibited from
having any discussions regarding accounts held at Merrill without a subpoena. As such, Merrill
requests the Court enter a protective order prohibiting counsel from pressing to informally
interview Mr. Bulick prior to the trial date absent a subpoena for deposition.
C. The Court Should Quash the Document Production Request in the Second
Subpoena
1. The Subpoena Improperly Seeks Documents from a Non-
Custodian.
Plaintiff served the Second Subpoena on Mr. Bulick personally, which includes a request
to produce seven broad categories of records. See Goldstein Cert. ¶ 9, Ex. D (“Second Subpoena”).
As an initial matter, many of the documents sought in the Second Subpoena are more appropriately
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sought from Gregory Hess, the defendant in this matter. Further, issuing counsel already has the
documents sought in the Second Subpoena. Indeed, issuing counsel provided to undersigned
counsel a copy of select emails with Gregory Hess. See Goldstein Cert. ¶ 5, Ex. B (email dated
June 24, 2022).
Additionally, Mr. Bulick is not the custodian of records for Merrill and he does not
personally have the documents requested in the Second Subpoena. The Third Circuit has identified
circumstances under which an employee can be required to turn over documents owned by a third
party. See, e.g., Gerling Int’l Ins. Co. v. Comm’r, 839 F.2d 131, 140 (3d Cir. 1988) (holding a
party can turn over documents owned by a third party only when it has “actual (physical)
possession of the documents” or when the party has “control over documents in the physical
possession of another.” “[C]ontrol is…defined not only as possession, but as the legal right to
obtain the documents requested on demand.”).
Similarly, other courts have held that an employee cannot be compelled to produce
documents that are within his corporate employer’s possession. See, e.g., Dotson v. Edmonson,
No. 16-15371, 2017 U.S. Dist. LEXIS 159571, at *16-19 (E.D. La. Sept. 8, 2017) (denying motion
to compel documents from individual employees because documents that are created by an
employee, or to which the employee has access, “are not his documents to produce as an
individual”); Learning Connections, Inc. v. Kaufman, 280 F.R.D. 639, 640 (M.D. Fla. 2012)
(issuing a protective order where a bank employee served in an individual capacity, and not as a
custodian of records for bank, did not have possession, custody, or control of records sought); In
re Kuntz, 124 S.W.3d 179, 183-84 (Tex. 2003) (holding that an individual employee could not be
compelled to produce documents in response to discovery because he did not have “possession,
custody, or control” of documents within his corporate employer’s possession).
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As such, Mr. Bulick cannot be compelled to produce documents that are not in his
possession, custody or control but are instead Merrill’s documents and client records.
2. The Second Subpoena Is Overly Broad And Unduly
Burdensome.
R. 4:10-3 provides that a party from whom discovery is sought, may object to a subpoena
on the grounds that compliance would cause or impose annoyance, embarrassment, oppression, or
undue burden or expense. R. 4:10-3. New Jersey courts apply a balancing test to determine
whether a subpoena is unreasonable. Among other factors, courts consider: (a) the subpoenaed
person’s interest in the outcome of the litigation, (b) the importance of information sought in the
case, (c) how easily the information can be produced, (d) whether there are less burdensome means
of accessing the information, and (e) the significance of the rights or interests that a party seeks to
protect by limiting disclosure. See Berrie v. Berrie, 457 A.2d 76, 80-81 (N.J. Super. Ct. Ch. Div.
1983).
The seven categories of document sought in the Second Subpoena are vague and overbroad
and impose an undue burden on Merrill, a non-party. See Goldstein Cert. ¶ 10, Ex. E (Objection
Letter). The Second Subpoena also seeks documents that are more appropriately sought from the
parties to the underlying litigation—including emails that counsel already has received during
discovery from the parties. The documents being sought also are not easily accessible to Merrill.
Indeed, the unrestricted temporal period of over ten years requested in the Second Subpoena
subjects non-party Merrill to an undue burden.
D. Merrill Should Not Be Required To Bear The Expense Of An ESI Search.
R. 4:10-2(f) provides that parties responding to a subpoena do not have to produce ESI
where—as here—the ESI is not reasonably accessible because of undue burden or cost. R. 4:10-
2(f). Rule 4:10-2(f) further contemplates cost-shifting and provides that the court may order the
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production of responsive ESI if the requesting party can show good cause. In such circumstances,
the court “may specify conditions for the discovery.” Id. New Jersey courts have also found that
“[w]hen a party seeks discovery from a non-party, particularly when the ESI is voluminous, time-
consuming and costly to prepare for production, and may implicate issues of privilege and
confidentiality, the court must consider “the relative simplicity in which the information may be
supplied by [a party], and the availability of less burdensome means to obtain the same
information.” See Trenton Renewable Power, LLC v. Denali Water Solution, LLC, 269 A.3d 519,
527 (N.J. Super. Ct. App. Div. 2022) (quoting Beckwith v. Bethlehem Steel Corp., 440 A.2d 1372,
1375 (N.J. Sup. Ct. Ch. Div. 1981).
Plaintiff requests emails and documents going back over ten years. Merrill does not store
emails and documents from the last decade in immediately accessible locations, and thus these
documents are not “reasonably accessible.” See Goldstein Cert. ¶11, Ex. E (Objection Letter).
Furthermore, Merrill’s ability to identify and collect the requested ESI, if any, is limited by the
source of that ESI, such as specific custodians, shared network drives or specific applications or
databases.
To the extent the documents requested are available, once the data is retrieved, it must be
processed by a Merrill discovery vendor, at substantial cost to Merrill. Id. In particular, the data
must go through processing with the vendor, so that the data can be loaded to a document review
platform to be able to apply search terms and date filters. Id. The resulting set of filtered data
would then need to be reviewed by both the discovery vendor and Merrill’s outside counsel for
privilege, confidentiality, and responsiveness, also at substantial cost to Merrill. Id. Generally, the
costs of processing large amounts of client-collected ESI alone can easily exceed tens of thousands
of dollars, even for a few custodians. Id. Additionally collecting and searching large volumes of
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custodian ESI can take several weeks, with several more weeks necessary to review and produce
any search term and date culled documents. Id.
