JOSEPH H.L. PEREZ-MONTES, Magistrate Judge.
Before the Court is a Motion to Quash Subpoena and Request for Sanctions filed by Defendant, Techline, Inc. ("Techline"). (Doc. 73). Techline seeks quashal of a subpoena (Doc. 73-2) (the "Subpoena") dated February 23, 2016, and purportedly served upon Defendants on February 25, 2016. Techline further seeks an award of costs and fees incurred in filing the Motion to Quash.
For the reasons detailed below, Techline's Motion is hereby GRANTED IN PART AND DENIED IN PART.
Plaintiff, Kenneth B. Gaines ("Gaines"), filed this employment discrimination lawsuit on March 20, 2013. (Doc. 1). More than three months after filing the lawsuit, Gaines moved to extend the deadline to submit a plan of work, which would become the scheduling order in the case. (Doc. 5). Two weeks later, the parties jointly moved to extend the deadline again. (Doc. 9). Following these two extensions, the Court set the original discovery deadline for April 11, 2014. (Doc. 15).
Subsequently, Gaines requested, and was granted, three extensions of the discovery deadline. (Docs. 23, 28, 37). Meanwhile, Techline filed two motions to compel discovery, both of which were granted. (Docs. 31, 49).
Upon request by both parties, the Court stayed the case (Doc. 56) for approximately seven months (Doc. 62). The Court then lifted the stay and set a third and final discovery deadline of February 29, 2016. (Doc. 67).
In late February 2016, the parties took depositions. On February 25, 2016, Gaines served counsel for Techline with the Subpoena. The Subpoena seeks production of five categories of documents. The Subpoena's return date is February 29, 2016 — the discovery deadline.
On March 17, 2016, the Court conducted a telephone hearing on the Motion. (Doc. 78). During that hearing, the parties indicated that all but two of the requests in the Subpoena had been resolved. The two remaining requests are for: (1) driver logs and driver manifests for J.W. McKee ("McKee"), a Techline employee; and (2) driver logs and driver manifests for Leo Ladner ("Ladner"), another Technline employee. Counsel for Gaines indicated that, before sending the Subpoena, she had previously propounded discovery requests for the referenced documents.
Also during the hearing, the Court set subsequent briefing deadlines, and emphasized that counsel for Gaines should file any discovery requests propounded to Techline before the Subpoena which sought production of the documents mentioned in the Subpoena. (Doc. 78). Briefing is now complete. Counsel for Gaines submitted no prior discovery requests.
Under Rule 45(d)(1) of the Federal Rules of Civil Procedure, "[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." The Court may "quash or modify a subpoena that . . . fails to allow a reasonable time to comply . . . or . . . subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A). A subpoena issued for discovery purposes must also comply with the discovery limitations of Fed. R. Civ. P. 26.
Although Rule 45 contains no minimum number of days for compliance, the 14-day objection period in Rule 45(d)(2)(B) is generally considered reasonable.
In this case, the Subpoena allowed Techline only three days to comply. The compliance period was plainly unreasonable. In addition, the requests for documents in the Subpoena were markedly broad. Had Techline attempted to respond to the Subpoena within the designated compliance period, the burden would have been significant.
However, Techline did not respond to the Subpoena as written. Instead, Techline declined to produce documents within the discovery deadline. Techline later voluntarily complied with portions of the Subpoena and produced some documents well after the compliance deadline. Counsel resolved other portions of the Subpoena by subsequent discussion, leaving only the driver logs and driver manifests of two Techline employees still at issue.
Techline maintains that there are no driver logs or manifests for the first listed employee, Ladner. Techline argues the driver logs and manifests for the second listed employee, McKee, are irrelevant because Gaines has failed to obtain his own driver logs and manifests, and therefore, cannot compare his own to those of McKee. While this fact may limit the usefulness of McKee's records, it does not mean that the records are not discoverable.
Under the unique circumstances of this case, the Court is obliged to apply two of the remedies available under Fed. R. Civ. P. 45. The Court quashes all portions of the Subpoena except the request for production of McKee's driver logs and manifests. The Court modifies the Subpoena to require production of McKee's driver logs and manifests within 14 days of the date of this Order.
The Court "must enforce [the duty `to avoid imposing undue burden or expense on a person subject to the subpoena'] 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). Under this provision, Techline seeks an award of expenses and attorneys' fees incurred in filing the Motion to Quash.
Techline voluntarily complied with portions of the Subpoena after filing the Motion to Compel. Further, Techline did not comply with the return date of the Subpoena. Techline's filing of the Motion to Compel — in lieu of other alternatives available to Technline — was arguably reasonable. But it was not necessary. Techline could have, and should have, simply objected to the Subpoena as provided under Fed. R. Civ. P. 45(d)(2)(B). Gaines would have then been forced to move for an order compelling Techline to comply with the Subpoena under Fed. R. Civ. P. 45(d)(2)(B)(i).
The Court certainly finds Gaines's issuance of the Subpoena dilatory and misguided.
Accordingly, IT IS ORDERED that the Motion to Quash Subpoena and Request for Sanctions filed by Defendant, Techline, Inc. ("Techline") (Doc. 73) is hereby GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that all portions of the Subpoena (Doc. 73-2) except the portion requesting production of J.W. McKee's driver logs and manifests.
IT IS FURTHER ORDERED that Techline, Inc. shall produce J.W. McKee's driver logs and manifests to counsel for Plaintiff within 14 days of the date of this Order.
IT IS FURTHER ORDERED that the request for sanctions by Techline, Inc. is hereby DENIED.