The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Romac Environmental Servs., LLC, et al. Civil Action No. 6:20-0581
versus Judge Robert R. Summerhays
Wildcat Fluids, LLC, et al. Magistrate Judge Carol B. Whitehurst
MEMORANDUM RULING AND ORDER
Pending before the undersigned magistrate judge are two discovery motions,
to wit: (1) Motion to Quash Subpoena [Doc. 178] filed by non-party Tornado
Production Services, LLC (“Tornado”), and (2) Motion to Quash Subpoena [Doc.
179] filed by Romac Environmental Services, LLC (“Romac”). Both motions are
opposed by Wildcat Fluids, LLC [Docs. 200 & 201]. For the following reasons,
both motions are GRANTED.
Both motions essentially address the same issue. Tornado, which is not a
party to the instant lawsuit, is a customer of Romac. On February 16, 2022, almost
two months past the discovery deadline, Wildcat issued a Notice of Subpoena to
Tornado, demanding production of documents, information, or objects, on February
28, 2022. The subpoena requests the following documents: (1) all communications
between Tornado and Romac, DEL, or Wildcat relating to the SandCat; (2) all
contracts or agreements between Tornado and Romac; (3) all invoices issued by
1
Romac to Tornado relating to the SandCat; and (4) all quotes issued by Romac to
Tornado relating to the SandCat.
Both Romac and Tornado argue that Wildcat was aware of the business
relationship between Romac and Tornado as it relates to the Sandcat prior to the
close of discovery. According to both Tornado and Romac, Wildcat’s counsel
questioned Romac’s corporate representative extensively regarding this relationship
during the Rule 30(b)(6) deposition of Romac on November 19, 2021. Romac
further argues that it provided copies of all invoices submitted to Tornado for the
Sandcat to Wildcat on November 19, 2021.
In both motions to quash, Romac and Tornado argue that the requested
production would be unduly burdensome and that the subpoena seeks confidential
information. Wildcat acknowledges that it has known of the business relationship
between Romac and Tornado regarding the SandCat but argues that it did not know
that after promising to use Wildcat as its exclusive SandCat service provider, Romac
then made a nearly identical promise to Tornado. Wildcat argues that it only
learned of the foregoing when it reviewed the 7,319 pages of documents produced
by Romac on January 3, 2022 (discovery that was provided after the discovery
deadline under an agreement between the parties).
2
Two rules inform this dispute: Federal Rules of Civil Procedure 26 and 45.
“Federal Rule of Civil Procedure 45 explicitly contemplates the use of subpoenas in
relation to non-parties and governs subpoenas served on a third party . . . as well as
motions to quash or modify or to compel compliance with such a subpoena.” Ford
Motor Co. v. Versata Software, Inc., 316 F. Supp. 3d 925, 931 (N.D. Tex. 2017)
(internal quotations omitted).1 Rule 45(d)(3) provides that “[o]n timely motion, the
court ... must quash or modify a subpoena that” either “requires disclosure of
privileged or other protected matter, if no exception or waiver applies” or “subjects
a person to undue burden.”5 Fed. R. Civ. P. 45(d)(3)(A)(iii), (iv). Where the
moving party asserts the subpoenaed information is privileged or protected, the party
must: (1) “expressly make the claim;” and (2) “describe the nature of the withheld
documents, communications, or tangible things in a manner that, without revealing
information itself privileged or protected, will enable the parties to assess the claim.”
Fed. R. Civ. P. 45(e)(2)(A)(i)–(ii).
In analyzing whether a subpoena presents an undue burden, courts consider
the following factors: “(1) relevance of the information requested; (2) the need of
the party for the documents; (3) the breadth of the document request; (4) the time
1 See also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2456
(3d ed) (“The subpoena duces tecum is the only way to compel a nonparty to produce documents
or other materials.”).
3
period covered by the request; (5) the particularity with which the party describes
the requested documents; and (6) the burden imposed.” Wiwa v. Royal Dutch
Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). “Whether a burdensome
subpoena is reasonable must be determined according to the facts of the case, such
as the party's need for the documents [or information] and the nature and importance
of the litigation.” Id. (internal quotations omitted). In addition, “if the person to
whom the document request is made is a non-party, the court may also consider the
expense and inconvenience to the non-party.” Id.
The party seeking to quash the subpoena bears the burden of demonstrating
“that compliance with the subpoena would be unreasonable and oppressive,” or that
compliance will lead to disclosing privileged or protected material. Id. (quoting
Williams v. City of Dall., 178 F.R.D. 103, 109 (N.D. Tex. 1998)) (internal quotations
omitted). “The moving party opposing discovery must show how the requested
discovery was overly broad, burdensome, or oppressive by submitting affidavits or
offering evidence revealing the nature of the burden.” Lead GHR Enters., Inc. v.
Am. States Ins. Co., 2017 WL 6381744, at *6 (N.D. Tex. Dec. 14, 2017), quoting
Andra Grp., LP v. JDA Software Grp., Inc., 312 F.R.D. 444, 449 (N.D. Tex. 2015).