Here, the requested ESI is not reasonably accessible, and non-party Merrill should not be
required to bear the substantial expense of searching for and producing ESI. This is especially true
where Plaintiff already has access to the emails he is seeking from Merrill or Bulick from
discovery. Accordingly, a Protective Order should at a minimum: (1) narrow the scope of the
Subpoena; and (2) require that Counsel for Plaintiff (i) specify date ranges, search terms, and
custodians; and (ii) bear the costs of conducting the ESI search.
IV. CONCLUSION
Merrill and Mr. Bulick respectfully request that the Court grant the Motion and enter a
protective order prohibiting Plaintiff from seeking testimony from Bulick before his scheduled
appearance at trial pursuant to the Second Subpoena. Merrill and Mr. Bulick further request the
Court quash the document requests in the Second Subpoena.
In the alternative, this Court should issue a protective order narrowing the scope of the
Second Subpoena, and, to the extent Plaintiff seeks ESI, require that Plaintiff: (1) identify
custodians and date ranges for the requested ESI; (2) discuss with undersigned counsel proposed
search terms; and (3) bear the costs of the ESI search.
Finally, Merrill and Mr. Bulick request this Court grant them costs and fees incurred in
connection with this Motion, including attorney’s fees and such other and further relief as the Court
deems just and proper.
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Dated: New York, New York MCGUIREWOODS LLP
August 9, 2022
By: s/ Philip A. Goldstein
Philip A. Goldstein, Esq. (NJ Bar # 025732001)
McGuireWoods LLP
1251 Avenue of the Americas, 20th Fl.
New York, New York 10020
(212) 548-2100
pagoldstein@mcguirewoods.com
Attorneys for Non-Parties Merrill Lynch, Pierce,
Fenner & Smith Incorporated and William Bulick
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BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 2 Trans ID: LCV20222888509
Philip A. Goldstein (NJ Bar # 025732001)
MCGUIREWOODS LLP
1251 Avenue of the Americas, 20th Floor
New York, New York 10020-1104
(212) 548-2167
pagoldstein@mcguirewoods.com
Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick
JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
Plaintiff,
Civil Action
-against- Docket No. BER-L-004241-18
P. GREGORY HESS, et al., CERTIFICATION OF SERVICE
Defendants. Motion Date: August 26, 2022
I, PHILIP A. GOLDSTEIN, of full age, hereby certify as follows:
1. I am an attorney-at-law in the State of New Jersey and am Counsel with the law
firm of McGuireWoods LLP, attorneys for non-parties Merrill Lynch, Pierce, Fenner & Smith
Incorporated (“Merrill”), on behalf of itself and its employee William Bulick (“Mr. Bulick”) and
Mr. Bulick, in the above-captioned matter.
2. On August 9, 2022, I caused a true and correct copy of Merrill and Mr. Bulick’s (1)
Notice of Motion to Quash and for Protective Order; (2) Memorandum of Law in Support of
Motion to Quash and for Protective Order; and (3) Certification of Philip A. Goldstein in Support
of Motion to Quash and for Protective Order, and the exhibits annexed thereto, to be duly served
upon all parties to this action as listed below via the court’s electronic filing system (eCourts):
Jeffrey A. Bronster, Esq.
17 Wendell Place
Fairview, New Jersey 07022
jbronster@bronsterlaw.com
Attorneys for Plaintiff
1
BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 2 Trans ID: LCV20222888509
Robert T. Gunning, Esq.
Morrison Mahoney, LLP
Waterview Plaza
2001 US Highway 46, Suite 200
Parsippany, New Jersey 07054
rgunning@morrisonmahoney.com
Attorneys for Defendants
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
Dated: New York, New York
August 9, 2022 /s/ Philip A. Goldstein
Philip A. Goldstein (NJ Bar # 025732001)
MCGUIREWOODS LLP
1251 Avenue of the Americas, 20th Floor
New York, New York 10020-1104
Phone: (212) 548-2167
pagoldstein@mcguirewoods.com
Attorneys for Non-Parties Merrill Lynch, Pierce,
Fenner & Smith Incorporated and William Bulick
163021665_1
2
BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 2 Trans ID: LCV20222888509
EXHIBIT A
BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 2 Trans ID: LCV20222888509
,
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C: ~
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...
JEFFREY A. BRONSTER, ESQ.
17 Wendell Place
Fairview, New Jersey 07022
(201) 945-2566
jbronster@bronsterlaw.com
Attorney ID No. 049411988
Attorney for Plaintiff
---------------------------------------------x SUPERIOR COURT OF NEW JERSEY
JOSEPH VILLANI, LAW DMSION: BERGEN COUNTY
DOCK.ET NO: BER-L-4241-18
Plaintiff,
Civil Action
V.
P. GREGORY HESS, et al., SuD,paeJta ad g ~tificandum
Defendants.
---------------------------------------------x
STATE OF NEW JERSEY TO: William Bulick
343 Henry Street
Scotch Plains, NJ 07076
YOU ARE HEREBY COMMANDED to appear in person before the Superior Court of
New Jersey, Law Division, Bergen County, Civil Part, at the Court House located at 10 Main Street,
Hackensack, New Jersey, on June 27, 2022 at 9:00 a.m., and there to testify as a witness in the
above-captioned matter.
