Auto-Owners Insurance v. Southeast Floating Docks, Inc.

231 F.R.D. 426, 63 Fed. R. Serv. 3d 195, 2005 U.S. Dist. LEXIS 21524, 2005 WL 2375215
CourtDistrict Court, M.D. Florida
DecidedSeptember 28, 2005
DocketNo. 6:05-CV-334-ORL-31JGG
StatusPublished
Cited by79 cases

This text of 231 F.R.D. 426 (Auto-Owners Insurance v. Southeast Floating Docks, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auto-Owners Insurance v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 63 Fed. R. Serv. 3d 195, 2005 U.S. Dist. LEXIS 21524, 2005 WL 2375215 (M.D. Fla. 2005).

Opinion

Order

GLAZEBROOK, United States Magistrate Judge.

This cause came on for consideration without oral argument on the following motion:

MOTION: EXPEDITED MOTION TO QUASH NON-PARTY SUBPOENAS (Doc. No. 62)
FILED: August 27, 2005
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.

Plaintiff issued five subpoenas to various non-parties for depositions and production of records. Four of the subpoenas required compliance at the same place and time. A fifth subpoena to non-party ShoreMaster, Inc. requires compliance in Minnesota, the location of the non-party. The subpoenas duces tecum and deposition notices seek discovery regarding the nature of the non-parties’ business, the corporations’ governing documents, ownership of the corporations, and broad discovery regarding the non-parties’ financial transactions, including: pro[428]*428duction of all bank statements and cancelled checks for the previous two years; the corporations’ financial statements for the current year* and previous two years; the corporations’ financial records evidencing all creditors of the corporations and all accounts receivable for the previous two years; and all sales, transfers or disposal of corporate assets or property.

Defendants moved to quash the non-party subpoenas on the following grounds: (1) they were served on inadequate notice; (2) the subpoenas are an attempt to harass Defendants by seeking unduly burdensome, embarrassing, premature and irrelevant discovery from third parties with the intent of damaging Defendants’ business relationships with those third parties; (3) Plaintiffs discovery is nothing more than a fishing expedition: (4) the discovery is in aid of execution and is premature; (5) the discovery seeks confidential and proprietary information: (6) the information sought can be more conveniently and less expensively obtained directly from Defendants. None of the non-parties have appeared to request that the subpoenas be quashed or modified.

Plaintiff argues that Defendants lack standing to quash subpoenas served on non-parties, except that Defendants may raise a claim of privilege. Defendants argue that the discovery is necessary to determine whether the non-parties should be added to the law suit as real parties in interest.

I. Adequate Notice of the Subpoenas Duces Tecum and Depositions

There is no fixed time limit for service of subpoenas under Fed.R.Civ.P. 45. Local Rule 3.02(a). however, provides in relevant part that a party desiring to take the deposition “of any person” must give at least 10 days written notice to every other party in the action and the deponent. Pursuant to Fed.R.Civ.P. 6(a) and Local Rule 4.20, the ten days is calculated by excluding intermediate Saturdays, Sundays, and legal holidays. Further, when notice is mailed, an additional 3 days is added to the original prescribed period. Fed.R.Civ.P. 6(e) and Local Rule 4.20. The Court may quash or modify a subpoena that fails to allow a reasonable time for compliance. Fed.R.Civ.P. 45(c)(3)(A)(i).

Four of the five subpoenas were served by mail on August 17, 2005, with a deposition and document production date of September 7, 2005.1 Computing the time under Rule 6 and Local Rule 4.20, adequate notice for these depositions was given. The fifth subpoena to ShoreMaster was signed on August 19, 2005, with a deposition and document production date of August 31, 2005.2 As the deposition was set for 8 days after the date of the subpoena, inadequate notice was given to ShoreMaster and Defendants.

Further, Defendants have standing to move to quash or modify the subpoena based on inadequate notice. Not only do Defendants have a personal interest in receiving adequate notice of depositions, a party has standing to move to enforce the Court’s orders and rules. Cf., Central Bank of Tampa, 128 F.R.D. 285 (1989) (granting defendant’s motion to quash and for a protective order as to subpoena directed to non-party that did not comply with Fed.R.Civ.P. 27); Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial, ¶ 11:2286 (The Rutter Group 2005) (“Prior to the deposition, the nonparty witness, or any party may move: to quash the subpoena (e.g., for improper service, inadequate description, or lack of control of the designated documents)... ”) (emphasis in original).

The inadequacy of notice for the Shore-Master deposition and production of documents, however, appears moot at this time as Plaintiff and ShoreMaster agreed to a postponement of the August 31 date. In re[429]*429scheduling the deposition, Plaintiff must give the required notice to Defendants.3

II. Defendants’ Standing To Move to Quash On the Grounds Of Relevance, Oppressiveness and Undue Burden

Plaintiff cites several district court cases from outside the Eleventh Circuit for the proposition that, absent a claim of privilege, a party has no standing to challenge a subpoena to a non-party. The law governing courts in the Eleventh Circuit, however, is somewhat broader, and standing exists if the party alleges a “personal right or privilege” with respect to the subpoenas. Brown v. Braddick, 595 F.2d 961, 967 (5th Cir.1979); see also, State of Florida v. Jones Chem., Inc., 1993 WL 388645 *2 (M.D.Fla.1993).

Defendants argue that the subpoenas seek “extensive and intrusive information about every aspect of the financial relationship between Defendants and the non-parties” and that the information is “confidential and proprietary.” Defendants further contend that there are less expensive and more convenient sources from which the information could be obtained, although it is unclear whether Defendants contend that these extra costs create an undue burden on Defendants as opposed to an undue burden on the non-parties.

The financial records sought are business records of non-parties. Defendants have not established any expectation of privacy in their business transactions with other corporations and have not made any factual showing that the records are confidential or proprietary. Therefore, Defendants fail to establish a “personal right” regarding the records. See Clayton Brokerage Co., Inc. v. Clement, 87 F.R.D. 569, 571 (D.Md.1980) (bank customer had no legitimate expectation of privacy in the contents of checks, deposit slips and other banking documents subpoenaed from his bank and, therefore, lacked standing to challenge the subpoena issued to the bank). Therefore, Defendants do not have standing under Rule 45 to quash the subpoenas regarding financial records.

To the extent that Defendants would be required to incur third party discovery costs that rise to the level of an undue burden for Defendants, Defendants have standing to quash on those grounds.

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231 F.R.D. 426, 63 Fed. R. Serv. 3d 195, 2005 U.S. Dist. LEXIS 21524, 2005 WL 2375215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-owners-insurance-v-southeast-floating-docks-inc-flmd-2005.