3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5
6 Willie Worthams, Case No. 2:24-cv-00023-RFB-NJK 7 Plaintiff, Order 8 v. [Docket Nos. 162, 178] 9 GEICO Choice Insurance Company, et al., 10 Defendants. 11 Pending before the Court is Defendant GEICO Choice Insurance Company’s motion to 12 compel. Docket No. 162. The Court has considered Defendant’s motion, Plaintiff’s response, and 13 Defendant’s reply. Docket Nos. 162, 170, 175. Also pending before the Court is Defendant’s 14 motion for leave to file a supplemental brief in support of its motion to compel. Docket No. 178. 15 No response was filed. The motion is properly resolved without a hearing. See Local Rule 78-1. 16 I. BACKGROUND 17 Defendant seeks to compel Plaintiff to produce a corporate representative to testify to its 18 third amended deposition notice in a deposition limited to 3.5 hours; provide complete responses 19 to Interrogatory Nos. 3 and 8; and produce all documents that demonstrate its purported lost profits 20 in response to Request for Production No. 11. See Docket No. 94. Defendant additionally asks 21 the Court to award attorneys’ fees and costs and to extend the dispositive motion deadline. See id. 22 II. STANDARDS 23 A nonparty may be compelled to produce documents pursuant to the dictates of Rule 45 of 24 the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 34(c). Compliance with a Rule 45 25 subpoena for the production of documents involves overlapping duties. One requirement entails 26 the actual search for documents. A nonparty subpoena may require the production of identified 27 categories of documents in the subpoenaed person's “possession, custody, or control.” Fed. R. 28 Civ. P. 45(a)(1)(iii); see also In re Citric Acid Litig., 191 F.3d 1090, 1107-08 (9th Cir. 1999). A 1 person subpoenaed for the production of documents is under an affirmative duty to seek that 2 information reasonably available to her. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 3 189 (C.D. Cal. 2006). This duty is discharged through the formulation and completion of a 4 reasonable search conducted with due diligence. Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. 5 Cal. 2012); see also St. Jude Med. S.C., Inc. v. Janssen-Counotte, 305 F.R.D. 630, 639 (D. Or. 6 2015). “[A]n earmark of a recipient's inadequate inquiry is the obvious absence of documents and 7 other written materials that the recipient reasonably would be expected to have retained in the 8 ordinary course of its business.” Meeks v. Parsons, 2009 WL 3003718, at *4 (E.D. Cal. Sept. 18, 9 2009). 10 The case law addressing these requirements arises most frequently in the context of a 11 request for documents from a party made under Rule 34 of the Federal Rules of Civil Procedure. 12 Courts routinely apply the same standards for a nonparty responding to a subpoena for documents 13 served under Rule 45 of the Federal Rules of Civil Procedure. See Meeks, 2009 WL 3003718, at 14 *3-4; see also St. Jude Medical, 305 F.R.D. at 639; Toranto v. Jaffurs, 2018 WL 4613149, at *2- 15 3 (S.D. Cal. Sept. 26, 2018); Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. 16 July 13, 2017); Sol v. Whiting, 2014 WL 12519787, at *3 (D. Ariz. Sept. 9, 2014). 17 “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. 18 Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574, 598 19 (1998). When a party fails to provide discovery and the parties’ attempts to resolve the dispute 20 without Court intervention are unsuccessful, the opposing party may seek an order compelling that 21 discovery. Fed. R. Civ. P. 37(a). The party seeking to avoid discovery bears the burden of showing 22 why it should not be permitted. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). 23 Arguments against discovery must be supported by “specific examples and articulated reasoning.” 24 U.S. E.E.O.C. v. Caesars Ent., 237 F.R.D. 428, 432 (D. Nev. 2006). 25 Parties are permitted to seek discovery of any nonprivileged matter that is relevant and 26 proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). District courts enjoy wide discretion 27 28 1 in deciding relevancy for discovery purposes.1 E.g., Shaw v. Experian Info. Solutions, Inc., 306 2 F.R.D. 293, 296 (S.D. Cal. 2015). To be permissible, discovery must be “relevant to any party's 3 claim or defense.” In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 563-64 (D. Ariz. 4 2016) (discussing impact of 2015 amendments to definition of relevance for discovery purposes). 