Edgefield Holdings as successor in interest to Regions Bank v. Gilbert et al
Filing
20
MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendant Kenneth J. Gilbert and Non-Party Helen K. Gilbert's Motion to Quash Subpoena and Objection to Document Requests [Dkt. No. 2 ] and QUASHES the Subpoena served on Helen K. Gilbert by Plaintiff Edgefield Holdings as successor in interest to Regions Bank only as to Requests XI.F, XI.J, XI.K, and XI.L. The parties will bear their own expenses, including attorneys' fees, in connection with the Motion to Quash Subpoena and Objection to Document Requests [Dkt. No. 2 ]. (Ordered by Magistrate Judge David L. Horan on 3/2/2018) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EDGEFIELD HOLDINGS as successor
in interest to Regions Bank,
Plaintiff,
V.
KENNETH J. GILBERT, et al.,
Defendants.
§
§
§
§
§
§
§
§
§
§
No. 3:17-mc-74-N-BN
MEMORANDUM OPINION AND ORDER
Defendant Kenneth J. Gilbert and Non-Party Helen K. Gilbert (collectively, the
“Gilberts”) have filed a Motion to Quash Subpoena and Objection to Document
Requests in response to a subpoena (the “Subpoena” [Dkt. No. 15, Ex. 1]) issued to
Non-Party Helen K. Gilbert by Plaintiff Edgefield Holdings as successor in interest to
Regions Bank (“Edgefield” or “Plaintiff”). See Dkt. No. 2 (the “Motion to Quash”).
United States District Judge David C. Godbey has referred the Motion to Quash
to the undersigned United States magistrate judge for hearing, if necessary, and
determination under 28 U.S.C. § 636(b). See Dkt. No. 5.
Edgefield filed a response, see Dkt. No. 14, and the Gilberts filed a reply, see Dkt.
No. 18.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part the Gilberts’ Motion to Quash Subpoena and Objection to
Document Requests [Dkt. No. 2].
-1-
Background
As Edgefield explains the background to the Motion to Quash,
[o]n July 8, 2010, the United States District Court - Eastern District of
Louisiana, in Civil Action No. 2:09-cv-03560, entered a judgment against
Defendant KENNETH J. GILBERT in favor of Regions Bank in the
amount of $1,348,099.00 plus interest, attorney’s fees, and expenses
(hereinafter the “Louisiana Federal Judgment”). The Louisiana Federal
Judgment was subsequently assigned to Plaintiff.
In an unrelated case, on November 29,2010, the 415th Judicial
District Court, Parker County, Texas, in Cause Number CV-10-0929,
entered a final judgment in favor of Regions Bank against Defendant
KENNETH J. GILBERT in the amount of $1,972,645.58 plus interest,
late charges, attorney’s fees, and court costs (hereinafter the “Texas State
Judgment”). The Texas State Judgment was subsequently assigned to
Plaintiff.
On December 17, 2010, Regions Bank attempted to domesticate the
Louisiana Federal Judgment in Parker County, Texas but did not pursue
enforcement of the Louisiana Federal Judgment in Texas state court
thereafter. Nevertheless, the domestication in state court of the Louisiana
Federal Judgment is invalid because an exemplified copy of the Louisiana
Federal Judgment was not filed as required by Texas law. TEX. CIV. PRAC.
& REM CODE § 35.003.
On April 19, 2016, Plaintiff commenced enforcement of the Texas
State Judgment by serving Defendant KENNETH J. GILBERT with
post-judgment discovery requests. Plaintiff further attempted to collect
the Texas State Judgment by employing enforcement tools allowed by
law, including gamishment and third-party discovery. Through
postjudgment discovery in the Texas State Judgment matter, Plaintiff
discovered that Defendant KENNETH J. GILBERT has been
fraudulently transferring his community property income to his wife,
HELEN K. GILBERT, and non-party entities owned and controlled by the
GILBERTS.
On or about April 6, 2017, Plaintiff acquired Regions Bank’s
interest in the Louisiana Federal Judgment and filed its Motion to
Substitute Parties-in-Interest in the Eastern District of Louisiana case.
Thereafter, on May 12,2017, the Eastern District of Louisiana Court
entered an order allowing Plaintiff to substitute as judgment creditor in
accordance with Federal Rule of Civil Procedure 25(c).
On September 29, 2017 , Plaintiff registered the Louisiana Federal
Judgment in this Court pursuant to 28 U.S.C. § 1963.
On November 13, 2017, after proper notice, Plaintiff issued its
-2-
Subpoena to Non-Party HELEN K. GILBERT (hereinafter the
“Subpoena”). A true and correct copy of the Subpoena is attached to
Plaintiffs accompanying Appendix as Exhibit “1" [Appendix pgs.3-161 and
incorporated herein by reference.
On December 5, 2017, counsel for the GILBERTS proposed
producing certain documents responsive to the Subpoena in exchange for
Plaintiff s agreement to enforce the Louisiana Federal Judgment in
Parker County state court only. Plaintiff agreed regarding the production
of certain documents but did not agree regarding venue.
Dkt. No. 14 at 2-4.
But the Gilberts contend that
[t]his case was commenced for the sole purpose of compelling
post-judgment discovery from a non-judgment debtor, Helen K. Gilbert
(“Mrs. Gilbert”). However, such discovery should be undertaken through
the lawsuits currently pending in Parker County, Texas, not in federal
court in Dallas. Parker County is where (a) the [Gilberts] reside, (b)
Edgefield’s judgments were entered or are registered, (c) Edgefield has
been conducting collection efforts since 2016, (d) Edgefield, and its
predecessor in interest have taken extensive discovery from the judgment
debtor, Kenneth J. Gilbert (“Mr. Gilbert”), and (e) Edgefield issued the
very same post-judgment discovery request to Mrs. Gilbert the day before
this action was commenced. Additionally, the documents requested in the
Subpoena should be narrowed and specifically tailored to the facts of the
matter to seek (a) information about assets that could be used to satisfy
Edgefield’s debt, rather than the carpet-bombing approach of sending 112
broad requests for information about Mrs. Gilbert’s separate and solely
managed property, and (b) information not already provided by Mr.
Gilbert or available from, the judgment debtor.
Edgefield allegedly holds two judgments taken against Mr. Gilbert
by Regions Bank. One was entered by the 4151 Judicial District Court of
Parker County, Texas on November 29, 2010 in the amount of
$1,972,645.58 (“Judgment One”). The other was entered by the United
States District Court for the Eastern District of Louisiana on July 8, 2010
in the amount of $1,348,099.00 (“Judgment Two”). As discussed below,
Regions Bank, Edgefield’s alleged assignor, has already domesticated
Judgment Two in Parker County.
Edgefield has no judgments against Mrs. Gilbert. Nevertheless,
Edgefield has twice sent the same set of 112 document requests to Mrs.
