In Re: Subpoenas for Documents Issued to ThompsonMcMullan, P.C.

Filing 17

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/17/2016. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

IN RE SUBPOENAS FOR DOCUMENTS
ISSUED TO THOMPSONMCMULLAN, P.C.
Civil Action No. 3:16-MC-1

MEMORANDUM OPINION

This

matter

motions:

is

NON-PARTY

before

MOTION

MOTION

TO

(Docket

TO

QUASH

No.

(Docket

SUBPOENAS
All

Inc.
P. C.

Fide' s

suit

No.
TO

motions
Fide")

on

three

P.C.'S

1),

ISSUED

three

("Bona

ThompsonMcMullan,
underlying

(Docket No.

COMPEL

12).

Conglomerate,

Court

THOMPSONMCMULLAN,

SUBPOENAS FOR DOCUMENTS
INC.'S

the

MOTION

TO

QUASH

BONA FIDE CONGLOMERATE,
9),

and

SOURCEAMERICA'S

THOMPSON

MCMULLAN,

pertain
seeking

("ThompsonMcMullan")
against

interrelated

to

SourceAmerica

Bona

documents
for

use

P.C.

in

Fide
from
Bona

("SourceAmerica")

in the Southern District of California.
For the

reasons

stated below,

P. C. 'S MOTION TO QUASH SUBPOENAS

NON-PARTY THOMPSONMCMULLAN,

FOR DOCUMENTS

(Docket No.

1)

will be granted. BONA FIDE CONGLOMERATE, INC.'S MOTION TO COMPEL
(Docket No.

9)

will be denied.

SOURCEAMERICA' S MOTION TO QUASH

SUBPOENAS ISSUED TO THOMPSON MCMULLAN, P.C.
be granted.

1

(Docket No. 12) will

PROCEDURAL HISTORY

A coherent
requires

a

explanation

brief

of

the

examination of

dispute

the

before

this

relationships

Court

between

the

interested parties.
The

"Abili tyOne" program is

that

requires

some

that

goods

the

and

services

("Affiliates")
persons.
Quash,

federal

a

federal

procurement program

government

exclusively

organizations

non-profit

from

obtain

which employ legally blind or severely disabled

(Bona Fide's Mem. in Opp. to ThompsonMcMullan's Mtn. to
Docket

SourceAmerica

5,

No.
is

responsible for

"Central

TMM

Opp. II) •

Agency"

{"CNA")

Fide's

Non-Profit

awarding contracts for such goods and services

among Affiliates.
such Affiliate.

a

("Bona

2-3)

(Bona

Fide' s

TMM Opp.

(Bona Fide' s TMM Opp.

3) .

Bona

Fide

is

one

3). Between 2009 and 2012,

SourceAmerica and Bona Fide were embattled over allegations that
SourceAmerica improperly awarded a Las Vegas-based contract to a
different Affiliate, when Bona Fide claimed that it was the most
qualified
Opp.

3-5).

(Bona

vendor

under

the

stated

criteria.

(Bona

Fide' s

That dispute settled out of court on July 27,

Fide' s

TMM Opp.

5) .

The Settlement Agreement

TMM
2012.

included a

provision that SourceArnerica must use its best efforts to treat
Bona

Fide

office

of

fairly going forward.
SourceAmerica's

(Bona

General

monitoring this fair treatment.

Fide' s

Counsel

(Bona Fide' s
2

TMM Opp.
was

in

TMM Opp.

5).

charge
5) .

The
of
Jean

Robinson

("Robinson")

SourceAmerica.
Despite

was,

at

that

time,

the

Settlement

Beginning in May 2013,
speaking

decisions.
these

Counsel

for

(Bona Fide's TMM Opp. 5).
Agreement,

Bona Fide' s

to

(Bona

Robinson

Fide' s

conversations.

Robinson

told

schemes"

to

Lopez

that

SourceAmerica

not
5).

CEO,

Ruben Lopez

5).

Fide's

Lopez

recorded

Opp.

5).

used

TMM

a

SourceAmerica

routinely allocate

("Lopez"),
award

SourceAmerica's

about

TMM Opp.
(Bona

did

(Bona Fide' s TMM Opp.

award any new contracts to Bona Fide.

began

General

the majority of

"many"

of

Allegedly,
"variety

its

of

contracts,

including high value contracts, to a select "club" of Affiliates
whose

executives

SourceAmerica' s

or

directors
Directors.

Board of

(Bona

recently

had

Fide' s

Fide

District

brought
of

suit

California

Settlement Agreement

against
on

SourceAmerica

April

4,

2014,

in

for

on

TMM Opp.

"Based largely upon the information gained from Ms.
Bona

sat

Robinson,"

the

Southern

breach

(the "California litigation").

5).

of

the

(Bona Fide' s

TMM Opp. 6) •
On

December

2,

2014,

SourceAmerica

filed

Robinson in the Circuit Court of Fairfax County:
15501.

(Bona

2014-15501
SourceAmerica
malpractice,

Fide' s
as

TMM

Opp.

"related

activities

case CL-2014-

characterizes

CL-

[Robinson's]

to
to

against

Fide

disclosures

of

6).

Bona

suit

outside

sources

including

legal

conspiracy ... and breach of fiduciary duty."

(Bona

3

Fide's

TMM

Opp.

characterization,

and

disputes

SourceAmerica

6) •

claims

that

CL-2014-15501

several instances of malpractice by Robinson,
Fide issue was a small part.

stemmed

12,

8,

11)

(SourceAmerica' s Mem.

