Alston et al v. Directv Inc et al

Filing 144

ORDER AND OPINION granting 70 Motion to enforce the two subpoenas. Gustech and its representatives are DIRECTED to comply with the subpoenas on or before May 17, 2017, to the extent set forth in this order. Signed by Honorable J Michelle Childs on 5/3/2017.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
James Alston, et al.,

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Plaintiffs,
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v.
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DIRECTV, Inc., DIRECTV, LLC, and
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MasTec North America, Inc.,
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Defendants.
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____________________________________)

Civil Action No.: 3:14-cv-04093-JMC

ORDER

Plaintiff James Alston and the 13 other named Plaintiffs remaining in this action, including
Alan Ryman (together, “Plaintiffs”), filed suit against Defendants DIRECTV, Inc., DIRECTV,
LLC (together, “DIRECTV”), and MasTec North America, Inc. (“MasTec”) (collectively,
“Defendants”), alleging that Defendants employed Plaintiffs, that Defendants violated provisions
of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and that Plaintiffs are therefore
entitled to damages under the FLSA. (See ECF No. 1.) As relevant here, Ryman has alleged that
he was engaged in employment with DIRECTV through Gustech Communications, LLC, Inc.
(“Gustech”), a subcontractor of MasTec, located in South Carolina. (See ECF No. 125 at 65; ECF
Nos. 70, 70-1, 70-2, 70-3, 70-4.)
A similar FLSA action, Buttita v. DIRECTV, LLC, No. 3:14-cv-00566-MCR-EMT, is
pending in the U.S. District Court for the Northern District of Florida. (See ECF No. 70 at 1; see
also ECF Nos. 70-1, 70-2.) Plaintiffs aver that several of the named plaintiffs in Buttita have also
alleged that they engaged in employment with DIRECTV through Gustech. (See ECF No. 70 at
2.) Gustech is not a party to either the instant action or the Buttita action.

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In the instant action, Plaintiffs served two subpoenas to Gustech on October 8, 2015. (See
ECF Nos. 70-3, 70-4.) The first, a subpoena duces tecum issued to one of Gustech’s officers,
Gustavo Santamaria, commanded the production of documents relating to Ryman’s work at
Gustech and to Gustech’s relationship with Defendants by October 23, 2015. (See id. at 5, 11-13.)
The second, a subpoena ad testificandum issued to Gustech’s owner, commanded the owner’s
appearance for a deposition relating to the same information. (See id. at 8, 11-13.) On October 5,
2015, the plaintiffs in the Buttita action also served two subpoenas that, aside from relating to the
Buttita plaintiffs rather than Ryman, are nearly identical to the two issued in the instant action.1
(See ECF Nos. 70-1, 70-2.) The subpoena duces tecum in the Buttita action commanded the
production of documents by October 26, 2015. 2 (See ECF No. 70-1 at 5, 13.)
On September 2, 2016, Plaintiffs filed the instant motion to enforce subpoenas issued to
Gustech, specifically asking the court for “an order compelling production of weekly pay
documents requested in two subpoenas to Gustech.” (ECF No. 70 at 1.) As the court understands
it, Plaintiffs seek an order compelling compliance only with the two subpoenas duces tecum and
not the two subpoenas ad testificandum. (See id. at 2 (“The subpoenas in both cases seek copies of
any records of methods and amounts of weekly pay for specific plaintiff technicians affiliated with
Gustech.”); id. at 3 (referencing one subpoena in Buttita and one subpoena in the instant action
that require the production of documents).) Plaintiffs explain that they “voluntarily limit their
original document requests . . . to only copies of any records of methods and amounts of weekly

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In the instant motion, Plaintiffs first assert that the Buttita plaintiffs served the subpoenas on
Gustech on October 8, 2015 (see ECF No. 70 at 3), and then later assert that service was effected
on September 25, 2016 (presumably, the year is intended to be 2015) (see id. at 5). It is clear,
however, that the subpoenas were served on October 5, 2015. (See ECF No. 70-2 at 1, 3.)
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In reality, the subpoena provided two different deadlines for compliance, one on October 25,
2015, and another on October 26, 2015. (See ECF No. 70-1 at 5, 13.)
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pay to [the Buttita plaintiffs who were engaged with Gustech] and Alan Ryman.” (Id. at 4.)
Plaintiffs argue that Ryman and the Buttita plaintiffs “must be able to prove what they were paid
on a weekly basis” to proceed on their FLSA claims, that Gustech is “the entity in the best place
to produce . . . documents” relating to their weekly pay, and thus that are relevant and proportional
to the needs of their cases. (Id. at 4-5 (citing Fed. R. Civ. P. 26(b)(1)).)
Although Plaintiffs aver that Gustech has not served any objection to the subpoena issued
in the instant action, they admit that, on October 19, 2015, a pro se representative of Gustech
served on the Buttita plaintiffs a written objections to the subpoena issued in that case. (See id. at
3, 5.) Plaintiffs state that they attached the written objection to the subpoena as an exhibit to the
instant motion (see id.); however, they appear to have erroneously attached another copy of the
motion rather than Gustech’s written objection (see ECF No. 70-5). Plaintiffs argue that, because
Gustech did not serve any objection to the subpoena issued in the instant action and untimely
served its objection to the subpoena issued in the Buttita action, Gustech has waived objection and
should be compelled to comply with the subpoenas. (See ECF No. 70 at 5.)
Importantly, although the instant motion was served on Gustech (see id. at 6), Gustech has
not filed a response opposing the motion.
A party to litigation may issue a subpoena for the production of discoverable material to a
non-party to the litigation. See Fed. R. Civ. P. 45. 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. See Castle v. Jallah, 142 F.R.D. 618, 620
(E.D. Va. 1992). In other words, the scope of discovery allowed under a Rule 45 subpoena is
equivalent to the scope of discovery allowed under Rule 26. HDSherer LLC v. Nat’l Molecular
Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013).

