United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Lindsay, Magistrate Judge
matter is before the Court on a Motion to Quash Subpoenas
(the “Motion to Quash”) (DN 200) that was filed
by defendants Promold & Tool, LLC, Premier Promold &
Tool, Inc., and Michael J. Hornback (together, the
“Hornback Defendants”) on June 8, 2016. For the
reasons set forth below, the motion is DENIED and the Court
declines to enter the proposed order.
Plaintiffs served twenty-two separate subpoenas on
non-parties requesting nineteen various categories of
documents relating to the subject matter of the litigation
(DN 200 - Exhibit A). In their Motion to Quash, Defendants
argue that the vast majority of the subpoenas are “an
undisguised financial status fishing expedition” by the
Plaintiffs. (DN 200 at 4). The Plaintiffs, however, claim
that the subpoenas were issued “to seek information
from persons and entities affiliated with the Hornback
Defendants to ascertain the extent of the Hornback
Defendants' breaches of contract and infringement of the
patent-in-suit, not to obtain their financial status.”
(DN 202 at 2). The Plaintiffs further argue three independent
reasons why the Defendants' motion should be denied.
First, Defendants lack standing to object to the subpoenas
issued to non-parties. Second, the Hornback Defendants did
not confer in good faith with the Plaintiff's prior to
filing their motion. And third, the motion is lacking in
merit. Id. at 2-3.
state in their motion to quash that “[a] party may
object to a subpoena pursuant to Fed.R.Civ.P.
45(d)(2)(B).” (DN 200 at 2). While Rule 45 of the
Federal Rules of Civil Procedure offers no direct guidance on
the issue of standing, district courts in the Sixth Circuit
have consistently held that a party ordinarily has no
standing to challenge a subpoena to a non-party without first
showing a claim of privilege or personal right exists in the
information sought. See Donahoo v. Ohio Department of
Youth Services, 211 F.R.D. 303, 306 (N.D. Ohio, 2002);
Pogue v. Northwestern Mut. Life Ins. Co., 2016 U.S.
Dist. LEXIS at *17-18 (W.D. Ky., June 1, 2016); United
States v. Cordes, 2016 U.S. Dist. LEXIS at *10 (E.D.
Mich., Mar 23, 2016). See also Singletary v. Sterling
Transp. Co., 289 F.R.D. 237, 239 (E.D. Va., 2012)
(quoting United States v. Idema, 118 F. App'x.
740, 744 (4th Cir., 2005) (stating that a personal right may
be found where the nature of the information is “highly
personal and confidential”)); Robertson v.
Cartinhour, 2010 U.S. Dist. LEXIS 16058, at *3 (D. Md.
Feb. 23, 2010) (holding that a party “does not have a
personal right to or privilege in the bank records held by
a vague reference to the information sought by the
Plaintiffs' subpoenas being “potential work product
information, ” the Hornback Defendants implicate
neither a privilege nor a right that would warrant the Court
to grant the Hornback Defendants standing under the rule. (DN
211 at 5). In fact, upon review of each of the nineteen types
of documents requested by the subpoenas, while potentially
overbroad in scope, the Court can find no evidence that the
information requested is of such a personal and confidential
nature that such a right or privilege exists.
the clear statement of the rule and the lack of evidence
asserting a claim of privilege or personal right, the
Hornback Defendants argue that they are nonetheless able to
challenge the subpoenas under what the Court must assume to
be the undue burden standard of Fed.R.Civ.P. 26(c) as it
relates to protective orders. (DN 211 at 4). In support of
this argument, Defendants cite to a footnote in
Singletary, which implies that a court may construe
a motion to quash under Rule 45 as a motion for a protective
order under Rule 26. (DN 211 at 4-5 (citing to
Singletary, 289 F.R.D. at 240 n.2)). In
Singletary, after the Plaintiff filed a suit
alleging violations of the Fair Labor Standards Act and
breach of an employment agreement, the Defendants issued
subpoenas to obtain the private employment records of the
Plaintiff from four of his previous employers. Id.
at 238-39. The Plaintiff filed motions to quash the subpoenas
as overbroad under Rule 45 and for a protective order under
Rule 26 “in order to protect Plaintiff from annoyance,
embarrassment, oppression, or undue burden or expense.”
Id. at 239-42. The Plaintiff asserted that he had
standing to challenge the subpoenas since he had a personal
right in the information sought. Id. at 239. The
court agreed, and held that the Plaintiff had standing to
challenge the subpoenas due to the highly personal and
confidential nature of the information contained in
employment records. Id. at 240. In dicta, the court
also noted that despite the assertion of a personal right in
the information sought, the Plaintiff would have had standing
to challenge the subpoenas due to their overbreadth under the
undue burden standard of Rule 26. Id. at 240 n.2
(“Thus, as Plaintiff also has made a motion for a
protective order, Plaintiff has standing to challenge the
applicable subpoenas duces tecum, regardless of whether the
Court considers his Motion under Rule 45 or Rule 26.”).
the Hornback Defendants' attempt to liken the current
situation to that of the Plaintiff in Singletary,
the Court is unpersuaded. As an initial matter, unlike in
Singletary, the Hornback Defendants do not argue,
and this Court need not decide, whether a motion for a
protective order under Rule 26 is appropriate in the instant
case. Courts in the Sixth Circuit have stated that without
the requisite standing under Rule 45, a plaintiff may not
seek to quash a subpoena issued to a non-party. See,
e.g., Tullis v. Umbank, N.A., 2011 U.S. Dist LEXIS
139368 (N.D. Ohio Dec. 5, 2011) (citing to Donahoo,
211 F.R.D. at 306) (“While Plaintiffs seek irrelevant
and unneeded information, however, [Defendant] has no
standing to quash the subpoenas on grounds of undue
burden.”). Further distinction can be drawn from the
fact that unlike in Singletary, where the Plaintiff
was able to establish standing due to the assertion of a
personal right in the information sought, the Hornback
Defendants here only offer conclusory assertions of right and
privilege in the information sought by the subpoenas.
these reasons, under the particular circumstances surrounding
this motion to quash, the Court concludes that the
Donahoo case and its progeny compel a finding that
the motion to quash be denied for lack of standing.
IT IS ORDERED that the Motion to Quash ...