Harrison v. Kennedy et al
Filing
87
ORDER AND OPINION The Court GRANTS Plaintiff's motion for a protective order (Dkt. No. 83 ) and QUASHES the subpoenas. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 8/7/2019.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Eugene P. Harrison, a/k/a Eugene
Paul Harrison, Sr.,
Plaintiff,
V.
Jennifer C. Kennedy, HCV Senior
Specialist Individually and/or in her
Official Capacity as an Employee
of the Sumter Housing Authority,
Defendants.
Civil Action No. 3:18-cv-0057-RMG
)
)
)
)
)
)
)
)
)
)
)
)
)
ORDER AND OPINION
This matter is before the Court on Plaintiffs' motion for a protective order or, in the
alternative, to quash (Dkt. No. 83). For the reasons set forth below, the Court grants motion.
I.
Background
Plaintiff Eugene Harrison alleges that he was unlawfully denied housing under the Housing
Choice Voucher Program and discriminated against based on a disability. On October 26, 2018,
the Court granted in part and denied in part Defendant's motion for summary judgment. (Dkt. No.
52.) The Court granted summary judgment on Plaintiffs disability claims, but Court held that
Plaintiffs claim under the Housing Act of 193 7 survived summary judgment. (Id.)
After the Court's order denying summary judgment, the Court appointed counsel for
Plaintiff. (Dkt. No. 59.) Plaintiff filed an Amended Complaint on April 12, 2019. (Dkt. No. 76.)
The Amended Complaint includes claims for damages, including severe mental and emotional
distress. (Id. at ,r,r 93, 102, 108.) The most recent scheduling order set the deadline for discovery
as August 2, 2019, with dispositive motions due by August 9, 2019. (Dkt. No. 80.)
On July 25 and 27, 2019, Defendants served multiple third-parties with subpoenas for
documents and depositions, with the depositions to be held and the documents to be produced on
-1-
August 8, 2019, after the discovery deadline.
(Dkt. No. 83-1.) The subpoenas sought the
production of the elementary school, middle school and high school files of Plaintiffs daughter,
the depositions of those schools, Plaintiffs medical records, bank records, rental records, and the
deposition of the mother of Plaintiffs ex-wife. (Id.)
Plaintiff now seeks a protective order, arguing that the subpoenas seek discovery after the
deadline and, in the alternative, move to quash the subpoenas on the grounds that they are
burdensome and overbroad. (Dkt. No. 83.) Defendants argue that Plaintiffs deposition on July
25, 2019 included new information regarding his claimed damages requiring discovery, and also
arguing that the late disclosure should preclude Plaintiffs damages arguments at trial and,
regardless, that discovery should be extended or, alternatively, Plaintiffs damages claims should
be dismissed. (Dkt. No. 85.) Plaintiff filed a timely reply. (Dkt. No. 86.)
II.
Legal Standard
Parties to a civil litigation may obtain discovery on "any nonprivileged matter that is
relevant to any party's claim or defense" so long as the information is "proportional to the needs
of the case .... " Fed. R. Civ. P. 26(b)(l). However, the court "must limit the frequency or extent
of discovery ... if it determines that the discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more convenient, less burdensome, or less
expensive." Fed. R. Civ. P. 26(b)(2)(C)(i). Therefore, the court "may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense" by forbidding the discovery of the material at issue. Fed.R.Civ.P. 26(c)(l). "The scope
and conduct of discovery are within the sound discretion of the district court." Columbus-Am.
Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995); see also Carefirst of
Md, Inc. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 402 (4th Cir. 2003) ("Courts have broad
discretion in resolution of discovery problems arising in cases before [them].")
-2-
Rule 45(d)(3)(iv) of the Federal Rules of Civil Procedure also provides that a district court
must, on timely motion, quash a subpoena that "subjects a person to undue burden."
The
determination of undue burden is within the discretion of the district court. See Cook v. Howard,
484 Fed. A'.ppx. 805, 812 n.7 (4th Cir. 2012). A subpoena that seeks information irrelevant to the
case is a per se undue burden. See Cook, 484 Fed. Appx. at 812 n.7; HDSherer LLC v. Nat'!
Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). A subpoena that would require a
non-party to incur excessive expenditure oftime or money is unduly burdensome. Cook, 484 Fed.
Appx. at 812 n. 7. Otherwise, "undue burden" requires the district court to balance the interests
served by demanding compliance against the interests furthered by quashing the subpoena. 9A
Charles Alan Wright & Arthur R. miller, Federal Practice and Procedure§ 2463.l (3d ed. 2008).
III.
Discussion
"A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril." Jordan v. E.L du Pont de Nemours & Co., 867 F. Supp.
1238, 1250 (D.S.C. 1994). Here, it is undisputed that the subpoenas seek discovery after the
discovery deadline, and indeed only one day before dispositive motions are due. (Dkt. No. 83-1.)
The Court will not permit a Party to issue a court-backed subpoena, particularly where the
opposing party does not consent to the extension, that contravenes this Court's Order closing
discovery on August 2, 2019.
Therefore, the subpoenas seek untimely and impermissible
discovery and are quashed.
The Court further notes that Defendant's arguments regarding allegedly new information
disclosed at Plaintiffs deposition does not support the breadth of the information sought. For
example, the limited testimony about his daughter referenced in the Defendants' response does not
support the need for all of her school records from elementary, middle and high school. Further,
this information likely raises disclosure concerns under the Family Educational Rights and Privacy
-3-
Act ("FERPA"), 20 U.S.C. § 1232g. The other subpoenaed information, while it may contain
limited relevant information, particularly medical records, is similarly overbroad and not tailored
to the time at issue in this litigation. (See, e.g. 83-1 at 15, requesting information regarding rental
of units from "2010 to the present,"; 83-1 at 24, requesting all bank statements from "January 2012
to the present.").
However, to the extent Defendants claim they require additional time based on the
information disclosed at the end of July 2019, the proper vehicle is a separate motion to extend the
scheduling order and not a request in their response. Defendants additional request, for a dismissal
of Plaintiffs claim for medical bills, emotional distress damages and all claims in general, is
without merit. Plaintiff notified Defendants of his claim for emotional distress damages in his
Amended Complaint, and further provided information regarding his claimed damages at his
deposition, conducted before discovery closed. To the extent his claimed damages now necessitate
additional information, a separate motion to extend discovery should be filed. 1
IV.
Conclusion
For the foregoing reasons, The Court GRANTS Plaintiffs motion for a protective order
(Dkt. No. 83) and QUASHES the subpoenas.
AND IT IS SO ORDERED.
August ? , 2019
Charleston, South Carolina
1
While the Court's prior scheduling Order required a conference to extend deadlines, given this
recent briefing, the Court permits the Parties to move to extend the discovery deadline without a
hearing. An extension of discovery may also require an extension of the dispositive motion and
trial deadlines. To the extent the Parties agree on a proposed amended scheduling order, they may
file a joint motion. If Defendant's seek an extension, they should file a motion demonstrating why
there is good cause for the extension. Fed. R. Civ. P. 16(b)(4).
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?