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Alerding Castor Hewitt LLP v. Fletcher

United States District Court, S.D. Indiana, Indianapolis Division

December 5, 2017

ALERDING CASTOR HEWITT LLP, Plaintiff,
v.
PAUL FLETCHER, CAROLE WOCKNER, Defendants. CAROLE WOCKNER, PAUL FLETCHER, Counter Claimants,
v.
ALERDING CASTOR HEWITT LLP, Counter Defendant. WAYNE GOLOMB, GRACEIA GOLOMB, Miscellaneous.

          ORDER ON MOTION TO QUASH.

          MARK J. DINSMORE UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on a Motion to Quash, filed by non-parties Wayne R. Golomb and Graceia Golomb (collectively “the Golombs”). [Dkt. 61.] The Defendants and Counter-Plaintiffs in this case issued a subpoena to National Financial Services, LLC d/b/a Fidelity Investments (“Fidelity Investments”) seeking financial documents relating to the Golombs. The Golombs request the Court to quash the subpoena because the subpoena is procedurally improper and seeks information patently irrelevant to either Plaintiff's or Defendants' claims and defenses in the instant lawsuit. For the reasons set forth below, the Court GRANTS the Golombs' Motion.

         I. Background

         This is a breach of contract and unjust enrichment action brought by Alerding Castor Hewitt, LLP (“ACH”) against its former clients, Paul Fletcher and Carole Wockner. ACH alleges Defendants failed to remit payment for the legal services that ACH provided Defendants in Defendants' lawsuit against Mark Zupan (the “Zupan lawsuit”). [Dkt. 1] Defendants counterclaim that ACH failed to provide adequate legal services to Defendants during its representation which led to Defendants' loss in the Zupan lawsuit. [Dkt. 14.]

         On July 27, 2017, Defendants issued a subpoena to Fidelity Investments seeking:

1. All Symphony Log records for customer/client Wayne Golomb between January 1, 1997, and March 31, 2016.
2. All records of deposits and transfers into any and all accounts at National Financial Services, LLC and/or Fidelity Investments held by Wayne R. Golomb and/or Garceia M. Voyles, and/or to the benefit of Wayne R. Golomb and/or Graceia M. Voyles, including, but not limited to, wired or electronic transactions or otherwise routed through UMB routing no. 101205681 between January 2004 and December 2009.

[Dkt. 61-2 at 4 (emphasis in original).] Defendants argue the subpoenaed documents are necessary to show that ACH neglected opportunities to obtain meaningful discovery in their forgery case against Mark Zupan and also neglected to both pursue and follow-up with new discovery from Wayne Golomb's deposition in a related lawsuit against Defendants' former counsel and Wayne Golomb (the “Golomb lawsuit”).

         The Golombs argue the subpoena is procedurally improper and seeks information patently irrelevant to either ACH or Defendants' claims and defenses in the instant lawsuit. In response, Defendants argue that the Golombs filed their motion to quash in the wrong court because this Court does not have the power to quash the production of documents that would occur in the Central District of California. Defendants also contend that the subpoenaed documents are proportionately relevant to Defendants' claims in the instant matter and are Fidelity Investments' business records over which the Golombs have no standing to object.

         II. Discussion

         As an initial matter, the Court notes that the instant motion is not properly designated as a motion to quash the subpoena because the subpoena in question is not directed at the Golombs. [See Dkt. 61-2.] As a general rule, only the person subject to a subpoena has standing to move to quash or modify a subpoena pursuant to Federal Rule of Civil Procedure 45. See Uppal v. Rosalind Franklin Univ. of Med. & Sci., 124 F.Supp.3d 811, 815 (N.D. Ill. 2015). Here, the person subject to the subpoena is Fidelity Investments. [Dkt. 61-2.] Thus, only Fidelity Investments has standing to bring a motion to quash the subpoena.

         However, “[d]istrict courts have found that a [person] who lacks standing under Rule 45 to challenge a subpoena may ‘achieve a similar end under Rule 26' by requesting a protective order relating to document requests served on a [non-party].” Allstate Ins. Co. v. Electrolux Home Prods., Inc., No. 16-CV-4161, 2017 WL 5478297, at *3 (N.D. Ill. Nov. 15, 2017) (quoting Mfr. Direct, LLC v. Directbuy, Inc., No. 2:05 CV 451, 2007 WL 496382, at *3 (N.D. Ind. Feb. 12, 2017)); see also Fed. R. Civ. Pro. 26(c). Here, the subpoena seeks documents containing the Golombs' personal financial information. [Dkt. 61-2 at 4.] Thus, although the Golombs lack standing to quash the subpoena, the Golombs have standing to move for a protective order pursuant to Rule 26. Accordingly, in the interest of judicial economy, the Court will treat this motion to quash as a motion for a protective order and will proceed to consider the merits of the Golombs' motion.

         The scope of material obtainable by a Rule 45 subpoena generally is measured by the same broad relevancy standard applicable to party discovery under Rule 26(b)(1). Arthrex, Inc. v. Parcus Med., LLC, 2011 WL 6415540, at *3 (S.D. Ind. Dec. 21, 2011); Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002). Rule 26(b)(1) provides that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. Pro. 26(b)(1). The party seeking the discovery bears the burden to prove that the requested documents are both relevant and proportional to the needs of the case. Id.

         Here, Defendants counterclaim that ACH committed legal malpractice during its representation of Defendants in the Zupan lawsuit. [Dkt. 14.] Defendants argue that the Golombs' financial records would be necessary to prove their legal malpractice claim against ACH because the records show that ACH failed to pursue and follow-up with new discovery from Mr. Golomb's deposition on March 23, ...


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