United States District Court, E.D. North Carolina, Southern Division
B. JONES JR. UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiffs' motion for a
protective order [DE-157], to which Defendant filed a
response in opposition [DE-159], and Defendant's motion
to compel production of documents [DE-168]. A hearing on the
motion for protective order was held on this day, and the
issues are ripe for decision. For the reasons set forth
below, the motion for protective order is allowed and the
motion to compel is denied as moot.;
case is one of five bellweather cases in which discovery
concluded, but for some limited exceptions not relevant here,
on October 31, 2016. Master No. 5:15-CV-13 [DE-96]. The trial
for six plaintiffs in this case-the third trial in a series
of eleven comprising the trials of the bellweather cases-is
scheduled to begin tomorrow, July 10, 2018. Defendant issued
identical document subpoenas dated June 15 and 22, 2018, to
Tom Butler, a nonparty who testified as a fact' witness
for Plaintiffs at the first two trials. Pis.' Mem., Exs.
4-5 [DE-158-4, -5]. On June 22, 2018, Defendant provided
notice to Plaintiffs that it would issue the Butler subpoena.
Id., Ex. 5 [DE-158-5]. Defendant issued five
document subpoenas (one in each bellweather case) dated June
27, 2018, to Source Molecular, a nonparty laboratory located
in Florida, which analyzed samples of Plaintiffs' expert,
Dr. Rodgers. Id., Ex. 7 [DE-158-7]. Defendant
provided notice to Plaintiffs that it would issue the Source
Molecular subpoenas on the same date. Id. After
satisfying the meet and confer requirements, Fed.R.Civ.P.
26(c)(1) & Local Civ. R. 7.1(c)(2), Plaintiffs filed the
instant motion for protective order to bar the production of
documents requested from Butler and Source Molecular pursuant
to the subpoenas, and Defendant filed the instant motion to
compel Butler to produce documents responsive to the June 22,
of the Federal Rules of Civil Procedure permits a party to
issue subpoenas for the production of documents and other
things from nonparties. Fed.R.Civ.P. 45(a)(1)(C);
Fed.R.Civ.P. 34(c) ("As provided in Rule 45, a nonparty
may be compelled to produce documents and tangible things or
to permit an inspection."); In re Subpoena to Robert
Kochan, No. 5:07-MC-44-BR, 2007 WL 4208555, at *4 (E.D.
N.C. Nov. 26, 2007) ("Rule 45 expressly permits a party
to issue discovery subpoenas to a nonparty for documents and
things in the nonparty's possession, custody, or
control") (citing Fed.R.Civ.P. 45(a)(1)(C)). A subpoena
is to be issued from the court where the action is pending,
Fed.R.Civ.P. 45(a)(2), but before serving a subpoena on a
nonparty, counsel must serve a notice and copy of the
subpoena on each party, Fed.R.Civ.P. 45(a)(4) ("If the
subpoena commands the production of documents, electronically
stored information, or tangible things or the inspection of
premises before trial, then before it is served on the person
to whom it is directed, a notice and a copy of the subpoena
must be served on each party."). "This notification
requirement exists, in part, to allow a party to object to
both the substance of the subpoena and its service on the
nonparty." Solais v. Vesuvio 's II Pizza &
Grill, Inc., No. 1:15-CV-227, 2015 WL 6110859, at *5
(M.D. N.C. Oct. 16, 2015). A subpoena may command production
of documents at a place within 100 miles of where the
subpoenaed person resides, is employed, or regularly
transacts business in person. Fed.R.Civ.P. 45(c)(2). A
nonparty served with a subpoena may respond as requested,
serve objections, or timely file a motion to quash or modify
the subpoena. Fed.R.Civ.P. 45(d). A court must quash or
modify a subpoena that fails to allow a reasonable time to
comply or requires a person to comply beyond the geographical
limits specified in the Rule. Fed.R.Civ.P. 45(c)(3).
45 adopts the standard codified in Rule 26" in
determining what is discoverable. Schaaf v. SmithKline
Beecham Corp., 233 F.R.D. 451, 453 (E.D. N.C. 2005).
Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). The rules of discovery, including
Rule 26, are to be given a broad and liberal construction.
