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The Sterling Group, L.P. v. Babcock Power, Inc.

United States District Court, W.D. Kentucky, Louisville Division

July 10, 2017

THE STERLING GROUP, L.P., Movant,
v.
BABCOCK POWER, INC., Respondents.

          MEMORANDUM OPINION AND ORDER

          COLIN LINDSAY, MAGISTRATE JUDGE.

         Before the Court is a “Rule 45 Motion to Quash March 7, 2016 Subpoena Served on Sterling by Respondents, and for Sanctions” (“Motion to Quash”) (DN 1) filed by movant The Sterling Group, L.P. (“Sterling”) in the United States District Court for the Southern District of Texas. Respondents Babcock Power, Inc. and Vogt Power International, Inc. (“Babcock”) filed a response (DN 3).[1] On January 20, 2017, the Motion to Quash was transferred to the United States District Court for the Western District of Kentucky. (DN 5.) On February 8, 2017, the Motion to Quash was referred to the undersigned by Senior District Judge Charles R. Simpson, III for disposition regarding the subpoena; Judge Simpson specifically deferred the issue of sanctions. (DN 14.)

         On February 10, 2017, Sterling filed a “Motion for Leave to File Additional Briefing in Support of Sterling's Rule 45 Motion to Quash” (“Motion for Leave to File Additional Briefing”) (DN 15). Babcock did not file a response.

         The Motion to Quash and Motion for Leave to File Additional Briefing are therefore ripe for review and will be addressed separately below.

         I. BACKGROUND

         The subpoena subject of the Motion to Quash was issued in conjunction with another action pending before this Court, Babcock v. Kapsalis, Civil Action No. 3:13-cv-717-CRS-CHL (“the Babcock matter”). (See DN 1-8 [March 7, 2016 subpoena].) The Babcock matter has a long history of contentious discovery disputes. The background will only cover the various opinions and orders in the Babcock matter that the Court finds directly relevant to the issues at hand. Any citations to filings in the Babcock matter will be indicated as such.

         On September 21, 2015, a subpoena was issued to Sterling in conjunction with the Babcock matter. (Babcock matter, DN 118-2 [9/21/2015 subpoena].) In response, on October 28, 2015, Sterling filed a “Motion for Protective Order, to Quash Subpoena, and for Sanctions, Including Cost-Shifting” (“Motion for Protective Order and to Quash”) (Babcock matter, DN 118); that motion addressed the September 21, 2015 subpoena served on Sterling. On December 3, 2015, the Court held a hearing on the Motion for Protective Order and to Quash, along with other motions.

         At the beginning of the hearing, the Court encouraged the parties to come to an agreement regarding their discovery disputes. (DN 151 at 58.) Specifically, the Court stated, “Maybe both of you will dislike my ruling on some of [the discovery motions] but . . . unless and until I issue those rulings, you've got control over how it gets worked out. So take advantage of that . . . .” (Id. at 59.) At another point in the December 3, 2015 hearing, the Court raised concerns about a specific request in the September 21, 2015 subpoena for all monthly financial reports for Express Group Holdings, LLC that were in Sterling's possession. (Babcock matter, DN 151 at 55-57 [12/3/2015 transcript].) As a result, at the December 3, 2015 hearing counsel for Babcock agreed to talk to counsel for Sterling about a “reasonable restriction” and “reasonable limitation” with respect to the requests contained in the subpoena. (Id.)

         On February 26, 2016, the Court issued a memorandum opinion and order (Babcock matter, DN 204) granting the Motion for Protective Order and to Quash filed by Sterling insofar as it sought to quash the September 21, 2015 subpoena. In that memorandum opinion and order, the Court addressed the substance of the requests in the subpoena, finding those requests to be overbroad, not limited in subject matter or scope, or seeking irrelevant information; as a result, the Court quashed, in full, the September 21, 2015 subpoena. The Court also stated:

As a final matter, while the Court has, in effect, granted the Motion in full as it relates to the subpoena at issue, it does not find that plaintiffs' requests have no merit whatsoever. Rather, many of them are simply too broad and the Court is not in the best position to craft more narrow requests. At the hearing conducted by the Court on December 3, 2015, plaintiffs' counsel agreed to talk to opposing counsel about a “reasonable restriction” with respect to their discovery requests. (DN 151, p. 55.) It is in the best interests of Sterling and plaintiffs to avoid another costly discovery dispute by working together as required by Local Rule 37.1.

(Id. at 12.)

         Also on February 26, 2016, the undersigned conducted a telephonic status conference in this matter. On March 2, 2016, the undersigned issued an order (Babcock matter, DN 208) memorializing several rulings that it made during the February 26, 2016 telephonic status conference. The March 2, 2016 order stated, among other things:

The Amended Scheduling Order (DN 186) is further amended as ...

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