RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the Court is Defendant Celia Cangelosi's Motion to Quash Subpoenas and/or Motion for Protective Order, filed on January 19, 2016. (R. Doc. 131). The Court granted Defendant's contemporaneous request for expedited consideration of the Motion and required Plaintiffs to file any response by 12:00 p.m. on January 25, 2016. As of this Order, Plaintiffs have not responded to the Motion. For the reasons given below, Defendant's Motion (R. Doc. 131) is
Defendant seeks a protective order limiting the scope of discovery to exclude Plaintiffs' subpoenas issued to Defendant and non-party Terri Clark. Plaintiffs served the subpoenas on Defendant's counsel by email on January 12, 2015 and by certified mail on January 15, 2016. The first subpoena commands Defendant's legal assistant and non-party, Terri Clark, to appear for a deposition and produce certain documents on January 20, 2016. According to Defendant, the majority of "documents sought from Clark are actually the documents of her employer, [Defendant] Cangelosi." (R. Doc. 131-2 at 5). Otherwise, the subpoena to Clark seeks correspondence between Clark and the named Defendants. After reviewing the subpoena, the Court agrees that the underlying documents could have also been sought from the named Defendants. To the extent Plaintiffs' subpoena duces tecum to Clark (R. Doc. 131-3 at 6) is an attempt to obtain records from Defendant Cangelosi through her assistant, the Court will treat the subpoena accordingly.
The second subpoena commands Defendant to appear for a deposition and produce certain documents on January 28, 2016. Defendant explains that the notices of deposition "were not a surprise" as the parties had agreed to take both depositions later in January; "but the [requests for documents] definitely were." (R. Doc. 131-2 at 3). For this reason, Defendant's objection is limited to Plaintiffs' requests for documents from both Defendant and Clark.
Defendant's counsel first received the subpoenas by email on January 12, 2016 and again by certified mail on January 15, 2016. Given the upcoming discovery deadline of January 29, 2016 and the type of documents requested from both Defendant and Clark, Defendant suggests that Plaintiffs are using Rule 45 "to make an end-run around Rule 34" and the Court's discovery deadline. The Court agrees.
"Rule 45 subpoenas, although not technically precluded by the language of Rule 45 from being served upon parties to litigation, are generally used to obtain documents from non-parties and are clearly not meant to provide an end-run around the regular discovery process under Rules 26 and 34." Thomas v. IEM, Inc., 2008 WL 695230, at *2 (M.D. La. March 12, 2008); Pearson v. Trinity Yachts, Inc., 2011 WL 1884730, at *1 (E.D. La. May 18, 2011) ("[S]ervice on a named party in a lawsuit of a subpoena duces tecum that provides short notice circumvents the orderly procedures from requests for production of document between parties provided by Federal Rule of Civil Procedure 34.").
Here, Plaintiffs' Rule 45 subpoena commanded Defendant Cangelosi to produce the requested documents by January 28, 2016 — only one day shy of the discovery deadline. Had Plaintiffs requested the documents from Defendant and the remaining parties under Rule 34, the deadline for responding would have fallen outside the discovery deadline — i.e., 30 days from service.
The Court reaches the same conclusion with respect to the subpoena to Clark. Terri Clark was subpoenaed on January 12, 2015 and asked to produce documents, which could have been requested directly from Defendants during discovery, by January 20, 2016 — just 9 days before the discovery deadline. Plaintiffs have provided no response to Defendant's assertion that the subpoena to Clark, who is the assistant to Defendant Cangelosi, is an attempt to obtain the documents of a party through Rule 45 instead of Rule 34. Having reviewed the arguments of Defendant Cangelosi and the contents of the subpoena, the Court finds that the subpoena to Clark, although issued to a non-party, is an attempt to circumvent the time limitations set forth in Rule 34. Accordingly, the subpoena to Clark is untimely for the same reasons set forth above.
Although not raised by Defendant, the Court also finds that the subpoena to Clark must be quashed for improper service.
Finally, the Court also determines that both subpoenas pose an undue burden on Defendant Cangelosi and Clark. Plaintiffs' subpoenas required Clark to produce documents within just 8 days after service and gave Defendant 16 days in which to comply.
Because the Court finds that both subpoenas must be quashed to the extent they seek the production of documents from either Defendant or Clark, it does not address the remaining arguments presented by Defendant. For the reasons given above,