DAVID L. HORAN, Magistrate Judge.
Non-party Lorraine Frazin has filed a Motion to Quash Subpoena and for Supplemental Relief [Dkt. No. 1 (the "Motion to Quash")] under Federal Rules of Civil Procedure 26(c) and 45(d), directed at the subpoena for deposition duces tecum (the "Subpoena") that T-Mobile USA, Inc., for itself and its MetroPCS brand ("MetroPCS," "T-Mobile," or "Plaintiff"), the plaintiff in an action pending in the United States District Court for the Eastern District of Pennsylvania, MetroPCS v. Isaiah Michael Thomas, et al., No. 2:17-cv-04557-MMB (the "Underlying Matter," the "Pennsylvania action," or the "Philadelphia suit/case/lawsuit"), served on Ms. Frazin. Ms. Frazin seeks an order quashing the Subpoena or, in the alternative, under Rule 26(c)(1), an order (i) forbidding the discovery requested by MetroPCS, (ii) limiting the scope of discovery to the facts and claims in the Underlying Matter, and/or (iii) requiring that any deposition be taken upon written questions to prevent Ms. Frazin from missing work and to substantially reduce her expenses for attorneys fees that would be involved in an oral deposition. See Dkt. No. 1 at 10. She also "requests that she be awarded her costs, including reasonable attorney's fees, incurred in the making of this" Motion to Quash, explaining that, because the Subpoena "was served (1) in flagrant violation of the rules, and (2) for an improper purpose, [she] requests that the Court consider the imposition of substantial additional sanctions against [MetroPCS] for flagrant abuse of federal discovery, as may be appropriate. Id.
MetroPCS, in turn, filed a response to the Motion to Quash and a Motion to Compel Discovery, asking the Court, under Federal Rules of Civil Procedure 26, 37, and 45 and the Local Rules of this Court, to compel Ms. Frazin to comply with the Subpoena, deny the Motion to Quash, and award MetroPCS its reasonable attorneys' fees and costs. See Dkt. No. 7 (the "Motion to Compel").
United States District Judge Ed Kinkeade has referred this miscellaneous action, including the Motion to Quash and the Motion to Compel, to the undersigned United States magistrate judge for hearing, if necessary, and determination under 28 U.S.C. § 636(b). See Dkt. No. 3.
Ms. Frazin filed a reply in support of her Motion to Quash, see Dkt. No. 10, and a response to the Motion to Compel, see Dkt. No. 13, and MetroPCS filed a reply in support of the Motion to Compel, see Dkt. No. 19.
Ms. Frazin also filed a Motion to Strike Sutton Declaration, see Dkt. No. 11 (the "Motion to Strike", asking the Court to, under Federal Rule of Evidence 103(a), strike the Declaration of Stacey K. Sutton [Dkt. No. 8] supporting the Motion to Compel, see FED. R. EVID. 103(a)(1) ("A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context. . . .").
MetroPCS filed a response to the Motion to Strike, see Dkt. No. 15, and Ms. Frazin filed a reply, see Dkt. No. 20.
Ms. Frazin "moves this Honorable Court to quash a subpoena, attached as App'x Exhibit A, `drop served' upon her by T-Mobile USA, Inc., which commands her to attend a deposition for a Pennsylvania case in which T-Mobile is aware that Lorraine Frazin has no relationship to the lawsuit and has no knowledge relevant to any claim or defense in that case" and contends that,
Dkt. No. 1 at 2.
By way of background, Ms. Frazin reports that
Id. at 3-6 (footnotes omitted),
MetroPCS responds that its
Dkt. No. 7 at 1-2 (footnotes omitted). "MetroPCS respectfully requests that the Court compel Frazin to produce documents and to attend and fully cooperate in her deposition, deny Frazin's Motion to Quash, and award MetroPCS its reasonable attorneys' fees and costs incurred as a result of having to move to compel, to respond to the Motion to Quash, and for Frazin's last-minute refusal to appear." Id. at 2.
Under Federal Rule of Civil Procedure 45, a party may serve a subpoena that commands a nonparty "to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises." FED. R. CIV. P. 45(a)(1)(A)(iii). Under Rule 45(c), "[a] subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person" and "may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person." FED. R. CIV. P. 45(c)(1)(A), 45(c)(2)(A).
Federal Rule of Civil Procedure 45(a)(1)(C) provides that "[a] command to produce documents, electronically stored information, or tangible things . . . may be included in a subpoena commanding attendance at a deposition." FED. R. CIV. P. 45(a)(1)(C). And Federal Rule of Civil Procedure 45(d)(2)(A) directs that "[a] person commanded to produce documents, electronically stored information, or tangible things. . . need not appear in person at the place of production . . . unless also commanded to appear for a deposition, hearing, or trial." FED. R. CIV. P. 45(d)(2)(A).
And, under Rule 45(a)(4), "[i]f the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party." FED. R. CIV. P. 45(a)(4).
The Subpoena was properly issued by the United States District Court for the Eastern District of Pennsylvania under Federal Rule of Civil Procedure 45(a), as the court where the Underlying Matter is pending. See FED. R. CIV. P. 45(a)(2) ("Issuing Court. A subpoena must issue from the court where the action is pending.").
The Subpoena commands Ms. Frazin to produce "documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material" on April 19, 2018 at a location in Dallas, Texas and to appear for a deposition on April 19, 2018 at a location in Dallas, Texas. See Dkt. No. 2. Because the Subpoena requires compliance in Dallas, the Motion to Quash and Motion to Compel are properly filed in this Court, which, as required by Rule 45(d), is the court in the district where compliance with the Subpoenas is required. See FED. R. CIV. P. 45(d)(2)(B), 45(d)(3)(A); accord CSS, Inc. v. Herrington, No. 3:17-mc-71-N-BN, 2017 WL 4750707 (N.D. Tex. Oct. 20, 2017).
Under Federal Rule of Civil Procedure 45(d)(1), "[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena," and "[t]he court for the district where compliance is required must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply." FED. R. CIV. P. 45(d)(1); see also Am. Fed'n of Musicians of the U.S. & Canada v. SKODAM Films, LLC, 313 F.R.D. 39, 57-59 (N.D. Tex. 2015).
And Federal Rule of Civil Procedure 45(d)(2)(B) requires that "[a] person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forms requested" — and that "[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served." FED. R. CIV.P. 45(d)(2)(B).
Under Rule 45(d)(2)(B), "[i] an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance." Id. Timely serving written objections therefore suspends the non-party's obligation to comply with a subpoena commanding production of documents, pending a court order. See FED. R. CIV.P. 45(d)(2)(B)(ii); Am. Fed'n, 313 F.R.D. at 44.
