DVM MANUFACTURING, LLC v. GALLAGHER et al

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 8/8/2017. 8/8/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DVM MANUFACTURING, LLC.
CIVIL ACTION
v.
NO. 16-6369
GALLAGHER, ET AL.

MEMORANDUM
SURRICK,J.

AUGUST

<l ~17

Presently before the Court is Plaintiffs Motion to Quash the Subpoena served on
nonparty, WM Group Engineers, P.C. ("WM"). (ECF No. 18.) For the following reasons,
Plaintiffs Motion to Quash will be denied.

I.

BACKGROUND
Plaintiff DVM Manufacturing, LLC ("DVM") alleges that Defendant Bernard Gallagher

improperly accessed and destroyed documents on Plaintiffs email server, in violation of the
Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Defendants served a subpoena on WM ("the
Subpoena"), a nonparty, seeking to obtain documents related to Plaintiffs allegations. 1
Specifically, the Subpoena requested that WM produce documents relating to: (1) Plaintiffs
allegations that Defendant unlawfully accessed Plaintiffs computer system; (2) WM's business
relationship with Plaintiff, as it relates to Defendants; and (3) meetings between Plaintiff, WM,
and Defendants, as they relate to Defendants' allegedly unlawful actions. (Pl.'s Mot. Quash, Ex.
A, ECF No. 18.) On July 10, 2017, Plaintiff filed the instant Motion to Quash. Defendants filed
a Response in Opposition to Plaintiffs Motion on July 24, 2017. (Defs.' Resp., ECF No. 20.)

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Defendants include Bernard Gallagher and PVI CM, Inc.

II.

LEGALSTANDARD
Federal Rule of Civil Procedure 45 establishes the rules for subpoenas served upon

individuals and entities that are not parties to the underlying lawsuit. See Fed. R. Civ. P. 45.
When a nonparty receives a subpoena to which it objects, it has several options, including: file a
motion to quash or modify the subpoena pursuant to Rule 45(d)(3), or seek a protective order
pursuant to Rule 26(c). See, e.g., Frank Brunckhorst Co. v. Ihm, No. 12-0217, 2012 WL
4963757, at *5 (E.D. Pa. Oct. 18, 2012) (citing Micro Motion, Inc. v. Kane Steel Co., Inc., 894
F.2d 1318, 1322-23 (Fed. Cir. 1990) (outlining options nonparties have when objecting to a
subpoena)).
"A subpoena under Rule 45 must fall within the scope of proper discovery under Fed. R.
Civ. P. 26(b)(l)." First Seaford Sur. v. Durkin & Devries Ins. Agency, 918 F. Supp. 2d 362, 382
(E.D. Pa. 2013) (citation and internal quotation marks omitted). If the subpoena is within the
general scope of discovery, then the burden shifts to the party opposing the subpoena to establish
that Rule 45(d)(3) provides a basis to quash the subpoena. See In re Domestic Drywall Antitrust

Litig., 300 F.R.D. 234, 239 (E.D. Pa. 2014). Courts are required to quash or modify a subpoena
that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule
45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or
waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A).

III.

DISCUSSION
Plaintiff argues that the Subpoena should be quashed because it: ( 1) threatens

unreasonable annoyance, embarrassment, oppression, burden or expense to WM; (2) was served
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in bad faith; (3) may potentially damage Plaintiffs business relationship with WM; (4) is overly
broad and irrelevant to Plaintiffs claims; and (5) seeks private and confidential documents.
(PL 's Mot. Quash 1-2.) Defendants respond that Plaintiff does not have standing to object to the
Subpoena because the Subpoena is directed towards WM, a nonparty. Defendants further argue
that even if Plaintiff had standing, Plaintiffs Motion should nevertheless be denied because the
parties have already stipulated to a Confidentiality Order, and the Subpoena is not unreasonably
burdensome.

A.

Standing

Defendants argue that Plaintiff lacks standing to quash the Subpoena served on nonparty,
WM. In general, "a party does not have standing to quash a subpoena served on a third party."
Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (citations omitted). "There is

an exception, however, when the party claims some personal right or privilege in respect to the
subject matter of the subpoena." Green v. Cosby, 216 F. Supp. 3d 560, 563-64 (E.D. Pa. 2016)
(citation and internal quotation marks omitted); see also First Seaford, 918 F. Supp. 2d at 382
(noting that a party does not have standing to object to a subpoena served on a nonparty absent a
showing that the party has a personal right or privilege); In re Actiq Sales & Mktg. Practices
Litig., No. 07-4492, 2011 WL 5509434, at *2 (W.D. Pa. Nov. 10, 2011) ("It is clear that, as a

general rule, a party has no standing to seek to quash a subpoena directed to a nonparty. But an
exception exists where the party-movant can demonstrate a claim of privilege or personal right."
(internal citations and quotation marks omitted)). "[T]he mere fact that a third-party subpoena
seeks information about a party's conduct would likely not suffice to give that party a 'personal
interest' in the subject matter of the subpoena." Green, 216 F. Supp. 3d at 564. "This exception
typically does not apply to motions to quash premised on an 'undue burden' theory." Malibu

