VESPER MARITIME LIMITED v. LYMAN MORSE BOATBUILDING INC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

VESPER MARITIME LIMITED, )

)

Plaintiff )

v. ) No. 2:19-cv-00056-NT

)

LYMAN MORSE BOATBUILDING, INC., )

)

Defendant )

MEMORANDUM DECISION AND ORDER ON

MOTIONS TO QUASH AND COMPEL DISCOVERY

In this action in which plaintiff Vesper Maritime Limited (“VML”), the owner of the

Sailing Yacht Vesper (“S/Y VESPER”), seeks to recover damages sustained when the S/Y

VESPER fell from jack-stands during a November, 10, 2018, windstorm at the boatyard of

defendant Lyman Morse Boatbuilding, Inc. (“Lyman Morse”), see First Amended Complaint (ECF

No. 39) ¶¶ 4-18, 31, non-party W. Gardner Wallace (“Gardner”) moves to quash subpoenas to

testify at deposition and produce documents, see Motion to Quash Subpoena to Testify at a

Deposition in a Civil Action (“Motion to Quash Deposition Subpoena”) (ECF No. 83); Motion to

Quash Subpoena to Produce Documents[,] Information or Objects or to Permit Inspection of

Premises in a Civil Action (“Motion to Quash Subpoena Duces Tecum”) (ECF No. 84) (together,

“Motions to Quash Subpoenas”), and Lyman Morse moves to enforce subpoenas commanding

Monte J. Wallace (“Monte”), VML’s sole director and shareholder, to testify at deposition and

produce documents, see Defendant Lyman Morse Boatbuilding, Inc.’s Motion . . . to Enforce

Subpoenas Issued to Monte J. Wallace (“Motion to Enforce Subpoenas”) (ECF No. 96). For the

reasons that follow, after hearing oral argument on all three motions on February 14, 2020, I

granted Lyman Morse’s motion to enforce its subpoenas served on Monte and denied Gardner’s

motions to quash the subpoenas served on him, with the provisos discussed below.

I. Applicable Legal Standard

Federal Rule of Civil Procedure 45 provides, in relevant part, “On timely motion, the court

for the district where compliance is required” – in this case, the District of Maine – “must quash

or modify a subpoena that . . . subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).1

The movant bears the burden of establishing that the portions of the subpoena at issue impose an

undue burden on him or her. See, e.g., 9A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure (“Wright & Miller”) § 2463.1, at 507 (3d ed. 2008).

“Whether a subpoena subjects a witness to undue burden . . . usually raises a question of

the reasonableness of the subpoena[,]” requiring “a court to balance the interests served by

demanding compliance with the subpoena against the interests furthered by quashing it[.]” Id. at

501 (footnote omitted). “[T]his process of weighing a subpoena’s benefits and burdens calls upon

the trial court to consider whether the information is necessary and whether it is available from

any other source[,]” which is “obviously . . . a highly case specific inquiry and entails an exercise

of judicial discretion.” Id. at 501-06 (footnotes omitted).

“In addition, subpoenas duces tecum to a third party are discovery devices which, although

governed in the first instance by Rule 45, are also subject to the parameters established by Rule

26.” Hume v. Consol. Grain & Barge, Inc., CIVIL ACTION NO. 15-935, 2016 WL 7385699, at

*2 (E.D. La. Dec. 21, 2016) (citations and internal quotation marks omitted). See also, e.g., EEOC

v. Tex. Roadhouse, Inc., 303 F.R.D. 1, 2 (D. Mass. 2014) (“A subpoena issued to a non-party

pursuant to Rule 45 is subject to Rule 26(b)(1)’s overriding relevance requirement.”).

1 The “[p]lace of [c]ompliance” is defined, in relevant part, as “a place within 100 miles of where the person resides,

is employed, or regularly transacts business in person[.]” Fed. R. Civ. P. 45(c)(2)(A).

In turn, Rule 26 provides, in relevant part:

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). As in the case of Rule 45(d)(3)(A)(iv), analysis pursuant to Rule 26(b)(1)

requires the court to “engage[] in a balancing test, weighing the defendants’ need for this

information, the availability of other means of obtaining it, and the burden placed on the claimants

by the subpoenas.” Tex. Roadhouse, 303 F.R.D. at 2.

