United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO QUASH
L. Pryor, United States Magistrate Judge
matter comes before the Court on the Motion of an Interested
Party, The Cincinnati Insurance Company, to Quash the
Plaintiff's Subpoena (Dkt. 81). The Plaintiff filed its
response in opposition on June 8, 2018 (Dkt. 87). No reply
was filed and the time for doing so has passed. The Motion
was referred to the undersigned for ruling and, for the
reasons that follow, the Motion is hereby
March 31, 2016, Design Basics, LLC and Plan Pros, Inc. filed
a complaint in this Court, No. 1:16-cv-726-TWP-DLP
(“Underlying Case”), alleging copyright
infringement against Kerstiens Home & Designs, Inc.
(“Kerstiens”), a claim that stemmed from
copyrights attached to various architectural and technical
drawings used between 2000 and 2011. Kerstiens attempted to
invoke insurance coverage from Acuity, a Mutual Insurance
Company, (“Acuity”) to cover potential liability
related to the alleged copyright infringement.
Acuity commenced the present declaratory action on October
17, 2016 to determine its obligation of insurance coverage to
Kerstiens in the Underlying Case. During the course of
discovery, Plaintiff Acuity issued a subpoena to The
Cincinnati Insurance Company (“CIC”) for various
documents and correspondence in order to determine any
potential insurance coverage that may have existed between
CIC and Kerstiens during the period of alleged copyright
filed its Motion to Quash Plaintiff's Subpoena on April
27, 2018, arguing that the subpoena imposes an undue burden
by seeking irrelevant documents and information outside the
scope of the present case. Plaintiff Acuity in turn argues
that the subpoena is valid because it seeks information
largely relevant to the determination of which insurance
company maintained coverage over Kerstiens and is, therefore,
liable for paying any potential damages for copyright
subpoena duces tecum subjects a party to an undue burden, a
court shall modify or quash it. Fed.R.Civ.P. 45(c)(3)(A).
District courts have the discretion to grant, deny, or modify
a motion to quash a subpoena. Griffin v. Foley, 542
F.3d 209, 223 (7th Cir. 2008). The moving party bears the
burden of demonstrating that the subpoena requires the
disclosure of privileged information or subjects the party to
an undue burden. Heckler & Koch, Inc. v. German Sport
Guns GmbH, No. 1:11-cv-1108-SEB-TAB, 2014 WL 12756174
(S.D. Ind. Sept. 12, 2014). In determining whether a Rule 45
subpoena is unduly burdensome, a court may examine a number
of factors, including “relevance, the need of the party
for documents, the breadth of the document request, the time
period covered by it, the particularity with which the
documents are requested, and the burden imposed.”
WM High Yield v. O'Hanlon, 460 F.Supp.2d 891,
895 (S.D. Ind. 2006). Additionally, non-party status is a
significant factor to be considered when assessing undue
burden for the purpose of a Rule 45 motion. Davis v.
Carmel Clay Schools, 286 F.R.D. 411, 413 (S.D. Ind.
2012) (citing WM High Yield v. O'Hanlon, 460
F.Supp.2d 891, 895 (S.D. Ind. 2006)).
the subpoena's request is relevant, the court can quash
it if there is an easier way for the requesting party to
obtain the information. Fed.R.Civ.P. 26(b)(2)(C)(i). A
party's ability to obtain documents from a source with
which it is litigating is a good reason to forbid it from
burdening a non-party with production of those same
documents. Arthrex, Inc. v. Parcus Medical, LLC, No.
1:11-mc-107-SEB-DML, 2011 WL 6415540 (S.D. Ind. Dec. 21,
2011) (citing Morrow v. Air Ride Technologies, Inc.,
No. IP-05-113, 2006 WL 559288 (S.D. Ind. Mar. 6, 2006)).
February 9, 2018, Plaintiff Acuity issued a subpoena to
non-party CIC, in which it requested:
1. Any and all insurance policies or similar documents issued
to co-defendant Kerstiens Homes & Designs, Inc. and its
related entities from 1998 to the present.
2. Any and all notices received by Defendant regarding the
claims brought in 1:16-cv-00726-TWP-MPB.
3. Any and all reservation of rights and/or coverage position
letters issued by your company regarding the claims made ...