United States District Court, M.D. Florida, Jacksonville Division
THOMAS COOK and EMANUEL BERMUDEZ, individually and on behalf of all others similarly situated, Plaintiffs,
PALMER, REIFLER & ASSOCIATES and WAL-MART STORES, INC., Defendants.
R. Klindt United States Magistrate Judge.
action is before the Court on Plaintiff Emanuel
Bermudez's (“Plaintiff('s)”) Motion to
Compel Third-Party Straight Talk Wireless to Comply with
Subpoena to Produce Documents or to Show Cause for Failure to
Comply with Subpoena (Doc. No. 180; “Motion”),
filed August 13, 2019. Straight Talk Wireless a/k/a TracFone
Wireless, Inc. (“TracFone”) opposes the Motion.
See Non-Party TracFone's Response to Plaintiff
Cook and Bermudez's Motion to Compel Response to Subpoena
(Doc. No. 188; “Response”), filed September 11,
2019. With leave of Court, Plaintiff filed a Reply in Support
of Motion to Compel Third-Party Straight Talk Wireless to
Comply with Subpoena to Produce Documents or to Show Cause
for Failure to Comply with Subpoena (Doc. No. 191;
“Reply”). See Unopposed Motion for Leave
to File Reply to TracFone's Response to Plaintiff's
Motion to Compel Third-Party Straight Talk Wireless to Comply
with Subpoena to Produce Documents or to Show Cause for
Failure to Comply with Subpoena (Doc. No. 189), filed
September 16, 2019; Order (Doc. No. 190), filed September 17,
2019. With leave of Court, TracFone filed under seal two
exhibits to its Response on October 11, 2019. See
Non-Party TracFone's Unopposed Motion to File Certain
Documents Under Seal (Doc. No. 192), filed October 1, 2019;
Order (Doc. No. 193), entered October 2, 2019; Exhibit A
(Doc. No. S-194); Exhibit B (Doc. No. S-194-1). The Motion is
now ripe for review.
Motion, Plaintiff requests that the Court order TracFone to
comply with Plaintiff's subpoena (“Subpoena”)
issued pursuant to the terms of the Settlement Agreement
(Doc. No. 171-1) between Defendants and Plaintiff. Motion at
1, 10; see id. at Ex. 1-A (Doc. No. 180-2) at 5
(Subpoena). Specifically, the Subpoena seeks the name,
address, and email address of certain TracFone customers.
Id. at 2. Plaintiff offered to pay TracFone $500.00
for its work in responding to the Subpoena, see
Response at 1; Reply at 6, but TracFone argues it is entitled
to $3, 000.00, see, e.g., Response at 1, 3.
argues TracFone should be compelled to comply with the
Subpoena “without charge because (1) TracFone's
demand far exceeds the norm for compliance, including by
carriers in [Telephone Consumer Protection Act] class cases;
and (2) TracFone failed to raise any objection to the
[S]ubpoena, waiving its right to do so.” Motion at 1.
TracFone contends that to respond to the Subpoena,
“TracFone's Subpoena Compliance department had to
work with several different departments at the company to
develop a methodology to identify and retrieve the requested
information.” Response at 6 (citation omitted). This
process, according to TracFone, “collectively took
eight TracFone employees from four different TracFone
departments approximately 45 hours of work time to
complete.” Id. (citation omitted). TracFone
asserts that its business model is different than other
cellphone companies “[b]ecause customers are not
required to provide their name, address, email, or any other
contact information when activating a TracFone account, [so]
TracFone does not maintain a comprehensive database of its
customers.” Id. at 7 (citation omitted). As to
Plaintiff's second argument, TracFone asserts that
“TracFone's request for reasonable expenses in
advance of providing a response [to the Subpoena] is indeed a
sufficient objection under [Rule 45, Federal Rules of Civil
Procedure (‘Rule(s)')].” Id. at 4.
to Rule 45, a non-party served with a subpoena must serve on
the issuing party or attorney a written objection
“before the earlier of the time specified for
compliance or 14 days after the subpoena is served.”
Fed.R.Civ.P. 45(c)(2)(B). “If an objection is made,
” the serving party may file a motion to compel
production, and if the court orders production, “the
order must protect a person who is neither a party nor a
party's officer from significant expense resulting from
to serve timely written objections to a subpoena
“typically waives any objections the party may
have.” Universal City Dev. Partners, Ltd. v. Ride
& Show Eng'g, Inc., 230 F.R.D. 688, 697 (M.D.
