JOHN Z. LEE, UNITED STATES MAGISTRATE JUDGE.
This is another one of the "surprisingly many" cases coming to federal court under the Telephone Consumer Protection Act ("TCPA"). See Chapman v. First Index, Inc., 796 F.3d 783, 784 (7th Cir.2015). The present dispute is over discovery on the issue of the arbitrability of the claims of one of the plaintiffs, Joetta Callentine. She has moved for a protective order prohibiting the defendants from pursuing subpoenas of her mother's account records from the Delaware County Bank in Delaware, Ohio, and of documents pertaining to her mother's funeral arrangements from the Snyder Funeral Home. The recipients of the subpoenas have not moved to quash them, although the funeral home apparently has informally voiced some objections to the subpoena to it, according to representations made by plaintiffs' counsel made during the oral argument on the motion.
While it's not necessarily the case here, it seems that often in putative class actions, representative plaintiffs, at some point, become surprised at the burden of discovery and reluctant to participate in it fully. And it is also beginning to seem that, often, simple TCPA cases involving relatively minimal amounts of damages — $1500 per call and perhaps $4500 per call if defendants are shown to have acted willfully or knowingly — become discovery nightmares. Discovery in this case, for example, has already been ongoing for over two years. (Dkt. #21). While the scope of discovery under Fed. R. Civ. P 26(b) is quite broad, Davis v. Duran, 2011 WL 1792699, *2 (N.D.Ill.2011), there is a proportionality aspect to it. That is, does the burden or expense of the proposed discovery "outweigh[] its likely benefit." Fed. R. Civ. P. 26(b)(1). In other words, is the book worth the candle? See Uppal v. Rosalind Franklin Univ. of Med. & Sci., 124 F.Supp.3d 811, 815, 2015 WL 5026228, at *3 (N.D.Ill. 2015).
Ms. Callentine essentially takes two positions in arguing for a protective order barring further discovery. First, she says, "enough is enough." Defendants have already deposed her on this issue and she has answered a number of questions, some of them, in her view, highly personal and intentionally provocative and purposefully embarrassing. (The defendants deny any improper motivation). She doesn't want to be subjected to any further discovery on the topic, which she says is utterly irrelevant. Defendants do not raise this issue of whether Ms. Callentine has standing to object to the subpoenas to the bank and the funeral home. Generally, a party has standing to object to a subpoena to a non-party
But where the objection by the party is based on claimed irrelevance of the information sought from the non-party, many courts have held that the objector does not generally have standing to object to a Rule 45 subpoena. See e.g., Uppal, 124 F.Supp.3d at 815, 2015 WL 5026228, at *4 (collecting cases but not deciding the issue); Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc., 2013 WL 238176, *1 (S.D.N.Y.2013). Other cases have concluded that Rule 45 adopts the standards codified in Rule 26, and that a non-party subpoena may be quashed or modified by a party for the same reasons that would support a protective order under Rule 26. See e.g., Tracey v. St. Jude Medical, Inc., 2015 WL 3505314, *2-3 (D.Neb.2015); In re C.R. Bard, Inc. Pelvic Repair Systems Product Liability Litigation, 2014 WL 1660386, *2-3 (S.D.W.Va.2014); Mayhall v. Berman & Rabin, P.A., 2013 WL 4496279, *3 (E.D.Mo.2013); Johnson v. Guards Mark Security, 2007 WL 1023309, *1 (N.D.Ohio 2007).
We need not decide this issue since lack of standing is an argument that the defendants have failed to raise. It is thus waived. Cf., United States v. McLee, 436 F.3d 751, 760 (7th Cir.2006); Bretford Mfg., Inc. v. Smith System Mfg. Corp., 419 F.3d 576, 581 (7th Cir.2005); LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 921-22 (7th Cir.1997)(collecting cases); Burdett v. Miller, 957 F.2d 1375, 1380 (7th Cir.1992).