And "a non-party's Rule 45(d)(2)(B) objections to discovery requests in a subpoena are subject to the same prohibition on general or boiler-plate [or unsupported] objections and requirements that the objections must be made with specificity and that the responding party must explain and support its objections." Am. Fed'n, 313 F.R.D. at 46 (citing Heller v. City of Dallas, 303 F.R.D. 466, 483 (N.D. Tex. 2004), and adopting "the explanations in Heller of what is required to make proper objections and how to properly respond to discovery requests"). Just as, "[a]lthough [Federal Rule of Civil Procedure] 34 governs document discovery from a party and not a non-party, see FED. R. CIV. P. 34(c)," "Rule 34(b)(1)'s reasonable particularity requirement should apply with no less force to a subpoena's document requests to a non-party," so too "a non-party's Rule 45(d)(2)(B) objections to those requests should be subject to the same requirements facing a party objecting to discovery under Rule 34." Am. Fed'n, 313 F.R.D. at 44, 46.
This means that a non-party is subject to the requirements that an objection to a document request must, for each item or category, state with specificity the grounds for objecting to the request, including the reasons, and must state whether any responsive materials are being withheld on the basis of that objection; that an objection to part of a request must specify the part and permit inspection of the rest; that "general or so-called boilerplate or unsupported objections are improper under Rule 45(d)(2)(B)"; and that the explanations in Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014), of what is required to make proper objections and how to properly respond to discovery requests apply equally to non-parties subject to a Rule 45 subpoena. See Am. Fed'n, 313 F.R.D. at 46; FED. R. CIV. P. 34(b)(2)(B)-(C).
Under Federal Rule of Civil Procedure 45(d), "[e]ither in lieu of or in addition to serving objections on the party seeking discovery, a person can `timely' file a motion to quash or modify the subpoena" under Federal Rule of Civil Procedure 45(d)(3)(A). In re Ex Parte Application of Grupo Mexico SAB de CV for an Order to Obtain Discovery for Use in a Foreign Proceeding, No. 3:14-mc-73-G, 2015 WL 12916415, at *3 (N.D. Tex. Mar. 10, 2015), aff'd sub nom. Grupo Mexico SAB de CV v. SAS Asset Recovery, Ltd., 821 F.3d 573 (5th Cir. 2016). Under Rule 45(d)(3)(A), "[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." FED. R. CIV. P. 45(d)(3)(A).
Thus, "[i]n the majority of cases, a person — whether a traditional party (i.e., a plaintiff or defendant) or a non-party — waives objections if he/she/it fails either to serve timely objections on the party seeking discovery or to file a timely motion with the court." Grupo Mexico, 2015 WL 12916415, at *3; accord Am. Fed'n, 313 F.R.D. at 43 (explaining that "[t]he failure to serve written objections to a subpoena within the time specified by Rule [45(d)(2)(B)] typically constitutes a waiver of such objections, as does failing to file a timely motion to quash." (internal quotation marks omitted)).
As another judge in this circuit has explained:
Arthur J. Gallagher & Co. v. O'Neill, Civ. A. No. 17-2825, 2017 WL 5713361, at *1-*2, *4 (E.D. La. Nov. 27, 2017) (emphasis in original; citation omitted); accord Monitronics Int'l, Inc. v. iControl Networks, Inc., No. 3:13-mc-134-L-BN, 2013 WL 6120540, at *1 (N.D. Tex. Nov. 21, 2013) ("Rule 45 does not define a `timely motion' but does provide that, if the subpoenaed party chooses to serve objections instead of moving to quash, `[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.' FED. R. CIV. P. 45(c)(2)(B).").
On a Rule 45(d)(3)(A) motion to quash or modify a subpoena, the moving party has the burden of proof. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998). "Generally, modification of a subpoena is preferable to quashing it outright." Wiwa, 392 F.3d at 818.
On a motion asserting undue burden, "[t]he moving party has the burden of proof to demonstrate `that compliance with the subpoena would be unreasonable and oppressive.'" Wiwa, 392 F.3d at 818 (quoting Williams, 178 F.R.D. at 109 (internal quotation marks omitted)). "The moving party opposing discovery must show how the requested discovery was overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden." Andra Group, LP v. JDA Software Group, Inc., 312 F.R.D. 444, 449 (N.D. Tex. 2015). "Whether a burdensome subpoena is reasonable must be determined according to the facts of the case, such as the party's need for the documents and the nature and importance of the litigation." Wiwa, 392 F.3d at 818 (internal quotation marks and footnote omitted). "To determine whether the subpoena presents an undue burden, [the Court] consider[s] the following factors: (1) relevance of the information requested; (2) the need of the party for the documents; (3) the breadth of the document request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed." Id. (footnote omitted). "Further, if the person to whom the document request is made is a non-party, the court may also consider the expense and inconvenience to the non-party." Id. (footnote omitted); accord Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 377 (5th Cir. 2004) ("Fed. R. Civ. P. 45 provides that a court shall quash (or modify) a subpoena if it `subjects a person to undue burden.' Fed. R. Civ. P. 45(c)(3)(A)(iv). Whether a subpoena subjects a witness to undue burden generally raises a question of the subpoena's reasonableness, which `requires a court to balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it.' 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2463 (2d ed. 1995). `[T]his balance of the subpoena's benefits and burdens calls upon the court to consider whether the information is necessary and unavailable from any other source.' Id.").
And, when "a subpoena is issued as a discovery device, relevance for purposes of the undue burden test is measured according to the standard of [Federal Rule of Civil Procedure] 26(b)(1)." Williams, 178 F.R.D. at 110. Rule 26(b)(1), as amended effective December 1, 2015, provides that, "[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 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 Subpoena was issued by the United States District Court for the Eastern District of Pennsylvania in the Underlying Matter pending there, and the Subpoena may only properly seek testimony and documents that are relevant to any party's claim or defense in that case. And a party may no more use third-party discovery to develop new claims or defenses that are not already identified in the pleadings than it may use discovery served on a party to find the claims themselves rather than to find support for properly pleaded claims. See Samsung Electronics Am., Inc. v. Chung, 321 F.R.D. 250, 280 (N.D. Tex. 2017).