Failure to appear or comply with the command of this Subpoena will subj ect you to the
penalties
Preview
BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 3 Trans ID: LCV20222888509 Philip A. Goldstein, Esq. (NJ Bar # 025732001) MCGUIREWOODS LLP 1251 Avenue of the Americas, 20th Floor New York, New York 10020 (212) 548-2167 pagoldstein@mcguirewoods.com Attorney for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: BERGEN COUNTY Plaintiff, Civil Action -against- Docket No. BER-L-004241-18 NOTICE OF MOTION TO QUASH AND P. GREGORY HESS, et al., FOR PROTECTIVE ORDER Defendants. Motion Date: August 26, 2022 Oral Argument Requested if Motion Contested TO: Jeffrey A. Bronster, Esq. Robert T. Gunning, Esq. 17 Wendell Place Morrison Mahoney, LLP Fairview, New Jersey 07022 Waterview Plaza jbronster@bronsterlaw.com 2001 US Highway 46, Suite 200 Attorneys for Plaintiff Parsippany, New Jersey 07054 rgunning@morrisonmahoney.com Attorneys for Defendants PLEASE TAKE NOTICE that on August 26, 2022, at 9:00 a.m., or as soon thereafter as the matter can be heard, non-parties Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”), on behalf of itself and its employee William Bulick (“Mr. Bulick”) and Mr. Bulick, by and through their undersigned attorneys, will move before the Superior Court of New Jersey, Law Division, Bergen County, at the Courthouse located at the Bergen County Justice Center, 10 Main Street, Hackensack, New Jersey 07601, before the Honorable Robert C. Wilson, J.S.C., for a Protective Order, pursuant to R. 1:9-2 and 4:10-3, (i) prohibiting Plaintiff from seeking testimony from Mr. Bulick before his scheduled appearance at trial pursuant to the Subpoena ad 1 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 3 Trans ID: LCV20222888509 Testificandum dated July 5, 2022 (“Second Subpoena”), and quashing the document requests in the Second Subpoena, or in the alternative, narrowing the scope of the Second Subpoena, and, to the extent Plaintiff seeks ESI, requiring that Plaintiff: (1) identify custodians and date ranges for the requested ESI; (2) discuss with undersigned counsel proposed search terms; and (3) bear the costs of the ESI search; (ii) granting Merrill and Mr. Bulick the costs and fees incurred in connection with this Motion, including attorney’s fees; and (iii) granting all such other, further or different relief which the Court deems just and proper. PLEASE TAKE FURTHER NOTICE that in support of this motion, Merrill and Mr. Bulick shall rely on the accompanying: (1) Memorandum of Law, which contains the grounds for the relief sought; (2) Certification of Philip A. Goldstein, and the exhibits annexed thereto; and (3) all prior pleadings and proceedings in this action. A proposed form of Order pursuant to R. 1:6-2 is submitted herewith. PLEASE TAKE FURTHER NOTICE that, pursuant to R. 1:6-3, answering papers, if any, shall be filed and served not later than eight (8) days prior to the return date of this motion. PLEASE TAKE FURTHER NOTICE that Merrill and Mr. Bulick request oral argument if this motion is contested. PLEASE TAKE FURTHER NOTICE that the undersigned counsel for Merrill and Mr. Bulick certifies that confidential personal identifiers have been redacted from documents submitted herewith to the Court, and will be redacted from all documents submitted in the future in accordance with R. 1:38-7(b). The trial date for this matter is September 19, 2022. The Discovery End Date was January 31, 2021. No pre-trial conference, arbitration proceeding, mediation, or calendar call has been set. No prior application for the above requested relief has been previously submitted. 2 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 3 of 3 Trans ID: LCV20222888509 CERTIFICATION OF NO OTHER ACTIONS I certify that this dispute is not the subject of any other action pending in any other court or a pending arbitration proceeding to the best of my knowledge and belief. Also, to the best of my knowledge and belief, no other action or arbitration proceeding is contemplated other than the relief that is sought herein. Further, other than the parties set forth in the Complaint, I know of no other parties that should be made a part of this lawsuit. In addition, I recognize my continuing obligation to file and serve on all parties and the court an amended certification if there is a change in the facts stated in this original certification. DESIGNATION OF TRIAL COUNSEL Pursuant to R. 4:25-4, be advised that Philip A. Goldstein has been designated as trial counsel on behalf of Merrill and Mr. Bulick in the above captioned matter. Dated: New York, New York August 9, 2022 MCGUIREWOODS LLP By: /s/ Philip A. Goldstein Philip A. Goldstein (NJ Bar ID # 025732001) 1251 Avenue of the Americas, 20th Floor New York, New York 10020-1104 Phone: (212) 548-2167 Fax: (212) 548-2150 Email: pagoldstein@mcguirewoods.com Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick 163017704_1 3 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 2 Trans ID: LCV20222888509 JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: BERGEN COUNTY Plaintiff, Civil Action -against- Docket No. BER-L-004241-18 [PROPOSED] ORDER GRANTING P. GREGORY HESS, et al., MOTION TO QUASH AND FOR PROTECTIVE ORDER Defendants. This matter having been opened to the Court by McGuireWoods LLP, attorneys for non- parties Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”), on behalf of itself and its employee William Bulick (“Mr. Bulick”) and Mr. Bulick, pursuant to R. 1:9-2 and 4:10-3 for an Order (i) prohibiting Plaintiff Joseph Villani (“Plaintiff”) from seeking testimony from Mr. Bulick before his scheduled appearance at trial pursuant to the Subpoena ad Testificandum dated July 5, 2022 (“Second Subpoena”), and quashing the document requests in the Second Subpoena, or in the alternative, narrowing the scope of the Second Subpoena, and, to the extent Plaintiff seeks ESI, requiring that Plaintiff: (1) identify custodians and date ranges for the requested ESI; (2) discuss with undersigned counsel proposed search terms; and (3) bear the costs of the ESI search; (ii) granting Merrill and Mr. Bulick the costs and fees incurred in connection with this Motion, including attorney’s fees, and it appearing to the Court that due notice of this Motion has been given to all counsel, and the Court having considered all documents on file and the motion papers submitted by the parties, and for good cause shown; IT IS on this __ day of _____________, 2022, 1. ORDERED that Motion brought by Merrill Lynch, Pierce, Fenner & Smith Incorporated, on behalf of itself and its employee William Bulick, and by Mr. Bulick, is GRANTED; and it is further hereby 1 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 2 Trans ID: LCV20222888509 2. ORDERED that Plaintiff is prohibited from seeking testimony from Mr. Bulick before his scheduled appearance at trial; and it is