IN RE: SUBPOENA DUCES TECUM SERVED ON PRICHARD, DEWBERRY, & HODGES, P.C. MISC. ACTION NO. 1:19-00015-WS-N United States District Court, S.D. Alabama, Southern Division Filed September 25, 2019 Nelson, Katherine P., United States Magistrate Judge ORDER *1 Erika Mann and Franklin Bell initiated this miscellaneous action by filing a motion to compel fuller responses to a subpoena duces tecum (Doc. 1). The subject subpoena (Doc. 1-4) was issued from the United States District Court for the Eastern District of Louisiana in relation to a pending civil action there (E.D. La. Case No. 2:18-cv-09284), in which Mann and Bell are plaintiffs.[1] The subpoena commands Spanish Fort, Alabama accounting firm Prichard, Dewberry, & Hodges, P.C. (“the Accounting Firm”), a nonparty to Mann and Bell's case, to produce certain documents and electronicallystoredinformation, including emails covering certain specified subject matter, and was served on April 29, 2019. The assigned District Judge referred the motion to compel to the undersigned Magistrate Judge for appropriate action, and the undersigned denied the motion by order dated and entered July 17, 2019 (Doc. 2). On July 31, 2019, Mann and Bell filed an “Objection to and Request for Clarification of July 17, 2019 Order and, in the Alternative, Motion and Incorporated Memorandum in Support of Second Motion to Compel Relative to Subpoena Duces Tecum Issued to Prichard, Dewberry & Hodges, P.C.” (Doc. 3). The assigned District Judge referred that document to the undersigned Magistrate Judge for appropriate action. By order dated and entered August 29, 2019 (Doc. 4), the undersigned, construing the “Objection to and Request for Clarification of July 17, 2019 Order” as a request for reconsideration of the July 17 order, denied the motion for reconsideration and second motion to compel. The Accounting Firm has since filed a motion to modify the Court's August 29, 2019 order (Doc. 5), to which Mann and Bell have filed a response (Doc. 6).[2] The assigned District Judge has referred the Accounting Firm's motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (9/12/2019 electronic reference). The Accounting Firm asserts that most of the search parameters Mann and Bell intend to use to search for responsive emails, set out in their July 31 filing (Doc. 3 at 13), “exceed the scope of the documents requested in the subpoena,” such that “immaterial and irrelevant documents and other information beyond the scope of the subpoena will be targeted, including documents and information pertaining, relating or referring to PDH's clients.” (Doc. 5 at 4). Due its “obligation to protect the privacy of its clients' documents and information that will be captured using Mann and Bell's requested search terms[,]” the Accounting Firm “requests the Court to modify its 8/29/19 Order to allow PDH to search its server using its own IT professional using the search terms suggested by [the Accounting Firm's] counsel in his 9/3/19 email to Mann and Bell's counsel.” (Id.). *2 In response, Mann and Bell argue that the Accounting Firm waived any objection to the scope of the subject subpoena by failing to serve objections under FederalRule of CivilProcedure45(d)(2)(B), and that the Accounting Firm's proposed search terms are too narrow. However, Mann and Bell state that they “are agreeable to allowing the Accounting Firm to use its own IT personnel to conduct the subpoena search to protect the Accounting Firm's clients from disclosure of material that is either not responsive to the subpoena or is privileged[,]” while “reserv[ing] the right to challenge objections to the discoverability of any withheld material, including but not limited to challenges based on waiver.” (Doc. 6 at 1). Mann and Bell further propose: “If the plaintiffs' proposed search terms identify material that is not responsive to the subpoena, then that material need not be produced, only the ‘hit list’ showing the files identified by the search. Or, if the search reveals a privileged document, the Accounting Firm can submit a privilege log with sufficient detail for [Mann and Bell] to determine whether the material has been withheld appropriately.” (Id. at 3). Initially, the undersigned observes that the parties appear to be under the impression that the Court's August 29 order compels some sort of action. They are mistaken. The August 29 order simply denied Mann and Bell any of their requested relief, partially based on the observation that FederalRule of CivilProcedure45(a)(1)(D) already permits them to conduct their own search of the Accounting Firm's emails for information responsive to the subpoena at issue, without a court order. The Accounting Firm does not appear to contest that observation. Thus, modification of the August 29 order appears unnecessary. Instead, the undersigned finds that the Accounting Firm's present motion is more properly construed as a motion to modify the subject subpoena under FederalRule of CivilProcedure45(d)(3), which provides that, “[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that ... requires disclosure of privileged or other protected matter, if no exception or