Gilbert, asking for a broad range of financial and personal information,
including documents that pertain to her separate property and her solely
-3-
managed community property. The document production Edgefield seeks
to compel is, to a large extent, irrelevant and not discoverable, because
Mrs. Gilbert’s separate and solely managed community property are not
subject to her husband’s debts. The document production is also overly
burdensome. Because the discovery sought is extremely broad, Mrs.
Gilbert will incur substantial expense providing extensive information in
furtherance of the collection of a debt she does not owe about assets that
are not liable for her husband’s debt or to protect herself from having to
do so. The Subpoena is also unduly burdensome because it is
unnecessary. Edgefield also seeks to compel production of documents and
information that Edgefield has already received from Mr. Gilbert or that
it was given the opportunity to inspect and chose not to.
The Court should order Edgefield to pay Mrs. Gilbert’s expenses in
moving to quash the Subpoena, because it did not take reasonable steps
to avoid imposing undue burden or expense on Mrs. Gilbert; rather, the
Subpoena is part of a pattern intended to harass the [Gilberts], especially
Mrs. Gilbert. In addition to the Subpoena, Edgefield has taken extensive
discovery from Mr. Gilbert and has made other extensive production
demands on Mrs. Gilbert. Edgefield has demanded to inspect and video
the [Gilberts’] home, including private areas, which the [Gilberts] agreed
to, but Edgefield never did an inspection. Edgefield has unnecessarily
used four different courts to assist in collection, which has increased costs
and stress to the [Gilberts].
Edgefield has issued a notice of subpoena containing 112 document
requests directed to Mrs. Gilbert in one of the Parker County actions, but
decided not to serve the subpoena issued from the court in the place of
her residence. Instead, the very next day, Edgefield registered Judgment
Two in this Court and now seeks to compel production of the same 112
documents through this Court. This forum shopping and procedural
maneuvering is intended to harass Mrs. Gilbert and to increase expense,
and is therefore an abuse of the Federal Rules of Civil Procedure.
Dkt. No. 2 at 1-3. And the Gilberts offer their own procedural background to their
Motion to Quash:
On November 29, 2010, Regions Bank obtained Judgment One
against Kenneth J. Gilbert in Regions Bank v. Kemmerer BLM, L.L.C.
and Kenneth J. Gilbert from the 4151 Judicial District Court of Parker
County in Cause No. CV-10-0929 , [Exhibit 1; App . 001 to 003). On
March 10, 2016, Regions Bank is alleged to have assigned Judgment One
to Edgefield.1 Edgefield as taken many actions to obtain post-judgment
discovery and to collect Judgment One, and which are described below.
-4-
....
To collect Judgment One, in April 2017, Plaintiff filed in Parker
County an Application and Affidavit for Writ of Garnishment (the
“Garnishment Action”) against UBS AG and UBS Financial Services, Inc.
(“UBS”) in the 4151 Judicial District of Parker County in Cause No.
CV-17-0406. [Exhibit 2; App. 004 to 009]. One of the accounts at UBS was
the [Gilberts’] joint checking account. [Exhibit 35; App.332]. Another of
the accounts is Mr. Gilbert’s Individual Retirement Account (the “IRA”).
[Exhibit 35; App. 332]. The third account is held for the benefit of the
[Gilberts] in an account in the name of the Gilbert Real Estate Brokers
Defined Benefit Pension Plan (the “Pension Plan”). [Exhibit 35; App. 332].
The Garnishment Action was resolved with Edgefield agreeing not to
collect any of the Pension Plan or IRA funds, but taking the funds in the
[Gilberts’] joint checking account at UBS. [Exhibit 3; App. 010 to 011].
....
To collect Judgment One, on June 28, 2016, Plaintiff filed in Parker
County Edgefield Holdings, LLC, as assignee of Regions Bank v. Kenneth
J. Gilbert, Helen K. Gilbert, Chandler Estates, LTD., and Parker County
Real Estate Investments, Inc. in Cause No. CV16- 0784 in the 43rd
Judicial District Court of Parker County, Texas {the “Fraudulent
Transfer Action”). [Exhibit 4; App. 012 to 021]. Edgefield asserted that
transfers of funds into the Pension Plan for the benefit of the [Gilberts]
constituted fraudulent transfers under Texas law. [Exhibit 4; App. 017 to
019].
[The Gilberts] made counterclaims in the Fraudulent Transfer
Action, one of which was a counterclaim for declaratory judgment that
the Pension Plan account at UBS is exempt from execution. [Exhibit 5;
App. 022 to 026]. On August 3, 2017, [the Gilberts] sought summary
judgment on the counterclaim for declaratory judgment that the Pension
Plan is exempt from execution based on the Employee Retirement Income
Security Act (29 U.S.C. §§1001-1461) (“ERISA”) . [Exhibit 6; App. 027 to
038].
On August 7, 2017 , Edgefield filed a Notice of Removal in the
United States District Court for the Northern District of Texas, Fort
Worth Division, improperly casting itself as the defendant for purposes
of 28 U.S.C. §§ 1441(a) based on the [Gilberts’] counterclaim. [Exhibit 7;
App. 039 to 046]. After considerable and unnecessary expense to the
[Gilberts], Edgefield conceded that a plaintiff who chose its own venue for
a suit cannot later remove an action under 28 U.S.C. §1441(a). The
parties filed an agreed motion to remand on August 21, 2017 , which was
granted by the Court. [Exhibits 8 and 9; App. 047 to 050].
Once the fraudulent transfer action was remanded to the 43rd
Judicial District Court in Parker County and a hearing was set on the
-5-
[Gilberts’] summary judgment motion, on September 14, 2017, Edgefield
asked to transfer the case it filed in the 43rd Judicial District Court of
Parker County to the 4151 Judicial District Court of Parker County.
[Exhibit 10; App. 051 to 063]. The transfer request was denied. [Exhibit
11; App. 064]. Then, on September 18, 2017, Edgefield non-suited its
claims in the Fraudulent Transfer Action in an attempt to get the 43rd
Judicial District Court to dismiss the entire action, including [the
Gilberts’] counterclaims. [Exhibit 12; App. 065 to 066]. That request was
denied. [Exhibits 13 and 14; App. 067 to 069]. Finally, on September 28,
2017, the 43rd Judicial District Court of Parker County held a hearing on
the [Gilberts’] summary judgment request, granting the motion on
October 28, 2017 [Exhibit 15; App. 070 to 071], and entering a final
judgment for the [Gilberts] on November 2, 2017. [Exhibit 16; App. 072
to 073].
As discussed below, Edgefield served a notice of subpoena on Mrs.
Gilbert the same day as the hearing on the summary judgment motion.
....