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Media, LLC v. Doe, No. 15-2281, 2016 WL 524248, at *2 (M.D. Pa. Feb. 10, 2016) (citations
omitted).
Plaintiff has not demonstrated that it has a privilege or personal right to the information
sought in the Subpoena. To the contrary, Plaintiff states that it is "searching its records to
confirm whether the information sought in the Subpoena is subject to a mutual non-disclosure
agreement between it and WM," and argues that it ''potentially maintains a personal right or
privilege with respect to the subject matter of the Subpoena." (Pl.'s Mot. Quash 2 (emphasis
added).) This is not sufficient to establish standing.
First, Plaintiff does not assert that it has a personal right or privilege in the subject matter,
and instead raises the possibility of such a right. Second, the Subpoena very specifically does not
"seek[] the production of any privileged documents or communications." (Pl.' s Mot. Quash, Ex.
A, 5.) Therefore, in the event that WM is in possession of privileged information between itself
and Plaintiff, WM is not required to produce such documents. Third, the parties have already
stipulated to a protective order, which serves to protect the respective parties from the release of
"non-public information that could significantly compromise, jeopardize and/or negatively
impact the producing party's competitive business interests." (Protective Order, ECF No. 15.)
In the event that WM produces documents that Plaintiff deems confidential, Plaintiff mayaccording to the stipulation-designate the documents as "HIGHLY CONFIDENTIAL" and
notify the other parties of this designation. (Id. at 2.) Accordingly, we find that Plaintiff has not
established that it has standing to quash the Subpoena served on WM, a nonparty.

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B.

Unreasonable Burden

Rule 45(c)(3)(A) authorizes a court to quash or modify a subpoena if it subjects a person
or entity to an undue burden. Plaintiff contends that the Subpoena "threatens unreasonable
annoyance, embarrassment, oppression, burden or expense to WM." (Pl.' s Mot. Quash 1.) A
party does not have standing to quash a subpoena served on a nonparty simply because the
subpoena is unreasonably burdensome. See Malibu Media, LLC v. Doe, No. 15-8252, 2016 WL
3876425, at *4 (D.N.J. July 14, 2016) ("A party does not generally have standing to challenge a
third party subpoena based on undue burden because the subpoena is directed at the [third party]
and not the defendant.") (citation omitted); Third Degree Films, Inc. v. Does 1-118, No. 1103006, 2011 WL 6837774, at *3 (D. Md. Dec. 28, 2011) ("Defendants' argument that the
subpoena presents an undue burden is unavailing because the subpoena is directed toward the
[nonparty] and not the [] Defendants and accordingly does not require them to produce any
information or otherwise respond.").
Even if Plaintiff could establish standing, we would nevertheless find that the Subpoena
is not unreasonably burdensome. "[A] District Court may quash or modify a subpoena if it finds
that the movant has met its heavy burden of establishing that compliance with the subpoena
would be 'unreasonable and oppressive."' Composition Roofers Union Local 30 Welfare Tr.
Fundv. Graveley Roofing Enters., Inc., 160 F.R.D. 70, 72 (E.D. Pa. 1995) (citation omitted)
(emphasis added); see also First Sealord, 918 F. Supp. 2d at 383 ("This burden is particularly
heavy to support a motion to quash as contrasted to some more limited protection such as a
protective order.") (citation and internal quotation marks omitted); Frank Brunckhorst Co. v.
Ihm, No. 12-0217, 2012 WL 5250399, at *4 (E.D. Pa. Oct. 23, 2012) ("In considering a motion
to quash or modify a subpoena, a court may [] grant such a motion if it finds that the movant has

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met the heavy burden of establishing that compliance with the subpoena would be unreasonable
and oppressive." (citation omitted)). In order for a court to determine that a subpoena is unduly
burdensome, the "person seeking to quash [the] subpoena ... bears the burden of proving that it
is unreasonable or oppressive." SLB Enter., LLC v. AG/ Corp., No. 11-259, 2011 WL 6134542,
at *1 (E.D. Pa. Dec. 8, 2011). Here, Plaintiff has provided absolutely no reason or support to
demonstrate that the Subpoena is unreasonably burdensome. Plaintiff has not met the heavy
burden of establishing that WM' s compliance with the Subpoena would be unreasonable or
oppressive to Plaintiff. Accordingly, even if Plaintiff had standing to quash the Subpoena,
Plaintiffs Motion would nevertheless be denied.

IV.

CONCLUSION
For the foregoing reasons, Plaintiffs Motion to Quash will be denied. An appropriate

Order follows.

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