II. Lyman Morse’s Motion to Enforce Subpoenas

On January 22, 2020, Lyman Morse served subpoenas on Monte, through counsel for

VML, commanding him to testify and to produce documents. See Motion to Enforce Subpoenas

at 4. I directed that Lyman Morse file any motion to compel Monte’s compliance with those

subpoenas no later than January 31, 2020, see Amended Order (ECF No. 94), and Lyman Morse

did so, see Motion to Enforce Subpoenas. Lyman Morse did not provide copies of its subpoenas;

however, it represented that it sought to depose Monte regarding “his knowledge of the Vessel in

2018, the grounding, his plans for control of the Vessel at the time, and the overall condition of

Vesper prior to the incident of November 10, 2018, irrespective of the grounding[,]” and that it

sought documents from him that were “related to the grounding and the repairs related to that

grounding and communications (with his son) regarding control of the Vessel in 2018.” Id. at 8.2

2 Lyman Morse describes the “grounding” incident as having been reported on November 4, 2018, by Captain Phillip

Henderson to Gardner, who is Monte’s son. See Motion to Enforce Subpoenas at 5 & n.1. Captain Henderson wrote

that he had to abandon a trip to Antigua and return to Lyman Morse “because the lower rudder bearing appeared to be

‘coming apart and tearing its way out of the boat’” and that he had “‘just been made aware that Vesper grounded hard

at the dock in Portland toward the end of the summer and sat on its rudder for some time in windy conditions during

a very low tide.’” Id. at 5 (footnote omitted).

VML and Monte filed a “limited objection” to Lyman Morse’s motion to compel, agreeing

to produce Monte to appear for deposition in Florida without need of the subpoena but requesting

that the court “impose reasonable limitations on the scope of the deposition[,]” for example, that

“the deposition be limited to matters dealing directly with issues in the case and not the personal

or business concerns of Monte Wallace.” Limited Objection of Vesper Maritime Limited and

Monte Wallace to Defendant’s Motion to Compel Compliance with Subpoena on Monte Wallace

(ECF No. 98) at [2]. However, VML and Monte urged the court to quash the subpoena duces

tecum on the bases that the documents either had already been sought through VML or were

irrelevant and that the request for “‘all emails’” was overly broad and disproportionate to the needs

of the litigation. Id.

Lyman Morse rejoined that, to the extent that Monte’s business concerns and

communications with Gardner bear on issues relevant to this case, Lyman Morse should be

permitted to explore them at deposition, and that its subpoena duces tecum was properly limited

in scope, seeking “production of ‘all emails in your possession regarding S/V Vesper and/or

[VML] including, but not limited to emails between you and Capt. Phillip Henderson from 9/1/18

until 11/10/18, and you and Gardner Wallace from 1/1/18 and 11/10/2018.’” Defendant’s

Response to Plaintiff’s and Monte Wallace’s Limited Objection to Defendant’s Motion [to]

Enforce Subpoenas Issued to Monte Wallace (ECF No. 99) at 4-6.

At hearing, counsel for VML requested that, if the court were inclined to grant the motions

to compel, it limit the temporal scope of both subpoenas to the period from August 1, 2018,

forward, roughly coinciding with the timing of the alleged grounding incident.

With the benefit of briefing and oral argument, I granted Lyman Morse’s motion to enforce

both subpoenas. I deemed the temporal scope of the subpoena duces tecum, spanning a roughly

ten-month period before and after the incident at the heart of this suit, reasonable. I distinguished

this case, in which Monte is VML’s sole director and shareholder and, as a practical matter,

responsible for producing documents on behalf of that entity, from In re Wood, No. 2:19-mc-

00146-JHR, 2019 WL 5789848, at *2, 4 (D. Me. Nov. 6, 2019), in which I quashed a subpoena as

imposing an undue burden on the non-party chairman of the boards of the defendant contact lens

distributors when there was no question that the defendants themselves should have been able to

produce those documents without involvement of the chairman.

With respect to the subpoena to testify at deposition, I declined to render an advisory ruling

concerning the permissible scope of questioning; however, I noted that Lyman Morse’s counsel

represented at hearing that his client seeks documents and testimony pertaining solely to the issues

in this case and to the S/Y VESPER and VML. I directed that, should the parties be unable to

resolve any disagreement at deposition regarding the scope of questioning, they file the court’s

Request for Hearing form, providing the precise deposition questions in dispute.3

III. Gardner Wallace’s Motions to Quash Subpoenas

I turn to Gardner’s motions to quash the subpoenas served on him by Lyman Morse, see

Motions to Quash Subpoenas, which I denied for the reasons set forth below.

