HEE JIN LOWERY and JOHN LOWERY, Individually, and as Assignees of Shou & Shou, Inc., Plaintiffs, v. AMGUARD INSURANCE COMPANY, Defendant Case No.: 1:20-cv-05148-TWT United States District Court, N.D. Georgia, Atlanta Division Filed January 24, 2022 Counsel Andrew Wayne Holliday, Andrew W. Holliday, P.C., Alpharetta, GA, David Patrick Dekle, David P. Dekle P.C., Augusta, GA, for Plaintiffs. Lawrence Lee Washburn, IV, Kyle Patrick Barrett, Wilson Elser Moskowitz Edelman & Dicker LLP, Atlanta, GA, for Defendant. Thrash Jr., Thomas W., United States District Judge ORDER *1 This is a contractual dispute involving an insurance policy. It is before the Court on Plaintiffs' Motion to Quash Subpoenas and for Protective Order [Doc. 44], Defendant's Motion to Strike or Otherwise Disregard New Arguments and Exhibits Contained in Plaintiffs' Reply Brief In Support of Their Motion to Quash, or, in the Alternative, For Leave to File a Sur-reply [Doc. 50], and Defendant's Motion to Compel [Doc. 51]. For the reasons set forth below, Plaintiffs' Motion to Quash is GRANTED [Doc. No. 44], Defendant's Motion to Strike is DENIED [Doc. 50], and Defendant's Motion to Compel is DENIED [Doc. 51]. I. Background Plaintiffs filed this action for equitable reformation of an insurance contract, breach of contract, and bad faith stemming from Defendant AmGuard's Insurance Company's denial of coverage to a company known as Shou & Shou, Inc. in an underlying case filed in the State Court of DeKalb County, Georgia. In that underlying case, after suing Shou & Shou, Inc. for injuries sustained following a soup spill in Plaintiff Hee Jin Lowery's lap that allegedly caused severe burns. Plaintiffs reached a settlement agreement with Shou & Shou, Inc. that included a consent judgment in the amount of $1 million and an Assignment of claims Shou & Shou, Inc. may have against AmGuard Insurance Company. Another defendant in that underlying case was a company known as Noodle Life, Inc., and the case remained pending against it when the settlement with Shou & Shou, Inc. was reached. The present case pending in this Court is in the discovery phase, and Defendant issued three nearly identical subpoenas to Shou & Shou, Inc., it's attorney, Ivan Gustafson, and to Noodle Life, Inc seeking production of “[e]very document, report, communication, correspondence, and office note related to...[Noodle Inc., Noodle Life, Shou & Shou, AmGuard, Plaintiffs, the Policy, the Restaurant, the Occurrence, the underlying lawsuit, the Consent Judgment, the Assignment, and to this legal action.] (Doc. 44-1, 44-2, 44-3.) The subpoenas include definitions for “Document” that does not exclude privileged information, and defines the parties, Shou & Shou, and Noodle Life, to include their attorneys. Id. Upon receipt of these subpoenas, Plaintiffs filed a motion to quash the subpoenas arguing the subpoenas sought privileged information protected by the attorney client privilege and attorney work product, and, by extension, the common interest doctrine/privilege. Relying upon McKesson Corp. v. Green, 266 Ga. App. 157 (2004), DS Waters of Amer., Inc. v. Fontis Water, Inc., 2012 U.S. Dist. LEXIS 198712 (N.D.Ga. May 1, 2012), and City of Rome v. Hotels.com, L.P., 2012 U.S. Dist. LEXIS 198875 (N.D. Ga. Feb. 3, 2012), among other cases, Plaintiffs contend they share a common interest with Shou & Shou, Inc., and the subpoenas, on their face, sought privileged information and were overly broad. In response, Defendant argued they needed the subpoenaed documents to inquire as to whether Plaintiffs have standing to pursue the claims they have asserted, investigate its defense as to whether Plaintiffs and Shou & Shou, Inc. entered into the settlement agreement and signed the assignment in good faith, the common interest doctrine does not apply in this case, and it has a substantial need for the documents it seeks. *2 Defendant also served discovery requests on Plaintiffs. In response to some of Defendant's discovery requests, Plaintiffs objected to providing information and documents they believed were protected by the common interest doctrine/privilege. Based on the same arguments as set forth above, Defendant filed a motion to compel. The matter came before the Court for oral argument on January 7, 2021. At the hearing, Plaintiffs represented that, as a compromise, they had produced everything in their possession up until the time of the settlement agreement and assignment with Shou & Shou, Inc. Plaintiffs argued any documents, emails, exchange of information, or other information post-assignment was irrelevant to the good faith negotiations leading up to the settlement agreement and assignment pursuant to which Plaintiffs are basing their claims. Plaintiffs also contend they have a common interest with Shou & Shou, Inc. because Shou & Shou, Inc. has a continuing duty to cooperate with Plaintiffs in this case pursuant to the terms of the assignment and any departure from such contractual duties could expose it to possible causes of action. Defense counsel acknowledged receipt of all such