In another attempt to collect Judgment One, on May 19, 2017,
Edgefield filed a motion in the 4151 Judicial District Court of Parker
County, Case No. CV-10-0929, to inspect the [Gilberts’] home in Aledo
and to videotape the inspection, including the opening, videotaping and
inventorying of all drawers and closets. [Exhibit 17; App. 074 to 075]. On
June 22, 2017, Edgefield amended its inspection request. [Exhibit 18;
App. 076 to 078]. The [Gilberts] responded and sought protection from
that request on June 6, 2017. [Exhibit 19; App. 079 to 082]. By July 28,
2017, the parties negotiated a resolution by agreeing to less onerous
terms for inspection and videotaping that would have more respect for the
[Gilberts’] privacy. [Exhibit 20; App. 083 to 086]. After causing the
[Gilberts] to incur significant expense and after creating a stressful
situation for the [Gilberts], Edgefield never bothered to do the inspection.
The only rational conclusion to draw from this is that Edgefield had no
real interest in inspecting the [Gilberts’] residence and pursued the
inspection solely as a means of harassing the [Gilberts], and in particular
Mrs. Gilbert.
....
Aside from the home inspection request discussed above, Edgefield
(and its predecessor, Regions Bank) have done extensive post-judgment
discovery of Mr. Gilbert and related entities in the 415th Judicial District
Court of Parker County, Texas in Case No. 10-0929.
On February 2, 2011, Mr. Gilbert responded to requests for
production and interrogatories served on him by Regions Bank,
answering 38 interrogatories about his income and assets and providing
documents. [Exhibit 21; App. 087 to 107].
-6-
In the same Parker County case, on April 25, 2016, Edgefield
served eighty-four (84) interrogatories on Mr. Gilbert about his income
and assets, which he answered on May 23, 2016 . [Exhibit 22; App. 108
to 131].
In the same Parker County case, on July 12, 2016, Edgefield sent
a notice of subpoena to Ray & Associates, PLLC (Mr. Gilbert’s counsel
and accountant) seeking seventy- six (76) document requests about Mr.
Gilbert’s assets, which Ray & Associates responded to on August 9, 2016.
[Exhibit 23; App. 132 to 138].
In the same Parker County case, on September 29, 2016, Edgefield
sent a notice of subpoena to third-party Morgan Stanley Smith Barney,
LLC seeking eleven (11) categories of documents related to accounts in
the name of Mr. Gilbert. [Exhibit 24; App. 139 to 157].
In the same Parker County case, on May 19, 2017, Edgefield sent
a second post-judgment request for production to Mr. Gilbert requesting
ten (10) categories of information about his Pension Plan, which Mr.
Gilbert answered. [Exhibit 25; App.158 to 165].
In the same Parker County case, on June 8, 2017, Edgefield
deposed Mr. Gilbert for a full day. [Exhibit 26; App. 166 to 221]. In that
deposition, Edgefield learned the answers to most of the questions it has
asked through the Subpoena. Mr. Gilbert testified that he rents a small
apartment in Dallas where he stays if he is unable to make the drive
home to Aledo . Mr.· Gilbert also testified that the only real property the
[Gilberts] own is their home in Aledo, where the [Gilberts] both reside
and which does not have a mortgage. Mr. Gilbert testified about the
[Gilberts’] homeowners’ policy and property taxes. Mr. Gilbert testified
that his income is deposited into certain accounts, and that he
periodically transfers money to his wife to pay household expenses and
other bills from her checking account. Mr. Gilbert testified about his bank
statements, his income, his wife’s income, and the [Gilberts’] joint tax
returns. Mr. Gilbert testified that Mrs. Gilbert has a trust and oil and gas
revenues that she inherited from her father, and that Mr. Gilbert has no
interest in those assets. He also testified that sometimes Mrs. Gilbert
uses her trust assets to pay bills and other expenses . He testified about
the personal community property the [Gilberts] own. And, as discussed
above, Edgefield was permitted the opportunity inspect those and did not.
In the same Parker County case, on June 15, 2017, Edgefield
served subpoenas on Heritage Title Company of Austin, Inc., Arne Ray,
and FNG, LLC, seeking thirty-nine (39) categories of documents about
the assets of Mr. Gilbert, Oxford Ventures , LLC, Parker Real Estate
Investments, Inc., Chandler Estates, Carotex Holdings, LLC, Lufkin SSA,
LLC, Gilbert Real Estate Brokers, and Kay Gilbert Real Estate Brokers.
They also included fourteen (14) request for documents about a property
-7-
in Lufkin, Texas. [Exhibit 27; App . 222 to 249].
In the same Parker County case, on June 19, 2017, Edgefield sent
a notice of subpoena to Prosperity Bancshares seeking information about
accounts and loans of Mr. Gilbert. [Exhibit 28; App. 250 to 254].
....
On September 28, 2017, Edgefield sent a notice of subpoena to
Helen K. Gilbert with 112 document requests, although it is unclear
whether Edgefield intended to issue the subpoena out of the 4151h or the
43rd Judicial District Court of Parker County. [Exhibit 29; App. 255 to
283]. The requests are exactly the same as those at issue here.
Without so much as a courtesy call, Edgefield decided not to serve
the subpoena issued from Parker County. Instead, it registered Judgment
Two in this Court the very next day and issued the Subpoena out of this
Court.
....
Judgment Two was entered on July 9, 2010 in favor of Regions
Bank and against Kenneth J. Gilbert in the principal amount of
$1,348,099.00 in the United States District Court for the Eastern District
of Louisiana in Civil Action No. 09-3560. Regions Bank domesticated
Judgment Two in the 4151 District Court of Parker County in Case No.
10-2109 on December 17, 2010. [Exhibit 30; App. 284 to 293].
On September 29, 2017, purporting to be the assignee of Regions
Bank, Edgefield registered Judgment Two in this Court. [Exhibit 31; App.
294 to 296].
On November 2, 2017, Edgefield sent a Notice of Subpoena to
Non-Party Helen K. Gilbert. Compelling the Production of Documents
and Tangible Things Without Deposition After Judgment along with a
copy of the Subpoena with 112 requests for production. [Exhibit 32; App.
297 to 323]. This is the same 112 production requests that were the topic
of the earlier notice of subpoena served in Parker County.
On November 13, 2017, counsel for the [Gilberts] agreed to accept
service of the Subpoena by email for Mrs. Gilbert.
Id. at 3-9 (footnote omitted).
The Gilberts “seek an order quashing the Subpoena, sustaining their Objections,
directing Edgefield to issue post-judgment discovery in Parker County, and directing
Edgefield to tailor their document requests to Mrs. Gilbert to seek information only
about jointly managed community property or any property she holds for or receives
-8-
from her husband.” Dkt. No. 3 at 8. They “also seek payment of Mrs. Gilbert’s
attorneys’ fees and expenses by Edgefield for their abusive post- judgment discovery
against a non-judgment debtor, and ask the Court to set a hearing at which [the
Gilberts] can present evidence of those attorneys’ fees and expenses.” Id.
Edgefield responds that
[t]he Court should deny Defendant KENNETH J. GILBERT and
Non-Party HELEN K. GILBERT's (hereinafter sometimes collectively
referred to as the “GILBERTS") Motion to Quash because Plaintiff is
entitled to all of the post-judgment discovery served on HELEN K.
