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Allison v. McCabe, Trotter & Beverly P.C.

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

December 12, 2017

Mills K. Allison and Caitlin M. Barca, a.k.a. Caitlin Barca Allison, Plaintiffs,
McCabe, Trotter & Beverly, P.C., Defendant.



         This 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 compel.


         Plaintiffs 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.


         I. Defendant's Motion to Quash

         Gold 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.

         The 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).

         Defendant 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.

         The 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.

         The 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.

         However, 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.

         II. Motions to Compel

         Both 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).

         A. Plaintiffs' Motion to Compel

         Plaintiffs 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. ...

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