WERNER WICKER, Plaintiff, v. PRABHU PARAMATMA, ET AL., Defendants Civil Action No. 2:19-CV-21-RWS United States District Court, N.D. Georgia, Gainesville Division Filed March 16, 2020 Story, Richard W., United States District Judge ORDER *1 This matter is before the Court on Defendant LSC 1 Management Corporation's (“LSC 1”) Motion to Quash Subpoena to Third-Party JPMorgan Chase Bank (“Chase Subpoena”) [Doc. 201], and Plaintiff Werner Wicker's Motion to Quash Subpoena to Third-Party Moore Ingram Johnson & Steele, LLP (“MIJS Subpoena”) [Doc. 205]. I. Standard The instant motions are governed by Rules 26 and 45 of the Federal Rules of Civil Procedure. Rule 26(b)(1) 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 (as amended December 2015). Relevance is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc., et al. v. Sanders, 98 S. Ct. 2380, 2389 (1978) (citation omitted). However, “[t]he scope of discovery ... is not without limits.” Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 430 (2005) (citing Oppenheimer Fund, Inc., 98 S. Ct. at 2389 (“discovery ... has ultimate and necessary boundaries”) (citation and internal quotation marks omitted). Upon a finding of “good cause,” the Court may issue a protective order, inter alia, “forbidding the disclosure or discovery[,] ... prescribing a discovery method other than the one selected by the party seeking discovery[, or] forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” FED. R. CIV. P. 26(c). “The party seeking a protective order has the burden to demonstrate good cause, and must make ‘a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements’ supporting the need for a protective order.” Auto-Owners Ins. Co., 231 F.R.D. at 429-30 (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)). “[T]he scope of discovery under a ... subpoena is the same as that permitted under Rule 26.” Chamberlain v. Farmington Savings Bank, 2007 WL 2786421, at *1 (D. Conn. September 25, 2007) (citing, inter alia, FED. R. CIV. P. 45 Advisory Committee Notes to 1970 Amendment). Rule 45 provides that: On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (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). “The burden is on the party moving to quash a subpoena to show that the relief sought is warranted.” Precision Aviation Grp., Inc. v. Prime Indus., Inc., 2017 WL 2903361, at *2 (N.D. Ga. June 16, 2017) (citing Alig–Mielcarek v. Jackson, 286 F.R.D. 521, 525 (N.D. Ga. 2012)). LSC 1's Motion to Quash the Chase Subpoena [Doc. 201] *2 Plaintiff Wicker has issued a subpoena to Chase, a non-party, seeking production of Defendant LSC 1's bank records dating from 2014 to the present. LSC 1 initially objected [Doc. 177] to Plaintiff's Notice[1] [Doc. 172, 172-1] and now moves to quash Plaintiff's subpoena to Chase on the same basis. Defendant incorporates its objections and argues that Plaintiff's Requests 1 through 9 of the Chase Subpoena are overly broad, abusive, and neither relevant to Plaintiff's claims nor proportional to the needs of the case. [Doc. 177 at 1; Doc. 201]. Plaintiff contends that LSC 1's motion is untimely, that LSC 1 lacks standing to challenge the subpoena, and that LSC 1's argument as to overbreadth is without merit. “Ordinarily a party has no 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 with regard to the documents sought.” 9A Charles Alan Wright and Arthur R. Miller, et al., FEDERAL PRACTICE AND PROCEDURE § 2549 (3d ed.) Because Wicker seeks LSC 1's bank account records, although in the possession of Chase, the Court finds that LSC 1 has sufficient standing to move to quash the Chase subpoena. See Littlefield v. NutriBullet, LLC, 2018 WL 5264148, at *5 (C.D. Cal. January 22, 2018) (“Personal rights claimed with respect to bank account records give a party sufficient standing to challenge a third party subpoena served upon financial institutions holding such information.”) (citation and internal quotation marks omitted); Armas v. Miabras, LLC, 2012 WL 13014668, at *1 (S.D. Fla. June 22, 2012). With respect to timeliness, Plaintiff correctly states that a motion to quash is untimely if not filed until after the date for compliance with the subpoena. [Doc. 216 at 3 (citing, inter alia, Moreno v. Serco Inc., 2016 WL 9774501, at *1 (N.D. Ga. September 20, 2016))]. The Chase Subpoena was served on December 23, 2019, with production of documents expected prior to January 17, 2020. [Doc. 172-1, Exhibit A]. LSC 1's objection was filed December 31, 2019, and the instant motion was not filed until February 5, 2020, well after the compliance date. [Docs. 177, 201]. However, the Court construes LSC 1's objection, filed December 31, 2019 [Doc. 177], as a motion to quash. See, e.g., Nutrien Ag Solutions, Inc. v. Johnson-Knapp, 2019 WL 7756080, at *1 (M.D. Tenn. October 31, 2019). Accordingly, LSC 1's motion is deemed timely. Turning to the substance of Defendant's challenge, LSC 1 suggests that Plaintiff is overreaching by requesting “production of all documents