GILBERT (judgment debtor’s wife holding community property) pursuant
to federal law and Texas law.
The Court should further deny the GILBERTS' motion because
there is no undue burden on the GILBERTS to produce. In fact, the
GILBERTS have offered to produce certain documents in exchange for
Plaintiff to agree to enforce the Louisiana Federal Judgment in Parker
County. As such, on one hand, the GILBERTS are dangling responses to
the Subpoena in order to induce Plaintiff to agree to a certain forum; on
the other hand, the GILBERTS are raising groundless, shielding
objections to the Subpoena in an attempt to force enforcement in state
court and deny Plaintiff the discovery it is entitled to under the law.
Nonetheless, the fact remains that the GILBERTS are ready to produce
responsive documents, which clearly demonstrates that the Subpoena
requests are not imposing an undue burden on the GILBERTS.
Further, the Court should deny the GILBERTS’ Motion because
the GILBERTS rely on misrepresentations to the Court regarding the
applicable law; distortion of the facts of this case; groundless inferences;
and meritless, shielding objections as a way to avoid the inconvenience
of dealing with Defendant KENNETH J. GILBERT’s multi-million dollar
legal obligation to Plaintiff.
Dkt. No. 14 at 1-2 (emphasis omitted).
In reply, the Gilberts explain that they
believe that the Plaintiff did not comply with this Court's December 22,
2017 electronic order to file a “complete response” to the Motion to Quash.
Accordingly, many of issues raised by the Gilberts in the Motion to Quash
have not been addressed by the Plaintiff.
-9-
....
The Plaintiff failed to meet its initial burden of serving an
appropriate Subpoena on Mrs. Gilbert. It did so by not directing the
questions to what it needed, but by asking for 112 production requests to
harass Mrs. Gilbert. And, the Plaintiff has used this Court and this venue
to exacerbate that harassment.
The Plaintiff also failed to file a complete answer to the Motion to
Quash as required by the Court.
For the reasons stated herein, the Gilberts ask that the Court
dismiss this action with prejudice. The Plaintiff can take the same
discovery (and has done so) in Parker County State Court.
Dkt. No. 18 at 1, 7.
Legal Standards
Under 28 U.S.C. § 1963, “[a] party may register the final judgment of one district
court with another district court if certain conditions are met.” Hoffart v. Wiggins, 577
F. App’x 384, 387 (5th Cir. 2014). Section 1963 states that “[a] judgment in an action
for the recovery of money or property entered in any court of appeals, district court,
bankruptcy court, or in the Court of International Trade may be registered by filing a
certified copy of the judgment in any other district or, with respect to the Court of
International Trade, in any judicial district, when the judgment has become final by
appeal or expiration of the time for appeal or when ordered by the court that entered
the judgment for good cause shown”; that “[s]uch a judgment entered in favor of the
United States may be so registered any time after judgment is entered”; and that “[a]
judgment so registered shall have the same effect as a judgment of the district court
of the district where registered and may be enforced in like manner.” 28 U.S.C. § 1963.
“28 U.S.C. § 1963 allows a party to register one federal court’s money judgment
in another federal district court as a precursor to enforcement of the original judgment
-10-
in the latter court.” Young Again Prods., Inc. v. Acord, 431 F. App’x 308, 309 (5thh Cir.
2011). Section 1963 was adopted to simplify and facilitate the enforcement of federal
judgments, to eliminate the necessity and expense of a second lawsuit, and to avoid
impediments like diversity of citizenship that new federal litigation might otherwise
encounter. See Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d 399, 40708 (5th Cir. 2001).
And, “when a money judgment rendered in one federal district court is registered
in another federal district court at a time when the original judgment is still
enforceable under the laws of both states, registration truly is the equivalent of a new
judgment of the registration court for purposes of enforcement in the registration
district. “ Id. at 405 (emphasis omitted). Under Section 1963, a federal court’s judgment
may be registered and enforced in multiple federal districts. See 28 U.S.C. § 1963 (“A
certified copy of the satisfaction of any judgment in whole or in part may be registered
in like manner in any district in which the judgment is a lien.”); Bd. of Trustees, Sheet
Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1034 (7th Cir.
2000) (noting that “[a] judgment may be registered in many districts”).
Federal Rule of Civil Procedure 69(a)(1) provides that “[a] money judgment is
enforced by a writ of execution, unless the court directs otherwise,” and that “[t]he
procedure on execution – and in proceedings supplementary to and in aid of judgment
or execution – must accord with the procedure of the state where the court is located,
but a federal statute governs to the extent it applies.” FED. R. CIV. P. 69(a)(1). “Federal
law requires that when a prevailing party seeks to collect a judgment in another state
-11-
where the judgment debtors’ assets are located, that collection action must proceed
according to the laws of the state where the property is located.” Hoffart v. Wiggins,
600 F. App’x 261, 263 (5th Cir. 2015).
Together, “Rule 69 and 28 U.S.C. § 1963 contemplate that [a judgment creditor]
could register the district court’s final judgment in another federal district court and
initiate collection proceedings.” Hoffart, 577 F. App’x at 387; accord Nieman v. Hale,
No. 3:14-mc-38-B-BN 2015 WL 5896064, at *3 (N.D. Tex. Aug. 4, 2015) (explaining that
“[t]he appropriate procedure for enforcing a money judgment in this Court from
another federal court is to register the judgment as a new action pursuant to 28 U.S.C.
§ 1963"), rec. adopted, 2015 WL 5896125 (N.D. Tex. Oct. 6, 2015).
Federal Rule of Civil Procedure 69(a)(2) “governs the procedure for
post-judgment discovery in federal courts.” Natural Gas Pipeline Co. of Am. America
v. Energy Gathering, Inc., 2 F.3d 1397, 1405 (5th Cir. 1993). Because a judgment
registered under Section 1963 “shall have the same effect as a judgment of the district
court of the district where registered and may be enforced in like manner,” 28 U.S.C.
§ 1963, post-judgment discovery under Rule 69(a)(2) is available to a judgment creditor
in the district in which the judgment is registered, see generally Hoffart v. DWD
Contractors, Inc., No. 1:08-CV-46, 2014 WL 11310053, at *1 (E.D. Tex. Aug. 21, 2014)
(“However, after closer inspection of Judge Simon’s order, the relief granted therein,
and the Fifth Circuit’s recent affirmance of this court’s opinion that the execution
procedures of Oregon apply to a registered judgment there, Hoffart v. Wiggins, et. al.,
[577 F. App’x 384,] No. 14-40207, 2014 WL 3908144 (5th Cir. Aug. 12, 2014), the court
-12-
finds from this point forward that all discovery disputes regarding the collection and
execution of the registered Oregon judgment should occur in the United States District
Court for the District of Oregon. This court will only preside over disputes involving
the collection and execution of the Final Judgment for property located in Texas.”),
aff’d, Hoffart v. Wiggins, 600 F. App’x at 263 (“Because this court’s opinion in the prior
appeal compels the result here as a matter of law of the case, and because Mr. Hoffart
does not indicate that there is any Texas property from which he can seek to collect the
judgment, the magistrate judge’s order denying further discovery is correct.”); Seven
Arts Pictures, Inc. v. Jonesfilm, 512 F. App’x 419, 424-25, 436-27 (5th Cir. 2013); Cadle
Co. v. Neubauer, 562 F.3d 369, 370 (5th Cir. 2009).
