United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO QUASH
HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on nonparty Ash Grove Cement
Company's motion to quash subpoenas (Dkt. No. 78). Having
thoroughly considered the parties' briefing and the
relevant record, the Court finds oral argument unnecessary
and DENIES the motion for the reasons explained herein.
Salome Aguayo-Beccera (“Plaintiff”) brought suit
against a number of defendants for defective manufacture,
design, and failure to warn for components included in
machinery located at non-party Ash Grove Cement Company
(“Ash Grove”). On September 21 and 22, 2017,
Plaintiff served a deposition subpoena on Ash Grove Plant
Engineer Michael Begley and an inspection subpoena on the
plant-both events to occur on September 29, 2017. (Dkt. No.
82-2, 82-4.) Ash Grove moved to quash both subpoenas under
Fed. R. Civ. Pro. 45(d). (Dkt. No. 78.) Ash Grove
subsequently withdrew its motion to quash in regards to the
inspection subpoena. (Dkt. No. 83 at 2.)
Rules of Civil Procedure 26 and 45 define conditions under
which a party may impose discovery burdens on a nonparty.
Under Rule 26, a litigant may obtain discovery of “any
nonprivileged matter that is relevant to any party's
claim or defense.” Fed.R.Civ.P. 26(b)(1).
“Relevant information for purposes of discovery is
information reasonably calculated to lead to the discovery of
admissible evidence.” Surfvivor Media, Inc., v.
Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2004)
(quotation omitted). Ultimately, district courts enjoy broad
discretion to permit, deny, or limit discovery. See
Fed. R. Civ. P. 26(b)(2); Hallett v. Morgan, 296
F.3d 732, 751 (9th Cir. 2002).
Rule 45, the Court “must quash or modify a subpoena
that . . . subjects a person to undue burden” or that
“fails to allow a reasonable time to comply.”
Fed.R.Civ.P. 45(d)(3)(A)(i)-(iv). “‘An evaluation
of undue burden requires the court to weigh the burden to the
subpoenaed party against the value of the information to the
serving party.'” Moon v. SCP Pool Corp.,
232 F.R.D. 633, 637 (C.D. Cal. 2005) (quoting Travelers
Indem. Co. v. Metro. Life Insur. Co., 228 F.R.D. 111,
113 (D. Conn. 2005)). Rule 45(d)(3)(A)(iv) “requires
the court to consider ‘such factors as relevance, the
need of the party for the [discovery], the breadth of the
[discovery] request, the time period covered by it, the
particularity with which the [information requested is]
described and the burden imposed.'” Id.
(quoting Travelers Indem. Co., 228 F.R.D. at 113).
The Ninth Circuit has suggested that discovery against a
nonparty is more limited than liberal discovery against
parties. See Garner Constr., Inc. v. Int'l Union of
Operating Eng'rs, No. C07-775, 2007 WL 4287292 at 2
(W.D. Wash. Dec. 4, 2007) (citing Dart Indus. Co. v.
Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980)).
But the Court has also clarified that “undue
burden” should not be read differently for a nonparty.
Mount Hope Church v. Bash Back! et. al., 705 F.3d
418, 429 (9th Cir. 2012). A party moving to quash a subpoena
bears the burden of persuasion. See, e.g., Jones
v. Hirschfeld, 219 F.R.D. 71, 74-75 (2003).
Ash Grove's Motion to Quash
preliminary matter, and in accordance with Local Rule
7(g)(2), the Court will not consider Plaintiff's
improperly filed surreply (Dkt. No. 84).
Grove makes several arguments in support of its motion to
quash. First, it argues that Plaintiff's deposition
subpoena is overbroad because it does not specify the topic
on which Mr. Begley is to testify. (Dkt. No. 78 at 1.)
Second, it asserts that compliance with the subpoena would
cause undue burden on the company because the deposition will
not lead to any relevant information. (Dkt. Nos. 78 at 9, 83
at 3.) Finally, Ash Grove believes that the request did not
allow reasonable time for compliance. (Dkt. No. 78 at 8);
see Fed. R. Civ. Pro. 45(d) (3)(A)(iv). Upon review,
Ash Grove's arguments do not persuade the Court to quash
the subpoena; however, the Court will modify the
reply satisfactorily specifies the potential relevant
information sought under the circumstances. Here, Plaintiff
seeks to depose Mr. Begley “about the history and
surrounding operation of the machinery” not covered by
his declaration and has suggested a time limitation of one
hour. (Dkt. No. 81 at 2, 5.) Ash Grove relies on cases
involving extensive document production, rather than the
limited deposition of one witness. (See Dkt. No.
Court believes a limited deposition would not impose an undue
burden on Ash Grove. Plaintiff seeks to depose Mr. Begley
about the “history and surrounding operation of the
machinery” at issue based on Mr. Begley's
“unique knowledge and perspective.” (Dkt. No 81
at 2, 6). Ash Grove maintains a deposition would provide no
relevant information because Mr. Begley's declaration
“sets forth ‘the full extent of [his]
knowledge' regarding the design and installation”
of components at issue. (Dkt. Nos. 78 at 2, 83 at 3.)
However, deposition topics set forth by Plaintiff are
relevant to Plaintiff's defective design claim and appear
to go beyond the scope of Mr. Begley's declaration.
(See Dkt. No. 81 at 2, 6.) Furthermore, Plaintiff
can obtain this information only from Ash Grove itself, as
Ash Grove personnel would have unique knowledge about history
and operation of the machinery at its plant that caused the
injury. The Court agrees with Plaintiff that the
request is “not disproportional to the needs of [a]
case” involving extensive injuries and a
“considerable” amount in controversy. (Dkt. 81,
at 3.) Ash Grove cites the discovery burden already imposed
on “one of its supervisory personnel”- twelve
hours of investigation into when and by whom the components
at issue were designed and installed. (Dkt. Nos. 78 at 2,
5-6, 83 at 3.) Mr. Begley interviewed employees and examined
electronic and hard-copy records dating back to 1992, but
uncovered no conclusive evidence as to these questions. (Dkt.
No. 83 at 2.) The Court recognizes the effort put forth by
Ash Grove, and will accordingly modify the subpoena to limit
Begley's nonparty status does warrant somewhat heightened
consideration in determining whether the requested deposition
would impose upon him an undue burden. However, the meaning
of “undue burden” does not change for nonparties.
Rollins v. Traylor Bros., Inc., Case No.
C14-1414-JCC, Dkt. No. 196 at 3 (W.D. Wash. 2017). Ash Grove
points to Rollins to argue that as a non-party it
should not be subjected to any further discovery burden.
(Dkt. No. 83 at 4.) In Rollins, this Court quashed a
uniform subpoena issued to every prior or subsequent employer
of twenty plaintiffs requesting information as to the whole
group. Id. at *3. The subpoena here is much more
limited, seeking to depose one witness on a limited scope of
issues. The heightened concern for non-parties includes
concern for avoidance of unreasonable costs. See United
States v. Columbia Broad. Sys., Inc., 666 F.2d 364, 371
(9th Cir. 1982) (“Nonparty witnesses are powerless to
control the scope of litigation and discovery, and should not
be forced to subsidize an unreasonable share of the costs
of litigation to which they are not a party.”)