United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge.
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,  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  response.
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.
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.”
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).
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
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). 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.
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,
that the information is privileged,  and accordingly the Court
finds that Defendant FCE concedes those points.
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 
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.
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.
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.
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 ...