Brushart v. Adams et al
OPINON AND ORDER denying 76 Motion to Quash; denying as moot 80 Motion to Strike. Signed by Magistrate Judge Kimberly A. Jolson on 7/12/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Civil Action 2:16-cv-520
Judge Algenon L. Marbley
Magistrate Judge Jolson
BRIAN ADAMS, et al.,
OPINION AND ORDER
Defendants Brian Adams and MMB Enterprises, Inc. filed a Renewed Motion to Quash
the subpoena served upon the Ohio Department of Education. (Doc. 76). For the reasons stated,
the Motion is DENIED.
On April 20, 2017, Plaintiff filed notice of her intent to serve a subpoena on the Ohio
Department of Education (“ODE”), seeking the production of ten categories of documents set
forth in Exhibit 1 to the subpoena. (Doc. 71). When Mr. Adams and MMB Enterprises, Inc.
(“Defendants”) filed a Motion to Quash the subpoena on May 4, 2017 (Doc. 73), the Court
denied the Motion without prejudice and ordered the parties to meet and confer in an effort to
resolve the dispute (Doc. 74). Counsel’s efforts to meet and confer were unsuccessful; hence,
Defendants filed a Renewed Motion to Quash. (Doc. 76). The Renewed Motion is now ripe for
review. (Doc. 78 (opposition); Doc. 79 (reply)).
Under Rule 45 of the Federal Rules of Civil Procedure, parties may command a non-
party to produce documents. Fed. R. Civ. P. 45(a)(1)(D). Rule 45 further provides that “[o]n
timely motion, the court for the district where compliance is required must quash or modify a
subpoena that . . . fails to allow a reasonable time to comply . . . or subjects a person to undue
burden.” Fed. R. Civ. P. 45(d)(3)(A)(i),(iv). Further, “the scope of discovery under a subpoena
is the same as the scope of discovery under Rule 26.” Hendricks v. Total Quality Logistics,
LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (internal quotation marks omitted); see also Fed. R.
Civ. P. 26(b)(1) (“Parties 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 . . . .”).
Prior to addressing the merits of the Renewed Motion, the Court must examine whether
Defendants have standing to challenge the subpoena issued to ODE. See Griffiths v. Ohio
Farmers Ins. Co., No. 1:09-cv-1011, 2010 WL 2639918, at *1 (N.D. Ohio June 29, 2010)
(“Federal courts must inquire into the threshold issue of standing before deciding the merits of a
party’s challenge to a subpoena.”); Waite, Schneider, Bayless & Chelsey Co. L.P.A. v. Davis, No.
1:11-cv-851, 2013 WL 146362, at *5 (S.D. Ohio Jan. 14, 2013) (same). Only a party that has
“some personal right or privilege with regard to the documents sought” has standing to seek to
quash a subpoena issued to a non-party. Mann v. Univ. of Cincinnati, Nos. 95-3195, 95-3292,
1997 WL 280188, at *4 (S.D. Ohio May 27, 1997) (citing 9A Charles Alan Wright and Arthur R.
Miller, Fed. Practice and Procedure § 2459 (1995)). Such rights or privileges have been found to
exist “with respect to personal bank records, information in a personnel file, corporate bank
records, or Indian tribal records.” Waite, Schneider, Bayless & Chelsey Co. L.P.A., No. 1:11-cv-
851, 2013 WL 146362, at *5 (citing Hackmann v. Auto Owners Ins. Co., No. 2:05-cv-876, 2009
WL 330314, at *1 (S.D. Ohio Feb. 6, 2017)).
In their Renewed Motion to Quash, Defendants state the following with respect to
[T]he documents sought are documents related to non-party entities or persons
involving Adams and MMB’s business that have nothing to do with the claims at
issue. Thus, Adams and MMB have a personal right or privilege to ensure that
this confidential and irrelevant is not produced thereby allowing Brushart to go on
a fishing expedition.
(Doc. 76 at 8). Plaintiff counters that Defendants state no personal right or privilege with regard
to the documents sought; hence, they lack standing to quash. (Doc. 78 at 7). Plaintiff argues
that, even if the Court were to accept Defendants’ position that the documents sought are
irrelevant, “only ODE may move to quash the subpoena on these grounds.” (Id. at 7–8). In
reply, Defendants claim that they have “adequately set forth the personal interest they have in
limiting discovery from unrelated organizations involved in their primary source of livelihood
having nothing to do with this matter but which could detrimentally impact their business
reputation in the educational community.” (Doc. 79 at 1).
