Allen et al v. Wyndham Worldwide Operations, Inc.
Filing
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MEMORANDUM AND ORDER granting in part and denying in part Movant's Motion to Quash, Request for Protective Order (Doc. 1 ). The subpoena is hereby QUASHED, but the Court declines to enter a protective order at this time. The case will remain open pending any future discovery disputes. Signed by Magistrate Judge Debra C Poplin on 10/02/2019. (KMK) Modified on 10/2/2019 (KMK): Copy mailed to: Gail Matthews at 376 Kirby Salmons Road, Alvaton, KY 42122)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
IN RE: MOTION TO QUASH SUBPOENA,
REQUEST FOR PROTECTIVE ORDER
IN THE CASE OF:
EDNA-ALLEN and VICKI ALLEN-HUGHES,
Plaintiffs,
v.
WYNDHAM WORLDWIDE OPERATIONS,
INC., et al.,
Defendants.
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No. 3:19-MC-25-TAV-DCP
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 Referral [Doc. 8] by the District Judge.
Now before the Court is a Motion to Quash Subpoena, Request for Protective Order [Doc.
1], filed by Gail Matthews (“Movant”). Defendants have responded in opposition to the Motion
[Doc. 10], and Movant filed a Reply [Doc. 12]. The Motion is ripe for adjudication.
By way of background, the Motion was originally filed in the Western District of
Kentucky. Along with other requests for relief, Movant requested that the Motion be transferred
to the Eastern District of Tennessee. In response, Defendants consented to transferring Movant’s
Motion to the instant forum. On May 30, 2019, Chief Judge Greg Stivers transferred the Motion
based on Movant’s request and Defendants’ consent. The Court has considered the filings in this
matter, and for the reasons set forth below, the Court hereby GRANTS IN PART AND DENIES
IN PART the Motion [Doc. 1].
I.
POSITIONS OF THE PARTIES
Movant requests [Doc. 1]1 that the Court quash a subpoena setting her deposition for May
23, 2019.2 In addition, Movant requests a protective order prohibiting Defendants from taking her
deposition in this case. Movant states that she was originally listed in the initial disclosures
exchanged in this case as an individual having relevant knowledge of the facts, but Plaintiffs
revised their initial disclosures and removed her name. Movant denies that she has knowledge of
any relevant facts in this matter. Movant states that she filed her own case against Defendants in
the Middle District of Tennessee and answered written discovery, so they already know about her
experience in buying a timeshare. Movant argues that Defendants do not need her deposition to
defend the instant matter and that subpoenaing her deposition was to annoy, oppress, and burden
her. Movant states that Defendants are acting in bad faith and are trying to increase the costs of
the litigation.
Defendants filed a Response [Doc. 10], agreeing to hold the subpoena in abeyance until
the completion of Plaintiffs’ depositions in this action or the related cases in order to further
establish the basis regarding the relevancy of information sought from Movant. Defendants agree
to work with Plaintiffs’ counsel in an attempt to reach an agreement as to the timing and scope for
such depositions in order to avoid the necessity of further involvement of the Court. Defendants
argue that their subpoena to Movant was proper and that the scope of non-party discovery is broad.
Defendants sought to depose Movant in support of their defenses in the cases pending in the
Eastern District of Tennessee. Defendants argue that Movant’s testimony was not sought in
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The Court notes that Movant filed her Motion pro se. After the case was transferred,
Attorney Givens filed Movant’s Reply on her behalf.
2
Defendants agreed to postpone the deposition, pending the Court’s ruling on the Motion.
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relation to the merits of her now dismissed lawsuit; but rather, her knowledge of timeshare relief
company solicitation. Defendants argue that such information is highly probative of their defenses
because they believe that timeshare companies wrongfully solicited individuals to file lawsuits.
Defendants list a number of questions, claiming that such questions go to the heart of their
affirmative defenses, the various plaintiffs’ motives in filing lawsuits, and plaintiffs’ credibility.
Defendants maintain that the subpoena directed to Movant was made in good faith because
they believe that she is uniquely suited to provide testimony that will lead to the discovery of
information relevant to timeshare relief companies and Defendants’ defenses. Defendants state
that Movant filed her own case in the Middle District of Tennessee but dismissed her case with
prejudice just one week before her deposition. Defendants state that during her deposition, they
would have questioned her regarding what, if any, contact she had with timeshare relief companies.
Defendants state that to the extent any improper legal solicitation pervades these cases, Movant is
a unique, non-party that likely has knowledge of the wrong doing. Defendants state that Movant’s
dismissal of her own case on the eve of her deposition is highly suspicious, and they believe that
her dismissal is correlated with Movant’s knowledge of improper solicitation by timeshare relief
companies. Defendants assert that such gamesmanship in discovery is disfavored.