Second, Ms. Callentine insists that, because she has not received letters of appointment from a probate court in Ohio,
It is a commonplace occurrence that when one's mother dies, her children — if the father is not alive and often if he is — make the arrangements for the funeral. That is what happened here: Ms. Callentine and her sister dealt with the funeral home out of insurance policy proceeds. (Callentine Dep., at 67, 105-06). Defendants can make of that what they may, but there is no need to go father and subpoena all the records from the funeral home, which may well include details of coffin and plot selection, personal details regarding the body, and other matters that plainly have nothing to do with any conceivable issue in this case. AMEX has conceded it has no interest in these and related matters but it also concedes that the subpoena as presently drafted would require the funeral home to produce any record of any kind relating in any way to any aspect of Ms. Callentine's mother's death. Given the admitted overbreadth of the subpoena, the motion for protective order is granted. If AMEX chooses to reissue the subpoena it can only seek information or documents that relate to Ms. Callentine's involvement, if any, in her mother's financial affairs and/or from which it could be argued that Ms. Callentine was the functional equivalent of an executor of her mother's estate or was acting in one of the capacities specified in the cardholder agreement between AMEX and Ms. Callentine's mother.
Returning to Ms. Callentine's claim that there has been enough discovery on this question — and that some of it has been intentionally abusive — it cannot be ignored that during her deposition her memory was uncertain and her answers equivocal. That understandably precipitated a longer and more intrusive line of questioning. Still some of the defendants' questioning was, at times, seemingly pointless. Why delve into Ms. Callentine's divorce, her moving in with her sister, and how many hours she spent taking care of her sister's children while her sister was at work? (Callentine Dep., at 90, 92). This type of questioning is perhaps what prompted Ms. Callentine to seek a protective order and to insist that the deposition and the current discovery are designed to be harassing.
At her deposition, Ms. Callentine testified that her mother asked her to take care of her uncle — he was disabled and had been living with Ms. Honaker — by paying his bills. That's a piece of evidence that might suggest Ms. Callentine was acting as Ms. Honaker's representative, even if she was not "executor" of the estate. But beyond that, Ms. Callentine's memory mostly failed her. She didn't recall whether, when her mother died, her uncle
As for whether Ms. Callentine contacted companies about bills her mother received after she passed away, she said:
— and let them know, and, you know, that I did in person. It was such a whirlwind. (Callentine Dep., at 45-46; see also 109). Ms. Callentine knew "beyond a shadow of a doubt" that her mother had a checking account at Delaware County Bank, but beyond that, she could not say whether there were any other accounts. (Callentine Dep., at 46). She thought the checking account was "frozen", had no idea what happened next, but thought the account was still there. She didn't know how much money might be in the account. (Callentine Dep., at 47).
She knew her mother had some credit card accounts, but could not recall whether she took care of them after her mother died. (Callentine Dep., at 52). Oddly, despite the allegations in the Complaint, she testified that she could not remember whether her mother had an American Express account. (Callentine Dep., at 175). Ms. Callentine didn't remember anything specific about any of the calls that form the basis of her TCPA claim. (Callentine Dep., at 68, 70, 126-27, 172). Not surprisingly, she couldn't remember the dates of the calls, but neither could she remember whether they all occurred in 2009. (Callentine Dep., at 98).
So, again, Ms. Callentine couldn't remember how her mother's bills were paid following her death or by whom. But that's not the end of things. There are other avenues to determine who was in charge of Ms. Honaker's finances, and bank records may be one of them. As has already been said, it is understandable that plaintiff might struggle with questions about what went on in the wake of her mother's death. That's a profoundly difficult time for children — even adult children. Discovery is no pleasure; it's rightly been called the bane of modern litigation. Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir.2000)(Posner, J.). It is by its very nature, intrusive and invasive. Bond v. Utreras, 585 F.3d 1061, 1067 (7th Cir.2009); Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.1998). See also Miller UK Ltd. v. Caterpillar, Inc., 2013 WL 474380, *1 (N.D.Ill.2013); Flentye v. Kathrein, 2007 WL 2903128, *2 (N.D.Ill.2007)("Discovery is, like life itself, `nasty [and] brutish....' Hobbes, Leviathan, Chapter XIII. Unfortunately, it is not generally short."). But the decision to be participate in a lawsuit and perhaps be a class representative brings with it certain responsibilities. There being only a limited basis for judicial intervention under Rule 26(c), reasonable discovery in the areas being explored by Amex can proceed.
The plaintiff's motion for a protective order [Dkt. # 323] is granted in part (as to the subpoena to the funeral home) and denied in part (as to the subpoena to the bank.)