FARON WATERS, Plaintiff, v. ROY W. HALL, JR., and R an D TRUCKING, LLC, Defendants Civil Action No.: 19-0798-KD-C United States District Court, S.D. Alabama, Southern Division Filed April 21, 2020 Counsel William Bradford Kittrell, WBK, P.C., Jon David Roberts, Jr., Citrin Law Firm, PC, Daphne, AL, for Plaintiff. Aaron Mathew Wiley, Caldwell, Wenzel & Asthana, Foley, AL, Jeremy Patrick Taylor, Mark Alan Dowdy, Carr Allison, Daphne, AL, for Defendants. Cassady, William E., United States Magistrate Judge ORDER *1 This matter is before the Court on Defendants Roy W. Hall, Jr. (“Hall”) and R an D Trucking, LLC's (“R an D”) Motion to Quash Plaintiff's Non-Party Subpoena to AT&T Wireless, or, alternatively, to Modify the Subpoena (Doc. 44), Defendants' Supplement to the Motion to Quash or Modify (Doc. 50), Plaintiff's response in opposition and Motion to Compel production of Defendant Hall's cell phone (Doc. 51), and Defendants' reply (Doc. 53). For the reasons set forth below, Defendants' Motion is GRANTED in part and DENIED in part. Plaintiff's Motion to Compel is DENIED. BACKGROUND This case arises out of a motor vehicle accident that occurred on October 23, 2018 which occurred at or around approximately 6:54 p.m. (Doc. 53-9). The Plaintiff brought this action for personal injuries allegedly resulting from the accident. (Doc. 43). During the course of discovery, Plaintiff filed a Notice of Intent to issue a non-party subpoena to AT&T Wireless for the production of Defendant Hall, Jr.'s personal cell phone records between October 16, 2018 and October 23, 2018. (Doc. 41). The subpoena specifically included requests for: October 16 thru 23, 2018, any and all transaction information for the subscriber related to both voice calls and data communications including but not limited to cell tower coordinates for each voice and data transaction, session duration, originating cell tower coordinates, connection time and bytes up and down. Further, the request seeks call logs and text messages, including Tweets, Tic-Toc, Snapchats, Life360, and any other social media communications. We would request these records be made available in Central Time Zone. Additionally, please produce complete records of the following: Voice section SMS section Data Usage section Precision location information Sending and receiving numbers Duration (ET) Bytes up bytes down Originating cell tower for every single transaction Date and time stamps (Doc. 44-2). Plaintiff stipulates that the records requested do not include the content or substance of the communications or application usage. The parties conferred in an attempt to resolve Defendants' objections related to the scope of the request for Defendant Hall's cell phone records. As a result, Defendants agreed to the production of Defendant Hall's cell phone records limited to the date of the accident. (Doc. 50-1, PageID.317). Plaintiff, however, declined that limitation. Plaintiff asserts that the full scope of the information sought by the subpoena is relevant to determine whether Defendant Hall violated any safety regulations related to hours of service limitations, was fatigued at the time of the accident, was using his cell phone at the time of the accident, or had a habit of using his cell phone during Department of Transportation and Federal Motor Carrier Safety Administration mandated rest periods. (Doc. 51). Defendants Hall and R an D have moved to quash or modify the subpoena on the basis that the parties and their respective experts previously conducted a joint inspection and download of the cell phones for both Plaintiff Waters and Defendant Hall, respectively, pursuant to an agreed upon protocol, which limited the scope of records produced to one hour before and one hour after the accident. Furthermore, Defendants contend that the subpoena is overly broad as written and seeks information or records for an irrelevant time period. (Doc. 44). Plaintiff has responded that the subpoena request is not overly broad and that the requested time period is relevant to the claims in this case. In addition, Plaintiff has moved to compel the production of Defendant Hall's cell phone for a second inspection and download. (Doc. 51). I. DEFENDANTS' MOTION TO QUASH OR MODIFY SUBPOENA TO AT&T WIRELESS a. Applicable Standards *2 The scope of discovery under a rule 45 subpoena is the same as that permitted under Rule 26. See Miller v. MP Gob. Prods., LLC, 2014 U.S. Dist. LEXIS 34008, 2014 WL 1017887, at *5-6 (S.D. Ala. Mar. 17, 2014). As a matter of discovery, considerations of both relevance and proportionality govern the subpoenas at issue. “A party or attorney responsible for issuing and serving a subpoena 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). The Court is authorized under Rule 45(d)(3) to quash a subpoena under specified circumstances, including when the subpoena requires disclosure of privileged or protected materials (when an exception or waiver does not apply), or when the subpoena subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iii) and (iv). Further, Rule 26(b)(1) sets forth the scope of discovery and provides: 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ.P. 26(b)(1). Discovery that is relevant has been broadly defined to include “any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380 (1978). The Advisory Committee Notes for the 2000 Amendments to Rule 26 direct the parties and courts to “focus on the actual claims and defenses involved in the action” in determining relevance for purposes of discovery. See Fed. R. Civ. P. 26, Advisory Committee Notes, 2000 Amendments, Subdivision (b)(1). As such, the Court “has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses.” Id. b. Analysis 1. Standing This Motion was brought by both Defendant Hall and Defendant R an D. As a preliminary matter, Defendant Hall has standing to move to quash or modify the subpoena because he maintains a personal right or privilege with respect to the information sought in the subpoena. Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979). Further, as parties to the litigation, Defendants Hall and R an D have standing to move for the entry of a protective order on the basis that the subpoena seeks irrelevant information, and this Court may treat Defendants' Motion to Quash or Modify as a motion for a protective order. See Auto-Owners Ins. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005). Additionally, Plaintiff does not dispute that Defendants have standing to object to the subpoena to AT&T Wireless for Defendant Hall's personal cell phone records. 2. Relevance and Scope of Subpoena Request Defendants Hall and R an D assert that the Plaintiff has failed to demonstrate a legitimate need for the records sought, because the parties and their respective experts previously conducted a joint inspection and download of the cell phones for both Plaintiff Waters and Defendant Hall pursuant to an agreed upon protocol, which limited the scope of records produced to one hour before and one hour after the accident. Furthermore, Defendants contend that the subpoena is overly broad as written and seeks information or records for an irrelevant time period. After review of the briefing submitted, and following a hearing on this matter, the Court finds that pursuant to the scope of discovery and relevant standards set forth in Rule 26(b)(1), Defendant Hall's cell phone records may contain relevant, discoverable information. This is especially true given the fact that the parties agree that the records previously downloaded from the subject phone would not contain all calls going back to the date of the accident. *3 Plaintiff's primary assertion is that Defendant Hall was negligent by leaving a portion of his tractor trailer in the roadway after attempting to make a right hand turn and/or that he was fatigued or distracted during his operation of the vehicle at the time of the accident. (Doc. 51, PageID.319). The Court finds that Defendant Hall's cell phone records, excluding the substantive content of any particular communications or application usage, are relevant to determining the location of Defendant Hall and whether he was distracted and/or fatigued at the time of the accident. The Court finds, however, that the timeframe for which the records are requested is too broad. See Kizer v. Starr Indem. & Liab. Co., 2019 U.S. Dist. LEXIS 76320, 2019 WL 2017556, at *2-3 (W.D. Okla. May 6, 2019) (finding a subpoena request for cell phone records for a four-day time frame was overly broad as to the claims asserted, and thereby modified the subpoena to a relevant time period of twenty-four (24) hours prior to the accident and two (2) hours after the accident); Russell v. City of Tampa, 2017 U.S. Dist. LEXIS 103393, 2017 WL 2869518, at *11-12 (M.D. Fla. July 5, 2017) (finding a subpoena request for cell phone records for a four-day span around the time of a motor vehicle accident overly broad as the request included records for an irrelevant time period, and thereby ordered the subpoena to be modified to a two-hour time span). Accordingly, the Court finds a reasonable, proportionate, and relevant time period for production of cell phone records to be limited to a time period of twenty-four (24) hours prior to the accident and two (2) hours after the accident. The Plaintiff stipulates that the subpoena does not request the content of Hall's communications or application usage. The Court finds that the records to be produced are limited to records containing incoming and outgoing call and text logs, logs of application use, and GPS and active cell tower coordinates. AT&T shall not produce any information regarding the content or substance of any communications or application usage. II. PLAINTIFF'S MOTION TO COMPEL In his response to Defendants' Motion to Quash or Modify the Subpoena, Plaintiff moved to compel the production of Defendant Hall's cell phone for a second inspection and download. (Doc. 51, PageID.323-324). Defendants assert that there is no pending or supplemental discovery request from Plaintiff for the production, inspection, or download of Defendant Hall's cell phone, and therefore the motion to compel is not ripe. For the same reasons, Plaintiff concedes that his motion to compel is premature at this time. Accordingly, Plaintiff's Motion to Compel is due to be and hereby is denied. CONCLUSION As stated above, the Court Grants in part and Denies in part Defendants' Motion to Quash the Subpoena to AT&T Wireless and modifies the time period for the subpoena to the 24-hour period immediately before and 2 hours immediately after the accident. The Plaintiff shall reissue his subpoena to AT&T Wireless so that it is consistent with this Order. Plaintiff's Motion to Compel is Denied. DONE AND ORDERED this 21st day of April 2020.