Kar et al v. Safeco Insurance Company of America et al

Filing 186

OPINION MEMORANDUM AND ORDER (See Full Order). IT IS HEREBY ORDERED that non-party Andrea Polo-McCullough's Motion to Quash Subpoena for Deposition is DENIED. [ECF No. 180 ] Signed by District Judge Henry Edward Autrey on 3/7/2025. (JEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARINDAM KAR, et al.,
Plaintiffs,
v.
SAFECO INSURANCE COMPANY
OF AMERICA, et al.
Defendants.

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No. 4:23-CV-207 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on non-party Andrea Polo-McCullough’s
Motion to Quash Subpoena for Deposition pursuant to Rule 45 of the Federal Rules
of Civil Procedure. (ECF No. 180). Plaintiffs served Ms. Polo-McCullough with a
subpoena to testify at a deposition on March 10, 2025, and to produce certain
documents.
Federal Rule of Civil Procedure 45 governs the issuance of non-party
subpoenas in civil actions pending in the federal courts. In general, a party “may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
The scope of discovery allowed under Rule 45 is the same as that of Rule 26. See
Advisory Committee Notes regarding 1991 Amendments to Rule 45(a)(2) (stating a

“non-party witness is subject to the same scope of discovery under this rule as that
person would be as a party to whom a request is addressed pursuant to Rule 34.”).
That said, non-parties should not be burdened to the same extent as parties to the
litigation. Therefore, the rule requires that “[a] party or attorney responsible for
issuing and serving a subpoena 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).
In this suit, Defendant Safeco Insurance Company of America (“Safeco”) has
used affidavits executed by Ms. Polo-McCullough in support of its arguments that a
number of Plaintiffs’ document requests, interrogatories, and notices of deposition
were overly burdensome. See, e.g. ECF No. 171, Ex. D. Ms. Polo-McCullough,
however, is not a Safeco employee. She is “Manager, Coverage Litigation Services”
at Liberty Mutual Group. Id. at 1. But Ms. Polo-McCullough has attested that she
has knowledge of the record keeping systems used by both Liberty Mutual Insurance
Group and Safeco, including data points and search capabilities. In her affidavits,
Ms. Polo-McCullough provided specific attestations about Safeco’s ability to search
its systems for the information Plaintiffs sought in their written discovery and
through depositions. While Ms. Polo-McCullough may not have knowledge about
how Safeco handled Plaintiffs’ insurance claim specifically, clearly she has
knowledge that is relevant to this suit. Gowan v. Mid Century Ins. Co., 309 F.R.D.
503, 515 (D.S.D. 2015) (finding in an insurance dispute that information about the

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defendant’s electronic information system, what was stored, where it was stored, and
how to access the information was “obviously relevant information”).
Furthermore, although Ms. Polo-McCullough is officially employed by a nonparty to this suit, it is clear that Safeco exercises some degree of control over her, as
she has executed a number of affidavits on Safeco’s behalf. The Court finds that
requiring Ms. Polo-McCullough to sit for deposition and to produce documents that
are in her possession, custody, or control that she relied upon or considered in
providing her affidavits would not be unduly burdensome to this third-party. The
motion to quash is denied.
Accordingly,
IT IS HEREBY ORDERED that non-party Andrea Polo-McCullough’s
Motion to Quash Subpoena for Deposition is DENIED. [ECF No. 180]
Dated this 7th day of March, 2025.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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