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Frazier v. Runnels

United States District Court, E.D. Louisiana

January 30, 2019


         SECTION: “B” (1)



          Janis van Meerveld United States Magistrate Judge.

         Before 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.


         This 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.

         Plaintiffs 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.

         On 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.

         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. Defendants oppose.

         Law and Analysis

         1. Standard for Quashing a Subpoena

         Under 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).

         In 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).

         2. Standard for Issuance of a Protective Order

         Rule 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 matters. 26(c)(1)(D).

         3. Louisiana Code of ...

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