Moore v. The Travelers Indemnity Company et al

Filing 115

ORDER denying as moot 86 Motion to Compel; granting 107 Motion to Compel Signed by Magistrate Judge Jeremiah C. Lynch on 9/28/2016. (TXB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DALE D. MOORE and JEANIE
NELSON,

CV-15-71-M-DLC-JCL

Plaintiffs ,

ORDER

vs.
THE TRAVELERS HOME AND
MARINE INSURANCE COMPANY and
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendants.

In July 2016, Defendant The Travelers Home and Marine Insurance
Company (“Travelers”) served a Federal Rule of Civil Procedure 45 third-party
subpoena duces tecum upon Nardi and Stub Counseling (“Nardi and Stub”) – an
entity that provided counseling services to Plaintiffs Dale Moore and Jeanne
Nelson. After Nardi and Stub objected to the subpoena and failed to comply with
its directive, Travelers filed a motion to compel Nardi and Stub’s compliance.

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Defendant Allstate Fire and Casualty Insurance Company (“Allstate”) did not
serve its own subpoena request for the referenced records, but joined in Travelers’
motion. Prior to a ruling upon the motion to compel, Travelers effected a
settlement with Plaintiffs Moore and Nelson and was dismissed from the case.
On September 23, 2016, Allstate served its own subpoena duces tecum upon
Nardi and Stub seeking production of all files relating to the counseling services
provided to Plaintiffs Moore and Nelson. The subpoena directed that production
be accomplished no later than October 14, 2016.
Apparently anticipating that Nardi and Stub would again refuse to comply
with the directive of the subpoena, Allstate contemporaneously filed a motion
seeking to compel Nardi and Stub to respond to the subpoena. In support of its
motion, Allstate incorporates by reference the reasons stated by Travelers in
support of its motion to compel. Specifically, Nardi and Stub have refused to
produce the records in their possession relating to Moore and Nelson unless they
receive advance payment in the amount of $1,400.
At this juncture, the time for Nardi and Stub to respond to Allstate’s
subpoena has not yet expired. But based on Nardi and Stub’s recalcitrance in
refusing to comply with Travelers’ prior subpoena, the Court finds is appropriate,
in the interest of judicial economy, to grant Allstate’s motion to compel. The
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Court does so in order to emphasize to Nardi and Stub that failure to obey the
subpoena, without adequate excuse, may result in Nardi and Stub being held in
contempt of court. See Fed. R. Civ. P. 45(g). Restated, defiance of a subpoena is
defiance of a court order. In this regard, if Nardi and Stub fail to comply with the
subpoena duces tecum served by Allstate, Nardi and Stub will be required to show
cause why they should not be held in contempt of court.
Fed. R. Civ. P. 45(g) provides that a person subject to a subpoena is to be
protected from “undue burden or expense.” And in granting a motion to compel,
the court must protect non-parties from “significant” expense. In other words, a
non-party recipient of a subpoena requesting the production of documents must be
reasonably compensated for the costs of complying with the subpoena.
Fed. R. Civ. P. 45 sets no formula for calculating what reasonable
compensation entails. The Court, however, informs its decision in this matter by
looking to Montana statutory law, specifically Mont. Code Ann. §§ 50-16-526 and
540. Section 50-16-540 provides: “A reasonable fee for providing health care
information may not exceed 50 cents per page for a paper copy or photocopy. A
reasonable fee may include an administrative fee that may not exceed $15 for
searching and handling recorded health care information.” Therefore, in granting
Allstate’s motion to compel, the Court directs Allstate that it must reimburse Nardi
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and Stub for the production of documents in the amount of 50 cents per page
produced as well as a $15 administrative fee.
For the reasons stated, IT IS HEREBY ORDERED that Allstate’s motion to
compel is GRANTED as set forth herein.
IT IS FURTHER ORDERED that Travelers’ motion to compel is DENIED
AS MOOT.
DATED this 28th day of September, 2016

Jeremiah C. Lynch
United States Magistrate Judge

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