Byrd Underground, LLC v. Automatic Data Processing, Inc.

• Court: District Court, D. Nevada
• Decided: January 9, 2024
• Docket: 2:22-cv-01329
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6

7 BYRD UNDERGROUND, LLC, Case No. 2:22-cv-01329-CDS-NJK 8 Plaintiff(s), Order 9 v. [Docket No. 65] 10 AUTOMATIC DATA PROCESSING, INC., 11 Defendant(s). 12 Pending before the Court is Plaintiff’s motion for a protective order to limit the scope of a 13 non-party subpoena. Docket No. 65. Defendant filed a response in opposition. Docket No. 66.1 14 Defendant also seeks an award of its expenses. Id. at 13-14. No reply was filed. The Court does 15 not require a hearing. See Local Rule 78-1. 16 Plaintiff’s motion is not sufficiently developed. The subpoena seeks documents from non- 17 party USI Insurance Services, see Docket No. 65-1, who itself has not objected to the subpoena, 18 see Docket No. 66 at 4, or filed a motion to quash. The motion acknowledges that Plaintiff lacks 19 standing to seek to quash the subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure 20 on relevance and undue burden grounds.2 Docket No. 65 at 4 (“A party’s objection that the 21 subpoena issued to the non-party seeks irrelevant information or imposes an undue burden on the 22 non-party are not grounds on which a party has standing to move to quash a subpoenas [sic] issued 23 to a non-party, especially where the non-party, itself, has not objected” (emphasis added)). As a 24 1 Pin citations herein are to the pagination provided by CMECF, not the pagination assigned 25 by the parties. 26 2 Plaintiff’s motion is scattershot, arguing at various points that the subpoena is overly broad, irrelevant, unduly burdensome, and disproportionate to the needs of the case. To be clear, 27 Plaintiff acknowledges that portions of the specific document request are relevant and properly obtained by subpoena. Plaintiff argues that the catch-all for “all” communications is overly broad 28 in that it may sweep up some irrelevant matter. 1 result, the motion then pivots to seeking a protective order under Rule 26 on the exact same 2 grounds. See, e.g., id. The overarching problem, that Plaintiff does not address, is that Rule 26 3 allows for the filing of a motion for protective order by “[a] party or any person from whom 4 discovery is sought.” Fed. R. Civ. P. 26(c)(1) (emphasis added). “This provision by its plain 5 language provides that either a party or a non-party may seek a protective order, but only when 6 that party or non-party is the one from whom discovery is sought.” KeyBank Nat’l Assoc. v. 7 Neumann Dermatology LLC, 2022 WL 11861411, at *2 (D. Ariz. Jan. 3, 2022); see also 4R4 Sons, 8 LLC v. Tru G. Wilhelm, Inc., 2022 WL 2905468, at *2 (D. Nev. July 22, 2022); International 9 Game Tech. v. Ill. Nat’l Ins. Co., 2017 WL 10900253, at *2 (D. Nev. Oct. 31, 2017). The motion 10 fails to grapple with the governing text of Rule 26. 11 Plaintiff instead alludes to cases allowing potential relief regarding a non-party subpoena 12 when the party has a “personal right or privilege” in the subject information. See Heard v. Costco 13 Wholesale Corp., 2020 WL 515841, at *1 (D. Nev. Jan. 31, 2020). Even assuming that such an 14 exception exists under the law,3 Plaintiff has not provided any showing that it actually has a 15 “personal right or privilege” in the subject material. Instead, the motion simply lists information 16 that Plaintiff contends may fall within the scope of the subpoena request and sprinkles in the words 17 “sensitive,” “private,” and “proprietary.” See Docket No. 65 at 5-6. No case law is provided as to 18 what types of information suffice to meet the “personal right or privilege” standard, nor any 19 argument as to how a personal right or privilege is implicated here.4 It was Plaintiff’s burden of 20

21 3 Some judges have rejected this “personal right or privilege” exception. See, e.g., in re: Rhodes Cos., 475 B.R. 733, 740-41 (D. Nev. 2012) (Pro, J.) (declining to adopt the “personal right 22 or privilege” standing rule); Salem Vegas, L.P. v. Guanci, 2013 WL 5493126, at *2-3 (D. Nev. Sept. 30, 2013) (following Rhodes). 23 4 Some of the identified information on its face regards other persons or entities, such as 24 clients and employees. Id. Plaintiff offers no explanation as to how it has a “personal right or privilege” in the potentially sensitive information of others. Cf. Century 21 Real Estate, LLC v. 25 All Professional Realty, Inc., 2012 WL 2090434, *2 (E.D. Cal. June 8, 2012) (“Neither Select nor its agents have participated in this motion. Therefore, privacy issues or claims that the subpoena 26 requests confidential business or financial information of Select or its individual agents will not be considered here”). To be clear, however, Defendant is not seeking to broadcast confidential 27 information to the world. Instead, Defendant notes that privacy interests in the subject information can be safeguarded through the existing stipulated protective order. See, e.g., Docket No. 66 at 10 28 (collecting cases). Plaintiff offers no rebuttal on that issue. 1] establishing such a personal right or privilege,° a burden that is not met with conclusory statements. 2|| See Doutherd v. Montesdeoca, 2018 WL 3008867, at *2 (E.D. Cal. June 15, 2018) (concluding 3] that bare assertion that the requested documents contain “confidential commercial information” 4] did not satisfy the movant’s burden of establishing a personal right or privilege in that 5] information); see also Coalview Centralia, LLC v. Transalta Centralia Mining LLC, 2019 WL 2563851, at *3 (W.D. Wash. Mar. 21, 2019). At bottom, the Court declines to resolve the issue 7| given the lack of meaningfully developed argument. See Kor Media Grp., LLC v. Green, 294 8] F.R.D. 579, 582 n.3 (D. Nev. 2013); see also International Game Technology, 2017 WL 10900253, 9] at *2 (declining to address potential standing based on a “personal right or privilege” argument 10] that was not sufficiently developed). 11 Accordingly, the motion for protective order is DENIED without prejudice. Any renewed 12] motion must include robust argument on standing, including the specific issues above, as well as 13] on the underlying subpoena dispute. Any renewed motion must be filed by January 16, 2024. 14 IT IS SO ORDERED. 15 Dated: January 9, 2024 Nancy J. Koppe 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 > Defendant does not address standing at all in its responsive brief. See Docket No. 66.