United States District Court, W.D. Louisiana, Alexandria Division
MINUTES AND MEMORANDUM ORDER
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.
the Court are: (1) a “Motion to Enforce and Compel
Compliance with Third-Party Subpoena” (“Motion to
Enforce”) (Doc. 1), filed by Plaintiff Hayward Dean
(“Dean”); and (2) a “Cross-Motion to Quash
Third-Party Subpoena” (“Motion to Quash”)
(Doc. 4), filed by Defendant Akal Security, Inc.
(“Akal”). Dean seeks an order compelling
compliance of a second third-party subpoena issued to
Bracewell, LLC (“Bracewell”) on July 19, 2018
(“Second Subpoena”). (Doc. 1, pp. 5-10). Akal
opposes and seeks quashal of the Second Subpoena. (Doc. 4).
Bracewell, a non-party, also opposes Dean's Motion to
Enforce. (Doc. 5). Dean opposes Akal's Motion to Quash.
(Doc. 20). This matter was set for hearing on September 27,
2018 but was continued without date by joint motion. (Docs.
21, 22, 23). No. action was thereafter taken by the parties.
The Court initiated a telephone status conference before the
undersigned on March 21, 2019.
underlying collective action was filed by Dean under 29
U.S.C. § 216(b) on behalf of himself and other similarly
situated current and former employees against Akal for
alleged violations of the Fair Labor Standards Act
(“FLSA”). See Dean v. Akal Security,
Inc., 1:17-cv-00543 (W.D. La.). Dean alleges he, and
other similarly situated Akal employees, should have been
paid overtime for unpaid meal periods pursuant to Akal's
April 2014 policy when they worked more than 40 hours per
week. Akal alleges Dean's counsel has three other actions
pending against Akal making identical allegations, citing
Gelber v. Akal Security, Inc., No. 1:16-cv-23170
(S.D. Fla.); Alonzo v. Akal Security, Inc., No.
2:17-cv-00836 (D. Az.); Smith, et al. v. Akal Security,
Inc., No. 2:18-cv-01117 (D. Az.). (Doc. 4). Akal claims
discovery regarding Akal's April 2014 meal policy period
is duplicative amongst the four actions. (Doc. 4).
claims it is defending against Dean's allegations,
including raising a “good faith” affirmative
defense. (Doc. 4). Akal alleges its good faith
defense is based on the fact that Bracewell reviewed the
April 2014 meal period policy before it was implemented and
advised Akal that it complied with the FLSA. (Doc. 4). Akal
further alleges Bracewell also represented Akal in a previous
lawsuit involving three different meal period policies that
had been in place prior to 2014, citing Kankel, et al. v.
Akal Security, Inc., No. 3:13-cv-02651 (N.D. Tex.).
(Doc. 4). Akal concedes that, as part of its good faith
advice-of-counsel defense, it waived the attorney-client
privilege only with regard to the Bracewell attorneys'
review of the April 2014 meal period policy. (Doc. 4). As a
result, Akal asserts it produced numerous privileged emails
and draft policies and allowed Plaintiffs' counsel to
depose attorney John Ferguson (“Ferguson”) on
February 15, 2017, in one of the other three FLSA actions
challenging the same April 2014 meal period policy,
Gelber v. Akal Security, Inc., No. 1:16-cv-23170
(S.D. Fla.). (Doc. 4).
to the underlying collective action in this Court, Dean
v. Akal Security, Inc., 1:17-cv-00543 (W.D. La.), Dean
served a wide-ranging subpoena for production of documents on
Bracewell dated April 6, 2018 (“First
Subpoena”). Akal responded with a Motion to Quash in
the United States District Court for the District of
Columbia, which was transferred by consent to this Court -
where the litigation is pending - for disposition. See
Dean v. Akal Security, Inc., 1:18-mc-00020 (W.D.
La.).After the matter was fully briefed by the
parties, and after oral argument on July 16, 2018, this Court
granted in its entirety Akal's Motion to Quash Dean's
First Subpoena. Dean, 1:18-mc-00020. The Court found
that Dean's First Subpoena called for information outside
the scope of discovery under Fed.R.Civ.P. 26. Dean,
1:18-mc-00020, Doc. 26. The Court advised that any request
for the entire Kankel file was overbroad and
assisted the parties in narrowing the scope of an appropriate
subpoena to include: (1) information that was either
specifically related to Attorney Ferguson's decision to
reincorporate language in the 2014 meal plan policy; and (2)
information which specifically informed Attorney
Ferguson's decision to make other additions or deletions
between the 2009 and 2014 meal period policies.
Dean, 1:18-mc-00020, Docs. 26, 28. Additionally, the
Court advised the parties to work together, confer on the
front end of the issuance of the subpoena, and narrowly
tailor the information to comport with this Court's
advice to avoid additional litigation about this exact issue.
