THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER PLAINTIFF v. SPENCER K. SULLIVAN, M.D.; MISSISSIPPI CENTER FOR ADVANCED MEDICINE, P.C.; LINNEA MCMILLAN; and, KATHRYN SUE STEVENS DEFENDANTS CIVIL ACTION NO. 3:19-cv-00459-CWR-LGI United States District Court, S.D. Mississippi, Northern Division Filed May 04, 2022 Isaac, LaKeysha Greer, United States Magistrate Judge ORDER DENYING DEFENDANTS' MOTION TO QUASH SUBPOENA *1 Before the Court is the Motion to Quash Subpoena [266] filed by Defendant Spencer K. Sullivan, M.D., Mississippi Center for Advanced Medicine, P.C. (“MCAM”), Linnea McMillan, and Katherine Sue Stevens. Plaintiff, The University of Mississippi Medical Center (“UMMC”), filed a Response in Opposition to Defendants' Motion to Quash Subpoena [274] and Defendants filed a Rebuttal to Plaintiff's Response in Opposition to Defendants' Motion to Quash Subpoena [279]. The Court, having considered the submissions of the parties and the applicable law, finds that the Defendants' Motion to Quash [266] shall be denied. STANDARD Discovery may be obtained from non-parties pursuant to Rule 45 of the Federal Rules of Civil Procedure. Although governed in the first instance by Rule 45, non-party subpoenas are also subject to the parameters of Rule 26. In re Application of Time, Inc., No. 99-2916, 1999 U.S. Dist. LEXIS 15858, 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999), aff'd, 209 F.3d 719 (5th Cir. 2000). “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 Rule 45.” Hahn v. Hunt, No. 15-2867, 2016 U.S. Dist. LEXIS 52885, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016) (citing Fed. R. Civ. P. 45(d)(3); 26(c)(1)(D)). Rule 45 also 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). The person filing the motion to quash has the burden to demonstrate that compliance would impose undue burden or expense. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (finding party resisting discovery must show why each discovery request is not relevant or otherwise objectionable). To determine whether the subpoena presents an undue burden, the Fifth Circuit considers 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 period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed. Wiwa, 392 F.3d at 818 (internal citations omitted). “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 and the nature and importance of the litigation.” Id. “Further, 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. FACTUAL BACKGROUND On September 22, 2021, Plaintiff UMMC filed a Notice of Intent to Serve Subpoena to Haddox Reid Eubanks Batts PLLC (“Haddox Reid”). Doc. [256]. The subject subpoena duces tecum was served upon Haddox Reid's registered agent Greg King on September 23, 2021. Doc. [257]. Non-Party Haddox Reid filed a Motion to Modify Subpoena seeking an order staying its requirement to timely respond to the subpoena. Doc. [267]. The Court stayed the requirement that Haddox Reid Eubanks Betts PLLC produce the documents requested by Plaintiff's subpoena, until such time as the Court rules on Defendants Motion to Quash Subpoena [266]. See Text-Only Order dated October 8, 2021. *2 The subject Subpoena Duces Tecum requests Haddox Reid produce: (1) Federal and State tax returns for Mississippi Center for Advanced Medicine, P.C. for 2020, including all schedules and statements; (2) All documents relied upon in preparing Mississippi Center for Advanced Medicine, P.C.'s 2020 tax return, including detailed depreciation schedules; (3) Federal and State tax returns for Spencer K. Sullivan, M.D. for 2020, including all schedules and statements; (4) All documents relied upon in preparing Spencer K. Sullivan, M.D.'s 2020 tax returns, including detailed depreciation schedules; (5) Schedule K-1s prepared for Mississippi Center for Advanced Medicine, P.C. for 2020; (6) Mississippi Center for Advanced Medicine, P.C. balance sheets for September 1, 2020 to the present; (7) Mississippi Center for Advanced Medicine, P.C. income statements for September 1, 2020 to the present; (8) Mississippi Center for Advanced Medicine, P.C. statements of cash flow for September 1, 2020 to the present; and (9) Mississippi Center for Advanced Medicine, P.C. general ledgers for September 1, 2020 to the present. Doc. [266-2]. ANALYSIS As a threshold matter, the court addresses the Defendants' standing to oppose the subpoena issued to a third party. See Doc. [275] at 1, fn. 1. “Parties have limited standing to quash subpoenas served on nonparties pursuant to Rule 45.” Mitchell v. Cenlar Cap. Corp., No. 3:16-CV-814-WHB-JCG, 2018 U.S. Dist. LEXIS 234115, 2018 WL 10408902, at *1 (S.D. Miss. Feb. 28, 2018) (internal citation omitted). Ordinarily, a party does not have standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege regarding the documents. Coleman v. Swift Transportation Co. of Arizona, LLC, No. 3:13CV3-M-A, 2013 U.S. Dist. LEXIS 197351, 2013 WL 12178160, at *2 (N.D. Miss. Aug. 23, 2013) (citing 9A Charles Wright & Arthur Miller, Federal Practice & Procedure, § 2459). Generally, a party has standing to challenge a subpoena issued to a non-party if the subpoena seeks confidential or protected information sensitive to the movant. See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir.1979) (finding that a party did not have standing to challenge a subpoena without asserting some personal right or