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Dippel v. South Carolina Farm Bureau Mutual Insurance Co.

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

November 2, 2018



          Thomas E. Rogers, III United States Magistrate Judge.


         In this action, Plaintiff, who is proceeding pro se, alleges that Defendant breached its insurance contract with Plaintiff and acted in bad faith when it denied Plaintiff's claim for flood damage to his property. Presently before the Court are Non-Parties Donan Engineering Company, Inc. and Christopher Scallion's Motion to Quash (ECF No. 81), Plaintiff's Motion to Compel to Donan and Scallion (ECF No. 89), Plaintiff's Motion to Compel Torrent Technologies and for Sanctions (ECF No. 95), Plaintiff's Motion for Issuance of Subpoena (ECF No. 93), and Defendant's Motion to Waive Mediation (ECF No. 107). A hearing was held on Tuesday, October 30, 2018, at which Plaintiff and counsel for South Carolina Farm Bureau Mutual Insurance Company, Donan Engineering, and Christopher Scallion were present. This case was referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(e) after counsel for Plaintiff was relieved and Plaintiff informed the court that he wished to proceed pro se.


         A. Subpoena to Donan and Scallion

          Non-parties Donan Engineering Company, Inc. and Christopher M. Scallion, P.E. move to quash a subpoena issued by the court[1] on Plaintiff's request and served by Plaintiff on May 16, 2018. Plaintiff has filed a separate motion to compel Donan and Scallion to provide the documents, electronically stored information, and tangible things requested in the subpoena. Donan and Scallion request the attorneys fees and costs associated with preparing and litigating the motion to quash, and Plaintiff asks the court to sanction both Defendant and Donan Engineering for failing to comply with the subpoena.

         Donan and Scallion first argue that the subpoena violates Fed.R.Civ.P. 45(c)(2)(A), which provides that a subpoena may command “production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.” The recipient of a subpoena may move to quash the subpoena when it “requires a person to comply beyond the geographical limits specified in Rule 45(c).” Fed.R.Civ.P. 45(d)(3)(ii). Donan's principal place of business is located in Louisville, Kentucky, which is where Plaintiff served the subpoena, and Plaintiff resides in Loris, South Carolina, which is over 100 miles from Louisville, Kentucky. However, “[a] No. of courts have held that Rule 45(c)(2)(A)'s 100-mile boundary is not violated “where, as here, the subpoenaed person is not instructed to also appear at the production location along with the requested documents.” CresCom Bank v. Terry, 269 F.Supp.3d 708, 713 (D.S.C. 2017) (citing Perez v. Kazu Constr., LLC, No. CV 16-00077 ACK-KSC, 2017 WL 628455, at *12 (D. Haw. Feb. 15, 2017); United States v. Brown, 223 F.Supp.3d 697, 703 (N.D. Ohio 2016); Trahan v. Sandoz Inc., No. 3:13-CV-350-J-34MCR, 2014 WL 12628614, at *3 (M.D. Fla. July 23, 2014); Wahoo Int'l, Inc. v. Phix Doctor, Inc., No. 13CV1395-GPC BLM, 2014 WL 3573400, at *4 (S.D. Cal. July 18, 2014); Walker v. Ctr. for Food Safety, 667 F.Supp.2d 133, 138 (D.D.C. 2009). This basis for the motion to quash is without merit.

         Donan and Scallion next argue that the subpoena should be quashed because it subjects them to undue burden. See Fed.R.Civ.P. 45(d)(3)(iv). “Whether a subpoena subjects a witness to undue burden within the meaning of [Rule 45][2] usually raises a question of the reasonableness of the subpoena, an analysis that requires weighing a subpoena's benefits and burdens and consider[ing] whether the information is necessary and whether it is available from any other source.” Maxtena, Inc. v. Marks, 289 F.R.D. 427, 439 (D. Md. 2012) (citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2463.1 (3d ed. 2008) (internal quotations omitted)). “The burden of proving that a subpoena is oppressive is on the party moving to quash.” Id. (citing Fleet Bus. Credit, LLC v. Solarcom, LLC, No. Civ. AMD 05-901, 2005 WL 1025799, at *1 (D.Md. May 2, 2005) (internal quotation marks omitted)).

         In the subpoena, Plaintiff requests the laptop computer Scallion used during his investigation into Plaintiff's property damage claim, all documents and communications surrounding Scallion's return of the laptop to Donan, all communications between Scallion and John Hunter Miller from October 20, 2015, through December 1, 2015, all documents stored in the Donan Project Tool Server from October 20, 2015, through December 1, 2015, specific emails and attachments, cloud storage documents, all documents stored in Scallion's Google Drive and Google Email, specific draft reports prepared by Scallion, all electronic communications between Mr. Munerlyn and all Donan Engineering personnel from October 20, 2015, through February 1, 2016, and time logs of Scallion's work as referenced on a specific invoice.

         Donan and Scallion argue that Plaintiff has already received each and every draft of Scallion's project report. They submit the affidavit of Herb Goff, P.E., CFEI, Donan's General Manager, who avers that Donan generated a total of seven draft versions of the investigative report related to Plaintiff's claim. Goff Aff. ¶ 4(a) (ECF No. 96-2). He also lists the drafts in the order they were created along with bates No. to identify when each draft was created. Goff Aff. ¶ 4(b). Donan and Scallion also attach a copy of the letter from counsel for Defendant to Plaintiff's former counsel producing copies of the seven drafts. Groves Letter and Attachments (ECF No. 96-1). They assert that Scallion has received a new laptop since he investigated Plaintiff's claim, and returned his old lap top to Donan, which is no longer in possession of the laptop. Scallion Dep. 13-14 (ECF No. 84-2). Donan and Scallion further argue that Plaintiff has received each and every relevant, non-privileged email sent by or to Scallion relating to the claim and that Plaintiff's requests for information from Scallion's personal accounts are irrelevant and amount to harassment.

         Following review of the briefs and the arguments raised at the hearing, the court makes the following rulings with respect to the items requested in the subpoena at issue here:

Laptop computer: Donan is directed to provide an affidavit setting forth Donan's standard protocol for replacing laptop computers, the reason the specific laptop computer at issue here was replaced, when it was replaced, and what was done with the laptop itself. Also, the affidavit should include an explanation of what information and contents contained on the laptop were stored and preserved and in what format. Additionally, Donan and Scallion should produce any correspondence or written communication associated with the return and replacement of the laptop and the preservation of its contents.
Electronic documents stored in the “Donan Project Tool Server, ” from October 2015, to December 1, 2015: Donan is directed to produce all such documents as they relate to the Dippel claim and provide an affidavit stating that all such items have been produced, are subject to privilege (in which case a privilege log must also be produced), or do not exist.
Email of Amanda Prewitt dated November 5, 2015: Donan is directed to forward this email along with its attachments in its original format to Plaintiff's email address listed in the subpoena or provide an affidavit ...

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