A. Factual Background

Gardner seeks to quash subpoenas served on him by Lyman Morse on January 6, 2020, to

testify at deposition and to produce documents. See Motions to Quash Subpoenas & Attachments

3 At hearing, I also observed that, although I had directed that Lyman Morse file a motion to enforce its subpoenas

pursuant to Federal Rule of Civil Procedure 45, it arguably was entitled to depose Monte, the sole director and

shareholder of VML, pursuant to Federal Rules of Civil Procedure 30(b)(1) and 32(a)(3) as an officer, director, or

managing agent of VML. See, e.g., Copan Italia S.P.A. v. Puritan Med. Prods. Co. LLC, No. 1:18-cv-00218-JDL,

2019 WL 6179224, at *2 (D. Me. Nov. 20, 2019) (“Only a party to litigation may be compelled to give testimony

pursuant to a notice of deposition. . . . [T]he party seeking the deposition [of a corporation] may identify a specific

officer, director, or managing agent to be deposed and notice that person under Rule 30(b)(1).”) (citation and internal

quotation marks omitted). However, without objection, the parties proceeded by way of the application of Rule 45,

and nothing turns on the distinction.

(ECF Nos. 83-1, 84-1) thereto. With respect to documents, he is commanded to produce “[a]ll

emails in [his] possession regarding S/V Vesper and / or [VML], including but not limited to emails

between [himself] and Capt. Phillip Henderson from Sept. 1, 2018, until Nov. 10, 2018, and

[himself] and Monte Wallace from Jan. 1, 2018, until Nov. 10, 2018.” Attachment (ECF No. 84-

1) to Motion to Quash Subpoena Duces Tecum at Page ID # 560.

Gardner, who is the chairman of GID, a 60-year-old privately-held real estate company,

has searched for emails from Captain Henderson to himself or himself to Captain Henderson

between September 1, 2018, and November 10, 2018, and has none. Declaration of W. Gardner

Wallace (“Gardner Decl.”) (ECF No. 97) ¶¶ 1-2. He has also searched for emails between his

father, Monte, and himself regarding the S/Y VESPER from January 1, 2018, to November 10,

2018, and has found none. Id. ¶ 3. A further search for S/Y VESPER-related emails, if there are

any, would impose a burden in the form of actual expense and impositions on Gardner’s and

others’ time and “almost certainly will not turn up anything.” Id. Monte is a founder of GID, and

there may be many emails between Gardner and Monte that do not relate to the S/Y VESPER or

VML but do relate to sensitive or confidential business matters or private personal and family

matters. Id.

Gardner was not aboard the S/Y VESPER at the time of any alleged “grounding.” Id. ¶ 5.

Neither he nor Monte has any direct personal observation or knowledge concerning any alleged

“grounding” or any subsequent change in the S/Y VESPER’s condition, whether as a result of any

“grounding” or otherwise. Id. Based on Gardner’s understanding of the information technology

document retention protocols at GID, it is unlikely that there are any available emails to or from

Gardner on any subject that were sent or received more than six months ago. Id. ¶ 6. Whatever

the availability of the requested emails, there would have to be a careful search and review before

any could be produced. Id. ¶ 7. As of the date of Gardner’s declaration, it was impossible for him

to estimate the cost or duration of such a search and review. Id.

Gardner is not and has never been an owner, principal, or officer of VML or an owner of

the S/Y VESPER. Id. ¶ 9. As he recalls, he was aboard the S/Y VESPER on three to five occasions

before August 2018 but noticed nothing anomalous or different about her handling or condition on

any occasion on which he was aboard. Id. ¶ 10. He has limited experience in sailing large yachts

and has always done so under the watchful eye of a professional crew. Id. ¶ 11. He is not a naval

architect or marine surveyor and has not inspected the S/Y VESPER at any time since the incident

that is the subject of this suit. Id.