further hereby 3. ORDERED that the document requests in the Second Subpoena are quashed; and it is further hereby 4. ORDERED that within ___ days of the date this Order is uploaded to eCourts, Plaintiff shall pay Merrill and Mr. Bulick the costs and fees incurred in connection with this Motion, including attorney’s fees; and it is further hereby 5. ORDERED that a true copy of this Order shall be deemed served upon all counsel of record by the Court’s filing of same to eCourts. Counsel for Merrill and Mr. Bulick shall serve a copy of this Order upon any party of record who was not served by eCourts within ___ days of receipt of this Order. ____________________________ Hon. Robert C. Wilson, J.S.C. Opposed ______ Unopposed ______ Appearances By: 2 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 3 Trans ID: LCV20222888509 Philip A. Goldstein, Esq. (NJ Bar ID # 025732001) McGuireWoods LLP 1251 Avenue of the Americas, 20th Floor New York, NY 10020 Tele: (212) 548-2167 Fax: (212) 548-2150 pagoldstein@mcguirewoods.com Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: BERGEN COUNTY Plaintiff, DOCKET NO: BER-L-004241-18 v. Civil Action P. GREGORY HESS, et al., CERTIFICATION OF PHILIP A. Defendants. GOLDSTEIN IN SUPPORT OF MOTION TO QUASH AND FOR PROTECTIVE ORDER I, Philip A. Goldstein, an attorney at law duly admitted to practice before the Courts of the State of New Jersey, hereby certify the following to be true under penalty of perjury: 1. I am Counsel with the law firm McGuireWoods LLP, and I represent non-parties Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”) and William Bulick (“Bulick”) in connection with this action. The facts set forth below are of my own personal knowledge, and if called upon as a witness, I could and would testify competently to such facts. 2. I am a member in good standing of the Bar of the State of New Jersey and duly admitted to practice law in the courts of the State of New Jersey and the United States District Court for the District of New Jersey pursuant to R. 1:21-1. I was admitted to practice law in New Jersey in 2001. My New Jersey State Bar Identification Number is 025732001. I provide 1 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 3 Trans ID: LCV20222888509 this Certification in connection with Merrill and Mr. Bulick’s Motion to Quash and/or for Protective Order. 3. On or about May 22, 2022 Plaintiff issued a Subpoena ad Testificandum (the “Initial Subpoena”) personally to Mr. Bulick, requiring his appearance as a witness on June 27, 2022 at 9:00 a.m. (Ex. A, Initial Subpoena). 4. On June 13 and June 21, 2022, counsel for Merrill and Plaintiff discussed a plan for Mr. Bulick’s appearance at trial the week of July 4, 2022. The week of July 4, 2022 worked for both Mr. Bulick and undersigned counsel’s schedules. Plaintiff’s counsel then requested that Mr. Bulick be made available for a conference call to review his knowledge of the facts related to Decedent and Decedent’s interactions with Defendant. 5. On a call with Plaintiff’s counsel on June 23, 2022, I explained that Merrill employees are prohibited from disclosing clients’ non-public financial information absent a subpoena or court order. I also explained that Merrill had no objection to making Mr. Bulick appear at the mutually agreed upon date and time at trial the week of July 4, 2022. I discussed with counsel that he can provide scope of testimony topics, questions, and documents to relay to Mr. Bulick in preparation of his testimony. Counsel provided proposed exhibits for Mr. Bulick which included select emails with Gregory Hess. (Ex. B, email dated June 24, 2022). 6. On June 24, 2022, counsel for Plaintiff and I had another call during which issuing counsel threatened to require Mr. Bulick to appear on June 27, 2022 at the first day of trial unless Plaintiff’s counsel could informally interview Mr. Bulick. Plaintiff’s counsel made this threat even though: (1) Mr. Bulick would not testify on June 27, 2022, (2) I informed issuing counsel that I was unavailable on June 27, 2022, and (3) Plaintiff’s counsel previously agreed that Mr. Bulick would be called to testify the week of July 4, 2022. 7. The trial was adjourned to commence on September 19, 2022. 8. In an email dated July 5, 2022, Plaintiff’s counsel has threatened to request a hearing in limine to declare Mr. Bulick a “hostile witness” if he is not made available to be interviewed by counsel. (Ex. C, email dated July 5, 2022). 2 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 3 of 3 Trans ID: LCV20222888509 9. On July 5, 2022, Plaintiff’s counsel issued a second Subpoena ad Testificandum (the “Second Subpoena”). (Ex. D, Second Subpoena). The Second Subpoena calls for: (1) Mr. Bulick’s appearance at trial on September 19, 2022, and (2) the production of documents going back over ten years. 10. On July 20, 2022, Merrill served its objections to the Second Subpoena. (Ex. E, Ltr. to Plaintiff’s Counsel). Merrill does not object to Mr. Bulick’s appearance at trial; however, Merrill objects to the document production in the Second Subpoena because Mr. Bulick is not the custodian of records for Merrill. Merrill also outlined its objections to the vague and overbroad requests for documents in the Second Subpoena and objected to the extent they impose an undue burden on Merrill, a non-party. 11. Finally, Plaintiff’s requests in the Second Subpoena related to electronically stored information (“ESI”) are not reasonably accessible to Merrill. See Ex. E (Ltr. to Plaintiff’s Counsel). To the extent the documents requested are available, once the data is retrieved, it must be processed by a Merrill discovery vendor, at substantial cost to Merrill. Additionally, collecting and searching large volumes of custodian ESI can take several weeks, with several more weeks necessary to review and produce any search term and date culled documents. 12. Attached hereto as Exhibit F are true and correct copies of the unpublished case(s) cited in the accompanying Memorandum of Law: (1) Dotson v. Edmonson, No. 16-15371, 2017 U.S. Dist. LEXIS 159571, (E.D. La. Sept. 8, 2017); and (2) Meade v. Cardinale & Jackson Crossing Assocs., LLC, No., No. A-3358-11T1, 2013 N.J. Super. Unpub. LEXIS 203 (App. Div. Jan. 31, 2013). I certify under penalty of perjury that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Executed on August 9, 2022 in Beach Haven, New Jersey. s/ Philip A. Goldstein Philip A. Goldstein 3 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 14 Trans ID: LCV20222888509 JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: BERGEN COUNTY Plaintiff, DOCKET NO: BER-L-4241-18 v. Civil Action P. GREGORY HESS, et al., Defendants. NON-PARTIES MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED AND WILLIAM BULICK’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO QUASH AND FOR PROTECTIVE ORDER Philip A. Goldstein, Esq. (NJ Bar ID # 025732001) McGuireWoods LLP 1251 Avenue of the Americas, 20th Floor New York, NY 10020 Tele: (212) 548-2167 Fax: (212) 548-2150 pagoldstein@mcguirewoods.com Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 14 Trans ID: LCV20222888509 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. FACTUAL AND PROCEDURAL BACKGROUND....................................................... 