("SourceAmerica' s

SA Mem. ").

Robinson was represented by ThompsonMcMullen.
Robinson

settled

CL-2014-15501

on

from

of which the Bona

Mtn. to Quash Subpoenas Issued to ThompsonMcMullan,
No.

this

In

in Supp.
P.C.,

of

Docket

CL-2014-15501,

SourceAmerica and

September

11,

2015.

(Bona

Fide's TMM Opp. 6). The order of dismissal mandated that
[Robinson]
shall be permanently enjoined
from disclosing SourceAmerica's privileged
and/or confidential information, as defined
in the Settlement Agreement and Release
except as provided for by the Confidential
Settlement Agreement and Mutual Release.
(Bona Fide's TMM Opp. 6).
On
against

October
Robinson

2015-013033.
not
Mem.

2015,

in

(Bona

represent
in

1,

SourceArnerica

the

Circuit

Fide' s

TMM

Robinson in the

Supp.

of

Mtn.

court

Opp.

brought

second

suit

County:

CL-

ThompsonMcMullen

did

of

Fairfax

6-7) .

second suit.
to

Quash,

a

(ThompsonMcMullen' s

Docket

No.

2,

2)

("ThompsonMcMullen's TMM Mem.").
Meanwhile,

in

the

California

litigation,

requested to leave to amend its pleadings
subsequently amended

its

pleadings

SourceArnerica

(October 30, 2015) and

(January

7,

2016)

to bring

counterclaims and third-party claims against Bona Fide and Lopez

4

for

violations

statutes.

of

California

privacy

(Bona Fide' s TMM Opp.

and

unfair

competition

7) . The amended claims related

to Lopez's communications with Robinson and Lopez's recording of
those conversations.

(Bona Fide's TMM Opp. 7).

Given [Robinson's] manifest importance to
both
[Bona
Fide's]
claims
and
[ SourceAmerica' s] counterclaims, [Bona Fide]
subpoenaed ThompsonMcMullen' s non-privileged
records
regarding
SourceAmerica's
suits
against her, with the knowledge that the
subject
matter
of
those
lawsuits
significantly
overlapped
with
this
one.
Additionally, [Bona Fide] was aware that the
first
of
these
suits
resulted
in
the
aforementioned
Settlement
Agreement
that
could
affect
Ms.
Robinson's
future
testimony.
(Bona Fide's TMM Opp. 7).
Initially,

Bona Fide issued a subpoena to ThompsonMcMullen

seeking documents

in ThompsonMcMullen' s

CL-2015-13033 case,
January 4,
documents
2014-15501

2016,
related
case.

files

relating

to

the

in which ThompsonMcMullen was uninvolved. On

Bona Fide served an Amended Subpoena seeking
to both
(Bona

the

CL-2015-13033

Fide's

TMM

Opp.

case
7-8).

and the
The

Subpoena demanded:
REQUEST FOR PRODUCTION NO. 1:
Any
and
all
non-privileged
DOCUMENTS,
including, but not 1 imi ted to any and al 1
COMMUNICATIONS, RELATED TO case numbers CL2015-13033 and CL-2014-15501 filed in the
Circuit Court of Fairfax County, Virginia.
REQUEST FOR PRODUCTION NO. 2:

5

CL-

Amended

Any and all written agreements between Jean
Robinson and SOURCEAMERICA whereby one or
both parties, in whole or in part, agreed to
settle claims RELATED TO case number CL2015-13033 or CL-2014-15501 filed in the
Circuit Court of Fairfax County, Virginia.
REQUEST FOR PRODUCTION NO. 3:
Any and all non-privileged COMMUNICATIONS to
which SOURCEAMERICA is a party that are in
YOUR custody or control.
REQUEST FOR PRODUCTION NO. 4:
Any and all COMMUNICATIONS to which YOU and
SOURCEAMERICA are a party.
REQUEST FOR PRODUCTION NO. 5:
Any and all non-privileged COMMUNICATIONS to
which SOURCEAMERICA and Jean Robinson are a
party that are in YOUR custody or control.
REQUEST FOR PRODUCTION NO. 6:
Any and all responses, answers, admissions,
denials, or DOCUMENTS received by YOU from
SOURCEAMERICA pursuant to discovery requests
or disclosures in case numbers CL-2015-13033
and CL-2014-15055 filed in the
Circuit Court of Fairfax County, Virginia.
REQUEST FOR PRODUCTION NO. 7:
Any and all transcripts of depositions taken
by any party in case number CL-2015-13033
and CL-2014-15055 filed in the Circuit Court
of Fairfax County, Virginia.
REQUEST FOR PRODUCTION NO. 8:
Any and all pleadings and case filings,
including,
but
not
limited
to,
the
complaint, answer, and any and all motions,
affidavits, briefs, and memoranda filed in
case numbers CL-2015-13033 and CL-2014-15501
in the Circuit Court of Fairfax County,
Virginia.
REQUEST FOR PRODUCTION NO. 9:
Any
non-privileged
DOCUMENTS
COMMUNICATIONS that sufficiently show
6

or
any

and
all
of
Jean
Robinson's
residential address(es).

current

(Bona Fide's TMM Opp. 8-9).
ThompsonMcMullen
did

not

represent

documents
file"

informed

Robinson

Bona

in

from CL-2015-13033,

Fide

telephone

and that

it

that

had

no

it

it had only a
the

"limited

Settlement Agreement

firm to return or destroy all

during discovery.

that

CL-2015-13033,

regarding CL-2014-15055 because

required the

by

documents

received

(Bona Fide's TMM Opp. 9). Bona Fide offered to

pay the expense of producing whatever non-privileged documents
remained in ThompsonMcMullen's possession.

