Stooksbury v. Ross et al

Filing 629

ORDER granting in part and denying in part 610 the Motion to Quash Subpoenas filed by Tennessee Land & Lakes, LLC; James F. Macri, the managing partner of Tennessee Land & Lakes; Shanks & Blackstock, attorneys at law; and Gregory D. Shanks, the managing partner of Shanks & Blackstock. The Movants SHALL PRODUCE the documents requested by the Plaintiff, subject to the limitations set forth in this Order, on or before June 29, 2012, or at a later date if by agreement of the Plai ntiff and the Movants. To the extent the Plaintiff continues to seek oral testimony to supplement these documents, the Plaintiff may re-notice the depositions limiting the scope of the depositions in a manner consistent with this Memorandum and Order. Signed by Magistrate Judge H Bruce Guyton on June 20, 2012. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ROBERT T. STOOKSBURY, JR.,
Plaintiff,

v.
MICHAEL L. ROSS, et al.,
Defendants.

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No. 3:09-CV-498
(VARLAN/GUYTON)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and the order of the District Judge [Doc. 616], referring to the undersigned a Motion to Quash
Subpoenas [Doc. 610], filed by: Tennessee Land & Lakes, LLC; James F. Macri, the managing
partner of Tennessee Land & Lakes; Shanks & Blackstock, attorneys at law; and Gregory D.
Shanks, the managing partner of Shanks & Blackstock, (collectively “the Movants”).

I.

BACKGROUND
A jury has returned a multi-million dollar judgment in favor of the Plaintiff in this case.

The Plaintiff alleges that the Defendants have made transfers of property to avoid collection on
this judgment. [See Doc. 532]. On May 31, 2012, counsel for the Plaintiff served subpoenas on
the Movants.

These subpoenas commanded these persons and entities to be present for

depositions on June 13, 2012 and to produce certain documents at that time. [Docs. 569-572].
On June 12, 2012, the Movants filed the instant motion requesting that the Court quash
the subpoenas and relieve the Movants from producing the documents requested. [Doc. 610].
The Plaintiff has responded in opposition to the Motion to Quash [Doc. 615], and counsel for the

parties appeared before the Court on June 18, 2012, to present oral arguments. The Court finds
that the Motion to Quash is ripe for adjudication, and for the reasons stated below, it will be
GRANTED IN PART and DENIED IN PART.

II.

POSITIONS OF THE PARTIES
The Movants argue that the Court should quash the subpoenas served by the Plaintiff

because the subpoenas do not comply with Rule 45 of the Federal Rules of Civil Procedure. The
Movants argue that the subpoenas served upon them are “overbroad, excessive, burdensome,
oppressive[,] and subject[] the Movants to annoyance and undue burden and expense.” [Doc.
611 at 1]. The Movants argue that the Plaintiff should obtain the information it seeks from
Defendant Michael Ross or Ted Doukas, a non-party. The Movants also maintain that the scope
of the requests is excessive. [Doc. 611 at 3-4]. They argue that the materials to be produced are
privileged. [Doc. 611 at 5].
The Plaintiff responds that the documents sought by the Plaintiff are relevant and
discoverable. [Doc. 615 at 1]. The Plaintiff argues that the Movants participated in or facilitated
numerous transactions around the time the verdict was entered in this case. [Doc. 615 at 1-2].
The Plaintiff argues that the Movants have had notice of these subpoenas since at least May 15,
2012, and the depositions were rescheduled by agreement of counsel to a date more convenient
for the Movants. The Plaintiffs maintain that the subpoenas are not unduly burdensome and the
Movants have failed to establish any basis for quashing the subpoenas under Rule 45 of the
Federal Rules of Civil Procedure.

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III.

ANALYSIS
The Court will address the arguments before it in turn.

A.

Fees for One Day’s Attendance and Mileage
The Court will first address fees and mileage, a matter which was brought before the

Court at oral arguments. Rule 45 of the Federal Rules of Civil Procedure requires that, if a
subpoena requires a person’s attendance, the serving party must tender “the fees for 1 day’s
attendance and the mileage allowed by law.” Fed. R. Civ. P. 45(b)(1).
The Movants noted at the hearing that neither mileage nor attendance fees were tendered
with these subpoenas. The Plaintiff responded that these depositions were set by agreement at
the office of two of the Movants. The Plaintiff offered to tender the fees and mileage.
The Court finds that the Movants have waived their objection to the subpoenas based
upon the failure to tender attendance fees and mileage. It appears to the Court that these
depositions were set by an agreement of the parties, and the Court finds that in this case it would
be inappropriate to quash the subpoenas based upon the failure to tender fees. The Plaintiff has
represented that he will tender fees at the deposition.
B.