waiver applies; or [ ] subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). Mann, Bell, and the Accounting Firm are in agreement to allowing the Accounting Firm to perform the additional search Mann and Bell have requested in this action, though they disagree as to the specific parameters. Upon consideration, the undersigned declines to narrow Mann and Bell's proposed search terms as requested by the Accounting Firm, as its generalized concerns about Mann and Bell's proposed search terms producing irrelevant and privileged information are sufficiently addressed by the procedure for production proposed in Mann and Bell's response. Accordingly, the Accounting Firm's motion to modify (Doc. 5), construed as a motion to modify the subject subpoena under Rule45(d)(3), is GRANTED in part and DENIED in part, in that the subpoena issued April 29, 2019, from the U.S. District Court for the Eastern District of Louisiana against the Accounting Firm (Doc. 1-4) is hereby MODIFIED to include the following conditions under which the Accounting Firm must search for and produce material responsive to the subpoena: (1) Perform a search of all electronic hard drives and servers within its possession and control using the following search terms: “Tim Clark,” “Timothy Clark,” “Tim Clark Construction,” “TCC,” “TCC-ACI,” “ACI,” “Alston,” “joint venture,” “memorandum of understanding,” “MOU,” “Charles Clark,” “Kenneth Ross,” “Kenny Ross,” “Ross,” “Annette,” “Stroelitz,” “Mann,” “Bell,” “promissory note[s],” “credit memo,” “spent thirty,” “Orleans Shoring,” “Jared Davidson,” “Davidson,” “Jared,” “Geoffrey Hertel,” “Hertel,” “Harry Baker Smith,” “HBS,” “New Path,” “notary,” “BBC,” “Boudier Brothers,” “power of attorney,” “timclarkconstruction,” “KDR,” “kdr1ocean,” “license,” “Impastato,” and “Regions.” (2) Produce a hit list of files identified by each search term, specifically noting which files are being withheld as irrelevant. *3 (3) Produce a “privilege log” of all responsive documents that are being withheld on the basis of privilege. The “privilege log” shall, at a minimum, comply with FederalRule of CivilProcedure45(e)(2)(A) and contain the facts suggested in section N (pages 9-11) of the Introduction to Civil Discovery Practice in the Southern District of Alabama, Civil Discovery Subcommittee (2019).[3] (4) Produce all responsive documents identified by the search that are not being withheld as irrelevant or on the basis of privilege. (5) Produce a list of electronic hard drives, laptops/personal computers, and servers that were searched. (6) Provide the name and address of the person performing the search so that he or she may be deposed if there is a question about the completeness of the search or production. The Accounting Firm is ORDERED to fully comply with the subject subpoena, as modified above, no later than 21 days from the date of entry of this order, unless Mann and Bell agree to a later date for compliance.[4] The Clerk of Court is DIRECTED to close this miscellaneous action for administrative and statistical purposes 60 days from the date of entry of this order if no objections to this order or additional motions are filed before then. DONE and ORDERED this the 25th day of September 2019. Footnotes [1] Because the place for compliance specified in the subpoena at issue is Mobile, Alabama (see Doc. 1-4 at 1), the motion is properly brought in this Court. SeeFed. R. Civ. P. 45(d)(2)(B)(i) (motion to compel production or inspection under a subpoena to be made in “the court for the district where compliance is required”); Fed. R. Civ. P. 45(f) advisory committee's note to 2013 amendment (“Under Rules45(d)(2)(B), 45(d)(3), and 45(e)(2)(B), subpoena-related motions and applications are to be made in the court where compliance is required under Rule45(c).”). [2] The Accounting Firm did not file a reply to the response, and the deadline to do so has passed. See S.D. Ala. CivLR 7(d) (“Unless the Court orders otherwise, any reply in support of a motion, except a motion under Fed. R. Civ. P. 56, must be filed within seven (7) days of service of the non-movant's response.”). [3] Available at: https://www.alsd.uscourts.gov/sites/alsd/files/Discovery_Practice.pdf [4] At the end of their response, Mann and Bell further state: Additionally, the subpoena requests responsive documents within the control of the Accounting Firm. As such, it includes emails exchanged between Mr. Owens (as the Accounting Firm's attorney) and thirdparties such as Jared Davidson (counsel for Tim Clark Construction, LLC). The undersigned has reason to believe there were communications in 2017 and 2018 between Mr. Owens (on behalf of the Accounting Firm) and Mr. Davidson because the Accounting Firm provided certain accounting records concerning the illegal joint venture to Mr. Davidson. The plaintiffs respectfully request that those emails be ordered produced immediately as well. (Doc. 6 at 4). Because Mann and Bell's proposed search terms, which the Court has adopted in this order, already include the terms “Jared Davidson,” “Davidson,” and “Jared,” it appears unnecessary to order additional relief based on this request.