Total Safety U.S., Inc. v. Rowland
ORDER denying 168 Motion to Quash Subpoena Duces Tecum. FURTHER ORDERED that Defendant 24 Hour Safety produce the documents to the Court for an in camera review no later than Friday, 5/11/2014. Signed by Magistrate Judge Karen Wells Roby on 5/1/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TOTAL SAFETY U.S., INC.
GARY ROWLAND, ET AL.
SECTION: "B" (4)
Before the Court is Defendant, 24 Hour Safety, LLC’s (“24 Hr”) Amended Motion to
Quash Subpoena Duces Tecum to company ABC and company XYZ.1 See R. Doc. 168. The
motion is opposed. See R. Doc. 170. It was heard by oral argument on April 30, 2014.
This case arises from Defendant Gary Rowland’s (“Rowland”) decision to leave his
employment with Plaintiff, Total Safety (“Total Safety”) for that of 24 Hour Safety in October of
2013. See R. Doc. 1, p. 1. Rowland resigned on October 6, 2013, and Total Safety initiated this suit
four days later, asserting a single claim for breach of an employment agreement and seeking
injunctive relief restraining Rowland from working for 24 Hour Safety in certain regards. Id. at
10-13.2 On October 23, 2013, Total Safety filed an amended complaint adding 24 Hour Safety as
Defendant, 24 Hr contends that due to the “highly sensitive nature of the information being sought by
Plaintiff, including the names of the entities from which it is seeking confidential financial information, 24 Hr has
redacted the names of the entities.
A full factual background is included in the undersigned’s Order and Reasons, dated April 29, 2014, at
Rec. Doc. No. 174.
a defendant and asserted claims for (i) Breach of Employment Agreement, (ii) Misappropriation of
Confidential Information and Trade Secrets, (iii) Unfair Trade Practices, (iv) Conversion, (v) Breach
of Fiduciary Duty, (vi) Conspiracy, (vii) Violation of the Computer Fraud and Abuse Act, and (viii)
Violation of the Federal Stored Communications Act. Id. The Amended Complaint was also
accompanied by a Motion for renewed and expanded injunctive relief restricting Rowland from
competing in any way with Total Safety. See R. Doc. 19.
As to the instant motion, the Defendant, 24 Hr contends that in response to a forensic
examination of the extent which Rowland “possessed confidential records” of Total Safety, and an
examination of whether 24 Hr possessed any of Total Safety’s confidential information obtained
from Rowland, several cell phones, computers and external flash and hard drives were imaged. See
R. Doc. 158-1, p. 1-2. In reviewing the production of approximately 30 GB worth of data, 24 Hr
contends that there was no evidence that it obtained any confidential information from Rowland. Id.
at 2. Therefore, 24 Hr contends that despite having not received any information that it obtained
confidential information from Total Safety, Total Safety has issued subpoenas duces tecum to
company ABC and company XYZ seeking confidential financial of 24Hr Safety. Id. at 2. As such,
24 Hr contends that the information which Total Safety seeks from these companies are irrelevant
and immaterial to the instant action, and are only for the purpose of embarrassment and or to cause
disruption to 24 Hr’s relationship with ABC and XYZ. Id. at 3.
Standard of Review
Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed.
R. Civ. P. 26(b)(1). The Rule specifies that “[r]elevant information need not be admissible at the trial
if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id.
The discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately
informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery
does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Furthermore, “it is well
established that the scope of discovery is within the sound discretion of the trial court.” Coleman v.
American Red Cross, 23 F.3d 1091, 1096 (6th Cir.1994).
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less
expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery
sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Id. In
assessing whether the burden of the discovery outweighs its benefit, a court must consider: (1) the
needs of the case; (2) the amount in controversy; (3) the parties’ resources; (4) the importance of the
issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the
issues. Id. at 26(b)(2)(C)(iii).
The decision to enter a protective order is within the Court’s discretion. Thomas v. Int’l Bus.
Mach., 48 F.3d 478, 482 (10th Cir. 1995). Federal Rule of Civil Procedure 26(c) governs the
issuance of protective orders. It provides in pertinent part:
A party or any person from whom discovery is sought may move for a protective
order in the court where the action is pending-or as an alternative on matters relating
to a deposition, in the court for the district where the deposition will be taken. The
motion must include a certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to resolve the dispute
without court action. The court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or expense.
Fed.R.Civ.P. 26(c)(1). Rule 26(c), however, contains a requirement that good cause be shown to
support the issuance of a protective order, providing that “the burden is upon the movant to show the
necessity of its issuance, which contemplates a particular and specific demonstration of fact as
distinguished from stereotyped and conclusory statements.” In re Terra Int’l, 134 F.3d 302, 306 (5th
Cir.1998); see also Baggs v. Highland Towing, L.L.C.,No., No. 99-1318, 1999 U.S. Dist. LEXIS
11450, at *6-7, 1999 WL 539459, at *2 (E.D. La. July 22, 1999) (Rule 26(c)(2) orders may be issued
only when the moving party makes “a particular and specific demonstration of fact as distinguished
from stereotyped and conclusory statements.”).
