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Speak for Yourself! – A Case Law Update

A plaintiff is reminded that Rule 45 does not permit parties to object to third-party subpoenas on burden or relevance grounds.

November 07, 2023 — by Joe Tate, Member and Managing Director, and Nicole Gill, Counsel, CODISCOVR

A plaintiff is reminded that Rule 45 does not permit parties to object to third-party subpoenas on burden or relevance grounds.

A federal court denied a plaintiff’s motion to quash or modify and for a protective order regarding subpoenas duces tecum served by the defendant on three non-parties, explaining that “even when a party has standing pursuant to a personal right or privilege, the party cannot challenge a subpoena issued to a non-party on the basis that the subpoena is unduly burdensome or irrelevant.”

We provide dedicated advocacy to our clients that goes beyond standard document review; our attorneys are trained litigation professionals who advise on discovery motion practice and work closely with case teams to negotiate with opposing counsel on the scope of discovery. 

MC Trilogy Texas, LLC v. City of Heath, Texas, No. 3:22-CV-2154-D, 2023 WL 7004442 (N.D. Tex. Oct. 24, 2023) is a land use case in which the plaintiff brought a takings claim against a local municipality. The municipality served non-party subpoenas on the plaintiff’s title insurance company, lender, and real estate agency seeking financial information in order to determine the fair market value of the property at issue.

The plaintiff moved to quash or modify the non-party subpoenas and also moved for a protective order on the basis that the subpoenas were overly broad, unduly burdensome, irrelevant, harassing, and sought confidential information.

A judge for the U.S. District Court for the Northern District of Texas found that the plaintiff had standing under Rule 45 to move to quash or modify the subpoenas served on the non-parties, as the company had a personal right to its own private financial information. However, the motion to quash or modify was rejected on its merits because:

·       even when a party has standing pursuant to a personal right or privilege, the party cannot challenge a subpoena issued to a non-party on the basis that the subpoena is unduly burdensome or irrelevant;

·       only a non-party served with a subpoena can make objections of undue burden and inconvenience because it is best positioned to understand the burden of its own compliance; and

·        production of confidential development information was not a concern because there was a stipulated protective order in the case.

The court also rejected the plaintiff’s motion for a protective order, finding:

·       the subpoenas were not overly broad merely because the requests referred to a whole development owned by the plaintiff rather than the portion of that property at issue in the case;

·       the plaintiff did not offer any evidence to support its argument that the subpoenas were unduly burdensome on the three non-parties, and those non-parties were in a better position to understand whether the subpoenas imposed an undue burden on them;

·       the information sought in the subpoenas regarding the property’s fair market value was relevant to the claims in the case; and

·         the defendant’s requests to non-parties did not constitute purposeful harassment.

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