Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CON EL, INC., ET AL. * CIVIL ACTION

VERSUS * NO. 23-6402

BURLINGTON INSURANCE * SECTION “M” (2)

COMPANY

ORDER AND REASONS

Pending before me is Defendant Burlington Insurance Company’s Motion for Contempt

and to Compel Compliance with Subpoena to Produce Records against non-party Integrity Claims

Consultants, LLC, which is set for submission on August 12, 2026. ECF No. 69. Although

Integrity Claims Consultants, LLC did not file an Opposition Memorandum, Plaintiffs filed a

response indicating respondent is their testifying expert and belatedly delivered responsive

documents, and Defendant filed a Reply. ECF Nos. 71-72. No party requested oral argument in

accordance with Local Rule 78.1, and the Court agrees that oral argument is unnecessary.

Having considered the record, the submissions and arguments of counsel, and the

applicable law, Defendant’s Motion for Contempt and to Compel Compliance with Subpoena to

Produce Records is GRANTED IN PART AND DENIED IN PART for the reasons stated herein.

I. BACKGROUND

Plaintiffs filed this Hurricane Ida suit against Burlington Insurance Company seeking

contractual and extra-contractual damages for three commercial properties. ECF No. 53.

Defendant served an undated subpoena duces tecum on June 19, 2026, directed to public adjuster

Integrity Claims Consultants, LLC (“ICC”). ECF No. 69-6. The return does not indicate upon

whom service was effected (id. at 2), but the Memorandum and service enclosure letter indicate

same was directed to Integrity’s registered agent Stevephen Lott. ECF No. 69-5 at 1.

ICC failed to respond to the subpoena or file a response to the motion. ECF No. 69-1 at 1-

2. Defendant argues its motion should be granted, both under Rule 45 and Rule 26 as Plaintiffs

identified ICC as their testifying expert. Id. at 4-6.

Plaintiffs filed a response indicating that ICC will be their testifying expert, ICC’s failure

to respond timely was inadvertent, ICC subsequently produced its file, and ICC’s expert report

and all Rule 26 materials will be produced in accordance with the expert deadline in the Scheduling

Order. ECF No. 71 at 1-4. Plaintiffs argue that sanctions are not appropriate. Id. at 3-4. Trial is

scheduled for December 7, 2026, Plaintiffs’ expert report deadline is August 10, 2026, and the

discovery deadline is November 6, 2026. ECF No. 59.

In Reply, Defendant asserts that ICC’s delinquent production is incomplete, it has not

certified that it has produced all responsive documents, it has not identified any privileged

documents, it has not issued written objections in response to the subpoena, and has not sought a

protective order or moved to quash. ECF No. 72 at 1-2. Further, Defendant argues that Plaintiffs

do not have standing to object to the subpoena on ICC’s behalf, and reliance on expert disclosure

deadlines is improper. Id. at 3.

II. APPLICABLE LAW

A. Standard for Discovery

Courts have broad discretion in discovery matters.1 Rule 26(b)(1) of the Federal Rules of

Civil Procedure permits parties to obtain in discovery “any nonprivileged matter that is relevant to

any party’s claim or defense and proportional to the needs of the case.” In assessing

proportionality, the court should consider the importance of the issues at stake, the amount in

controversy, the parties’ relative access to relevant information, the parties’ resources, the

1 Crosswhite v. Lexington Ins. Co., 321 F. App’x 365, 367 (5th Cir. 2009) (quoting Scott v. Monsanto, Co., 868 F.2d

786, 793 (5th Cir. 1989)).

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).

Rule 26(b) is not, however, “a license to engage in an unwieldy, burdensome, and

speculative fishing expedition.”2 While relevancy in the discovery context is broader than in the

trial context, that legal tenet should not be misapplied to allow fishing expeditions in discovery.3

Thus, while the discovery rules are accorded broad and liberal treatment to achieve their purpose

of adequately informing litigants in civil trials,4 discovery does have “ultimate and necessary

boundaries.”5 Rule 26 instructs the court to limit the extent of discovery if the proposed discovery

is outside the scope allowed under Rule 26(b)(1). FED. R. CIV. P. 26(b)(2)(C)(iii).