24 Hr argues that this Court should quash the subpoenas issued by Total Safety to ABC and
XYZ companies because the purpose of these subpoenas are to annoy, harass, embarrass and oppress
24 Hr, and obtain highly confidential records regarding its financial valuation, estimation and
projections, which are irrelevant and immaterial to this action. See R. Doc. 158, p. 2; 158-1, p. 3-4;
citing Global Oil Tools, Inc. v. Barnhill, 2012 WL 6003745 (E.D. La. 2012) (quashing subpoenas
duces tecum as overly broad); Southern United States Trade Ass'n v. Guddh, 2012 WL 5199706, at
*4–*5 (E.D. La. Oct. 19, 2012) (striking subpoena for, inter alia, phone records as overbroad where
subpoena requested records from January 1, 2008, and allegations in suit dated to April 28, 2010,
because “there was no that the subpoenas directed towards Guddh were tailored to Plaintiffs' claims
in the instant suit.”).
In opposition, Total Safety contends that this Court does not have jurisdiction to hear the
motion to quash because it contends that Fed. R. Civ. P. 45 requires that in an effort to protect local
nonparties, local resolution of disputes about subpoenas is assured by the limitations of Rule 45(c)
and the requirements of Rule 45(d) and (e), which require that motions regarding these subpoenas
be made in the court in which compliance is required under Rule 45. See R. Doc. 170, p. 4, citing
Semex Alliance v. Elite Dairy Genomics, Inc., No. 14-0087, 2014 WL 1576917 at *1-2 (S.D. Ohio
Apr. 18, 2014) (“[T]he U.S. District Court for the Northern District of Illinois is the ‘court for the
district where compliance is required,’ not the U.S. District Court for the Southern District of Ohio.
Rule 45(f) describes the circumstances under which this Court would be able to provide the order
Mr. Butler seeks . . . Because such a transfer has not occurred, this Court lacks the power to issue
the order sought by Mr. Butler. He must seek an order to quash in the court for the district where
compliance is required, or seek transfer to this Court under Rule 45(f).”).3
Furthermore, counsel for Total Safety contends that even if this Court were the proper court
to hear 24 Hr’s motion, 24 Hr has failed to meet its burden for quashing subpoenas under Rule 26(c)
and thus should be denied, because no particular necessity has been shown substantiated the need
for a protective order quashing the subpoena. See R. Doc. 170, p. 5, citing Kansas Southern Ry. Co.
v. Nichols Const. Corp., No. 05-1182, 2008 WL 199875, at *2 (E.D. La. Jan. 22. 2008).
During oral argument, counsel for 24 Hr argued that Rule 45 (d)(3) was amended in 2013
to read that “[O]n timely motion, the court for the district where compliance is required must quash
or modify a subpoena that . . . (iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.” See Fed. R. Civ. P.
45(d)(3)(A)(iii-iv). The rule further states to “protect a person subject to or affected by a subpoena,
the court for the district where compliance is required may, on motion, quash or modify the
The Court explains that “[w]hen the court where compliance is required did not issue the subpoena, it may
transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court
finds exceptional circumstances. Then, if the attorney for a person subject to a subpoena is authorized to practice in
the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the
issuing court. To enforce its order, the issuing court may transfer the order to the court where the motion was made.”
See supra, 2014 WL 1576917 at *1-2.
subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or
commercial information.” Id. at 45(d)(3)(B)(I).
In considering the parties arguments, the Court analyzed Rule 45(c)(2)(A) which provided
that “[a] subpoena may command: (A) production of documents, electronically stored information,
or tangible things at a place within 100 miles of where the person resides, is employed, or regularly
transacts business in person;” in conjunction with Rule 45 (a)(2), which provides that “a subpoena
must issue from the court where the action is pending” and Rule 45(d)(3)(A), which states “[o]n
timely motion, the court for the district where compliance is required must quash or modify a
subpoena . . .”. See Fed. R. Civ. P. 45(a)(2) & 45(d)(3)(A)(emphasis added).
However, after considering the arguments of the parties, the Court, rather than ruling on the
procedural issues presented as to who and where the production may occur, which appeared to
present a circular argument, heard the parties substantive arguments. 24 Hr argued that the topical
areas which Total Safety sought to examine in the subpoenas duces tecum issued to ABC and XYZ
companies. 24 Hr contended that the financial valuations that an outside private equity company
made as to 24 Hr is irrelevant to the instant action and therefore should not be discoverable.
In response, Total Safety attempted to point to several pieces of evidence produced from
September 2013 which raised concerns that Rowland may have shared some of Total Safety’s
confidential information to 24 Hr sometime during the months when the meetings with the private
equity companies occurred. As such, counsel for Total Safety argued that if any of this information
was used to valuate 24 Hr to the equity companies, then it should be produced in the instant action.
Counsel for 24 Hr then argued that all of the communications between the private equity
companies and 24 Hr have been produced already in response to production requests of Total Safety.
Therefore, 24 Hr represented that the only documents which have not been produced are the private
equity companies documents and valuations of 24 Hr, which are not relevant to this action.
After considering the substantive arguments of the parties, the Court decided to conduct an
in camera review of the documents, so as to properly determine whether or not the documents are
relevant to the instant action. Accordingly,
IT IS ORDERED that Defendant, 24 Hour Safety, LLC’s Amended Motion to Quash
Subpoena Duces Tecum (R. Doc. 168) is DENIED.
IT IS FURTHER ORDERED that Defendant 24 Hour Safety produce the documents to the
Court for an in camera review no later than Friday, May 11, 2014.
New Orleans, Louisiana, this 1st day of May 2014
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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