United States District Court, District of Columbia
D. BATES United States District Judge
the Court is plaintiff's motion to compel documents and
deposition testimony from third-party witnesses Dr. Arthur
Holmberg, Michael Savino, and Stephen Fox. See
Pl.'s Mot. to Compel and to Extend the Deadline for
Dispositive Mots. [ECF No. 150] (“Pl.'s
Mot.”). Each of the three witnesses has submitted
an opposition to the motion,  and plaintiff has filed a
consolidated reply, see Pl.'s Reply Br. in
Further Supp. of His Mot. to Compel [ECF No. 154]
(“Pl.'s Reply”). For the reasons that follow,
the Court will grant plaintiff's motion.
The Deposition of Dr. Holmberg
Plaintiff first seeks an order directing Dr. Holmberg to
appear in New York City for his deposition on a set date not
later than February 20, 2018. See Pl.'s Mot. at
2; Pl.'s Reply at 2. The Court previously ordered Dr.
Holmberg to appear for a deposition on January 4, 2018.
See Order [ECF No. 142]. Dr. Holmberg has since
postponed that deposition three times, citing factors such as
a dog bite, a fall, inclement weather, and the need to be
near his patients. Most recently, Dr. Holmberg postponed his
deposition because he needed time to retain an attorney and
because he was unwilling to travel from his home in
Greenwich, Connecticut to plaintiff's counsel's
offices in New York City.
these grounds is sufficient to continue to delay Dr.
Holmberg's deposition. Federal Rule of Civil Procedure
45(c) provides that “[a] subpoena may command a person
to attend a . . . deposition only . . . within 100 miles of
where the person resides, is employed, or regularly transacts
business in person, ” Fed.R.Civ.P. 45(c)(1)(A), and a
court “must” quash or modify a subpoena that
commands a witness to travel further, Fed.R.Civ.P.
45(d)(3)(A)(ii). But here, the distance between Greenwich and
New York City is less than 30 miles, and Dr. Holmberg has not
identified any reason that the trip would otherwise impose
“undue burden or expense” on him. Fed.R.Civ.P.
45(d)(1); see Guy v. Vilsack, 293 F.R.D. 8, 13
(D.D.C. 2013) (holding that a plaintiff's fear of being
alone in the same room with defense counsel did not justify
denying the defendant “the benefit and convenience of
an in-person deposition”). Nor has he explained why he
was unable to retain an attorney earlier, given that he was
first subpoenaed to testify in this case over a year ago.
See Pl.'s Mot. to Extend Discovery and for
Miscellaneous Relief [ECF No. 110-1] at 2 (“Plaintiff
originally served Arthur Holmberg . . . with a subpoena to
testify in January 2017.”).
the Court will grant plaintiff's motion and order Dr.
Holmberg to appear at the offices of Fox Rothschild LLP in
New York City for a deposition of four hours or less on
Monday, February 19, 2018. Moreover, in light of his repeated
failures to attend his previously scheduled depositions, Dr.
Holmberg is hereby placed on notice that failure to comply
with this order “without adequate excuse” may
expose him to sanctions, including a finding of contempt.
Document Requests Directed to Mr. Savino and Mr. Fox
plaintiff seeks an order requiring Mr. Savino and Mr. Fox to
comply with various document requests made in subpoenas that
issued on November 29, 2017. See Pl.'s Mot. at
3-5. Mr. Savino testified that, in response to
plaintiff's ten distinct requests, he ran only two
searches of his email account. See Ex. B to
Pl.'s Mot. [ECF No. 150-5] (“Savino Dep.”) at
172-73. And Mr. Fox, who was served with seven distinct
document requests, produced no documents at all. See
Pl.'s Mot. at 4; Fox Decl. at 2 (not contesting this
witnesses have offered various explanations for their failure
to comply with plaintiff's document requests. At his
deposition, Mr. Savino cited a nondisclosure agreement as the
basis for his failure to produce certain documents,
see Ex. B to Pl.'s Mot. [ECF No. 150-5]
(“Savino Dep.”) at 16-18, 92-93, 219, and
testified that he simply “overlooked” other
responsive documents, see id. at 95-96. Now, in his
declaration, Mr. Savino states that he “showed
[plaintiff] pictures and documents as to Mr. Holden, ”
a person who was the subject of just one of the ten requests,
and argues that because he “used the proper
keywords” it did not matter whether he ran “one
search or one hundred searches.” Savino Decl. at 2. For
his part, Mr. Fox testified at his deposition that he was
withholding documents on the basis of the attorney-client
privilege, a “conflict of interest between [plaintiff]
and the Defendant, ” and because he had not yet
“had an opportunity” to review the document
requests with an attorney. See Ex. C. to Pl.'s
Mot. [ECF No. 150-6] (“Fox Dep.”) at 65. In his
declaration, Mr. Fox seeks an audience with the Court to
discuss the privilege issue in camera. Fox Decl. at
Rule 45 clearly lays out the proper procedure for objecting
to document requests made in a third-party subpoena:
A person commanded to produce documents . . . may serve on
the party or attorney designated in the subpoena a written
objection to inspecting, copying, testing or sampling any or
all of the materials . . . . The objection must be served
before the earlier of the time specified for compliance or 14
days after the subpoena is served.
Fed. R. Civ. P. 45(d)(2)(B). Once a third-party witness
serves such an objection, the party seeking the information
may move for an order “compelling production, ”
and production “may be required only as directed in the
order.” Id. Moreover, when a party objects on
the basis of a claim of privilege, the party “must . .
. expressly make the claim” and “describe the
nature of the withheld documents . . . in a manner that,
without revealing information itself privileged or protected,
will enable the parties to assess the claim.”
neither witness disputes, Mr. Savino and Mr. Fox did not
follow these procedures here. Instead, both witnesses
appeared at their depositions with less than all of (or, in
Mr. Fox's case, none of) the requested documents and
asserted the various objections discussed above. This is not
the proper way to object to a request for the production of
documents. And in any case, the untimely objections that the
witnesses now assert are insufficient to justify their
failure to comply with the subpoenas. For example, as
plaintiff points out, see Pl.'s Reply at 1, this
Court has already ruled that “[a] non-disclosure
agreement itself does not confer a legal privilege from
discovery.” See Mem. Op. & Order [ECF No.
116] at 3. Nor is an unspecified “conflict of
interest” or a witness's failure to timely retain
an attorney an adequate excuse. Moreover, if Mr. Fox-who is
himself an attorney-believes that some of the documents
plaintiff seeks are covered by the attorney-client privilege,
he must do as Rule 45 instructs: he must make a list of each
responsive document that he believes is subject to the
privilege and state “the nature of [each] withheld
document . . . in a manner that, without revealing
information itself privileged or protected, will enable the
parties to assess the claim.” Fed.R.Civ.P. 45(e)(2)(A).
Unless and until he does this, he must comply with
plaintiff's document requests.
foregoing reasons, the Court will require Mr. Savino and Mr.
Fox to comply with plaintiff's document requests by not
later than Monday, February 19, at 1:00 p.m. And like Dr.
Holmberg, Mr. Savino and Mr. Fox are hereby placed on notice
that failure to comply fully with plaintiff's
requests-that is, to search for each and every document in
the witness's possession that is responsive ...