B. Rule 45 Subpoena

Discovery is obtained from parties in accordance with Rules 26-37 of the Federal Rules of

Civil Procedure and from non-parties pursuant to Rule 45. Rule 45 provides additional protections

to non-parties. Specifically, the party issuing a subpoena to a non-party “must take reasonable

steps to avoid imposing undue burden or expense on a person subject to the subpoena.” FED. R.

CIV. P. 45(d)(1). And, although governed in the first instance by Rule 45, non-party subpoenas

are also subject to the parameters of Rule 26.6

“Both Rules 45 and 26 authorize the court to modify a subpoena duces tecum when its

scope exceeds the boundaries of permissible discovery or otherwise violates the parameters of

2 Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011) (citation omitted).

3 Trident Mgmt. Grp., LLC v. GLF Constr. Corp., No. 16-17277, 2017 WL 3011144, at *4 (E.D. La. July 14, 2017)

(citations omitted); see also Ganpat v. E. Pac. Shipping, PTE, Ltd., 611 F. Supp. 3d 305, 311 (E.D. La. 2020) (Morgan

J.) (quoting Crosby, 647 F.3d at 264).

4 Herbert v. Lando, 441 U.S. 153, 176 (1979) (citations omitted).

5 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507

(1947)).

6 In re Application of Time, Inc., No. 99-2916, 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999), aff’d, 209 F.3d 719

(5th Cir. 2000).

Rule 45.”7 A subpoena may be quashed or modified if the subpoena “(i) fails to allow a reasonable

time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule

45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver

applies; or (iv) subjects a person to undue burden.” FED. R. CIV. P. 45(d)(3)(A).

C. Discovery From Experts

Initially, courts diverge over whether a party may use a Rule 45 subpoena to obtain

production of more than that required to be produced under Rule 26(b)(4).8 Regardless, certain

items are protected from disclosure by Rule 26. Indeed, Rule 26(b)(4) provides special rules

governing experts, with different rules depending on whether the retained or specially employed

expert is a testifying and non-testifying expert.9

For testifying experts, Rule 26(b)(4) mandates certain categories of information be shielded

from discovery. Specifically, a party may not obtain draft reports or disclosures of testifying

experts nor communications between testifying experts required to provide a report under Rule

26(a)(2)(B) and the party’s attorneys unless the communication relates to compensation, facts or

data provided and considered by the expert in forming his opinion, or assumptions provided by

counsel and relied upon by the expert in forming his opinion.10 A witness does not forfeit their

7 Hahn v. Hunt, No. 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016) (citing FED. R. CIV. P. 45(d)(3);

26(c)(1)(D)), aff’d, No. 15-2867, 2016 WL 6518863 (E.D. La. Nov. 2, 2016).

8 Compare D’Souza v. Marmaxx Operating Corp., No. 15-256, 2017 WL 1322243, at *5 (W.D. Tex. Apr. 7, 2017)

(permitting discovery of documents and information not enumerated in Rule 26(a)(2)(B) provided same has a close

nexus to the items enumerated therein and fall within the bounds of Rule 26(b)), with Seahorn Invs., L.L.C. v. Fed.

Ins. Co., No. 13-320, 2015 WL 12912341, at *2 (S.D. Miss. Apr. 8, 2015) (limiting discovery to that falling within

Rule 26(b)(4).

9 Before the 2010 amendments to Rule 26, courts generally required “disclosure of all documents, including attorney

opinion work product, given to testifying experts.” Davita Healthcare Partners, Inc. v. United States, 128 Fed. Cl.

584, 588 (Fed. Cl. 2016) (citations omitted). The undesirable effects of impeding the efficient interaction and

communication between counsel and experts led to the 2010 change in the Federal Rules that created an express but

limited work-product protection for collaborative interactions between counsel and testifying experts. Id. at 588-89

(citations omitted).

