Metromont Corporation v. Allan Myers, L.P.

Filing 78

MEMORANDUM OPINION (c/m to Wallace Montgomery & Associates, L.L.P. via its agent for service Stuart Taub at 10150 York Road, Suite 200, Hunt Valley, MD 21030). Signed by Judge Deborah K. Chasanow on 11/18/2020. (sat, Chambers)

Case 1:18-cv-03928-DKC Document 78 Filed 11/18/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
METROMONT CORPORATION
:
v.

:

Civil Action No. DKC 18-3928

:
ALLAN MYERS, L.P.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this breach of
contract case is the motion of Defendant/Counter-Plaintiff Allan
Myers, L.P. to quash a subpoena directed to a third party. (ECF
No. 66).

The issues have been briefed, and the court now rules,

no hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, the motion to quash will be denied, and the
discovery schedule will be modified to allow Wallace Montgomery
additional time to comply with the subpoena.
I.

Background
The facts giving rise to this dispute are laid out in a

previous opinion.

(ECF No. 37); Metromont Corp. v. Allan Myers,

L.P., No. DKC 18-3928, 2019 WL 3253452 at *1-*2 (D.Md. July 19,
2019).

The case involves a general contractor, Defendant/Counter-

Plaintiff

Allan

Myers,

L.P.

(“Myers”),

and

a

sub-contractor,

Plaintiff/Counter-Defendant Metromont Corporation (“Metromont”),
and arises from a general contract governing the “Montebello Plant

Case 1:18-cv-03928-DKC Document 78 Filed 11/18/20 Page 2 of 5

2, Finished Water Reservoir Project” (“the Project”), entered into
with the City of Baltimore’s Department of Public Works.

A

scheduling order issued on July 14, 2020, set October 9, 2020, as
the deadline for completion of discovery.

(ECF No. 60).

On the

final day, Metromont issued a subpoena (“the subpoena”) to nonparty
Wallace Montgomery and Associates, L.L.P. (“Wallace Montgomery”).
The subpoena commands production of “[a]ll communications
(including

emails)

Montgomery

and

Montgomery;

3)

regarding

Allan
between

Myers,

the

Project

LP;

Wallace

2)

1)

between

internally

Montgomery

and

at
the

Wallace
Wallace
City

of

Baltimore; and 4) between Wallace Montgomery and anyone else. All
photographs or videos from the Project site.”

(ECF No. 66-1).

In the pending motion, Myers argues three grounds for quashing
this subpoena under Fed.R.Civ.P. 45 in that Metromont did not:

1)

serve the subpoena on Wallace Montgomery until after the discovery
deadline; 2) failed to comply with the rule’s “notice requirement”
in not allowing Myers reasonable time to object;1 and 3) “failed
to allow a reasonable time for Wallace Montgomery to comply.”2

1

Myers contends that “notice was completely unreasonable” as
Metromont provided a copy of the Subpoena to it “after business
hours on October 9, 2020, and served it on Wallace Montgomery
immediately after.” (ECF No. 66, at 3).
2

Myers argues that Fed.R.Civ.P. 34(b)(2)(A) requires parties
be allowed thirty days to comply with document requests, but the
subpoena granted Wallace Montgomery only seventeen days to comply,
with a command that the documents requested be produced by
October 26, 2020. (Id. at 3).
2

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Metromont contends, as a threshold matter, that Myers has not
identified a personal right or privilege in the information sought
by the subpoena and therefore lacks standing to challenge it. (ECF
No. 68, at 2) (citing First Mariner Bank v. Resolution Law Grp.,
P.C., No. MJG-12-1133, 2014 U.S. Dist. LEXIS 19565, at *2-3 (D.MD.
Feb. 14, 2014)).

Even if standing is found, it argues, the notice

requirement is fulfilled because notice of the subpoena was given
to Myers “several days before Wallace Montgomery.”
argues

that

the

minimum

thirty

day

compliance

Metromont

period

under

Fed.R.Civ.P. 34(b)(2)(A) is only afforded parties to the suit, and
that Fed.R.Civ.P. 45, the applicable rule for nonparties, only
requires a “reasonable time to comply” and “14 days” to object.
(ECF No. 68, at 2-3) (misciting Fed.R.Civ.P. 45(d)(3)(A)(i) and
45(d)(2)(B), respectively).

Lastly, while the subpoena was served

after the discovery deadline, Metromont argues this was due to
Myers’ failure timely to produce its communications with Wallace
Montgomery itself.

Metromont argues in the alternative that, even

if the subpoena is found to be improper as untimely, it has shown
“good cause for a limited modification of the scheduling order to
allow for the Wallace Montgomery documents to be produced.”
II.

Analysis
Metromont’s argument that Myers lacks standing to challenge

the subpoena is without merit.

The subpoena itself facially

involves a personal right of Myers in that communications between
3

Case 1:18-cv-03928-DKC Document 78 Filed 11/18/20 Page 4 of 5

Myers

and

requested.

Wallace

Montgomery,

among

other

things,

are

being

This alone, even without Myers’ explicit assertion of

a right in the requested communications, is enough to show “some
personal right or privilege with regard to the documents sought.”
See In re Grand Jury Subpoena John Doe, No. 056J1318, 584 F.3d
175,

184

n.14

(4th

Cir.

2009)

(citing

9A Charles

Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 2459 (3d ed. 1998)) (finding a Congressman could not
invoke the Fifth Amendment to quash grand jury subpoena production
of his staff members’ and chief of staff’s files); see also id. at
191 (J. Gregory, concurring) (citing United States v. Idema, 118
Fed.Appx. 740, 744 (4th Cir. 2005) (“Idema has failed to make any
showing that he has a personal right to, or privilege in, the
information being sought in the subpoenas.”)).

Therefore, Myers

has standing to bring this motion, at least as it relates to its
own procedural rights.

It does not, however, challenge the

production of the requested documents on any substantive grounds.
While the subpoena was served on Wallace Montgomery after the
discovery deadline, that is not a ground on which to quash it.
Nor is the possible failure to give Myers reasonable advance notice
fatal to the subpoena.

Such deficiencies are rarely, if ever, a

ground for quashing a subpoena entirely, at least absent prejudice.
See Phillips v. Ottey, No. 14-0980, 2016 WL 6582647, at *4 (D.Md.
Nov. 7, 2017) (“Plaintiff arguably received concurrent notice of
4

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the subpoena rather than the prior notice required.

Assuming

arguendo that this service violated Fed.R.Civ.P. 45(a)(4), the
violation does not warrant quashing the subpoenas.”)).
More importantly, Metromont argues that it did not identify
the failure of Myers to provide these communications until its
deposition of Myers’ employee Brian Flynn on October 1, 2020. (ECF
No. 68-3).

Metromont says it attempted to rectify the failure

with two electronic “letters” to Myers’ counsel on October 9 and
October 13, respectively. (ECF Nos. 68-1, 68-2). This constitutes
“good cause” for a modification of the discovery schedule under
Fed.R.Civ.P. 16(b)(4).

Finally, assuming Myers has standing to

complain about the time for compliance, Metromont has expressed
willingness to grant additional time to Wallace Montgomery to
comply, if necessary.

Myers’ motion to quash will be denied, and

Metromont’s request for a discovery modification will be granted.
III. Conclusion
For the foregoing reasons, the motion to quash filed by
Defendant/Counter-Plaintiff will be denied.

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

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