Curtis et al v. Progressive Northern Insurance Company

Filing 45

MEMORANDUM OPINION AND ORDER granting 38 Plaintiff's Motion to Compel Compliance with Subpoena. Signed by Honorable Robin J. Cauthron on 06/13/18. (wh)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RACHEL CURTIS, Individually and on
Behalf of Persons Similarly Situated,
Plaintiff,
vs.
PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Defendant.

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No. CIV-17-1076-C

MEMORANDUM OPINION AND ORDER
Now before the Court is Plaintiff’s Motion to Compel Compliance with Subpoena
Directed to Non-Party Mitchell International, Inc. (Dkt. No. 38). Non-party Mitchell
International, Inc., filed Opposition to the Motion to Compel Compliance with Plaintiff’s
Subpoena (Dkt. No. 40). Plaintiff filed a Reply (Dkt. No. 43) and he motion is now at
issue.
I. Background
On March 12, 2018, Plaintiff served non-party Mitchell International, Inc.
(“Mitchell”) with a subpoena duces tecum. Plaintiff requested “certain documents in the
possession of Mitchell related to Defendant as well as documents unrelated to Defendant.”
(Pl.’s Mot., Dkt. No. 38, p. 2.) Specifically, Plaintiff requested documents from Mitchell
pertaining to “the correspondence, purchase, and analysis of the [computer valuation
system]” Mitchell utilized to create valuations of total loss vehicles for Defendant
Progressive Northern Insurance Company. (Id.) Plaintiff served Mitchell through its

Oklahoma registered agent. (Pl’s Mot. Dkt. No. 38, Ex. 1.) On March 23, 2018, Mitchell
served written objections to Plaintiff’s subpoena. (Pl.’s Mot., Dkt. No. 38, Ex. 2.) On
March 27, 2018, Plaintiff corresponded with Mitchell about the objections to the subpoena.
(Pl.’s Mot., Dkt. No. 38, Ex. 3.) On April 3, 2018, counsel conducted a telephone
conference to discuss the subpoena and no resolution was reached. (Pl.’s Mot., Dkt. No.
38, p. 3.) On April 10, 2018, Plaintiff’s counsel requested a Rule 37 conference to discuss
the issue and followed up eight days later. (Id.) On April 26, 2018, counsel again
conducted a telephone conference to discuss the subpoena and reached no resolution. (Id.)
Plaintiff now seeks to compel Mitchell to produce the documents.
II. Standard
Federal district courts enjoy broad discretion over discovery measures. Rule 26
governs the scope of discovery and its proper scope encompasses “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). “[T]he requested information must be nonprivileged,
relevant, and proportional to the needs of the case to be discoverable.” Holick v. Burkhart,
No. 16-1188-JTM-KGG, 2017 WL 3723277 at *3 (D. Kan. August 29, 2017).
Fed. R. Civ. P. 45 provides general guidance for subpoenas issued to nonparties.
Rule 45(c)(2)(A) states:

“A subpoena may command . . . production of documents,

electronically stored information, or tangible things at a place within 100 miles of where
the person resides, is employed, or regularly transacts business in person.” When a court
addresses a motion to compel for “nonparty production based on a Rule 45 subpoena, as
well as applying the standards of Rule 26, courts also consider the burden on the nonparty,
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relevance, the requesting party’s need for the documents, the breadth of the document
request, and the time period covered by the request.” Premier Election Solutions, Inc. v.
Systest Labs Inc., No. 09-cv-01822-WDM-KMT, 2009 WL 3075597 at *3 (D. Colo. Sept.
22, 2009). “While the court has considerable discretion with regard to regulating discovery
which is exchanged in a lawsuit, discovery from third-parties in particular must, under most
circumstances, be closely regulated.” Id.
III. Discussion
Plaintiff argues that her subpoena is valid and enforceable because “a subpoena that
commands a person to travel beyond the 100-mile boundary must be quashed however, a
Court retains discretion to command compliance with a subpoena for documents which
requires production beyond the 100-mile limitation.” (Pl.’s Mot., Dkt. No. 38, p. 7.)
Plaintiff states that “[t]he contractual nature of the relationship between Progressive and
Mitchell, as well [as] the cost-savings incentives marketed to Progressive by Mitchell are
relevant to the claims in this lawsuit . . . concerning the method and manner in which the
system operates in creating values for Progressive’s Oklahoma insureds is the fundamental
basis of Plaintiff’s claims.” (Pl.’s Mot., Dkt. No. 38, pp. 6-7.) Plaintiff bases her argument
on Frick v. Henry Industries, Inc., No. 13 2490-JTM-GEB, 2016 WL 6966971 (D. Kan.
Nov. 29, 2016), which stands for the proposition that if a subpoena does not require the
presence of witnesses and the subpoenaed documents can be produced electronically, then
there is no violation of the 100-mile limitation under Fed. R. Civ. P. 45(c)(2)(A). Id. at *2.
Plaintiff argues that “there is no suggestion that the requested documents could not be
provided electronically or by other agreed-upon means.” (Pl.’s Mot., Dkt. No. 38, p. 7.)
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Mitchell argues that Plaintiff’s subpoena is facially invalid because “this Court lacks
jurisdiction to hear Plaintiff’s Motion.” (Mitchell’s Resp., Dkt. No. 40, p. 6.) Mitchell
argues the Court lacks jurisdiction because Mitchell maintains its headquarters and
principal place of business in San Diego and the subpoena demands compliance in
Shawnee, Oklahoma. (Mitchell’s Resp., Dkt. No. 40, p. 6.) Mitchell relies on the location
the electronic documents are to be produced as dispositive of this issue and grounds for
this Court denying the instant subpoena. (Mitchell’s Resp., Dkt. No. 40, p. 8-9.)
Here, Plaintiff states—and Mitchell does not dispute—that the information
requested can be produced electronically. Mitchell has an Oklahoma registered agent and
Progressive Northern Insurance Company continues to use the valuation system licensed
and provided by Mitchell in Oklahoma to conduct business. As a result, Mitchell regularly
transacts business in Oklahoma. The subpoena at issue does not require the travel or
attendance of any witnesses and Plaintiff is requesting the production of electronic
documents. This Court finds that there is no violation of the 100-mile limitation for
electronic documents pertaining to Rule 54.
IV. Conclusion
Accordingly, Plaintiff’s Motion to Compel Compliance with Subpoena Directed to
Non-Party Mitchell International, Inc. (Dkt. No. 38) is GRANTED.
IT IS SO ORDERED this 13th day of June, 2018.

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