Further, "[u]nder Rule 26(b)(1), discoverable matter must be both relevant and proportional to the needs of the case — which are related but distinct requirements." Id. at 279. And discovery from a third party as permitted through a subpoena issued under Rule 45 is limited to the scope of discovery permitted under Rule 26(b)(1) in the underlying action, and "[d]iscovery outside of this scope is not permitted." Garcia v. Professional Contract Servs., Inc., No. A-15-cv-585-LY, 2017 WL 187577, at *2 (W.D. Tex. Jan. 17, 2017); see also Arthur J. Gallagher & Co., 2017 WL 5713361, at *2 (explaining that "subpoenas duces tecum are discovery devices governed by Rule 45 but also subject to the parameters established by Rule 26" and that a "court retains discretion to decline to compel production of requested documents when the request exceeds the bounds of fair discovery, even if a timely objection has not been made" (internal quotation marks omitted)).
In short, the provisions and structure of Rules 26 and 45 leave little doubt that the scope of permissible discovery from a third party is not broader than that permitted against a party. See Waters v. Lincoln Gen'l Ins. Co., Civ. A. No. 07-3183, 2008 WL 659471, at *2 (E.D. La. Mar. 5, 2008) ("The scope of discovery with respect to non-parties under Rule 45 is no broader than that prescribed for parties under Rule 26(b)(1)."); accord Wiwa, 392 F.3d at 818 ("Further, if the person to whom the document request is made is a non-party, the court may also consider the expense and inconvenience to the non-party." (footnote omitted) (citing Williams, 178 F.R.D. at 109 ("The status of a witness as a nonparty entitles the witness to consideration regarding expense and inconvenience."), which cited Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996) ("In addition, the status of a witness as a non-party to the underlying litigation `entitles [the witness] to consideration regarding expense and inconvenience."), which FED. R. CIV. P. 45(c)(2)(B) and Semtek Int'`l, Inc. v. Merkuriy Ltd., No. 3607 DRH, 1996 WL 238538, at *2 (N.D.N.Y. May 1, 1996) ("Second, Lockheed is a non-party. While this status does not relieve Lockheed of its obligations either to respond to proper discovery requests or to comply with the applicable rules, it does entitle Lockheed to consideration regarding expense and inconvenience.")))); cf. Am. Fed'n, 313 F.R.D. at 45 ("The Court finds that applying the standards of Rule 26(b)(1), as amended, to the Subpoena and [the plaintiff's] motion to compel is both just and practicable where [a party] is not entitled to enforce its Subpoena against a non-party based on a greater scope of relevance than should apply to any discovery against any party going forward.").
Because "[t]he scope of discovery is the same under both Federal Rules of Civil Procedure 45 and 26," Garcia, 2017 WL 187577, at *2, the Court may properly apply the Rule 26(b)(1) proportionality factors in the context of a Rule 45(d)(3)(A) motion to quash or a Rule 45(d)(2)(B)(i) motion tocompel or, for that matter, in the context of Rule 45(d)(1)'s duty to avoid imposing undue burden or expense on a person subject to the subpoena, see Am. Fed'n, 313 F.R.D. at 44-45. And, as another judge in this circuit has noted, where "`non-parties have greater protections from discovery,"' "`burdens on non-parties will impact the proportionality analysis.'" Hume v. Consolidated Grain & Barge, Inc., Civ. A. No. 15-935, 2016 WL 7385699, at *3 (E.D. La. Dec. 21, 2016) (quoting E. Laporte and J. Redgrave, A Practical Guide to Achieving Proportionality Under New Federal Rule of Civil Procedure 26, 9 FED. CTS. L. REV. 19, 57 (2015)).
The Court also "may find that a subpoena presents an undue burden when the subpoena is facially overbroad." Wiwa, 392 F.3d at 818 (footnote omitted). "Courts have found that a subpoena for documents from a non-party is facially overbroad where the subpoena's document requests seek all documents concerning the parties to [the underlying] action, regardless of whether those documents relate to that action and regardless of date; [t]he requests are not particularized; and [t]he period covered by the requests is unlimited." Am. Fed'n, 313 F.R.D. at 45 (internal quotation marks omitted).
Federal Rule of Civil Procedure 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." FED. R. CIV. P. 26(c)(1). At least as to the Subpoena's deposition command, Ms. Frazin is a person from whom discovery is sought by way of a deposition to be taken in this district.
Rule 26(c)(1) authorizes protective orders, for good cause shown, "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs." FED. R. CIV. P. 26(c)(1).
"`[T]he burden is upon [the party or person seeking the protective order] 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, 134 F.3d 302, 306 (5th Cir.1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir.1978)). A protective order is warranted in those instances in which the party seeking it demonstrates good cause and a specific need for protection. See Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th Cir. 1990). And the United States Court of Appeals for the Fifth Circuit recently explained that "[t]he federal courts have superimposed a somewhat demanding balancing of interests approach to the Rule. Under the balancing standard, the district judge must compare the hardship to the party against whom discovery is sought against the probative value of the information to the other party. Courts also weigh relevant public interests in this analysis." Cazorla v. Koch Foods of Mississippi, L.L.C., 838 F.3d 540, 555 (5th Cir. 2016) (footnotes and internal quotation marks omitted); see also id. at 564 ("Rule 26(d) gives [the] court wide discretion to craft flexible and nuanced terms of discovery." (footnote omitted)). The Court has broad discretion in determining whether to grant a motion for a protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985).
Federal Rule of Civil Procedure 37(a) generally governs motions to compel discovery, providing that, in general, "[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery" and "[t]he motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action," FED. R. CIV. P. 37(a)(1), and further that "[a] motion for an order to a party must be made in the court where the action is pending" and "[a] motion for an order to a nonparty must be made in the court where the discovery is or will be taken," FED. R. CIV. P. 37(a)(2).
But Rule 37(a) does not, by its terms, address a motion to compel a party or nonparty to appear for a deposition. See FED. R. CIV. P. 37(a). The only recourse expressly provided under the Federal Rules for a party seeking another party's deposition is to properly notice the deposition and file a motion under Federal Rule of Civil Procedure 37(d)(1)(A) if and when the deponent fails to appear. See generally Robinson v. Dallas Cty. Cmty. Coll. Dist., No. 3:14-cv-4187-D, 2016 WL 1273900, at *2 (N.D. Tex. Feb. 18, 2016).
Rule 37(d)(1)(A) provides that "[t]he court where the action is pending may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent — or a person designated under Rule 30(b)(6) or 31(a)(4) — fails, after being served with proper notice, to appear for that person's deposition." FED. R. CIV. P. 37(d)(1)(A)(i). "[T]he law is far from settled, in this jurisdiction or elsewhere, on whether Rule 37(d) applies to a non-party witness, including expert witnesses." Lovison v. Gleason, No. 3:14-cv-1517-P, 2015 WL 3934933, at *6 (N.D. Tex. June 26, 2015) (collecting cases) "[B]efore being compelled to testify, [a non-party] must be served with a subpoena pursuant to Federal Rule of Civil Procedure 45." Karakis v. Foreva Jens Inc., No. 08-61470, 2009 WL 113456, at *1 (S.D. Fla. Jan. 19, 2009) (citing authorities). But "[a] party need not comply with Rule 45 and issue a subpoena if a non-party will consent to having his deposition taken by notice alone." Morawski v. Farmers Tex. Cty. Mut. Ins. Co., No. 3:14-mc-21-D-BN, 2014 WL 717170, at *1 (N.D. Tex. Feb. 25, 2014).
