United States District Court, D. South Carolina, Columbia Division
Eugene P. Harrison, a/k/a Eugene Paul Harrison, Sr., Plaintiff,
Jennifer C. Kennedy, HCV Senior Specialist Individually and/or in her Official Capacity as an Employee of the Sumter Housing Authority, Defendants.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Plaintiffs' motion for a
protective order or, in the alternative, to quash (Dkt. No.
83). For the reasons set forth below, the Court grants
Eugene Harrison alleges that he was unlawfully denied housing
under the Housing Choice Voucher Program and discriminated
against based on a disability. On October 26, 2018, the Court
granted in part and denied in part Defendant's motion for
summary judgment. (Dkt. No. 52.) The Court granted summary
judgment on Plaintiffs disability claims, but Court held that
Plaintiffs claim under the Housing Act of 1937 survived
summary judgment. (Id.)
the Court's order denying summary judgment, the Court
appointed counsel for Plaintiff. (Dkt. No. 59.) Plaintiff
filed an Amended Complaint on April 12, 2019. (Dkt. No. 76.)
The Amended Complaint includes claims for damages, including
severe mental and emotional distress. (Id. at
¶¶ 93, 102, 108.) The most recent scheduling order
set the deadline for discovery as August 2, 2019, with
dispositive motions due by August 9, 2019. (Dkt. No. 80.)
25 and 27, 2019, Defendants served multiple third-parties
with subpoenas for documents and depositions, with the
depositions to be held and the documents to be produced on
August 8, 2019, after the discovery deadline. (Dkt. No.
83-1.) The subpoenas sought the production of the elementary
school, middle school and high school files of Plaintiff s
daughter, the depositions of those schools, Plaintiffs
medical records, bank records, rental records, and the
deposition of the mother of Plaintiff s ex-wife.
now seeks a protective order, arguing that the subpoenas seek
discovery after the deadline and, in the alternative, move to
quash the subpoenas on the grounds that they are burdensome
and overbroad. (Dkt. No. 83.) Defendants argue that
Plaintiffs deposition on July 25, 2019 included new
information regarding his claimed damages requiring
discovery, and also arguing that the late disclosure should
preclude Plaintiffs damages arguments at trial and,
regardless, that discovery should be extended or,
alternatively, Plaintiffs damages claims should be dismissed.
(Dkt. No. 85.) Plaintiff filed a timely reply. (Dkt. No. 86.)
to a civil litigation may obtain discovery on "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). However, the court "must limit
the frequency or extent of discovery.. .if it determines that
the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive."
Fed.R.Civ.P. 26(b)(2)(C)(i). Therefore, the court "may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense" by forbidding the discovery of the material at
issue. Fed.R.Civ.P. 26(c)(1). "The scope and conduct of
discovery are within the sound discretion of the district
court." Columbus-Am. Discovery Grp. v. Ail. Mut.
Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995); see
also Carefirst of Md, Inc. v. Carefirst Pregnancy Ctrs.,
334 F.3d 390, 402 (4th Cir. 2003) ("Courts have broad
discretion in resolution of discovery problems arising in
cases before [them].")
45(d)(3)(iv) of the Federal Rules of Civil Procedure also
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; HDSherer LLC v. Nat'l Molecular Testing
Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). 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.
scheduling order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel
without peril." Jordan v. E.I. du Pont de Nemours
& Co., 867 F.Supp. 1238, 1250 (D.S.C. 1994). Here,
it is undisputed that the subpoenas seek discovery after the
discovery deadline, and indeed only one day before
dispositive motions are due. (Dkt. No. 83-1.) The Court will
not permit a Party to issue a court-backed subpoena,
particularly where the opposing party does not consent to the
extension, that contravenes this Court's Order closing
discovery on August 2, 2019. Therefore, the subpoenas seek
untimely and impermissible discovery and are quashed.
Court further notes that Defendant's arguments regarding
allegedly new information disclosed at Plaintiffs deposition
does not support the breadth of the information sought. For
example, the limited testimony about his daughter referenced
in the Defendants' response does not support the need for
all of her school records from elementary, middle and high
school. Further, this information likely raises disclosure
concerns under the Family Educational Rights and Privacy Act
("FERPA"), 20 U.S.C. § 1232g. The other
subpoenaed information, while it may contain limited relevant
information, particularly medical records, is similarly
overbroad and not tailored to the time at issue in this
litigation. (See, e.g. 83-1 at 15, requesting
information regarding rental of units from "2010 to the
present, "; 83-1 at 24, requesting all bank statements
from "January 2012 to the present.").
to the extent Defendants claim they require additional time
based on the information disclosed at the end of July 2019,
the proper vehicle is a separate motion to extend the
scheduling order and not a request in their response.
Defendants additional request, for a dismissal of Plaintiffs
claim for medical bills, emotional distress damages and all
claims in general, is without merit. Plaintiff notified
Defendants of his claim for emotional distress damages in his
Amended Complaint, and further provided information regarding
his claimed damages at his deposition, conducted ...