5 Relevance for the purposes of discovery is defined broadly. See, e.g., V5 Techs. v. Switch, Ltd., 6 334 F.R.D. 306, 309 (D. Nev. 2019). 7 A subpoenaed person is deemed to have control over documents if she has a legal right to 8 obtain them. See Clark v. Vega Wholesale, Inc., 181 F.R.D. 470, 472 (D.Nev. 1998). A person 9 responding to a document request “‘cannot furnish only that information within his immediate 10 knowledge or possession; he is under an affirmative duty to seek that information reasonably 11 available to him from his employees, agents, or others subject to his control.’” Meeks, 2009 WL 12 3003718, at *4 (quoting Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D.Ind.1992)). 13 When no responsive documents are found or a dispute arises out of the completeness of 14 the production that is made, the subpoenaed person must come forward with an explanation of the 15 search conducted “with sufficient specificity to allow the Court to determine whether the party 16 made a reasonable inquiry and exercised due diligence.” V5 Techs. v. Switch, Ltd., 332 F.R.D. 17 356, 366–67 (D. Nev. 2019) Rogers, 288 F.R.D. at 485. Information regarding the search 18 conducted should be provided through a declaration under oath detailing the nature of the efforts 19 to locate responsive documents. Meeks, 2009 WL 3003718, at *4. Such declaration must address 20 the inquiry made on a request-by-request basis. A. Farber & Partners, 234 F.R.D. at 190. 21 A subpoenaed person “claiming undue burden or expense ordinarily has far better 22 information - perhaps the only information - with respect to that part of the determination.” Fed. 23 R. Civ. P. 26(b)(1), Advisory Committee Notes (2015). See also Nationstar Mortg., LLC v. 24 Flamingo Trails No. 7 Landscape Maint. Ass'n, 316 F.R.D. 327, 334 (D. Nev. 2016). As a result, 25 it has long been clear that a party claiming that discovery imposes an undue burden must “allege 26
27 1 Material may be discoverable even if not admissible at trial, Fed. R. Civ. P. 26
Free access — add to your briefcase to read the full text and ask questions with AI
3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5
6 Willie Worthams, Case No. 2:24-cv-00023-RFB-NJK 7 Plaintiff, Order 8 v. [Docket Nos. 162, 178] 9 GEICO Choice Insurance Company, et al., 10 Defendants. 11 Pending before the Court is Defendant GEICO Choice Insurance Company’s motion to 12 compel. Docket No. 162. The Court has considered Defendant’s motion, Plaintiff’s response, and 13 Defendant’s reply. Docket Nos. 162, 170, 175. Also pending before the Court is Defendant’s 14 motion for leave to file a supplemental brief in support of its motion to compel. Docket No. 178. 15 No response was filed. The motion is properly resolved without a hearing. See Local Rule 78-1. 16 I. BACKGROUND 17 Defendant seeks to compel Plaintiff to produce a corporate representative to testify to its 18 third amended deposition notice in a deposition limited to 3.5 hours; provide complete responses 19 to Interrogatory Nos. 3 and 8; and produce all documents that demonstrate its purported lost profits 20 in response to Request for Production No. 11. See Docket No. 94. Defendant additionally asks 21 the Court to award attorneys’ fees and costs and to extend the dispositive motion deadline. See id. 22 II. STANDARDS 23 A nonparty may be compelled to produce documents pursuant to the dictates of Rule 45 of 24 the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 34(c). Compliance with a Rule 45 25 subpoena for the production of documents involves overlapping duties. One requirement entails 26 the actual search for documents. A nonparty subpoena may require the production of identified 27 categories of documents in the subpoenaed person's “possession, custody, or control.” Fed. R. 28 Civ. P. 45(a)(1)(iii); see also In re Citric Acid Litig., 191 F.3d 1090, 1107-08 (9th Cir. 1999). A 1 person subpoenaed for the production of documents is under an affirmative duty to seek that 2 information reasonably available to her. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 3 189 (C.D. Cal. 2006). This duty is discharged through the formulation and completion of a 4 reasonable search conducted with due diligence. Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. 5 Cal. 2012); see also St. Jude Med. S.C., Inc. v. Janssen-Counotte, 305 F.R.D. 630, 639 (D. Or. 6 2015). “[A]n earmark of a recipient's inadequate inquiry is the obvious absence of documents and 7 other written materials that the recipient reasonably would be expected to have retained in the 8 ordinary course of its business.” Meeks v. Parsons, 2009 WL 3003718, at *4 (E.D. Cal. Sept. 18, 9 2009). 