(Bona Fide's TMM Opp.

ThompsonMcMullen further stated that it would not produce

10) .

the Settlement Agreement in CL-2014-15055 without a court order
on grounds that the Agreement was confidential.
Opp.

10).

Bona

preventing

Fide

offered

disclosure

ThompsonMcMullen declined.
On January 27,
Quash

Subpoenas

("ThompsonMcMullan's
(Docket No.
a

Memorandum

Opp.")
11)

2)

2016,

agree

to

a

protective

confidential

of

order

documents;

(Bona Fide's TMM Opp. 10).
ThompsonMcMullan filed its Motion to
(Docket

Documents

for
TMM

to

(Bona Fide's TMM

Mtn.")

and

a

Memorandum

No.
in

1)

Support

("ThompsonMcMullan' s TMM Mem. "). Bona Fide filed
in

Opposition

(Docket

No.

5)

("Bona

and ThompsonMcMullan filed a Rebuttal Brief

( "ThompsonMcMullan' s TMM Reply") .

7

Fide's

TMM

(Docket No.

After

filing

ThompsonMcMullan
Compel
in

its

filed

(Docket No.

Support

9)

(Docket

Memorandum
its

reply,

in

Opposition

Bona

Fide

filed

("Bona Fide' s BF Mtn. ")
No.

("Bona

10)

but

Fide's

a

before

Motion to

and a Memorandum
BF

Mem.")

which

reiterated the points made in its earlier Motion in Opposition.
ThompsonMcMullan's
essentially

Memorandum

rests

on

in

Opposition

ThompsonMcMullan' s

(Docket

memorandums

No.

in

14)

support

of its own motion. Bona Fide did not file a reply.
SourceAmerica also filed a Motion to Quash
( "SourceAmer ica' s SA Mtn. ")
No.

13)

(Docket No.

and a Memorandum in Support

( "SourceAmerica' s

SA

Mem. ") .

Memorandum in Opposition (Docket No. 15)

Bona

Fide

12)

(Docket
filed

a

("Bona Fide's SA Opp.")

and SourceAmerica filed a reply (Docket No. 16).

ANALYSIS

I. SourceAmerica's Standing
Fed.
quash,

R.

Civ.

and Fed.

P.

R.

45 governs

Civ.

26 (c}

P.

motion for a protective order.
Transport

Co.,

Inc.,

289

standing to bring a motion to
governs the right to bring a

See also Singletary v.

F.R.D.

237,

239,

240

n.2

Sterling
(E.D.

Va.

2012).
First,
order under

SourceAmerica

has

Fed.

P.

R.

Civ.

standing
26(c) (1).

to

seek

a

protective

"A party or any person

from whom discovery is sought may move for a protective order in
8

the court where the action is pending ... The court may,
cause,

issue

annoyance,

an

order

to

protect

a

party
or

oppression,

embarrassment,

or

for good

person

undue

from

burden

or

expense." Fed. R. Civ. P. 26(c) {1). This encompas_ses one party's
right to challenge an opposing party's subpoenas directed at a
third-party.
Eastern

Singletary,

District

of

289 F.R.D.

Virginia

at 239,

cases

for

240 n.2

the

(collecting

proposition

that

parties may seek to quash and seek protective orders when third
parties are subpoenaed).
standing

to

seek

a

SourceAmerica,

protective

order

as a party,
for

any

of

clearly has
the

reasons

listed in Rule 26 (c) (1).
Bona

Fide

challenge

argues

the

(relying
( S. D.
has

Southern

District

2015) )

standing to

burden.") .

that

it

parties

of

Ohio.

LLC

v.

(Bona

Doe,

Fide's

2015

is

the

subpoena

on

the

practice

and

enjoy

the

right

third parties on the basis

Singletary,

289

F.R.D.

LLC,

to

ground of undue burden.

directed at

Tecum to AOL,

standing

WL

SA

Opp.

268995,

7)

at

*2

("only the entity responding to the subpoena

challenge

However,

lacks

Bona Fide relies on a series of cases out

on Malibu Media,

Ohio.

district

SourceAmerica

the Amended Subpoena on the

For this proposition,
of

that

550

at
F.

239,

240

Supp.

to

the

basis

of

precedent
challenge

in

2d 606,

In
612

re

Subpoena

{E.D.

this

subpoenas

of undue burden.

n.2;

undue

Va.

E.g.,
Duces
2008).

Such practice and precedent conforms with the text of Fed.
9

R.

Civ.

P. 26, which states that "[t]he court may,

for good cause,

issue an order to protect a ... person from undue burden." Fed. R.
Civ.

26(c) (1) . 1

P.

The

rule

does

not

impose

any

limitations

prohibiting a party from raising the issue of undue burden on
behalf

of

a

third

order. 2

burden

party

Bona

before

Fide's

the

court

reliance

issues
Malibu

on

that

undue

Media

is,

accordingly, unavailing under precedent in this district.
Second,
subpoena

Source America has

because

SourceAmerica
confidential

of

the

interplay

unquestionably
or

privileged
a

has

"Ordinarily,

party

challenge

a

subpoena

issued

some

personal

right

to
or

744

(4th Cir.

