Forrest et al v. 5-Hour Energy

Filing 15

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff Melissa Forrest's Motion to Quash Subpoena construed in part as a motion for protective order 1 is GRANTED in accordance with the rulings herein. Signed by District Judge John A. Ross on 7/29/2016. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM FORREST and
MELISSA FORREST,
Plaintiffs,
RANDALL SETH CROMPTON,
Movant,
v.
5-HOUR ENERGY, et al.,
Defendants.

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No. 4:16-mc-00348 JAR

MEMORANDUM AND ORDER
This miscellaneous matter is before the Court on Plaintiff Melissa Forrest’s Motion to
Quash Subpoena. (Doc. No. 1) The motion is fully briefed and ready for disposition.1 At
Plaintiff’s request (Doc. No. 9), the Court heard oral argument on the motion on July 29, 2016.
By agreement, the Court construes Plaintiff’s motion to quash in part as a motion for protective
order.
I.

Background

The subpoena at issue relates to multidistrict litigation pending in the United States
District Court for the Central District of California, In re: 5-Hour Energy Marketing and Sales
Practices Litigation, Case No. 2:13-ml-02438 PSG (PLA). Mrs. Forrest is not a party in that

1

Defendants filed a Memorandum in Opposition to Plaintiff’s Motion on June 22, 2016 (Doc. No. 3);
Plaintiff filed a Reply Memorandum on July 5, 2016 (Doc. No. 5); Defendants filed, with leave, a SurReply on July 7, 2016 (Doc. No. 10).

case.2 The MDL is brought on behalf of a nationwide class defined as “all persons in the United
States who purchased a 5-hour ENERGY® product” in addition to several state subclasses of
purchasers. (Consolidated First Amended Class Action Complaint, Doc. No. 2-5 at ¶¶ 129-140)
Named plaintiffs allege that Defendants have mispresented, falsely advertised, falsely labeled,
falsely marketed, and falsely promoted their 5-hour Energy products to the detriment of
purchasers in that 5-hour Energy products do not provide five (5) hours of energy. (Id. at ¶¶ 1-8)
On March 22, 2016, William Forrest, a named plaintiff in the MDL, was deposed by
counsel for Defendants. On April 11, 2016, his wife Melissa Forrest received a subpoena to
testify at a deposition on April 26, 2016 and produce the following documents and
communications:
1.

All DOCUMENTS that REFER TO or RELATE TO 5-HOUR ENERGY®.

2.

All DOCUMENTS that REFER TO or RELATE TO INNOVATION
VENTURES.

3.

All DOCUMENTS, including all receipts and credit card statements, that reflect

any purchases of 5-HOUR ENERGY®.
4.

All DOCUMENTS that REFER TO or RELATE TO WILLIAM FORREST'S

consumption of 5-HOUR ENERGY.
5.

All DOCUMENTS that REFER TO or RELATE TO this ACTION.

6.

All COMMUNICATIONS with WILLIAM FORREST that REFER TO or

RELATE TO 5-HOUR ENERGY®.
7.

All COMMUNICATIONS with WILLIAM FORREST that REFER TO or

RELATE TO INNOVATION VENTURES.
8.

All COMMUNICATIONS with WILLIAM FORREST that REFER TO or

RELATE TO this ACTION.

2

On January 25, 2013, Mrs. Forrest’s husband William Forrest filed a consumer class action against
Innovation Ventures, LLC d/b/a Living Essentials, LLC, Case No. 4:13-cv-00172-RWS, in the United
States District Court for the Eastern District of Missouri which was later consolidated into the
multidistrict matter, In re: 5-Hour Energy Marketing and Sales Practices Litigation.

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9.

All COMMUNICATIONS with third parties that REFER TO or RELATE TO 5-

HOUR ENERGY®.
10.

All COMMUNICATIONS with third parties that REFER TO or RELATE TO

INNOVATION VENTURES.
11.

All COMMUNICATIONS with third parties that REFER TO or RELATE TO

this ACTION.
12.