Modifying the subpoena “is preferable to quashing it outright.” Wiwa, 392 F.3d at
818.
4
When “a subpoena is issued as a discovery device, relevance for purposes of
the undue burden test is measured according to the standard of [Federal Rule of Civil
Procedure] 26(b)(1).” MetroPCS v. Thomas, 327 F.R.D. 600, 609 (N.D. Tex. 2018)
(quoting Williams, 178 F.R.D. at 110). Rule 26(b) provides that:
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.
Fed. R. Civ. P. 26(b)(1).
Information must therefore be nonprivileged, relevant, and proportional to the
needs of the case to constitute discoverable material. See Samsung Elecs. Am., Inc.
v. Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017) (citing Rocha v. S.P. Richards Co.,
2016 WL 6876576, at *1 (W.D. Tex. Nov. 17, 2016)) (“Under Rule 26(b)(1),
discoverable matter must be both relevant and proportional to the needs of the case—
which are related but distinct requirements.”); see also Thomas, 327 F.R.D. at 609–
10 (noting that “discovery from a third party as permitted through a subpoena issued
under Rule 45 is limited to the scope of discovery permitted under Rule 26(b)(1) in
the underlying action, and [d]iscovery outside of this scope is not permitted”
(internal quotations omitted)).
5
Alternatively, Rule 26(c)(1) authorizes the court to issue a protective order,
for good cause shown, “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Under Rule 26(c), a court may impose a
protective order that, inter alia, forbids “the disclosure or discovery,” specifies the
“terms, including time and place or the allocation of expenses” of the discovery,
prescribes “a discovery method other than the one selected by the party seeking
discovery,” or prohibits “inquiry into certain matters, or limiting the scope of
disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(A)–(D). “The
scope of discovery is the same under both Federal Rules of Civil Procedure 45 and
26” -- i.e., a party may discover any nonprivileged matter that is relevant to a party's
claim or defense. Garcia v. Prof'l Contract Servs., Inc., A-15-CV-585-LY, 2017
WL 187577, at *2 (W.D. Tex. Jan. 17, 2017).
Like a motion to quash, the “burden is upon [the party seeking the protective
order] to show the necessity of its issuance, which contemplates a particular and
specific demonstration of fact as distinguished from stereotyped and conclusory
statements.” Meisenheimer v. DAC Vision Inc., No. 3:19-cv-1422-M, 2019 WL
6619198, at *2 (N.D. Tex. Dec. 4, 2019), quoting In re Terra Int'l, 134 F.3d 302,
306 (5th Cir. 1998). Courts have generally concluded that to obtain a protective
order, the moving party must show both “good cause and a specific need for the
6
protection.” Id. The Fifth Circuit has noted the following with respect to Rule
26(c)’s good cause requirement:
[T]he federal courts have superimposed a somewhat demanding
balancing of interests approach to the Rule. Under the balancing
standard, the district judge must compare the hardship to the party
against whom discovery is sought against the probative value of the
information to the other party. Courts also weigh relevant public
interests in this analysis.
Cazorla v. Koch Foods of Miss., L.L.C., 838 F.3d 540, 555 (5th Cir. 2016) (internal
quotations and citations omitted).
To successfully oppose a motion for protective order, however, the party
seeking discovery may “need to make its own showing of ... the proportionality
factors, including the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, and the importance of the discovery in resolving the issues....” Dennis
v. United States, 2017 WL 4778708, at *4 (N.D. Tex. Oct. 23, 2017). The court has
broad discretion in determining whether to impose a protective order. Harris v.
Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985).
Here, Romac has filed its motion under Rule 45. Wildcat argues that because
the motion was filed in this Court – the Court that issued the subpoena – rather than
the court of compliance,2 Rule 26 governs the dispute, and the motion should be
2 The Southern District of Texas encompasses Corpus Christi, Texas.
7
deemed a Motion for Protective Order. Rule 45(d)(3)(A) contemplates that “the
court for the district where compliance is required” may quash or modify a subpoena,
which presupposes that the motion was properly filed in the court of compliance,
which, here, would be the Southern District of Texas. But the instant motion was
filed in this Court – the court that issued the subpoena -- and not the court of
compliance. Notwithstanding that the instant motion was filed in the wrong court,
neither party objects to this Court deciding the motion. Indeed, Rule 45(f) allows
the court of compliance to transfer a motion to quash to the issuing court if the person
subject to the subpoena consents ore if the court finds exceptional circumstances.3
As Tornado and Romac have filed their motions here, this Court concludes that
consent has been given for this Court to decide the motion. Furthermore, with
regard to whether the motion should be adjudicated as a Rule 45 motion to quash or
3 Rule 45(f) states:
(f) Transferring a Subpoena-Related Motion. When the court where compliance
is required did not issue the subpoena, it may transfer a motion under this rule to
the issuing court if the person subject to the subpoena consents or if the court finds
exceptional circumstances. Then, if the attorney for a person subject to a subpoena
is authorized to practice in the court where the motion was made, the attorney may
file papers and appear on the motion as an officer of the issuing court. To enforce
its order, the issuing court may transfer the order to the court where the motion was
made.