Herbert v. Lando, 441 U.S. 153, 177 (1979);
Nemecek v. Bd. of Governors, No. 2:98-CV-62-BO, 2000
WL 33672978, at *4 (E.D. N.C. Sep. 27, 2000). While Rule 26
does not define what is deemed relevant for purposes of the
rule, relevance has been '"broadly construed to
encompass any possibility that the information sought may be
relevant to the claim or defense of any party.'"
EEOC v. Sheffield Fin. ZZC, No. 1:06CV889, 2007 WL
1726560, at *3 (M.D. N.C. June 13, 2007) (quoting Merrill
v. Waffle House. Inc., 227 F.R.D. 467, 473 (N.D. Tex.
2005)). The district court has broad discretion in
determining relevance for discovery purposes. Watson
v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir.
simply because "requested information is discoverable
under Rule 26 [(b)] does not mean that discovery must be
had." Nicholas v. Wyndham Int'l, Inc., 373
F".3d 537, 543 (4th Cir. 2004). Indeed, the court is
authorized to impose appropriate limitations on discovery.
Rule 26 provides that the "court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense."
Fed.R.Civ.P. 26(c)(1). Such orders may prescribe, among other
measures, "forbidding the disclosure or discovery"
or "forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain
matters." Fed.R.Civ.P. 26 (c)(1)(A), (c)(1)(D). A party
moving for a protective order has the burden of making a
particularized showing of why discovery should be denied, and
co*nclusory or generalized statements in the motion fail to
meet this burden. Smith v. United Salt Co., No.
1:08CV00053, 2009 WL 2929343, at *5 (W.D. Va. Sept. 9, 2009);
Jones v. Circle K Stores, Inc., 185 F.R.D. 223, 224
(M.D. N.C. 1999); see Carefirst of Md, Inc. v. Careflrst
Pregnancy Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir.
a party lacks standing to challenge a subpoena issued to a
nonparty. In re CR. Bard, Inc. Pelvic Repair Sys. Prod.
Liab. Litig., 2%1 F.R.D. 377, 382 (S.D. W.Va. July 12,
2012). However, where the challenging party has moved for a
protective order, the court is permitted to consider its
position on the merits. EEOC v. Bojangles Restaurants,
Inc., No. 5:16-CV-654, 2017 WL 2889493, at *4 (E.D. N.C.
July 6, 2017); Brown v. Mountainview Cutters, LLC,
No. 7:15-CV-204, 2016 WL 3045349, at *2 (W.D. Va. May 27,
2016) ("[E]ven if the court could find that [the movant]
did not have standing to quash the subpoenas under Rule 45 of
the Federal Rules of Civil Procedure, she would still have
standing under Rule 26 to challenge the subpoenas as
irrelevant and overbroad."); HDSherer LLC v. Natural
Molecular Testing Corp., 292 F.R.D. 305, 307 (D.S.C.
2013) ("Ordinarily, a party does not have standing to
challenge a subpoena issued to a nonparty unless the party
claims some personal right or privilege in the information
sought by the subpoena. . . . Notably, however, Defendant has
also made a motion for a protective order under Rule 26;
therefore, Defendant has standing to challenge the subpoenas
under Rule 26 standards, regardless of whether [it has]
standing to bring a motion to quash under Rule 45.").
contend the document subpoenas constitute improper and
untimely discovery in violation of the court's scheduling
order, or are otherwise defective, and seek a protective
order pursuant to Rule 26(c) precluding compliance by the
nonparties. Pis.' Mem. [DE-158] at 2-11. Defendant
contends Plaintiffs lack standing to challenge the subpoenas,
Defendant's issuance of the subpoenas is consistent with
Plaintiffs' recently-issued subpoena to Mr. Hilton, and
these documents will eventually be obtained when fact
discovery opens in other related cases involving the same
factual matter. Def.'s Mem. [DE-159] at 1-6.
Plaintiffs have properly challenged the subpoenas through a
motion for protective order under Rule 26(c), and
Defendant's standing challenge fails. See
Bojangles, 2017 WL 2889493, at *4 ("[E]ven if
plaintiff were deemed not to have standing to challenge the
subpoena, plaintiff has also moved for a protective order,
permitting the court order to consider its position on the
merits."); CTB, Inc. v. Hog Slat, Inc., No.
7:14-CV-157-D, 2016 WL 1244998, at *5 (E.D. N.C. Mar. 23,
2016) (concluding that even if a party were deemed not to
have standing to challenge a ...