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Wyant v. Nationstar Mortgage, LLC

United States District Court, W.D. Louisiana, Monroe Division

February 4, 2015

EMILY FRANCES FRAGALA WYANT, ET AL.,
v.
NATIONSTAR MORTGAGE, LLC, ET AL

MEMORANDUM ORDER

KAREN L. HAYES, Magistrate Judge.

Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to quash and associated request for fees and costs pursuant to Rule 45(c)(3)(A) [doc. # 46], filed by defendant Shapiro & Daigrepont, LLC ("S&D"). The motion is opposed. For reasons explained below, the motion and associated request for fees and costs is GRANTED IN PART and DENIED IN PART, as further detailed below.[1]

Background[2]

On January 12, 2015, plaintiffs Emily Frances Fragala Ivy Wyant, Inez Tannehill Fragala, and John Fragala (collectively, the "Fragalas") served S&D with a Rule 30(b)(6) deposition notice (styled as "Notice of Oral Deposition Duces Tecum to S&D..."), setting S&D's deposition for January 29, 2015. (Notice of Oral Deposition; M/Quash, Exh. A). The notice also directed S&D to produce, at the deposition, copies of documents for some 24 itemized areas of inquiry. Id.

S&D construed the notice as a subpoena, and on January 22, 2015, filed the instant motion to quash pursuant to "Rule 45(c)(3)(A)" [sic].[3] See M/Quash. S&D urged three principal arguments in support of its motion: 1) the requested discovery is subject to attorney-client privilege; 2) the discovery is unduly burdensome, cumulative, and/or duplicative because plaintiffs seek documents that S&D answered pursuant to plaintiffs' previous documents request; and 3) the requested discovery is no longer relevant because it pertains to claims that were dismissed. (M/Compel, Memo., pg. 3).

On January 26, 2015, plaintiffs filed their opposition to the motion to quash. (Pl. Opp. Memo. [doc. # 49]). Plaintiffs observed initially that S&D filed their motion under the wrong rule because plaintiffs intended their "Notice of Oral Deposition Duces Tecum" to serve as a notice of 30(b)(6) deposition (and, apparently, a request to produce documents under Rule 34) - not a subpoena. Plaintiffs also contested the substance of S&D's motion, noting, inter alia, that S&D had not produced a privilege log, and therefore, plaintiffs did not know what documents S&D had withheld. (Pl. Opp. Memo., pg. 15). Moreover, contrary to S&D's representations, it did not produce all documents originally requested by plaintiffs in their July 22, 2014, Request for Production of Documents. Plaintiffs further maintained that none of their document requests pertained to dismissed claims. (Pl. Opp. Memo., pg. 16).

Plaintiffs' counsel also represented that counsel for S&D failed to meet and confer before filing the instant motion. (Pl. Opp. Memo., pg. 1). Since then, however, counsel had agreed to confer within "the next couple of days to try to resolve those objections/privilege assertions." Id., pg. 15. Given the circumstances, the parties agreed to continue the deposition date, but by no more than seven days. Id., pg. 2.

On January 29, 2015, S&D filed a reply memorandum, re-urging most of its prior arguments. (Reply Memo. [doc # 52]). Specifically, S&D recited law regarding attorney-client privilege, offered to provide a privilege log, and agreed to make the documents available to the court for in camera review. Id. S&D also listed the claims that the court had dismissed. Id. S&D concluded by petitioning the court to issue a protective order that guarded its privileged documents from production and confirmed their confidentiality. Id.

Law

As an initial matter, the court emphasizes that, according to plaintiffs, they did not issue a subpoena, but solely a notice of deposition under Rule 30(b)(6), and apparently, a request to produce documents under Rule 34.[4] Moreover, the word, "subpoena, " does not appear in the notice. On the other hand, S&D may have been led astray by plaintiffs' inclusion of "Duces Tecum" in the deposition notice. The court will construe the precipitating document as a notice of Rule 30(b)(6) deposition and associated request for production of documents under Rule 34. As a result, the court will construe S&D's motion as a motion for protective order.

Upon a showing of good cause, a court may issue an order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including [an order]... specifying terms... for the disclosure or discovery..." Fed.R.Civ.P. 26(c)(1)(B). "Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199 (1984).

The party seeking the protective order must establish good cause for the entry of the order by making a "particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193 (1981); see also, In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998).

Under Rule 34, "a party may serve on any other party a request within the scope of Rule 26(b)... to produce... any designated documents... or any tangible things" that are within the "party's possession, custody, or control..." Fed.R.Civ.P. 34(a)(1). Rule 26(b) provides, in turn, that

[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information ...

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