Once a deponent has appeared for a deposition, Federal Rule of Civil Procedure 37(a)(3)(B)(i) governs a motion to compel a deponent — whether a party or a non-party — to answer a question. See FED. R. CIV. P. 37(a)(2)(B)(i) ("A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31. . . ."). Under Rule 37(a)(2), such "[a] motion for an order to a party must be made in the court where the action is pending," while "[a] motion for an order to a nonparty must be made in the court where the discovery is or will be taken." FED. R. CIV. P. 37(a)(2).
Federal Rule of Civil Procedure 45(g) provides that "[t]he court for the district where compliance is required — and also, after a motion is transferred [under Federal Rule of Civil Procedure 45(f)], 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." FED. R. CIV. P. 45(g). And Federal Rule of Civil Procedure 37(b)(1) provides: "If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending." FED. R. CIV. P. 37(b)(1).
Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel is granted, or if the requested discovery is provided after the motion was filed, "the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees," except that "the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust." FED. R. CIV. P. 37(a)(5)(A); accord Washington v. M. Hanna Const. Inc., 299 F. App'x 399, 402 (5th Cir. 2008).
Federal Rules of Civil Procedure 37(a)(5)(B) and 37(a)(5)(C) further provide in pertinent part that, "[i]f the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees," "[b]ut the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust," and that, "[i]f the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion." FED. R. CIV. P. 37(a)(5)(B)-(C); accord De Angelis v. City of El Paso, 265 F. App'x 390, 398 (5th Cir. 2008).
The Federal Rules of Civil Procedure require that attorneys or unrepresented parties comply with the rules' limits on the scope of discovery requests. Rule 26(g) provides:
FED. R. CIV. P. 26(g)(1), 26(g)(3).
"Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37." Fed. R. Civ. P. 26(g) advisory committee's note (1983). Rule 26(g) specifically "requires that parties make a reasonable inquiry before conducting or opposing discovery." Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 448 (5th Cir. 1992). Rule 26(g) "provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection" and whether it is consistent with the Federal Rules of Civil Procedure and "grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law." Fed. R. Civ. P. 26(g) advisory committee's note (1983). "This standard is heavily dependent on the circumstances of each case." Id.
"Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legitimate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection." Id. "`The duty to make a `reasonable inquiry' is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by [Federal Rule of Civil Procedure] 11. . . . Ultimately what is reasonable is a matter for the court to decide on the totality of the circumstances.'" Chapman & Cole v. Itel Container Int'l B.V., 865 F.2d 676, 686 (5th Cir. 1989) (quoting Fed. R. Civ. P. 26(g) advisory committee's note (1983)).
By signing discovery requests, the attorney or party serving discovery requests makes an affirmative certification that the requests are not unreasonable or unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. If the requests nevertheless fall outside the Rule 26(b)(1) scope of discovery, the serving attorney or party may face Rule 26(g)(3) sanctions if it made the certification without substantial justification. See FED. R. CIV. P. 26(g)(1)(B), 26(g)(3); Heller, 303 F.R.D. at 475-77 ("Rule 26(g) is thus designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. But, even if an attorney violates Rule 26(g)(1), a court may not — on a party's motion or sua sponte — impose Rule 26(g)(3) sanctions unless the certification violated Rule 26(g)(1) without substantial justification. The United States Supreme Court has defined `substantially justified' to mean justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person. `Substantial justification' entails a reasonable basis in both law and fact, such that there is a genuine dispute . . . or if reasonable people could differ [as to the appropriateness of the contested action]. Where Rule 26(g)(3) requires the Court to impose an appropriate sanction, [t]he nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances. Although Rule 26(g)(3) sanctions are mandatory, Rule 26(g)(3)'s mandate . . . extends only to whether a court must impose sanctions, not to which sanction it must impose." (citations, internal quotation marks, and emphasis omitted)); see also Olivarez v. GEO Grp., Inc., 844 F.3d 200, 205 (5th Cir. 2016) (explaining, in the context of Rules 26(g)(1)(A) and 26(g)(3), that "[s]ubstantial justification for the failure to make a required disclosure has been regarded as justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure [obligation]" and that "[t]he attorney's decision to refrain from disclosing the information must have had a reasonable basis both in law and fact" (internal quotation marks and citations omitted)); Schlafly v. Caro-Kann Corp., 155 F.3d 565, 1998 WL 205766, at *3 (Fed. Cir. Apr. 28, 1998) (explaining that a party requesting discovery under Rule 34 "has the burden to state his discovery requests with reasonable particularity and not to make unreasonably cumulative or duplicative requests such that the burden or expense of complying with the requests outweighs their likely benefit").
At least one judge in this district has applied Rules 26(g)(1) and 26(g)(3) to a subpoena issued by a party's attorney, explaining that, "[b]ecause attorneys use subpoenas to further discovery, sanctions in the subpoena context often implicate the sanction provisions in both Rules 26 and 45" and that the Court would "draw[] on both Rules here because [the party's attorney] sought early discovery from the [third parties] via subpoenas." Mick Haig Prods., e.K. v. Does 1-670, No. 3:10-cv-1900-N, 2011 WL 5104095, at *3 (N.D. Tex. Sept. 9, 2011).
As a preliminary matter, Rule 45(d)(2)(B)(i), not Rule 37(a), governs MetroPCS's motion to compel Ms. Frazin to comply with the Subpoena. Rule 37(a) generally does not apply to motions to enforce a subpoena against a third party. More specifically, because Rule 37(a) does not authorize a motion to prospectively compel a non-party (or, for that matter, a party) to appear for a deposition, and because Ms. Frazin did not appear and fail to answer a question asked under Rule 30, there are no grounds for a motion under Rule 37(a) here. "For its part, FRCP 45(d)(2)(B) addresses only objections to, and motions to compel compliance with, subpoenas commanding document productions or inspections" and therefore does not authorize a motion to compel a nonparty's compliance with a subpoena's command to appear for a deposition. Traut v. Quantum Servicing, LLC, No. 3:18-mc-14-D-BN, 2018 WL 1035134, at *8 (N.D. Tex. Feb. 23, 2018).
