Sherrill v. D I O Transport Inc et al
Filing
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ORDER granting in part and denying in part 45 Motion to Quash Signed by Honorable David C Norton on November 18, 2016.(span, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ANTHONY SHERRILL,
Plaintiff,
vs.
DIO TRANSPORT, INC., JARACAR
TRANSPORT, INC., AND JAMES R.
CARDENAS, Jointly and Severally,
Defendants.
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No. 2:15-cv-02838-DCN
ORDER
This matter is before the court on Plaintiff Anthony Sherrill’s (“Sherrill”) counsel
Francis V. McCann’s (“McCann”) motion to quash defendants’ subpoena duces tecum,
ECF No. 45. For the reasons set forth below, the court denies the motion to quash to the
extent that it does not include documents covered by the work-product doctrine and
grants the motion to quash to the extent that it includes documents covered by the workproduct doctrine.
I. BACKGROUND
The instant matter arises out of a motor vehicle collision that occurred on
February 17, 2015 in Colleton County, South Carolina. Sherrill was waiting to make a
left turn when he was allegedly struck from behind by defendant James T. Cardenas, who
was driving his tractor-trailer truck at an excessively high rate of speed. Am. Compl.
¶ 10. Cardenas’s tractor-trailer truck was owned by defendants DIO Transport and
Jaracar Transport, Inc (collectively “defendants”). Am. Compl. ¶ 11. Sherrill filed his
initial complaint in this matter on July 20, 2015, ECF No. 1, and amended it on May 20,
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2016. Defendants answered the complaint and served seven written discovery requests
on Sherrill, to which Sherrill responded on March 14, 2016. Pl.’s Mot. 1. On October
10, 2016, defendants served McCann with a subpoena duces tecum requesting, among
other things, “all written, printed and digital documents and materials not protected by
attorney-client privilege regarding representation of Anthony Sherrill . . . in claims for
personal injuries and property damage from January 1, 2000 to present.” Pl.’s Mot., Ex.
1 at 3.
McCann filed the instant motion to quash the subpoena deuces tecum in its
entirety on October 20, 2016. ECF No. 45. Defendants filed a response on November 7,
2016. ECF No. 49. McCann filed a reply on November 8, 2016. ECF No. 50. The
matter has been fully briefed and is ripe for the court’s review.
II. STANDARD
A.
Scope of Discovery
“Discovery under the Federal Rules of Civil Procedure is broad in scope and
freely permitted.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334
F.3d 390, 402 (4th Cir. 2003). Federal district courts are vested with broad discretion in
resolving discovery disputes and deciding whether to grant or deny a motion to compel.
Erdmann v. Preferred Research, Inc. of Ga., 852 F.2d 788, 792 (4th Cir. 1988). Federal
Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense – including the
existence, description, nature, custody, condition, and location of any documents or other
tangible things and the identity and location of persons who know of any discoverable
matter.”
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B.
Rule 45 Subpoena Duces Tecum
Under Federal Rule of Civil Procedure 45, a party may serve a subpoena for the
production of discoverable material on a non-party to the litigation; in turn, the nonparty
may contest the subpoena. The scope of discovery for a nonparty litigant under a
subpoena duces tecum issued pursuant to Rule 45 is the same as the scope of a discovery
request made upon a party to the action under Rule 26. Castle v. Jallah, 142 F.R.D. 618,
620 (E.D. Va. 1992). “[T]he burden of proof is with the party objecting to the discovery
to establish that the challenged production should not be permitted.” HDSherer LLC v.
Nat. Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). Rule 45 governs
demands upon nonparties for the production of persons or materials, and a subpoena
issued under this rule may command a nonparty to “produce designated documents,
electronically stored information, or tangible things in that person's possession.” Fed. R.
Civ. P. 45(a)(1)(A)(iii). A party or attorney issuing and serving a subpoena “must take
reasonable steps to avoid imposing undue burden or expense on a person subject to the
subpoena,” and the district court “must enforce this duty and impose an appropriate
sanction . . . on a party or attorney who fails to comply.” Fed. R. Civ. P. 45(d)(1); see
HDSherer, 292 F.R.D. at 308 (stating a subpoena imposes an undue burden if it is
overbroad). If a nonparty timely objects to a subpoena, a party may file a motion to
compel production of the requested materials. Fed. R. Civ. P. 45(d)(2)(B). Upon the
filing of a motion to compel, the district court may order the nonparty to comply with the
subpoena, though in doing so the court must protect a nonparty “from significant expense
resulting from compliance.” Id. A nonparty who seeks to withhold subpoenaed
information on the basis that it is privileged must (1) expressly assert the claimed
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privileged and (2) describe the nature of the withheld information “in a manner that,
without revealing information itself privileged or protected, will enable the parties to
assess the claim.” Fed. R. Civ. P. 45(e)(2)(A).
