United States District Court, M.D. Florida, Fort Myers Division
MCCOY UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's Objection to
Defendant's Non-Party Subpoenas, Motion to Quash and/or
Modify, and Motion for Protective Order (Doc. 32) filed on
September 22, 2017. Defendant filed a response (Doc. 33) on
October 6, 2017. This matter is ripe for review.
Motion, Plaintiff states that, on August 25, 2017,
“Defendant served its Notice of Intent to Serve
Non-Party Subpoenas Duces Tecum Without Deposition upon the
Plaintiff.” (Doc. 32 at 1). Plaintiff specifically
objects to non-party subpoenas that Defendant issued to (1)
the Housing Authority of the City of Fort Myers, Florida; (2)
The Landings at East Pointe; (3) Stephenson & Moore,
Inc.; (4) Lee County Property Appraiser; and (5) Suncoast
Credit Union. (Id.). Plaintiff attached the
subpoenas as Composite Exhibit A. (See Doc. 32-1 at
initial matter, Plaintiff argues that she has standing to
contest the non-party subpoenas because (1) she can move for
a protective order if a non-party subpoena seeks irrelevant
information and (2) she has a personal right or privilege
with respect to the matter of the subpoenas. (Doc. 32 at 2
(citations omitted)). As to Plaintiff's specific
objections, Plaintiff argues that the subpoenas directed to
the Housing Authority of the City of Fort Myers, Florida, The
Landings at East Pointe, Stephenson & Moore, Inc., and
the Lee County Property Appraiser request information that is
not relevant. (Id. at 3-5). Additionally, as to the
subpoena directed to Suncoast Credit Union, Plaintiff argues
that Defendant's request for information is too broad.
(Id. at 5-7).
response, Defendant's primary argument is that
Plaintiff's Motion is untimely. (Doc. 33 at 4).
Specifically, Defendant states that it “issued
subpoenas to five non-parties on August 25, 2017, seeking
discovery about whether Ms. Ocasio's mortgaged property
was used primarily for ‘personal, family, or household
purposes' from 1998 to the present.”
(Id.). Defendant states that “[t]he subpoenas
gave the non-parties 15 days from the date of service to
comply.” (Id. (citing Doc. 32-1)). Defendant
notes that “[n]o non-party objected to the
subpoenas.” (Id.). Moreover, Defendant states
that it “noticed Ms. Ocasio about its intent to serve
the subpoenas on August 25, 2017, but Ms. Ocasio did not move
to quash until September 22, 2017.” (Id.). As
a result, Defendant argues that Plaintiff has waived her
objections to the non-party subpoenas. (Id.).
Furthermore, Defendant contends that “[t]he motion is
also moot because several of the non-parties already fully or
partially complied with the subpoenas.” (Id.
at 5). Finally, Defendant argues that information sought by
the subpoenas is otherwise within the scope of discovery
because it is relevant. (See Id. at 5-9).
reviewing Plaintiff's Motion, the Court notes that under
Rule 45, parties may command non-parties to produce
“documents, electronically stored information, or
tangible things in that person's possession, custody, or
control for inspection, copying, testing, or sampling.”
In re: Subpoena Upon NeJame Law, P.A., No.
6:16-MC-8-ORL-41TBS, 2016 WL 1599831, at *3 (M.D. Fla. Apr.
21, 2016) (citing Fed.R.Civ.P. 45(a)(1)(A)(iii), (a)(1)(D)).
This ability, however, is not without limits. Pursuant to
On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply; (ii) requires
a person to comply beyond the geographical limits specified
in Rule 45(c); (iii) requires disclosure of privileged or
other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Civ. P. 45(d)(3)(A) (emphasis added). “The party
seeking to quash a subpoena bears the burden of establishing
at least one of the requirements articulated under Rule
45(d)(3).” Malibu Media, LLC v. Doe,
No. 8:14-CV-2351-T-36AEP, 2015 WL 574274, at *3 (M.D. Fla.
Feb. 11, 2015)
addition to the requirements of Rule 45, Rule 26(b)(1)
governs the scope of permissible discovery, stating that
“[p]arties 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.” Fed.R.Civ.P. 26 (b)(1). Moreover, Rule
26(b)(2)(C) requires the Court to limit the frequency or
extent of discovery if:
(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
Civ. P. 26 (b)(2)(C).
addition to the requirements above, any “party or any
person from whom discovery is sought may move for a
protective order, ” and 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). “The
party seeking a protective order has the burden to
demonstrate good cause, and must make ‘a particular and
specific demonstration of fact as distinguished from
stereotyped and conclusory statements' supporting the
need for a protective order.” Auto-Owners Ins. Co.
v. Southeast Floating Docks, Inc., 231 F.R.D. 426,
429-30 (M.D. Fla. 2005) (citing U.S. v. Garrett, 571
F.2d 1323, 1326 n.3 (5th Cir. 1978)). The decision to enter a
protective order, however, is within the Court's
discretion and does not depend on a legal privilege.
Id. at 429 (citing Farnsworth v. Procter &
Gamble Co., 758 F.2d 1545, 1548 (11th Cir. 1985)).
consideration, the Court finds that Plaintiff's Motion is
due to be denied as untimely. Specifically, this Court has
previously noted that “[w]hat constitutes
timeliness” under Rule 45(d)(3)(A) “is not stated
in the Rule.” Flynn v. Square One Distribution,
Inc., No. 6:16-MC-25-ORL-37TBS, 2016 WL 2997673, at *1
(M.D. Fla. May 25, 2016). Nonetheless, this Court has
concluded that “a motion to quash is generally
considered timely if it is brought before the time
indicated for compliance.” Id. (emphasis
added; internal quotations and citations omitted).
Defendant served Plaintiff with the Notice of Intent to Serve
Non-Party Subpoenas Duces Tecum Without Deposition and copies
of the subpoenas on August 25, 2017. (Doc. 32 at 1; Doc. 33
at 4). Despite having notice for almost one month, however,
Plaintiff did not file the instant Motion until September 22,
2017, a date after the time indicated for compliance
on the subpoenas. Specifically, Defendant served the
subpoenas on August 23, 2017, August 29, 2017, August 30,
2017, and August 31, 2017. (Doc. 33 at 5 n.2). Each subpoena
required compliance within fifteen (15) days from the date of
service. (Id. at 4). By way of example, the date for
compliance for the last-served subpoena - served on August
31, 2017 - was September 15, 2017. (See id.).
Plaintiff, however, did not file the instant Motion until
September 22, 2017, one week after the date for compliance
for the ...