Berwick et al v. Hartford Fire Insurance Company

Filing 14

ORDER denying Jackson's motion to quash 11 . ORDER granting defendant's motion to compel 1 . Jackson shall comply with the subpoena (see attached pdf for complete information). Signed by Judge Frederick J Martone on 7/11/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James E. Berwick; Affiliates in Oral and)
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Maxillofacial Surgery, P.C.,
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Plaintiffs,
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vs.
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Hartford Fire Insurance Company,
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Defendant.
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No. MC 12-00055-PHX-FJM
ORDER

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The court has before it defendant's motion to compel compliance with subpoena duces
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tecum to Roberta Jackson (doc. 1), Roberta Jackson's motion to quash the motion to compel
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(doc. 11), defendant's reply in support of motion to compel and response to motion to quash
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(doc. 12), and Jackson's reply (doc. 13).
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Defendant and plaintiff James Berwick disagree over the amount of business
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interruption insurance benefits defendant owes plaintiff following a fire at plaintiff's oral
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surgery office in Colorado Springs, Colorado. This dispute is currently being litigated in the
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United States District Court for the District of Colorado. At the time of the fire, Jackson was
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Dr. Berwick's primary accountant. In a report prepared for defendant, she estimated Dr.
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Berwick's loss of income due to the fire to be $416,912. Plaintiffs list her as a non-retained
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expert in the Colorado action. Defendant's subpoena seeks her entire file for plaintiffs from
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five years before the fire and each year thereafter, all correspondence between Dr. Berwick
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or plaintiffs' representatives from five years before the fire and each year thereafter, all

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documents mentioning a buy-sell agreement between Dr. Berwick and any other person, and

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all documents related to the loss of income report. Jackson claims it would be an undue

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burden for her to produce these documents, because they are in Colorado and she lives in

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Arizona. She also claims some of the information does not exist or has been substantially

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produced.

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Pursuant to Rule 26(b)(1), Fed. R. Civ. P., a party "may obtain discovery regarding

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any nonprivileged matter that is relevant to any party's claim or defense." "The scope of

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discovery under a Rule 45 subpoena to non-parties is the same as that permitted under Rule

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26." Lewin v. Nackard Bottling Co., No. CV-10-8041-PCT-FJM, 2010 WL 4607402, at *1

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n.1 (D. Ariz. Nov. 4, 2010). Relevance "has been construed broadly to encompass any

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matter that bears on, or that reasonably could lead to other matter that could bear on, any

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issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351,

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98 S. Ct. 2380, 2389 (1978). On the other hand, the court must quash or modify a subpoena

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that "requires disclosure of privileged or other protected matter" or "subjects a person to

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undue burden," Rule 45(c)(3)(A), Fed. R. Civ. P, or "requires a person who is neither a party

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nor a party's officer to travel more than 100 miles from where that person resides." Rule

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45(c)(3)(A)(ii), Fed. R. Civ. P.

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Compliance with the subpoena here does not require Jackson to personally travel to

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Colorado. Jackson does not contend that the requested documents are protected by the

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accountant-client privilege, but instead argues that compliance creates an undue burden.

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"Whether a subpoena imposes upon a witness an 'undue burden' depends upon 'such

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factors as relevance, the need of the party for the documents, the breadth of the document

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request, the time period covered by it, the particularity with which the documents are

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described and the burden imposed.'" Concord Boat Corp. v. Brunswick Corp., 169 F.R.D.

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44, 49 (S.D.N.Y. 1996). "The burden of showing that a subpoena is unreasonable and

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oppressive is upon the party to whom it is directed." Goodman v. United States, 369 F.2d

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166, 169 (9th Cir. 1966). Jackson has not shown that the subpoena creates an undue burden.
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The documents requested are relevant to defendant's contention that Jackson's estimated loss

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of income is inaccurate. Some documents, such as her first draft of the loss of income report,

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are not available from other sources. The breadth of the document request and time period

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covered are not overly broad. The documents requested are described with particularity. The

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burden on Jackson is not unduly high and can be alleviated by requiring defendant to bear

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the cost of compliance.

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An order compelling production "must protect a person who is neither a party nor a

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party's officer from significant expense resulting from compliance." Rule 45(c)(2)(B)(ii),

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Fed. R. Civ. P. Defendant "is willing to pay the reasonable cost of compliance to retrieve the

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documents from storage." (Doc. 1 at 8). The best way to protect Jackson from significant

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expense is to accept defendant's invitation to bear the cost of compliance.

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IT IS ORDERED DENYING Jackson's motion to quash (doc. 11).

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IT IS ORDERED GRANTING defendant's motion to compel (doc. 1). Jackson shall

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comply with the subpoena. The parties shall cooperate with each other to minimize

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inconvenience. Defendant shall be responsible for paying Jackson's reasonable expenses

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resulting from compliance.

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DATED this 11th day of July, 2012.

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