United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
E. Wier United States Magistrate Judge.
Development, Ltd., Inc.; Brookstone Development Pty.,
Ltd.; Great Lakes Geophysical, LLLP; and
Riverside Equities, LLC (collectively, Movants) request
quashal of three issued subpoenas. DE #2623 (Motion to
Quash). Plaintiffs West Hills Farms, LLC;
MacDonald Stables, LLC; Arbor Farms, LLC; Jaswinder Grover;
and Monica Grover (collectively, Plaintiffs) responded in
opposition. DE #2624 (Response). Movants replied. DE #2625
(Reply). The matter is fully briefed and ripe for
consideration. The subpoenas demand compliance in
Louisville, Kentucky, and Mount Pleasant, Michigan.
See DE ##2620-1, 2621-1, 2622-1. A motion to quash
is properly directed, at least initially, to the “court
for the district where compliance is required[.]”
Fed.R.Civ.P. 45(d)(3); see also, e.g., Green v.
Cosby, 314 F.R.D. 164, 167 n.2 (E.D. Pa. 2016) (holding
motion to quash was “properly filed” in E.D. Pa.
although a Massachusetts court issued the
subpoena). The Eastern District of Kentucky is not
the district where compliance is required concerning these
three subpoenas. Accordingly, the Court
DENIES Movants' quashal effort for want
of jurisdiction but nevertheless provides the following
guidance on the substantive issues.
involved parties here present a post-judgment discovery
dispute to the Court. See DE ##2228, 2229, 2230,
2231, 2232, 2351 (Judgments); see also In re ClassicStar
Mare Lease Litig., 823 F.Supp.2d 599 (E.D. Ky. 2011),
aff'd, 727 F.3d 473 (6th Cir. 2013). Broadly
speaking, this multi-district litigation matter, which has
required Court attention for more than a decade, resolved
Plaintiffs' RICO-centered claims against ClassicStar and
other defendants concerning various mare lease agreements,
resulting in a weighty (approximately $65 million) damage
total. The Court references the cited opinions for a more
thorough discussion of the underlying facts. The involved
parties are now engaged in asset discovery and collection;
the judgment debtors face a multimillion-dollar liability.
relevant here, certain non-party Movants ask the Court to
quash three subpoenas the listed Plaintiffs issued to various
banks. The Plaintiffs seek from the named banks a broad swath
of documents that “identify or describe financial
accounts or transactions owned, controlled, or conducted
by” a variety of “individuals, entities or names
since January 1, 2009[.]” See DE ##2620-1,
2621-1, 2622-1. These Plaintiffs oppose the motion to quash.
The quashal effort pertains to only a few of the 19 subpoena
Court notes, as a commentary to its processing of the motion,
that the parties' briefing ignores large areas of
potential consequence and interest to the Court (including
the decisional jurisdictional issue). Nevertheless, in an
attempt to efficiently give guidance on the merits and enable
post-judgment discovery to proceed as appropriate in this
long-pending (and long-closed) case, the Court addresses the
issues the parties have presented.
aid of the judgment or execution, the judgment creditor . . .
may obtain discovery from any person . . . as provided in
[the Federal Rules of Civil Procedure] or by the procedure of
the state where the court is located.” Fed.R.Civ.P.
69(a)(2). Here, certain judgment creditors seek to obtain
discovery via subpoena. See Id. 45.
timely motion, ” the court, as possibly relevant here,
“must quash or modify a subpoena that: . . . (iii)
requires disclosure of privileged or other protected matter,
if no exception or waiver applies; or (iv) subjects a person
to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). Further,
“[a]s provided in Rule 45, a nonparty may be compelled
to produce documents[.]” Id. 34(c). Courts
“have held that the scope of discovery under a subpoena
is the same as the scope of discovery under Rule 26.”
Hendricks v. Total Quality Logistics, LLC,
275 F.R.D. 251, 253 (S.D. Ohio 2011); see also Transcor,
Inc. v. Furney Charters, Inc., 212 F.R.D. 588,
591 (D. Kan. 2003) (“It is well settled . . . that the
scope of discovery under a subpoena is the same as the scope
of discovery under Rule 26(b) and Rule 34.” (footnotes
omitted)). Under Rule 26:
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.
