United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion to Quash Subpoenas Issued
to Roberts Taylor Sensabaugh, Inc. and Unopposed Motion for
Expedited Consideration (R. Doc. 63) filed on December 6,
2018, and Plaintiff's related Motion for Protective Order
and Unopposed Motion for Expedited Consideration (R. Doc. 70)
filed on December 21, 2018. Defendants filed their Opposition
(R. Doc. 69) to the Motion to Quash on December 19, 2018, and
their Opposition (R. Doc. 73) to the Motion for Protective
Order on December 28, 2018.
Western Surety Company (“Western”), initiated
this litigation with the filing of its Complaint (R. Doc. 1)
on November 9, 2017. Western is seeking to recover settlement
amounts plus costs it paid to a third party, Harry Pepper
& Associates, Inc. (“HPA”). The claims arise
out of work that was to be performed under a contract between
HPA and NASA at the John C. Stennis Space Center in
Mississippi. HPA, the general contractor, entered into a
subcontract with Defendant PASI for a portion of the work.
Western issued a Subcontract Performance Bond and a
Subcontract Payment Bond for PASI's scope of work, and
alleges the named Defendants executed a General Indemnity
Agreement in favor of Western.
January of 2015, HPA notified PASI that it was in default on
the subcontract, which subcontract was then terminated in
February of 2015. (R. Doc. 1 at 6-7). HPA made demand on
Western under the Subcontract Performance Bond, which then
made demand on the Defendant-indemnitors under the General
Indemnity Agreement. (R. Doc. 1 at 7). HPA filed suit against
Western in May of 2016. (R. Doc. 1 at 7). Western settled
HPA's claims against it in August of 2017. (R. Doc. 1 at
8). HPA also filed suit against PASI arising out of the
subcontract, which claims were referred to arbitration. (R.
Doc. 31-1 at 4). The arbitration was heard in December of
2017 and, in January of 2018, the arbitration panel issued
its final award, ordering HPA to pay damages to PASI, and
finding PASI to have no liability. (R. Doc. 31-1 at 4; R.
Doc. 31-6 at 10-12).
is seeking to recover the sums it paid to HPA in settlement,
in addition to costs and attorney's fees, pursuant to the
General Indemnity Agreement executed by Defendants. (R. Doc.
otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
non-privileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering the importance 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. Information within this scope
of discovery need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 26(b)(1). The court must
limit the frequency or extent of discovery if it determines
that: “(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to
protection as trial-preparation material, the party must: (i)
expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not produced or
disclosed--and do so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A).
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, the court must quash or modify a
subpoena if it requires disclosure of privileged or other
protected matter, or otherwise subjects the subpoenaed person
to undue burden. Fed.R.Civ.P. 45(d)(3)(A)(iii)-(iv). The
moving party has the burden of demonstrating that compliance
with the subpoena would be unduly burdensome. See Wiwa v.
Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir.
further provides “the court for the district where
compliance is required” the authority to quash or
modify a subpoena. Fed.R.Civ.P. 45(d)(3)(A); see
also Fed. R. Civ. P. 45(g) (“The court for the
district where compliance is required-and also, after a
motion is transferred, the issuing court-may hold in contempt
a person who, having been served, fails without adequate
excuse to obey the subpoena or an order related to
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). Rule
26(c)'s “good cause” requirement indicates
that the party seeking a protective order has the burden
“to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact
as distinguished from stereotyped and conclusory
statements.” In re Terra Int'l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v.
Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
Court of Compliance
seeks to quash two subpoenas. The first is a Subpoena to
Produce Documents, Information or Objects or to Permit
Inspection of Premises in a Civil Action issued to Roberts,
Taylor, & Sensabaugh, Inc. (“RTS”) in the
Middle District of Louisiana, naming a place of compliance in
Baton Rouge, Louisiana. (R. Doc. 63-3). The second is a
Subpoena to Testify at a Deposition in a Civil Action issued
to Roberts, Taylor & Sensabaugh, Inc. in the Middle
District of Louisiana, setting a deposition in College
Station, Texas. (R. Doc. 63-4). The document production was
set for 2.5 weeks prior to the date of deposition. (R. Doc.
63-3 at 1; R. Doc. 63-4 at 1).
does not object to the place of compliance of either of the
subpoenas, but Plaintiff argues that this Court is not the
proper court to address the Motion to Quash because it is not
“the court for the district where compliance is
required” pursuant to Fed.R.Civ.P. 45(d)(3). This Court
is, however, the court of compliance for the Subpoena to
Produce Documents, Information or Objects or to Permit
Inspection of Premises in a Civil Action. Furthermore,
whereas Western has filed a Motion for Protective Order (R.
Doc. 70) in conjunction with its Motion to Quash, which seeks
to limit the proposed Rule 30(b)(6) deposition of RTS,
Fed.R.Civ.P. 26(c)(1) provides that “[a] party or any
person from whom discovery is sought may move for a
protective order in the court where the action is pending -
or as an alternative on matters relating to a deposition, in
the court for the district where the deposition will be
taken.” Thus, this Court is the proper forum within
which to address the issues raised.