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Glacier Pool Coolers, LLC v. Cooling Tower Systems, LLC

United States District Court, E.D. Louisiana

May 17, 2017

GLACIER POOL COOLERS, LLC, ET AL
v.
COOLING TOWER SYSTEMS, LLC

         SECTION: “E” (4)

          ORDER

          KAREN WELLS ROBY UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Motion to Quash Subpoena Issued to Non-Party SCP Distributors, LLC, for Protective Order, and for Award of Attorneys' Fees (R. Doc. 1) filed by non-party SCP Distributors, LLC (“SCP”) seeking an order to quash the Subpoena to Testify at a Deposition in the matter of Glacier Pool Coolers, LLC, et al v. Cooling Towers Systems, LLC, Civ. Act. No. 2:15-CV-2338 (D. Ariz.) (“Arizona Lawsuit”). The motion is opposed. R.

         I. Background

         This motion to quash was filed in the District Court on April 17, 2017 pursuant to Federal Rule of Civil Procedure 45(3), which requires that motions to quash be filed in the district where compliance to a subpoena is required. R. Doc. 1. Non-party SCP seeks to quash a Subpoena to Testify at a Deposition issued by Cooling Towers Systems, Inc. (“Cooling Towers Systems”) that arises out of the underlying Arizona Lawsuit between Glacier Pool Coolers, LLC (“Glacier”) and Cooling Towers Systems. R. Doc. 2, p. 1. In the Arizona Lawsuit, Glacier has alleged that Cooling Towers tortuously interfered with a contract between Cooling Towers and SCP which resulted in a $70, 000 loss of business in 2015. Id. Jonathan Hein, an employee of SCP, is listed as a witness likely to testify in support of Glacier's tortious interference claim. Id.

         On April 11, 2017, Cooling Towers allegedly attempted to serve a Third Subpoena to Testify at a Deposition on SCP by leaving the subpoena with a paralegal from SCP's general counsel office. R. Doc. 1-1, p. 3. Cooling Towers had twice attempted to serve SCP with a subpoena to testify previously, but those attempts were objected to and/or withdrawn. Id. at p. 2-3. SCP now seeks to have that subpoena quashed because: (1) the subpoena was not served on an authorized representative of SCP; (2) the Subpoena failed to specify the place for deposition; (3) the person who served the subpoena did not tender a mileage fee for SCP to travel to the unidentified deposition location; (4) the subpoena failed to designate documents although it stated that document production was required; and (5) the subpoena would impose undue burden or expense on SCP. R. Doc. 1, p. 1-2. SCP has also moved for a protective order prohibiting any further attempts to subpoena it in connection with the Arizona Lawsuit as well as for an award of sanctions, including attorneys' fees because it had to incur expenses responding to the numerous deficient subpoenas. Id.

         Cooling Towers has opposed the motion. R. Doc. 2. In particular, Cooling Towers argues that the technical defects were de minimus that could have easily been corrected and that it has issued a curative Amended Subpoena curing all the technical defects identified by SCP's motion to quash. Id. at p. 2. Moreover, Cooling Towers argues against the award of attorney's fees because it says that any identified technical errors in previous subpoenas did not prejudice SCP and that it has acted in good faith at all times. Id.

         II. Standard of Review

         Federal Rule of Civil Procedure 45(d)(3) governs the quashing or modifying of subpoenas. The Court must quash or modify a subpoena that “ (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (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)(i)-(iv). The Court may also modify or quash a subpoena that requires the disclosure of a trade secret or an unretained expert's opinion that does not describe specific occurrences in dispute and results from that expert's study that was not requested by a party. Fed.R.Civ.P. 45(d)(3)(B).

         Subpoenas under Rule 45 may be served upon both party and non-parties. Petit v. Heebe, No. 15-3084, 2016 WL 1089351, at *2 (E.D. La. Mar. 21, 2016). However, in order to challenge the subpoena, the movant must: be in possession or control of the requested material; be the person to whom the subpoena is issued; or have a personal right or privilege in the subject matter of the subpoena or a sufficient interest in it. See, Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979); see also Johnson v. Mixon, No. 13-2629, 2014 WL 1764750, at *4 (E.D. La. May, 2, 2014). “Both Rules 45 and 26 authorize the court to modify a subpoena…when its scope exceeds the boundaries of permissible discovery or otherwise violates the parameters of Rule 45.” Hahn v. Hunt, No. 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016). Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense ..... ” Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be “proportional to the needs of the case, considering the important 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.” Id.

         Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the proposed discovery is outside of the scope permitted under Rule 26(b)(1).

         Finally, Rule 26(c) governs the issuances of Protective Orders in discovery. A 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). The rule offers a variety of potential options that the Court may use to protect the moving party, including forbidding or limiting the scope of discovery into certain matters or requiring that a trade secret or other confidential commercial information not be revealed or be revealed in only a certain way. Fed.R.Civ.P. 26(c)(1)(D), (G). “The party seeking the protective order bears the burden to show ‘the necessity of its issuance, which contemplates a particular and specific demonstration of fact[.]'” Cazaubon v. MR Precious Metals, LLC, 14-2241, 2015 WL 4937888, at *2 (E.D. La. Aug. 17, 2015) (quoting In re Terra Int'l, 134 F.3d 302, 306 (5th Cir.1998)). The trial court enjoys wide discretion in setting the parameters of a protective order. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“To be sure, 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.”). Finally, Rule 26(c)(1) requires a certification that the moving party has conferred or attempted to confer in good faith with the other affected party to attempt to resolve the issue without the court's interference.

         III. Analysis

         Here, SCP seeks to have the Subpoena to Testify at a Deposition issued by Cooling Towers in the underlying Arizona Litigation quashed. R. Doc. 1. As an initial matter, SCP argues that the subpoena should be quashed given a number of technical deficiencies with the subpoena. R. Doc. 1-1, p. 4-8. And, for a few of these deficiencies, SCP is correct. First, by serving a paralegal and not an authorized representative of SCP, service was not proper. See Liberty Mut. Fire Ins. Co. v. Ravannack, No. 00-1209, 2002 WL 1770936, at *3 (E.D. La. Aug. 1, 2002). Second, the subpoena fails to identify the place for compliance (R. Doc. 1-5, p. 79) as required under the Federal Rules. Fed.R.Civ.P. 45(a)(1)(A)(iii) (requiring that a subpoena must state that the person is to be directed to comply at “a specified time and place”). Third, the subpoena was allegedly not served with the proper mileage fee and was therefore noncompliant with the Federal Rules. Fed.R.Civ.P. 45(b)(1) (“if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law” must be tendered at the time of service.”). Finally, SCP also complains that the subpoena do not designate the categories of documents sought. Indeed, the subpoena does not describe documents ...


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