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Abraha v. Colonial Parking, Inc

United States District Court, District of Columbia

April 23, 2018

Berthe Benyam Abraha, et al., Plaintiffs,
Colonial Parking, Inc., et al., Defendants.


          COLLEEN KOLLAR-KOTELLY United States District Judge.

         Defendant FCE Benefit Administrators, Inc. (“FCE”) has sought the Court's intervention in a discovery dispute regarding Plaintiffs' issuance of a subpoena on April 16, 2018. The Court must determine whether the third-party firm that employs an expert hired by Defendant FCE should be compelled to produce that expert's reports prepared for Defendant FCE in another litigation. This issue has been raised, briefed, and now decided within a week in light of the deadline for discovery on April 20, 2018. See Am. Scheduling & Procedures Order, ECF No. 51, at 6. Upon consideration of the briefing, [1] the relevant legal authorities, and the record as a whole, the Court DENIES Defendant FCE's Motion to Quash and its Motion for Protective Order contained within its [57] response.


         Although the Federal Rules of Civil Procedure allow parties wide latitude in seeking discovery of “any nonprivileged matter that is relevant to any party's claim or defense, ” Fed.R.Civ.P. 26(b)(1), there are nonetheless limits on what a party may obtain through discovery.

         A court must quash or modify a subpoena that “fails to allow a reasonable time to comply, ” or where compliance with the subpoena would require “compl[iance] beyond the geographical limits” or “disclosure of privileged or other protected matter, if no exception or waiver applies, ” or would “subject[ ] a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). A court also has the discretion to grant a motion to quash or modify the subpoena where the subpoena would require “disclosing a trade secret or other confidential research, development, or commercial information” or “disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.” Id. 45(d)(3)(B).

         In addition, “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.” Id. 26(c)(1). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, ” which can include, inter alia, “forbidding the disclosure or discovery, ” “prescribing a discovery method other than the one selected by the party seeking discovery, ” or “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Id. “If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.” Id. 26(c)(2).

         In showing that good cause exists to issue a protective order and thereby limit discovery, the moving party “has a heavy burden of showing extraordinary circumstances based on specific facts that would justify an order.” Eidos Display, LLC v. Chunghwa Picture Tubes, Ltd., 296 F.R.D. 3, 6 (D.D.C. 2013) (quoting United States v. Kellogg Brown & Root Servs., Inc., 285 F.R.D. 133, 134 (D.D.C. 2012)) (internal quotation marks omitted). In evaluating the moving party's request, the Court must “weigh the burden to the moving party against the requestor's need for, and relevance of, the information sought.” Id.


         Plaintiffs' subpoena seeks the narrative portion of expert reports produced by Aaron Raddock for Defendant FCE in R. Alexander Acosta v. Chimes District of Columbia, Inc., No. 1:15-cv-03315-RDB (D. Md.) (the “Chimes” litigation).[2] Mr. Raddock works for BDO USA, LLP (“BDO”), the recipient of Plaintiffs' subpoena. Defendant FCE moves to quash that subpoena and alternatively seeks a protective order “prohibiting Plaintiffs' counsel from obtaining expert reports in the Chimes Litigation.” Opp'n Mem. at 6.

         The Court finds that none of the four circumstances in which the Court must quash (or modify) a subpoena applies here. At the threshold, Defendant FCE does not argue that BDO is outside the geographical limits imposed by the rule, [3] or that the information is privileged, [4] and accordingly the Court finds that Defendant FCE concedes those points.

         Defendant FCE does argue, briefly, that the information is protected. When Defendant FCE originally communicated about this subpoena with the Court, copying Plaintiffs, Defendant FCE led the Court to believe that the main issue with disclosure was the presence of a protective order in Chimes. But Defendant FCE discusses that point only briefly now in its Opposition. See Opp'n Mem. at 2, 4, 9 (citing financial information covered by Chimes protective order). Even if Defendant FCE had now emphasized the presence of the Chimes protective order, Paragraph 11 of that order expressly provides a means for handling requests in another litigation for confidential information covered by that order. If a party to this case seeks information covered by the Chimes protective order, the Chimes order indicates that this Court is the one to decide whether protection will issue. See Stipulated Confidentiality Agreement and [Proposed] Protective Order, ECF No. 57, Ex. C ¶ 11 (as executed by the Chimes court) (“The Designating Party . . . bears the burden and the expense of seeking protection in that court of its Confidential Information . . ., and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.”). The [37] Protective Order in this case would ensure that any Confidential Information, as defined in this case, would be protected, and the parties to this case must abide, to the extent still relevant, by the protective order in Chimes as well.

         Defendant FCE more pointedly contests whether the subpoena issued with reasonable notice. But Defendant FCE admits that Plaintiffs already had requested this expert report- without yet resorting to the compulsion of a subpoena-18 days beforehand at a deposition of Mr. Raddock. Opp'n Mem. at 5. The Court finds Defendant FCE's objection now to the timeliness of the subpoena to be unavailing. Plaintiffs have attempted to comply with the discovery deadline of April 20, 2018, insisted upon by this Court, and shall not be faulted for doing so. It should not take long for BDO, or Defendant FCE, to arrange the delivery of the narrative portions of the expert reports from BDO's offices in McLean, Virginia, to Plaintiffs' offices in Washington, DC.

         Defendant FCE's case law regarding unreasonably short notice periods is unpersuasive. Several of the district court cases in which notice was only a few days entailed not only subpoenas for documents but also deposition notices, which add to the preparatory workload. See Opp'n Mem. at 7-8 (citing Ponson v. BellSouth Telecomms., Inc., Civ. Action No. 09-0149, 2010 WL 1552802, at *3 (E.D. La. Apr. 16, 2010); United States v. Philip Morris Inc., 312 F.Supp.2d 27, 36-38 (D.D.C. 2004)). Nor is the Court persuaded by the decision of a magistrate judge in another jurisdiction to quash a subpoena that provided only three days for compliance, particularly where that unreported decision supplies no description of the scope of the production sought. See Id. (citing City of Pomona v. Cont'l Ins. Co., No. CV 07-7703-ODW (PLAx), 2008 WL 11343060, at *1 (C.D. Cal. Dec. 17, 2008)). Here, the expert reports are already done, and Defendant FCE makes no representation that it would take much time to produce the narrative portions of those reports.

         As for alleged burden, Plaintiffs limited their subpoena to the narrative portions of the expert reports in direct response to Defendant FCE's representation that the exhibits were voluminous. See ECF No. 57, Ex. D at 2. Defendant FCE does not make any argument that it would ...

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