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Western Surety Co. v. Pasi of La, Inc.

United States District Court, M.D. Louisiana

April 22, 2019

WESTERN SURETY COMPANY
v.
PASI OF LA, INC., ET AL.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. Background

         Plaintiff, 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.

         In 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).

         Western 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. 1).

         II. Legal Standard

         “Unless 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).

         “When 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).

         Rule 45 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. 2004).

         Rule 45 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 it.”).

         “The 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)).

         III. Analysis

         A. Court of Compliance

         Plaintiff 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).

         RTS 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.[1]

         B. Western's ...


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