Further, Defendants argue that Movant’s deposition is proportional to the needs of this case
for similar reasons as above. Specifically, Defendants argue that Movant is uniquely suited to
provide them with information related to the timeshare relief companies, which is highly probative
of their defenses. Defendants state that Movant will not be unduly burdened by sitting for a
deposition. Defendants state that the subpoena provided her ample time to prepare or schedule a
different date if she had a conflict and the topics were limited in scope. Defendants state that the
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information relative to the non-attorney timeshare relief companies is neither confidential, nor
privileged.
Movant filed a Reply [Doc. 12], maintaining that the Court should enter a protective order
prohibiting her deposition. Movant states that in a letter to Defendants, her counsel unequivocally
acknowledged that Movant will not be used as a witness to support any claim or defense in this
case or any cases presently pending. Further, Movant maintains that her name was removed from
Plaintiffs’ initial disclosures. Movant asserts that Defendants’ request for her deposition is simply
a fishing expedition and argues that Defendants failed to articulate how her deposition is relevant
to this specific case. Movant asserts that Defendants cannot establish that her testimony is relevant
under Federal Rule of Evidence 401. Movant states that if Defendants want to discover relevant
evidence in this case, they can simply ask Plaintiffs whether timeshare relief companies solicited
them. Movant states that it strains credulity for Defendants to argue that the best way of procuring
data for these nominal, undifferentiated defenses in this case is to depose her.
II.
ANALYSIS
Accordingly, the Court has considered the positions as outlined above, and for the reasons
more fully explained below, the Court hereby GRANTS IN PART AND DENIES IN PART the
Motion [Doc. 1]. As mentioned above, the Motion seeks two types of relief: (1) quashing the
subpoena, and (2) entering a protective order prohibiting Defendants from taking Movant’s
deposition. The Court will first address Movant’s request to quash the subpoena and then turn to
the request to prohibit Defendants from taking her deposition.
As an initial matter, in Defendants’ Response, they agree to hold the subpoena in abeyance
until after the completion of Plaintiffs’ depositions in this action or the related cases in order to
further establish the basis regarding the relevancy of information sought from Movant. Defendants
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further agree to work with Plaintiffs’ counsel in an attempt to reach an agreement as to the timing
and scope for such depositions in order to avoid the necessity of further involvement of the Court.
While Defendants agree to hold the subpoena in abeyance, the Court finds that the better course
of action is to QUASH the subpoena, which sets the deposition for May 22, 2019, and includes
document requests, and permit Defendants to issue another subpoena if they believe such
discovery is warranted under Rule 26(b).
Further, Movant seeks a protective order prohibiting her deposition in this case. Under
Rule 26(c)(1)(G), “[t]he court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Further, good cause exists
when the party moving for the protective order “articulate[s] specific facts showing ‘clearly
defined and serious injury’ resulting from the discovery sought . . .” Nix v. Sword, 11 Fed. App’x
498, 500 (6th Cir. 2001) (citing Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)); see also In
re Skelaxin Antitrust Litig., 292 F.R.D. 544, 549 (E.D. Tenn. 2013) (“To show good cause, the
moving party must articulate specific facts that show a clearly defined and serious injury resulting
from the discovery sought; mere conclusory statements will not be sufficient.”). “The burden of
establishing good cause for a protective order rests with the movant.” Nix, 11 Fed. App’x at 500.
In the instant matter, Movant primarily asserts that her deposition testimony is not relevant
to the issues in this case. “Although irrelevance . . . [is] not specifically listed under Rule 45 as a
basis for quashing a subpoena, courts ‘have held that the scope of discovery under a subpoena is
the same as the scope of discovery under Rule 26.’” Medical Center at Elizabeth Place, LLC v.
Premier Health Partners, 294 F.R.D. 87, 92 (S.D. Ohio 2013) (quoting Hendricks v. Total Quality
Logistics, 275 F.R.D. 251, 253 (S.D. Ohio 2011)). Relevancy for discovery purposes, however, is
traditionally quite broad. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998).
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At this time, the Court finds that Movant has not established good cause for prohibiting her
deposition from ever taking place in this case. As explained above, the Court has quashed the
present subpoena, and Defendants have agreed to continue with discovery and reassess the
relevancy for Movant’s deposition after completing additional discovery. Thus, ruling on the
relevancy of Movant’s deposition at this time is premature. If Defendants serve Movant with
another subpoena for her deposition testimony, she may move to quash the subpoena at that time.
Accordingly, the Court declines to enter a protective order prohibiting Defendants from taking
Movant’s deposition.
III.
CONCLUSION
Accordingly, for the reasons set forth above, the Court GRANTS IN PART AND
DENIES IN PART Movant’s Motion to Quash, Request for Protective Order [Doc. 1]. The
subpoena is hereby QUASHED, but the Court declines to enter a protective order at this time. The
case will remain open pending any future discovery disputes.
IT IS SO ORDERED.
ENTER:
_________________________
Debra C. Poplin
United States Magistrate Judge
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