Civ. P. 26(b)(1). The amended Rule “codified a
proportionality requirement, . . . exhort[ing] judges to
exercise their preexisting control over discovery more
exactingly.” Robertson v. People Magazine, No.
14 Civ 6759 (PAC), 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16,
2015). “Restoring proportionality is the touchstone of
revised Rule 26(b)(1)'s scope of discovery
provisions.” Siriano v. Goodman Mfg. Co.,
L.P., No. 2:14-cv-1131, 2015 WL 8259548, at *5 (S.D.
Ohio Dec. 9, 2015); Albritton v. CVS Caremark Corp.,
No. 13-CV-218-GNS-LLK, 2016 WL 3580790, at *3-*4 (W.D. Ky.
June 28, 2016) (same); Gallagher v. Anthony, No.
16-CV-284, 2016 WL 2997599, at *1 (N.D. Ohio May 24, 2016)
(same); see also Fed. R. Civ. P. 26 advisory
committee's note to 2015 amendment. Overall, even
post-amendments, the general “scope of discovery is
within the sound discretion of the trial court.”
Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th
Cir. 1994); see also Surles ex rel. Johnson v. Greyhound
Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).
particularly, discovery under Rule 69(a) must be calculated
to assist in judgment collection. Motorola Credit Corp.
v. Uzan, 293 F.R.D. 595, 598 (S.D.N.Y. 2013). Despite
this constraint, the “scope of post-judgment discovery
is broad.” Libraire v. Kaplan, 760
F.Supp.2d 288, 293 (E.D.N.Y. 2011) (citation and internal
quotation marks omitted). This District has succinctly
explained the contours of discovery in this setting:
[T]he scope of post-judgment discovery is broad, United
States v. Conces, 507 F.3d 1028, 1040 (6th Cir. 2007),
and includes the right to obtain discovery from non-parties.
Fed. R. Civ. Proc. 69(a)(2). A judgment creditor ‘is
entitled to utilize the full panoply of federal discovery
measures provided for under federal and state law to obtain
information from parties and non-parties alike, including
information about assets on which execution can issue or
about assets that have been fraudulently transferred.'
Andrews v. Raphaelson, No. 5:09-cv-77, 2009 WL
1211136, *3 (E.D. Ky. Apr. 30, 2009) (quoting
Magnaleasing, Inc. v. Staten Island Mall, 76 F.R.D.
559, 561 (S.D.N.Y. 1977).
GATX Corp. v. Appalachian Fuels, LLC, No. 09-41-DLB,
2011 WL 4015573, at *2 (E.D. Ky. Sept. 9, 2011). The
undersigned, in this very case, has previously approved a
fairly expansive scope of permissible post-judgment
discovery, see, e.g., DE #2591 (Order),
including tailored “access to legitimate asset
discovery, even [from] a non-party.” See DE
#2590 (Order), at 6-7 (explaining: “Rule [69(a)]
generally does not encompass discovery of the assets of a
true non-party. Magnaleasing, 76 F.R.D. at 562
(citations omitted). Courts should not apply the limit
‘mechanically, ' however, and ‘[d]iscovery
has been permitted against a non-party where the relationship
between the judgment debtor and the non-party is sufficient
to raise a reasonable doubt about the bona fides of the
transfer of assets between them.' Id. (citations
omitted).” (citation shortened)).
asserting that subpoena compliance will subject it to undue
burden “must show that disclosure will cause it a
clearly defined and serious injury.” State Farm
Mutual Auto. Ins. Co. v. Warren Chiropractic & Rehab.
Clinic, P.C., 315 F.R.D. 220, 224 (E.D. Mich. 2016)
(internal quotation marks removed); see also Buchanan v.
Am. Motors Corp., 697 F.2d 151, 152 (6th Cir. 1983)
(affirming quashal on the ground that the subpoena was
“unreasonably burdensome”). Finally, “[t]he
party seeking to quash a subpoena bears the ultimate burden
of proof. If the discovery sought appears relevant on its
face, the party resisting the discovery has the burden to
establish the lack of relevance[, ] but when relevancy is not
apparent on the face of the request, the party seeking the
discovery has the burden to show the relevancy of the
request.” Hendricks, 275 F.R.D., at 253
(internal citations and quotation marks omitted).