Flynn et al v. Square One Distribution, Inc. et al

Filing 8

ORDER granting 1 Motion to Quash; denying 2 Motion to Compel attendance at deposition and motion to hold deponent in contempt. Signed by Magistrate Judge Thomas B. Smith on 5/25/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MICHAEL J. FLYNN and LUCILLE
CASAGRANDE FLYNN,
Plaintiffs,
v.

Case No: 6:16-mc-25-Orl-37TBS

SQUARE ONE DISTRIBUTION, INC.,
Defendant.
ORDER
This matter comes before the Court without oral argument on the Motion to Quash
Non-Party Subpoena filed by non-party Larry J. Meddock, individually and as Chairman of
the Board of the Water Sports Industry Association (“WSIA”) (Doc. 1). Plaintiffs have
filed a response in opposition to the motion, 1 in which they ask the Court to find Meddock
in contempt and compel his attendance at deposition (Doc. 2). For the reasons that
follow, the motion to quash is due to be granted and Plaintiffs’ motions are due to be
denied.
Background
Plaintiffs bring this action against Defendant Square One Distribution, Inc., alleging
that it was negligent and/or is strictly liable in tort due to the faulty design and inadequate
warnings on its Radar Vapor Lithium slalom water ski, which Plaintiff Michael J. Flynn

1 Plaintiffs’ response to the motion to quash contains no legal authority in support of their
arguments (Doc. 2 at 1-7). This violates Local Rule 3.01(b), which requires each party opposing a motion
to file a response “that includes a memorandum of legal authority in opposition to the request.” M.D. FLA.
R. 3.01(b). It also makes the Court’s job harder than it should be. Nevertheless, rather than impose
sanctions and strike the response, the Court has considered the parties’ arguments on the merits.

was using when he sustained serious and permanent injuries (Doc. 1-2). 2 The water ski
bore an industry standard warning label developed by the WSIA (Sullivan Depo., Doc. 1-4
at 100-101). The WSIA is a non-profit voluntary association comprised of water sports
dealers, watercraft manufacturers, equipment manufacturers, wakeboard and water ski
schools, and other businesses associated with water sports (Doc. 1-2, ¶ 2). Plaintiffs
subpoenaed Meddock in his individual capacity and as Chairman of the Board of WSIA to
testify concerning the process surrounding the creation of the warning label (Doc. 1 at 78; Meddock Aff’t, Doc. 1-2, at ¶ 5; Doc. 2 at 2, ¶ 2). On May 10, 2016, Meddock filed a
motion to quash the subpoena (Doc. 1). Plaintiffs filed a response to the motion, which
includes a motion to compel Meddock’s attendance at the deposition and a motion to hold
him in contempt (Doc. 2). Meddock has responded to these motions (Doc. 5) and the
issues raised are ripe for decision.
Discussion
A. The Motion to Quash Was Timely Filed
Federal Rule of Civil Procedure 45 directs the clerk of court to issue a subpoena
for attendance, production, or inspection to any person designated by the requesting
litigant. Subsection 45(d)(3)(A) permits the court to modify or quash a subpoena on
“timely motion.” What constitutes timeliness is not stated in the Rule but, a “motion to
quash is generally considered timely if it is brought before the time indicated for
compliance.” FED. R. CIV. P. 45, Rules and Commentary (emphasis added) (citing City of
St. Petersburg v. Total Containment, Inc., MISC Case No. 07-191, 2008 WL 1995298, at
*2 (E.D. Pa. May 5, 2008); Estate of Ungar v. Palestinian Auth., 451 F. Supp. 2d 607, 610
2

46).

Plaintiff Lucille Casagrande Flynn also brings a claim for loss of consortium (Doc. 1-2 at ¶¶ 43-