Gardner personally signed the Plaintiff’s Answers to Defendant’s First Set of

Interrogatories and was identified by counsel as the only person assisting counsel in providing

those answers. See Defendant’s Exh. A (ECF No. 88-1) to Defendant Lyman Morse Boatbuilding

Inc.’s Consolidated Opposition to Motions to Quash Subpoenas Upon Gardner Wallace

(“Opposition”) (ECF No. 88) at Page ID ## 574, 576. In an email to Lyman Morse dated August

6, 2018, Captain Henderson wrote that he had “had some ongoing conversation with Gardner

Wallace, who takes over the boat as of Sept. 1[,]” and that Gardner was “aware of the massive

scale of work involved in our current wish list of projects[.]” Defendant’s Exh. B (ECF No. 88-2)

to Opposition at Page ID # 577. Gardner was copied on that email, but not Monte. See id.

Similarly, in an email from Captain Henderson to Lyman Morse dated July 30, 2018,

regarding the scope of work to the S/Y VESPER, Gardner was copied but not Monte. Defendant’s

Exh. C (ECF No. 88-3) to Opposition at Page ID # 580. In an email to Lyman Morse dated July

18, 2018, discussing work to be done on the S/Y VESPER, Captain Henderson stated, “I will get

this[] by Gardner (new owner) today.” Defendant’s Exh. D (ECF No. 88-4) to Opposition at Page

ID # 583. Captain Henderson also referred to Gardner as the “new owner” of the S/Y VESPER

and the “boss” in emails to Lyman Morse and others in 2018 and exchanged emails with Gardner

in November 2018 on which Monte was not copied regarding work to the yacht. Defendant’s Exh.

E (ECF NO. 88-5) to Opposition at Page ID ## 587-99, 600-03.

Captain Henderson has testified that he began to communicate with Gardner in mid-2018,

and it was “apparent that Gardner was taking on some of the load of the running and management

of the boat” and “was becoming much more to the forefront of those discussions and decisions[.]”

Defendant’s Exh. F (ECF No. 88-6) to Opposition at Page ID # 606.

B. Discussion

With the benefit of the parties’ briefs and oral argument at hearing, I denied Gardner’s

motions to quash the subpoenas served upon him by Lyman Morse, holding that Gardner had fallen

short of demonstrating that the subpoenas imposed an undue burden upon him.

Applying the balancing test quoted above, I reasoned that, whereas I had granted a prior

motion by Gardner to quash Lyman Morse’s subpoena commanding him to testify and produce

three categories of documents related to a subsequently acquired vessel, the S/V THISTLE, on the

bases, inter alia, that Lyman Morse “had made at best only a marginal showing of the relevance

of any of the documents or testimony sought from [Gardner][,]” Order (ECF No. 76), Lyman

Morse’s need for the information sought with respect to the S/Y VESPER is clear and, in this

instance, although Gardner remains a non-party, he incontrovertibly had involvement with the S/Y

VESPER, having signed VML’s interrogatory answers in this suit and having been involved in the

S/Y Vesper’s operation in mid- to late 2018, during which time Captain Henderson referred to him

as the “new owner” and the “boss.”

However, in consideration of Gardner’s sworn statements regarding his general lack of

knowledge, I limited the deposition to a total of two hours and directed that it take place in Boston,

Gardner’s place of business, unless he elects otherwise. I also directed that the anticipated Rule

30(b)(6) deposition of VML through Captain Henderson take place first, the deposition of Monte

take place next, and the deposition of Gardner take place last, to allow for the possibility that the

deposition of Gardner may be rendered unnecessary by the deposition testimony of VML and/or

Monte. Finally, I extended the parties’ discovery deadline to March 31, 2020, solely for the limited

purpose of the taking of the depositions of VML, Monte, and Gardner, declining to extend it with

respect to additional discovery that the parties reported remains to be completed.4 I cautioned that,

should any discovery dispute arise as a result of the additional discovery with respect to which I

declined to extend the parties’ January 31, 2020, discovery deadline following multiple prior

extensions of that deadline, the parties should be prepared to explain why the court should hear

the matter, given the January 31 close of discovery.

NOTICE

In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an

objection to this order within fourteen (14) days after being served with a copy thereof.

Failure to file a timely objection shall constitute a waiver of the right to review by the

district court and to any further appeal of this order.

Dated this 21st day of February, 2020.

/s/ John H. Rich III

John H. Rich III

United States Magistrate Judge

4 I inquired at hearing whether the taking of the Rule 30(b)(6) deposition of VML and the depositions of Monte and

Gardner would have any bearing on VML’s pending notice of intent to file for summary judgment and request for a

judicial conference. See ECF No. 79. The parties assured me that it would not.