10 FED. R. CIV. P. 26(b)(4)(B)-(C). Rule 26(b)(4) also precludes discovery into facts known or opinions held by a

non-testifying expert. Id. at 26(b)(4)(D).

status as experts merely because they learned “facts” in the course of their investigation in addition

to developing expert opinions.11

D. Invocation of Privilege

A party withholding information based on privilege or work product “must (i) expressly

make the claim; and (ii) describe the nature of the documents, communications, or tangible things

not produced or disclosed—and do so in a manner that, without revealing information itself

privileged or protected, will enable the other parties to assess the claim.” FED. R. CIV. P.

26(b)(5)(A) (emphasis added). The use of the word “must” indicates that production of a privilege

log, including the detail specified by Rule 26(b)(5)(A)(i) and (ii), is mandatory. The “privilege

log’s description of each document and its contents must provide sufficient information to permit

courts and other parties to ‘test[ ] the merits of’ the privilege claim.”12 It “should not only identify

the date, the author, and all recipients of each document listed therein, but should also ‘describe

the document’s subject matter, purpose for its production, and specific explanation of why the

document is privileged or immune from discovery.’”13 The party asserting privilege bears the

burden of proof sufficient to substantiate its claims.14

When faced with an inadequate privilege log, the court may: (1) permit the party another

chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege;

11 Costal Towing, Inc. v. Novarco, Ltd., No. 98-492, 1999 WL 970357, at *1 (E.D. La. Oct. 21, 1999) (citing Bank

Brussels Lambert v. Chase Manhattan Bank, N.A., 175 F.R.D. 34, 42 (S.D.N.Y. 1997)).

12 EEOC v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (quoting United States v. El Paso Co., 682 F.2d 530,

541 (5th Cir. 1982); and citing NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011) (“When a party

relies on a privilege log to assert these privileges, the log must ‘as to each document . . . set[] forth specific facts that,

if credited, would suffice to establish each element of the privilege or immunity that is claimed.’”) (quoting Bowne,

Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993))).

13 See Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. 2008) (quoting Jones v. Hamilton Cnty.

Sheriff’s Dep’t, No. 02-808, 2003 WL 21383332, at *4 (S.D. Ind. 2003); and citing Compaq Comput. Corp. v. Packard

Bell Elecs., Inc., 163 F.R.D. 329, 338 (N.D. Cal. 1995)).

14 United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002) (citing In re Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th

Cir. 2001)); see Hodges v. United States, 768 F.2d 719, 721 (5th Cir. 1985).

(3) conduct an in camera inspection of the withheld documents; or (4) conduct an in camera

inspection of a select sample of the withheld documents.15 Most courts take a flexible approach,

particularly when there is an insufficient privilege log but no evidence of bad faith, finding waiver

only for flagrant or willful failures.16 The court should not undertake a review of numerous

withheld documents without any meaningful justification17 nor should it conduct an in camera

review merely because a party requests it.18 Only when there is a sufficient evidentiary showing

that an issue exists regarding the application of a privilege must the court utilize its discretion to

determine whether in camera review is appropriate under the circumstances presented.19

E. Standing

Absent a personal right or privilege with respect to the subpoenaed materials, a party

generally does not have standing to quash a subpoena duces tecum issued to a third party because

the party is not in possession of the materials subpoenaed.20 Further, a party “cannot challenge a

Rule 45 subpoena directed to a third party on the basis that . . . the subpoena is overly broad, or

15 RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., No. 10-684, 2014 WL 12660120, at *4 (M.D. La. Jan. 14, 2014)

(quoting NLRB v. Jackson Hosp. Corp., 257 F.R.D. 302, 307-08 (D.D.C. 2009)).