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(S.D.N.Y. 2006); WM High Yield v. O’Hanlon, 460 F. Supp. 2d 891, 894 (S.D. Ind. 2006)).
It follows that a motion to quash is untimely if it is filed after the date compliance is
required. Cf. United States v. Sowell, Civil Action No. 3:13-cv-203-RJC-DCK, 2015 WL
4557346, at *3 (W.D.N.C. 2015); JAK Prods., Inc. v. Robert Bayer, Civil Action No. 2:15cv-361, 2015 WL 2452986, at *8 (S.D. W. Va. May 22, 2015); Bell Inc. v. GE Lighting,
LLC, No. 6:14-cv-12, 2014 WL 1630754, at *9-10 (W.D. Va. April 23, 2014). Meddock’s
motion to quash was filed on May 10, and his deposition was scheduled to occur on May
11, 2016 3 (Doc. 1 at 1; Doc. 2 at 5). Accordingly, the Court finds that the motion to
quash was timely filed.
B. Meddock Has Not Met His Burden To Invoke First Amendment Privilege
“The United States Constitution guarantees a right to associate to engage in
activities which the First Amendment protects, including speech, assembly, petition for
the redress of grievances and the exercise of religion.” In re Motor Fuel Temperature
Sales Practices Litig., 707 F. Supp. 2d 1145, 1151 (D. Kan. Mar. 4, 2010) (citing Roberts
v. U.S. Jaycees, 468 U.S. 609, 618 (1984)). Meddock invokes the First Amendment
privilege to protect himself from giving a deposition (Doc. 1 at 5-7). He argues that the
subpoena – which seeks internal communications of WSIA and communications between
WSIA and its members – infringes on the group’s right to freely associate (Id. at 6). He
asserts that,
This type of intrusion into the internal affairs and workings of
this voluntary non-profit association would have a chilling
effect on their ability to advocate for their membership, which
includes the development of safety programs aimed at
improving the overall water ski safety of the general public.
Knowing that their internal communications can be disclosed
The deposition was originally set for May 2, 2016. Plaintiffs agreed to reschedule it to
accommodate Meddock’s lawyer (Doc. 1-1 at 2; Doc. 2 at 5).
3

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in litigation in which they are not a party by advocates intent
upon making their members liable in tort for personal injuries,
the WSIA will cease from freely communicating ideas to
improve towed water sports safety and water sports safety
generally, thereby thwarting the safety advocacy aims of the
organization to the detriment of public safety and the general
welfare of society.
(Doc. 1 at 6). In his affidavit in support of the motion to quash, Meddock states,
If the confidential communications between our membership
and with other water sports businesses were to be revealed in
litigation in which neither they nor WSIA are a party, WSIA
and its members will be less likely to freely communicate on
issues of water sport safety and other related public interest
matters. If this is allowed to occur, it would hamper WSIA's
ability to develop its programs and materials based on the
collective experience and knowledge of its members and other
industry organizations.
(Meddock Aff’t, Doc. 1-2, ¶ 6).
The Federal Rules of Civil Procedure “strongly favor full discovery whenever
possible.” Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985).
Federal Rule of Civil Procedure 26(b)(1) (2015) allows parties to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case ... ” Still, a party’s entitlement to Rule 26 discovery
may be limited by the assertion of a recognized privilege or protection. See FED. R. CIV.
P. 26(b)(5); Middle District Discovery (2015) at 20-21.
The Eleventh Circuit has not ruled on the assertion of the First Amendment
privilege in this context, or on the invocation of the privilege to protect against the specter
of future tort litigation (which may be the impetus behind Meddock’s invocation of the
privilege) (see Doc. 1 at 6). It also appears from the Court’s research that there is a
dearth of case law on this topic in other jurisdictions. Still, from the relevant case law
that does exist, the Court draws the following conclusions.

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Regardless of whether an association’s beliefs are primarily political, economic,
religious, or cultural, government action 4 that may have the effect of curtailing the
members’ freedom to associate is subject to the closest scrutiny. See NAACP v. State
of Alabama, 357 U.S. 449, 460-461 (1958). An individual or trade group may invoke the
First Amendment privilege in response to a Rule 26 discovery request when it can show –
with an “objectively reasonable probability” – that “compelled disclosure will chill
associational rights.” Alliance of Auto. Mfr., Inc. v. Julie L. Jones, Case No. 4:08-cv-555MCR/CAS, 2013 U.S. Dist. LEXIS 132185, at *11-12 (N.D. Fla. Sept. 11, 2013); City of
Greenville v. Syngenta Crop Prot., Nos. 11-mc-10; 11-mc-1031; and 11-mc-1032, 2011
U.S. Dist. LEXIS 124453, at *18-19 (C.D. Ill. Oct. 27, 2011). The movant bears the
burden of making this prima facie showing. Alliance, 2013 U.S. Dist. LEXIS 132185, at
*11-12; Greenville, 2011 U.S. Dist. LEXIS 124453, at *18-19. The movant’s burden to
make a prima facie showing is “light,” given “the crucial place speech and associational
rights occupy under our constitution.” Christ Covenant Church v. Town of Sw. Ranches,
Case No. 07-60516-CIV-IMITROULEAS/ROSENBAUM, 2008 U.S. Dist. LEXIS 49483, at
*16-17 (S.D. Fla. June 29, 2008) (quoting Schiller v. City of New York, 04 Civ. 7922
(KMK) (JCF), 04 Civ. 7921 (KMK) (JCF), 05 Civ. 8453 (KMK) (JCF), 2006 U.S. Dist.
LEXIS, at *5 (S.D.N.Y. Dec. 7, 2006)). Still, to show an “objectively reasonable
probability,” a movant must go beyond conclusory statements and demonstrate through
proofs “a basis for the assertions made.” Alliance, 2013 U.S. Dist. LEXIS 132185, at
*14; Christ Covenant Church, 2008 U.S. Dist. LEXIS 49483, at *16-17; see also Middle