2005)

Rules

standing

does
a

not

privilege

and

45.
any

by

have

nonparty

26

the

Idema,

Amended

standing

unless

in

instant

challenge

to

covered

sought by the subpoena." United States v.
740,

quash the

between

material

Subpoena.

claims

standing to

the

the

to

party

information

118 Fed. App'x

(unpublished) ; 3 Singletary,

289 F.R.D.

1

Undue burden may be established by proving irrelevance or
overbreadth, as discussed in the subsequent section of this
opinion.

2

Rule 45 likewise lacks any provision circumscribing standing on
the issue of undue burden. Fed. R. Ci v. P. 4 5 ( d) ( 3) ("the court
... must quash or modify a subpoena that ... subjects a person to
undue burden."); Fed. R. Civ. P. 45 (d) (1) ("A party ... issuing
and serving a subpoena must take reasonable steps to avoid
imposing undue burden ... on a person subject to the subpoena") .
3

Unpublished opinions of the Fourth Circuit are not binding, but
are persuasive analytical tools.
10

at 239. 4 To the extent that SourceAmerica claims that the request
includes

confidential and privileged information,

unquestionably claims

the

contemplated by Rule 45.
The

interaction

sort

of personal

right

do

not

or privilege

(SourceAmerica's SA Mem. 8, 11).

between

Rules

26

and

45

SourceAmerica standing to quash those portions
which

SourceAmerica

implicate

SourceAmerica' s

rights on undue burden grounds.

also

gives

of the subpoena

privileges

or

personal

Courts in this district take a

pragmatic approach to the interactions of Rules 26 and 45. E.g.,
Singletary,
has

289

F.R.D.

at

240

n.2.

Because a

protective order

the practical effect of both quashing an

and preemptively quashing all

future

instant

subpoenas,

courts

subpoena
in this

district have held that a party's standing to seek a protective
order on behalf of a third party on the basis of undue burden
establishes that party's standing to move to quash a subpoena on
the

same

basis

overbreadth).
cases

in

2:12cv248,

of

undue

Singletary,

burden
289

various

at 3

(E.D.

irrelevance

F.R.D.

at

240

Pena

v.

Burger

districts);

slip op.

(including

Va.

4

Sept.

21,

n.2

2012)

or

(collecting
King

Corp.,

(Docket No.

Such cases of "personal right or privilege" often arise in
situations where a defendant subpoenas a plaintiff's previous
employers regarding plaintiff's employment history. Singletary,
289 F.R.D. at 240 n.2 (collecting cases in various districts);
Pena v. Burger King Corp., 2:12cv248, slip op. at 3 (E.D. Va.
Sept. 21, 2012) (Doc. 23).
11

23) .

This

practical

District

of

constraints

rule

undue

consistent

recognition

Rule

of

to

also

Virginia's

serve

26(b)

discovery mechanisms,
standing

is

by

any

discovery

seeking

relevance set by Rule 26. Cook v. Howard,
(4th Cir.

2012);

2014 WL 66834,
Southern Bank

Union

*3
&

First Market

(E. D.

Va.

Trust Co.,

Jan.

6,

2: 13-CV-8,

Eastern

relevance

on

all

other

such that parties have

request

information

the

the

that

constraints

including Rule 45,

challenge

burden

as

with

that

imposes

an

scope

of

484 F. App'x 805,

812

beyond

Bank v.
2014);

the

Bly,

3:13-CV-598,

Stoney Glen,

2013 WL 55142 93,

LLC v.

*4

( E. D.

Va. Oct. 2, 2013); Singletary, 289 F.R.D. at 241. 5
SourceAmerica has standing to quash the subpoena under Fed.
R. Civ. P.

45 and standing to seek a protective order under Fed.

R. Civ. P. 26.

II. Undue Burden, Relevance, and Overbreadth
A. Governing Law

Rule

45 (c) (3)

5

governs

Union

34(c);

that

45

First

provides

"subjects

a

third-party
Market

that

a

person

Bank,

subpoenas.
2014

WL

Fed.
66834

R.
at

court may quash or modify a
to

undue

burden."

Fed.

R.

Civ.
*3.

Rule

subpoena
Civ.

This is discussed in greater depth in the following section.
12

P.

P.

45 (d) (3); Stoney Glen,
"party

or

subpoena

attorney

must

take

2013 WL 5514293 at *4. Additionally,
responsible

reasonable

for

steps

issuing
to

avoid

and

serving

imposing

the
a

undue

burden or expense on a person subject to the subpoena." Fed. R.
Civ. P. 45

(c) (1).

A party may seek to quash or modify a subpoena on grounds
of

irrelevance

overbreadth
Rule

or

are

26 (c) (1)

not

overbreadth,
explicitly

or Rule

45 (c) (1),

even
listed

though
as

because

irrelevance

grounds
either

to

and

quash

in

irrelevance

or

overbreadth necessarily establishes undue burden. This corollary
to

Rules

26

(c) (1)

and

Rule

45 (c) (1)

arises

from

interaction with Rule 26(b).
Rule 26(b) limits the scope of discovery to
those materials that are "relevant to any
party's claim or defense." Fed. R. Ci v. P.
2 6 (b) ( 1) . Relevant information need not be
admissible at trial, but it must appear to
be "reasonably calculated to lead to the
discovery
of
admissible
evidence."
Id.
Notably, the Court "must limit the frequency
or extent of discovery" if "the burden or
expense of the proposed discovery outweighs
its likely benefit, considering the needs of
the case, the amount in controversy, the
parties' resources, the importance of the
issues at stake in the action, and the
importance of the discovery in resolving the
issues." Id. at 26 (b) (2) (C). As such, the
Court may quash a subpoena duces tecum as
overbroad
if
it
"does
not
limit
the
[documents] requested to those containing
subject matter relevant to the underlying
action." [AOL, 550 F. Supp. 2d at 612]; see
also [Sirpal v. Fengrong Wang, No. CIV. WDQ-

