Miller et al v. York Risk Services Group

Filing 358

ORDER GRANTING IN PART AND DENYING IN PART 154 Motion to Quash. The subpoena is modified to excise requests for materials excluded by defendants' concession in footnote 31 of docket 306, and it is further modified to exclude any documents directly relating to the meeting addressed in Magistrate Judge Aspey's order at docket 264, but in all other respects the subpoena shall be enforced. Signed by Judge John W Sedwick on 8/27/14.(JWS)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 8 9 10 11 12 13 14 15 LAURIE MILLER, BRIAN DIMAS, KIM MILLS, ANTHONY SOZA, BRUCE CAMPBELL, KELLIE BOWERS, TIM HUNTER, BRIAN SAYLOR, MICHAEL SCHAMADAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HIS WIFE, BRANDI SCHAMADAN, ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) YORK RISK SERVICES GROUP and ) FRANK GATES SERVICE COMPANY, ) ) Defendants. ) ) 2:13-cv-1419 JWS ORDER AND OPINION [Re: Motion at Docket 154] 16 17 I. MOTION PRESENTED 18 At docket 154, plaintiffs move to quash a subpoena served on the United 19 Firefighters Association Local 493. Defendants respond at docket 306. Plaintif fs’ reply 20 is at docket 330. Oral argument was requested but would not assist the court. 21 II. DISCUSSION 22 The parties are familiar with the background giving rise to this litigation, and the 23 court has described that background in previous orders. It need not be repeated here 24 except to say that the motion at bar relates to a subpoena served on a non-party, the 25 United Phoenix Fire Fighter Association Local 493, a union to which plaintiffs belong. 26 The Rule governing subpoenas to third parties is Rule 45 of the Federal Rules of 27 Civil Procedure. Rule 45 is very explicit with respect to the grounds which can support 28 an order quashing or modifying a subpoena. The grounds recognized in the rule are (1) failure to allow a reasonable time to comply, (2) requiring a response beyond the 1 applicable geographical limits, (3) requiring disclosure of privileged or protected 2 information, and (4) imposing an undue burden. 3 There is no suggestion that the subpoena gave too little time for compliance, nor 4 is there any suggestion that there is a problem with geographical limits. Rather, 5 plaintiffs raise other objections. Much of plaintiffs’ briefing focuses on the proposition 6 that the information requested is not relevant to the dispute between plaintiffs and 7 defendants. However, relevance is not a basis separately recognized in Rule 45. 8 Nevertheless, the court concludes that a subpoena seeking completely irrelevant 9 information might be quashed as unduly burdensome, even if the burden required fell 10 short of orthodox notions of what constitutes an undue burden. Put dif ferently, to 11 require any significant effort in the service of a pointless request is “undue.” Here, 12 however, defendants’ response establishes some relevance for the information 13 requested1 under the broad scope of discovery allowed by the Federal Rules. 2 The 14 court will not quash the subpoena on the basis that the inf ormation sought lacks 15 relevance. 16 Next, plaintiffs contend that the subpoena should be q uashed because it 17 undermines their privilege of association as union members. This is an argument 18 falling within ambit of Rule 45's concern for safeguarding privileged or protected 19 information. The burden of proof rests on the party seeking to quash the subpoena. 3 20 Plaintiffs assert that the request for documents impacts their right to privacy. They give 21 as an example the request for sign-in sheets which would show which members of the 22 union are active and which are not. Similarly, they contend that the request for meeting 23 minutes will “chill” their associational rights.4 Plaintiffs cite two cases to support their 24 25 1 Doc. 306 at 6-10. 26 2 27 3 28 4 Fed. R. Civ. P. 26(b). Wiwa v. Royal Dutch Petroleum Co., 392 F. 3d 812, 818 (5th Cir. 2004). Doc. 154 at 4-5. -2- 1 position, Familias Unidas v. Briscoe5 and Int’l Union v. Garner.6 Neither case is in 2 point. 