Dean, 1:18-mc-00020, Docs. 26, 28.
response, Dean issued the Second Subpoena on Bracewell on
July 19, 2018, with a response date of August 3, 2018. (Doc.
1, pp. 5-10). On August 9, 2018, “upon no response,
” Dean filed a Motion to Enforce in United States
District Court for the District of Columbia. (Doc. 1, p. 1).
Dean seeks immediate compliance under Fed.R.Civ.P. 45, not
contempt of court, for Bracewell's failure to produce
responsive documents. (Doc. 1). Akal filed an opposition and
cross-motion to quash in the United States District Court for
the District of Columbia. (Doc. 4). Akal asserts Dean's
Second Subpoena seeks a similar scope of documents, including
some of the exact same requests, as the previously quashed
First Subpoena. (Doc. 4). Akal argues the requests are overly
broad, protected by the attorney-client or work product
privilege, or are outside the scope of discovery. (Doc. 4).
The parties do no dispute Akal's standing to raise its
Motion to Quash. Akal seeks denial of Dean's Motion to
Enforce, an order quashing the Second Subpoena, or an order
for a meet and confer among the parties and Bracewell's
counsel. (Doc. 4). Upon Akal's request to transfer to
this Court (Doc. 1), and upon Bracewell's consent (Doc.
6), the matter was transferred to this Court for disposition.
Law and Analysis
governs the issuance of subpoenas to obtain discovery from
non-parties. The party issuing the subpoena “must take
reasonable steps to avoid imposing undue burden or expense on
a person subject to the subpoena.” Fed.R.Civ.P.
45(d)(1). “On timely motion, [a] court . . . must quash
or modify a subpoena” if it “requires disclosure
of privileged or other protected matter, if no exception or
waiver applies” . . . or otherwise “subjects [the
subpoenaed] person to undue burden.” Fed.R.Civ.P.
45(d)(3)(A)(iii)-(iv). If the court where compliance is
required did not issue the subpoena, “it may transfer a
motion under this rule to the issuing court if the person
subject to the subpoena consents or if the court finds
exceptional circumstances.” Fed.R.Civ.P. 45(f).
subpoena issued for discovery purposes is also subject to the
discovery limitations of Fed.R.Civ.P. 26(b). See Jones v.
Steel Fabricators of Monroe LLC, 2015 WL 5676838, at *3
(W.D. La. Sept. 25, 2015), report and recommendation adopted,
2015 WL 6023143 (W.D. La. Oct. 14, 2015).
moving party bears the burden of demonstrating that
compliance with a subpoena would be unduly burdensome.
See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,
818 (5th Cir. 2004). A court's consideration of a motion
to quash a third-party subpoena as unduly burdensome should
be governed by the following factors: (1) relevance of the
information sought; (2) the requesting party's need for
the documents; (3) the breadth of the document request; (4)
the time period covered by the request; (5) the particularity
of the description of the documents; and (6) the burden
imposed. Wiwa, 392 F.3d at 818. The Fifth Circuit
has held that the “modification of a subpoena is
preferable to quashing it outright.” Wiwa, 392
F.3d at 818 (holding that the district court erred in
quashing a subpoena without providing justification).
seeks a Motion to Enforce under Rule 45(e) of the Federal
Rules of Civil Procedure. (Doc. 1). Rule 45 allows the court
where compliance is required - and, upon transfer, the
issuing court - to hold in contempt a person who, having been
served, fails without adequate excuse to obey the subpoena.
Fed.R.Civ.P. 45(e). If an objection is made to the subpoena,
“the serving party, on notice to the commanded person,
may move the court for the district where compliance is
required for an order compelling production or
inspection.” Fed.R.Civ.P. 45(d)(2)(B)(i).
asserts Dean's counsel failed to meet and confer with
Akal prior to issuing the Second Subpoena. (Doc. 4).
Bracewell joins Akal's opposition to Dean's Motion to
Enforce. (Doc. 5). Bracewell asserts that they attempted to
confer with Dean's counsel, but calls were not returned.
(Doc. 5). Local Rule 37.1 of the Local Rules for the United
States District Court for the Western District of Louisiana
requires any discovery motion to include a certificate of
counsel for the moving party that counsel “conferred in
person or by telephone for the purposes of amicably resolving
the issues and stating why they are unable to agree or
stating that opposing counsel has refused to so confer after
reasonable notice.” Under Local Rule 37.1, the Court
may impose sanctions for failure to confer in good faith.
Rule 37 of the Federal Rules of Civil Procedure mandates that
a movant's motion to compel “include a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without
court action.” Fed.R.Civ.P. 37(a)(1). Failure to comply
with the meet and confer requirement may constitute
sufficient reason to deny a motion to compel. Cottonham
v. Allen, 2016 WL ...