13

their

12-0365, 2012 WL 2880565, at *5 (D. Md. July
12, 2012)].
Further, 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 disclosure or discovery of the material
at issue. Fed.R.Civ.P. 26(c) (1)
This
undue
burden
category
"encompasses
situations
where
the
subpoena
seeks
information irrelevant to the case." Cook,
2012 WL 3634451, at *6 n. 7. Moreover, "[a]
subpoena imposes an undue burden on a party
when [it] is overbroad." [AOL, 550 F.Supp.2d
at 612].
Singletary,

289

that

evidence

seeks

F.R.D.

at

that

241.
is

Put

another

neither

way,

relevant

any

nor

subpoena

reasonably

calculated to lead to the discovery of admissible evidence,
that

is

so

necessarily
evidence

overbroad
require

outside

the

that

compliance

production
scope

with

its

irrelevant

Rule

of

of

26(b) (1).

demands

evidence,
Such a

or

will
seeks

subpoena

creates an undue burden because it necessarily imposes greater
hardship

than

is

necessary to

obtain proper

discovery.

It

is

also well-accepted in this district that the scope limitations
of

Rule

26

apply

to

all

methods

for

obtaining

discovery,

including the bases for protective orders under Rule 26 (c)

and

the subpoena powers enumerated in Rule 45.

484

F. App'x at 812;
Stoney Glen,
Court

to

Union First Market Bank,

2013 WL 55142 93

quash

subpoenas

at

that

14

* 4.

Cook v.

2014 WL 66834 at *3;

Rule

subject

Howard,

4 5 ( c) ( 3)
a

person

requires
to

a

"undue

burden," and because "undue burden" is necessarily established
where a party proves irrelevance or overbreadth because of the
scope limitations of Rule 26,
to

quash

subpoenas

overbroad.

which

Singletary,

Rule 43 (c) (3)

seek

irrelevant

289 F.R.D.

requires the Court
information

at 241; AOL,

or

550 F.

are

Supp.

2d

at 612.
The AOL
that

subpoenas

scope

of

case.

In

insurance

the

the

is

must

the

fraud

instructive

impose

subpoena

AOL,

by

Katrina. AOL,
to

ruling

in

parameters

to material

Farm

who

f i 1 ed

to

and teaches
limiting

the

the

underlying

Rigsbys

uncovered

apparent

involving

federal

Hurricane

550 F. Supp. 2d at 608.

Mc Into shes,

case,

explicitly

relevant

third-party
State

this

suit

Part of the fraud related

against

St ate

Farm in

the

Southern District of Mississippi. Id. The Rigsbys were non-party
witnesses
part

of

in

the· Mcintoshes'

discovery

in

the

suit

Mcintosh

against
case,

State
State

Farm.
Farm

issued

subpoena through the Eastern District of Virginia to AOL,
requesting production of documents from the
Rigsbys' e-mail accounts pertaining to [the
Mcintoshes], State Farm [' s] claims handling
practices for Hurricane Katrina,
Forensic
Analysis
&
Engineering
Corporation's
documents for Hurricane Katrina, and E.A.
Renfroe & Co. 's
[the Rigsby's employer]
claims
handling
practices
for
Hurricane
Katrina over a ten-month period. State Farm's
subpoena
also
requested
any
and
all
documents,
including electronically stored
information, related to Cori Rigsby's e-mail
account or address from September 1, 2007,
15

Id.

As
a

to October 12, 2007, a six-week period where
Cori Rigsby and her attorneys allegedly
concealed from State Farm that her computer
had crashed.
Id. The Rigsbys moved to quash the subpoena on the grounds that
the subpoena violated the Privacy Act,
burdensome,

and

requested

was overbroad and unduly

production

of

including

emails

privileged information. Id. at 609.
The AOL court

upheld a magistrate

judge's

order quashing

State Farm's subpoena "because the subpoena is overbroad to the
extent that it does not limit the documents requested to subject
matter

relevant

to

the

claims

or

defenses

imposes an undue burden on the Rigsbys." Id.

in

Mcintosh

at 612.

and

The Court

concluded that
State
Farm's
subpoena
must
be
quashed
because it imposes an undue burden on the
Rigsby by being overbroad and requesting
'all' of Cori Rigsby' s e-mails for a sixweek period
State Farm's subpoena is
overbroad because it does not limit the
emails requested to those containing subject
matter relevant to the underlying action or
sent to or from employees connected to the
litigation
State Farm's subpoena
[is]
overbroad because the e-mails produced over
a
six-week period would
likely
include
privileged
and
personal
information
unrelated
to
the
Mcintosh
litigation,
imposing an undue burden on Cori Rigsby.
Id.

The rule of AOL is thus:

limiting

the

subpoena's

subpoenas must impose parameters

scope

16

to

evidence

relevant

in

the

underlying litigation. 6 Without such parameters,
overbroad or seeks irrelevant information,

the subpoena is

and imposes an undue

burden.
B. Application to Facts

Bona

Fide' s

Subpoena

requests,

documents

essentially,

related to SourceAmerica's litigation against Robinson,
2014-15501

case.

a

SourceAmerica,

to

according

However,

the CL-

substantial portion of the CL-2014-15501 case had nothing to do
with

the

subject

matter

liigation.

