United States District Court, District of Columbia
G. Sullivan United States District Court Judge.
before the Court is non-party witness Dell Marketing,
LP's (“Dell”) Motion to Quash the forthcoming
deposition of Bradley Hughes (“Mr. Hughes”), or
in the alternative, for a Protective Order postponing a
decision on whether Mr. Hughes may be deposed as a non-party
witness until the Court presiding over the underlying action
rules on Defendants' Motion to Amend its Complaint to add
Dell as a third-party. Dell's Mem. Supp. Mot. Quash
(“Dell's Mem. Supp”), ECF No. 1 at 1-2. Upon
review of Dell's Motion, the responses and replies
thereto, and for the reasons discussed below, Dell's
Motion is GRANTED in part and DENIED in part.
and Plaintiff Ecomission Solutions, LLC (“ECS”)
were engaged in a longstanding agreement that expired in
March of 2015. Def.'s Mem. Opp. Pl.'s Mot. Quash
(“Def.'s Mem. Opp.”), ECF No. 2 at 2. CTS
served as Dell's sub-contractor in relation to that
contract. Id. In 2015, ECS filed suit against Dell
in Texas state court, alleging tort and contract claims.
Id.; Dell's Mem. Supp. at 2. The Texas lawsuit
ended in a settlement agreement, but CTS was not involved in
the Texas litigation or its resolution. Id.
March 2015, ECS filed a complaint against CTS in New York
state court. Id. CTS removed the matter to federal
court, where it is currently pending in the Southern District
of New York (“S.D.N.Y.”) Id. CTS alleged
in its Answer and Affirmative Defenses and Counterclaim that
Dell (among others) proximately caused or contributed to
ECS's alleged damages. Def.'s Mem. Opp. at 3. On July
29, 2016, CTS filed a motion to amend its complaint to add
Dell as a third-party defendant. Dell's Mem. Supp. at 2.
That interpleader motion is currently pending in the New York
action. Def.'s Mem. Opp. at 3.
August 11, 2016 CTS served a subpoena on Mr. Hughes to take
his deposition on August 26, 2016 (later changed to August
30, 2016) as a representative of non-party Dell. Def.'s
Mem. Supp. at 3 and 1, n.1.
“may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense .
. . [or which] appears reasonably calculated to lead to the
discovery of admissible evidence.” Fed.R.Civ.P.
26(b)(1). Limiting discovery and quashing subpoenas pursuant
to Rule 26 and/or Rule 45 “goes against courts'
general preference for a broad scope of discovery.”
U.S. Dep't of the Treasury v. Pension Benefit
Guaranty Corp., 301 F.R.D. 20, 25 (D.D.C. 2014)(quoting
North Carolina Right to Life, Inc. v. Leake, 231
F.R.D. 49, 51 (D.D.C. 2005)). The general policy favoring
broad discovery is particularly applicable where, as here,
“the court making relevance the determination has
jurisdiction only over the discovery dispute, and hence, has
less familiarity with the intricacies of the governing
substantive law than does the court overseeing the underlying
litigation.” U.S. Dep't of the Treasury,
301 F.R.D. at 25 (citing Jewish War Veterans of the
United States of Am., Inc. v. Gates, 506 F.Supp.2d 30,
42 (D.D.C. 2007)).
Rule 45(d)(3), a Court “must quash or modify a subpoena
that subjects a person to undue burden.” Fed.R.Civ.P.
45(d)(3). “The individual or entity seeking relief from
subpoena compliance bears the burden of demonstrating that a
subpoena should be modified or quashed.” Sterne
Kessler Goldtein & Fox, PLLC v. Eastman Kodak Co.,
276 F.R.D. 376, 379 (D.D.C. 2011) (citations omitted). The
quashing of a subpoena is an “extraordinary
measure” and courts should be loath to grant such
relief where “other protection of less absolute
character is possible.” U.S. Dept. of the Treasury
v. Pension Benefit Guaranty Corp., 301 F.R.D. 20, 25
Rule 26(c), a “party or any person from whom discovery
is sought may move for a protective order . . . on matters
relating to a deposition, in the court for the district where
the deposition may be taken.” Fed.R.Civ.P. 26(c).
Courts may grant protective orders where the moving party has
demonstrated good cause and demonstrated the need to protect
a party from “annoyance, embarrassment, oppression, or
undue burden or expense . . . .” Id. The
moving party carries a “heavy burden” of showing
extraordinary circumstances based on “specific
facts” that would justify a protective order. Eidos
Display, LLC v. Chunghwa Picture Tubes, Ltd., 296 F.R.D.
3, 6 (D.D.C. 2013)(citing United States v. Kellogg Brown
& Root Servs. Inc., 285 F.R.D. 133, 134 (D.D.C.
primary argument is that Mr. Hughes' deposition should be
postponed until CTS's Motion to Add Dell is ruled on by
the S.D.N.Y. so that Dell “will not face the prospect
of Mr. Hughes potentially being called to testify both as a
non-party and again later as a party witness.” Dell
Mem. Supp. at 5. CTS contends that if the Court grants
Dell's Motion on this basis, it will “be prejudiced
if it is denied this deposition and the New York court denies
its application to implead Dell, leaving CTS without this
required deposition.” Def.'s Mem. Opp. at 7.
argument is not persuasive. Issuance of a protective order
preventing Mr. Hughes' deposition until CTS's
interpleader motion is ruled on in the New York matter will
both eliminate the risk that Mr. Hughes will be deposed twice
(once as a non-party and once as a party), while preserving
CTS's ability to depose Mr. Hughes as a non-party if
CTS's motion to interplead Dell is denied. Notably, the
only case with similar facts, as cited by Dell, reasoned
Given that [the deponent]'s status as either a percipient
witness or a named defendant awaits the district judge's
ruling on Plaintiff's motion for leave to amend, the
Court is persuaded that a protective order postponing [the
deponent]'s deposition is appropriate. [The deponent] is