J. CURTIS JOYNER, District Judge.
Before the Court are Defendants Devon Robotics, LLC, Devon Health Services, and John A. Bennett, M.D.'s ("Devon") Motion to Quash the Subpoenas Issued by ITOCHU International, Inc. (Doc. No. 268), and ITOCHU's Opposition thereto (Doc. No. 271). For the reasons below, the Motion to Quash is DENIED. An Order follows.
The facts of this dispute are well known to the parties and it is unnecessary to outline them extensively here. It suffices to say that despite its apparent efforts, ITOCHU has been largely unable to satisfy the judgment it obtained against Devon last year. In aid of these efforts, ITOCHU has issued subpoenas to nine banks seeking information about accounts allegedly owned by Devon and related parties. At present, the banks have raised no objections to the subpoenas. In the instant Motion however, Devon asks this Court to quash or modify the subpoenas because it claims they (1) improperly seek records relating to Nance DiRocco, (2) improperly seek records relating to retirement assets not subject to execution, and (3) are unnecessarily excessive and duplicative.
As a general matter, district courts are given "significant discretion when resolving discovery disputes."
The scope of discovery in civil suits is controlled by Federal Rule of Civil Procedure 26, which states that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Generally, the scope of discovery is very broad, though it "is not unlimited and may be circumscribed."
Discovery in aid of execution is similarly broad, and is controlled by Rule 69. In relevant part, that rule states that "[i]n aid of the judgment or execution, the judgment creditor ... may obtain discovery from any person—including the judgment debtor—as provided in these rules or by the procedure of the state where the court is located." Fed. R. Civ. P. 69(a)(2). This rule allows the "judgment creditor ... freedom to make a broad inquiry to discover hidden or concealed assets of the judgment debtor."
Rule 45 provides the specific rules for discovery directed at nonparties. Relevant here is subsection (d)(3), which requires the court to quash or modify a subpoena "if it requires disclosure of privileged or other protected matter, if it risks unfair prejudice to persons who are the subject of a subpoena's commands, or subjects a party to an undue burden."
As with all discovery, the subpoenaing party "bears the initial burden of demonstrating the requested discovery is relevant," as defined by Rule 26.
As a threshold matter, Devon cannot challenge the subpoenas unless it has standing to do so. "Generally, `a party does not have standing to quash a subpoena served on a third party.'"
In similar factual contexts, courts have generally found that "[p]ersonal rights claimed with respect to bank account records give a party sufficient standing to challenge third-party subpoenas served upon financial institutions holding such information."
ITOCHU's subpoenas ask for, among other things, records relating to accounts held by Dr. Bennett's wife, Nance DiRocco. We understand Devon's objections to these requests to be twofold. Primarily, Devon argues that the subpoena requests violate this Court's March 18, 2014 Order which ordered Devon to produce documents "related to all assets, monies, and property held by Dr. Bennett, or by Dr. Bennett and Nance DiRocco as tenants by the entirety." Doc. No. 247 at 2. This objection is unavailing. Though Devon appears to believe that the Order limited discovery and production to only those entirety estates, that interpretation belies the plain text. The Order simply commanded Devon to produce documents relating to those estates, it said nothing about discovery into Ms. DiRocco's other assets.
Additionally — though the Motion does not make this entirely clear — Devon appears to object to the relevancy of these requests based on the fact that Ms. DiRocco is not a judgment debtor in this action. Doc. No. 268 at 2, 5. However, the law is clear that discovery into the assets of a nonparty is "permitted where the relationship between the judgment debtor and the nonparty is sufficient to raise a reasonable doubt about the bona fides of the transfer of assets."
Additionally, there is no evidence here that ITOCHU's requests are being used as "a means of harassment" of Devon, Ms. DiRocco, or the subpoenaed parties.
In a similar relevance argument, Devon also requests modification of the subpoenas on the ground that they seek information about retirement accounts, which it claims are exempt from Execution. Doc. No. 268 at 5-6. This argument also falls short. While it may ultimately be the case that these assets are not subject to execution, that does not mean that information about them is protected from discovery.
Devon also requests that the subpoenas be quashed or modified because it claims they seek "excessive information unlikely to yield discovery in aid of execution." Doc. No. 268 at 6. Devon argues that since it has already provided ITOCHU with bank statements and other financial records, the requests to the nine banks are only useful to "conduct an audit" of those records. Id. at 6. But of course this is exactly what ITOCHU is attempting to do. While Devon claims that it does not have the funds to satisfy the judgment, ITOCHU argues that Devon has not provided a complete picture of its finances and is trying to hide its assets through an intricate system of asset transfers.
Devon also claims that the subpoenas seek information and documents that have already been provided to ITOCHU. Doc. No. 268 at 6-7. Devon supports this argument merely by pointing to the volume of documents it has already produced. Id. at 3, 7. But while the subpoenas are of course likely to yield some duplicative documents, they also seem likely to produce new information as well. ITOCHU has adequately alleged — with support from its forensic accountant and discovery counsel — that Devon's prior productions were not comprehensive. Doc. No. 271 at 6-7 & Exs. A, B. If Devon is unwilling to produce sufficient documentation, ITOCHU has the right to discover and examine Devon's assets through subpoenas to third parties.
Finally, Devon requests that if the subpoenas are not modified or quashed, ITOCHU should be required to bear the costs of discovery. Doc. No. 268 at 6. Devon claims that "the cost of analyzing the subpoenaed documents in attorneys fees and expert fees is likely to be very high, and it would not be fair to shift the cost of the proposed discovery to Devon, when the cost is out of proportion to any conceivable benefit." Id. As Devon itself will incur no costs in the production or review of these documents, we presume that Devon is referring here to the costs ITOCHU will incur analyzing the documents, which it will likely seek to recover from Devon at a later date.
Devon's request is premature. The question of whether ITOCHU will be permitted to recoup these costs from Devon has not yet been presented to this Court, and we see no reason why it needs to be decided at this time.
For the foregoing reasons, Devon's Motion to Quash is DENIED.