Strahan v. Massachusetts Executive Office of Energy and Environmental Affairs et al

Filing 313

Judge Indira Talwani: ORDER Granting Non-Party Center for Coastal Studies' Motion to Quash #272 . Please see attached. (Kelly, Danielle)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RICHARD MAX STRAHAN,

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Plaintiff,
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v.
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SECRETARY, MASSACHUSETTS
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EXECUTIVE OFFICE OF ENERGY AND *
AND ENVIRONMENTAL AFFAIRS,
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et al.,
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Defendants.
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Civil Action No. 19-cv-10639-IT

ORDER GRANTING NON-PARTY CENTER FOR COASTAL STUDIES’
MOTION TO QUASH
February 17, 2021
TALWANI, D.J.
Before the court is Non-Party Center for Coastal Studies’ (“Coastal Studies”) Motion to
Quash Non-Party Subpoena and Deposition Notices [#272]. Coastal Studies’ motion seeks to
quash five subpoenas that Plaintiff has served upon Coastal Studies and/or its employees seeking
documents and deposition testimony. For the reasons set forth below, the motion to quash is
GRANTED without prejudice to Plaintiff serving a limited-in-scope document subpoena seeking
complete copies of specific, identified documents Coastal Studies previously produced to the
Commonwealth or to the National Oceanic and Atmospheric Administration (“NOAA”) where
Plaintiff has first sought production of the documents from the Commonwealth or NOAA and
the specific Coastal Studies’ documents were not produced, or were produced in redacted form,
by the Commonwealth or NOAA.

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1. The Subpoenas Served
Plaintiff served five subpoenas on Coastal Studies and its employees. The document
subpoena, Exhibit A, Coastal Studies’ Motion to Quash [#273-1], requests all “documents and
communications”1 that fall in eight different categories of documents. These include “[a]ll
documents and communications regarding any whale (of any species) sighted in Northeast
United States waters entangled in fishing gear since 1995” and “[a]ll documents and
communications regarding any fishing gear involved in any entanglement of wildlife.” Exhibit
A, Requests ¶¶ 2, 4 [#273-1]. In addition to the broad requests, Plaintiff includes more targeted
requests as to specific entanglements. Id. ¶¶ 5–8. Plaintiff also requests “[a]ll documents and
communications regarding the Atlantic Large Whale Disentanglement Network Site,” including
in this request “any information posted, stored, downloaded, viewed, or accessible by you or
your agent.” Id. ¶ 3. Plaintiff requests documents and communications dating back to 2001, but
also requests documents and communications from before 2001 if they were “utilized, or in
effect, at any point” since. Exhibit A, Instructions ¶ 25 [#273-1].
Three of Plaintiff’s four deposition subpoenas seek testimony from the directors of
Coastal Studies’ Right Whale Ecology Program, Humpback Whale Studies Program, and Maine
Animal Entanglement Program. Exhibits B–D, Coastal Studies’ Motion to Quash [#273-2],
[#273-3], [#273-4]. The final deposition subpoena demands that Coastal Studies designate a
corporate representative pursuant to Federal Rule of Civil Procedure 30(b)(6) for examination on