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Rule 45 allows persons subject to subpoenas duces tecum to object to production. See Fed.
R. Civ. P. 45(d)(2)(B). This objection must be written and served on the issuing party within
fourteen days after the subpoena is served or the time specified for compliance with the subpoena,
whichever is earlier. See id. “A failure to object within the fourteen-day period usually results in
waiver of the contested issue.” 9A Charles Alan Wright et al., Federal Practice and Procedure §
2463 (3d ed. 2016).
If a non-party timely objects to a subpoena, the issuing party may file a motion to compel
production of the requested materials in the court for the district where compliance is required.
Fed. R. Civ. P. 45(d)(2)(B). Upon the filing of a motion to compel, the district court may order the
non-party to comply with the subpoena, though in doing so the court must protect the non-party
“from significant expense resulting from compliance.” Id. “[T]he burden of proof is with the party
objecting to the discovery to establish that the challenged production should not be permitted.”
HDSherer, 292 F.R.D. at 308.
As a preliminary matter, the court must reject the ground Plaintiffs offer for compelling
Gustech’s compliance with the two subpoenas. Plaintiffs assert that Gustech failed to serve an
objection on them for the subpoena in the instant action and served only an untimely objection for
the subpoena in the Buttita action and that, therefore, Gustech has waived any grounds for
contesting compliance with the subpoenas. The court is unable to agree with this assertion. With
respect to the Buttita action, Plaintiffs served the subpoena on October 5, 2015, and admit that
Gustech served an objection to it on October 19, 2015, within the 14-day period allotted in Rule
45(d)(2)(B). Because the deadline set for compliance with the subpoena was later than the date
that the 14-day period expired, Gustech’s objection was timely served. See Fed. R. Civ. P.
45(d)(2)(B).

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With respect to the instant action, Plaintiffs assert that Gustech did not serve any objection
to the subpoena they served on October 8, 2015. However, Plaintiffs admit that, after Gustech
received the subpoena in the instant action, Gustech served a pro se objection to the nearly identical
subpoena issued in the Buttita action. Cognizant of the court’s duty to liberally construe pro se
filings, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and of the fact that the
objection Gustech served has not been provided as an exhibit, the court is unable to conclude that
the objection Gustech served did not operate as an objection to the subpoena issued in the instant
case as well as the subpoena issued in the Buttita action, especially when the only basis for finding
that Gustech did not object to the subpoena issued in the instant action is Plaintiffs’ averment to
that effect in their brief, see Miles v. Salvation Army, No. 1:12-cv-00176-JMC, 2013 WL 3762899,
at *2 n.5 (D.S.C. July 16, 2013) (attorney argument is not evidence); Midland Mortg. Corp. v.
Wells Fargo Bank, N.A., 926 F. Supp. 2d 780, 793 (D.S.C. 2013) (same). Assuming, as the court
believes it should, that Gustech’s October 19, 2015 objection applied to the subpoena issued in the
instant case, then it was timely served.
Although the court cannot grant the instant motion on the ground asserted by Plaintiffs, the
court concludes that it is appropriate to grant the motion on a different ground. Despite being
apprised of the instant motion, Gustech has failed to file a response opposing it or to otherwise
clarify what its objections to the subpoenas might be. The failure to respond is dispositive here
because Gustech bears the burden of establishing that the subpoena should not be enforced. When,
as here, the burden of persuasion rests on a non-movant, the failure to respond to a motion
generally will result in a failure to meet that burden. Moreover, the court concludes that Plaintiffs
have demonstrated that the production they request is highly relevant to the two actions, and,
because they have volunteered to limit the scope of the subpoena to copies of any records of

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methods and amounts of weekly pay, Plaintiffs have further demonstrated that such discovery is
proportional to the needs of the case and that compliance will not result in significant expense to
Gustech.
Accordingly, Plaintiffs’ motion to enforce the two subpoenas at issue is GRANTED.
Gustech and its representatives are DIRECTED to comply with the subpoenas on or before May
17, 2017, to the extent set forth in this order.
IT IS SO ORDERED.

United States District Court Judge
May 3, 2017
Columbia, South Carolina

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