California

the

in

SourceAmerica states that the CL-2014-15501 case asserted causes
of

action

fiduciary

for
duty

SourceAmerica
disclosures

legal

malpractice,

relating
alleged

to

another

to

more

conspiracy,

Affiliate,

6

just

than

Robinson

that

and

made

violated

her

breach
Bona

of

Fide:

unauthorized
duties

with

Theofel v. Farey-Jones, 359 F.3d 1066, 1071-72 (9th Cir. 2004)
stands for a similar proposition. In that case, plaintiff's
counsel sent a subpoena to defendant's email host, demanding all
of defendant's emails,
without limiting the scope of the
subpoena temporally or to the subject matter of the underlying
litigation. Theofel, 359 F. 3d at 1071. The district court and
then the Ninth Circuit roundly castigated plaintiff's counsel.
Id. ("One might have thought. . . that the subpoena would request
only e-mail related to the subject matter of the litigation, or
maybe messages sent during some relevant time period, or at the
very least those sent to or from employees in some way connected
to the litigation."). Although Theofel deals with a subpoena
more egregiously overbroad than in AOL or this case, it stands
as persuasive support for the AOL court's rule that third-party
subpoenas must be narrowly crafted to relevant subject matter in
the underlying litigation.
17

regard to handling SourceAmerica's response to a subpoena issued
by

the

federal

Employment

government,

Opportunity

"egregiously

Commission

mishandled"

charge,

and

an

Equal

"violated

her

employment contract by providing legal services to third parties
after the start of her employment."
4) .

SourceAmerica also points

possesses

communications

SourceAmerica' s
unrelated

to

counsel

Fide's

in

several

contract

litigation.

material
the

clear

relevant

Amended

party when a
be

quashed

irrelevance

the

the
as

irrelevant

is,

information.

to

Subpoena

information
Subpoena

that

Amended

California
written

other

cases

and

wholly

in

the

California

in

the

California

a

Subpoena

encompasses

but

also

a

good

litigation.

The

over broad

"subpoena

encompasses

litigation,

California

accordingly,
Because

claims

executives

(SourceAmerica's SA Mem. 8).

is

SourceAmerica's

claim

or

3-

ThompsonMcMullen likely

SourceAmerica

litigation

It

to

that

between

outside
Bona

out

(SourceAmerica' s SA Mem.

imposes

and

seeks

some
that

deal

of

Amended

irrelevant

an undue burden on a

subpoena is overbroad," the Amended Subpoena will
on
and

the

basis

of

overbreadth.

undue
AOL,

burden
550

F.

as

established

Supp.

2d

at

by
612

(relying on Theofel, 359 F.3d at 1071).
Bona

Fide

argues

briefly

that,

because

SourceAmerica

has

engaged in "heavy and often obstructionist motions practice" in
the underlying case,
18

Bona Fide believes that if it were to
include
any
subject
matter
limitations,
SourceAmerica
would
interpret
those
limitations in such a way as to prevent
disclosing information that is essential to
the
[underlying case.]
Because of these
concerns and the high likelihood that any
documents SourceAmerica would produce ... will
be
filtered
or incomplete,
it
is
also
essential
that
Plaintiff
receive
the
documents
from
Thompson
McMullan
[sic]
directly.
(Bona Fide's SA Opp. 11). Even taking Bona Fide's allegations of
obstructionism

as

alleged grounds

true

for

the

moment,

7

Bona

Fide

has

only

for serving a broad subpoena on SourceAmerica.

Bona Fide has made no showing -

indeed,

has not even claimed -

that ThompsonMcMullen would "interpret those limitations in such
a way as to prevent disclosing information that is essential" to
the

underlying

case,

or

that

ThompsonMcMullen

would otherwise

fail to comply with a subpoena which properly limited its scope
to

subject matter

Fide

cannot

justify

relevant

rely

serving

in the California

on

SourceAmerica' s

an

overbroad,

and

alleged
thus

litigation.

Bona

obstructionism to
unduly

burdensome,

subpoena on ThompsonMcMullen.
The briefing contains a factual dispute over unfair burden
as

it

pertains

however,

to

producing

and

privilege

logging

documents;

it is not necessary to resolve that factual dispute to

7

SourceAmerica's compliance or lack of compliance with its
discovery obligations is most properly assessed by Judge Curiel
in the Southern District of California.
19

rule on these motions. ThompsonMcMullen stated in its memorandum
that the production of non-privileged communications related to
the Robinson cases would "require the collection and review of
potentially hundreds if not thousands of emails each working day
over a nearly eight month period," along with "time intensive"
privilege
alleges

review.

that

(ThompsonMcMullen's

ThompsonMcMullen,

in

a

TMM

Mem.

phone

4).

Bona

conference,

Fide

stated

that ThompsonMcMullen had only a "limited case file," due to the
Settlement

Agreement's

provision

that

ThompsonMcMullen

or return much of the discovery in the case.
Opp.
Court

9-10).
might

(Bona Fide' s TMM

If this issue were dispositive to undue burden,
seek

Robinson files.

8

testimony

on

the

size

of

However, as noted, ThompsonMcMullen has already
such that it

not necessary to determine whether ThompsonMcMullen has

many

documents

the

ThompsonMcMullen' s

demonstrated undue burden by proving overbreadth,
is

destroy

that

producing

them

would

also

be

so

unduly

burdensome.

