United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. KOLAR MAGISTRATE JUDGE
matter is before the Court on Nonparty Dylan Astle's
Motion to Quash Deposition Subpoena [DE 48], filed on June
18, 2019. Defendants/Counter Claimants Buy Direct, LLC, Tom
Pope, and Elona Pope (collectively referred to as
“Defendants” in this Opinion and Order) filed a
response on July 3, 2019. Non-party Dylan Astle filed his
reply on July 9, 2019. For the following reasons, the Motion
to Quash is denied.
to Federal Rule of Civil Procedure 45(a)(1)(A)(iii), a party
may serve a subpoena commanding a non-party 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 Franklin 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 non-parties 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 the
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). “The limits and breadth of
discovery expressed in Rule 26 are applicable to non-party
discovery under Rule 45.” Noble Roman's, Inc.
v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 307 (S.D.
Ind. 2016) (internal citations omitted). 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).
argues that the deposition subpoena should be quashed because
it is unduly burdensome and harassing. Astle explains that he
is a current employee of non-party DirectBuy Home
Improvement, Inc. (“DB Home Improvement”), an
entity that purchased certain assets, though not liabilities,
of Plaintiff out of bankruptcy. (Mot. to Quash ¶ 3, ECF
No. 48). Astle asserts that Defendants have not explained
what information they hope to gain from deposing him that
cannot be first and more easily obtained through party
discovery and that Defendants have provided mere
“generalities and equivocal assertions” that he
possesses relevant information. (Mem. Supp. Mot. Quash 7, ECF
No. 49). Astle further asserts that, because neither he nor
DB Home Improvement have successor liability to Defendants
for their counterclaims, there is “no justifiable
reason for Mr. Astle or DB Home Improvement to incur the
expense and burden of a deposition that will not yield any
relevant information.” Id. at 8.
response, Defendants argue that Astle's motion is
untimely and that he is a fact witness. Defendants assert
that “it is well settled” that an individual
seeking to quash a subpoena must do so before the return date
specified in the subpoena, and that, despite this, Astle
filed his Motion to Quash fourteen days after this deadline.
(Resp. 1, ECF No. 56).
further contend that, until all discovery is completed,
Astle's argument regarding DB Home Improvement's
potential liability or lack thereof is premature.
Id. 2. Moreover, Defendants state that Astle
incorrectly assumes the deposition would be for the purpose
of finding such liability, and explain that Astle is a fact
witness who may have information regarding “contracts,
payment, and conditions imposed upon [Defendants] and the
sexual harassment of Elona Pope.” Id. In
support of this contention, Defendants state that Astle was
previously employed by Plaintiff-in fact, Astle was, at one
time, Plaintiff's Chief Operating Officer-and had
“direct relationships” with all Defendants.
Id. at 2, 6; (Mem. Supp. Mot. Quash 8, ECF No. 49).
Additionally, Defendants assert that Astle was “present
at meetings and conferences, ” “participated in
telephone conferences and was included in, or a party to,
written communications, ” and that he “is in the
unique position of having first hand knowledge and
information of the circumstances forming the bases of
[Defendants'] claims.” (Resp. 4, ECF No.
further explain that, due to the age of this litigation, they
“anticipate that many of Plaintiff's records were
destroyed, and, adding further obstacle, Plaintiff's
counsel has withdrawn and failed to engage in this
action.” Id. Finally, Defendants note that
Astle has not specified the particular burden that would be
imposed by the subpoena, and that they “gave every
opportunity and clear communication to Mr. Astle that they
would make reasonable accommodations for his schedule.”
Id. at 5.
counters that the Motion to Quash was timely. Astle notes
that his counsel conferred with Defendants' counsel
multiple times in late May 2019, and that his counsel
“confirmed that the deposition would not go forward as
scheduled and that Mr. Astle would file a motion to
quash.” (Reply 2, ECF No. 57). Astle thus argues that,
per these communications, “[t]he originally noticed
June 4, 2019 date ceased being the ‘date for
compliance'” prior to its passage. Id. at
takes great issue with Defendants' assertion that
“nonparty discovery is necessary in this case ‘to
uncover facts that may support refined theories of liability
and recovery.'” Id. at 5 (quoting (Resp.
5, ECF No. 56)). Astle asserts that Defendants “never
explain what those ‘refined theories' entail,
” but that both he and the Court “can speculate
that Defendants are contemplating claims against nonparty DB
Home Improvement.” Id. To this point, Astle
once again contends that “DB Home Improvement cannot,
under any circumstances or legal theory, be found to have
assumed any liability or risk related to Defendants'
Counterclaims in this litigation, ” and that
“Defendants' failure to even acknowledge the valid
Court order approving the ‘free and clear' nature
of Plaintiff's asset sale speaks volumes about the
inappropriateness of this subpoena.” Id.
(quoting (Mem. Supp. Mot. Quash 4, ECF No. 49)).
again restates his argument that “it is apparent”
the purpose of Defendants' subpoena is to “explore
potential liability against DB Home Improvement.”
Id. at 7. Astle points to Defendants' statement
that “questions of fact and law remain as to whether
any claims survived after Plaintiff's bankruptcy cases
were dismissed” as support for this contention, and
reasserts that “DB Home Improvement cannot be held
liable for any of Plaintiff's liabilities under any legal
theory or under any circumstances.” Id.
(quoting Resp. 6, ECF No. 56). Astle asserts that
“Defendants are attempting to use discovery to fish for
and explore other claims against nonparties.”
Id. at 8.
Astle argues that Defendants have failed to explain what, if
any, attempts or efforts have been made to obtain information
from Plaintiff, and that Defendants failed to articulate what
specific information may have been destroyed. Id. at
5-6. Astle contends that Defendants “utterly
fail[ed]” to explain what information they believe he
might possess, or how his knowledge of the aforementioned
“contracts, payment, and conditions” would
support Defendants' counterclaims. Id. at 6.
Astle further asserts that Defendants' reference to
sexual harassment is “particularly troubling and
demonstrates the inappropriateness of this subpoena, ”
as, while Defendants' counterclaims contain ...