2 III. ARGUMENT ..................................................................................................................... 4 A. Legal Standard ....................................................................................................... 4 B. This Court Should Issue a Protective Order Prohibiting Counsel from Seeking Testimony or Conversations from Bulick Prior to Trial .......................... 4 C. The Court Should Quash the Document Production Request in the Second Subpoena ................................................................................................................ 5 1. The Subpoena Improperly Seeks Documents from a Non- Custodian. .................................................................................................. 5 2. The Second Subpoena Is Overly Broad And Unduly Burdensome. .......... 7 D. Merrill Should Not Be Required To Bear The Expense Of An ESI Search. ......... 7 IV. CONCLUSION .................................................................................................................. 9 -i- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 3 of 14 Trans ID: LCV20222888509 TABLE OF AUTHORITIES Page(s) Cases Beckwith v. Bethlehem Steel Corp., 440 A.2d 1372 (N.J. Sup. Ct. Ch. Div. 1981) ............................................................................8 Berrie v. Berrie, 457 A.2d 76 (N.J. Super. Ct. Ch. Div. 1983) .............................................................................7 Brex v. Smith, 146 A. 34 (N.J. Ch. 1929) ..........................................................................................................5 Dotson v. Edmonson, No. 16-15371, 2017 U.S. Dist. LEXIS 159571 (E.D. La. Sept. 8, 2017) ..................................6 Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 333 N.J. Super. 291 (App. Div. 2001) .......................................................................................1 Gerling Int’l Ins. Co. v. Comm’r, 839 F.2d 131 (3d Cir. 1988).......................................................................................................6 Greenblatt v. New Jersey Bd. of Pharmacy, 214 N.J. Super. 269 (App. Div. 1986) .......................................................................................4 Hirl ex rel. Hirl v. Bank of America, N.A., 401 N.J. Super. 573 (N.J. Super. Ct. App. Div. 2008)...............................................................5 Kerr v. Able Sanitary & Env. Servs., Inc., 295 N.J. Super. 147 (App. Div. 1996) .......................................................................................4 In re Kuntz, 124 S.W.3d 179 (Tex. 2003)......................................................................................................6 Learning Connections, Inc. v. Kaufman, 280 F.R.D. 639 (M.D. Fla. 2012)...............................................................................................6 Meade v. Cardinale & Jackson Crossing Assocs., LLC, No. A-3358-11T1, 2013 N.J. Super. Unpub. LEXIS 203 (App. Div. Jan. 31, 2013) ..........................................................................................................................................1 Roth v. First Nat. State Bank of New Jersey, 169 N.J. Super. 280 (1979) ........................................................................................................5 Spaeth v. Srinivasan, 403 N.J. Super. 508 (App. Div. 2008) .......................................................................................1 -ii- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 4 of 14 Trans ID: LCV20222888509 State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949)..................................................................................................4 Trenton Renewable Power, LLC v. Denali Water Solution, LLC, 269 A.3d 519 (N.J. Super. Ct. App. Div. 2022).........................................................................8 Twiss v. State, 591 A.2d 913 (N.J. 1991)...........................................................................................................5 Statutes 15 U.S.C. § 6801 ..............................................................................................................................4 15 U.S.C. § 6802(e)(8) .....................................................................................................................4 15 U.S.C. § 6809(4)(A)....................................................................................................................4 -iii- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 5 of 14 Trans ID: LCV20222888509 Non-parties Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”) on behalf of itself and its employee William Bulick (“Mr. Bulick”) and Mr. Bulick, through the undersigned, respectfully submit this memorandum of law in support of their motion to quash and/or for a protective order pursuant to R. 1:9-2 and 4:10-3. I. INTRODUCTION Neither Merrill nor Mr. Bulick are parties to this case. Rather, Merrill and Mr. Bulick are neutral third-parties that have no stake in the outcome of this litigation. Merrill was simply the custodian of accounts held by the Decedent Benny Villani. Mr. Bulick is an employee of Merrill. There are no substantive allegations asserted against Merrill or Mr. Bulick in this matter. 1 Counsel for Merrill and Mr. Bulick had meet and confer discussions and exchanged correspondence with issuing counsel for Plaintiff in a good faith effort to avoid the necessity of bringing this Motion. In a bizarre series of events, issuing counsel initially agreed upon a mutually agreeable time for Mr. Bulick to testify at trial the week of July 4, 2022 in response to a trial witness subpoena with an appearance date of June 27, 2022. However, on the eve trial, issuing counsel reneged on that agreement and insisted that Mr. Bulick and undersigned counsel appear on June 27 (even though Mr. Bulick would not be called to testify that day and undersigned counsel was not available) unless undersigned counsel permitted issuing counsel to interview and prepare 1 There are no claims alleged against Merrill or its employees, including Mr. Bulick, and Merrill remains a non-party to the underlying lawsuit. To the extent that there were claims, however, those claims are subject to mandatory arbitration and Merrill expressly reserves the right to file a motion to compel arbitration. Under New Jersey law, filing an answer or a pre-answer motion to dismiss does not waive this right to compel arbitration. See, e.g., Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 333 N.J. Super. 