ELSTON BROCKS ET AL v. PRIME PROPERTY CASUALTY INSURANCE COMPANY INC ET AL (2024)

ORDER

Before the Court is Defendants Verda Express, Inc. and Ismail Turkmen's Motion to Quash Plaintiffs' Subpoena to Defendants' Experts (“Motion to Quash”) filed on April 25, 2024. (R. Doc. 25). The deadline to file an opposition has expired. LR 7(f). Accordingly, the Motion to Quash is unopposed.

I. Background

On or about September 28, 2022, Elston Brocks, Margaret Brocks, Mary Brocks, and Ricardo Brocks (collectively, “Plaintiffs”)¹ initiated this personal injury action in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, naming as defendants Prime Property & Casualty Insurance, Inc., Verda Express, Inc., and Ismail Turkmen (collectively, “Defendants”). (R. Doc. 1-1). Defendants removed the action on November 18, 2022, asserting that an exercise of diversity jurisdiction under 28 U.S.C. § 1332 is proper. (R. Doc. 1).

In relevant part, the Court's Scheduling Order set the deadline to complete expert discovery on February 16, 2024, the deadline to file dispositive and Daubert motions on March 15, 2024, and for trial to commence on September 23, 2024. (R. Doc. 10). The Court extended the deadline to complete expert discovery to April 16, 2024 and the deadline to file dispositive and Daubert motion to May 14, 2024. (R. Doc. 20). These deadlines have not been further extended.

Defendants represent that on or about April 11, 2024 (just five days prior to the close of expert discovery), Plaintiffs served “Notice of Record Depositions and Subpoenas” (collectively, “subpoenas”) directed to Defendants' experts (Kevin Martinez, M.D., Everett G. Robert, M.D., and John F. Abercrombie, M.D.) with “a return date of May 16, 2024” (one month after the close of expert discovery). (R. Doc. 25; see R. Doc. 25-1 at 1).² Defendants seek an order quashing the subpoenas because they are overly broad and unduly burdensome, seek irrelevant information, and seek information protective by the work product doctrine. Defendants do not submit a copy of these subpoenas or otherwise indicate the place of compliance.

II. Law and Analysis

A. Legal Standards

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Rule 26(c)'s “good cause” requirement indicates that the party seeking a protective order has the burden “to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).

Rule 45 governs the issuance of subpoenas. “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to a subpoena.” Fed. R. Civ. P. 45(d)(1). On timely motion, the court for the district where compliance is required must quash or modify a subpoena that fails to allow a reasonable time to comply or subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A). Subpoenas issued for discovery purposes are subject to the discovery limitations outlined in Rule 26(b). See Hussey v. State Farm Lloyds Ins. Co., 216 F.R.D. 591, 596 (E.D. Tex. 2003); 9A Wright & Miller, Federal Practice & Procedure 2d § 2459 (“Of course, the matter sought by the party issuing the subpoena must be reasonably calculated to lead to admissible evidence as is required by the last sentence of Rule 26(b)(1).”).

Parties have limited standing to quash subpoenas served on non-parties pursuant to Rule 45. See Frazier v. RadioShack Corp., No. 10-855, 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012) (“[A] plaintiff cannot challenge a Rule 45 subpoena directed to a third party on the basis that․ that the subpoena is overly broad, or that the subpoena seeks information that is irrelevant because only the responding third party can object and seek to quash a Rule 45 subpoena on those grounds.”). Nevertheless, a party has standing to move for a protective order pursuant to Rule 26(c) seeking to limit the scope of discovery, even if the party does not have standing pursuant to Rule 45(d) to bring a motion to quash a third-party subpoena. Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240 n. 2 (E.D. Va. 2012); Auto–Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005); Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005).

B. The Subpoenas are Untimely

Although not specifically raised in the instant Motion to Quash, the Court finds it appropriate to issue a protective order and quash the subpoenas at issue because they violate the April 16, 2024 deadline to complete expert discovery.

This Court's local rules provide that “[w]ritten discovery is not timely unless the response to that discovery would be due before the discovery deadline” and “[t]he responding party has no obligation to respond and object to written discovery if the response and objection would not be due until after the discovery deadline.” LR 26(d)(2).

The subpoenas at issue are deficient because they seek discovery beyond the Court's deadline to complete expert discovery. Sandifer v. Hoyt Archery, Inc., No. 12-322, 2015 WL 3465923, at *2 (M.D. La. June 1, 2015) (“Although it was served 4 days before the expert discovery deadline, the subpoena was untimely as it required compliance outside of the March 31, 2015 deadline.”); Dixon v. Greyhound Lines, Inc., 2014 WL 6474355, at *3 (M.D. La. Nov. 19, 2014) (Rule 45 subpoena seeking expert discovery was untimely despite being served within the expert discovery deadline, as the date of compliance fell outside the deadline); see also Hardy v. New Jersey Manufacturers Ins. Co., No. 22-153, 2023 WL 2899281, at *5 (M.D. La. Apr. 11, 2023) (“There is no dispute that without an extension of the expert report deadline, the discovery sought by the instant subpoenas is untimely.”); Butcher v. Allstate Ins. Co., No. 06-423, 2008 WL 4965288, at *2 (S.D. Miss. Nov. 18, 2008) (“Allstate has failed to establish good cause to enforce the untimely subpoenas issued to Plaintiffs' experts which required responses after the expiration of the discovery deadline.”).

Plaintiffs failed to submit any arguments in opposition to the instant Motion to Quash.³ Accordingly, Plaintiffs do not address any of Defendants' arguments regarding the overbreadth of the information sought and work product protection. The Court need not reach these issues, however, given that Plaintiffs have failed to set forth any basis for concluding that the discovery sought by the subpoenas is timely.

III. Conclusion

Based on the foregoing,

IT IS ORDERED that Defendants Verda Express, Inc. and Ismail Turkmen's Motion to Quash Plaintiff's Subpoena to Defendants' Experts (R. Doc. 25) is GRANTED. The subpoenas at issue directed at Defendants' experts Kevin Martinez, M.D., Everett G. Robert, M.D., and John F. Abercrombie, M.D. are QUASHED as untimely. The parties shall bear their own costs.

IT IS FURTHER ORDERED that the parties shall immediately provide a copy of this Order to Defendants' experts Kevin Martinez, M.D., Everett G. Robert, M.D., and John F. Abercrombie, M.D.

Signed in Baton Rouge, Louisiana, on May 29, 2024.

FOOTNOTES

1.   The Plaintiffs Mary Brock and Ricardo Brocks have been dismissed from this action in light of a settlement. (R. Doc. 30).

2.   Defendants do not attach copies of the subpoenas at issue to their motion.

3.   Plaintiffs also did not file any timely motion seeking to compel any expert depositions. Nothing in this Order shall preclude the parties from proceeding with expert depositions to the extent and scope agreed upon the parties. See LR 26(d)(1) (“Unopposed discovery may continue after the applicable deadline for discovery contained in the scheduling order, proved that discovery does not delay other pretrial preparations or the trial setting.”).

RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE