Coomer v. Lindell et al

Filing 17

ORDER granting 1 Motion to Compel Compliance with Deposition Subpoena. Dennis Montgomery is ORDERED to attend a deposition consistent with the subpoena he was served in this matter. Defendants are directed to serve this Order on Montgomery no later than July 17, 2023. Signed by Magistrate Judge Kyle C. Dudek on 7/13/2023. (CGW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ERIC COOMER, PH.D.,
Plaintiff,
v.

Case No.: 2:23-mc-4-JLB-KCD

MICHAEL JAMES LINDELL, MY
PILLOW, INC. and DENNIS
MONTGOMERY,
Defendants.

/
ORDER

Before the Court is Defendant’s Motion to Compel Compliance with
Deposition Subpoena (Doc. 1).1 Neither the target of the subpoena nor Plaintiff
has responded, and the deadline to do so expired. Thus, this matter is ripe. For
the reasons below, the motion is granted.
I. Background
Defendant Michael Lindell and his company are embattled in a
defamation suit in the District Court of Colorado. Lindell made numerous
public statements about the validity and security of the 2020 Presidential
Election. Those statements are now the subject of the pending litigation.

Unless otherwise indicated, all internal quotation marks, citations, and alterations have
been omitted in this and later citations.
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As part of his defense, Lindell claims he relied on information obtained
“about Dennis Montgomery through talking to other people with knowledge of
him and ultimately through communications directly with him.” (Doc. 3 at 3.)
According to Lindell, Montgomery communicated that he “used his technical
skills to obtain electronic data showing that the 2020 presidential election had
been hacked and vote tallies manipulated.” (Doc. 1 at 6.) Lindell subpoenaed
Montgomery, directing him to appear for a deposition in this District. (Id.)
Montgomery’s attorney informed Lindell that he would not comply with
the subpoena unless compelled by a court order. (Id. at 4; Doc. 2-1 at 1032.)
Montgomery’s letter to Lindell also suggested the federal government may
seek to limit his disclosures. (Doc. 2-1 at 103.) Thus far, the federal government
has not intervened. And Montgomery does not appear to otherwise oppose the
relief Lindell seeks. Specifically, Lindell asks the Court to “issue an order
compelling Mr. Montgomery to attend his deposition at a date and time
convenient to counsel, within three weeks of the order’s issuance.” (Doc. 1 at
10.)
II. Standard of Review
“Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any . . . claim or defense and proportional to the needs of the

Doc. 2-1 contains multiple documents combined into a single composite file. Thus, citations
to this exhibit refer to the page numbers CM/ECF generated for the composite file.

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case.” Fed. R. Civ. P. 26(b)(1). The typical mechanism to obtain testimony from
a nonparty is a subpoena. See Fed. R. Civ. P. 30; Fed. R. Civ. P. 45. Written
objections may be served by the nonparty, but they must be made before the
earlier of the time specified for compliance or 14 days after the subpoena is
served. Fed. R. Civ. P. 45(d)(2)(B). “When a party fails to respond to discovery,
or provides untimely responses, whatever objections it might otherwise have
had are generally deemed waived.” Gulati v. Ormond Beach Hosp., LLC, No.
6:18-cv-920-Orl-37TBS, 2018 WL 7372080, at *2 (M.D. Fla. Dec. 17, 2018). If a
party objects to a Rule 45 subpoena, it must demonstrate that compliance
presents an undue burden or would require the disclosure of privileged or
protected information. Fadalla v. Life Auto. Prod., Inc., 258 F.R.D. 501, 504
(M.D. Fla. 2007).
III. Discussion
The record contains no evidence that Montgomery objected to the
subpoena or sought a protective order. Lindell asserts he did neither. (Doc. 1
at 2.) Moreover, Montgomery apparently told Lindell he “will comply with the
subpoenas [they] have issued only if a court orders him to . . . pursuant to a
motion or motions to compel.” (Doc. 2-1 at 171.) Finally, the date for
Montgomery’s deposition passed without his compliance. Given these facts,
any objections Montgomery may have had were waived.

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Further, the Court finds Federal Rule of Civil Procedure 45 satisfied.
Montgomery

waived

service

and admitted

to

possessing

responsive

information (Doc. 2-1 at 103); he was directed to attend the deposition within
100 miles of his residence (Doc. 1 at 4); and there has been no attempt to quash
or modify the subpoena. Thus, Montgomery must comply with the subpoena.
As Lindell notes, under Rule 45 the Court “may hold in contempt a
person, who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.” Fed. R. Civ. P. 45(g). “However, it would be
rare for a court to use contempt sanctions without first ordering compliance
with a subpoena.” Golden Krust Franchising, Inc. v. Clayborne, No. 8:20-MC104-T-33SPF, 2020 WL 7260774, at *2 (M.D. Fla. Dec. 10, 2020). Thus, Lindell
does not ask the Court to issue contempt sanctions, and the Court will not do
so sua sponte. But if Montgomery does not comply, the matter will be revisited.
See Fit Tea LLC v. Alani Nutrition LLC, No. 6:23-MC-1-WWB-LHP, 2023 WL
2351657, at *3 (M.D. Fla. Mar. 3, 2023).
Accordingly, it is now ORDERED:
1. Defendants’ Motion to Compel Compliance with Deposition Subpoena
(Doc. 1) is GRANTED.
2. Dennis Montgomery is ORDERED to attend a deposition consistent
with the subpoena he was served in this matter.

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3. Defendants are directed to serve this Order on Montgomery no later than
July 17, 2023.
ENTERED in Fort Myers, Florida this July 13, 2023.

Copies: All Parties of Record

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