United States District Court, D. South Carolina, Florence Division
KENNETH D. DIPPEL, Plaintiff,
SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendants.
E. Rogers, III United States Magistrate
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.
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 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.
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.
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
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)).
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.
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
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
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 ...