8

The Court notes,
however,
that
it is not necessarily
inconsistent for ThompsonMcMullen to ( 1) possess thousands of
emails regarding the Robinson matter on its servers, but (2)
have returned or destroyed the documents related to discovery.
By way of example, ThompsonMcMullen might have retained all
emails between its attorneys and SourceAmerica's counsel in the
Robinson matter on issues that attorneys must attempt to resolve
amongst
themselves,
such
as
discovery
disputes.
These
communications would, conceivably, not be part of the Settlement
Agreement's mandate to return or destroy documents produced in
discovery.
20

In

conclusion,

the

Amended

Subpoena

must

be

quashed

as

irrelevant and overbroad, and thus unduly burdensome, under Fed.
R. Civ. P. 45.

More Easily Obtained From Another

III.

Source and Respect for

the California Court
A. Governing Law

Fed.
own,

its

R.
the

discovery

Civ.

P.

26 (b) (2) (C)

court

otherwise

must

states that,

limit

allowed

the
if

"on motion or on

frequency

it

or

determines

extent

of
the

that

discovery sought ... can be obtained from some other source that
is

more

convenient,

previously noted,

less

Fed.

modifying

third-party

relevance

discovery

Howard,

484

F.

66834 at *3;
R.

Civ.

person

P.
who

significant
Thus,

the

R.

Civ.

limitations

App' x at 812;

neither

Court

information sought

and
must

or

45' s

are
of

less

rules

subject
Rule

expensive."

As

for

quashing or

to

the

~,

26.

Union First Market Bank,

general
Cook

v.

2014 WL

2013 WL 5514293 at *4; see also Fed.

45 (d) (2) (B) (ii)

burden

P.

subpoenas

Stoney Glen,

is

burdensome,

a

(stating that courts "must protect a
party

expense
quash

or

is obtainable

source.

21

nor

a

party's

resulting
modify

from
a

from another,

officer

from

compliance"}.

subpoena

if

the

more convenient

B. Application to Facts

ThompsonMcMullen
source

that

is

expensive"

raised

more

the

convenient,

(ThompsonMcMullen' s TMM Mem.
information

SourceArnerica

has

requested

in

efficient

the

and

lawsuit.") .

be

every

Fide

burdensome,

other

or

less

memorandum.

SourceAmerica.

source

non-privileged

It

would

seem

method

through

some

("Bona Fide has access to the

burdensome

would

Bona

and

from

opening

another

Subpoenas.

least

communications

3, 5)

from

each

less

its

in

argument

requested

"obtainable

of

discovery

acknowledged

this

communication

that

the

obtaining
in

the

argument

most
these

underlying
(~,

Bona

Fide's TMM Opp. 9), but never rebutted it.
The

Court

finds

ThompsonMcMullen's

argument

compelling.

There is no reason to burden a third party with discovery when
the

opposing

Moreover,

party

al though

has

Bona

all
Fide

compensate ThompsonMcMullen
documents
fundamental

and

of

the

information

reiterates

for

completing
fact

of

the time

privilege
the

that

is willing to

spent producing these

logs,

practice

it

requested.

of

this
law:

misses

a

forcing

ThompsonMcMullen to divert resources to an unnecessary subpoena
will

divert

ThompsonMcMullen

from

working

on

active

cases

for

clients whose further needs it must serve. That is also a factor
in assessing the burden issue.

22

Bona Fide argues that
ability
events

to

obtain

and

accurate,

disclosures

at

it has

"serious concerns about

unfiltered

information

issue

their

and

impact

Robinson's testimony about SourceAmerica directly"
SA Opp.

8,

11),

about
on

its
the
Ms.

(Bona Fide' s

such that obtaining discovery from third-party

ThompsonMcMullen is actually "more convenient,

less burdensome,

[and]

discovery

from

argues

that

less

expensive"

SourceAmerica.

In

SourceAmerica
motions

has

attempt[ed]
testifying

to
in

in

the

discourage
that

obtaining

case."

Fide

Bona

particular,
employed

practice"

than

"heavy

and

underlying

often

case

or

prevent

(Bona

Fide's

demonstrate this alleged obstructionism,

and

Ms.
SA
Bona

that SourceAmerica actually shredded documents
underlying suit.

(Bona Fide's SA Opp. 11)

obstructionist
"repeated[ly]
Robinson

Opp.

8,

11).

from
To

Fide also argues
relevant to the

(relying on Docket No.

7, Ex. 1, p. 65-66) . 9 If SourceAmerica has violated its discovery

9

Robinson allegedly told Lopez that SourceAmerica shredded
documents (the contents of these documents are unknown) the day
after GSA-OIG served a subpoena on SourceAmerica. (Docket No. 7,
Ex. 1, p. 65-66). There are several problems with using this to
support the "necessity" of the ThompsonMcMullen subpoena. First,
the contents of these documents is completely unknown (Bona Fide
does not even speculate that they might contain information
relevant to the underlying case), such that there is a morethan-reasonable possibility that such shredded documents
are
not "relevant to any party's claim or defense." Fed. R. Civ. P.
26(b) (1). Second,
if SourceAmerica shredded these or other
documents prior to discovery in CL-2014-15501, it would be
impossible for SourceAmerica to produce them in CL-2014-15501,
23

obligations in such a manner,
relief

from

the

SourceAmerica
believes

it

to
is

Southern

Bona Fide should seek appropriate

District

of

California

produce

the

documents

to

entitled.

