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Weckesser v. Knight Enterprises S.E., LLC

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

May 13, 2019

Patrick Weckesser, on behalf of himself and all other similarly situated, Plaintiff,
v.
Knight Enterprises S.E., LLC, Defendant.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on Plaintiff Patrick Weckesser's motion to quash (Dkt. No. 73). For the reasons set forth below, the Court grants in part and denies in part the motion.

         I. Background

         Plaintiff Patrick Weckesser, a cable installation technician, filed this class and collective action on behalf of himself and all others similarly situated against Defendant Knight Enterprises S.E., LLC, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the South Carolina Payment of Wages Act, SC Code §§ 41-10-10 et seq. (Dkt. No. 1 at- 1 -3.) Other individuals have since joined as Opt-In Plaintiffs. Plaintiffs allege that they and all other similarly situated cable installation technicians who worked for the Defendant were misclassified as independent contractors and deprived of overtime and minimum wage in violation of state and federal law. (Id.) On August 27, 2018, the Court granted conditional class certification. (Dkt. No. 36.) Discovery in the case is scheduled to close on June 1, 2019. (Dkt. No. 76.)

         Plaintiff now seeks to quash subpoenas requesting the employment records of Blake Ebert's, an Opt-in Plaintiff, from two of his former employers, arguing that the subpoenas failed to comply with procedural requirements and seek irrelevant and overbroad information. (Dkt. Nos. 73; 80.) Defendants oppose the motion. (Dkt. No. 79.)

         II. Legal Standard

         Under Rule 45 of the Federal Rules of Civil Procedure a party may serve a subpoena for the production of discoverable information on a non-party. Rule 45(d)(3)(iv) of the Federal Rules of Civil Procedure provides that a district court must, on timely motion, quash a subpoena that "subjects a person to undue burden." The determination of undue burden is within the discretion of the district court. See Cook v. Howard, 484 Fed.Appx. 805, 812 n.7 (4th Cir. 2012). A subpoena that seeks information irrelevant to the case is a per se undue burden. See Cook, 484 Fed.Appx. at 812 n.7; HD Sherer LLC v. Nat'l Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013) (Duffy, J.). A subpoena that would require a non-party to incur excessive expenditure of time or money is unduly burdensome. Cook, 484 Fed.Appx. at 812 n.7. Otherwise, "undue burden" requires the district court to balance the interests served by demanding compliance against the interests furthered by quashing the subpoena. 9A Charles Alan Wright & Arthur R. miller, Federal Practice and Procedure § 2463.1 (3d ed. 2008).

         "[T]he scope of discovery allowed under a Rule 45 subpoena is equivalent to the scope of discovery allowed under Rule 26." Washington v. Follin, No. 414CV00416RBHKDW, 2016 WL 1614166, at *7 (D.S.C. Apr. 22, 2016). Parties to a civil litigation may obtain discovery regarding "any nonprivileged matter that is relevant to any party's claim or defense" so long as the information is "proportional to the needs of the case...." Fed.R.Civ.P. 26(b)(1). The scope of discovery permitted by Rule 26 is designed to provide a party with information reasonably necessary to afford a fair opportunity to develop her case. See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983 (4th Cir. 1992) (noting that "the discovery rules are given 'a broad and liberal treatment'") (citations omitted).

         III. Discussion

         A. Standing

         As a preliminary matter, [1] generally, "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 Fed.Appx. 740, 744 (4th Cir. 2005). However, employment records contain personal and confidential information, and therefore Plaintiff has standing to contest the subpoenas. See Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240 (E.D. Va. 2012) (finding plaintiff had standing as "employment records contain 'highly personal and confidential information'....") (citations omitted).

         B. Service

         Plaintiff argues the subpoenas must be quashed because Defendant failed to give him notice before the subpoenas were served on the non-parties. Specifically, on April 22, 2019, Defendant's counsel emailed Plaintiff a copy of two subpoenas it had already issued and given to FedEx for overnight delivery. The subpoenas were delivered the following day. (Dkt. Nos. 73-2; 73-4.) Rule 45 requires that "before [a subpoena] is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party." Fed.R.Civ.P. 45(a)(4). "Serving a subpoena requires delivering a copy to the named person...." Fed.R.Civ.P. 45(b)(1) (emphasis added). District courts in the Fourth Circuit have confirmed that service is effective under Rule 45 once a Party uses means "reasonably sure to complete delivery[, ]" including via FedEx. Bland v. Fairfax Cty., Va., 275 F.R.D. 466, 471 (E.D. Va. 2011). Therefore, here, where the subpoenas were mailed via FedEx as of 7:02 pm on April 22, 2019, but Plaintiff did not receive notice until 7:44 pm, Defendant failed to provide Plaintiff with prior notice. (Dkt. Nos. 73-3; 73-4.)

         However, even though Defendant's conduct was a technical violation of the rule, the Court finds it would be inappropriate to quash the subpoenas as there was no prejudice to Plaintiff because he received over two weeks notice prior to the return date and was able to file a motion to quash. See U.S. Equal Employment Opportunity Comm'n v. Bojangles' Restaurants, Inc., No. 5:16-CV-654-BO, 2017 WL 2889493, at *5 (E.D. N.C. July 6, 2017) (denying plaintiffs argument to quash for lack of prior notice as "plaintiff filed its motion to quash" and "no documents have been produced yet.. .in response to the subpoena"); Jones v. Dole Food Co., No. 3:10CV292-RLV-DSC, 2010 WL 5395797, ...


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