United States District Court, S.D. Indiana, Indianapolis Division
NOBLE ROMAN'S, INC., Plaintiff: Andrew M. McNeil, BOSE
MCKINNEY & EVANS, LLP, Indianapolis, IN.
HATTENHAUER DISTRIBUTING COMPANY., Defendant: Dawn M.
Johnson, John E. Petite, Ryan J. Yager, PRO HAC VICE,
GREENSFELDER, HEMKER & GALE, P.C., Saint Louis, MO.
HATTENHAUER DISTRIBUTING COMPANY, Counter Claimant, Counter
Defendant: Dawn M. Johnson, John E. Petite, Ryan J. Yager,
GREENSFELDER, HEMKER & GALE, P.C., Saint Louis, MO.
McVicker Lynch, United States Magistrate Judge.
on Plaintiff's Motion for Protective Order
Hattenhauer Distributing Company has served documents and
deposition subpoenas on Privet Fund Management, LLC ("
Privet Fund" ), a major shareholder of plaintiff Noble
Roman's, Inc. ( See Dkt. 130-3). Noble
Roman's filed a motion to quash the subpoenas which the
court denied without prejudice. For the reasons given in its
February 25, 2016 order (Dkt. 129), the court allowed Noble
Roman's to seek relief through a motion for protective
order. Noble Roman's filed such a motion. For the reasons
described in this order, the court GRANTS Noble Roman's
motion for protective order (Dkt. 130) and ORDERS that
Hattenhauer is prohibited from obtaining the discovery from
Privet Fund sought by the subpoenas.
court's February 25, 2016 order stated that although the
court allowed Noble Roman's to seek relief through a
motion for protective order, that procedure would not
preclude the " standing" arguments advanced by
Hattenhauer in response to Noble Roman's motion to quash
the Privet Fund subpoenas. Hattenhauer has renewed its
argument that Noble Roman's lacks standing to advance any
objections to the subpoenas and to seek relief prohibiting or
limiting the discovery they seek. The court will address the
standing argument first. It will then address the
parties' arguments regarding the merits of allowing the
discovery sought by the Privet Fund subpoenas.
Noble Roman's has standing to challenge the
on district court decisions, Hattenhauer contends that Noble
Roman's, as a party, " lacks standing to object to a
subpoena issued on a non-party." (Hattenhauer
opposition, Dkt. 131, at p. 8). The court rejects
Hattenhauer's standing argument.
is a doctrine of subject matter jurisdiction, and flows from
the Constitution's limit of judicial power to adjudicate
" Cases" and " Controversies."
Lexmark Internat'l, Inc. v. Static Control
Components, Inc., 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392
(2014). As explained by the Supreme Court, there is an "
irreducible constitutional minimum of standing."
Id. A court has subject matter jurisdiction to
adjudicate a plaintiff's claims only if the plaintiff has
" suffered or [is] imminently threatened with a concrete
and particularized 'injury in fact' that is fairly
traceable to the challenged action of the defendant and
likely to be redressed by a favorable judicial
decision." Id. The question of standing is
different from an issue whether a statute--or, in this
court's view, a Federal Rule of Civil Procedure--may
otherwise deny a person relief for the injury he asserts is
threatened by another's conduct. See
id. at 1387-88. In other words, a person may have
standing--and the court has subject matter jurisdiction to
decide his claim--but by statute Congress may have
circumscribed the type of plaintiff or type of interests for
which a statutory requirement or prohibition allows the court
to provide redress. Id. In that situation, the court
can adjudicate the plaintiff's claim but may determine
on the merits that the plaintiff has no cause of
action. Id. In the latter vein, the court notes that
Hattenhauer has made no suggestion that a statute or rule of
civil procedure prohibits a court from hearing a party's
objections to a subpoena directed to a non-party, or that a
statute or rule of civil procedure circumscribes the types of
objections a court may consider from a party that objects to
a non-party subpoena.
court acknowledges that many district court cases have
invoked " standing" in ruling that a party is
" generally" or " ordinarily" prohibited
from objecting to a non-party subpoena, including the
principal case Hattenhauer relies on, Parker v. Four
Seasons Hotels, Ltd., 291 F.R.D. 181, 186 (N.D.Ill.
2013). But " standing" does not supply a proper
doctrinal foundation for such a rule, at least not without an
examination of the particular circumstances of a party's
challenge to a non-party subpoena and evaluation of whether
the party will suffer a concrete injury in fact that can be
redressed by a favorable decision forbidding or limiting the
discovery sought by the subpoena. The only Seventh Circuit
case to discuss a party's " standing" to
challenge a non-party subpoena addressed the issue in those
terms--the nature of the interest of the party that could be
redressed through quashing a subpoena to a non-party. The
court stated: " A party has standing to move to quash a
subpoena addressed to another if the subpoena infringes upon
the movant's legitimate interests." United
States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982)
(citing In re Grand Jury, 619 F.2d 1022, 1027 (3rd
Raineri was a criminal case. A witness had testified
during the government's presentation of its case in chief
and been cross-examined by the defense. About a week later in
the trial, the defense issued a subpoena to the witness to
testify again--this time during the defense's
presentation of its case in chief. The prosecutor objected
and moved to quash the subpoena, and the trial court did so.
On appeal, the defendant complained that the government
" had no standing or authority to move to quash the
subpoena" because it was addressed to a third party. The
court disagreed and found that the government's "
legitimate interest" in seeking redress from enforcement
of the subpoena " rested upon its interest in preventing
undue lengthening of the trial, undue harassment of its
witness, and prejudicial over-emphasis on [the witness's]
credibility." 670 F.2d at 712.
court finds that Noble Roman's has sufficient legitimate
interests of its own with respect to the Privet Fund
subpoenas to be heard on whether the subpoenas should be
quashed or a protective order issued prohibiting that
discovery by Hattenhauer. For one thing, if these subpoenas
were enforced, Noble Roman's would be required to devote
employee time and effort, as well as attorney time, effort,
and expense, to review the documents requested by Hattenhauer
from Privet Fund, and to devote substantial attorney time and
expense for traveling to, preparing for, and cross-examining
Privet Fund Rule 30(b)(6) deponent witness(es) in Atlanta,
Georgia. These aren't trivial issues or interests.
Indeed, it is the strength of litigants' legitimate
interests in the control of expansive discovery and
corralling the spiraling costs of litigation that led to a
series of changes to the federal discovery rules over the
last thirty plus years that emphasize the power--and
duty --of the district courts actively to manage
discovery and to limit discovery that exceeds its
proportional and proper bounds. The court will trace this
evolution in section II below, in connection with the merits
of the Privet Fund subpoenas.
course, a party's objections may have far less force or
persuasive value (and may sometimes have no persuasive value)
when discovery is directed to a non-party and not to the
party itself. For example, a party's objection based on
the time and effort required of the non-party to comply with
a subpoena might, in the usual case, have no weight at all.
But, for example, a party's objection that the time
required of the non-party to comply with the subpoena would
extend the period of production of documents or the
completion of depositions beyond the court's discovery
deadline might be accorded substantial weight in a particular
case. Or. a party's objection that the non-party
discovery exceeds the proper bounds under Rule 26(b)(1) and
thus unfairly burdens the party (by requiring it to devote
substantial resources to reviewing the discovery,
participating in depositions, or filing motions in limine)
also may have substantial weight in a particular case.
it to say, this court has no doubt it has the constitutional
power to adjudicate Noble Roman's objections to the
subpoenas issued to non-party Privet Fund in this litigation.
Moreover, as addressed below, the discovery rules expressly
empower--and direct the court--to manage discovery and to act