3 In the Familias Unidas case, the court held that a state statute allowing county 4 judges to demand public disclosure of the members of organizations considered to be 5 involved in activities which would interfere with the operation of public schools was a 6 violation of the First Amendment. That statute authorized a government intrusion into 7 the First Amendment rights of the citizenry. Here, there is no government intrusion; 8 rather, a private litigant seeks information for the limited purpose of litigation. 9 In the Garner case, the court dealt with an employers’ request for documents 10 which arose in the midst of “a highly contentious conflict over a union organizing 11 campaign.”7 In that context, the court denied a request for authorization cards signed 12 by employees. There is no assertion here that defendants are attempting to interfere in 13 union organizational activities. Moreover it appears that there is no secret about which 14 persons are members of the union, for the testimony indicates that all Phoenix 15 firefighters are members of the union.8 Plaintiffs have not carried their burden to show 16 any meaningful interference with their right to freely associate. 17 The remaining argument advanced by plaintiffs relates to the burden of 18 compliance. First, they contend that the request is overly broad. To the extent that 19 might be a basis for quashing the subpoena, any concern has been satisfactorily 20 addressed by the narrowing of the requested documents set forth in defendants’ 21 response.9 Next, they contend that production of the documents would be unduly 22 burdensome. Given the narrowed request reflected in defendants’ response, plaintiffs 23 5 24 25 619 F. 2d 391, 398-99 (5th Cir. 1981). 6 102 F.R.D. 108 (M.D. Tenn. 1984). 26 7 27 8 28 9 Id. at 102 F.R.D. 109. Doc. 306 at 11. See doc.306 at 14, n.31. -3- 1 have not demonstrated why compliance would be unduly burdensome. As one court 2 has explained, “[w]here a movant asserting undue burden ‘seeks to prevent a 3 deposition entirely’ his burden of proof is particularly great.”10 4 In their reply, plaintiffs raise a new argument. They contend that the decision by 5 Magistrate Judge Aspey (which was not appealed to this court) establishes that the 6 “exact information sought by Defendants is not relevant to any issue in this case and is 7 therefore not discoverable.”11 Arguments raised for the first time in a reply are not 8 ordinarily considered. However, because this argument is in effect an assertion that the 9 law of the case established in the order from the magistrate judge controls the result 10 with respect to the pending motion, the court will consider it. 11 The order in question12 denied defendants’ motion to compel deposition 12 testimony concerning a “pre-litigation Phoenix firefighters union meeting conducted in 13 early 2013, on an unknown date and attended by eight of the Plaintiffs, two union 14 officials, other [firefighters] and Plaintiffs’ eventual counsel.” 13 The order held that 15 testimony about that meeting “is not privileged, [but] it is also not relevant.”14 Because 16 that order has established the law of the case with respect to that meeting, this court 17 now holds that the subpoena in question may not require production of documents 18 which are directly related to the meeting described in Magistrate Judge Aspey’s order. 19 That order does not otherwise affect the analysis set out above. 20 In summary, the court accepts the narrowing of the scope of the subpoena as 21 set forth in footnote 31 of defendants’ response. This court will also restrict the scope 22 of the subpoena to exclude documents related to the one meeting addressed in 23 10 24 25 Payne v. District of Columbia, 859 F. Supp. 2d 125, 131 (D.D.C. 2012). 11 Doc. 330 at 1. 26 12 27 13 28 14 Doc. 264. Id. at 1. Id. at 10. -4- 1 Magistrate Judge Aspey’s order. As so narrowed, the subpoena stands and shall be 2 enforced. 3 4 III. CONCLUSION The motion at docket 154 is GRANTED in part and DENIED in part as follows: 5 The subpoena is modified to excise requests for materials excluded by defendants’ 6 concession in footnote 31 of docket 306, and it is further modified to exclude any 7 documents directly relating to the meeting addressed in Magistrate Judge Aspey’s order 8 at docket 264, but in all other respects the subpoena shall be enf orced. 9 DATED this 27th day of August 2014. 10 11 /s/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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