Cornett v. Lender Processing Services, Inc.

Filing 49

ORDER denying 35 Motion to quash third party subpoenas. See order for details. Signed by Magistrate Judge Thomas E. Morris on 10/29/2012. (DLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CLAY A. CORNETT,
Plaintiff,
vs.

CASE NO. 3:12-cv-233-J-32TEM

LENDER PROCESSING SERVICES, INC.,
Defendant.
__________________________________
ORDER
This case came before the Court on October 2, 2012 for a hearing1 on Plaintiff’s
Emergency Motion to Quash Third Party Subpoenas (Doc. #35, Motion to Quash).
Defendant Lender Processing Services’ Unopposed Alternative Motion to Extend
Discovery Deadline (Doc. #33, Alternative Motion to Extend Discovery), the Joint Motion
to Extend Time to Conduct Mediation and to Appoint Substitute Mediator (Doc. #38, Motion
for Mediation Changes), and Defendant Lender Processing Services’ Motion to Extend
Case Management Deadlines (Doc. #30, Motion to Enlarge Deadlines) were also
discussed at the hearing. Counsel for both sides were present and provided oral argument
in support of their clients’ positions.
Prior to the hearing, the Court had reviewed and considered the parties’ requests
and the written authority. During the course of the hearing, the Court granted the
Alternative Motion to Extend Discovery and the Motion for Mediation Changes (see Oral

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The non-transcribed recording of the hearing is hereby incorporated by reference.
The parties may contact the Courtroom Deputy of the undersigned if a transcript of the
hearing is desired.

Orders, Docs. #43, #44). The Motion to Enlarge Deadlines was subsequently found to be
moot (see Doc. #46), in light of Defendant’s notice of withdrawal of the motion (Doc. #45).
At the onset of the hearing, the Court noted it was without authority to quash any
subpoena issued by another court. See Fed. R. Civ. P. 45(c)(3)(A). Seven of the eight
contested subpoenas were issued by courts other than the Middle District of Florida. The
Court also questioned Plaintiff’s standing to challenge the issued subpoenas. Conceding
that this Court has no authority to quash subpoenas issued by another court, counsel for
Defendant stated Defendant purposely elected not to raise that argument and requested
the Court construe the Motion to Quash as a motion for protective order pursuant to Rule
26(c) of the Federal Rules of Civil Procedure. In the Motion to Quash, Plaintiff’s counsel
sought consideration of a protective order as alternative relief. During the hearing,
Plaintiff’s counsel reiterated this request.
The Court agreed to take the Motion to Quash, construed as a motion for a
protective order, under advisement pending the outcome of the rescheduled mediation
conference. Mediation was held on October 12, 2012. On October 29, 2012, the
Mediation Report (Doc. #48) was filed advising the parties reached an impasse during the
mediation conference.
As a general matter, the Court notes parties may seek alternative relief under Rule
26(c) to preclude the disclosure of information sought by subpoenas duces tecum. See,
e.g., Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429-30
(2005); Nathai v. Florida Detroit Diesel-Allison, Inc., No. 3:09-CV-1-J-20HTS, 2009 WL
2424570 (M.D. Fla. Aug. 5, 2009). The Court has authority consider a motion to quash as

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a motion for protective order. Auto-Owners Ins. Co., 231 F.R.D. at 429 (citing Washington
v. Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005)). Although a party has no
standing to challenge a non-party subpoena “unless a personal right or privilege as to the
documents being sought is asserted,” Plaintiff Cornett has standing to move for a
protective order if the subpoenas seek irrelevant information.2 See Nathai, 2009 WL
2424570 at *1; Auto-Owners Ins. Co., 231 F.R.D. at 429.
Plaintiff argues, inter alia, that Defendant’s subpoenas seek information that is
unrelated to this case. Motion to Quash at 4-6. Claiming Plaintiff does not compete with
Defendant, and asserting Plaintiff’s clients continue to use Defendant’s products, Plaintiff
claims the only purpose for the subpoenas is to annoy or harass Plaintiff and burden
Plaintiff’s customers by going on a fishing expedition by seeking information that is of “no
possible reference.” Defendant counters that Plaintiff Cornett’s deposition testimony
establishes a reasonable basis for Defendant to inquire into the nature of Plaintiff’s
business and how Plaintiff’s business may compete with Defendant’s business.
Discovery is generally allowed “regarding any nonprivileged matter that is relevant
to any party's claim or defense[.]” Fed. R. Civ. P. 26(b)(1). The term relevant is to be
“construed broadly to encompass any matter that bears on, or that reasonably could lead
to other matter that bears on, any issue that is or may be in the case.” Auto-Owners Ins.
Co., 231 F.R.D. at 430 (internal citations omitted). For good cause shown, however, a

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During the October 2 hearing, Plaintiff’s counsel stated Plaintiff was not claiming
any privilege in the sought documents, but may have a privacy interest in the personnel
records. When questioned about Plaintiff’s clients having personnel records on Plaintiff,
counsel stated Plaintiff worked as an independent contractor and indicated Plaintiff’s
clients may have personnel type records on Plaintiff.
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court may “issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c). “The party seeking a
protective order has the burden to demonstrate good cause, and must make a particular
and specific demonstration of fact as distinguished from stereotyped and conclusory
statements supporting the need for a protective order. Auto-Owners Ins. Co., 231 F.R.D.
at 429 -430 (internal quotation marks and citation omitted).
The Middle District of Florida has previously held that financial records of third
parties doing business with a party in a lawsuit may be discoverable by subpoenas to the
third parties, but those subpoenas must be narrowly tailored. See id. In this case, the
Court finds the business records of third parties doing business with Plaintiff could
reasonably lead to evidence bearing directly on the defenses and the possible
counterclaim in this action. Plaintiff has failed to establish good cause for a protective
order for the information sought by the disputed third party subpoenas. Thus, Plaintiff’s
Motion to Quash (Doc. #35), construed as a motion for protective order under Rule 26(c)
is DENIED.3
The entry of this Order does not speak to the potential objections that may be raised
by the recipients of the disputed subpoenas.
The Court recognizes many business records are confidential and proprietary in
nature. To the extent any documents have been produced pursuant to the disputed
subpoenas duces tecum, in an abundance of caution, the Court finds good cause to order
3

Although the substance of this order is devoted to consideration of Plaintiff’s
request under the good cause standard of Rule 26, the Court notes for the record that the
request to quash the subpoenas under Rule 45 is also denied. Plaintiff failed to establish
standing to challenge the subpoenas in question.
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those documents remain confidential to this litigation, subject to further review upon the
request of either party.
DONE AND ORDERED at Jacksonville, Florida this 29th day of October, 2012.

Copies to all counsel of record

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