The

California

court

possesses better perspective on the parties
Court,
that

and
suit

is

perfectly

capable

the

parties'

conduct

of

crafting

and

Bona

which

compelling
Bona

Fide

unquestionably

conduct

than this

discovery
Fide's

orders

needs

for

and thus for ThompsonMcMullen to possess them. There is no point
in doing an end-run around the California court's authority to
control discovery in the underlying litigation for documents
that ThompsonMcMullen cannot possibly possess under the facts as
alleged. Third, even if SourceAmerica gave relevant documents to
ThompsonMcMullen, and subsequently destroyed them (in a purely
hypothetical rash of document-shredding, since Robinson only
refers to document shredding while she was employed, prior to
the CL-2014-15501 litigation), ThompsonMcMullen states that it
returned almost all discovery as required by the Settlement
Agreement, such that ThompsonMcMullen, again, has nothing to
produce. Finally, if Bona Fide intends to shredding anecdote to
merely cast SourceAmerica as the type of firm that ( 1) shreds
documents and (2) stonewalls others in discovery, it follows
that SourceAmerica would have engaged in the same stingy
discovery with ThompsonMcMullen as it has with Bona Fide, such
that ThompsonMcMullen will, once again, have nothing useful to
give to Bona Fide. In short, if SourceAmerica destroyed evidence
relevance, then ThompsonMcMullen almost certainly does not have
that evidence, such that this avenue of discovery is not
reasonably calculated to lead to admissible evidence, and Bona
Fide should seek an adverse inference instruction in the
California court, rather than seeking a fruitless subpoena in
this district. If SourceAmerica does not destroy evidence, then
Bona Fide can obtain that evidence most conveniently, and in a
way that respects the authority of the California court, through
SourceAmerica.
24

discovery

SourceAmerica. 10 Moreover,

from

given

that

Bona

Fide

seeks the same material from ThompsonMcMullen in this Court that
it seeks from SourceAmerica in the underlying case,

this Court

should not act to interfere with the present or future rulings
by the California court finding that Bona Fide is not entitled
to

such

documents

characterizes

it,

from
has

or,

as

SourceAmerica

serve

as

an

SourceAmerica

the

potential

to

"end

run"

around the California court. Out of respect for the authority of
its

sister

production

courts,
from

this

Court

ThompsonMcMullen

cannot
when

and

so

will

doing

not

so

compel

results

in

giving Bona Fide two bites at the same apple.
If

the

irrelevant
then

the

Subpoena

information,
Court

leave Bona
subject

Amended

might

Fide free

matter

of

as

the

merely

discussed

simply
to

were

quash

in
this

overbroad

the

or

previous

Amended

sought

section,

Subpoena

and

seek another subpoena tailored to the
California

litigation.

However,

on

the

facts as presented, even a more narrowly tailored subpoena would

10

Bona
Fide
and
SourceAmerica,
perhaps
recognizing
the
California court's superior vantage point, initially brought a
joint motion regarding their dispute over this subpoena in the
Southern District of California. Bona Fide Conglomerate, Inc. v.
SourceAmerica, et al., Case No. 3:14cv751 (S.D. Cal. Jan. 22,
2016)
(Joint Motion for Determination of Discovery Dispute,
Docket No. 277) . The court denied the motion, noting that the
current version of Rule 45 requires that motions to quash be
filed in the district where compliance is required.
Bona Fide
Conglomerate, Inc. v. SourceAmerica, et al., Case No. 3:14cv751
(S.D. Cal. Feb. 18, 2016)
(Order Regarding Joint Motion for
Determination of Discovery Dispute, Docket No. 290}.
25

still

be

could

inappropriate

"be

obtained

convenient,

on

the
some

from

grounds

that

other

such

source

information

that

is

more

less burdensome, or less expensive," and obtained in

a way which better respects the California court's authority to
discovery. 11

control

For

reasons discussed below,

this

reason,

and

for

the

standing

the Court finds it appropriate to both

quash the Amended Subpoena and to grant a protective order.

IV. Issuance of a Protective Order
ThompsonMcMullen
order,
As

but

noted

Fide

did

not

actually

SourceAmerica did.
in

the

contests

discussion

(SourceAmerica' s
of

SourceAmerica's

standing

to

a

protective

SA Mem.

SourceAmerica' s

order on the basis of undue burden.
However,

request

12-14).

standing,

seek

(Bona Fide' s

a

Bona

protective

SA Opp.

6-8).

as explained in the discussion on standing, Rule 26 and

precedent in this district make it clear that

(1)

third parties

may seek protective orders on the basis of undue burden and
either
burden.

overbreadth
Fed.

R.

Civ.

or
P.

irrelevance

necessarily

26(c) (1); AOL,

550 F.

establish
Supp.

(2)

undue

2d at 612.

Because ThompsonMcMullen and SourceAmerica have established that
the

Amended

Subpoena

imposes

11

an

undue

burden

(through

Because the Court will quash the subpoena and enter a
protective order, there is no need to address arguments about
privilege.
26

overbreadth and irrelevance), that the information sought may be
obtained more easily from another source, and that allowing Bona
Fide

to

subpoena

ThompsonMcMullen

is

likely

to

undermine

the

California court's rightful control over the discovery process,
SourceAmerica's request for a protective order will be granted.

CONCLUSION

For

the

reasons

stated below,

P. C. 'S MOTION TO QUASH SUBPOENAS

NON-PARTY

FOR DOCUMENTS

will be granted. BONA FIDE CONGLOMERATE,
(Docket No.

9)

will be denied.

THOMPSONMCMULLAN,
(Docket No.

1)

INC.'S MOTION TO COMPEL

SOURCEAMERICA' S MOTION TO QUASH

SUBPOENAS ISSUED TO THOMPSON MCMULLAN,

P.C.

(Docket No. 12) will

be granted.

It is so ORDERED.

Isl

Uf'

Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date: March -1!]_, 2016

27