Perez v. Mueller et al

Filing 64

ORDER signed by Judge Rudolph T. Randa on 11/20/2015. 60 Comstock's Motion for Protective Order GRANTED to the extent that it does not have to respond to request for production numbers 15 and 17 and DENIED in all other respects. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS E. PEREZ,
Secretary of the United States
Department of Labor,
Plaintiff,
-vs-

Case No. 13-C-1302

VERONICA MUELLER, et al,
Defendant.
DECISION AND ORDER
Thomas Perez, the Secretary of Labor, alleges that Veronica Mueller,
Christopher Mueller, and the Alpha Investment Consulting Group violated
their duties of prudence and loyalty by causing or permitting the Omni
Resources Employee Stock Ownership Plan to buy Omni stock for more than
fair market value and without a proper valuation. The Muellers served a nonparty subpoena on Comstock Valuation Advisors. The subpoena that calls for
the production of certain documents, electronically stored information, and
other relevant discovery for the period during which Comstock served as an
appraiser for Omni. Comstock moves for a protective order.
Non-party discovery is generally governed by the same relevance
standard as party discovery. 9A Wright & Miller Fed. Prac. & Proc. Civ. §

2459 (3d ed.). Even so, 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.” Fed. R. Civ. P. 45(d)(1).
Despite being served with a subpoena, Comstock did not move quash
under the procedures set forth in Rule 45. Instead, Comstock invokes Rule
26(c)(1), which provides that a “party or any person from whom discovery is
sought may move for a protective order where the action is pending …”
(emphasis added). Comstock argues that the Court can modify or quash the
subpoena in the context of a motion for a protective order. The Court is not so
sure. In any event, the distinction is likely irrelevant for present purposes
because the Court can issue an order that protects Comstock from undue
burden or expense. See Fed. R. Civ. P. 26(c)(1)(A) (protective order can forbid
certain disclosures or discovery); Costello v. Poisella, 291 F.R.D. 224, 229-230
(N.D. Ill. 2013) (court has jurisdiction to issue protective order in favor of nonparty served with a subpoena). This relief is functionally identical to quashing
or modifying the subpoena.
The Muellers argue, as an initial matter, that Comstock’s motion is
untimely. “Although Rule 26(c) is silent as to the time within which a
protective order must be made, the courts have imposed the requirement that
the motion be timely or ‘seasonable.’” 6 Moore’s Fed. Practice § 26.102[2].
Generally speaking, a motion for a protective order is timely “if made prior to

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the date set for producing the discovery.” Lexington Ins. Co. v. Swanson, 2007
WL 1287938, at *2 (W.D. Wash. May 1, 2007). Here, the date was evershifting because the parties were engaged in ongoing discussions regarding
the scope of the subpoena. The subpoena was served in July, and after
considerable back and forth, Muellers’ counsel sent a letter on September 24
indicating that if Comstock “does not respond to the Subpoena within two
weeks, our clients will be forced to file a Motion to Compel with respect to
your client’s continuing failure to respond to the Subpoena.” ECF No. 61-10.
Comstock then moved for a protective order on October 8. Under these
circumstances, Comstock’s motion cannot be considered untimely.
Comstock, hired in 2011 to create a retrospective 2008 valuation of
Omni capitol stock, argues that the subpoena is overbroad because it asks for
information outside of the 2008 valuation. The Court agrees with the Muellers
that subsequent valuations of Omni stock are relevant because they can
provide a more detailed understanding of the stock’s fair market value.
However, the subpoena is overbroad in some respects because it asks for
information that is wholly unrelated to the Omni valuation. For example,
request number 15 directs Comstock to produce “all financial summaries and
supporting documents prepared for by Comstock.” This request is overbroad
and imposes an undue burden because it encompasses information unrelated

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to any valuation of Omni stock.1 Request number 17 is also overbroad, but the
Muellers withdrew that request during the parties’ meet and confer.
Finally, Comstock complains that the subpoena requests information
about evaluations made by other entities and persons. If Comstock does not
have responsive documents, Comstock can say as much when answering the
subpoena. Comstock also notes that the definition of “you” and “your” set forth
in the subpoena does not include Comstock. The Muellers clarified that any
requests aimed at “you” or “your” were directed at Comstock.
Comstock’s motion for a protective order [ECF No. 60] is GRANTED,
but only to the extent that Comstock does not have to respond to request for
production numbers 15 and 17. In all other respects, Comstock’s motion is
DENIED.

Dated at Milwaukee, Wisconsin, this 20th day of November, 2015.
SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

It is also confusing because it seems that there should be a word between “for”
and “by.” As written, the request is either nonsensical or overbroad.
1

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