regarding each and every bank account in the name of LSC 1 (including without limitation applications, banking resolutions, signature cards, bank statements, credit card statements, and LSC 1 corporate documents) from 2014 to the present – notwithstanding that (1) all of Wicker's transfers of funds were to a single LSC1 bank account ending in 9105 and (2) Wicker's last transfer of funds to LSC 1 was in February 2015.” [Doc. 225 at 4]. The Court finds that Plaintiff's subpoena is not overly broad in that the fraud alleged in Plaintiff's First Amended Complaint, and the groundwork for the real estate transactions that underlie Plaintiff's RICO claims, began in 2014. [Doc. 59]. As well-stated in Plaintiff's response, this is a financial fraud case, and Plaintiff is interested in more than, and entitled to discovery beyond, Plaintiff's initial transfer of funds to LSC 1. See, e.g., Roche Diagnostics Corp. v. Priority Healthcare Corp., 2019 WL 4686352, at *6 (N.D. Ala. February 12, 2019) (citations omitted) (denying motion for protective order and motion to quash subpoena; plaintiffs demonstrated relevancy of financial documents sought from non-party bank in fraud and RICO case). Plaintiff seeks to discover how LSC 1 used the funds from Plaintiff (i.e., for development of the land or some other purpose) and to discern whether or not Defendants were intermingling funds received from Plaintiff. [Doc. 216 at 8-10]. As for Defendant's concern regarding privacy of its bank records, Plaintiff's counsel indicates a willingness “to discuss[ ] reasonable confidentiality measures to protect legitimately sensitive information contained in LSC 1's bank records.” [Doc. 216 at 7 n.2]. *3 It is ORDERED that LSC 1's Motion to Quash [Doc. 201] is DENIED. However, the parties are DIRECTED to meet and confer and, if necessary, propose to the Court a Consent Protective Order limiting disclosure of LSC 1's records. II. Plaintiff's Motion to Quash the MIJS Subpoena [Doc. 205] Plaintiff Wicker seeks to quash a subpoena issued by Defendant Prabhu Paramatma (“Paramatma”) and served upon MIJS Attorney Phillip Beggs (“Beggs”).[2] Beggs represented Plaintiff in connection with the acquisition of three of the four subject properties which transactions are at issue in this suit.[3] On January 22, 2020, Defendant Paramatma noticed his intent to serve the MIJS Subpoena. [Docs. 188, 188-2 - Exhibit A]. MIJS acknowledged service on February 4, 2020, and the deadline to respond or object was February 17, 2020. By agreement of the parties, MIJS filed an objection on February 19, 2020, representing that the MIJS Subpoena sought privileged material, that Plaintiff Wicker had not waived his privilege, and that the subpoena was also “overly broad, unduly burdensome, and unreasonably oppressive, seeking for example every communication between MIJ S and the Plaintiff's law firm.” [Doc. 215, ¶¶ 1-2].[4] Consistent with the MIJS objection, Plaintiff's primary challenge to the MIJS Subpoena is that, on its face, it seeks material protected by the attorney-client privilege and work product doctrine. [Doc. 205, ¶¶ 3-4, 6-7]. Plaintiff also raises a question as to the scope of the request. [Doc. 205, ¶ 5]. As an alternative to granting its motion to quash, Plaintiff's motion asks the Court to modify the MIJS Subpoena to exclude all requests for privileged or other protected materials. [Doc. 205, ¶ 7]. Neither Plaintiff or MIJS provides a privilege log. A court has the power to quash or modify a subpoena that seeks privileged materials so long as no exception or waiver applies to the materials. FED. R. CIV. P. 45(c)(3)(A)(iii). “The party claiming the privilege has the burden of establishing the essential elements of the privilege.” In re Application for Subpoena to Kroll, 224 F.R.D. 326, 328 (E.D. N.Y. 2004); see also Horace Mann Ins. Co. v. Nationwide Mutual Ins. Co., 240 F.R.D. 44, 47 (D. Conn. 2007) (same). “ ‘That burden cannot be met by mere conclusory or ipse dixit assertions in unsworn motion papers authored by attorneys.’ ” Horace Mann, 240 F.R.D. at 47 (citation omitted); see also Vita-Mix Corp. v. Basic Holdings, Inc., 2007 WL 2344750, *3 (N.D. Ohio August 15, 2007) (a party's mere assertion that subpoenaed materials are privileged is insufficient to meet his burden). “An essential step in meeting the burden of establishing the existence of a privilege or an immunity from discovery is the production of an adequately detailed privilege log ‘sufficient to enable the demanding party to contest the claim.’ ” Horace Mann, 240 F.R.D. at 47 (citation omitted). “Failure to submit a privilege log may be deemed a waiver of the underlying privilege claim.” In re Kroll, 224 F.R.D. at 328; see also Horace Mann, 240 F.R.D. at 47 (“A party failing to produce a privilege log fails to perfect its claim of privilege and, therefore, may not rely upon it to forestall discovery.”). *4 Rule 45(d) specifically provides, in pertinent part: (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged ... must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. FED. R. CIV. P. 45(d). In response to Plaintiff's motion, Paramatma argues that Plaintiff waived his attorney-client and work product privileges with respect to MIJS and its work done on Plaintiff's behalf in conjunction with these real estate transactions and that non-privileged documents related to these transactions exist and are in the possession of MIJS. [Doc. 217 at 2-3, 9]. As for waiver, Paramatma points to the September 24, 2019, Declaration of Phillip Beggs (“Beggs Decl.”) submitted by Plaintiff in support of his Motion for Preliminary Injunction. [Doc. 132-1]. In addition, Paramatma contends that, because he remains a member of Wicker, LLC, he has a right to review any of Wicker, LLC's attorney-client communications and work product performed on its behalf. [Doc. 217 at 3-4]. Paramatma's strongest argument, however, is that because Plaintiff alleges that he was unaware of Paramatma's membership in Wicker, LLC, the documents in Beggs' possession either establish 1) that Wicker did not communicate with MIJS about the Westminster Apartments transaction (defeating attorney-client privilege claim); or 2) the documents establish that Plaintiff was, in fact, in receipt of documents from MIJS concerning the Westminster Apartment purchase that reflect the membership of Wicker, LLC, and name Paramatma as a member (directly contrary to Plaintiff's allegation that he was defrauded by Defendants with respect to the underlying real estate transactions). [Doc. 217 at 4]. Paramatma advances a similar argument concerning Plaintiff's knowledge of basic information regarding the purchase of the River and Redding Properties in 2014. Absent a finding by the Court on waiver, Paramatma seeks, at minimum, the production of communications relating to the purchase prices of the properties at issue and communications relating to the ownership of Wicker, LLC.[5] [Doc. 217 at 7-8]. Paramatma finally states that MIJS should be required to provide a privilege log and that, to that end, counsel is willing to confer about reasonable limits. [Doc. 217 at 8 n.1]. In short, to the extent that attorney-client privilege or work product is being asserted, a privilege log is required.[6] Accordingly, Plaintiff has not met his burden. *5 In conclusion, it is troublesome that Defendant Paramatma suggests that Plaintiff's Motion to Quash is subject to summary denial for failure to comply with “Section II,b,iii” of the Court's Standing Order Regarding Civil Litigation requirement that parties confer in good faith on all discovery disputes before formally seeking relief from the Court. [Doc. 6]. At the same time, Plaintiff suggests in his reply that Paramatma did not confer with MIJS on its objections and did not offer any compromise to counsel for Plaintiff. [Doc. 227 at 14]. As reflected in the parties' respective filings, there are categories of documents that the parties appear to agree are discoverable and should be produced by MIJS - which is exactly why the Court requires the parties to engage in the process of talking with each other in a good faith to attempt to resolve or at least narrow discovery issues before filing a motion.[7] It is hereby ORDERED that Plaintiff's Motion to Quash [Doc. 205] is DENIED. SO ORDERED this 16th day of March, 2020. Footnotes [1] Notice is required before service of a subpoena requesting production of documents. See FED. R. CIV. P. 26(a)(4) (“If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.”) [2] Counsel for Paramatma represents that Plaintiff's counsel did not confer before moving to quash the MIJS Subpoena and identifies areas that might have been resolved without the need for Plaintiff's motion to quash. [Doc. 217 at 2, 10]. [3] MIJS represented Plaintiff in the purchases of both Forsyth County properties (the “River Property” and “Redding Property”) in 2014 and the purchase of the Westminster Square Apartments in Marietta, Georgia, by Wicker, LLC, in 2015. [Doc. 205 at 2, ¶ 1]. [4] According to Plaintiff, Paramatma is required to present this issue to the Court by asking for an order compelling MIJS to produce the documents. [Doc. 227 at 2-3 (citing FED. R. CIV. P. 45(d)(2)(B))]. In the interest of efficiency, the Court will proceed. [5] According to Paramatma, MIJS drafted at least one document that identifies Paramatma as a member of Wicker, LLC, in connection with the Westminster Apartments transaction. [Doc. 217 at 7]. [6] Although not directly addressing motions to quash subpoenas, the parties are reminded of the guidance within “Section II,b,i” of the Court's Standing Order Regarding Civil Litigation counseling against relying on boilerplate or general objections (i.e., attorney-client privilege, overbroad, unduly burdensome) to discovery requests. [Doc. 6]. [7] The parties disagree as to waiver, and the Court declines to consider this argument given that the parties did not confer with each other before seeking Court intervention.