Rule 69(a)(2) provides that, “[i]n aid of the judgment or execution, the judgment
creditor or a successor in interest whose interest appears of record may obtain
discovery from any person – including the judgment debtor – as provided in these rules
or by the procedure of the state where the court is located.” FED. R. CIV. P. 69(a)(2).
“Rule 69 allows post-judgment discovery to proceed according to the federal rules
governing pre-trial discovery, or according to state practice.” Natural Gas, 2 F.3d at
1405. “A judgment creditor thus has the choice of which method to use,” but, if the
creditor “clearly indicate[s] its intent to pursue postjudgment discovery in the manner
provided by the Federal Rules of Civil Procedure,” “Texas law does not apply to [postjudgment] discovery requests” and, “[i]nstead, federal law will apply.” F.D.I.C. v.
LeGrand, 43 F.3d 163, 171-72 (5th Cir. 1995).
“The scope of postjudgment discovery is very broad to permit a judgment creditor
-13-
to discover assets upon which execution may be made.” Id. at 172. Under Rule 69(a)(2),
the United States Supreme Court has explained that “[t]he rules governing discovery
in postjudgment execution proceedings are quite permissive.” Republic of Argentina v.
NML Capital, Ltd., 134 S. Ct. 2250, 2254 (2014).
And the United States Court of Appeals for the Fifth Circuit has held that “[t]he
pretrial rules governing discovery apply” to Rule 69(a)(2) post-judgment discovery,
Mitchell v. Sizemore, 536 F. App’x 443, 444 (5th Cir. 2013), and “Rule 621a of the Texas
Rules of Civil Procedure, like Federal Rule 69, makes post-judgment discovery
coextensive with pre-trial discovery,” Natural Gas, 2 F.3d at 1405-06. For example,
Federal Rules of Civil Procedure 26(b)(1) and 26(b)(2) apply to post-judgment discovery
conducted under federal law and “permit the district court to limit discovery.” Mitchell,
536 F. App’x at 444. And Federal Rule of Civil Procedure 45 applies to post-judgment
discovery under Rule 69(a)(2). See Natural Gas, 2 F.3d at 1406.
Under Rule 45, a party may serve a subpoena commanding a nonparty “to whom
it is directed to ... produce designated documents, electronically stored information, or
tangible things in that person’s possession, custody, or control.” FED. R. CIV. P.
45(a)(1)(A)(iii). Federal Rule of Civil Procedure 45(c)(2)(A) provides that “[a] subpoena
may command: (A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is employed,
or regularly transacts business in person.” FED. R. CIV. P. 45(c)(2)(A). And, under
Federal Rule of Civil Procedure 45(a)(4), “[i]f the subpoena commands the production
of documents, electronically stored information, or tangible things or the inspection of
-14-
premises before trial, then before it is served on the person to whom it is directed, a
notice and a copy of the subpoena must be served on each party.” FED. R. CIV. P.
45(a)(4).
Under Federal Rule of Civil Procedure 45(d)(1), “[a] party or attorney
responsible for issuing and serving a subpoena must take reasonable steps to avoid
imposing undue burden or expense on a person subject to the subpoena,” and “[t]he
court for the district where compliance is required must enforce this duty and impose
an appropriate sanction – which may include lost earnings and reasonable attorney’s
fees – on a party or attorney who fails to comply.” FED. R. CIV. P. 45(d)(1); see also Am.
Fed’n of Musicians of the U.S. & Canada v. SKODAM Films, LLC, 313 F.R.D. 39, 57-59
(N.D. Tex. 2015).
And Federal Rule of Civil Procedure 45(d)(2)(B) requires that “[a] person
commanded to produce documents or tangible things or to permit inspection may serve
on the party or attorney designated in the subpoena a written objection to inspecting,
copying, testing or sampling any or all of the materials or to inspecting the premises
– or to producing electronically stored information in the form or forms requested” –
and that “[t]he objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served.” FED. R. CIV. P. 45(d)(2)(B). “If an
objection is made, the following rules apply: (i) At any time, on notice to the
commanded person, the serving party may move the court for the district where
compliance is required for an order compelling production or inspection. (ii) These acts
may be required only as directed in the order, and the order must protect a person who
-15-
is neither a party nor a party’s officer from significant expense resulting from
compliance.” Id.
Timely serving written objections therefore suspends the non-party’s obligation
to comply with a subpoena commanding production of documents, pending a court
order. See FED. R. CIV. P. 45(d)(2)(B)(ii); Am. Fed’n, 313 F.R.D. at 44. On the other
hand, “[t]he failure to serve written objections to a subpoena within the time specified
by Rule [45(d)(2)(B)] typically constitutes a waiver of such objections, as does failing
to file a timely motion to quash.” Am. Fed’n, 313 F.R.D. at 43 (internal quotation marks
omitted).
Under Federal Rule of Civil Procedure 45(d), “[e]ither in lieu of or in addition to
serving objections on the party seeking discovery, a person can ‘timely’ file a motion to
quash or modify the subpoena” under Federal Rule of Civil Procedure 45(d)(3)(A). In
re Ex Parte Application of Grupo Mexico SAB de CV for an Order to Obtain Discovery
for Use in a Foreign Proceeding, No. 3:14-mc-73-G, 2015 WL 12916415, at *3 (N.D. Tex.
Mar. 10, 2015), aff’d sub nom. Grupo Mexico SAB de CV v. SAS Asset Recovery, Ltd.,
821 F.3d 573 (5th Cir. 2016); accord Monitronics Int’l, Inc. v. iControl Networks, Inc.,
No. 3:13-mc-134-L-BN, 2013 WL 6120540, at *1 (N.D. Tex. Nov. 21, 2013) (“Rule 45
does not define a ‘timely motion’ but does provide that, if the subpoenaed party chooses
to serve objections instead of moving to quash, ‘[t]he objection must be served before
the earlier of the time specified for compliance or 14 days after the subpoena is served.’
FED. R. CIV. P. 45(c)(2)(B).”); cf. Andra Grp., LP v. JDA Software Grp., Inc., 312 F.R.D.
