Morrison v. Chartis Property and Casualty Company
Filing
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OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 69 Motion to Quash (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
NANCY MORRISON,
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Plaintiff,
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v.
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CHARTIS PROPERTY CASUALTY )
COMPANY,
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Defendant.
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Case No. 13-CV-116-JED-PJC
OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Quash Defendant’s Subpoena
Duces Tecum to Cheryl Mann and Safeco Insurance Company (“Safeco”). [Dkt.
No. 69]. This is a lawsuit over the handling of an uninsured/under-insured
motorist claim. The case was filed in February 2013 [Dkt. No. 1], and since then,
there have been four Scheduling Orders. [Dkt. Nos. 15, 21, 37 & 56]. A request
for a fifth Scheduling Order was recently denied. [Dkt. No. 71].
On September 5, 2014 – the day that discovery closed, pursuant to the
Third Amended Scheduling Order – Defendant Chartis Property Casualty
Company (“Chartis”) served Plaintiff with its Notice of Subpoena Duces Tecum.
The subpoena commanded Cheryl Mann of Safeco to produce certain records
on or before September 19, 2014. [Dkt. No. 69-1].
Plaintiff contends that the subpoena is untimely and should be quashed.
Plaintiff is correct; therefore, the Motion to Quash is GRANTED.
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DISCUSSION
A subpoena duces tecum issued to a third party is “discovery” within the
meaning of the Federal Rules of Civil Procedure. Rice v. U.S., 164 F.R.D. 556,
556-57 (N.D.Okla. 1995). Thus, discovery conducted pursuant to a Rule 45
subpoena, must be concluded by the deadline specified in the Court’s
Scheduling Order. Grant v. Otis Elevator Co., 199 F.R.D. 673, 675 (N.D.Okla.
2001); Rice, 164 F.R.D. at 558. In this case, that means compliance with the
subpoenas must have occurred before September 5, 2014. Issuing a subpoena on
the day discovery closes means that production pursuant to the subpoena and
resolution of any issues involving the subpoena will necessarily occur after the
discovery deadline.
Chartis contends that Plaintiff does not have standing to challenge an
untimely subpoena served on a third party. [Dkt. No. 75, at 2-4]. Generally,
absent a claim of privilege, personal interest or proprietary interest, a party lacks
standing to challenge a subpoena served on a third party. Howard v. Segway,
2012 WL 2923230, *2 (N.D.Okla. July 18, 2012); Herff Jones, Inc. v. Oklahoma
Graduate Svcs., Inc., 2007 WL 2344705, *3 n.4 (W.D.Okla. Aug. 15, 2007); Johnson
v. Gmeinder, 191q F.R.D. 638, 640 n.2 (D.Kan. 2000); Langford v. Chrysler Motors
Corp., 513 F.2d 1121, 1126 (2d Cir. 1975). Some courts have construed a Motion
to Quash for untimeliness as a Motion for Protective Order and conducted their
analysis in accordance with Rule 26(c)(1). E.g., Joseph v. Linehaul Logistics, Inc.,
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2012 WL 3779202, *4 (D.Mont. 2012). However, the moving party still must
meet the standards for issuance of a protective order. Galloway v. Islands
Mechanical Contractor, Inc., 2013 WL 163985, *4 (D.V.I. Jan. 14, 2013).
Regardless of a Rule 26 analysis, the standing issue is not dispositive
because it is well-recognized that courts have inherent power to quash an
untimely subpoena as part of their authority to control litigation before them.
See, Galloway v. Islands Mechanical Contractor, Inc., 2013 WL 163985, *4 (D.V.I.
Jan. 14, 2013); Peterbilt of Great Bend, LLC v. Doonan, 2006 WL 3193371, *2
(D.Kan. Nov. 1, 2006); Revander v. Denman, 2004 WL 97693, *1 (S.D.N.Y. 2004).
In addition, Chartis contends that Plaintiff similarly violated the Court’s
Scheduling Order by issuing belated subpoenas. [Dkt. No. 75, at 5-6]. But the
question of Plaintiff’s subpoenas was never brought before the Court, and, in any
event, does not justify the belated subpoenas that are the subject of the pending
motion.
Chartis also contends that it served its subpoenas as soon as practicable.
That contention is not convincing given the amount of time that the parties
have had to complete discovery. The Court set an initial discovery deadline in
this case of November 2013 [Dkt. No. 15]. The deadline was extended to
February 2014 [Dkt. No. 21], extended again to May 2014 [Dkt. No. 37], and
finally extended to September 2014 [Dkt. No. 56]. Chartis has not offered a
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convincing explanation as to why discovery could not be completed in that time
period.
The subpoena at issue here violates the Court’s Third Amended
Scheduling Order because it seeks to conduct discovery beyond the deadline
established therein. Therefore, the subpoena should be quashed. This imposes
no injustice upon Defendant. The parties have had 18 months, and multiple
schedule extensions, within which to gather whatever information is necessary
for this case.
ACCORDINGLY, Plaintiff’s Motion to Quash is GRANTED.
DATED this 20th day of October 2014.
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