privilege); see also Ezell v. Parker, No. 2:14-CV-150-KS-MTP, 2015 U.S. Dist. LEXIS 24344, 2015 WL 859033, at *1 (S.D. Miss. Feb. 27, 2015) (“a party has standing to challenge a subpoena issued to a non-party if the subpoena seeks proprietary, confidential, or protected information sensitive to the party”). However, a party may not challenge a subpoena made to a third party on the grounds that the information sought is not relevant or imposes an undue burden. Keybank Nat. Ass'n. v. Perkins Rowe Assocs., L.L.C., No. CIV.A. 09-497-JJB-SR, 2011 U.S. Dist. LEXIS 2812, 2011 WL 90108, at *2 (M.D. La. Jan. 11, 2011) (internal citation omitted). Here, the Defendants objected to the Haddox Reid subpoena on the basis that it “is disruptive, burdensome, and because it seeks information that is not relevant to UMMC's claims, it is unduly burdensome and not proportionate to the needs of the case.” Doc. [266] at 3. The Defendants do not assert a personal right or privilege regarding the documents, nor do they assert that the subpoena seeks confidential or protected information sensitive to Defendants. The Court finds, therefore, that Defendants lack standing to quash the Subpoena Duces Tecum directed to Haddox Reid. *3 Even if Defendants had standing to quash the instant subpoena, the Court finds that the subpoena does not impose an undue burden on non-party Haddox Reid. The court must quash a subpoena when it imposes an “undue burden” on the individual subpoenaed. See Fed. R. Civ. P. 45(c)(3)(A)(iv). The court's determination as to whether compliance with a subpoena duces tecum would be “unreasonable and oppressive” considers: “(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 period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed.” Wiwa, 392 F.3d at 818 (citations and quotations omitted). “Further, 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 moving party has the burden of proof to demonstrate that compliance with the subpoena would be unreasonable and oppressive. Id. 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 and the nature and importance of the litigation.” A. Relevance of the Information Requested Plaintiffs assert the requested update to financials records is relevant based on the entry of default judgment. Because UMMC seeks the remedy of unjust enrichment, which is determined by Defendants' financial information, the Court concludes that the requested information relates to the damages recoverable from the Defendants. The requested time period is relevant due to UMMC's claim that the tort of unjust enrichment is ongoing. Accordingly, the first factor weighs in favor of denying the motion to quash. B. The Need of the Party for the Documents Plaintiffs contend the future consequences of Defendants' misappropriation are still occurring. The Court does not reach such a determination but finds that Plaintiff is entitled to discover the requested financial information. Accordingly, the second factor weighs in favor of denying the motion to quash. C. The Breadth of the Document Request The breadth of the document request is not at issue. Defendants did not contest the first two subpoenas directed to Haddox Reid which requested the same information for an earlier time period. Defendants object to the instant subpoena on the basis that the time period is burdensome. Because it is not contested, the third factor does not weigh in favor of either party. D. The Time Period Covered by the Request Defendants argue that the information sought is not relevant because MCAM's financial performance is too far removed in time from the taking of an alleged trade secret in 2016. Doc. [280] at 5. As discussed above, the requested time period is appropriate due to UMMC's claim that the tort of unjust enrichment is ongoing. The Court finds that the updated request for financial information from September 1, 2020 to present is neither unreasonable nor oppressive. Accordingly, the fourth factor weighs in favor of denying the motion to quash. E. The Particularity with which the Party Describes the Requested Documents Similar to the Court's analysis of the third factor, the particularity of the requested documents is not at issue. Because it is not contested, the fifth factor does not weigh in favor of either party. F. The Burden Imposed Plaintiff submits that Defendants undue burden argument is precluded because counsel for Haddox Reid verbally admitted that the requested documents were compiled and in his possession. See Doc. [275] at 1, fn. 1. The Court concludes there is no undue burden, nor any additional expense imposed given that Haddox Reid has already gathered the requested documents. Accordingly, the sixth factor weighs in favor of denying the motion to quash. After review of the six factors set forth, the Court concludes that the factors militate towards a finding that the information requested by Plaintiff is neither unreasonable nor oppressive. The Court concludes that the Motion to Quash the subpoena duces tecum served upon Haddox Reid on September 23, 2021 should be denied. The subpoena [257] must be responded to no later than May 18, 2022. CONCLUSION *4 IT IS, THEREFORE, ORDERED that the Defendant's Motion to Quash Subpoena [266] is denied. IT IS FURTHER ORDERED that the subpoena at issue must be responded to by May 18, 2022. SO ORDERED this the 4th day of May, 2022.