All DOCUMENTS, including but not limited to photographs and recordings,

which show or depict WILLIAM FORREST and 5-HOUR ENERGY®.
13.
All DOCUMENTS, including but not limited to photographs and recordings,
which show or depict WILLIAM FORREST and any energy product.
(Doc. No. 2-1)
Enforcement of the subpoena was subsequently postponed pending a meet and confer
between counsel. When Defendants would not withdraw the subpoena, Mrs. Forrest filed the
instant motion to quash on the grounds that she is a non-party witness in this matter and that her
deposition would result in an undue burden. (Doc. No. 2 at 6-8) She argues that Defendants
cannot establish the necessity of her deposition for establishing class-wide issues and instead, are
seeking to harass her and her husband for more individualized information despite having had
ample opportunity to gather information about her husband from him directly. (Id. at 8-13) Mrs.
Forrest further argues the subpoena is procedurally defective because it was not properly noticed
or served to all parties in the MDL pursuant to Rule 30(b)(1) and Rule 45(a)(4), and because
Defendants failed to seek leave of Court to exceed the total number of depositions allowed in this
matter. (Id. at 13-14)
II.

Legal standard

The federal rules “confer[ ] broad discretion on the [district] court to decide when a
protective order is appropriate and what degree of protection is required.” Miscellaneous Docket
Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting

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Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). Fed. R. Civ. P. 26(c) provides that “for
good cause shown, the court ... in the district where the deposition is to be taken may make any
order which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P 45(c) provides that a court shall quash
or modify a subpoena if it “subjects a person to undue burden.”
“[T]he factors required to be balanced by the trial court in determining the propriety of a
subpoena are the relevance of the discovery sought, the requesting party’s need, and the potential
hardship to the party subject to subpoena.” Heat and Control, Inc. v. Hester Indus., Inc., 785 F.2d
1017, 1024 (Fed. Cir. 1986). “In assessing the burden of complying with a subpoena, a court
may consider as one factor that a deponent is not a party.” Truswal Sys. Corp. v. Hydro-Air
Eng’g, Inc., 813 F.2d 1207, 1210 (Fed. Cir. 1987). A party seeking to quash a subpoena bears the
burden of proving that it is unduly burdensome. See Miscellaneous Docket Matter, 197 F.3d at
925.
III.

Discussion

A. Relevance/undue burden
Mrs. Forrest first argues she is a non-party witness and that her deposition would result in
an undue burden because her testimony is not relevant to the MDL action; her only connection to
the MDL is the fact that her husband is a named plaintiff. Because Mr. Forrest has already
responded to document requests and interrogatories and been deposed, Mrs. Forrest contends her
deposition would be duplicative and subject her to harassment or annoyance. (Doc. No. 2 at 6-8)
Defendants respond that Mrs. Forrest’s testimony is relevant to the MDL because her
husband has identified her as a material witness to his claims in that litigation. (Doc. No. 3 at 7)

Among other things, Mr. Forrest testified that his wife was present several times when he
consumed 5-hour ENERGY®, and that he had spoken to her about his experience when drinking
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the product. (William Forrest Deposition (“Forrest Depo.”), Doc. No. 2-4 at 225:11-226:16) Mr.
Forrest also recalled that on one occasion his wife consumed 5-hour ENERGY® with him. (Id.
at 51:16-52:21; 59:13-60:11; 60:18-23) Defendants argue they are entitled to explore Mrs.
Forrest’s personal knowledge and observations regarding 5-hour ENERGY®.

