United States District Court, N.D. Indiana, Hammond Division, Lafayette
OPINION AND ORDER
E. MARTIN, MAGISTRATE JUDGE
matter is before the Court on a Motion to Compel Response to
Non-Party Request [DE 34], filed by Defendant/Counterclaim
Plaintiff Brittany M. Johnson on November 8, 2018. On
November 13, 2018, Non-Party Robert R. Foos, Jr., filed a
response, and on December 5, 2018, Johnson filed a reply.
Plaintiff/Counterclaim Defendant The Travelers Indemnity
Company has not filed any briefing related to the instant
case arises out of a personal injury case in which Johnson
obtained a jury verdict in excess of the limits of the
insurance policy provided by Travelers. In the underlying
case, Travelers hired Foos as an attorney representative for
its insured, who was found to have injured Johnson. Johnson
represents that she sent a non-party request for production
of documents to Foos, with what she asserts were limited and
specific requests for production of documents related to his
previous work at the behest of Travelers. Rather than respond
to the individual requests, Foos provided a large number of
electronic files, many of which Johnson is unable to open.
She now seeks to compel him to respond to the non-party
discovery request with responsive, readable documents.
to Federal Rule of Civil Procedure 26, the scope of discovery
is “any nonprivileged matter that is relevant to any
party's claim or defense. . . . Relevant information need
not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence.” Fed.R.Civ.P. 26(b)(1). Relevancy is
“construed broadly to encompass any matter that bears
on, or that reasonably could lead to other matter that could
bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978) (citing Hickman v. Taylor, 329 U.S. 495, 501
(1947)). A party may seek an order to compel discovery when
an opposing party fails to respond to discovery requests or
provides evasive or incomplete responses. See Fed.
R. Civ. P. 37(a). The party objecting to the discovery
request bears the burden of showing why the request is
improper. See McGrath v. Everest Nat'l Ins. Co.,
625 F.Supp.2d 660, 670 (N.D. Ind. 2008). The Court has broad
discretion when determining matters related to discovery.
Thermal Design, Inc. v. Am. Soc'y of Heating,
Refrigerating & Air-Conditioning Eng'rs, Inc.,
755 F.3d 832, 837 (7th Cir. 2014); Rennie v. Dalton,
3 F.3d 1100, 1110 (7th Cir. 1993).
attaches the non-party request for production, citing to
Federal Rule of Civil Procedure 34. However, Foos is not a
party to this lawsuit, so Johnson cannot request documents
from him under Rule 34. See Fed.R.Civ.P. 34(a); Fed.R.Civ.P.
34(c) (stating that Rule 45 governs nonparty requests for
documents). Rule 45 requires that subpoenas must, among other
requirements, “state the court from which it issued; .
. . [and] set out the text of Rule 45(d) and (e), ” and
it “must issue from the court where the action is
pending, ” with notice and a copy served on each party
prior to service on the person to whom it is directed.
Fed.R.Civ.P. 45(a). The document request provided with the
instant Motion does not comply with these requirements.
Accordingly, the Court cannot enforce the subpoena against
Court also notes that it appears Johnson may be seeking
information from Foos that is also in the possession of a
party to the litigation. Rule 26 requires, “On motion
or on its own, the court must limit the frequency or extent
of discovery otherwise allowed . . . if it determines that .
. . the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C)(i). Johnson is
reminded of the need to comply with all applicable Rules. If
she still seeks information from non-party Foos, the request
must come in the form of a subpoena properly issued under
Rule 45, and a motion to quash may be granted if the
discovery sought is unreasonably cumulative or could be
obtained from a party to the litigation.
foregoing reasons, the Court hereby DENIES
the Motion to Compel Response to Non-Party Request [DE 34].
As Rule 37 provides, because “the motion is denied, the
court . . . m u s t, after giving an opportunity to be heard,
require the movant, the attorney filing the motion, or both
to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion,
including attorney's fees” unless “the motion
was substantially justified or other circumstances make an
award of expenses unjust.” Fed.R.Civ.P. 37(A)(5)(B).
Accordingly, the Court ORDERS Robert R.
Foos, Jr., to FILE, on or before
April 8, 2019, an itemization of
its costs and fees, including attorney's fees, incurred
in defending against the Motion to Compel along with argument
as to why those expenses are reasonable in this situation.
The Court ORDERS Brittany M. Johnson to
serve on Foos and file a response by April 22,
2019, and Foos to file a reply, if any, by
April 29, 2019.
Court DIRECTS Brittany M. Johnson to serve a
copy of this Motion on non-party Robert R. Foos, Jr., and to
file a ...