444, 451 (N.D. Tex. 2015). Under Rule 45(d)(3)(A), “[o]n timely motion, the court for the
-16-
district where compliance is required must quash or modify a subpoena that (i) fails
to allow a reasonable time to comply; (ii) requires a person to comply beyond the
geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other
protected matter, if no exception or waiver applies; or (iv) subjects a person to undue
burden.” FED. R. CIV. P. 45(d)(3)(A). Thus, “[i]n the majority of cases, a person –
whether a traditional party (i.e., a plaintiff or defendant) or a non-party – waives
objections if he/she/it fails either to serve timely objections on the party seeking
discovery or to file a timely motion with the court.” Grupo Mexico, 2015 WL 12916415,
at *3.
On a Rule 45(d)(3)(A) motion to quash or modify a subpoena, the moving party
has the burden of proof. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th
Cir. 2004); Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998). “Generally,
modification of a subpoena is preferable to quashing it outright.” Wiwa, 392 F.3d at
818.
Under federal discovery law, on a motion asserting undue burden, “[t]he moving
party has the burden of proof to demonstrate ‘that compliance with the subpoena would
be unreasonable and oppressive.’” Wiwa, 392 F.3d at 818 (quoting Williams, 178 F.R.D.
at 109 (internal quotation marks omitted)). “The moving party opposing discovery must
show how the requested discovery was overly broad, burdensome, or oppressive by
submitting affidavits or offering evidence revealing the nature of the burden.” Andra
Group, LP v. JDA Software Group, Inc., 312 F.R.D. 444, 449 (N.D. Tex. 2015).
“Whether a burdensome subpoena is reasonable must be determined according to the
-17-
facts of the case, such as the party’s need for the documents and the nature and
importance of the litigation.” Wiwa, 392 F.3d at 818 (internal quotation marks and
footnote omitted). “To determine whether the subpoena presents an undue burden, [the
Court] consider[s] the following factors: (1) relevance of the information requested; (2)
the need of the party for the documents; (3) the breadth of the document request; (4)
the time period covered by the request; (5) the particularity with which the party
describes the requested documents; and (6) the burden imposed.” Id. (footnote omitted).
“Further, if the person to whom the document request is made is a non-party, the court
may also consider the expense and inconvenience to the non-party.” Id. (footnote
omitted).
And, under federal law, when “a subpoena is issued as a discovery device,
relevance for purposes of the undue burden test is measured according to the standard
of [Federal Rule of Civil Procedure] 26(b)(1).” Williams, 178 F.R.D. at 110. Rule
26(b)(1), as amended effective December 1, 2015, provides that, “[u]nless otherwise
limited by court order, the scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need not be admissible in
evidence to be discoverable.” FED. R. CIV. P. 26(b)(1).
-18-
The Court also “may find that a subpoena presents an undue burden when the
subpoena is facially overbroad.” Wiwa, 392 F.3d at 818 (footnote omitted). “Courts have
found that a subpoena for documents from a non-party is facially overbroad where the
subpoena’s document requests seek all documents concerning the parties to [the
underlying] action, regardless of whether those documents relate to that action and
regardless of date; [t]he requests are not particularized; and [t]he period covered by the
requests is unlimited.” Am. Fed’n, 313 F.R.D. at 45 (internal quotation marks omitted).
Discussion
The Subpoena was properly issued by the this Court under Federal Rule of Civil
Procedure 45(a), as the court where this enforcement proceeding is pending. See FED.
R. CIV. P. 45(a)(2) (“Issuing Court. A subpoena must issue from the court where the
action is pending.”).
The Subpoena commands Mrs. Gilbert “to produce at the time, date, and place
set forth below” – specifically, at Edgefield’s counsel’s office in Dallas, Texas – certain
identified categories of “following documents, electronically stored information, or
objects.” Dkt. No. 15 at 4 of 85. Because the Subpoena requires compliance in Dallas,
the Gilberts properly filed their Motion to Quash in this Court, which, as required by
Rule 45(d)(3), is the court in the district where compliance with the Subpoena is
required. See FED. R. CIV. P. 45(d)(3)(A); accord CSS, Inc. v. Herrington, No.
3:17-mc-71-N-BN, 2017 WL 4750707 (N.D. Tex. Oct. 20, 2017).
A party, although not in possession or control of the materials sought in a
subpoena and not the person to whom the subpoena is directed, has standing to file a
-19-
motion to quash or modify under Rule 45(d)(3) if he has a personal right or privilege
in the subject matter of the subpoena or a sufficient interest in it. See Ass’n of Am.
Physicians & Surgs., Inc. v. Tex. Med. Bd., No. 5:07CV191, 2008 WL 2944671, at *1
(E.D. Tex. July 25, 2008). The Court finds – and Edgefield does not contest – that Mr.
Gilbert has a sufficient interest in the materials sought by the Subpoena from his wife
to have standing to jointly file the Motion to Quash with Mrs. Gilbert.
The Gilberts argue that the Subpoena should be quashed because (1) the
discovery should be conducted in Parker County; (2) marital property law makes most
of the Subpoena’s requests irrelevant; (3) the Subpoena seeks documents from Mrs.
Gilbert that Edgefield already has or can seek from Mr. Gilbert or other sources; and
(4) the Subpoena’s document requests are too broad in both subjects and the time
period requested.
And the Gilberts assert that the Court should order Edgefield under Rule
45(d)(1) to pay Mrs. Gilbert’s expenses in moving to quash the Subpoena, because
Edgefield did not take reasonable steps to avoid imposing undue burden or expense on
Mrs. Gilbert.
The Gilberts further contend that, if the Court declines their request to quash
the Subpoena, the Court should require Edgefield to modify its discovery requests
under Rule 45(d)(3)(A)(iv) to specifically tailor them to seek information about assets
that could be used to satisfy Edgefield’s debt and to refrain from seeking information
from Mrs. Gilbert that was already provided by Mr. Gilbert or seeking information
relating to Mrs. Gilbert’s assets which are not subject to seizure for Mr. Gilbert’s debts.
-20-
More specifically, the Gilberts request that, if the Court is unwilling to quash the
Subpoena entirely, Mrs. Gilbert should be ordered only to produce the documents they
have offered in two letters sent to Edgefield’s counsel to attempt to resolve this dispute,
which are attached as Exhibits A and B.
I.
The Gilberts’ preference for Parker County is not a basis to quash the Subpoena.
The Gilberts first assert that Edgefield’s post-judgment “discovery should be
undertaken through the lawsuits currently pending in Parker County, Texas, not in
federal court in Dallas,” because “Parker County is where (a) the [Gilberts] reside, (b)
Edgefield’s judgments were entered or are registered, (c) Edgefield has been conducting
collection efforts since 2016, (d) Edgefield, and its predecessor in interest have taken
extensive discovery from the judgment debtor, [Mr. Gilbert], and (e) Edgefield issued
the very same post-judgment discovery request to Mrs. Gilbert the day before this
action was commenced.” Dkt. No. 2 at 1.
