United States District Court, M.D. Louisiana
TED BLACKMON, ET AL.
BRACKEN CONSTRUCTION COMPANY, INC., ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiffs' Motion to Quash Subpoena. (R.
Doc. 215). Defendant Bracken Construction Company, Inc.
(“Bracken”) filed an opposition. (R. Doc. 216).
Plaintiffs filed a reply. (R. Doc. 217). Bracken filed a
surreply. (R. Doc. 221).
action concerns a head-on collision between two vehicles and
settlement agreements that followed. (R. Doc. 15). Ted
Blackmon and Ruthie Blackmon (“Plaintiffs”) have
alleged claims against the following Defendants: Bracken; C3
Construction Services, Inc. (“C3”); John Evelio
Jaramillo; Anthony Ver Meer; The Charter Oak Fire Insurance
Company (“Charter Oak”); Travelers Property
Casualty Company of America (“Travelers
Property”); and Travelers Excess and Surplus Lines
Company (“Travelers Excess”). Plaintiffs bring
tort claims concerning the underlying incident, seek
rescission of the settlement agreements, and bring various
other claims including bad faith settlement practices,
fraudulent misrepresentation, equitable estoppel, unjust
enrichment, and promissory estoppel.
allege that the head-on collision occurred on June 15, 2016,
when a truck driven by Mr. Jaramillo, while in the course and
scope of his employment with C3 and Bracken, struck a sedan
driven by Mr. Blackmon and carrying two passengers, Shemika
Robinson and her son Khance Blackmon, who were both killed in
the collision. (R. Doc. 15 at 7-12). Khance Blackmon is the
son of Ted Blackmon and grandson of Ruthie Blackmon. (R. Doc.
15 at 13).
allege that after the collision, they engaged in certain
claims negotiations with Mr. Ver Meer, who acted on behalf of
Charter Oak, Travelers Property, and Travelers Excess,
regarding the wrongful death of Khance Blackmon. (R. Doc. 15
at 15-28). Plaintiffs allege that in correspondence dated
July 22, 2016 and other communications, Mr. Ver Meer informed
Plaintiffs that the only policy that provided coverage was
issued to C3 by Charter Oak in the amount of $1 million, and
that, in reliance on this representation, Plaintiffs settled
for $650, 000. (R. Doc. 15 at 16-18). Plaintiffs now assert
that there were in fact two additional policies providing
coverage issued to Bracken, a policy providing $1 million in
coverage issued by Travelers Property and a policy providing
$10 million in coverage issued by Travelers Excess. (R. Doc.
15 at 21). Plaintiffs specifically assert that prior to
settling, Mr. Blackmon did not receive an August 23, 2019
letter from Mr. Ver Meer informing him of the additional $11
million in coverage. (R. Doc. 15 at 24-26). The August 23,
2016 letter states that a separate file was opened on the
foregoing policies and provides the contact information for
Matt Willson, the claims adjuster on the policies. (R. Doc.
subpoena commands the non-party TracFone Wireless, Inc.
(“TracFone”) to produce, in Metairie, Louisiana,
“Certified copies of the phone records (including
incoming and outgoing calls, incoming and outgoing text and
photo messages as well as any and all data usage, its source,
time and volume or quantity)” for two cell phone
numbers for the time period of August 1, 2016 through
September 30, 2016. (R. Doc. 215-3). There is no dispute that
the cell phone numbers identified in the subpoena were
previously used by Mr. Blackmon and were identified in
discovery by Plaintiffs. (R. Doc. 215-1 at 3-4). Plaintiffs
filed the instant motion to quash the subpoena in the U.S.
District Court for the Eastern District of Louisiana, which
transferred the motion to this district for resolution.
See Blackmon et al. v. Bracken Construction Company et
al., Misc. Case No. 18-124-BAJ-RLB (M.D. La.).
assert that the subpoena must be quashed because (1) Bracken
improperly served the subpoena by facsimile, (2) the subpoena
improperly commands compliance beyond 100 miles, and (3) the
subpoena improperly invades Mr. Blackmon's privacy
interest in his cell phone records. (R. Doc. 215-1 at 6-13).
In addition to arguing that the text messages, photo
messages, and data usage sought is completely irrelevant,
Plaintiffs argue that records of incoming and outgoing calls
are “not yet” relevant because the defendants
have not produced records in their possession, custody, or
control indicating that relevant conversations took place
during the requested time period. (R. Doc. 215-1 at 9-10).
Plaintiffs assert the information sought is cumulative and
duplicative because Travelers Property and/or Travelers
Excess have withheld from production their own records of
communications involving Mr. Blackmon, and Bracken has access
to those records pursuant to a joint defense agreement. (R.
Doc. 215-1 at 8-9).
opposition, Bracken asserts that (1) on September 2, 2016,
Mr. Blackmon called Mr. Willson indicating that he received
the August 23, 2016 letter, (2) on September 7, 2016, Mr.
Blackmon called Mr. Ver Meer to confirm receipt of the August
23, 2016 letter, and (3) on October 4, 2016, Mr. Blackmon
called Mr. Willson seeking to settle for $5-6 million on the
additional policies. (R. Doc. 216 at 2-3). Bracken asserts
that the specific purpose of the subpoena “is to
determine whether [Mr. Blackmon] did in fact make outgoing
calls to Willson and Ver Meer in August and September of
2016.” (R. Doc. 216 at 5). Bracken further asserts that
it does not have any objection to entering into a protective
order or for in-camera inspection of the documents to protect
Mr. Blackmon's privacy interests. (R. Doc. 216 at 7).
Finally, Bracken asserts that the issues with respect to
service of the subpoena and the 100-mile requirement of Rule
45 are moot because it served a modified subpoena on
TracFone's registered agent in Mandeville, Louisiana
(which is within 100 miles of Metairie) by certified mail.
(R. Doc. 216-1).
reply, Plaintiffs argue that the information sought is
duplicative and cumulative of information withheld as
privileged by Travelers Property and/or Travelers Excess,
that the subpoena raises significant confidentiality
concerns, and that the second subpoena was improperly served
by certified mail. (R. Doc. 217).
surreply, Bracken argues that it does not have access to the
documents withheld as privileged by Travelers Property and/or
Travelers Excess notwithstanding the joint defense agreement,
any confidentiality concerns can be addressed by in-camera
review, and the records are sought to prove Mr. Blackmon knew
of Mr. Willson's involvement in the handling of the
claims. (R. Doc. 221).
Law and Analysis
have limited standing to quash subpoenas served on
non-parties pursuant to Rule 45. See Frazier v.
RadioShack Corp., No. 10-855, 2012 WL 832285, at *1
(M.D. La. Mar. 12, 2012) (“[A] plaintiff cannot
challenge a Rule 45 subpoena directed to a third party on the
basis that it violates another person's privacy rights .
. ., that the subpoena is overly broad, or that the subpoena
seeks information that is irrelevant because only the
responding third party can object and seek to quash a Rule 45
subpoena on those grounds.”). Nevertheless, a party has
standing to move for a protective order pursuant to Rule
26(c) seeking to limit the scope of discovery, even if the
party does not have standing pursuant to Rule 45(d) to bring
a motion to quash a third-party subpoena. Singletary v.
Sterling Transp. Co., 289 F.R.D. 237, 240 n. 2 (E.D. Va.
2012); Auto-Owners Ins. Co. v. Se. Floating Docks,
Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005);
Washington v. Thurgood Marshall Acad., 230 F.R.D.
18, 22 (D.D.C. 2005).
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, ...