4 “[T]he magistrate’s order compelling discovery and the trial court’s enforcement of that order
provide the requisite governmental action that invokes First Amendment scrutiny.” Grandbouche v.
Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) (citing NAACP v. State of Alabama, 357 U.S. 449, 463
(1958)).

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District Discovery (2015) at 22. Once the movant makes a prima facie case, the burden
shifts to the opposing party to “’demonstrate a compelling need for the requested
information.’” Alliance, 2013 U.S. Dist. LEXIS 132185, at *12 (quoting Christ Covenant
Church, 2008 U.S. Dist. LEXIS 49483, at *16-17).
Affidavits from members, “specific evidence of past or present harassment of
members due to their associational ties, or of harassment directed against the
organization itself” are examples of acceptable proofs to establish an “objectively
reasonable probability.” Buckley v. Valeo, 424 U.S. 1, 74 (1976) (superseded by
statute); Middle District Discovery (2015) at 22 (“A party asserting a privilege or other
protection against discovery normally has the obligation to establish, by affidavit of a
competent witness or other evidence, all facts essential to the establishment of the
privilege or protection.”); see also Alliance, 2013 U.S. Dist. LEXIS 132185, at *14 (the
association met its burden by offering affidavits of two members in support of its
argument); Christ Covenant, 2008 U.S. Dist. LEXIS 49483, at *17 (the church met its
burden by offering public statements made by its members as evidence).
The Court recognizes that a deposition of the sort Plaintiffs are seeking could chill
activities that enjoy First Amendment protection. But, it is still Meddock’s burden,
however “light,” to show an “objectively reasonable probability,” that his deposition
testimony will chill the exercise of WSIA’s members’ rights. Meddock’s affidavit, which is
the only evidence submitted in support of his motion, is not sufficient to satisfy his burden.
Meddock can testify about how he will act in the future if the deposition is permitted.
Beyond that, his opinion about what other members will and will not do is speculation and
conjecture. It is not based on historical facts, personal observations, personal
experience, or first-hand knowledge.

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The cases the Court has examined, in which a party has met its burden, involve
more than a single piece of evidence. In Alliance, the court had the benefit of two
affidavits. In City of Greenville, 2011 U.S. Dist. LEXIS 124453, at *19-20, the court relied
upon at least 6 declarations from association staff and members. In Perry v.
Schwarzenegger, 591 F.3d 1147, 1163 (9th Cir. 2010), the court was provided with
“declarations from several individuals attesting to the impact compelled disclosure would
have on participation and formulation of strategy.” In Christ Covenant, 2008 U.S. Dist.
LEXIS 49483, at *19-20, the party invoking the privilege relied upon “the concerns
regarding forced disclosure of a religious organization’s membership in general
expressed by the courts,” and “specific evidence of hostility against the Church by certain
of the Church’s neighbors.” In AFL-CIO and DNC Serv. Corp. v. Fed. Election Comm’n,
333 F.3d 168, 177 (D.C. Cir. 2003), the appellees filed multiple affidavits. In Dole v.
Serv. Emp. Union, AFL-CIO, Local 280, 950 F.2d 1456, (9th Cir. 1991), 1458-59, the
labor union submitted two letters, three declarations, deposition testimony from two
witnesses, and minutes in support of its First Amendment claim. And in United States v.
Citizens Bank, 612 F.2d 1091, 1094 (8th Cir. 1980), the “appellants submitted to the
district court three declarations by USTU members, detailing the adverse effects of the
summons on USTU’s organizational and fundraising activities.”
The Court does not find that there is any minimum number of pieces of evidence
that must be submitted before a prima facie case of “objectively reasonable probability,” is
established. But it does find that Meddock’s affidavit, standing alone, is not sufficient
and therefore, his First Amendment privilege argument fails.