The scope of discovery under a subpoena “must be read in the light of [Fed. R. Civ. P.]
26(b).” StoneEagle Servs., Inc. v. UMB Bank, N.A., No. 4:15-MC-0904-NKL, 2015 WL
2452926, at *3 (W.D. Mo. May 22, 2015) (quoting Heat and Control, 785 F.2d at 1023). Under
Rule 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense-including the existence, description, nature, custody,
condition, and location of any documents or other tangible things[.]” Id. The Court finds Mrs.
Forrest’s testimony is relevant to the claims and defenses in the underlying MDL action because
she has personal knowledge of her husband’s purchase and consumption of 5-hour ENERGY®.
Defendants further respond that Mrs. Forrest has not submitted any evidence to show
why compliance with the subpoena would be unreasonable or oppressive. (Doc. No. 3 at 9) The
subpoena commands her to appear for a deposition less than ten miles from her home and
contains thirteen narrowly focused requests for production of documents. Defendants have also
offered to limit her deposition to three hours. (Id. at 10)
“The burden of proving that a subpoena is oppressive is on the party moving to quash
and is a heavy one.” Heat and Control, 785 F.2d at 1025. Mrs. Forrest states she is an airline
flight attendant who is constantly traveling across the country for work (see Doc. No. 5 at 4), and
that she would spend “numerous hours and resources” preparing for and defending her
deposition, as well as producing all of the documents requested in the subpoena (see id. at 5).
She has not, however, specified the time or resources necessary to comply or explained how

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compliance would actually be burdensome. See Plant Genetic Systems, N.V. v. Northrup King
Co., Inc., 6 F. Supp.2d 859, 862 (E.D. Mo. 1998); 9 James Wm. Moore et al., Moore’s Federal
Practice ¶ 45.51[4] (3d ed. 2009) (“A party objecting to a subpoena on the ground of undue
burden generally must present an affidavit or other evidentiary proof of the time or expense
involved in responding to the discovery request.”). In light of the foregoing, the Court is not
persuaded that Mrs. Forrest would be unduly burdened by complying.
B. Absent class member
Mrs. Forrest further argues the subpoena should be quashed because she is at most an
absent class member and Defendants cannot make a proper showing that her deposition is
necessary. (Doc. No. 2 at 8-13) Defendants respond that they never sought Mrs. Forrest’s
deposition as an absent class member. Moreover, no class has been certified in the MDL action.
(Doc. No. 3 at 9) Even if Mrs. Forrest is considered to be an “absent class member,” absent class
members may be deposed when they have been identified as potential witnesses or have
otherwise “injected themselves into the litigation.” Padberg v. Dish Network LLC, 2014 WL
1375455, at *1 (W.D. Mo. Apr. 8, 2014)). As discussed above, Mr. Forrest identified his wife as
a potential witness with relevant discoverable information regarding his claims. The subpoena
will not be quashed on these grounds.
C. Notice/service
Next, Mrs. Forrest contends Defendants’ subpoena was improperly noticed and served
and should be quashed. She argues that many of the parties and their counsel did not receive
written notice and a copy of the subpoena prior to Defendants serving the subpoena on her as
required by Rules 30(b)(1) and 45(a)(4). (Doc. No. 2 at 13-14) Defendants respond that on April
11, 2016, they served notice on the MDL plaintiffs’ interim class counsel, and then personally

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served Mrs. Forrest with the subpoena on April 12, 2016, in compliance with Rule 45. (Doc. No.
3 at 11) The Court finds that service of notice on interim class counsel, who were appointed by
the Central District of California “to act on behalf of a putative class before determining whether
to certify the action as a class action,” meets the requirements of Rule 45(a)(4) that a notice and
copy of the subpoena be served on each party in the case before being served on the individual
being subpoenaed.
Relying on Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1173 (10th Cir. 2003),
Mrs. Forrest replies that the notice and subpoena served by mail on class counsel the day before
she was served was untimely. (Doc. No. 5 at 1-2) Rule 45(a)(4) directs notice to be served on the
other parties “before [the subpoena] is served on the person to whom it is directed.” Rule
45(a)(4). However, the rule does not specify how far in advance of the issuance of a subpoena
the notice must be served. In Cotton v. AT & T Operations, Inc., 4:06-cv-438 CAS, 2007 WL
465625, at *1 (E.D. Mo. Feb. 8, 2007), the court found that service on plaintiff’s counsel on the
same day the subpoena was served on plaintiff met the requirements of Federal Rules 5(b) and
45(b)(1). The court further found that Butler is not controlling in this jurisdiction.
The purpose behind the federal notice requirement is to give opposing counsel the
opportunity to object to the subpoena. Cotton, 2007 WL 465625, at *1. As noted by Defendants
in their sur-reply, interim class counsel and Mr. Forrest have known for months that Defendants
intended to depose Mrs. Forrest, as evidenced by the notice of subpoena and numerous email
communications between the Forrests’ counsel, interim class counsel and Defendants’ counsel.
(Doc. No. 10 at 1-2) Here, Mrs. Forrest clearly had sufficient time to object to the subpoena as
evidenced by the filing of the instant motion to quash.

