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Sherrill v. DIO Transport, Inc.

United States District Court, D. South Carolina, Charleston Division

November 18, 2016




         This matter is before the court on Plaintiff Anthony Sherrill's (“Sherrill”) counsel Francis V. McCann's (“McCann”) motion to quash defendants' subpoena duces tecum, ECF No. 45. For the reasons set forth below, the court denies the motion to quash to the extent that it does not include documents covered by the work-product doctrine and grants the motion to quash to the extent that it includes documents covered by the work-product doctrine.

         I. BACKGROUND

         The instant matter arises out of a motor vehicle collision that occurred on February 17, 2015 in Colleton County, South Carolina. Sherrill was waiting to make a left turn when he was allegedly struck from behind by defendant James T. Cardenas, who was driving his tractor-trailer truck at an excessively high rate of speed. Am. Compl. ¶ 10. Cardenas's tractor-trailer truck was owned by defendants DIO Transport and Jaracar Transport, Inc (collectively “defendants”). Am. Compl. ¶ 11. Sherrill filed his initial complaint in this matter on July 20, 2015, ECF No. 1, and amended it on May 20, 2016. Defendants answered the complaint and served seven written discovery requests on Sherrill, to which Sherrill responded on March 14, 2016. Pl.'s Mot. 1. On October 10, 2016, defendants served McCann with a subpoena duces tecum requesting, among other things, “all written, printed and digital documents and materials not protected by attorney-client privilege regarding representation of Anthony Sherrill . . . in claims for personal injuries and property damage from January 1, 2000 to present.” Pl.'s Mot., Ex. 1 at 3.

         McCann filed the instant motion to quash the subpoena deuces tecum in its entirety on October 20, 2016. ECF No. 45. Defendants filed a response on November 7, 2016. ECF No. 49. McCann filed a reply on November 8, 2016. ECF No. 50. The matter has been fully briefed and is ripe for the court's review.

         II. STANDARD

         A.Scope of Discovery

         “Discovery under the Federal Rules of Civil Procedure is broad in scope and freely permitted.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir. 2003). Federal district courts are vested with broad discretion in resolving discovery disputes and deciding whether to grant or deny a motion to compel. Erdmann v. Preferred Research, Inc. of Ga., 852 F.2d 788, 792 (4th Cir. 1988). Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”

         B.Rule 45 Subpoena Duces Tecum

         Under Federal Rule of Civil Procedure 45, a party may serve a subpoena for the production of discoverable material on a non-party to the litigation; in turn, the nonparty may contest the subpoena. The scope of discovery for a nonparty litigant under a subpoena duces tecum issued pursuant to Rule 45 is the same as the scope of a discovery request made upon a party to the action under Rule 26. Castle v. Jallah, 142 F.R.D. 618, 620 (E.D. Va. 1992). “[T]he burden of proof is with the party objecting to the discovery to establish that the challenged production should not be permitted.” HDSherer LLC v. Nat. Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). Rule 45 governs demands upon nonparties for the production of persons or materials, and a subpoena issued under this rule may command a nonparty to “produce designated documents, electronically stored information, or tangible things in that person's possession.” Fed.R.Civ.P. 45(a)(1)(A)(iii). A party or attorney issuing and serving a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena, ” and the district court “must enforce this duty and impose an appropriate sanction . . . on a party or attorney who fails to comply.” Fed.R.Civ.P. 45(d)(1); see HDSherer, 292 F.R.D. at 308 (stating a subpoena imposes an undue burden if it is overbroad). If a nonparty timely objects to a subpoena, a party may file a motion to compel production of the requested materials. Fed.R.Civ.P. 45(d)(2)(B). Upon the filing of a motion to compel, the district court may order the nonparty to comply with the subpoena, though in doing so the court must protect a nonparty “from significant expense resulting from compliance.” Id. A nonparty who seeks to withhold subpoenaed information on the basis that it is privileged must (1) expressly assert the claimed privileged and (2) describe the nature of the withheld information “in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Fed.R.Civ.P. 45(e)(2)(A).


         McCann moves to quash the subpoena as (1) unduly burdensome, seeking information outside the scope of discovery, and unreasonably cumulative and duplicative and (2) seeking information that is protected by the work-product doctrine.[1] Pl.'s Mot. 2-5. In his reply, McCann raises the new argument that defendants are using Rule 45 as a way to circumvent the 30-day deadline for discovery in Rule 34. The court addresses each of these contentions in turn.

         1.Unduly Burdensome, Seeks Information Outside the Scope of Discovery, and Unreasonably Cumulative and Duplicative

         McCann argues that defendant's subpoena falls outside the scope of discovery because it seeks “all non-privileged information in McCann's possession regarding its representation of [Sherrill] for personal injuries or property damage for [sixteen] years, [fifteen] of which are ...

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