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C. The Testimony Sought Is Not Sufficiently Relevant Or Proportional To
Plaintiffs’ Claims
Plaintiffs argue that they need Meddock’s deposition because the “specifics
regarding the development and creation of the warning label … is of vital importance” to
their products liability case against Defendant (Id., at 6). Under Florida law, “[u]nless the
danger is obvious or known, a manufacturer has a duty to warn where its product is
inherently dangerous or has dangerous propensities.” Scheman-Gonzalez v. Saber Mfg.
Co., 816 So. 2d 1133, 1139 (Fla. 4th DCA 2002). “[T]o warn adequately, the product
label must make apparent the potential harmful consequences. The warning should be
of such intensity as to cause a reasonable man to exercise his own safety caution
commensurate with the potential danger.” Id. “A warning should contain some wording
directed to the significant dangers arising from failure to use the product in the prescribed
manner, such as the risk of serious injury or death.” Id.
The parties have not cited any cases involving an attempt to discover how a
warning label was developed or created. That may be because the issue in a products
liability case like this one is whether the warning label in question sufficiently alerted the
injured plaintiff to the potential consequences of using the defendant’s product. In other
words, it is the adequacy of the warning label, and not the manner in which it was
created, that is an issue in the case. Consequently, it does not appear that Meddock’s
testimony is particularly relevant to this controversy.
Federal Rule of Civil Procedure 45(d)(3) lists the grounds upon which a court may
quash or modify a subpoena. Although relevance is not listed, courts have found that
“the scope of discovery under a subpoena is the same as the scope of discovery under
Rule 26.” Barrington v. Mortg. It, Inc., Case No, 07-61304-CIV-COHN/SELTZER, 2007

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U.S. Dist. LEXIS 90555, at *8-9 (S.D. Fla. Dec. 10, 2007) (citing Chamberlain v.
Farmington Sav. Bank, CIVIL, 3:06CV01437 (CFD), 2007 U.S. Dist. LEXIS 70376, at *3-4
(M.D. Fla. Sept. 25, 2007) (“It is well settled that the scope of discovery under a Rule 45
subpoena is the same as that permitted under Rule 26.”)); Advisory Committee Note to
the 1970 Amendment of Rule 45(d)(1) (the 1970 amendments "make it clear that the
scope of discovery through a subpoena is the same as that applicable to Rule 34 and
other discovery rules."); 9A Charles A. Wright and Arthur R. Miller, Federal Practice and
Procedure, § 2459 (2d ed. 1995) (Rule 45 subpoena incorporates the provisions of Rules
26(b) and 34)).
Under Rule 26, relevance is “construed broadly to encompass any matter that
bears on, or that reasonably could lead to other matter that could bear on, any issue that
is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351(1978).
A discovery request “should be considered relevant if there is any possibility that the
information sought may be relevant to the subject matter of the action.” Roesberg v.
Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980); see also Deitchman v. E.R.
Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984) (If Court is in doubt concerning the
relevancy of requested discovery the discovery should be permitted.).
But to be discoverable, the requested information must also satisfy the
proportionality requirement meaning it must be more than tangentially related to the
issues that are actually at stake in the litigation. See FED. R. CIV. P. 26(b)(1) (2015)5; In

5 In determining proportionality, the Court must consider the following factors: (1) “the importance
of the issues at stake in the action,” (2) “the amount in controversy,” (3) “the parties’ relative access to
relevant information,” (4) “the parties’ resources,” (5) “the importance of the discovery in resolving the
issues,” and (6) whether the burden or expense of the proposed discovery outweigh its likely benefit. FED.
R. CIV. P. 26(b)(1).

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re: Blue Cross Blue Shield, File No, 2:13-CV-20000-RDP, 2015 WL 9694792, at * (N.D.
Ala. Dec. 9, 2015). The Court finds that the process that lead to the creation of the
warning label on the ski Flynn was using when he was injured is not proportionally related
to the issues at stake in the litigation, one of which is whether the warning – in its final
version – was sufficient. Therefore, the testimony Plaintiffs seek from Meddock is not
proportional to the needs of Plaintiffs’ lawsuit against Defendant.
The findings which result in the granting of Meddock’s motion also dictate the
denial of Plaintiffs’ motion to compel and motion for contempt.
Conclusion
Upon consideration of the foregoing, it is ORDERED that,
(1) The motion to quash (Doc. 1) is GRANTED, and Plaintiffs’ subpoena to
Meddock in both his individual and representative capacities is QUASHED.
(2) Plaintiffs’ Motion to Compel Larry Meddock’s Attendance at Deposition (Doc. 2
at 8-12) is DENIED.
(3) Plaintiffs’ Motion for Contempt (Doc. 2) is DENIED.
DONE and ORDERED in Orlando, Florida on May 25, 2016.

Copies furnished to Counsel of Record

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