III. DISCUSSION
McCann moves to quash the subpoena as (1) unduly burdensome, seeking
information outside the scope of discovery, and unreasonably cumulative and duplicative
and (2) seeking information that is protected by the work-product doctrine.1 Pl.’s Mot.
2–5. In his reply, McCann raises the new argument that defendants are using Rule 45 as
a way to circumvent the 30-day deadline for discovery in Rule 34. The court addresses
each of these contentions in turn.
1.
Unduly Burdensome, Seeks Information Outside the Scope of
Discovery, and Unreasonably Cumulative and Duplicative
McCann argues that defendant’s subpoena falls outside the scope of discovery
because it seeks “all non-privileged information in McCann’s possession regarding its
representation of [Sherrill] for personal injuries or property damage for [sixteen] years,
[fifteen] of which are prior to the collision that is the subject of this litigation.” Pl.’s Mot.
3.
Courts have found it persuasive that a discovery request reaches beyond the
subject litigation in granting motions to quash. In In re Subpoena Duces Tecum to AOL,
LLC, 550 F. Supp. 2d 606, 612 (E.D. Va. 2008), the court determined a subpoena
imposed an undue burden by being “overbroad” because it requested “all” emails over a
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McCann also asserts the attorney-client privilege, but since the defendants’ subpoena
already excludes those documents and materials protected by attorney-client privilege,
the court does not analyze this superfluous defense.
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six-week period, which included emails containing privileged and personal information
unrelated to the subject litigation. In contrast, the request here is more targeted.
Defendants request materials regarding representation of Sherrill “in claims for personal
injuries or property damage from January 1, 2000 to present, including but not limited to
claims arising out of motor vehicle accidents on January 16, 2013, September 29, 2014,
and July 27, 2015.” Pl.’s Mot, Ex. 1 at 2. Information about Sherrill’s past injury claims
may be relevant to the motor vehicle collision at issue in the present case.
McCann also asserts that the subpoena is overbroad because it requests
information regarding his representation of Sherrill over a sixteen year timespan. In
support of this argument, McCann cites Schaaf v. SmithKline Beecham Corp., 233
F.R.D. 451, 454 (E.D.N.C. 2005), where the court quashed a subpoena that sought all
documents created over a ten year period on the grounds that it was “facially overbroad
and unduly burdensome” because a “large quantity of the documents sought have no
connection to anything involved in this case.” However, the subpoena at hand is
distinguishable from that in Schaaf because it asks for documents related to McCann’s
representation of Sherrill in “claims for personal injuries or property damages” as
opposed to the subpoena asking for “all” documents in Schaaf. Therefore, the court finds
that the discovery request is not overbroad.2
McCann also asserts that the subpoena is duplicative and cumulative. Pl.’s Mot.
4. However, the court finds persuasive defendants’ argument that the previous discovery
has not explored the information contained in the requested records. McCann argues that
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It is the court’s understanding that although defendant’s subpoena covers 16 years of
documents, the defendants are only seeking the portions of McCann’s files pertaining to
the motor vehicle accident of 1/16/13, 9/29/14, and 7/27/15.
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subsequent to the written discovery, defendants already received records from Sherrill’s
medical providers and deposed Sherrill under oath, wherein he “testified as to those
documents provided in the course of discovery and answered [d]efendants’ questions
specific to the information requested in [d]efendants’ subpoena.” Id. at 6. However,
although Sherrill acknowledged that McCann had been his lawyer for “years” he
“[didn’t] remember all of them.” Defs.’ Resp., Ex. 1 at 2. The subpoena could produce
new information about McCann’s representation of Sherrill that defendants would not be
able to otherwise establish and so is not duplicative and cumulative.
Finally, McCann asserts that producing the subpoenaed information is unduly
burdensome. Pl.’s Mot. 4. A subpoena imposes an undue burden where it is
“overbroad.” In re Subpoena Duces Tecum, 550 F. Supp. 2d at 612. This subpoena asks
not for “documents compiled over the course of sixteen years of practice with countless
clients” as McCann argues, Pl.’s Mot. 4, but for documents related to McCann’s
representation of Sherrill in any “personal injury or property damage” matters. This
request is not unduly burdensome, but in recognition of the cumbersome process of
locating, identifying, and culling documents associated with his representation of Sherrill
the court grants McCann an extension of time until December 31, 2016 to respond to the
subpoena. The court also rules that McCann will be reimbursed by defendants for all
costs involved in responding to the subpoena.
Defendants argue that even if McCann’s objections had merit, he has not met his
burden of proving that the challenged production should not be permitted. Defs.’ Repl. 4.