Plaintiff’s subpoena defines “communication” to include “oral and written communications of
any kind, such as electronic communications, e-mails, SMS messages, instant messages,
facsimiles, telephone communications, correspondence, exchange of written or recorded
information, or face-to-face meetings transmitting information.” Definitions ¶ 6, Exhibit A to
Coastal Studies’ Motion to Quash [#273-1].
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thirteen topics. Exhibit E, Coastal Studies’ Motion to Quash [#273-5]. Twelve topics concern
Coastal Studies’ “research, study, writing, and/or discussions” on a wide range of issues,
including “behavior, biology, and status of the North Atlantic Right Whale,” the use and
regulation of vertical buoy ropes in Massachusetts, and the effects of vertical buoy ropes on
endangered marine species in Massachusetts. Exhibit E, Subjects for Examination ¶¶ 1–12
[#273-5]. The thirteenth category relates to Coastal Studies’ “use or maintenance of the ‘Atlantic
Large Whale Disentanglement Network Site’ or any other database that contains records of
reported entanglements of whales, records of efforts to disentangle whales, communications
between participants in the [Network], and/or other related records regarding entangled whales
and entanglement events.” Id. ¶ 24.
2. Coastal Studies’ Objections
Coastal Studies objects that it is not a party to this dispute, and that the subpoenas are
impermissibly overbroad and impose a burden disproportionate to Plaintiff’s needs in the case.
Coastal Studies’ Mem. 4–6 [#273]. Coastal Studies argues further that even if the information
requested is relevant to the case, demanding production from non-party Coastal Studies
constitutes an undue burden where Plaintiff could obtain the information and documents from
publicly available sources. Id. 6–8. As to the deposition subpoenas served on Coastal Studies’
employees, Coastal Studies argues that Plaintiff is impermissibly seeking compelled expert
testimony from Coastal Studies’ employees, without a requisite showing of need. Id. 8–11.
3. Plaintiff’s Response
Plaintiff contends that Coastal Studies appears to have information relevant to this
lawsuit, including “information on when and where whales, including the North Atlantic right
whales, are found entangled.” Pl.’s Opp’n 11 [#290]. Plaintiff anticipates that this information
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will include “the types of ropes in which these whales are entangled, including rope licensed by
the defendants” and that this information “will show that North Atlantic right whales continue to
be entangled by Massachusetts-licensed gear in Massachusetts waters.” Id.
Plaintiff does not dispute that his requests are broad, but contends they were drafted
“broadly out of an abundance of caution,” and that he anticipated that the parties would
“negotiate down the scope of discovery.” Id. at 5, 12. Plaintiff proposes that he start with a Rule
30(b)(6) deposition on an amended list of topics that could be used to map the relevant
information that is in Coastal Studies’ possession. See id. at 8, 12 [#290]; Exhibit A, Plaintiff’s
Proposed Amended 30(b)(6) Topics [#290-1]. Plaintiff requests that he be permitted thereafter
“to propound document requests tailored to the information the Center collects and maintains
regarding North Atlantic right whale entanglements as determined in the 30(b)(6) deposition.”
Pl.’s Opp’n 12 [#290]. Plaintiff “anticipates that these document requests will center on
obtaining read-only access to the Atlantic Large Whale Disentanglement Network that the Center
maintains” and states that he would only seek materials since 2010 unless “the 30(b)(6)
deposition reveals good cause to seek limited discovery for earlier years.” Id. at 13.
Plaintiff argues that it is important to be able to obtain the documents from Coastal
Studies as well as the from the Commonwealth or NOAA because “in many cases when a party
obtains what should be the same set of documents from two different sources a critical fact in the
litigation turns out to be that one set omitted a document that was in the other set.” Pl.’s Opp’n
11 [#290] (citing Coffeyville Res. Refining & Mktg., LLC v. Liberty Surplus Ins. Corp., No. 08mc-00017, 2008 WL 4853620, at *2 (E.D. Ark. Nov. 6, 2008)). Plaintiff contends further that he
should be able to obtain the requested records from the original non-party source because it is not
clear which government entity possesses the information. Id. at 12 (citing In re New England
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Compounding Pharmacy, Inc. Prod. Liab. Litig., No. 13-md-2419-FDS, 2013 WL 6058483, at
*8 (D. Mass. Nov. 13, 2013)). He contends, moreover, that when governmental entities produce
such information, “they alter the documents such that key information is removed.” Id. at 13.
Finally, Plaintiff asserts that he seeks only factual, and not expert, testimony from Coastal
Studies and its employees. He contends that the goal of the 30(b)(6) deposition is “to understand
the type of information [Coastal Studies] maintains and sends to the defendants regarding whale
entanglements” and that the individual depositions are sought “as fact witnesses to whale
entanglements.” Id. at 14.
4. Discussion
Federal Rule of Civil Procedure 45 makes plain that before an attorney or a party serves a
subpoena, he or she must “take reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). That appears not to have happened
here. Instead, both the document subpoena and the Rule 30(b)(6) subpoena are indisputably
overbroad.
Nor does Plaintiff’s subsequent offer of a more limited Rule 30(b)(6) deposition solve the
problem. Plaintiff argues that “[c]ase law within this circuit supports [his] approach.” Pl.’s Opp’n
9 [#290]. Not so. Although the case cited, Mitsui & Co. (U.S.A.) v. Puerto Rico Water Res.
Auth., stands for the proposition that a Rule 30(b)(6) deposition can eliminate unnecessary
discovery and diminish burdens of discovery, see 93 F.R.D. 62, 65 (D.P.R. 1981), it does not
support Plaintiff’s approach of serving indefensibly broad document subpoenas followed by an
“offer” to narrow the scope of the subpoenas through a Rule 30(b)(6) deposition.
In any event, even if Plaintiff had begun with the proposed Rule 30(b)(6) notice
submitted with his opposition to the motion to quash and then served document requests tailored
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to the information obtained through that process, the contemplated document production would
still create an undue burden on non-party Coastal Studies. Plaintiff seeks to have non-party
Coastal Studies duplicate production that Plaintiff either has already obtained from the
Commonwealth Defendants, or could have obtained from the federal government through a
FOIA request.2 Where, as here, “the material sought by subpoena is readily available, either from
a party to the action or from a public source, obtaining it through subpoena on a nonparty witness
often will constitute an undue burden.” 9 James Wm. Moore et al., Moore’s Federal Practice,
Civil § 45.32 (2020).
Plaintiff’s arguments for why this general rule does not apply do not present a persuasive
basis for ordering non-party Coastal Studies to duplicate production available elsewhere. First,
Plaintiff’s claim that duplicative production is necessary to discern discrepancies between
different sets of records is not tied in any meaningful way to the Endangered Species Act claim
before the court.
Second, Plaintiff argues that he should be able to obtain the requested records from the
original non-party source because it is not clear which government entity possesses the
information. Pl.’s Opp’n 12 [#290] (citing New England Compounding Pharmacy, 2013 WL
6058483, at *8). But beyond merely asserting that Coastal Studies has not directed him to the
specific government agencies, Plaintiff has provided no basis from which the court can conclude
that Plaintiff does not know which state and federal government agencies would have the

