Polylok Inc et al v. Bear Onsite, LLC et al

Filing 236

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 12/15/2016 - The Motion to Quash Subpoenas (DN 200) is DENIED. cc: Counsel(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-535-DJH-CHL

POLYLOK INC, et al.,

Plaintiffs,

v.
BEAR ONSITE, LLC, et al.

Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a Motion to Quash Subpoenas (the “Motion to Quash”)
(DN 200) that was filed by defendants Promold & Tool, LLC, Premier Promold & Tool, Inc.,
and Michael J. Hornback (together, the “Hornback Defendants”) on June 8, 2016. For the
reasons set forth below, the motion is DENIED and the Court declines to enter the proposed
order.
I. BACKGROUND
The Plaintiffs served twenty-two separate subpoenas on non-parties requesting nineteen
various categories of documents relating to the subject matter of the litigation (DN 200 - Exhibit
A). In their Motion to Quash, Defendants argue that the vast majority of the subpoenas are “an
undisguised financial status fishing expedition” by the Plaintiffs. (DN 200 at 4). The Plaintiffs,
however, claim that the subpoenas were issued “to seek information from persons and entities
affiliated with the Hornback Defendants to ascertain the extent of the Hornback Defendants’
breaches of contract and infringement of the patent-in-suit, not to obtain their financial status.”
(DN 202 at 2). The Plaintiffs further argue three independent reasons why the Defendants'
motion should be denied. First, Defendants lack standing to object to the subpoenas issued to

1

non-parties. Second, the Hornback Defendants did not confer in good faith with the Plaintiff’s
prior to filing their motion. And third, the motion is lacking in merit. Id. at 2–3.
II. DISCUSSION
Defendants state in their motion to quash that “[a] party may object to a subpoena
pursuant to Fed. R. Civ. P. 45(d)(2)(B).” (DN 200 at 2). While Rule 45 of the Federal Rules of
Civil Procedure offers no direct guidance on the issue of standing, district courts in the Sixth
Circuit have consistently held that a party ordinarily has no standing to challenge a subpoena to a
non-party without first showing a claim of privilege or personal right exists in the information
sought. See Donahoo v. Ohio Department of Youth Services, 211 F.R.D. 303, 306 (N.D. Ohio,
2002); Pogue v. Northwestern Mut. Life Ins. Co., 2016 U.S. Dist. LEXIS at *17–18 (W.D. Ky.,
June 1, 2016); United States v. Cordes, 2016 U.S. Dist. LEXIS at *10 (E.D. Mich., Mar 23,
2016). See also Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 239 (E.D. Va., 2012)
(quoting United States v. Idema, 118 F. App’x. 740, 744 (4th Cir., 2005) (stating that a personal
right may be found where the nature of the information is “highly personal and confidential”));
Robertson v. Cartinhour, 2010 U.S. Dist. LEXIS 16058, at *3 (D. Md. Feb. 23, 2010) (holding
that a party “does not have a personal right to or privilege in the bank records held by third-party
[bank]”).
Besides a vague reference to the information sought by the Plaintiffs’ subpoenas being
“potential work product information,” the Hornback Defendants implicate neither a privilege nor
a right that would warrant the Court to grant the Hornback Defendants standing under the rule.
(DN 211 at 5). In fact, upon review of each of the nineteen types of documents requested by the
subpoenas, while potentially overbroad in scope, the Court can find no evidence that the

2

information requested is of such a personal and confidential nature that such a right or privilege
exists.
Despite the clear statement of the rule and the lack of evidence asserting a claim of
privilege or personal right, the Hornback Defendants argue that they are nonetheless able to
challenge the subpoenas under what the Court must assume to be the undue burden standard of
Fed. R. Civ. P. 26(c) as it relates to protective orders. (DN 211 at 4). In support of this argument,
Defendants cite to a footnote in Singletary, which implies that a court may construe a motion to
quash under Rule 45 as a motion for a protective order under Rule 26. (DN 211 at 4–5 (citing to
Singletary, 289 F.R.D. at 240 n.2)). In Singletary, after the Plaintiff filed a suit alleging
violations of the Fair Labor Standards Act and breach of an employment agreement, the
Defendants issued subpoenas to obtain the private employment records of the Plaintiff from four
of his previous employers. Id. at 238–39. The Plaintiff filed motions to quash the subpoenas as
overbroad under Rule 45 and for a protective order under Rule 26 “in order to protect Plaintiff
from annoyance, embarrassment, oppression, or undue burden or expense.” Id. at 239–42. The
Plaintiff asserted that he had standing to challenge the subpoenas since he had a personal right in
the information sought. Id. at 239. The court agreed, and held that the Plaintiff had standing to
challenge the subpoenas due to the highly personal and confidential nature of the information
contained in employment records. Id. at 240. In dicta, the court also noted that despite the
assertion of a personal right in the information sought, the Plaintiff would have had standing to
challenge the subpoenas due to their overbreadth under the undue burden standard of Rule 26.
Id. at 240 n.2 (“Thus, as Plaintiff also has made a motion for a protective order, Plaintiff has
standing to challenge the applicable subpoenas duces tecum, regardless of whether the Court
considers his Motion under Rule 45 or Rule 26.”).

3

Despite the Hornback Defendants’ attempt to liken the current situation to that of the
Plaintiff in Singletary, the Court is unpersuaded. As an initial matter, unlike in Singletary, the
Hornback Defendants do not argue, and this Court need not decide, whether a motion for a
protective order under Rule 26 is appropriate in the instant case. Courts in the Sixth Circuit have
stated that without the requisite standing under Rule 45, a plaintiff may not seek to quash a
subpoena issued to a non-party. See, e.g., Tullis v. Umbank, N.A., 2011 U.S. Dist LEXIS 139368
(N.D. Ohio Dec. 5, 2011) (citing to Donahoo, 211 F.R.D. at 306) (“While Plaintiffs seek
irrelevant and unneeded information, however, [Defendant] has no standing to quash the
subpoenas on grounds of undue burden.”). Further distinction can be drawn from the fact that
unlike in Singletary, where the Plaintiff was able to establish standing due to the assertion of a
personal right in the information sought, the Hornback Defendants here only offer conclusory
assertions of right and privilege in the information sought by the subpoenas.
For these reasons, under the particular circumstances surrounding this motion to quash,
the Court concludes that the Donahoo case and its progeny compel a finding that the motion to
quash be denied for lack of standing.
III. CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Quash Subpoenas (DN 200) is DENIED.

December 15, 2016

Colin Lindsay, MagistrateJudge
United States District Court

4