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Silcox v. AN/PF Acquisitions Corp.

United States District Court, W.D. Washington, Seattle

March 29, 2018

AN/PF ACQUISITIONS CORP., d/b/a AUTONATION FORD BELLEVUE, a Delaware Corporation, Defendant.





         This matter comes before the Court on Defendant's Motion for Protective Order and to Quash Plaintiff's Subpoena to Ford Motor Company, Inc. (Dkt. #17). For the reasons stated herein, Defendant's motion is denied.


         Defendant, a car dealership, is affiliated with and receives several corporate services, including human resources support, from AutoNation, Inc. (“AutoNation”). Dkt. #17 at 2. Defendant is an authorized Ford Motor Company, Inc. (“Ford”) dealership and Defendant's Service Department performs maintenance and repairs under Ford factory warranties. Id. Plaintiff was the manager of Defendant's Service Department until he was terminated on June 10, 2015. Id. at 3.

         In March 2015, Plaintiff was injured at work and needed to take medical leave protected under federal and Washington law. Dkt. #22 at ¶¶ 5, 6. Plaintiff was immediately terminated upon returning to work from protected leave and after notifying Defendant that he would need a reasonable accommodation to use assistant devices. Id. at ¶¶ 7, 8. Plaintiff alleges that the termination was on account of his age, his use of protected leave, and because he suffered from a disability. Dkt. #5 at ¶¶ 23-41.

         Conversely, Defendant alleges that while Plaintiff was on leave, a Ford audit of Defendant's Service Department wrapped up and Ford “concluded that [the] Service Department had submitted a false claim for warranty work that was not actually performed.” Dkt. #17 at 2- 3. Resultantly, Ford charged Defendant $24, 859.72 and advised Defendant that Ford viewed false claim submissions as “a serious violation of [the] Sales and Service Agreement(s)” between Defendant and Ford. Id. at 3; Dkt. #18-1. Defendant argues that Plaintiff was terminated because of the poor audit result and because Defendant needed to protect its relationship with Ford by demonstrating “prompt action” to correct the issue, as requested by Ford. Dkt. #17 at 3; Dkt. #18-1.

         Subsequent to Plaintiff's termination, a fire occurred at Defendant's dealership and destroyed all Defendant's records. Dkt. #17 at 4. In the course of this lawsuit, Defendant obtained at least some documents from Ford related to the audit of Defendant's Service Department and provided them to Plaintiff. Id. However, Plaintiff believes that records of Ford's audit of Defendant and other Ford authorized dealerships receiving corporate services from AutoNation are necessary to its case. Dkt. #20 at 8-9. Plaintiff intends to serve Ford with a subpoena for “[a]ll warranty audit reports in [Ford's] possession or control for warranty audits that have been conducted between years 2013-2016 at the 36 AutoNation Ford dealerships, and any correspondence regarding discipline or other remedial actions necessitated by any such audit.” Dkt. #18-7 at 3. Defendant seeks to quash any such subpoena and seeks a protective order. Dkt. #17.

         III. DISCUSSION [1]

         A. Motion to Quash [2]

         Attorneys serving subpoenas are required to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed.R.Civ.P. 45(d)(1). A subpoena that subjects a person to undue burden should be quashed or modified. Fed.R.Civ.P. 45(d)(3).

         Here, Defendant seeks to quash a subpoena that Plaintiff intends to serve on Ford. A motion to quash a subpoena which has not yet been issued or served is likely not to be ripe. Fed.R.Civ.P. 45(d)(3)(B) (noting circumstances in which a court may quash or modify subpoenas “[t]o protect a person subject to or affected by a subpoena”). More importantly, Defendant seeks to quash a subpoena intended to be served on a third party.

         Within the Ninth Circuit there remains doubt as to whether a party has standing to quash a subpoena to a third party on any basis. See In re Rhodes Cos., LLC, 475 B.R. 733, 738-40 (D. Nev. 2012) (noting that the “‘legitimate interest' rule [of standing] applies to criminal subpoenas, ” that the Ninth Circuit has not applied the “personal right or privilege” standing rule, and concluding that only the person subject to the subpoena may bring a motion to quash under current Rule 45(d)(3)(A)). Other courts recognize a party's right to seek to quash a subpoena served on a non-party at least on the basis of privilege. See, e.g., Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 643 (E.D. Cal. 2014) (noting that the general rule is that the party has standing only to protect its own privilege and that the Ninth Circuit has not addressed the question). Finally, some courts recognize standing to quash a subpoena issued to a third party where the party has a ...

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