291, 296 (App. Div. 2001) (“The mere filing of a complaint or an answer to the complaint is not a waiver of arbitration. The court has the power, any time before judgment, to refer the dispute to arbitration.”); Spaeth v. Srinivasan, 403 N.J. Super. 508, 516-17 (App. Div. 2008) (finding that the defendant did not waive arbitration despite not raising arbitration as an affirmative defense); Meade v. Cardinale & Jackson Crossing Assocs., LLC, No., No. A-3358-11T1, 2013 N.J. Super. Unpub. LEXIS 203, at *15-16 (App. Div. Jan. 31, 2013) (affirming the trial court’s ruling that the filing of a motion to dismiss did not result in waiver of the right to arbitration). BER-L-004241-18 08/09/2022 5:13:46 PM Pg 6 of 14 Trans ID: LCV20222888509 Mr. Bulick prior to being called as a trial witness. Mr. Bulick is a neutral witness that issuing counsel never sought to depose during discovery. Ultimately, the trial date was continued and counsel has now issued a second trial subpoena to Mr. Bulick. However, this time, the trial subpoena, which is directed personally to Mr. Bulick, is extraordinarily overbroad and includes requests for Merrill account records, and emails going back over a decade, none of which were sought during discovery in this case. Undersigned counsel informed issuing counsel that to obtain Merrill records, he will need to issue a subpoena to the custodian of records for Merrill. Undersigned counsel even offered to check with Merrill to see whether it would authorize accepting service of such a subpoena via email. Issuing counsel has declined the offer and now insists that Mr. Bulick personally produce Merrill records, which is improper. While undersigned counsel has made every effort to avoid unnecessary motion practice, issuing counsel’s actions are harassing and burdensome and Merrill and Mr. Bulick seek the protection of the Court. II. FACTUAL AND PROCEDURAL BACKGROUND On or about, May 22, 2022, Plaintiff issued a Subpoena ad Testificandum (the “Initial Subpoena”) personally to Mr. Bulick, requiring his appearance at trial as a witness starting June 27, 2022 at 9:00 a.m. See Goldstein Cert. ¶ 3, Ex. A (“Initial Subpoena”). On June 13 and June 21, 2022, counsel for Merrill and Plaintiff discussed a plan for Mr. Bulick’s appearance at trial the week of July 4, 2022. See Goldstein Cert. ¶ 4. The week of July 4, 2022 worked for both Mr. Bulick and undersigned counsel’s schedules. Issuing counsel then requested that Mr. Bulick be made available for a conference call to review his knowledge of the facts related to Decedent and Decedent’s interactions with Defendant. See id. For unknown reasons, Plaintiff’s counsel declined to depose Mr. Bulick during discovery. Counsel for Merrill explained that Merrill employees are -2- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 7 of 14 Trans ID: LCV20222888509 prohibited from disclosing clients’ non-public financial information absent a subpoena. See Goldstein Cert. ¶ 5. Undersigned counsel also explained that Merrill had no objection to making Mr. Bulick appear at the mutually agreed to date and time at trial the week of July 4, 2022. See id. On June 24, 2022, issuing counsel and undersigned counsel had another call during which issuing counsel threatened to require Mr. Bulick and undersigned counsel to appear on June 27, 2022 at the first day of trial unless issuing counsel could informally interview Mr. Bulick. See Goldstein Cert. ¶ 6. Issuing counsel made this threat even though: (1) Mr. Bulick would not testify on June 27, 2022, (2) undersigned counsel informed issuing counsel that he was unavailable on June 27, 2022, and (3) issuing counsel and the undersigned previously agreed that Mr. Bulick would be called to testify the week of July 4, 2022. See id. Thereafter, the trial was adjourned to September 19, 2022. See Goldstein Cert. ¶ 7. Issuing counsel also has threatened to hold a hearing in limine to declare Mr. Bulick a “hostile witness.” See Goldstein Cert. ¶ 8, Ex. C (email dated July 5, 2022). It is entirely unclear what basis issuing counsel would have to declare Mr. Bulick a “hostile witness” when Mr. Bulick is simply employed by Merrill, the neutral custodian for Decedent’s accounts. Further, issuing counsel had every opportunity to subpoena Mr. Bulick for deposition during discovery. Issuing counsel issued a second Subpoena ad Testificandum dated July 5, 2022 (the “Second Subpoena”). See Goldstein Cert. ¶ 8, Ex. D (“Second Subpoena”). The Second Subpoena calls for: (1) Mr. Bulick’s appearance at trial on September 19, 2022, and (2) the production of documents going back over ten years. See id. On July 20, 2022, Merrill served its objections to the Second Subpoena. See Goldstein Cert. ¶ 10, Ex. E (Ltr. to Plaintiff’s Counsel). Merrill does not object to Mr. Bulick’s appearance at trial; however, Merrill objected to the document production in the Second Subpoena because Mr. Bulick is not the custodian of records for Merrill. -3- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 8 of 14 Trans ID: LCV20222888509 See id. Additionally, it is unclear why issuing counsel is seeking documents from Mr. Bulick when it appears that he already has the emails and documents received from a party to this litigation, i.e., defendant Gregory Hess. Lastly, the document requests in the Second Subpoena are overly broad and unduly burdensome on non-party Mr. Bulick. III. ARGUMENT A. Legal Standard Pursuant to R. 1:9-2, a court may, on motion, quash or modify a subpoena if compliance would be “unreasonable or oppressive.” See Greenblatt v. New Jersey Bd. of Pharmacy, 214 N.J. Super. 269, 275 (App. Div. 1986) citing State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949). Similarly, R. 4:10-3 permits a target of discovery to seek a protective order shielding him from discovery that would result in “annoyance, embarrassment, oppression, or undue burden or expense.” Kerr v. Able Sanitary & Env. Servs., Inc., 295 N.J. Super. 147, 155 n.4 (App. Div. 1996) (motion to quash discovery subpoena is considered equivalent of motion for protective order). B. This Court Should Issue a Protective Order Prohibiting Counsel from Seeking Testimony or Conversations from Bulick Prior to Trial The Gramm-Leach-Bliley Act (“GLBA”) prohibits Merrill from providing nonpublic financial and account information absent one of the following: (1) subpoena; (2) judicial process – the court could order Merrill to produce the information; or (3) customer authorization. See 15 U.S.C. § 6801 et seq.; 15 U.S.C. § 6802(e)(8) (listing exceptions). “Nonpublic personal information,” in turn, is defined as financial information “(i) provided by a consumer to a financial institution; (ii) resulting from any transaction with the consumer or any service performed for the consumer; or (iii) otherwise obtained by the financial institution.” 15 U.S.C. § 6809(4)(A). -4- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 9 of 14 Trans ID: LCV20222888509 New Jersey courts also recognize that financial institutions have a general duty of confidentiality to their customers. See, e.g., Hirl ex rel. Hirl v. Bank of America, N.A., 401 N.J. Super. 573 (N.J. Super. Ct. App. Div. 2008). In Twiss v. State, 591 A.2d 913 (N.J. 1991), the court observed that New Jersey recognizes a bank’s duty to keep confidential the bank records of a customer. See also Roth v. First Nat. State Bank of New Jersey, 169 N.J. Super. 280, 284 (1979) (holding there is an obligation of confidentiality in respect to a client’s financial relationship with a bank); Brex v. Smith, 146 A. 34, 36 (N.J. Ch. 1929) (holding that information contained in bank records is a property right and therefore, there is an implied obligation on the part of the bank to keep such information confidential unless compelled by court order to do otherwise). Issuing counsel insists on informally interviewing Mr. Bulick prior to the trial. See Goldstein Cert. ¶ 8, Ex. C (email dated July 5, 2022). Merrill has not objected to Bulick’s appearance at trial and has, in good-faith, provided issuing counsel with ample opportunity to provide scope of testimony topics, questions, and documents to relay to Mr. Bulick in preparation of his testimony. See Goldstein Cert. ¶ 5. Pursuant to requirements established by the GLBA and under New Jersey law related to customer privacy, Merrill and Mr. Bulick are prohibited from having any discussions regarding accounts held at Merrill without a subpoena. As such, Merrill requests the Court enter a protective order prohibiting counsel from pressing to informally interview Mr. Bulick prior to the trial date absent a subpoena for deposition. C. The Court Should Quash the Document Production Request in the Second Subpoena 1. The Subpoena Improperly Seeks Documents from a Non- Custodian. Plaintiff served the Second Subpoena on Mr. Bulick personally, which includes a request to produce seven broad categories of records. See Goldstein Cert. ¶ 9, Ex. D (“Second Subpoena”). As an initial matter, many of the documents sought in the Second Subpoena are more appropriately -5- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 10 of 14 Trans ID: LCV20222888509 sought from Gregory Hess, the defendant in this matter. Further, issuing counsel already has the documents sought in the Second Subpoena. Indeed, issuing counsel provided to undersigned counsel a copy of select emails with Gregory Hess. See Goldstein Cert. ¶ 5, Ex. B (email dated June 24, 2022). Additionally, Mr. Bulick is not the custodian of records for Merrill and he does not personally have the documents requested in the Second Subpoena. The Third Circuit has identified circumstances under which an employee can be required to turn over documents owned by a third party. See, e.g., Gerling Int’l Ins. Co. v. Comm’r, 839 F.2d 131, 140 (3d Cir. 1988) (holding a party can turn over documents owned by a third party only when it has “actual (physical) possession of the documents” or when the party has “control over documents in the physical possession of another.” “[C]ontrol is…defined not only as possession, but as the legal right to obtain the documents requested on demand.”). Similarly, other courts have held that an employee cannot be compelled to produce documents that are within his corporate employer’s possession. See, e.g., Dotson v. Edmonson, No. 16-15371, 2017 U.S. Dist. LEXIS 159571, at *16-19 (E.D. La. Sept. 8, 2017) (denying motion to compel documents from individual employees because documents that are created by an employee, or to which the employee has access, “are not his documents to produce as an individual”); Learning Connections, Inc. v. Kaufman, 280 F.R.D. 639, 640 (M.D. Fla. 2012) (issuing a protective order where a bank employee served in an individual capacity, and not as a custodian of records for bank, did not have possession, custody, or control of records sought); In re Kuntz, 124 S.W.3d 179, 183-84 (Tex. 2003) (holding that an individual employee could not be compelled to produce documents in response to discovery because he did not have “possession, custody, or control” of documents within his corporate employer’s possession). -6- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 11 of 14 Trans ID: LCV20222888509 As such, Mr. Bulick cannot be compelled to produce documents that are not in his possession, custody or control but are instead Merrill’s documents and client records. 2. The Second Subpoena Is Overly Broad And Unduly Burdensome. R. 4:10-3 provides that a party from whom discovery is sought, may object to a subpoena on the grounds that compliance would cause or impose annoyance, embarrassment, oppression, or undue burden or expense. R. 4:10-3. New Jersey courts apply a balancing test to determine whether a subpoena is unreasonable. Among other factors, courts consider: (a) the subpoenaed person’s interest in the outcome of the litigation, (b) the importance of information sought in the case, (c) how easily the information can be produced, (d) whether there are less burdensome means of accessing the information, and (e) the significance of the rights or interests that a party seeks to protect by limiting disclosure. See Berrie v. Berrie, 457 A.2d 76, 80-81 (N.J. Super. Ct. Ch. Div. 1983). The seven categories of document sought in the Second Subpoena are vague and overbroad and impose an undue burden on Merrill, a non-party. See Goldstein Cert. ¶ 10, Ex. E (Objection Letter). The Second Subpoena also seeks documents that are more appropriately sought from the parties to the underlying litigation—including emails that counsel already has received during discovery from the parties. The documents being sought also are not easily accessible to Merrill. Indeed, the unrestricted temporal period of over ten years requested in the Second Subpoena subjects non-party Merrill to an undue burden. D. Merrill Should Not Be Required To Bear The Expense Of An ESI Search. R. 4:10-2(f) provides that parties responding to a subpoena do not have to produce ESI where—as here—the ESI is not reasonably accessible because of undue burden or cost. R. 4:10- 2(f). Rule 4:10-2(f) further contemplates cost-shifting and provides that the court may order the -7- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 12 of 14 Trans ID: LCV20222888509 production of responsive ESI if the requesting party can show good cause. In such circumstances, the court “may specify conditions for the discovery.” Id. New Jersey courts have also found that “[w]hen a party seeks discovery from a non-party, particularly when the ESI is voluminous, time- consuming and costly to prepare for production, and may implicate issues of privilege and confidentiality, the court must consider “the relative simplicity in which the information