COLLEEN KOLLAR-KOTELLY, United States District Judge.
Defendant FCE Benefit Administrators, Inc. ("FCE") has sought the Court's intervention in a discovery dispute regarding Plaintiffs' issuance of a subpoena on April 16, 2018. The Court must determine
Although the Federal Rules of Civil Procedure allow parties wide latitude in seeking discovery of "any nonprivileged matter that is relevant to any party's claim or defense," Fed. R. Civ. P. 26(b)(1), there are nonetheless limits on what a party may obtain through discovery.
A court must quash or modify a subpoena that "fails to allow a reasonable time to comply," or where compliance with the subpoena would require "compl[iance] beyond the geographical limits" or "disclosure of privileged or other protected matter, if no exception or waiver applies," or would "subject[] a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A). A court also has the discretion to grant a motion to quash or modify the subpoena where the subpoena would require "disclosing a trade secret or other confidential research, development, or commercial information" or "disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party." Id. 45(d)(3)(B).
In addition, "[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending." Id. 26(c)(1). "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," which can include, inter alia, "forbidding the disclosure or discovery," "prescribing a discovery method other than the one selected by the party seeking discovery," or "forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters." Id. "If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery." Id. 26(c)(2).
In showing that good cause exists to issue a protective order and thereby limit discovery, the moving party "has a heavy burden of showing extraordinary circumstances based on specific facts that would justify an order." Eidos Display, LLC v. Chunghwa Picture Tubes, Ltd., 296 F.R.D. 3, 6 (D.D.C. 2013) (quoting United States v. Kellogg Brown & Root Servs., Inc., 285 F.R.D. 133, 134 (D.D.C. 2012)) (internal quotation marks omitted). In evaluating the moving party's request, the Court must "weigh the burden to the moving party against the requestor's need for,
Plaintiffs' subpoena seeks the narrative portion of expert reports produced by Aaron Raddock for Defendant FCE in R. Alexander Acosta v. Chimes District of Columbia, Inc., No. 1:15-cv-03315-RDB (D. Md.) (the "Chimes" litigation).
The Court finds that none of the four circumstances in which the Court must quash (or modify) a subpoena applies here. At the threshold, Defendant FCE does not argue that BDO is outside the geographical limits imposed by the rule,
Defendant FCE does argue, briefly, that the information is protected. When Defendant FCE originally communicated about this subpoena with the Court, copying Plaintiffs, Defendant FCE led the Court to believe that the main issue with disclosure was the presence of a protective order in Chimes. But Defendant FCE discusses that point only briefly now in its Opposition. See Opp'n Mem. at 2, 4, 9 (citing financial information covered by Chimes protective order). Even if Defendant FCE had now emphasized the presence of the Chimes protective order, Paragraph 11 of that order expressly provides a means for handling requests in another litigation for confidential information covered by that order. If a party to this case seeks information covered by the Chimes protective order, the Chimes order indicates that this Court is the one to decide whether protection will issue. See Stipulated Confidentiality Agreement and [Proposed] Protective Order, ECF No. 57, Ex. C ¶ 11 (as executed by the Chimes court) ("The Designating Party ... bears the burden and the expense of seeking protection in that court of its Confidential Information ..., and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court."). The [37] Protective Order in this case would ensure that any Confidential Information, as defined in this case, would be protected, and the parties to this case must abide, to the extent still relevant, by the protective order in Chimes as well.
Defendant FCE more pointedly contests whether the subpoena issued with reasonable notice. But Defendant FCE admits that Plaintiffs already had requested this
Defendant FCE's case law regarding unreasonably short notice periods is unpersuasive. Several of the district court cases in which notice was only a few days entailed not only subpoenas for documents but also deposition notices, which add to the preparatory workload. See Opp'n Mem. at 7-8 (citing Ponson v. BellSouth Telecomms., Inc., Civ. Action No. 09-0149, 2010 WL 1552802, at *3 (E.D. La. Apr. 16, 2010); United States v. Philip Morris Inc., 312 F.Supp.2d 27, 36-38 (D.D.C. 2004)). Nor is the Court persuaded by the decision of a magistrate judge in another jurisdiction to quash a subpoena that provided only three days for compliance, particularly where that unreported decision supplies no description of the scope of the production sought. See id. (citing City of Pomona v. Cont'l Ins. Co., No. CV 07-7703-ODW (PLAx), 2008 WL 11343060, at *1 (C.D. Cal. Dec. 17, 2008)). Here, the expert reports are already done, and Defendant FCE makes no representation that it would take much time to produce the narrative portions of those reports.