16 Id. (citing United States v. Brit. Am. Tobacco (Invs.) Ltd., 387 F.3d 884, 890-91 (D.C. Cir. 2004); Novelty, Inc. v.

Mountain View Mktg., Inc., 265 F.R.D. 370, 381-82 (S.D. Ind. 2009) (foot-dragging and failure to comply with court's

order showed willfulness and bad faith); Muro v. Target Corp., 250 F.R.D. 350, 365 (N.D. Ill. 2007), aff'd, 580 F.3d

485 (7th Cir. 2009)).

17 See United States v. Zolin, 491 U.S. 554, 571 (1989) (“[W]e cannot ignore the burdens in camera review places

upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial

guidance by the parties.”); Smith v. Shelter Mut. Ins. Co., No. 15-357, 2018 WL 1278429, at *2 (M.D. La. Mar. 12,

2018) (refusing to review 139 withheld documents as it “would constitute a great and unnecessary expenditure of

judicial resources”).

18 Jolivet v. Compass Grp. USA, Inc., 340 F.R.D. 7, 21 (N.D. Tex. 2021) (citations omitted).

19 Id. at 21 (quoting Jani-King Franchising, Inc. v. Jani-King (GB) Ltd., No. 13-4136, 2015 WL 12916409, at *1 (N.D.

Tex. Feb. 6, 2015); and citing BDO USA, L.L.P., 876 F.3d at 697 n.4 (“Given the serious nature of Bower’s allegations

through her affidavit and the lack of a countering affidavit from the party claiming privilege, we note that in camera

review will likely be necessary.”); King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 721 (5th Cir. 2011)).

20 Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979) (citations omitted) (ruling movants lacked standing because

they were not in possession of the materials subpoenaed and had no personal right or privilege in the materials

subpoenaed); Bounds v. Cap. Area Fam. Violence Intervention Ctr., Inc., 314 F.R.D. 214, 218 (M.D. La. 2016)

(“Parties have limited standing to quash subpoenas served on non-parties pursuant to Rule 45.” (citation omitted));

Black v. DMNO, LLC, No. 16-02708, 2018 WL 488991, at *2 (E.D. La. Jan. 19, 2018) (“[I]n order to challenge the

subpoena, the movant must be: in possession or control of the requested material; be the person to whom the subpoena

is issued; or have a personal right or privilege in the subject matter of the subpoena.” (citations omitted)).

that the subpoena seeks information that is irrelevant because only the responding third party can

object and seek to quash a Rule 45 subpoena on those grounds.”21 Although a party does not have

standing under Rule 45 to challenge burden or relevance in the absence of a personal right or

privilege with respect to the materials subpoenaed, a party does have standing to challenge

relevance under Rule 26(c).22

III. ANALYSIS

Initially, courts have recognized that a party has limited standing to object to a subpoena

directed to its testifying expert, particularly when same implicates privilege discussions.23 Thus,

Plaintiffs have standing to address these issues raised herein. Further, ICC appears to have

produced some documents (though Defendant contends the document production is incomplete),

and Plaintiffs represent ICC will produce the remaining responsive documents within the expert

report deadline. At this point, Plaintiffs’ expert deadline has passed. As such, all documents

within the scope of Rule 26(a)(2) and (b)(4) should have been produced.

Defendant seeks an order compelling production of all documents responsive to Item Nos.

1-7, 10, 14, 17, 21, 24-29. ECF No. 72 at 1-2; see ECF No. 96-5 at 6-9. While courts diverge over

whether a party may use a Rule 45 subpoena to obtain production of more than that required to be

produced under Rule 26(b)(4), some of the subpoenaed items for which Defendant seeks an order

requiring production clearly fall within those specifically protected from discovery by Rule

21 Salmon v. Waffle House, Inc., No. 19-1349, 2020 WL 6708382, at *2 (E.D. La. Nov. 16, 2020) (citing Frazier v.

RadioShack Corp., No. 10-855, 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012)).

22 Bounds, 314 F.R.D. at 218 (“Nevertheless, a party has standing to move for a protective order pursuant to Rule

26(c) seeking to limit the scope of discovery, even if the party does not have standing pursuant to Rule 45(d) to bring

a motion to quash a third-party subpoena.” (citing Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240 n. 2 (E.D.