MetroPCS invokes Rule 37(a)(1), which provides: "On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." FED. R. CIV. P. 37(a)(1). But, as the Court has recently concluded and "as explained above, neither that general provision nor any specific provision elsewhere in Rule 37 or 45, as laid out above, authorizes a motion to require a non-party to appear for a deposition." Traut, 2018 WL 1035134, at *8.
Ms. Frazin timely filed her Rule 45(c)(3)(A) Motion to Quash the day before the deposition and document production were required by the Subpoena, and the Court then stayed further compliance pending the Motion to Quash's resolution. See Dkt. Nos. 1 & 4. "While `timely' is not defined in the rule nor elaborated upon in the advisory committees notes . . ., [i]n general, courts have read `timely' to mean within the time set in the subpoena for compliance." Grupo Mexico, 2015 WL 12916415, at *3 (quoting United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F.Supp.2d 270, 278 (D.D.C. 2002) (citations omitted), and citing Estate of Ungar v. Palestinian Authority, 451 F.Supp.2d 607, 610 (S.D.N.Y. 2006) ("It is well settled that, to be timely, a motion to quash a subpoena must be made prior to the return date of the subpoena.")).
Relying on decisions applying Rule 37(d), MetroPCS asserts that Ms. "Frazin's nonappearance at her deposition was not excused because, due to Frazin's last-minute motion, the Court's Order staying compliance with the subpoena pending the resolution of the Motion to Quash was entered after Frazin's unexcused non-appearance. Compare [DE 4] entered on April 19, 2018 at 1:20 PM CDT, with Appx. at p. 48 (Sutton Decl. at ¶ 6), requiring compliance at 9:00 am CDT on April 19, 2018." Dkt. No. 7 at 4 (citing "Barnes v. Madison, 79 Fed. Appx. 691, 707 (5th Cir. 2003) (affirming that failure to appear was not substantially justified when deponent filed motion for protective order on the Friday preceding her Monday morning deposition, reasoning that based on timing she could `hardly have expected in good faith to receive a court order excusing her attendance'); King v. Fidelity Nat'l Bank of Baton Rouge, 712 F.2d 188, 191 (5th Cir. 1983)").
Again, the law is far from settled that, despite referring to "a party or a party's officer, director, or managing agent — or a person designated under Rule 30(b)(6) or 31(a)(4)," Rule 37(d)(1)(A)(i) can apply to a third-party witness like Ms. Frazin. Compare Barnes, 79 F. App'x at 707 (applying Rule 37(d) to a plaintiff who failed to appear for a deposition after being served with a notice of deposition); King, 712 F.2d at 191 (applying Rule 37(d) to parties to a bankruptcy proceeding who were served with subpoenas to compel their attendance at an examination as to their financial affairs). As the Court has recently observed, "Rule 37(d)(1)(A) by its terms only authorizes motions for sanctions for failing to appear for a properly noticed deposition to be heard by `[t]he court where the action is pending,'" and "[t]hat lends support to a conclusion that Rule 37(d)(1) does not apply to failures by nonparty deponents to comply with Rule 45 subpoenas commanding the deposition of a nonparty, where, as noted above, Rule 45's provisions governing subpoenas for nonparty discovery directs that subpoenarelated motions must be filed in `the court for the district where compliance is required'" "[a]nd Rule 37(a)(2) likewise dictates that `[a] motion for an order [compelling discovery or disclosure] to a nonparty must be made in the court where the discovery is or will be taken.'" Traut, 2018 WL 1035134, at *9 (citations omitted; quoting FED. R. CIV. P. 37(a)(2), 37(d)(1)(A), 45(d)(1), 45(d)(3)(A), 45(d)(3)(B), 45(e)(2)(B), 45(g)).
But, even if Rule 37(d)(1)(A)(i) could apply to Ms. Frazin, Rule 37(d)(2) provides that "[a] failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c)." FED. R. CIV. P. 37(d)(2). Ms. Frazin filed her Motion to Quash, seeking a Rule 26(c) protective order in the alternative, the day before the April 19, 2018 deposition commanded by the Subpoena. And, while that may only protect her from Rule 37(d)(1)(A) sanctions, MetroPCS does not actually invoke Rule 37(d)(1)(A)(i) or seek sanctions under that provision, and "the only mechanism under the Federal Rules available to [MetroPCS] appears to be Rule 45(g)'s provision that `[t]he court for the district where compliance is required . . . may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena.'" Traut, 2018 WL 1035134, at *9 (quoting FED. R. CIV. P. 45(g)).
Ms. Frazin perhaps could and should have filed the Motion to Quash sooner than the day before the date on which compliance was required. See generally Talon Transaction Techs., Inc. v. StoneEagle Servs., Inc., No. 3:13-cv-902-P, 2014 WL 6819846, at *2-*3 (N.D. Tex. Dec, 4, 2014). Nevertheless, the Court finds that the Motion to Quash was timely filed under Rule 45(c)(3)(A) under the circumstances.
Neither Ms. Frazin nor MetroPCS has filed an affidavit or certificate of service, see Dkt. Nos. 2 & 8, but MetroPCS's counsel attests that the Subpoena issued on March 30, 2018, that Ms. Frazin responded to MetroPCS on April 10, 2018 by letter (sent via email) through her counsel, and that MetroPCS responded to Ms. Frazin on April 16, 2018 by letter (sent via email) through its counsel, see Dkt. No. 8 at 50 of 102. Under these circumstances, Ms. Frazin timely filed the Motion to Quash on April 18, 2018. Accord Arthur J. Gallagher & Co., 2017 WL 5713361, at *3, *4 ("The return date provided in the subpoena for production of the documents was June 21, 2017. Marsh's motion to quash was filed on June 7, 2017, Record Doc. No. 10, two weeks before the return date. The motion was therefore timely within the meaning of Rule 45(d)(3)(A) and preserved Marsh's objections. Marsh did not employ the less formal alternative procedural option of serving written objections. Therefore, the 14-day period for filing objections to the subpoena was irrelevant and provides no support for Gallagher's waiver argument. . . . . In this case, Marsh properly asserted its objections in a timely motion to quash under Rule 45(d)(3), choosing not to employ the separate Rule 45(d)(2) procedure. Its objections were not waived." (emphasis omitted)); Nasufi v. King Cable, Inc., No. 3:15-cv-3273-B, 2017 WL 3334110, at *6 (N.D. Tex. Aug. 4, 2017) ("As an initial matter, DComm timely filed its Motion to Quash under Rule 45(d)(3)(A) on June 2, 2017, three days before the June 5, 2017 compliance date."); Bell Inc. v. GE Lighting, LLC, No. 6:14-cv-00012, 2014 WL 1630754, at *9-*10 (W.D. Va. Apr. 23, 2014) (surveying cases finding Rule 45(d)(3)(A) motions untimely when filed months after a subpoena's service or after its date for compliance).
