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DirectBuy, Inc. v. Buy Direct, LLC

United States District Court, N.D. Indiana, Hammond Division

August 22, 2019

DIRECTBUY, INC., Plaintiff,
v.
BUY DIRECT, LLC, TOM POPE, and ELONA POPE, Defendants. BUY DIRECT, LLC, TOM POPE, and ELONA POPE, Counter Claimants,
v.
DIRECTBUY, INC., Counterclaim Defendant.

          OPINION AND ORDER

          JOSHUA P. KOLAR MAGISTRATE JUDGE

         This 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.

         Pursuant 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).

         The broad scope of discovery, which applies to discovery requests sent to non-parties as well as parties, permits a party to seek information

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 be discoverable.

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).

         Astle 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.

         In 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).

         Defendants 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. 56).

         Defendants 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.

         Astle 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 3.

         Astle 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)).

         Astle 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.

         Finally, 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 ...


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