United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO QUASH.
J. DINSMORE UNITED STATES MAGISTRATE JUDGE.
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
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.]
27, 2017, Defendants issued a subpoena to Fidelity
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
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.
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.
“[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.
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.
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, ...