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In re Subpoena Duces Tecum Issued to Stewart Robbins & Brown, LLC

United States District Court, M.D. Louisiana

May 9, 2017

IN RE SUBPOENA DUCES TECUM ISSUED TO STEWART ROBBINS & BROWN, LLC
v.
LESLIE B. FOX, NO. 16-cv-850 W.D. La. filed June 16, 2016 IN THE MATTER OF WEINER, WEISS & MADISON, APLC AND KANTROW, SPAHT, WEAVER & BLITZER APLC

         MISCELLANEOUS ACTION

          ORDER

          RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Rule 45 Motion to Compel (R. Doc. 1) filed on February 1, 2017 by Weiner, Weiss & Madison, APLC and Kantrow, Spaht, Weaver & Blitzer (APLC) (the Firms). The Firms move the Court to compel a non-party, Stewart Robbins & Brown, LLC (Stewart) to produce documents responsive to the Firms' Rule 45 subpoena duces tecum. Following service of the Motion (R. Doc. 3), Stewart filed a Response in Opposition on February 24, 2017. (R. Doc. 5). After granting the Firms' request for leave (R. Doc. 10) to file their Reply Memorandum (R. Doc. 11), the Court considered the matter submitted. For the reasons given below, the Firms' Motion to Compel is GRANTED in part and DENIED in part.

         I. BACKGROUND

         The Firms are plaintiffs in a pending civil action filed against Leslie B. Fox (Ms. Fox) in the Western District of Louisiana for “breach of a contingency fee contract between the Firms and [Ms.] Fox.” Complaint at 2, Weiner Weiss & Madison, APC v. Fox (Weiner v. Fox), No. 16-cv-850 (W.D. La. June 16, 2016), ECF No. 1 (hereinafter referred to as “Complaint”). According to the Complaint, Ms. Fox retained the Firms from June of 2009 until March of 2016 to represent her interests in two Chapter 11 bankruptcy proceedings (the Bankruptcy Proceeding) filed by her then- husband, Harold Rosbottom. Complaint at 2, ECF No. 1. During that time, the Firms entered into two contingency fee agreements with Ms. Fox, the second of which is at issue in this litigation and entitled the Firms to “40 percent of the cash and other property distributed” to Ms. Fox under the Bankruptcy Plan. Complaint at 22.

         The Firms claim that by late 2015, their work on behalf of Ms. Fox and their representation of her was substantially complete. And so, they sought to collect their fees under the second contingency fee agreement, presenting Ms. Fox with a proposed implementation plan in January of 2016. Complaint at 21. Through independent counsel on March 11, 2016, Ms. Fox rejected the Firms' proposed implementation plan because she believed the fee agreement was “unenforceable” and that the Firms were not entitled to the 40 percent she owed under the agreement. Complaint at 21.

         On June 16, 2016, the Firms filed suit against Ms. Fox in the Western District of Louisiana claiming first that Ms. Fox “breached the Second Contingency Fee Agreement” and they are therefore “entitled to specific performance” and “a money judgment against Fox for the value of the Firms' contingency fee interest in her property . . . .” Complaint at 21-22. Alternatively, if their “Second Contingency Fee Agreement [with Ms. Fox] be deemed unenforceable . . . then the Firms” believe they “are entitled to recovery in quantum meruit against Fox . . . . commensurate with their contingency fee interest under the Second Contingency Fee Agreement.” Complaint at 23.

         In her Answer and Counterclaim, Ms. Fox argues, among other things, that the contingency fee agreement was “neither fair nor reasonable” and violated Rule 1.5(a) the Louisiana Rules of Professional Conduct, among others, making it unenforceable. Def.'s Answer & Countercl. at 21-22, Weiner v. Fox, No. 16-cv-850 (W.D. La. July 19, 2016), ECF No. 10.

         During the course of discovery, the Firms issued a Rule 45 subpoena to a non-party law firm, Stewart Robbins & Brown, LLC (Stewart). (R. Doc. 1-3). Stewart represented the Chapter 11 debtor, Ms. Fox's ex-husband Harold Rosbottom, in the underlying bankruptcy proceeding. The subpoena asked Stewart to produce the following communications:

         All documents in your possession sent to or received from Louis M. Phillips, [the attorney who represented the court-appointed, Chapter 11 trustee in the underlying bankruptcy], relating to the following:

(a) The Bankruptcy Proceedings;
(b) Leslie B. Fox;
(c) The Firms' representation of Leslie B. Fox in the Bankruptcy Proceedings; or
(d) The above-captioned matter.

(R. Doc. 1-3 at 11). Stewart timely objected to the subpoena as overly broad, unduly burdensome and requesting irrelevant information, among other things.[1] (R. Doc. 1-5). Following Stewart's objection, the Firms limited the scope of their request, “eliminating . . . any pleadings and any communications or documents which were also sent to, or which carbon copied, the Firms.” (R. Doc. 1 at 2-3). Nonetheless, when Stewart ...


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