United States District Court, D. South Carolina, Charleston Division
Mills K. Allison and Caitlin M. Barca, a.k.a. Caitlin Barca Allison, Plaintiffs,
McCabe, Trotter & Beverly, P.C., Defendant.
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT
matter is before the Court on Defendant McCabe, Trotter &
Beverly, P.C.'s motion to quash (ECF No. 13), Plaintiffs
Mills K. Allison and Caitlin M. Barca's motion to compel
(ECF No. 12), and Defendant's motion to compel (ECF No.
14). For the reasons stated herein, the Court denies
Defendant's motion to quash for lack of standing.
However, the Court quashes the subpoena to Gold Crown and
orders Defendant to produce the requested documents. The
Court grants in part and denies in part both motions to
purchased a house that is subject to the Charleston National
Community Association, a homeowners' association (HOA)
that charges annual assessments. The HOA employs Defendant to
represent it in collections of assessments. Plaintiffs allege
that Defendant violated the Fair Debt Collection Practices
Act, 15 U.S.C. § 1601, by attempting to collect, and
actually collecting, amounts not currently due on
homeowners' association accounts. Plaintiffs also allege
that Defendant made misrepresentations in violation of the
South Carolina Unfair Trade Practices Act, SC Code Ann.
§ 39-5-10, et seq. Plaintiffs intend to bring a
class action on behalf of themselves and other homeowners or
community association members whose debts were referred to
Defendant for collection.
Defendant's Motion to Quash
Crown Management serves as the managing agent for the HOA. On
August 2, Plaintiffs served Gold Crown with a subpoena asking
for various documents related to Gold Crown's
interactions with Defendant between June 14, 2016, and June
14, 2017 (approximately 6 months before and after Plaintiffs
moved into their home in Charleston National). According to
Plaintiffs, Gold Crown did not object to the subpoena.
However, Defendant moved to quash the subpoena on September
18. Plaintiff responded on October 2, and Defendant replied
on October 10.
Court must first determine if Defendant has standing to
challenge a subpoena served on Gold Crown. “Ordinarily,
a party does not have standing to challenge a subpoena issued
to a nonparty unless the party claims some personal right or
privilege in the information sought by the subpoena.”
United States v. Idema, 118 F. App'x. 740, 744
(4th Cir. 2005) (per curiam). Thus, Defendant must have some
personal right or privilege in order to challenge the
subpoena served upon Gold Crown. If Defendant does have
standing, the court “must quash or modify a subpoena
that . . . requires disclosure of privileged or other
protected matter, if no exception or waiver applies;”
or “subjects a person to undue burden.”
Fed.R.Civ.P. 45(d)(3)(A). As the party objecting to
discovery, Defendant bears the burden of establishing that
production of the subpoenaed documents should not be
permitted. HD Sherer LLC v. Nat. Molecular Testing
Corp., 292 F.R.D. 305, 308 (D.S.C. 2013).
claims the requested documents are attorney work product and
subject to attorney-client privilege, two protections that
can provide standing to challenge a subpoena issued to a
nonparty. Though Defendant does not have a representation
agreement with Gold Crown, Defendant claims these protections
apply because Defendant represents homeowners'
associations in collections and Gold Crown is the agent of
those associations. The Court assumes without deciding that
the homeowners' associations' attorney-client
relationships with Defendant extends protections related to
those relationships to Gold Crown.
Court finds that the subpoenaed documents are not attorney
work product under Rule 26(b)(3). That rule protects against
discovery of documents that are prepared in anticipation of
trial if they contain “mental impressions, conclusions,
opinions, or legal theories of a party's attorney or
other representative concerning the litigation.”