10 The case law addressing these requirements arises most frequently in the context of a 11 request for documents from a party made under Rule 34 of the Federal Rules of Civil Procedure. 12 Courts routinely apply the same standards for a nonparty responding to a subpoena for documents 13 served under Rule 45 of the Federal Rules of Civil Procedure. See Meeks, 2009 WL 3003718, at 14 *3-4; see also St. Jude Medical, 305 F.R.D. at 639; Toranto v. Jaffurs, 2018 WL 4613149, at *2- 15 3 (S.D. Cal. Sept. 26, 2018); Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. 16 July 13, 2017); Sol v. Whiting, 2014 WL 12519787, at *3 (D. Ariz. Sept. 9, 2014). 17 “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. 18 Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574, 598 19 (1998). When a party fails to provide discovery and the parties’ attempts to resolve the dispute 20 without Court intervention are unsuccessful, the opposing party may seek an order compelling that 21 discovery. Fed. R. Civ. P. 37(a). The party seeking to avoid discovery bears the burden of showing 22 why it should not be permitted. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). 23 Arguments against discovery must be supported by “specific examples and articulated reasoning.” 24 U.S. E.E.O.C. v. Caesars Ent., 237 F.R.D. 428, 432 (D. Nev. 2006). 25 Parties are permitted to seek discovery of any nonprivileged matter that is relevant and 26 proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). District courts enjoy wide discretion 27 28 1 in deciding relevancy for discovery purposes.1 E.g., Shaw v. Experian Info. Solutions, Inc., 306 2 F.R.D. 293, 296 (S.D. Cal. 2015). To be permissible, discovery must be “relevant to any party's 3 claim or defense.” In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 563-64 (D. Ariz. 4 2016) (discussing impact of 2015 amendments to definition of relevance for discovery purposes). 5 Relevance for the purposes of discovery is defined broadly. See, e.g., V5 Techs. v. Switch, Ltd., 6 334 F.R.D. 306, 309 (D. Nev. 2019). 7 A subpoenaed person is deemed to have control over documents if she has a legal right to 8 obtain them. See Clark v. Vega Wholesale, Inc., 181 F.R.D. 470, 472 (D.Nev. 1998). A person 9 responding to a document request “‘cannot furnish only that information within his immediate 10 knowledge or possession; he is under an affirmative duty to seek that information reasonably 11 available to him from his employees, agents, or others subject to his control.’” Meeks, 2009 WL 12 3003718, at *4 (quoting Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D.Ind.1992)). 13 When no responsive documents are found or a dispute arises out of the completeness of 14 the production that is made, the subpoenaed person must come forward with an explanation of the 15 search conducted “with sufficient specificity to allow the Court to determine whether the party 16 made a reasonable inquiry and exercised due diligence.” V5 Techs. v. Switch, Ltd., 332 F.R.D. 17 356, 366–67 (D. Nev. 2019) Rogers, 288 F.R.D. at 485. Information regarding the search 18 conducted should be provided through a declaration under oath detailing the nature of the efforts 19 to locate responsive documents. Meeks, 2009 WL 3003718, at *4. Such declaration must address 20 the inquiry made on a request-by-request basis. A. Farber & Partners, 234 F.R.D. at 190. 21 A subpoenaed person “claiming undue burden or expense ordinarily has far better 22 information - perhaps the only information - with respect to that part of the determination.” Fed. 23 R. Civ. P. 26(b)(1), Advisory Committee Notes (2015). See also Nationstar Mortg., LLC v. 24 Flamingo Trails No. 7 Landscape Maint. Ass'n, 316 F.R.D. 327, 334 (D. Nev. 2016). As a result, 25 it has long been clear that a party claiming that discovery imposes an undue burden must “allege 26