Fed. R. Civ. P. 45
8
a Rule 26 motion for protective order, the undersigned concludes that the motion
should be granted under either standard.
As seen from the cases above, the scope of discovery through a Rule 45
subpoena is governed by Rule 26(b). Zamora v. GC Servs., LP, 2017 WL 1861843,
at *3 (W.D. Tex. Feb. 17, 2017), citing Chamberlain v. Farmington Sav. Bank, No.
3:06CV01437 CFD, 2007 WL 2786421, at *1 (D. Conn. Sept. 25, 2007) (citing,
inter alia, Fed. R. Civ. P. 45 advisory committee's notes to 1970 amendment (stating
“the scope of discovery through a subpoena is the same as that applicable to Rule 34
and the other discovery rules”).
In the instant case, Romac argues that Wildcat has known about the identity
of Tornado as a customer of Romac’s since at least July 2021, well before the
December 23, 2021 discovery deadline, and that Romac produced all of its invoices
to Tornado with respect to the Sandcat to Wildcat on November 16, 2021.
Furthermore, Romac argues that Wildcat seeks documents that would disclose the
structure of Romac and Tornado’s relationship, including all financial information.
Romac argues that the disclosure of financial and contractual arrangements with any
customer of Romac is detrimental to Romac’s business, especially to a competitor –
Wildcat -- who can use the information for its own financial gain. Finally, Romac
argues that because Wildcat has chosen to have its Vice President, Alan Brown,
9
serve as its only expert witness in the lawsuit, production of the information by
Tornado would allow Wildcat – through its “expert” employee – access to Romac
and Tornado’s confidential information. Therefore, Romac argues, the information
cannot be produced pursuant to a protective order that will completely protect the
information.
Wildcat argues that any issues associated with the timeliness of the subpoena
are the fault of Romac, which produced approximately 7,000 documents after the
discovery deadline. Wildcat also argues that the fact that the information will be
seen by Mr. Allen is an “unfounded” concern.4
Under Rule 45(d)(3), the court must quash or modify a subpoena that either
“requires disclosure of privileged or other protected matter, if no exception or waiver
applies” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii),
(iv). Where the moving party asserts the subpoenaed information is privileged or
protected, the party must: (1) “expressly make the claim;” and (2) “describe the
4 The Court notes that there is a pending motion by Wildcat which challenges Romac’s
confidentiality designations [Doc. 176] and seeks to allow Mr. Brown to view certain documents
previously produced by Romac and designated “Attorneys Eyes Only,” pursuant to the Agreed
Protective Order in this case. Romac opposes the motion, arguing that allowing Mr. Brown access
to such documents creates an unacceptably high risk of competitive and financial harm. [Doc. 198,
p. 9] The Court has delayed consideration of this motion until after the Court rules on the Daubert
motion seeking to exclude the testimony of Mr. Brown. Nevertheless, because the documents
which are the subject of the present motion to quash are the same type of confidential business
information which Wildcat seeks for Mr. Brown to review in his role as Wildcat’s damages expert,
the court finds that the same potential competitive risk is present with regard to the subpoenaed
documents.
10
nature of the withheld documents, communications, or tangible things in a manner
that, without revealing information itself privileged or protected, will enable the
parties to assess the claim.” Fed. R. Civ. P. 45(e)(2)(A)(i)–(ii). In addition, because
Tornado is a non-party, the court may also consider the expense and inconvenience
to Tornado. Furthermore, under Rule 26, a protective order is warranted in those
instances in which the party seeking it demonstrates good cause and a specific need
for protection. See Areizaga v. ADW Corp., 314 F.R.D. 428, 434 (N.D. Tex. 2016).
The Court has broad discretion in determining whether to grant a motion for a
protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir.1985).
“The trial court is in the best position to weigh fairly the competing needs and
interests of parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S.
20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).
Here, Romac expressly invokes the confidential nature of the documents and
argues that the requested documents would disclose the structure of the relationship
between Romac and Tornado, including all financial information and contractual
arrangements between Romac and Tornado. Additionally, it appears that much of
the requested invoices have already been produced by parties to the lawsuit in
discovery. Indeed, Romac voluntarily produced non-privileged documents related
11
to its business relationship with Tornado when it produced more than 7,000
documents to Wildcat in January, 2022.
Thus, given that Tornado is a non-party, that the subpoena requests documents
that are confidential in nature and documents that are available from other parties,
and given the expense and inconvenience to Tornado that would result if the
subpoena were enforced, the undersigned concludes that the subpoena filed by
Wildcat should be quashed.
Considering the foregoing, the Motion to Quash Subpoena [Doc. 178] filed
by non-party Tornado Production Services, LLC (“Tornado”) and the Motion to
Quash Subpoena [Doc. 179] filed by Romac Environmental Services, LLC
(“Romac’’) are hereby GRANTED, and the subpoena served on Tornado is hereby
QUASHED.
Signed at Lafayette, Louisiana, this 3 day of June, 2022.
Whur &
CAROL B. WHITEHURST its
UNITED STATES MAGISTRATE JUDGE
12