Fed.R.Civ.P. 26(b)(3). The Fourth Circuit has recognized that
this protection extends to subsequent litigation. Duplan
Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d
730, 732-33 (4th Cir. 1974); Washington v. Follin,
4:14-cv-416-RBH-KDW, 2016 WL 1614166, at *13 (D.S.C. Apr. 22,
2016). Thus, if Defendant prepared work product for Gold
Crown, it would be protected (subject to limitations in the
Rules) in the current matter. However, none of the documents
requested appear to be of a type that would include
Defendant's mental impressions, conclusions, opinions, or
legal theories regarding Defendant's pursuit of
collections (assuming those collections progressed to
litigation). Rather, the subpoena asks for collections
requests from Gold Crown to Defendant (Mot. Quash, Ex. 4,
Pls.' Subpoena Gold Crown, ECF No. 13-4, at 5, item 1);
invoices between Gold Crown and Defendant (items 2 and 5);
attorney employment agreements between Gold Crown, as a
representative of homeowners' associations, and Defendant
(item 3); a list of payments by homeowners' associations
to Defendant (item 4); statements about how Defendant has
disbursed funds received through collections (item 6);
collections requests Gold Crown initiated with Defendant
(item 7); and documents that show amounts collected by
Defendant in response to Gold Crown's collection requests
(item 8). Because none of these documents should contain an
attorney's mental impressions, they are not attorney work
product. Consequently, attorney work-product protection does
not provide a basis for standing to challenge the subpoena.
Court finds that attorney-client privilege does not provide a
basis for standing either. “Because the attorney-client
privilege exists for the benefit of the client, the client
holds the privilege.” In re Grand Jury
Proceedings, 401 F.3d 247, 251 (4th Cir. 2005). Since
Defendant was the attorney, and not the client, with respect
to the documents subpoenaed from Gold Crown, Defendant cannot
assert attorney-client privilege. Thus, Defendant has not
established any privilege or protection that can be used to
assert standing to quash the subpoena served on Gold Crown.
the Court has an obligation to limit discovery when it can be
obtained from a more convenient source. See Fed. R.
Civ. P. 26(b)(2)(C) (“[T]he court must limit the
frequency or extent of discovery otherwise allowed by these
rules . . . if it determines that the discovery sought . . .
can be obtained from some other source that is more
convenient, less burdensome, or less expensive.”).
Since every item Plaintiffs seek from Gold Crown is a
document that involved Defendant, Defendant should provide
these documents to the extent that it can. See HD Sherer
LLC, 292 F.R.D. at 309 (quashing subpoenas issued to
defendant's customers and ordering defendant to produce
the requested documents, which were likely to be in
defendant's possession). Plaintiffs may renew their
subpoena if Defendant cannot provide the requested documents.
Thus, Plaintiffs' subpoena to Gold Crown is quashed and
Defendant is ordered to provide the requested documents.
Motions to Compel
parties have filed motions to compel. Federal Rule of Civil
Procedure 26(b)(1) states in relevant part, “[p]arties
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.”
“Information within this scope of discovery need not be
admissible in evidence to be discoverable.”
Fed.R.Civ.P. 26(b)(1). The Fourth Circuit has instructed that
“[d]iscovery under the Federal Rules of Civil Procedure
is broad in scope and freely permitted.” Carefirst
of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334
F.3d 390, 402 (4th Cir. 2003). Both parties' motions
include requests to respond to interrogatories.
Interrogatories must be answered fully, unless the
interrogatory is objected to. Fed.R.Civ.P. 33(b)(3). Federal
Rule of Civil Procedure 33(b)(4) states that the
“grounds for objecting to an interrogatory must be
stated with specificity” and “[a]ny ground not
stated in a timely objection is waived unless the court, for
good cause, excuses the failure.” “‘Mere
recitation of the familiar litany that an interrogatory or a
document production request is “overly broad,
burdensome, oppressive, and irrelevant”' does not
suffice as a specific objection.” Mainstreet
Collection, Inc. v. Kirkland's, Inc., 270 F.R.D.
238, 240 (E.D. N.C. 2010) (quoting Momah v. Albert
Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa. 1996).
The court has broad discretion to grant or deny motions to
compel. See Lone Star Steakhouse & Saloon, Inc. v.
Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).
Plaintiffs' Motion to Compel
served interrogatories and requests for production on June
14, 2017. On July 28, Defendant responded and objected to
several interrogatories and requests as overly broad,
unclear, unduly burdensome, privileged, or irrelevant. On
July 31, Plaintiffs sent a letter to Defendant expressing
concern about these responses. On September 2, Defendant sent
a reply, providing some additional information but also
maintaining its objections. ...