27 1 Material may be discoverable even if not admissible at trial, Fed. R. Civ. P. 26(b)(1), and relevance for discovery purposes is broader than relevance for trial purposes, see, e.g., F.T.C. v. 28 AMG Services, Inc., 291 F.R.D. 544, 552 (D. Nev. 2013). 1 specific facts which indicate the nature and extent of the burden, usually by affidavit or other 2 reliable evidence.” Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 529 (D.Nev.1997). 3 Conclusory or speculative statements of harm, inconvenience, or expense are plainly insufficient. 4 See U.S. E.E.O.C. v. Caesars Entertainment, 237 F.R.D. 428, 432 (D.Nev. 2006). 5 “Proportionality focuses on the marginal utility of the discovery being sought.” Guerrero 6 v. Wharton, 2017 WL 7314240, at *2 (D. Nev. Mar. 30, 2017) (citing In re Methyl Tertiary Butyl 7 Ether (“MTBE”) Prods. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D.N.Y. 2016)). 8 Proportionality is judged based on: (1) the importance of the issues at stake in the action; (2) the 9 amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ 10 resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden 11 or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). “At 12 bottom, proportionality is a ‘common-sense concept’ that should be applied to establish reasonable 13 limits on discovery.” Guerrero v. Wharton, No. 216CV01667GMNNJK, 2017 WL 7314240, at 14 *2 (D. Nev. Mar. 30, 2017) (quoting Sprint Comm's Co. v. Crow Creek Sioux Tribal Court, 316 15 F.R.D. 254, 263 (D.S.D. 2016)). 16 “Discovery is supposed to proceed with minimal involvement of the Court.” F.D.I.C. v. 17 Butcher, 116 F.R.D. 196, 203 (E.D. Tenn. 1986). Counsel should strive to be cooperative, practical 18 and sensible, and should seek judicial intervention “only in extraordinary situations that implicate 19 truly significant interests.” In re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N.D. 20 Cal. 1985). The Federal Rules of Civil Procedure require that the party bringing a motion to 21 compel must “include a certification that the movant has in good faith conferred or attempted to 22 confer with the person or party failing to make disclosure or discovery in an effort to obtain it 23 without court action.” Fed. R. Civ. P. 37(a)(1). The Local Rules further expound on this 24 requirement, providing that discovery motions will not be considered “unless the movant (1) has 25 made a good faith effort to meet and confer ... before filing the motion, and (2) includes a 26 declaration setting forth the details and results of the meet-and-confer conference about each 27 disputed discovery request.” Local Rule 26-7(c). 28 1 III. ANALYSIS 2 Defendant asks the Court to compel non-party Everett to comply with Request 1 of the 3 subpoena and produce all text messages between her and Markeia Monea Stamps, from November 4 12, 2026, to the date of the subpoena. Docket No. 162 at 23. Defendant further asks the Court to 5 compel Everett to produce “all documents responsive to Requests 2 through 8 of the subpoena” 6 Id. at 25. If Everett has no additional documents responsive to these requests, Defendant asks the 7 Court to compel her to submit “a declaration under oath “’detailing the nature of the efforts to 8 locate responsive documents … on a request-by-request basis with sufficient specificity to allow 9 the Court to determine whether [she] made a reasonable inquiry and exercised due diligence.” Id. 10 (internal citation omitted). 11 Everett, in response, submits that she was not properly served and that Nevada is not the 12 proper court in which to resolve this dispute. Docket No. 170 at 8-9. She further submits that she 13 has limited access to technology, has complied with the subpoena, and further compliance would 14 constitute undue burden. Id. at 12-16. 15 This motion was transferred to this Court and, therefore, the Court denies Everett’s 16 argument regarding proper forum. See also Fed.R.Civ.P. 45. Further, the Court finds that she has 17 been served with the subpoena. Finally, the Court finds that Everett has not met her burden under 18 the caselaw of demonstrating that she properly did not provide the requested documents and of 19 undue burden.2 20 IV. CONCLUSION 21 IT IS ORDERED that the motion to compel is GRANTED. Docket No. 162. 22 IT IS FURTHER ORDERED that, no later than April 15, 2026, Ms. Everett must provide 23 responses to Requests 1-8 of the subpoena. If she has no further documents responsive to these 24 requests, Ms. Everett must submit a declaration under oath – on a request-by-request basis – that 25 details with specificity the nature of her efforts to locate responsive documents. 26 . . . . 27 2 The Court has carefully reviewed all filings. Any argument not discussed in this order 28 has been considered and denied. 1 IT IS FURTHER ORDERED that Defendant’s motion for leave to file is GRANTED as 2|| unopposed. Docket No. 178. 3 IT IS SO ORDERED. 4 Dated: April 1, 2026 Nancy J. Kdppe | 6 United’ states Magistrate Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28