Ms. Frazin's having timely filed the Motion to Quash, and the Court's having stayed compliance with the Subpoena (albeit on the day of the commanded deposition), the facts here would not justify civil contempt under Rule 45(g) — that is, the circumstances here do not present facts to show that Ms. Frazin, "having been served, fail[ed] without adequate excuse to obey the subpoena." FED. R. CIV. P. 45(g).
But, although MetroPCS's Motion to Compel does not properly present the issue of whether Ms. Frazin should be required to appear for a deposition, Ms. Frazin herself seeks the mirror image relief under Rule 45(d)(3)(A) of quashing the Subpoena's deposition command — and that properly presents the issue of whether she should be required to appear for her deposition. And, although both motions focus more attention on the Subpoena's deposition command, both the Rule 45(d)(3)(A) Motion to Quash and Rule 45(d)(2)(B)(i) Motion to Compel properly present the issue of whether Ms. Frazin must comply with the Subpoena's documents requests.
But before getting to that, the Court must address Ms. Frazin's Motion to Strike. In support of its Motion to Compel and response to Ms. Frazin's Motion to Quash, MetroPCS filed the Declaration of Stacy K. Sutton, in which Ms. Sutton attests:
Dkt. No. 8 at 49-51 of 102.
28 U.S. Code § 1746 provides that,
Under Section 1746, the United States Court of Appeals for the Fifth Circuit has held that "[d]eclarations . . . that are dated and made on penalty of perjury . . . constitute `[]adequate summary judgment evidence.'" Grogan v. Kumar, 873 F.3d 273, 279 (5th Cir. 2017) (quoting Stewart v. Guzman, 555 F. App'x 425, 431 (5th Cir. 2014) (per curiam)); see also Garcia v. U Pull it Auto & Truck Salvage, Inc., No. 3:14-cv-3655-BN, 2016 WL 427382, at *1 (N.D. Tex. Feb. 4, 2016) ("An affidavit or declaration, made under penalty of perjury pursuant to 28 U.S.C. § 1746, can adequately support a motion for summary judgment when it is made on personal knowledge and shows that the affiant or declarant is competent to testify on the matters stated. See FED. R. CIV. P. 56(c)(4).").
Ms. Sutton's dated and signed declaration "under penalty of perjury" likewise meets Section 1746's requirements for purposes of these third-party discovery motions.
"Further, `[a]n affidavit can adequately support a motion for summary judgment when the affiant's personal knowledge is based on a review of her employer's business records and the affiant's position with the employer renders her competent to testify on the particular issue which the affidavit concerns.'" TFHSP, LLC Series 10147 v. U.S. Bank Nat'l Ass'n, No. 3:14-cv-2589-M-BN, 2015 WL 9591369, at *4 (N.D. Tex. Dec. 4, 2015) (quoting Kittler v. GMAC Mortg., LLC, No. H-12-0902, 2013 WL 3294036, at *4 (S.D. Tex. June 28, 2013)), rec. adopted, 2015 WL 9593624 (N.D. Tex. Dec. 31, 2015).
Dkt. No. 11 at 2-3 (footnote omitted). Ms. Frazin contends that Ms. "Sutton's failure to meet the legal requirements is particularly troubling because of the litany of misrepresentations contained in the Declaration." Id. at 3. According to Ms. Frazin, "[a]t best, the declaration is a vehicle for Ms. Sutton to improperly attest falsely to matters clearly outside of her personal knowledge, for example, falsely attesting that `Jason Frazin, was also served with a deposition subpoena.'" Id. (footnoted omitted).
Ms. Frazin also challenges the declaration's compliance with Section 1746, asserting that
Id. at 4 (footnotes omitted).
"Based on the foregoing, Lorraine Frazin respectfully moves the Court to strike the declaration of Stacey K. Sutton because the Sutton declaration fails to establish that it is based on personal knowledge and fails to comply with the requirements of admissibility set out by the Federal Rules of Evidence." Id. at 5.
The Court will not do so.
First, Ms. Frazin only challenges the completeness — based on redactions and excerpting — of the transcript attached as Exhibit 1, not its accuracy.
Second, the Court's determination of the Motion to Quash and Motion to Compel do not depend on whether Jason Frazin was served with a subpoena that is not the subject of the motions pending here (and, in fact, is the subject of a separate proceeding in this district, No. 3:18-mc-37-S (N.D. Tex.)).
Third, in the context of summary judgment motions, courts in this circuit have found an unsworn declaration to substantially comply with Section 1746 by including the statement that "I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief." Sukup v. Martin, No. 1:10-cv-190, 2012 WL 929058, at *1 (E.D. Tex. Mar. 16, 2012); accord Steward v. Abbott, 189 F.Supp.3d 620, 627-28 (W.D. Tex. 2016) ("Defendants precede their standing arguments with a threshold argument: that the Court, in assessing Plaintiffs' standing, should `ignore' the declarations that Plaintiffs submitted in opposition to Defendants' motion to dismiss because the declarations were made out, `under the penalty of perjury[,]' to be `true and correct to the best of [the declarants'] knowledge.' The declarations in this case, which Defendants urge the Court to `ignore,' do contain the operative language of Section 1746, and no authority relied upon by Defendants supports their position that the qualifying phrase `to the best of my knowledge' invalidates a declaration that is otherwise valid under Section 1746. Rather, the cases Defendants cite addressed a series of purported affidavits or declarations and rejected them where — in the absence of any mention of perjury — they were verified only by the declarant's statement to the effect that the contents were true to the best of the declarant's knowledge. In other words, those cases held, quite plainly, that unsworn declarations are insufficient if not phrased in a manner that subjects the declarant to the penalty of perjury." (citations omitted)); Bazemore v. Castaneda, No. EP-10-CV-403-DB-DCG 2011 WL 1675416, at *5 (W.D. Tex. Apr. 12, 2011) (concluding that Section 1746's requirements were met where a "declaration ends with the following statement above his signature: `I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on this 7th day of March, 2011.'").
The Court is persuaded by these decisions' reasoning that Ms. Sutton's "declar[ing] under penalty of perjury that the foregoing is true and correct to the best of my knowledge" meets Section 1746's requirements.
