United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
L. PATRICK AULD, Magistrate Judge.
This matter comes before the Court on Non-Party North Carolina Secretary of State's Motion to Quash and Objection to Subpoena and Notice of Deposition. (Docket Entry 96.) For the reasons that follow, the Court will grant the instant Motion.
Plaintiffs' First Amended Complaint alleges unfair competition and civil conspiracy by Defendants under North Carolina law, in connection with Non-Party Robert Quinn's termination of his contract with Plaintiff Carey. (Docket Entry 17 at 16-23; see also Docket Entry 41 at 30 (Court's Order, per Chief United States District Judge William L. Osteen, Jr., dismissing additional claims).) In September 2014, Plaintiffs served a Subpoena Duces Tecum on the North Carolina Secretary of State ("Secretary") (Docket Entry 97-1) and, further, noticed a deposition for the Secretary's custodian of records (Docket Entry 97-2). In response, the Secretary filed the instant Motion, contending that Plaintiffs' Subpoena and Notice of Deposition seek disclosure of privileged or otherwise protected information and, further, that the Subpoena imposes an undue burden on the Secretary. (Docket Entry 97 at 3.) It also asserts that Plaintiffs' Notice of Deposition does not suffice to compel a non-party to appear for a deposition. (Id. at 8-9.) Finally, the instant Motion avers that Plaintiffs' Subpoena and Notice fail to allow a reasonable amount of time to comply. (Id. at 6.) Plaintiffs responded (Docket Entry 108) and the Secretary replied (Docket Entry 115).
Rule 45 of the Federal Rules of Civil Procedure governs subpoenas issued to non-parties. See Fed.R.Civ.P. 45. The scope of discovery under Rule 45 tracks Rule 26, see Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 240 (M.D. N.C. 2010) (citing Fed.R.Civ.P. 26 advisory committee's note, 1991 amend., subdiv. (a)), which allows for the discovery of "any nonprivileged matter that is relevant to any party's claim or defense, " Fed.R.Civ.P. 26(b)(1). Under this standard, "[r]elevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.
Rule 45 provides that "[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Fed.R.Civ.P. 45(d)(1). To enforce that obligation, the Court "must quash or modify a subpoena that: (i) fails to allow a reasonable amount of time to comply;... (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Fed.R.Civ.P. 45(d)(3)(A). Under Rule 45, "the burden of proof is with the party objecting to the discovery to establish that the challenged production should not be permitted." IntegraMed Am., Inc. v. Patton, 298 F.R.D. 326, 331 (D.S.C. 2014). Thus, "when a non-party claims that a subpoena is burdensome and oppressive, the non-party must support its claim by showing how production would be burdensome." In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 612 (E.D. Va. 2008). When conducting an analysis under Rule 45, the Court "is required to apply the balancing standards: relevance, need, confidentiality and harm. Even if the information sought is relevant, discovery is not allowed where no need is shown, or where compliance is unduly burdensome, or where the potential harm caused by production outweighs the benefit." Insulate Am. v. Masco Corp., 227 F.R.D. 427, 432 (W.D. N.C. 2005) (citations omitted).
As an initial matter, the Court agrees with the Secretary's contention that a Rule 30(b) notice of deposition alone does not require a non-party to appear for a deposition (see Docket Entry 97 at 8-9). "Only a party to the litigation may, of course, be compelled to give testimony pursuant to a notice of deposition." In re Honda Am. Motor Co., Inc. Dealership Relations Litig., 168 F.R.D. 535, 540 (D. Md. 1996). Instead, "[a] subpoena is required to compel the attendance of a nonparty witness, although such a person always may volunteer to appear at the deposition." 9A Wright & Miller, Federal Practice & Procedure § 2460 (3d ed. 2001) (internal footnote omitted); see also Fed.R.Civ.P. 30(a)(1) ("A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45."). Moreover, Plaintiffs appear to have conceded this point by not addressing it in their Response. (See Docket Entry 108 at 1-12.) Given that Plaintiffs have not issued a proper subpoena to compel the deposition of a non-party (see Docket Entry 97-2), the Secretary's custodian of records has no obligation to comply with Plaintiffs' Notice of Deposition.
