Confederate Motors, Inc. v. Terny, et al

Filing 136

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER denying 131 G. Chance Turner's Motion to Quash Subpoena. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CONFEDERATE MOTORS, INC.,
Plaintiff/
Counterclaim Defendant,
v.
FRANCOIS-XAVIER TERNY
Defendant/
Counterclaim Plaintiff.

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CIVIL ACTION
NO. 11-10213-JGD

MEMORANDUM OF DECISION AND ORDER ON
G. CHANCE TURNER’S MOTION TO QUASH SUBPOENA
February 24, 2012
DEIN, U.S.M.J
I. INTRODUCTION
This matter is before the court on G. Chance Turner’s “Motion to Quash
Subpoena.” (Docket No. 131). By his motion, Turner is requesting an order quashing the
subpoena issued on January 6, 2012 seeking to compel his testimony at a deposition. In
support of his motion, Turner claims that he “has no knowledge related to this case other
than that obtained as counsel for plaintiff, Confederate Motions, Inc.[,]” that any nonprivileged knowledge he has could be obtained by other means, that the subpoena was
issued only with “the intent to harass, intimidate and annoy” the plaintiff and himself, and
that he had been given insufficient time to appear for the deposition. (Docket No. 131
¶¶ 3-6).

In his opposition to the motion to quash, the defendant, Francois-Xavier Terny,
points out that Confederate listed Turner as a witness with discoverable knowledge in its
initial disclosures. (Opp. (Docket No. 132) at Ex. A). Moreover, Terny argues that
Turner acted in a non-counsel capacity and was an active witness of and participant in the
events at issue, and that Turner is not currently litigation counsel for Confederate, so he
will have non-privileged information about which to testify. (Opp. at 1-2). Finally,
Terny has agreed to schedule the deposition at a mutually convenient time. (Opp. at 1).
Because Terny should be allowed to explore whether Turner has non-privileged,
relevant information to this litigation, the motion to quash is DENIED. Any claim of
privilege should be asserted on a question-by-question basis.
II. ANALYSIS
In relevant part, Fed. R. Civ. P. 45(c)(3)(A) provides that a deposition subpoena
must be quashed or modified if the subpoena “fails to allow a reasonable time to
comply[,]” “requires disclosure of privileged or other protected matter” or “subjects a
person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(i), (iii) & (iv). In considering
whether testimony from opposing counsel is warranted, courts can consider various
factors, including “whether (i) the subpoena was issued primarily for purposes of
harassment, (ii) [whether] there are other viable means to obtain the same evidence, and
(iii) to what extent the information sought is relevant, nonprivileged, and crucial to the
moving party’s case.” Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 66 (1st Cir.

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2003). A consideration of all these factors compels the conclusion that Turner’s deposition should go forward.
As an initial matter, when claiming a privilege in response to a subpoena, Fed. R.
Civ. P. 45(d)(2)(A) requires that the person withholding the requested information “must:
(i) expressly make the claim; and (ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.” While the attorneyclient privilege is one of the most valued protections of confidential information, the
privilege will only attach “(1) [w]here legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal adviser, (8) except the protection
[may] be waived.” In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir. 2011)
(quotation and citation omitted). “A failure to satisfy any one of the enumerated elements
defeats the claim of privilege.” Id.
The inquiry into whether a communication is privileged is a fact-specific one — “a
blanket assertion of privilege is generally insufficient.” Id. Here, Turner has made no
effort to identify or describe any specific information or documents that would be
privileged, and has not established that he was acting in the capacity of a legal advisor
with regard to all the matters at issue in this litigation. He simply asserts that because he

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has represented Confederate (although he is not trial counsel), he should not be
compelled to provide testimony. This broad assertion of the privilege is insufficient.
Turner’s other arguments are equally unpersuasive. His claim that he had
insufficient time to respond to the subpoena is no longer at issue, because Terny has
indicated that he is willing to work with Turner in order to schedule a convenient time for
the deposition. Furthermore, Turner has failed to provide a reasonable basis for proving
that any knowledge he has can be obtained by alternative means. Based on Confederate’s
initial disclosures, Terny believes that Turner has specific, personal knowledge of key
events that took place. Terny is entitled to depose Turner in an effort to obtain this
information. Finally, there is no evidence that Terny issued the subpoena in an attempt to
harass, intimidate, or annoy Turner or Confederate. As previously indicated, Confederate
listed Turner as an individual “likely to have discoverable information relevant to
disputed facts” in its initial disclosures. (Opp. at Ex. A). Terny has a legitimate interest
in obtaining non-privileged information from Turner.
As the individual resisting discovery, the burden was on Turner to establish that
the deposition subpoena should be quashed. See Digital Equip. Corp. v. Currie Enter.,
142 F.R.D. 8, 15 (D. Mass. 1991) (general claim that documents are protected by the
attorney-client privilege insufficient to warrant quashing of subpoena). He has not met
this burden by his unspecific claim of privilege.

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III. ORDER
For the reasons detailed herein, Turner’s “Motion to Quash Subpoena” (Docket
No. 131) is DENIED.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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