Fourth, just as this Court has concluded that an affidavit can adequately support a motion for summary judgment as Federal Rule of Civil Procedure 56(c)(4) requires when the affiant's personal knowledge is based on a review of her employer's business records and the affiant's position with the employer renders her competent to testify on the particular issue which the affidavit concerns, Ms. Sutton's as counsel for MetroPCS can similarly meet Rule 602's personal knowledge requirement.
Fifth, Ms. Frazin's non-specific hearsay and Rule 1002 objections are not well taken. Ms. Sutton's declaration attaches the documents on which she relies, and the Court determines they are not inadmissible for these purposes. Accord Dkt. No. 15 at 4 ("The motion to strike does not mention or object to the correspondence attached to the Declaration as Exhibits 3, 4, and 5, and Frazin cannot dispute that these communications between counsel are true and correct copies of the originals as the correspondence was sent to/received from Frazin's attorney. The subpoena (Declaration Exhibit 2) is also not mentioned or objected to in the motion to strike, likely because an identical copy of the subpoena was previously filed by Frazin, precluding any objection she may have to its authenticity. In addition, Frazin admits being served with the subpoena, and there is no dispute regarding its contents." (citations omitted)).
As MetroPCS notes, Ms. Sutton's declaration "simply serves as a vehicle to attach documents related to the underlying discovery dispute, the contents of which, apparently, are not in dispute, including: (i) a deposition excerpt on which MetroPCS relied in good faith in issuing the subpoena to Frazin (Declaration Exhibit 1); (ii) the subpoena (Declaration Exhibit 2); and (iii) correspondence between counsel for Frazin and counsel for MetroPCS (Declaration Exhibits 3, 4, and 5)." Dkt. No. 15 at 3.
And, in fact, Ms. Frazin explains in reply that, "[w]ith respect to the exhibits attached to the Sutton declaration, [she] has not objected to the exhibits because the exhibits directly controvert the arguments and representations of T-Mobile." Dkt. No. 20 at 6 (footnote omitted). But, according to her reply, Ms. "Frazin objects to the statements made in Sutton's declaration, which extend well beyond the authentication of documents, because the Sutton declaration failed to establish that her statements were based on personal knowledge and therefore failed to satisfy the requirements of Rule 602." Id. at 8.
The Court is not persuaded. Disregarding any unmade objections to the declaration's exhibits then, and the irrelevant statements about a subpoena served on Jason Frazin, the Court finds no basis to strike or disregard Ms. Sutton's statements that:
Dkt. No. 8 at 49-50 at 102. And neither can the Court credit any suggestion that Ms. Sutton's declaration does not, under the circumstances, properly authenticate its Exhibits 1-5 as "true and correct" copies of the deposition excerpts, subpoena, and attorney correspondence attached.
In her Motion to Quash, Ms. Frazin asserts that she
Dkt. No. 1 at 7-8.
She seeks not only quashal or, alternatively, a protective order but also sanctions:
Dkt. No. 1 at 8-9.
MetroPCS responds that Ms. Frazin
Dkt. No. 7 at 3 (footnote omitted). MetroPCS add that, "[i]mportantly, there is no declaration by Frazin in support of either of the two undue burden arguments." Id. at 3 n.3 (citing Areizaga v. ADW Corp., 314 F.R.D. 428, 434 (N.D. Tex. 2016) ("A party resisting discovery must show how the requested discovery was overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden")).
And, according to MetroPCS, the
Dkt. No. 7 at 4-8 (footnote omitted).
MetroPCS further contends that the discovery sought is proportional to the needs of the case":
Dkt. No. 7 at 8-9 (footnote omitted).
And MetroPCS contends that Ms. Frazin's Motion to Quash should be denied because her "request to quash the subpoena or for a protective order based on conclusory allegations of undue burden fail to satisfy the standard for either of the requested forms of relief." Id. at 10-14.
Finally, MetroPCS contends that an award of fees in Ms. Frazin's favor is not warranted:
Dkt. No. 7 at 14-15 (footnotes and citations omitted).
MetroPCS "respectfully requests that the Court enter an order compelling Frazin to attend, fully cooperate, and produce documents at a deposition duces tecum, denying Frazin's Motion to Quash and for Supplemental Relief, awarding MetroPCS its reasonable attorneys' fees and costs incurred as a result of having to file this Motion to Compel and respond to Frazin's Motion to Quash, and for Frazin's failure to appear at her deposition, and for any such other and further relief as this Court deems just and proper." Dkt. No. 7 at 15.
Ms. Frazin replies in support of her Motion to Quash that she "has no connection to the Philadelphia suit and has no documents responsive to T-Mobile's duces tecum request, accordingly, her motion to quash is directed at the subpoena for her oral deposition." Dkt. No. 10 at 2 (footnote omitted). As the Court has previously explained, "a non-party cannot produce what it does not have. And, so, [c]learly, the court cannot compel [a . . . non-party] to produce non-existent documents." ORIX USA Corp. v. Armentrout, No. 3:16-mc-63-N-BN, 2016 WL 4095603, at *5 (N.D. Tex. Aug. 1, 2016) (citation and internal quotation marks omitted).
Ms. Frazin "argues that she has no involvement in or knowledge of the Philadelphia claims, that T-Mobile does not need her deposition for the claims in that suit, and that there is no issue her testimony could resolve in the Philadelphia case" and also "that attendance at an oral deposition in a case in which she has no part and holds no knowledge, would unfairly and improperly impose upon her the undue burden of attending the deposition, in addition to being outside the scope of discovery permitted by the Rules." Id.
According to Ms. Frazin, "[i]t is axiomatic that an oral deposition imposes a burden of time and costs of representation by counsel for represented parties," and "[i]t is also undisputed that Mrs. Frazin is represented by counsel and that T-Mobile is seeking to burden Mrs. Frazin by taking her time for an oral deposition." Id. at 3 (footnote omitted).
And, she adds, "[t]o the extent that the Court does not find that the oral deposition of non-parties imposes an intrinsic burden upon the individual subpoenaed for deposition, (including being unable to work during the hours necessary for the deposition appearance), Lorraine Frazin moves for leave to file a supplemental declaration establishing these facts, or to present evidence of such at a hearing before the Court." Id. at 3 n.4. The Court acknowledges that all discovery, including a deposition of a non-party, involves some burden and expense, but, to the extent that Ms. Frazin is asking the Court to further infer that any burden on a non-party is an undue burden, the Court denies her motion to supplement or for an evidentiary hearing. As the non-party opposing discovery, as the Fifth Circuit has held, Ms. Frazin had the burden to come forward in her Motion to Quash with evidence of an undue burden under Rule 45(d)(3)(A). See Wiwa, 392 F.3d at 818.