pre-assignment information and documents from Plaintiffs and stated he had no reason to question the truth that all such information and documents in Plaintiffs' possession was produced. Despite the all-encompassing language of the subpoenas, defense counsel represented that his client was not seeking any privileged information from Shou & Shou, Inc. or its attorney Ivan Gustafson that would be protected by the attorney client privilege or the work product doctrine. Finally, defense counsel argued Shou & Shou, Inc.'s duty to cooperate with Plaintiffs in this case was not a common legal interest. At issue, then, is whether the subpoenas, as issued, encompass privileged information protected from discovery and whether Defendant is entitled to any post-assignment communications, documentation, or other information regarding the underlying case from Defendants, Shou & Shou, Inc., its attorney Ivan Gustafson, or Noodle Life, Inc. Because the issue to be decided in the motion to quash and the motion to compel are identical, the Court will consider the motions simultaneously. II. Legal Standard Federal Rule of Civil of Civil Procedure 45 provides the Court for the district where the subpoena compliance is required must quash or modify a subpoena that requires disclosure of privileged or other protected matter. The Court is also required to quash or modify a subpoena that subjects a person to undue burden. Pursuant to Federal Rule of Evidence 501, in civil proceedings to which state law applies, the privilege of a witness or person shall be governed by state law. City of Rome v. Hotels.com, L.P., 2012 U.S. Dist. LEXIS 198875 (N.D.Ga. February 3, 2012). Whether or not to compel discovery pursuant to Federal Rule of Civil Procedure 37 is committed to the sound discretion of the trial court. Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defenses. “The overall purpose of discovery under the Federal Rules is to require the disclosure of all relevant information so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result.” Cottone v.Cottone, 2017 U.S. Dist. LEXIS 232404, at *20 (N.D.Ga. Oct. 11, 2017). III. Discussion *3 Reviewing the subpoenas issued by AmGuard, the Court finds that they are clearly overbroad in that they encompass privileged information that would be protected from discovery. The subpoenas do not seek to exclude communications between attorney and client or protect attorney work product. As stated at oral argument, the court is under no obligation to rewrite Defendant's subpoenas. Defense counsel acknowledged that they do not seek matters protected by the attorney client privilege. Yet, the subpoenas clearly encompass such communications. Nor do the subpoenas seek to protect or exclude attorney work product not related to the consent judgment and assignment. For these reasons alone, the subpoenas should be quashed. With regard to the issue of communications between Plaintiffs' counsel and counsel for Shou & Shou, Inc, the Court notes Plaintiffs have agreed to provide, and have provided, all pre-settlement and pre-assignment information and documents in their possession responsive to Defendant's discovery requests. Thus, the issue has boiled down to one category of discovery: the discovery of documents responsive to Defendant's discovery requests to Plaintiffs related to any post-settlement and post-assignment information and documents. (See Plaintiff's Privilege Log, Doc. 54-5) Having considered the caselaw cited by the parties, the arguments made in the extensive briefing on the matter and having heard from both parties at a hearing held on the motions, the Court concludes that any post-assignment information or documents responsive to Defendant's subpoenas and its discovery requests are protected from disclosure by the common interest doctrine/privilege. Plaintiffs entered into an assignment with Shou & Shou, Inc., whereby Shou and Shou agreed to cooperate fully with Plaintiffs in the prosecution of this action against AmGuard. (Doc. 54-1, pp. 10-11) Thus, the Court finds a common legal interest such that communications between Plaintiffs' Counsel and Shou & Shou's Counsel, Mr. Ivan Gustafson, in furtherance of the common interest are protected from discovery as attorney work product. AmGuard has failed to meet its burden of showing that it has a substantial need for such communications occurring after negotiation of the consent judgment and assignment. See Fed. R. Civ. Pro. 26(b)(3)(A)(ii). Therefore, the Court GRANTS Plaintiffs' motion to quash Defendant's subpoenas. [Doc. 44]. For the same reasons, the Court DENIES Defendant's motion to compel. [Doc. 51]. Defendant also filed a motion to Strike or Otherwise Disregard New Arguments and Exhibits Contained in Plaintiffs' Reply Brief in Support of Their Motion to Quash, or, in the Alternative, For Leave to File a Sur-reply. Satisfied the matter has been thoroughly briefed and argued sufficiently enough to enable this Court to rule on the motions, Defendant's motion to strike is DENIED. [Doc. 50]. SO ORDERED, this 24th day of January, 2022.