United States District Court, S.D. Florida
GARY DEAR, as Class Representative of those similarly situated, Plaintiff,
Q CLUB HOTEL, LLC, a Delaware Limited Liability Company, Defendant.
S. SELTZER UNITED STATES MAGISTRATE JUDGE
CAUSE has come before the Court upon [DE 86] Defendant's
Motion to Quash. The motion is directed to the duces
tecum portion of trial subpoenas served upon
Defendant's employees, Sergio Pagliery, Jose E. Cabanas,
and Michele Santoro, and upon its expert witnesses, Roger S.
Cline and Barry Mukamal [DE 86-1].
case is a certified class action in which Plaintiff Gary Dear
alleges that Defendant Q Club Hotel, LLC, breached a
declaration (“Declaration”), for a condominium
co-located with a hotel at the Hilton Fort Lauderdale Beach
Resort [DE 83-1]. The dispute involves the portion or
“allocated share” of certain costs and expenses
for the repair, management, operation, and other items
relating to the condominium that Plaintiff and other class
members were required to pay. The case is currently set for
trial on Thursday, May 25, 2017 [DE 93].
4, 2015, Plaintiff served a Request for Production upon
Defendant which was responded to with both electronic and
hard copy files [DE 86-2]. On November 17, 2015, Plaintiff's
counsel reviewed 14 bankers boxes of documents produced by
Defendant, but determined the records produced did not
include “the financial books and records showing
Defendant's actual receipts and expenditures with respect
to the maintenance, operation, repair, replacement,
alteration and insurance of the Shared Components.” As
such, Plaintiff's counsel did not request copies of the
records produced. [DE 95-1]. Plaintiff also maintains that
the electronic discovery produced by Defendant “did not
segregate or identify Shared Components costs from others,
” which necessitated third-party discovery from Hilton.
[DE 95-1]. Plaintiff, however, did not move to compel better
discovery responses from Defendant. And, after several
extensions, discovery in the case closed on October 4, 2016
subpoenas duces tecum - issued in March and April
2017 -- were served pursuant to Fed.R.Civ.P. 45; they direct
the recipients to appear at trial to testify and to bring
with them certain financial documents that are at issue in
the case. More specifically, the subpoenas seek the
production of 40 categories of documents, consisting of
financial books and records from 2010 through 2016 showing
Defendant's actual receipts and expenditures with respect
to 20 types of expenses. The duces tecum portions of
each of the subpoenas are identical.
argues that the subpoenas duces tecum are
unreasonably duplicative and burdensome in that they require
the witnesses “to amass and bring to trial voluminous
documentation which is identical to the documentation
produced or made available for inspection and copying . . .
in response to Plaintiff's discovery requests.”
Motion at 6 [DE 86]. Defendant further argues that the
subpoenaed documents either were not requested during
discovery (i.e., records relating to 2016) or were
requested but abandoned by Plaintiff during the discovery
period. In either case, Defendant argues that these documents
cannot be subpoenaed for trial pursuant to Rule 45.
offers the following responses: its subpoenas do not
duplicate what had already been produced; Defendant has an
obligation under the condominium Declaration to maintain
financial books and records showing its actual receipts and
expenditures with respect to certain categories of expenses;
Defendant never produced in discovery any records
differentiating and substantiating its actual receipts and
expenditures; and even if the trial subpoenas overlap
previous discovery requests, the subpoenas are proper in
order to secure original documents for use at trial.
are permitted to issue trial subpoena duces tecum to another
party but only for the purposes of securing materials for
memory refreshment, trial preparation, or to ensure the
availability at trial of original records previously
disclosed in discovery.” Hatcher v. Precoat
Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010). Rule 45
subpoenas, however, may not be used to circumvent the
Court's discovery deadline. Rice v. United
States, 164 F.R.D. 556, 558 (N.D. Okla. 1995). When a
party serves a Rule 45 subpoena duces tecum for
trial seeking discovery that should have been secured during
the discovery period, the subpoena is properly quashed.
Id.; Ghandi v. Police Dept. of City of
Detroit, 747 F.2d 338, 354-55 (6th Cir. 1984). A Rule 45
trial subpoena, therefore, cannot be substituted for an
untimely Rule 34 document request. Mortgage Info.
Services, Inc. v. Kitchens, 210 F.R.D. 562, 566-67 (W.D.
N.C. 2002) (quashing a Rule 45 trial subpoena duces
tecum served outside the discovery period).
carefully reviewed the items requested in Plaintiff's
Rule 45 trial subpoenas, the Court concludes that the
duces tecum portions of the subpoenas should be
quashed. As another district court observed in similar
circumstances: “Even a cursory reading of the
subpoena[s] clearly establishes that the documents sought
are, without question, the basic bare bones requests that
would have been appropriate under Rule 34 [prior to the
discovery deadline].” Hatcher, 271 F.R.D. at
676. Indeed, the actual costs and expenditures for shared
components that Plaintiff now seeks has been one of the
central issues in this litigation. If Plaintiff were not
satisfied with the financial records previously produced by
Defendant during discovery, his remedy was to move (timely)
to compel production; yet, he never did so. Hernandez v.
City of Corpus Christi, 2011 WL 2194254, at *1 (S.D.
Tex. 2011) (quashing trial subpoena duces tecum where
“Plaintiff never sought Court resolution of any prior
alleged failure to produce documents”). Discovery now
having been closed for several months (since October 2016),
Plaintiff cannot circumvent that deadline by seeking to
obtain those records through trial subpoenas.
Court cannot accept Plaintiff's argument that the
subpoenas are merely requesting “original”
documents for use at trial. First, the subpoenas make no
mention of producing “original” documents.
Second, Rule 45 can be used to subpoena “original
records previously disclosed in discovery.”
Id. (Emphasis added). According to Plaintiff,
however, the records under subpoena were not
produced in discovery. Rule 45 cannot properly be substituted
for Rule 34 to obtain materials that should have been
obtained in discovery.
Plaintiff argues that Defendant failed to conduct a conduct a
pre-filing conference between counsel prior to filing its Motion
to Quash as required by Local Rule 7.1 (a)(3) and for that
reason alone, Defendant's motion should be denied.
Although the Court generally agrees with Plaintiff that the
failure to confer is grounds for denying a motion without
prejudice, given the time constraints and approaching
trial date, the merits of the motion require resolution
without further delay. Accordingly, for the reasons set forth
herein, it is hereby
AND ADJUDGED that Defendant's Motion to Quash [DE 86] is
GRANTED and that the duces tecum portions of the
subpoenas served upon Sergio Pagliery, Jose E. Cabanas,
Michele Santoro, Roger S. Cline, and Barry Mukamal are
QUASHED. These witnesses remain under subpoena for attendance
AND ORDERED at Chambers, Fort ...