As to Plaintiffs' demand for documents, the Secretary first contends that the Court should quash the Subpoena because it would require the disclosure of privileged or other protected matter. (Docket Entry 97 at 3-5.) The Federal Rules of Evidence establish that, "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Fed.R.Evid. 501. Given that all of Plaintiffs' claims arise under North Carolina law (see Docket Entry 17 at 16-23), the Court must look to North Carolina's law of privilege to determine whether the requested documents qualify as privileged or other protected matter.
North Carolina courts have not formally recognized a law-enforcement privilege that protects from disclosure the records of an ongoing governmental investigation, as many other jurisdictions have, see, e.g., Johnson v. Rankin, 2:11CV415, 2011 WL 5358056, at *1-2 (E.D. Va. Nov. 11, 2011) (describing and applying federal law-enforcement privilege). However, North Carolina's Public Records Act specifically exempts from its definition of public records "[r]ecords of criminal investigations conducted by public law enforcement agencies [and] records of criminal intelligence information compiled by public law enforcement agencies." N.C. Gen. Stat. 132-1.4(a); see also In re Department of Investigation of N.Y., 856 F.2d 481, 483-44 (2d Cir. 1988) (explaining that law-enforcement privilege has been "largely incorporated into the various state and federal freedom of information acts"). That exemption does not create an absolute bar to disclosure; rather, the Act affords courts the discretion to order the disclosure of criminal investigation records in appropriate circumstances. N.C. Gen. Stat. § 132-1.4(a); see also In re Investigation into Death of Cooper, 200 N.C.App. 180, 186-88, 683 S.E.2d 418, 423-25 (2009) (holding that trial court did not abuse its discretion by shielding search warrants to protect active homicide investigation).
In exercising that discretion, North Carolina courts have frequently declined to order the disclosure of records of criminal investigations to news organizations, even when such investigations have long concluded. See, e.g., Death of Cooper, 200 N.C.App. at 188, 683 S.E.2d at 425; Gannett Pac. Corp. v. North Carolina State Bureau of Investigation, 164 N.C.App. 154, 161, 595 S.E.2d 162, 166 (2004). The North Carolina Supreme Court has explained that
Reports based on criminal investigations are often exempt from disclosure because they are based on hearsay and consist largely of the opinions and conclusions of the investigators. The need for protection of confidentiality of government informants and the protection of investigative techniques used by law enforcement agencies also have been generally accepted as justifying prohibitions on disclosure of police and investigative records.
News & Observer Pub. Co. v. State ex rel. Starling, 312 N.C. 276, 282, 322 S.E.2d 133, 138 (1984). Although civil litigants enjoy broader access to public records than available to a news organization, Gannett, 164 N.C.App. at 161, 595 S.E.2d at 166 ("Plaintiffs are neither criminal defendants nor civil litigants seeking discovery of admissible evidence to be used in a trial. Instead, they sought access to [criminal-investigation] records only due to their desire to know and publish the contents." (internal quotation marks and alterations omitted)), that access is not absolute, see, e.g., N.C. Gen. Stat. § 15A-904 (listing types of information within criminal-investigative files not subject to disclosure in criminal trials).
In support of disclosure, Plaintiffs correctly note that "[t]he fact that requested records may not be subject to public disclosure under the North Carolina Public Records Act does not mean that the information is not otherwise discoverable in federal civil litigation... [and that] there appears to be no privilege' at issue in the requested documents...." (Docket Entry 108 at 8.) Nonetheless, the exclusion of such records from the category of materials made available under the Public Records Act and North Carolina courts' general reluctance to order their disclosure tends to support the view that the Subpoena "requires disclosure of... other protected matter, " Fed.R.Civ.P. 45(d)(3)(A)(iii) (emphasis added). Furthermore, the Secretary has asserted that the disclosure of files from its ongoing investigations "could lead to flight from prosecution, destruction or tampering with evidence, intimidation of potential witnesses and could otherwise jeopardize the investigations and unduly delay the criminal trials." (Docket Entry 97 at 4.) In support of the foregoing, the Secretary has submitted a series of sworn statements. (See generally Docket Entries 97-3; 115-1; 115-2.) In sum, although the Public Records Act does not require the Court to quash the ...