Ms. Frazin also replies that
Dkt. No. 10 at 3-9 (footnotes and citations omitted).
Ms. Frazin also asserts that MetroPCS's argument that it needs Ms. Frazin's deposition is an abuse of discovery made in bad faith and that allowing MetroPCS early discovery for an unfiled case is improper and unfair. See id. at 9-12.
In response to MetroPCS's Motion to Compel, Ms. Frazin urges that the Court should deny the Motion to Compel (1) because MetroPCS "violated the Rules, failed to confer before filing its motion, and then lied to the Court"; (2) because "there is no evidence that Lorraine Frazin has any information within the scope of permissible discovery"; and (3) because, "if its discovery were relevant, there are substantially less burdensome means of discovery available." Dkt. No. 13 at 3-18.
According to Ms. Frazin, MetroPCS
Id. at 2-3, 18-19 (footnote and emphasis omitted).
MetroPCS replies that it "uncovered evidence (which has been presented to the Court) demonstrating that third-parties, including, inter alia, Frazin are engaging in the identical activities described in the Complaint and are likely to have relevant information regarding the Handset Theft and Trafficking Scheme (`Scheme') that would support the allegations of MetroPCS's Complaint and its prayer for injunctive relief and damages"; that Ms. "Frazin uses her response to rehash the same inapposite and unpersuasive arguments she has previously made to avoid the subpoena," which "is both relevant and proportional to the needs of the case and a half-day deposition is not an undue burden; and that Ms. "Frazin should be compelled to comply with the subpoena in full." Dkt. No. 19 at 1-2.
MetroPCS contends that Ms. Frazin's response, "setting aside her hyperbolic false accusations, can be distilled to one argument: that because the case is venued in Philadelphia the Scheme must be confined to Pennsylvania, and, therefore, Frazin has no relevant knowledge." Id. at 3 (footnote omitted). But, MetroPCS asserts, "the Scheme and conspiracy extend beyond state lines and, in fact, the defendants themselves are from three different states." Id.
MetroPCS further replies that Ms. "Frazin's distorted interpretation of MetroPCS's evidence, namely the Vanderbosch testimony, does not negate that MetroPCS supplied specific evidence sufficient to warrant the discovery" and that Ms. "Frazin's alternate theory of the testimony, at most, shows that this evidence (as with any evidence) might be open to more than one interpretation." Id.
And, MetroPCS asserts, warranted:
Id. at 3-4.
Finally, MetroPCS replies that its initial disclosures do not preclude Ms. Frazin's compliance with the Subpoena, where "initial disclosures are a discovery tool between the parties and are not filed or subject to reliance by third parties and where "MetroPCS did not take self-contradictory positions by omitting Frazin from its initial disclosures and then seeking discovery from her." Id. at 4. And MetroPCS contends that the parties conferred in good faith on the Motion to Compel, that the discovery sought from Ms. Frazin by the Subpoena is not unduly burdensome, and that supplemental briefing is not necessary or proper. See id. at 5-6.
There is much that Ms. Frazin and MetroPCS have offered the Court to sort out here, and more than enough vitriol — all of it unhelpful — to go around.
But the Court concludes that the core of the issue here is whether Ms. Frazin's deposition testimony would be relevant to the claims and defenses in the Pennsylvania action under Rule 26(b)(1). If it would be, Ms. Frazin has not — and, the Court determines, could not — show that her appearing for a half-day deposition would be unduly burdensome under Rule 45(d)(3)(A) or disproportionate under Rules 26(b)(1). See Dkt. No. 19 at 6 n.5 ("If the purported burden is related to the time of day, location, or breaks provided for the deposition, MetroPCS will make reasonable accommodations for Frazin's convenience and comfort. In fact, Frazin was previously offered alternate dates and times for her deposition.").
And the Court determines that, on this record, there is no basis to conclude that Ms. Frazin has information relevant to the claims and defenses in the Pennsylvania action under Rule 26(b)(1). MetroPCS asserts that Tom Vanderbosch is a coconspirator of Jason Frazin, and that Ms. Frazin (Jason's mom) is involved in their scheme that is identical to the scheme alleged as the basis for claims in the Pennsylvania action. But there is nothing to suggest that Ms. Frazin or her son are actually conspiring with the defendants named in the Pennsylvania action, however similar their alleged conduct may be. That is consistent with MetroPCS's omitting Ms. Frazin for its disclosures in the Pennsylvania action.
MetroPCS is not required to be able to plead a claim against Ms. Frazin under Rule 11 standards to be able to take a deposition to explore what she knows that is relevant to the existing claims and defenses in the Pennsylvania action. And this is not a Federal Rule of Civil Procedure 56 motion for summary judgment in which the Court must draw all factual inferences in favor of the resisting party.
But requiring Ms. Frazin to sit for a third-party deposition would be unduly burdensome when MetroPCS's only basis for insisting that she do so is a witness's testimony that she may be involved in a scheme that the witness has apparently never suggested involves the defendants in the Pennsylvania action.
The Court does not find undue burden based on some proposition that, because the Underlying Matter is venued in Philadelphia, the scheme alleged in that case must be confined to Pennsylvania and that, therefore, Ms. Frazin has no relevant knowledge. The Court determines that the Subpoena should be quashed because the record does not support a determination that Ms. Frazin is likely to be able to provide deposition testimony that would be relevant to — and needed by MetroPCS to prove or support — the claims in the Pennsylvania action alleged against the defendants named there and that, under all of these particular circumstances, requiring Ms. Frazin to appear for a deposition under the Subpoena issued in connection with the Pennsylvania action would impose an undue burden on her as a non-party.
But, under all of the circumstances, the Court finds no basis to impose any sanctions in connection with any of these motion. Ms. Frazin and MetroPCS will bear their own expenses, including attorneys' fees, in connection with the motions filed here.
For the reasons explained above, the Court GRANTS Non-party Lorraine Frazin's Motion to Quash Subpoena and for Supplemental Relief [Dkt. No. 1]; DENIES T-Mobile USA, Inc.'s Motion to Compel Discovery [Dkt. No. 7]; and DENIES Non-party Lorraine Frazin's Motion to Strike Sutton Declaration [Dkt. No. 11]. The Court QUASHES the subpoena for deposition duces tecum that T-Mobile USA, Inc., for itself and its MetroPCS brand, the plaintiff in an action pending in the United States District Court for the Eastern District of Pennsylvania, MetroPCS v. Isaiah Michael Thomas, et al., No. 2:17-cv-04557-MMB, served on Non-party Lorraine Frazin.
SO ORDERED.