may be supplied by [a party], and the availability of less burdensome means to obtain the same information.” See Trenton Renewable Power, LLC v. Denali Water Solution, LLC, 269 A.3d 519, 527 (N.J. Super. Ct. App. Div. 2022) (quoting Beckwith v. Bethlehem Steel Corp., 440 A.2d 1372, 1375 (N.J. Sup. Ct. Ch. Div. 1981). Plaintiff requests emails and documents going back over ten years. Merrill does not store emails and documents from the last decade in immediately accessible locations, and thus these documents are not “reasonably accessible.” See Goldstein Cert. ¶11, Ex. E (Objection Letter). Furthermore, Merrill’s ability to identify and collect the requested ESI, if any, is limited by the source of that ESI, such as specific custodians, shared network drives or specific applications or databases. To the extent the documents requested are available, once the data is retrieved, it must be processed by a Merrill discovery vendor, at substantial cost to Merrill. Id. In particular, the data must go through processing with the vendor, so that the data can be loaded to a document review platform to be able to apply search terms and date filters. Id. The resulting set of filtered data would then need to be reviewed by both the discovery vendor and Merrill’s outside counsel for privilege, confidentiality, and responsiveness, also at substantial cost to Merrill. Id. Generally, the costs of processing large amounts of client-collected ESI alone can easily exceed tens of thousands of dollars, even for a few custodians. Id. Additionally collecting and searching large volumes of -8- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 13 of 14 Trans ID: LCV20222888509 custodian ESI can take several weeks, with several more weeks necessary to review and produce any search term and date culled documents. Id. Here, the requested ESI is not reasonably accessible, and non-party Merrill should not be required to bear the substantial expense of searching for and producing ESI. This is especially true where Plaintiff already has access to the emails he is seeking from Merrill or Bulick from discovery. Accordingly, a Protective Order should at a minimum: (1) narrow the scope of the Subpoena; and (2) require that Counsel for Plaintiff (i) specify date ranges, search terms, and custodians; and (ii) bear the costs of conducting the ESI search. IV. CONCLUSION Merrill and Mr. Bulick respectfully request that the Court grant the Motion and enter a protective order prohibiting Plaintiff from seeking testimony from Bulick before his scheduled appearance at trial pursuant to the Second Subpoena. Merrill and Mr. Bulick further request the Court quash the document requests in the Second Subpoena. In the alternative, this Court should issue a protective order narrowing the scope of the Second Subpoena, and, to the extent Plaintiff seeks ESI, require that Plaintiff: (1) identify custodians and date ranges for the requested ESI; (2) discuss with undersigned counsel proposed search terms; and (3) bear the costs of the ESI search. Finally, Merrill and Mr. Bulick request this Court grant them costs and fees incurred in connection with this Motion, including attorney’s fees and such other and further relief as the Court deems just and proper. -9- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 14 of 14 Trans ID: LCV20222888509 Dated: New York, New York MCGUIREWOODS LLP August 9, 2022 By: s/ Philip A. Goldstein Philip A. Goldstein, Esq. (NJ Bar # 025732001) McGuireWoods LLP 1251 Avenue of the Americas, 20th Fl. New York, New York 10020 (212) 548-2100 pagoldstein@mcguirewoods.com Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick -10- BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 2 Trans ID: LCV20222888509 Philip A. Goldstein (NJ Bar # 025732001) MCGUIREWOODS LLP 1251 Avenue of the Americas, 20th Floor New York, New York 10020-1104 (212) 548-2167 pagoldstein@mcguirewoods.com Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick JOSEPH VILLANI, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: BERGEN COUNTY Plaintiff, Civil Action -against- Docket No. BER-L-004241-18 P. GREGORY HESS, et al., CERTIFICATION OF SERVICE Defendants. Motion Date: August 26, 2022 I, PHILIP A. GOLDSTEIN, of full age, hereby certify as follows: 1. I am an attorney-at-law in the State of New Jersey and am Counsel with the law firm of McGuireWoods LLP, attorneys for non-parties Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”), on behalf of itself and its employee William Bulick (“Mr. Bulick”) and Mr. Bulick, in the above-captioned matter. 2. On August 9, 2022, I caused a true and correct copy of Merrill and Mr. Bulick’s (1) Notice of Motion to Quash and for Protective Order; (2) Memorandum of Law in Support of Motion to Quash and for Protective Order; and (3) Certification of Philip A. Goldstein in Support of Motion to Quash and for Protective Order, and the exhibits annexed thereto, to be duly served upon all parties to this action as listed below via the court’s electronic filing system (eCourts): Jeffrey A. Bronster, Esq. 17 Wendell Place Fairview, New Jersey 07022 jbronster@bronsterlaw.com Attorneys for Plaintiff 1 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 2 Trans ID: LCV20222888509 Robert T. Gunning, Esq. Morrison Mahoney, LLP Waterview Plaza 2001 US Highway 46, Suite 200 Parsippany, New Jersey 07054 rgunning@morrisonmahoney.com Attorneys for Defendants I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: New York, New York August 9, 2022 /s/ Philip A. Goldstein Philip A. Goldstein (NJ Bar # 025732001) MCGUIREWOODS LLP 1251 Avenue of the Americas, 20th Floor New York, New York 10020-1104 Phone: (212) 548-2167 pagoldstein@mcguirewoods.com Attorneys for Non-Parties Merrill Lynch, Pierce, Fenner & Smith Incorporated and William Bulick 163021665_1 2 BER-L-004241-18 08/09/2022 5:13:46 PM Pg 1 of 2 Trans ID: LCV20222888509 EXHIBIT A BER-L-004241-18 08/09/2022 5:13:46 PM Pg 2 of 2 Trans ID: LCV20222888509 , ~ ..,. - C: ~ -L~ ... JEFFREY A. BRONSTER, ESQ. 17 Wendell Place Fairview, New Jersey 07022 (201) 945-2566 jbronster@bronsterlaw.com Attorney ID No. 049411988 Attorney for Plaintiff ---------------------------------------------x SUPERIOR COURT OF NEW JERSEY JOSEPH VILLANI, LAW DMSION: BERGEN COUNTY DOCK.ET NO: BER-L-4241-18 Plaintiff, Civil Action V. P. GREGORY HESS, et al., SuD,paeJta ad g ~tificandum Defendants. ---------------------------------------------x STATE OF NEW JERSEY TO: William Bulick 343 Henry Street Scotch Plains, NJ 07076 YOU ARE HEREBY COMMANDED to appear in person before the Superior Court of New Jersey, Law Division, Bergen County, Civil Part, at the Court House located at 10 Main Street, Hackensack, New Jersey, on June 27, 2022 at 9:00 a.m., and there to testify as a witness in the above-captioned matter. Failure to appear or comply with the command of this Subpoena will subj ect you to the penalties