United States District Court, E.D. Louisiana
DIMITRI FRAZIER, ET AL.
ROBERT L. RUNNELS, ET AL.
L. R. LEMELLE JUDGE.
ORDER AND REASONS
van Meerveld United States Magistrate Judge.
the Court is the Motion to Quash Subpoena, Motion for
Protective, and Motion for an Award of Attorneys' Fees
filed by Motta Law, LLC. (Rec. Doc. 46). For the following
reasons, the Motion is GRANTED in part and DENIED in part.
lawsuit arises out of a November 13, 2017, car accident.
Plaintiffs Dimitri Frazier, Tiffany Turner, and Adonte Turner
allege that defendant Robert L. Runnels was driving a
semi-truck within the course and scope of his employment for
Whitestone Transportation, L.L.C. (“Whitestone”)
when he collided into the rear of Plaintiffs' vehicle.
Plaintiffs claim they have suffered severe and serious bodily
injuries as a result of the collision. Plaintiffs allege that
the New Orleans Police Department was called and that Runnels
was issued a citation for failure to use reasonable
vigilance. They assert that Runnels' negligence was the
sole and proximate cause of the accident and that Whitestone
is vicariously liable. They add that Whitestone is liable for
its own negligence in entrusting their vehicle to Runnels and
failing to train him properly. They have also sued Canal
Insurance Company, which they believe to be the insurance
company that issued the insurance policy covering the vehicle
driven by Runnels.
filed this lawsuit on March 4, 2018. Defendants answered on
April 12, 2018. Defendants have filed a Counterclaim,
alleging that as a result of Plaintiffs misrepresenting
and/or staging the accident and/or injuries at issue in this
lawsuit, Defendants have suffered damages, including
attorney's fees and litigation expenses. They allege that
Runnels did not experience any type of impact consistent with
a motor vehicle accident and that the data system on board
the 18-wheeler did not document any type of impact. They
allege that there was no damage to the 18-wheeler, although
there was significant damage to the Plaintiffs' vehicle.
They allege that they have discovered over 30 other accidents
with similar factual scenarios to the present accident, where
on a particular stretch of Interstate-10 near New Orleans, an
unknown third vehicle waves down an 18-wheeler driver that is
unaware that he/she was allegedly involved in an accident.
Defendants submit that the alleged accident victims in these
cases all retained the same attorney that Plaintiffs in this
case originally retained-Vanessa Motta. Defendants allege
that plaintiff Tiffany Turner's son, who is the brother
of plaintiff Adonte Turner, was one of these plaintiffs who
was allegedly involved in an accident with the same fact
pattern as here, only about five miles down I-10 from, and
about two weeks after, the accident here. Defendants allege
that Tiffany Turner's former husband was also allegedly
involved in an accident with the same fact pattern in the
same area about four months prior to the accident alleged by
Plaintiffs here. Defendants allege that they uncovered
comments on a photo posted to Tiffany Turner's Facebook
page where an individual named Marlene Kennedy asserts that
Tiffany and her kids have intentionally caused or faked
accidents on the “blind side” of 18 wheelers.
Defendants incorporate an image of the Facebook post.
Defendants further allege that Tiffany Turner has a prior
conviction of forgery and that she has filed questionable
insurance claims in the past. Defendants assert that
additional discovery will uncover further misrepresentations.
December 14, 2018, the Defendants served attorney Motta's
law firm, Motta Law, LLC (“Motta Law”) with a
subpoena seeking three categories of documents. First,
Defendants demand all documents showing that Motta Law
represents any claimant involved in a motor vehicle accident
with a commercial vehicle on Interstate 10 in New Orleans
between the Franklin Avenue exit and the Little Woods exit
from 2016 through the present. The second request seeks all
documents indicating that Motta Law represents any of the
claimants listed in an attached chart, which lists 77 alleged
accidents. Both of these requests specifically include
letters of representation that have been sent to third
parties and pleadings filed with the court, and they both
specifically exclude any confidential client communications.
The third request seeks a complete list of all phone numbers
and phone providers associated with or used by Motta Law
and/or Ms. Motta.
Law has filed the present motion to quash the subpoena. Motta
Law also seeks a protective order, arguing that further
harassment by Defendants should be prohibited. Motta Law also
requests attorneys' fees for the filing of the motion.
Standard for Quashing a Subpoena
Rule 45, the Court may 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 of
waiver applies; or (iv) subjects a person to undue
burden.” Fed. R. Civ. Proc. 45(d)(3); see Wiwa v.
Royal Dutch Petroleum Co., 392 F.3d 812, 817-18 (5th
Cir. 2004). The moving party bears the burden of showing that
compliance with the subpoena would be unduly burdensome.
Wiwa, 392 F.3d at 818; Informd, LLC v. DocRX,
Inc., No. MC 16-83-JJB-EWD, 2016 WL 7478962, at *3 (M.D.
La. Dec. 29, 2016). In assessing the undue burden, the Court
considers “(1) relevance of the information requested;
(2) the need of the party for the documents; (3) the breadth
of the document request; (4) the time period covered by the
request; (5) the particularity with which the party describes
the requested documents; and (6) the burden imposed.”
Wiwa, 392 F.3d at 818. Where a non-party is subject
to a subpoena, “the court may also consider the expense
and inconvenience to the non-party.” Wiwa, 392
F.3d at 818. The Court should also consider whether the
requested information is available from any other source.
Positive Black Talk Inc. v. Cash Money Records,
Inc., 394 F.3d 357, 377 (5th Cir. 2004) abrogated on
other grounds by Reed Elsevier, Inc. v. Muchnick, 559
U.S. 154 (2010).
assessing the relevance of the information sought, the Court
is guided by the scope of discovery announced by Federal Rule
of Civil Procedure 26(b)(1). See Hahn v. Hunt, No.
CV 15-2867, 2016 WL 1587405, at *1 (E.D. La. Apr. 20, 2016),
aff'd, No. CV 15-2867, 2016 WL 6518863 (E.D. La.
Nov. 2, 2016) (quoting Garvin v. S. States Ins. Exchg.
Co., No. 1:04cv73, 2007 WL 2463282, at *5 n.3 (N.D.
W.Va. Aug. 28, 2007)) (explaining that as with other
discovery devices, a Rule 45 subpoena is “subject to
the parameters established by Rule 26”) Am.
Fed'n of Musicians of the United States & Canada v.
Skodam Films, LLC, 313 F.R.D. 39, 44-45 (N.D. Tex. 2015)
(alteration in original) (quoting Williams v. City of
Dallas, 178 F.R.D. 103, 110 (N.D. Tex. 1998))
(concluding that “[w]hen a subpoena is issued as a
discovery device, relevance for purposes of the undue burden
test is measured according to the standard of [Federal Rule
of Civil Procedure] 26(b)(1)”). Rule 26 provides that
that “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.” Fed. R. Civ. Proc. 26(b)(1).
Standard for Issuance of a Protective Order
26(c) provides that the Court “may, for good cause,
” protect a party or person “from annoyance,
embarrassment, oppression, or undue burden or expense”
by issuing an order, including an order forbidding certain
disclosure or discovery or forbidding inquiry into certain
Louisiana Code of ...