According to the Gilberts, “[e]ngaging in duplicative, burdensome discovery
before this Court is blatant forum shopping in an attempt to harass Mrs. Gilbert”;
“[e]ngaging in discovery in Parker County is not prejudicial to Edgefield, who, up until
recently, has conducted all of its collection actions there, and it is less of a burden on
the [Gilberts] and this Court”; and, “[s]ince there is another venue that is available to
Edgefield, the [Gilberts] request that the Court require them to use it.” Id. at 9.
The Gilberts contend that
Edgefield should conduct this post-judgment discovery in Texas state
court in Parker County. Regions Bank, Edgefield’s alleged assignor, has
already domesticated Judgment Two in Parker County, and Judgment
-21-
One was entered in Parker County. Furthermore, Edgefield has engaged
in very substantial post-judgment discovery and collection actions in
Parker County over the last several years. That discovery included a
notice of intent to issue a subpoena to Mrs. Gilbert to produce the exact
same documents. However, for reasons which are unknown, Edgefield
apparently decided not to serve the subpoena. There appears to be no
reason for this case to have been commenced in Dallas federal court other
than to increase cost to the [Gilberts]. For the reasons discussed in more
detail below, the [Gilberts] request the Court quash the Subpoena and
require Edgefield to proceed in Parker County.
....
This discovery should be conducted in Parker County, not only
because that is where the Edgefield has conducted its discovery to date
and because the [Gilberts] live there, but also because post-judgment
discovery is more expeditiously handled in the state court of Parker
County. Most judgment creditors who obtain federal judgments
domesticate them in state courts to conduct post-judgment discovery and
collection efforts. In this case, the original judgment creditor, Regions
Bank did just that in 2010.
Dkt. No. 3 at 2, 3.
But, while acknowledging Rule 69(a)(2), the Gilbert’s counsel admits that he
“has been unable to find any authority for when a federal court should decline to
preside over post-judgment discovery in favor of conducting the discovery through the
state courts, especially when, as here, substantial discovery has been conducted in
state court.” Id. at 3.
And, where Edgefield has permissibly registered the Eastern District of
Louisiana judgment in this Court under Section 1963 for purposes of post-judgment
collection and is therefore entitled to pursue Rule 69(a)(2) post-judgment discovery, the
Court is aware of no basis, either. And, as Edgefield notes, Section 1963 specifically
states that “[t]he procedure prescribed under this section is in addition to other
procedures provided by law for the enforcement of judgments.” 28 U.S.C. § 1963.
-22-
The Court is unpersuaded by the Gilberts’ analogizing reference to 28 U.S.C. §
1334(c)(1). In contrast to proceedings to which Section 1334(c)(1) might apply, there is
no statutory basis for abstention in this context. Rather, as the Court has laid out
above, the statute and Federal Rules grant judgment creditors broad rights to seek to
enforce federal court judgments in multiple federal districts and to pursue postjudgment discovery in aid of the judgment or its execution.
The Court will not accept the Gilberts’ invitation to quash the Subpoena in order
to deprive Edgefield of those mechanisms in this Court because the Gilberts –
including the judgment debtor Mr. Gilbert – would prefer to litigate post-judgment
discovery issues in a different forum.
II.
The Gilberts’ relevance and privilege objections do not support quashing the
Subpoena.
The Gilberts then assert that “the documents requested in the Subpoena should
be narrowed and specifically tailored to the facts of the matter to seek ... information
about assets that could be used to satisfy Edgefield’s debt, rather than the
carpet-bombing approach of sending 112 broad requests for information about Mrs.
Gilbert’s separate and solely managed property.” Dkt. No. 2 at 2.
Insofar as the Gilberts contend that the Subpoena should be quashed because
it seeks documents that pertain to assets and accounts that Mrs. Gilbert asserts are
her separate property and her solely managed community property, the Gilberts have
not shown that post-judgment discovery regarding those assets – as opposed to any
challenge that Mrs. Gilbert may or may not be able to raise to actual execution efforts
-23-
on those assets – is irrelevant for discovery purposes. Measured against the Gilberts’
relatively minimal statements in their affidavits, see Dkt. No. 4-6 at 48-53 of 53,
Edgefield has shown that the discovery that it seeks into the Gilberts’ assets is at least
relevant to its collection efforts, including based on its allegations that Mr. Gilbert may
have transferred funds into accounts that may otherwise have been his wife’s separate
property or solely managed community property, see Dkt. No. 14 at 8-16.
In connection with this argument, Edgefield asserts that it is proceeding under
Texas, not federal, law – but it is not clear to the Court from the record where and
when Edgefield first communicated that election to Mrs. Gilbert. See id. at 7.
Regardless, whether analyzed under Texas or federal law discovery standards, the
Gilberts’ blanket relevance objection is not well-taken and is overruled.
Relatedly, insofar as the Gilberts contend that some or most of the Subpoena’s
document requests may seek some information subject to the attorney-client privilege,
they have not met their burden to show that this is a basis to quash or modify the
Subpoena under Rule 45(d)(3)(A)(iii). Federal Rule of Civil Procedure 45(e)(2) governs
a non-party’s withholding of information on the grounds of privilege and is
substantively identical to Federal Rule of Civil Procedure 26(b)(5)’s requirements as
to a responding party. See Am. Fed’n, 313 F.R.D. at 46. Compare FED. R. CIV. P.
26(b)(5) (“When a party withholds information otherwise discoverable by claiming that
the information is privileged or subject to protection as trial-preparation material, the
party must: (i) expressly make the claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed – and do so in a manner
-24-
that, without revealing information itself privileged or protected, will enable other
parties to assess the claim.”), with FED. R. CIV. P. 45(e)(2)(A) (“A person withholding
subpoenaed information under a claim that it is privileged or subject to protection as
trial-preparation material must: (i) expressly make the claim; and (ii) describe the
nature of the withheld documents, communications, or tangible things in a manner
that, without revealing information itself privileged or protected, will enable the
parties to assess the claim.”). The Gilberts have the burden to make the required
showing to establish the claimed privilege as to particular requests in support of a
modification or quashal order, but, here, they have not provided the required level of
detail and information to do so.
III.
The Subpoena properly seeks discovery from Mrs. Gilbert despite other sources.
The Gilberts further contend that “the documents requested in the Subpoena
should be narrowed and specifically tailored to the facts of the matter to seek ...
information not already provided by Mr. Gilbert or available from, the judgment
debtor.” Dkt. No. 2 at 2.
Here, too, Edgefield has sufficiently shown why, under broad post-judgment
discovery standards, it appropriately seeks discovery directly from its judgment
debtor’s wife and why Edgefield is not required to rely only on discovery directly from
Mr. Gilbert or his agents, affiliates, and banks.
Even fully considering the additional protections that the law may afford in
discovery proceedings to third parties, the Court finds that the Gilberts have not
demonstrated that Edgefield’s seeking document discovery from Mrs. Gilbert through
-25-
its Subpoena is inappropriate or excessive because Edgefield can seek, and has sought,
post-judgment discovery from the judgment debtor himself and other sources.
