eDiscovery Daily Blog
Citing Protective Order, Court Grants Motion to Quash the Subpoena of Third Party Expert: eDiscovery Case Law
As we all wind our way back home after another Legaltech, here is a new case law post for you. Next week, we’ll have some observations from attendees at the show (including me).
In Rhino Metals, Inc. v. Sturdy Gun Safe, Inc., No. 1:18-cv-00474-DCN (D. Idaho Jan, 22, 2020), Idaho David C. Nye granted the motion of the Defendant/Counterclaimant to Enforce the Protective Order that was related to a report prepared by defendant’s expert that was produced to the plaintiff in this case and quashed the subpoena that was issued to the Plaintiff/Counter-Defendant from a party in another case.
In this case, the defendant produced the report of one of its experts to the plaintiff. Pursuant to the parties’ agreed upon protective order in this case, the defendant designated the expert’s report as “Confidential”, which limited the receiving party’s ability to use and disclose the report. Unrelatedly, that same expert produced a report on behalf of a plaintiff in a legal matter titled GDM Enterprises, LLC v. Astral Health & Beauty, Inc., a case in the Western District of Missouri. On December 20, 2019, the plaintiff issued a subpoena to the defendant in the Missouri action requesting the expert’s report in that case. Ten days later, the defendant in the Missouri case issued a reciprocal subpoena to the plaintiff requesting the expert’s report in this case.
The defendant raised the issue to the Court informally and the plaintiff represented that it would not respond to the subpoena until the Court had an opportunity to review and rule on any motions filed in the instant case. Concerned that this information would leak into the public sphere if turned over, the defendant moved the Court for an order enforcing the protective order in this case and prohibiting the plaintiff from responding to the subpoena and turning over the requested information.
Judge Nye began his analysis by stating: “As a threshold matter, the Court notes that this Court—the District of Idaho—is the correct forum to take up this matter”, noting that “Sturdy is the party ‘affected by a subpoena’ and that “the subpoena requires compliance in this District”. Noting that “under Rule 45, the party to whom a subpoena is directed must ‘produce [the designated items] in that person’s possession, custody, or control’”, Judge Nye stated:
“Here, the items at issue are only in the temporary possession, custody, or control of Rhino pursuant to a Protective Order of this Court and thus not subject Astral’s subpoena… Sturdy is the true, rightful owner of this material. Sturdy is the correct party to whom the subpoena should have been directed. The mere fact that Rhino has the information at this time does not mean that the information is within its possession, custody, or control and subject to disclosure… Thus, the report Astral seeks via its subpoena is not within Rhino’s possession, custody, or control for purposes of discovery. Further, were Rhino to turn it over, it would be violating the terms of the protective order in this case and subject to sanctions.”
Addressing the plaintiff’s concerns that it might be required to respond to the subpoena, Judge Nye also noted that “the bottom line is that Rhino is not ‘disobeying a lawful subpoena’ by not turning over the information Astral seeks because it isn’t Rhino’s information to turn over in the first place.” As a result, he granted the defendant’s motion and quashed the subpoena issued to the plaintiff.
So, what do you think? Do you agree that the report wasn’t in the possession, custody and control of the plaintiff? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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