At bottom, Defendants make nothing more than a relevance argument, which does not
establish a personal right or privilege with respect to the documents sought. White Mule Co. v.
ATC Leasing Co. LLC, No. 3:07cv00057, 2008 WL 2680273, at *4 (N.D. Ohio June 25, 2008)
(denting motion to quash where the “sole basis for moving to quash the subpoenas is that the
discovery sought is not relevant”). Consequently, Defendants lack standing to challenge the
subpoena issued to ODE, and the Motion to Quash must be DENIED on that basis. See Waite,
Schneider, Bayless & Chelsey Co. L.P.A., 2013 WL 146362, at *5.
Defendants, however, equivocate in their Reply Brief, pondering whether they should
have filed a Motion for a Protective Order rather than a Motion to Quash. (See Doc. 79 at 1–2
(“[P]erhaps the Motion is more properly a Motion for Protective Order instead of a Motion to
Quash.”)). They add the Court has discretion to convert its Motion to a Motion for Protective
Order, which would eliminate the standing issue. (Id. at 2 (citing McNaughton-McKay, Elec. Co.
v. Linamar Corp., No. 09-CV-11165, 2010 WL 2560047 (E.D. Mich. June 15, 2010)). In sum,
they suggest, but do not request outright, that the Court consider their relevance argument and a
newly-raised proportionality argument by re-characterizing their Motion as one for a protective
order. (See id.).
Plaintiff opposes Defendants’ suggestion. More specifically, Plaintiff has filed a Motion
to Strike Defendants’ Reply on the grounds that it contains new evidence “intended to prejudice
the Court.” (Doc. 80 at 1). Alternatively, Plaintiff seeks leave to file a sur-reply. (Id.). Stated
simply, the Motion to Strike is unnecessary because Defendants’ suggestion that the Court
convert their Motion to Quash into a Motion for a Protective Order is DENIED.
While Defendants have standing to seek a protective order to preclude or limit the
discovery responsive to the subpoena, such a motion arises under a different rule in the Federal
Rules of Civil Procedure. Compare Fed. R. Civ. P. 45(d)(3) with Fed. R. Civ. P. 26(c); White
Mule Co., 2008 WL 2680273, at *4 (citing U.S. v. Operation Rescue, 112 F. Supp. 2d 696, 705
(S.D. Ohio 1999)). Specifically, Rule 26(c) of the Federal Rules of Civil Procedure permits the
Court to “issue an order to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense” upon a showing of good cause. Fed. R. Civ. P. 26(c). Here,
Defendants do not argue that a protective order is necessary based on annoyance,
embarrassment, oppression, undue burden, or expense. Rather, as noted previously, Defendants
argue the discovery requested is irrelevant, which is not a proper basis upon which to issue a
protective order. See id.
Further, even if irrelevance were a proper basis upon which to seek a Protective Order,
Plaintiff has not been given an opportunity to respond to such a motion or the arguments made
for the first time in Defendants’ Reply Brief. The Court understands that the parties worked
together to narrow the scope of the discovery sought by the subpoena, but the proposed
agreement was ultimately abandoned.
The Court strongly encourages the parties to make
another effort to meet and confer. Finally, if Defendants opt to file a Motion for a Protective
Order, any such Motion must apply the proper standard and shall not anticipate that this Court
will resolve disputes of fact at this juncture. (See Doc. 79 at 2–4 (Defendants attempting to
clarify Plaintiff’s alleged misrepresentation of facts)).
For the reasons stated, Defendants’ Renewed Motion to Quash is DENIED (Doc. 76),
Defendants’ suggestion that the Court convert its Motion is likewise DENIED, and Plaintiff’s
Motion to Strike is DENIED as MOOT (Doc. 80).
Any party may, within fourteen days after this Order is filed, file and serve on the
opposing party a motion for reconsideration by a District Judge. See 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a); Eastern Division Order No. 14-01, pt. IV(C)(3)(a). The motion must
specifically designate the order or part in question and the basis for any objection. Responses to
objections are due fourteen days after objections are filed.
The District Judge, upon
consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or
contrary to law. This order is in full force and effect even if a motion for reconsideration has
been filed unless it is stayed by either the Magistrate Judge or District Judge. S.D. Ohio L.R.
IT IS SO ORDERED.
Date: July 12, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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