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Artis v. Murphy-Brown, LLC

United States District Court, E.D. North Carolina, Southern Division

July 9, 2018

BEN ARTIS, et al., Plaintiffs,



         This 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.;

         I. BACKGROUND

         This 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, 2018 subpoena.


         Rule 45 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).

         "Rule 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. 1992).

         However, 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. 2003).

         Generally, 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.").

         III. ANALYSIS

         Plaintiffs 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.

         First, 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 ...

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