Fla. 2005) (citation omitted). “However, in unusual
circumstances and for good cause, the failure to act timely
may not bar consideration of objections.” In re
Accutane Prod. Liab. Litig., No. 8:04-md-2523-T-30TBM,
2006 WL 1281598, at *1 (M.D. Fla. May 9, 2006) (citation
omitted); see also, e.g., Fla. Van Rentals, Inc.
v. Auto Mobility Sales, Inc., No. 8:13-cv-1732-T-36EAJ,
2014 WL 12629761, at *1 (M.D. Fla. Nov. 14, 2014); Am.
Standard Inc. v. Humphrey, No. 3:06-cv-893-J-32MCR, 2007
WL 1812506, at *4 (M.D. Fla. June 22, 2007). Unusual
circumstances have been found where “(1) the subpoena
is overbroad on its face and exceeded the bounds of fair
discovery, (2) the subpoenaed witness is a non-party acting
in good faith, and (3) counsel for the witness and counsel
for the subpoenaing party were in contact concerning the
witness' compliance prior to the time the witness
challenged the legal basis for the subpoena.” In re
Accutane, 2006 WL 1281598, at *1 n.4 (citation omitted).
TracFone received the Subpoena on February 19, 2019. Response
at 5; Reply at 2. On February 25, 2019, TracFone's
Subpoena Compliance Supervisor, Soraya Decade, contacted
Plaintiff's counsel via email asking to speak about the
Subpoena. See Motion at Ex. 1-D (Doc. No. 180-5) at
7. The next day, Plaintiff's counsel responded via email
and apparently, she and Ms. Decade spoke on the phone that
afternoon. See id. at Ex. 1-D (Doc. No. 180-5) at 6.
On March 6, 2019 (two days after the fourteen-day period for
objections), Ms. Decade sent Plaintiff's counsel a
proposal “per [their] last conversation.”
Id. at Ex. 1-D (Doc. No. 180-5) at 5. The proposal
showed a charge of $25.00 per subscriber, which would total
$56, 125.00. Id. at 3, Ex. 1 (Doc. No. 180-1) at 1
¶ 7, Ex. 1-C (Doc. No. 180-4). Ms. Decade indicated that
the search of each account would have to be done manually.
Id. at Ex. 1-D (Doc. No. 180-5) at 4.
further conferral, TracFone reduced its request to $3, 000.00
for the twelve hours it estimated the work required to
respond to the Subpoena would take. Response at 10, Ex. A
(Doc. No. 188-1) at 6 ¶ 23; Motion at Ex. 1-D (Doc. No.
180-5) at 4. In the end, however, TracFone spent forty-five
hours compiling the information needed to respond to the
Subpoena. Response at 10, Ex. 1 (Doc. No. 188-1) at 6 ¶
on the above, it appears that TracFone initially raised
issues regarding compensation for responding to the Subpoena
within the fourteen-day period, albeit not in writing. To the
extent the proposal sent on March 6, 2019 was an objection,
it was untimely. TracFone's failure to timely serve a
written objection, however, does not warrant waiver of its
objection for the reasons set out below.
the undersigned finds that TracFone is a non-party that is
not acting in bad faith in refusing to provide the requested
information. Second, Ms. Decade (although not TracFone's
counsel) was in contact with Plaintiff's counsel
regarding compliance with the Subpoena just seven days after
TracFone received the Subpoena. See Motion at Ex.
1-D (Doc. No. 180-5) at 7. Indeed, Ms. Decade and
Plaintiff's counsel were involved in discussions
specifically regarding the estimated costs of production.
See Response at 10; Motion at Ex. 1-D (Doc. No.
180-5) at 5 (March 6, 2019 email from Ms. Decade indicating,
“As per our last conversation, see the attached
proposal”), 4 (March 11, 2019 email from
Plaintiff's counsel stating, “As I'[ve]
indicated during our discussions, we find it hard to
understand how this is a manual process given the volume of
business”). Third, the nature of the objection is such
that TracFone was not able to assert the objection until it
ascertained how much it would cost to comply with the
review and for the reasons stated in the Response,
see Response at 6-10, the undersigned finds that the
requested costs are reasonable. The Motion is due to be
granted, and to protect TracFone from significant expense
resulting from compliance with the Subpoena, Plaintiff shall
pay TracFone $3, 000.00 upon TracFone's production of the
on the ...