Va. 2012); Auto–Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005); Washington v.

Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005))).

23 See Louisiana Corral Mgmt., LLC v. Axis Surplus Ins. Co., 650 F. Supp. 3d 491, 501-02 (E.D. La. 2023); Abraham

v. Shelter Mut. Ins. Co., No. 20-3060, 2021 WL 4645018, at *2 (E.D. La. Oct. 7, 2021); see also Tewari De-Ox Sys.,

Inc. v. Mountain States/Rosen LLC, No. 08-190, 2013 WL 12234284, at *1 (W.D. Tex. Mar. 20, 2013); Butcher v.

Allstate Ins. Co., No. 06-423, 2008 WL 4965288, at *1 (S.D. Miss. Nov. 18, 2008).

26(b)(4)(B)-(C). For instance, Item No. 1 calls for “[A]ll documents, communications, writings

or other materials furnished to You, obtained by You, or prepared by You pertaining to Plaintiffs

and/or the Properties.” ECF No. 69-5 at 7. As drafted, Item No. 1 would require production of

communications with Plaintiffs’ counsel as well as draft reports. However, draft reports and

communications with counsel are specifically protected from discovery. Item Nos. 2, 3, 10, 14

and 29 (first numbered 29) similarly suffer from the same overbreadth defect insofar as same

purport to call for production of expert materials, communications or documents specifically

protected from discovery. See id. at 8-9. The subpoena as to these items is thus modified to

exclude from production any communications between Plaintiffs’ counsel and ICC, or its

assistants,24 that do not fall into a listed exception under Rule 26(b)(4)(B) & (C).

To the extent Defendant seeks information as to employees of ICC that are designated to

testify as an expert at trial, ICC must respond to Item No. 21, No. 24, and No. 25 for the last four

(not six) years and No. 26 for the last four (not ten) years, as that information falls within Rule

26(a)(2). As to other ICC employees or other reports, however, the requests are entirely irrelevant

to any claim or defense in this case and thus falls outside the scope of Rule 26. The subpoena must

be modified. To the extent the Items relate to non-testifying employees ICC, ICC need not respond

to Item Nos. 25, 26, 27, or 28 at all.

Item Nos. 4, 5, and 17 are overbroad and improper, except to the extent that they seek

information relating to ICC’s compensation for its study or testimony in this case. See ECF No.

69-5 at 8; FED. R. CIV. P. 26(a)(2)(vi), 26(b)(4)(C)(i). Item Nos. 6 and 7 are proper only to the

extent the expert relied upon same in forming the options to be expressed. See ECF No. 69-5 at 8.

24 FED. R. CIV. P. 26(b)(4) advisory committee’s notes to 2010 (“Protected ‘communications’ include those between

the party’s attorney and assistants of the expert witness.”).

Thus, Item Nos. 6 and 7 are modified to require production of only those documents within the

scope of Rules 26(a)(2)(11) and 26(b)(4)(C)(i1).

In addition, ICC has failed to produce a privilege log identifying any responsive documents

withheld based on privilege. To the extent any responsive documents have been withheld based

on privilege, ICC must deliver a proper privilege log.

IV. CONCLUSION

If it has not already, ICC must produce documents responsive as specified herein and

deliver a proper privilege log identifying any responsive document withheld from production.

Defendant is directed to review ICC’s production. If Defendant believes any requested document

not protected by Rule 26 has not been produced, it must conduct a proper Rule 37 conference

before filing a new motion to compel directed to any remaining issues. Accordingly,

IT IS ORDERED that Defendant Burlington Insurance Company’s Motion for Contempt

and to Compel Compliance with Subpoena to Produce Records against non-party Integrity Claims

Consultants, LLC is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that, within 14 days, Integrity Claims Consultants, LLC

supplement its production, if necessary, and produce a proper privilege log identifying any

responsive documents withheld based on privilege.

Dated this 12th day of August, 2026.

ne Mlle Laman

UNITED STATES MAGISTRATE JUDGE