As for alleged burden, Plaintiffs limited their subpoena to the narrative portions of the expert reports in direct response to Defendant FCE's representation that the exhibits were voluminous. See ECF No. 57, Ex. D at 2. Defendant FCE does not make any argument that it would be a burden to produce this narrowed set of presumably several documents.
Nor does the Court find that this is an appropriate case to quash (or modify) the subpoena in an exercise of its discretion under Rule 45(d)(3)(B). Defendant FCE does not specifically argue that one of those two permissive grounds applies here, but perhaps its requests could be interpreted to arise within those boxes.
Defendant FCE claims that it would not be proper to produce reports generated for another litigation, and in any event that those reports are not relevant to this case. Opp'n Mem. at 8-9. But Defendant FCE admits that it has been unable to find any precedent in this jurisdiction to support its argument that production from another litigation should be prohibited. See id. at 8 (observing no case law for or against such production). Evidently district courts in at least two other jurisdictions have denied similar requests, but the movants either did not tailor their requests appropriately or appear not to have adequately justified them. See id. at 6-9 (citing Von Schwab v. AAA Fire & Cas. Ins. Co., No. 1:14-cv-00183-CMA-NYW, 2015 WL 1840123, at *2-3 (D. Colo. Apr. 21, 2015) (rejecting "speculation" as basis for
But here Plaintiffs wisely tailor and justify their request. They ask for Mr. Raddock's reports in only one other litigation. And they have not sought production of the prior reports of any of Defendants' other experts in this litigation. Reply Mem. at 2. Moreover, Plaintiffs' argument that Mr. Raddock's reports in Chimes have at least some relevance to this case is plausible in light of the Court's brief review of the Chimes complaint. See id. at 2-4; ECF No. 57, Ex. B. The Court examined that complaint more extensively when it previously denied Defendant FCE's motion to strike references to the Chimes litigation in Plaintiffs' [1] Complaint in this case, finding that such references are "appropriate under the circumstances." Mem. Op., ECF No. 28, at 19. Defendant FCE admits that each case involves allegations that FCE charged excessive fees for its services. Opp'n Mem. at 4-5. The alleged differences between the plans at issue in the two cases would go to the weight of evidence derived from the expert reports, not the relevance of those reports.
The Court notes in closing that the "sensitive financial information relating to FCE and other FCE clients," Opp'n Mem. at 9, that Defendant FCE fears disclosing would appear highly relevant to an excessive fees case. If it were not, then its disclosure would work no prejudice. See Reply Mem. at 3-4 (making this argument with respect to the reports' disclosure in general). Defendant FCE does not suggest that the reports contain anything like bank routing numbers that would be both sensitive and truly irrelevant. Moreover, the [37] Protective Order and, to the extent still relevant, Chimes protective order govern the disclosure that the Court shall compel.
In an exercise of its discretion, the Court also finds that issuance of a protective order prohibiting production of Mr. Raddock's prior reports is not warranted on the same grounds that the Court denies the motion to quash the subpoena. Defendant FCE has not carried its burden to show good cause for issuance of a protective order in light of Plaintiffs' rationale for obtaining Mr. Raddock's prior reports.
For the foregoing reasons, the Court
In light of the need for compliance by a third party that raised its own objections as to burden and timing, the deadline for BDO's production pursuant to Plaintiffs' subpoena of April 16, 2018, shall be extended nunc pro tunc until
Plaintiffs are expected to abide by the terms of the [37] Protective Order in this litigation, as well as, to the extent relevant, the protective order in Chimes.
As part of reviewing this briefing, the Court has considered third-party firm BDO USA, LLP's letter to Plaintiffs' counsel containing objections to the subpoena at issue. ECF No. 57, Ex. E.