Quashing the Subpoenas
Pursuant to Rule 45 of the Federal Rules of Civil Procedure, the Court must quash or

modify a subpoena that: (i) does not allow reasonable time to comply; (ii) requires a non-party to
travel more than 100 miles from his or her residence; (iii) requires disclosure of a privileged or
protected matter; or (iv) subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A). The
Court may also quash subpoenas where: (i) the subpoena would require disclosure of a trade
secret or confidential research; (ii) the subpoena would require disclosure of an unretained
expert’s opinion; or (iii) a non-party would be required to travel more than 100 miles and incur
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substantial expense to attend trial. Fed. R. Civ. P. 45(c)(3)(B).
The Court finds, first, that the Movants’ argument that the Plaintiff should attempt to
procure the material requested from Defendant Ross or Mr. Doukas, rather than the movants, is
not well-taken. The Movants have not cited the Court to any case law or rule requiring that the
Plaintiff make a showing that he has attempted to acquire the information from Defendant Ross
or Mr. Doukas, and the Court is not aware of such a requirement.
Second, the Court finds that none of the documents that have been submitted to the Court
for in camera review are protected by the attorney-client privilege. The Court finds that the
Movants have not demonstrated that any of these documents should be exempted from
production because they are privileged communications or otherwise protected communications.
Turning to the specific production requests, the Court finds that Production Requests No.
1, No. 2, No. 3, No. 4, and No. 8 in Exhibit A to the subpoenas are not overly-broad, and the
Movants have been afforded a reasonable time to comply. The Movants shall respond to these
Production Requests. The Movants SHALL REDACT Social Security numbers and bank
account numbers from the materials produced in a manner consistent with Rule 5.2 of the
Federal Rules of Civil Procedure. The Plaintiff is ORDERED to hold this production in
confidence in a manner consistent with the Protective Order [Doc. 142], previously entered in
this case. The documents produced may be provided to Receiver Sterling Owen, IV, in the same
manner and under the same conditions of confidentiality imposed on the parties to this case and
the Movants.
The Court finds that Production Request No. 5 is not overly-broad. The Court finds that
requiring the Movants to comply with this request is reasonable to the extent it is limited to

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communications that are readily accessible to the Movants and is limited to documents that have
not already been produced in response to Production Request No. 4.
The Court finds that Production Requests No. 6 and No. 7 are overly-broad and unduly
burdensome. The Court finds that it is unreasonable to require the Movants to comply with these
requests which relate to litigation between two entities to which the Movants have no apparent
relationship. The Motion to Quash will be granted as to these Production Requests.
The Court finds that Production Requests No. 9, No. 10, and No. 11 are unduly
burdensome. The Court finds, however, that the burdensomeness of these items can be cured by
the parties discussing these Production Requests and finding a way to limit the scope of the
requests. The Court would suggest limiting these Production Requests so that they require that
the Movants only produce those communications that are in their possession and can be found
and produced without performing extensive investigation — i.e. without retrieving
communications from servers or asking third-parties to provide archival records. If the Plaintiff
and the Movants cannot reach an agreement on this issue, they shall contact the chambers of the
undersigned.

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IV.

CONCLUSION
Based on the foregoing, the Motion to Quash [Doc. 610] is GRANTED IN PART and

DENIED IN PART.

The Movants SHALL PRODUCE the documents requested by the

Plaintiff, subject to the limitations discussed above, on or before June 29, 2012, or at a later date
if by agreement of the Plaintiff and the Movants. To the extent the Plaintiff continues to seek
oral testimony to supplement these documents, the Plaintiff may re-notice the depositions
limiting the scope of the depositions in a manner consistent with this Memorandum and Order.
IT IS SO ORDERED.
ENTER:

s/ H. Bruce Guyton
United States Magistrate Judge

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