United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
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
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
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.
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.”
45 Subpoena Duces Tecum
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).
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. 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.
Burdensome, Seeks Information Outside the Scope of Discovery,
and Unreasonably Cumulative and Duplicative
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