United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Non-Party Elliot Gross'
Emergency Motion to Quash or For Protective Order [DE 131],
filed on July 19, 2018. On July 20, 2018, the Court received
telephonic notification that the motion was no longer an
emergency motion. Briefing on the motion was conducted
according to the usual schedule. Defendant Meridian Mutual
Insurance Companies, now known as State Auto Insurance
Companies (“State Auto”), filed a response on
August 2, 2018. Gross filed a reply on August 8, 2018.
litigation was brought by an insured party, Ranburn
Corporation, doing business as Ranburn Cleaners
(“Ranburn”), against its insurers, regarding the
rights and duties of the insured and insurers, especially in
regard to an underlying environmental claim brought by the
Indiana Department of Environmental Management (IDEM) against
Ranburn regarding property at which Ranburn operated a
March 28, 2018, the Court issued an Opinion and Order
granting partial summary judgment in favor of Defendants, and
entered a declaratory judgment that Defendants “have
the right to select and retain the environmental consultant
to assist in the defense of the underlying IDEM suit and
conduct the response action at no cost to Ranburn
Corporation.” (J. Civil Action 1-2, ECF No. 113). The
Court reset discovery deadlines for the remaining claims and
Auto noticed Gross for a non-party deposition to be held on
July 23, 2018, in Carmel, Indiana. Document requests were
also attached to the subpoena. Gross objected to the subpoena
on July 9, 2018. State Auto and Gross were unable to
completely resolve the dispute, so Gross filed the instant
motion on July 19, 2018, arguing that the subpoena imposes an
undue burden on him.
to Federal Rule of Civil Procedure 45(a)(1)(A)(iii), a party
may serve a subpoena commanding a nonparty to testify at a
deposition and produce designated documents. Rule
45(d)(3)(A)(iv) requires a court to quash or modify a
subpoena based on a timely motion if the subpoena subjects a
person to an undue burden. Factors considered in determining
whether a subpoena is unduly burdensome include non-party
status, relevance, the issuing party's need for the
discovery, and the breadth of the request. Uppal v.
Rosalind Fraklin Univ. of Med. & Sci., 124 F.Supp.3d
811, 813 (N.D. Ill. 2015). The party seeking to quash the
subpoena bears the burden of proving that it is unduly
burdensome. Malibu Media, LLC v. John Does 1-14, 287
F.R.D. 513, 516 (N.D. Ind. 2012).
broad scope of discovery, which applies to discovery requests
sent to nonparties as well as parties, permits a party to
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1); Noble Roman's Inc. v.
Hattenhauer Distrib. Co., 314 F.R.D. 304, 307 (S.D. Ind.
2016) (“The limits and breadth of discovery expressed
in Rule 26 are applicable to non-party discovery under Rule
45.”). When a party seeks discovery that is
“unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less
burdensome, or less expensive” or is outside of the
scope of discovery, the Court must limit discovery. Fed.
R.Civ. P. 26(b)(2)(C).
underlying IDEM matter began on November 4, 2009. At that
time, Gross was a shareholder of Ranburn. State Auto
states-and Gross does not refute-that Gross is a former
president and principal shareholder of Ranburn. He sold his
shares in the company in the spring of 2015. Ranburn listed
Gross in its initial disclosures as an individual likely to
have discoverable information, specifying that “Mr.
Gross possesses knowledge concerning Ranburn's
interaction with the insurers and the reasons and
circumstances surrounding the decision to sell
Ranburn.” (Resp. Ex. 1 at 2, ECF No. 143-1).
claims that remain pending in this litigation include
Ranburn's claim for declaratory judgment that the
insurers must honor Ranburn's selection of defense
counsel, Ranburn's claim for declaratory judgment
“regarding Ranburn's rights and obligations
concerning the subject insurance policies, policy limits and
any other issues in dispute, ” (Compl. 12, ECF No. 1),
and counterclaims for declaratory judgment regarding
Ranburn's obligations to cooperate with the insurers in
regard to the IDEM claim and to provide access to the
property in question.
asserts that State Auto's subpoena does not seek relevant
information and causes an undue burden. Gross argues that he
has no personal knowledge of any facts relevant to the
pending claims. He also represents that he has no documents
for the period after he sold his shares in Ranburn, that all
documents that he possesses for the period prior to selling
his shares have already been the subject of discovery
requests, and that he has no new documents or information
relevant to the remaining issues in the case.
response, State Auto states that it withdrew the only
document request specifically objected to and agreed that
Gross need not produce documents already produced by others
in the litigation. State Auto notes that Gross and Ranburn
share counsel, which should facilitate determining which
documents have already been produced. State Auto also points
out that it scheduled the deposition to occur in the county
in which Gross resides and indicated a willingness to
consider locations even closer to Gross's home.
Auto rejects Gross's blanket assertion that he has
nothing relevant to offer, noting the subjects of which Gross
has knowledge identified in the initial disclosures, the
pending claims, and Gross's ...