Plaintiff does not contest that Coastal Studies “produces all of its reports and data concerning
its whale-saving activities to the Commonwealth and/or to NOAA.” Coastal Studies’ Mem. 7
[#273].
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requested information or that there are a multiplicity of agencies that may have the documents so
as to justify the burden Plaintiff’s request would impose on a non-party.
Third, Plaintiff also argues that duplicative production from Coastal Studies would serve
an important purpose since the “communications between the non-party and public source are at
issue.” Pl.’s Opp’n 12 [#290]. Specifically, Plaintiff contends that material produced by Coastal
Studies may reveal “the extent to which the State was aware (or could have educated itself) of
the damages VBRs pose to right whales.” Id. at 13. But Plaintiff does not explain how the state’s
knowledge (or lack thereof) of the effects of its regulatory scheme on endangered species tends
to prove or disprove any issue of fact or law in this cause of action.
For these reasons, Plaintiff’s request to obtain a duplicative set of the original documents
from non-party Coastal Studies constitutes an undue burden on a non-party. Accordingly,
Plaintiff’s proposed Rule 30(b)(6) deposition, which seeks “to ascertain what types of relevant
information” Coastal Studies maintains is likewise unnecessary.
Putting aside Plaintiff’s demand to obtain a duplicative set of the original documents
from Coastal Studies, Plaintiff has identified specific scenarios where information is only
available from Coastal Studies either because the federal government3 only produced the
material in redacted form in response to a FOIA request or because the state government did not
maintain a copy4 of the relevant material. See Exhibits B & C, Pl.’s Opp’n [#290]; Pl.’s Sur-

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Although the state government may also redact materials produced through state public records
requests, where, as here, the state is a party to this action, Plaintiff has not explained why he
cannot obtain unredacted documents through discovery on the party.
Although Coastal Studies “produces all of its reports and data concerning its whale-saving
activities to the Commonwealth and/or to NOAA,” Coastal Studies’ Mem. 7 [#273], the
Commonwealth has communicated to Plaintiff that it will sometimes not save all materials
produced with these reports. For example, while Coastal Studies will email reports to the
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Reply [#307]; Pl.’s Letter [#306]. In these specific scenarios, any burden on non-party Coastal
Studies would not be undue given the undisputed relevance of the documents to Plaintiff’s claim
and that the production would not be unnecessarily duplicative for the reasons set forth above.
Accordingly, Plaintiff is permitted to serve a document subpoena on Coastal Studies requesting
specific documents to the extent they meet either of these two criteria, that is, the requests shall
be limited to production of complete copies of documents where the information was redacted,
omitted, or no longer available in the copies obtained from the Commonwealth defendants or
NOAA.
Plaintiff’s deposition notices fare no better. While Plaintiff’s opposition emphasizes that
it seeks only factual testimony from Coastal Studies and its employees, the “subjects of
examination” for his Rule 30(b)(6) deposition indicate that the information Plaintiff seeks is the
experts’ opinions, not facts. See Exhibit E, Subjects for Examination ¶¶ 1–12 [#273-5]. Even
assuming that Plaintiff’s objective was to depose the three named scientists not on topics
identified in the Rule 30(b)(6) notice but “as fact witnesses to whale entanglements,” as he states
in his opposition, Plaintiff has provided no explanation of what personal knowledge these
scientists may have that could be relevant to Plaintiff’s claims or remedies. See Fed. R. Evid. 602
(“A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. . . . This rule does not apply to a witness’s
expert testimony under Rule 703); Fed. R. Evid. 703 (“An expert may base an opinion on facts or

Commonwealth, the Commonwealth will routinely not download all of the information
contained in these reports. As a result, the Commonwealth’s document production will contain
information from which Plaintiff may identify that a report was shared between Coastal Studies
and the Commonwealth, but not be able to see the entire contents of the report. See Pl.’s Letter
[#306].
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data that the expert has been made aware of or personally observed”). Accordingly, Plaintiff’s
deposition notices are also quashed.
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For the reasons set forth above, Non-Party Center for Coastal Studies’ Motion to Quash
[#272] is GRANTED.
IT IS SO ORDERED.
Date: February 17, 2021
/s/ Indira Talwani
United States District Judge

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