Blair et al v. Transam Trucking, Inc.

Filing 409

MEMORANDUM AND ORDER denying 372 Motion to Quash. Signed by Magistrate Judge Kenneth G. Gale on 2/16/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LARRY BLAIR and CHARLIE DAVIS,
On Behalf Of Themselves And All Other
Persons Similarly Situated,

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Plaintiffs,
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TRANSAM TRUCKING, INC.,
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Defendant.
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Case No.: 09-2443-EFM-KGG

ORDER ON MOTION TO QUASH THIRD-PARTY SUBPOENA
AND FOR PROTECTIVE ORDER
Now before the Court is Plaintiffs’ “Motion to Quash Subpoena to Mary
Hoyt and for Protective Order.” (Doc. 372.) Having reviewed the submissions of
the parties, the Court DENIES Plaintiffs’ motion.
FACTS
This is a class action case alleging violations of the Fair Labor Standards Act
(“FLSA”) and the Kansas Wage Payment Act (“KWPA”). Plaintiffs contend that
Defendant “has misclassified its Leased Drivers as independent contractors, rather
than employees, and has violated the [FLSA] by failing to pay the Leased Drivers
minimum wages and the [KWPA] by failing to pay Leased Drivers all wages due
and otherwise made unlawful deductions of pay.” (Doc. 363, at 1-2.)

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The facts of this case were recently summarized in this Court’s Order on
Defendant’s motion to strike Plaintiff’s supplemental Rule 26 disclosures. (Doc.
403.) That summary is incorporated herein by reference.
The present motion relates to the third-party deposition subpoenas duces
tecum Defendant served on its former employees Mary Hoyt, Hillary Armknect,
Laticia Raine, and Christine Falkner, all of whom were listed in Plaintiff’s Rule 26
initial disclosures. Plaintiffs object that the witnesses should not be required to
bring “[a]ll documents received or created as a result of your employment” with
Defendant. (Doc. 372, at 1-2.) Plaintiff states that this issue is moot as all four
individuals have been deposed “and either brought with them the limited number
of documents that they had relating to [Defendant], or testified that they were not
aware of any documents in their possession relating to [Defendant].” (Doc. 394, at
1.)
As to Ms. Hoyt, however, Defendant has also subpoenaed her to bring a
current archive of her Facebook account. (Doc. 372, at 2; Doc. 372-1, at 4.) This
category of documents remains at issue between the parties.
ANALYSIS
Fed.R.Civ.P. 26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount in
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controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
As such, the requested information must be both nonprivileged and relevant to be
discoverable.
Fed.R.Civ.P. 45 governs subpoenas, with section (d) of that Rule relating to
“protecting a person subject to a subpoena” as well as “enforcement.” Subsection
(d)(1) of the Rule states that
[a] party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is
required must enforce this duty and impose an
appropriate sanction – which may include lost earnings
and reasonable attorney's fees – on a party or attorney
who fails to comply.
Subsection (d)(2)(B) relates to objections to subpoenas and states that
[a] person commanded to produce documents or tangible
things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing, or sampling any or all of the
materials or to inspecting the premises – or to producing
electronically stored information in the form or forms
requested. The objection must be served before the
earlier of the time specified for compliance or 14 days
after the subpoena is served. If an objection is made, the
following rules apply:

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(i) At any time, on notice to the commanded
person, the serving party may move the court for
the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in
the order, and the order must protect a person who
is neither a party nor a party’s officer from
significant expense resulting from compliance.
Thus, the Court must balance Plaintiffs’ needs for the information with the
potential for undue burden or expense imposed on the third party respondent.
As this Court has previously held, and as the above-quoted rules infer, “[a]
motion to quash or modify a subpoena duces tecum may be made only by the party
to whom the subpoena is directed.” Wichita Firemen's Relief Ass'n v. Kansas
City Life Ins. Co., No. 11–1029–KGG, 2012 WL 3245451, at *2 (D.Kan. Aug. 8,
2012) (citing Peterbilt of Great Bend, LLC v. Doonan, 05–1281–JTM, 2006 WL
3193371, at *2 (D.Kan. Nov. 1, 2006) (internal citation omitted)). An exception to
this rule is when the party challenging the subpoena “has a personal right or
privilege in respect to the subject matter requested in the subpoena.” Smith v.
Midland Brake, Inc., 162 F.R.D. 683, 685 (D.Kan.1995); see also Hertenstein v.
Kimberly Home Health Care, Inc., 189 F.R.D. 620, 635 (D.Kan.1999).
As Defendant states in its response, “Ms. Hoyt herself has not contacted
[Defendant’s] counsel” to complain about or object to the subpoena at issue. (Doc.
381, at 3.) The Court sees no basis to apply the exception to the standing rule in

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this instance as Plaintiffs have no “personal right or privilege” as to Ms. Hoyt’s
social media postings and, therefore, lack standing to object to the subpoena.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion (Doc. 372) is
DENIED.
IT IS SO ORDERED.
Dated this 16th day of February, 2017, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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