The burden of proof is with the party objecting to the discovery to establish that the
challenged production should not be permitted. See Finley v. Trent, 955 F.Supp. 642,
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648 (N.D. W. Va. 1997) (citing Castle v. Jallah, 142 F.R.D. 618, 620 (E.D.Va.1992)).
Because the court finds that McCann’s objections do not have merit, it is unnecessary to
address the burden of proof argument.
2.
Work-Product Doctrine
McCann argues that defendants’ subpoena should be quashed to the extent it
seeks documents or materials protected by the work-product doctrine. Pl.’s Mot. 5.
Without a showing by defendants of a “substantial need” for the documents requested
and an inability to obtain the substantial equivalent by other means, McCann argues that
the documents requested by defendants are not discoverable. Id.
The work-product doctrine protects an attorney’s work done in anticipation of
litigation. Solis v. Food Employers Labor Relations Ass’n, 644 F.3d 221, 231 (4th Cir.
2011). The doctrine is based on the principle that “[n]ot even the most liberal of
discovery theories can justify unwarranted inquiries into the files and the mental
impressions of an attorney.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). Work
product can be fact work product or opinion work product. In re Allen, 106 F.3d 582,
607 (4th Cir. 1997). Fact work product consists of materials prepared by an attorney that
do not contain the fruit of his mental processes, while opinion work product contains an
attorney’s mental impressions, conclusions, opinions, or legal theories. In re Grand Jury
Proceedings #5, 401 F.3d 247, 250 (4th Cir. 2005). Fact work product is entitled to
qualified immunity and “is discoverable upon a showing of both a substantial need and an
inability to secure the substantial equivalent of the materials by alternate means without
undue hardship.” Allen, 106 F.3d at 607 (internal quotation marks omitted). Opinion
work product, however, “can be discovered only in very rare and extraordinary
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circumstances.” Id. The party invoking the protection of the work-product doctrine
bears the burden of demonstrating its applicability. Solis, 644 F.3d at 232.
McCann argues that since he is active counsel representing Sherrill in the
litigation at hand, the documents requested are covered under the work-product doctrine.
Pl.’s Mot. 5. Defendants’ reply states that “[t]he subpoena specifically excludes material
affected by attorney-client privilege” but fails to address materials protected by the workproduct doctrine. To the extent that defendants conflate the attorney-client privilege and
the work-product doctrine in the reply, this is an incorrect legal analysis as the two
privileges are separate. There is no indication from the briefing of the percentage of
documents that may be privileged. Further, any privileged documents could be
adequately addressed by a privilege log and thus are not a basis to quash the subpoena
entirely. The court grants McCann’s motion to quash to the extent that it includes any
documents covered by the work-product doctrine.
3.
Rule 45 as a Circumvention of the 30-day Discovery Deadline of
Rule 34
McCann raises a new argument in support of his motion to quash in his reply,
arguing that defendants are trying to circumvent the discovery deadline by requesting that
the documents be produced pursuant to Rule 45 instead of Rule 34. Pl.’s Reply 1.
McCann rests exclusively on this court’s ruling in Layman v. Junior Players Golf Acad.,
Inc., 314 F.R.D. 379 (D.S.C. 2016) to argue that it is proper to use FRCP 34 and not
FRCP 45 when requesting discovery from a party.
“The leading treatises agree that although Rule 45 may apply to both parties and
nonparties, resort to Rule 45 should not be allowed when it circumvents the requirements
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and protections of Rule 34 for the production of documents belonging to a party.” Stokes
v. Xerox Corp., 2006 WL 6686584, at *3 (E.D.Mich. Oct. 5, 2006). “If documents are
available from a party, it has been thought preferable to have them obtained pursuant to
Rule 34 rather than subpoenaing them from a nonparty witness.” 8A Charles Alan
Wright, et al., Federal Practice and Procedure § 2204 at 365 (2nd ed. 1994).
In Layman, the court found that because the plaintiff “could have obtained” the
documents from the defendant pursuant to the procedures outlined in Rule 34 that the
subpoena of the non-party was an “attempt to circumvent [Rule] 34.” Layman, 314
F.R.D. at 386. Here, defendants could not have obtained the necessary documents
involving McCann’s representation of Sherrill from Sherrill himself, the party to the
action. Therefore, the court finds Layman distinguishable and holds that defendants are
not trying to circumvent the discovery deadline by requesting the documents under Rule
45.
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IV. CONCLUSION
For the reasons set forth above, the court DENIES the motion to quash to the
extent that it does not include documents covered by the work-product doctrine and
GRANTS the motion to quash to the extent that it includes documents covered by the
work-product doctrine. The court grants McCann an extension of time until December
31, 2016 to respond to the subpoena. The court instructs defendants to reimburse
McCann for all costs involved in responding to the subpoena.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
November 18, 2016
Charleston, South Carolina
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