United States District Court, D. South Carolina, Charleston Division
Patrick Weckesser, on behalf of himself and all other similarly situated, Plaintiff,
Knight Enterprises S.E., LLC, Defendant.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
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.
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.)
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.)
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).
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).
preliminary matter,  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).
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.)
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