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In further reply, Mrs. Forrest argues that even if Defendants’ notice was timely served, it
was still improper because the subpoena noticed and served on interim co-lead counsel was a
“Subpoena to Produce Documents, Information, or Objects,” while the subpoena served on her
was a “Subpoena to Testify at a Deposition in a Civil Action.” The place of compliance for the
subpoena allegedly served on interim co-lead counsel is listed as counsel’s office in Los
Angeles, California, while the place of compliance for the subpoena served on Mrs. Forrest is
listed as Corporate Square Drive in St. Louis, Missouri. As such, Mrs. Forrest argues the notice
and service of the subpoena on interim co-lead counsel was defective. (Doc. No. 5 at 2-3)3
Defendants do not provide an explanation for the different version of the subpoena. In any event,
the Court finds this does not constitute inadequate notice.
Rule 45 does not generally distinguish between subpoenas to give testimony and
subpoenas to produce documents or other materials. A subpoena commanding the production or
inspection of documents or other materials may issue on its own or in conjunction with a
subpoena commanding the person to appear to give testimony. Fed. R. Civ. P. 45(a)(1)(C).
Before a party may serve a subpoena requesting the production or inspection of documents, it
must give prior notice to all parties in the case. Rule 45(a)(4). The prior notice requirement does
not apply when a subpoena commands the person to appear to testify at a depo. In that situation,
the notice is supplied by the deposition notice required under Rule 30(b)(1). See Fed. R. Civ. P.
45 Advisory Committee’s Note (1991). Here, interim class counsel was given notice, and both
versions of the subpoena requested the same documents be produced.

3

Defendants’ counsel submitted a declaration in support of their opposition to the motion to quash stating
that his office timely served interim co-lead class counsel with notice of issuance of the deposition
subpoena to Mrs. Forrest on April 11, 2016. (Declaration of Gerald E. Hawxhurst, Doc. No. 3-4 at ¶ 5)
Attached to counsel’s declaration is a copy of a “Subpoena to Produce Documents, Information, or
Objects,” not a subpoena to testify at a deposition. (Doc. No. 3-3)

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Lastly, Mrs. Forrest argues the subpoena should be quashed because her deposition
would exceed the ten-deposition limit imposed by Rule 30(a)(2)(A)(i). (Doc. No. 2 at 14; Doc.
No. 5 at 7) The parties disagree as to the number of depositions taken so far. Nevertheless, with
respect to subpoenas served on third parties based on named plaintiff testimony, the parties
stipulated that “[t]hose witnesses and/or plaintiffs may seek to quash or narrow those
subpoenas.” (Stipulation Re: Final Sixty Day Continuance of Pretrial Deadlines, Doc. No. 5-1)
In light of the Court’s ruling herein, the subpoena will not be quashed on these grounds.
IV.

Conclusion

For these reasons, the Court finds the information sought by Defendants is relevant and
that Mrs. Forrest will not be unduly burdened by compliance. At the hearing, the parties agreed
that the Court could construe Plaintiff’s motion to quash in part as a motion for protective order.
The Court will, therefore, allow the subpoena but order the parties to agree to a convenient time
and place for Mrs. Forrest’s deposition and limit the deposition to one (1) hour. If after the
deposition Defendants can show good cause, the Court will consider granting Defendants
additional time.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Melissa Forrest’s Motion to Quash Subpoena
construed in part as a motion for protective order [1] is GRANTED in accordance with the
rulings herein.
Dated this 29th day of July, 2016.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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