IV.
The Subpoena’s document requests are not facially overbroad.
The Gilberts also assert that the Subpoena is facially overbroad because it
“seeks 112 categories of documents” and “Edgefield has essentially propounded form
post-judgment discovery more appropriately addressed to a judgment debtor to a
non-judgment debtor.” Dkt. No. 3 at 7. According to the Gilberts, “[a]s such, these
requests are overbroad and are not tailored to the facts and circumstances of this case.”
Id.
As explained above, “[t]he scope of postjudgment discovery is very broad to
permit a judgment creditor to discover assets upon which execution may be made,”
LeGrand, 43 F.3d at 172, and “[t]he rules governing discovery in postjudgment
execution proceedings are quite permissive,” Republic of Argentina, 134 S. Ct. at 2254.
Neither the Federal Rules nor the applicable Texas rules place a fixed limit on the
number of requests for production that a judgment creditor may serve. While the Court
will address the Gilberts’ objections to specific requests below, the Court finds that the
Gilberts have not shown that the Subpoena subjects Mrs. Gilbert to an undue burden
as facially overbroad based on the number of document requests.
The Gilberts further contend that “[e]ach of the requests asks for document for
the past five years,” which the Gilberts assert is too long a time period. Dkt. No. 3 at
7. They argue that, “[i]f the Subpoena is not quashed, it should be limited to two years
unless Edgefield can show some need to a five-year look back.” Id.
-26-
Edgefield responds that “the requests are limited to the past five years” and
that, where Edgefield “has had a right to investigate Defendants’ assets since the
signing of the Louisiana Federal Judgment in 2010, five years of information requests
are clearly limited and reasonable.” Dkt. No. 14 at 17.
The Court determines that Edgefield has the better of this argument. The
Gilberts offer no specific explanation as to why requests going back five years – as
opposed to two years – are inappropriate, and the Court finds that the requested time
period is reasonable in this context.
V.
The Gilberts’ challenges to specific document requests are largely unavailing.
The Gilberts also contend that the Subpoena’s requests “are not drafted with
particularity” and that, “[b]ased on their wording, the requests ask for a wide-range
of documents, where “[e]ach request can be read to include a lot of irrelevant,
privileged, and unnecessary information.” Dkt. No. 3 at 7. And the Motion to Quash
addresses specific objections to each document request in the Subpoena. See Dkt No.
2 at 10-67.
The Gilberts’ objections to each of the requests based on (1) alleged irrelevance,
(2) the availability of discovery from other sources, and (3) an allegedly overlong time
period are overruled for the reasons discussed above.
And the Gilberts’ unsupported and unexplained objections to various requests
“to the extent” that documents responsive to the particular request may encompass
privileged documents do not provide a proper basis for quashing or modifying the
Subpoena, as discussed above.
-27-
But the Court finds that Requests XI.F (passports), XI.J (Mrs. Gilbert’s
professional licenses, XI.K (driver’s licenses), and XI.L (birth certificates) seek
documents that are not relevant or necessary to Edgefield’s collection efforts, even in
the context of broadly permissible post-judgment discovery. The Subpoena is
QUASHED as to those requests.
The Gilberts’ objections that responding to requests would be unduly
burdensome for Mrs. Gilbert are overruled because they are not supported by any
information or evidence quantifying the burden that responding would impose on her
and are supported only by the Gilberts’ arguments based on the breadth and number
of the requests – which the Court has already found not to be facially overbroad. And,
as Edgefield notes, Mrs. Gilbert, through her counsel, has already proposed
agreements under which she would produce at least some of the materials responsive
to the Subpoena’s requests, further undermining the force of the Gilberts’ undue
burden objections.
Further, notwithstanding the Gilberts’ objections to the contrary, the Court finds
that the Subpoena’s requests are reasonably particular in identifying what materials
each request seeks.
The Gilberts also object to certain requests on the basis that Mr. Gilbert or Mrs.
Gilbert do not have the kinds of assets or accounts or the like described by the
document request. But that is not a proper basis for an objection but rather is a basis
to respond to the request with an explanation that no responsive documents exist. And
being required to do just that does not impose any undue burden on Mrs. Gilbert.
-28-
Neither does the Gilberts’ offer to allow Edgefield to inspect the Gilberts’ home
excuse Mrs. Gilbert from the document discovery commanded by the Subpoena.
But the Court will order that – and correspondingly modify the Subpoena insofar
as – Mrs. Gilbert is not required to produce the same documents that Mr. Gilbert has
produced to Edgefield in other proceedings and may instead point to the exact location
(presumably the Bates numbers) of the produced documents, identified individually,
as produced to Edgefield in connection with its other collection matters.
The Court, for all the reasons explained above, otherwise DENIES the Gilberts’
request to quash or modify the Subpoena.
VI.
Edgefield did not violate its duty to take reasonable steps to avoid imposing
undue burden or expense on Mrs. Gilbert.
The Gilberts finally contend that the Court should “grant the [Gilberts] costs
and expenses because Edgefield failed to fulfill its duty under Federal Rule of
Procedure 45(d)(1) to refrain from sending unduly burdensome discovery requests to
Mrs. Gilbert.” Dkt. No. 3 at 2. According to the Gilberts, “[i]n this case, Edgefield did
not discharge its obligation; rather, it issued 112 document requests to a non-judgment
debtor, requesting information that it already has or that it could obtain from another
source, or information that is irrelevant.” Id. at 8. The Gilberts assert that Edgefield
“never should have asked [Mrs. Gilbert] for things that are irrelevant, that Plaintiff
does not need, that Plaintiff already has, that are too broad in time or number, that are
not described with particularity, or that are otherwise burdensome.” Dkt. No. 18 at 3.
The Gilberts “ask the Court to set an evidentiary hearing to permit them to present
-29-
evidence of the expenses and costs incurred defending the Subpoena, including
reasonable attorneys’ fees.” Dkt. No. 3 at 8.
The Court finds, under the particular circumstances here and based on the
Court’s findings and conclusions above, that Edgefield did not fail to comply with its
and its attorneys’ duty to take reasonable steps to avoid imposing undue burden or
expense on Mrs. Gilbert in serving its Subpoena so as to justify a Rule 45(d)(1)
sanction.
The Court DENIES Gilberts’ request for sanctions against Edgefield under Rule
45(d)(1).
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part Defendant Kenneth J. Gilbert and Non-Party Helen K. Gilbert’s
Motion to Quash Subpoena and Objection to Document Requests [Dkt. No. 2] and
QUASHES the Subpoena served on Helen K. Gilbert by Plaintiff Edgefield Holdings
as successor in interest to Regions Bank only as to Requests XI.F, XI.J, XI.K, and XI.L.
The parties will bear their own expenses, including attorneys’ fees, in connection
with the Motion to Quash Subpoena and Objection to Document Requests [Dkt. No. 2].
SO ORDERED.
DATED: March 2, 2018
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
-30-
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?