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 August 29, 2019 Counsel Carol Welborn Reisman, David L. Reisman, Jacques C. Mestayer, Raymond T. Waid, Liskow & Lewis, New Orleans, LA, for Erika Mann, Franklin Bell. 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 electronically stored information, 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). Fourteen days after entry of the order denying their motion to compel, 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 has referred that document 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); (8/1/2019 electronic reference). While the document refers to itself as an “objection” to the undersigned's July 17 order in several places, and was filed on the deadline for objecting to a magistrate judge's decision on a nondispositive matter, see Fed. R. Civ. P. 72(a), given that the District Judge has referred the document to the undersigned, and given that the “objection” includes a “request that the Court reconsider its denial of the Motion to Compel[,]” the undersigned will construe the “objection” as a motion to reconsider the July 17 order. So construed, both the motion to reconsider, and the alternative second motion to compel, are due to be DENIED. In their initial motion to compel, Mann and Bell requested that the Accounting Firm be ordered to take additional steps to search for emails responsive to the subject subpoena because they “have grounds to believe the Accounting Firm did not perform a good faith effort to search for and produce responsive material in its custody and control” and “have reason to be suspicious of the Accounting Firm's counsel's representations.” (Doc. 1-1 at 3). As was noted in the July 17 order, under Federal Rule of Civil Procedure 45(a)(1)(D), “[a] command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding person to permit inspection, copying, testing, or sampling of the materials.” Given that under Rule 45(d)(1) 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” (a duty that the “court for the district where compliance is required must enforce”), the undersigned declined to compel the Accounting Firm to take the additional steps specified in the first motion, with the understanding that Mann and Bell could themselves conduct a search of the Accounting Firm's emails for responsive information under Rule 45(a)(1)(D). *2 Mann and Bell request that the undersigned reconsider that denial and order the relief they sought in the initial motion. They concede “it is true that the plaintiffs can inspect and search for responsive documents and that an attorney issuing a subpoena must avoid imposing under burden or expense in responding to a subpoena...” However, they argue that the Court should give no concern to imposing undue burden or expense on the Accounting Firm because it “never objected on grounds of undue burden or expense.” (Doc. 3 at 5). Indeed, as noted in the July 17 order, the Accounting Firm did not serve any objections to the subject subpoena, but instead produced responsive material to Mann and Bell.[2] In denying the previous motion to compel, the Court was attempting to avoid imposing the “burden or expense” of performing a second search for responsive material based only on Mann and Bell's suspicion that the Accounting Firm might be withholding responsive material, whether deliberately or negligently. Mann and Bell also assert that Rule 45 does not require them to conduct the second search themselves. (See Doc. 3 at 4). However, it also does not require this Court to order the Accounting Firm to conduct a second search under Mann and Bell's requested parameters. A district court's discovery ruling are generally subject to review only for abuse of discretion.[3] “Discretion means the district court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011) (quotations omitted). Mann and Bell concede that, in denying their first motion to compel in favor of allowing them to conduct their own search of the Accounting Firm's emails, the Court chose a valid choice among the range available, and they do not complain that there was any mistake of law influencing that decision. *3 Moreover, Mann and Bell have still failed to convince the undersigned that ordering the Accounting Firm to conduct a second search under their requested parameters, rather than having Mann and Bell conduct such a search themselves, would lead to a fairer or more efficient resolution of this dispute. The few emails Mann and Bell have presented as examples of responsive material that, they claim, should have been produced by the Accounting Firm do not make a convincing showing that the Accounting Firm is withholding responsive material through a deliberate effort, as opposed to mere negligence, oversight, or a consequence of Mann and Bell's broadly worded requests. Moreover, if the Accounting Firm and/or its counsel are indeed as untrustworthy and evasive as Mann and Bell claim, they have given the undersigned little reason to believe the Accounting Firm and/or its counsel's trustworthiness and responsiveness will substantially improve in response to a court order directing them to conduct a second search. If Mann and Bell's search of the Accounting Firm's records fail to uncover additional responsive material, then they will rightly bear the expense resulting from their overcautiousness. However, if their search does uncover material that the Accounting Firm should have produced in response to the subject subpoena, Mann and Bell may move for appropriate contempt sanctions under Federal Rule of Civil Procedure 45(g). Accordingly, the undersigned declines to reconsider the earlier denial of Mann and Bell's initial motion to compel. Mann and Bell's alternative second motion to compel, which requests that the Court “enter an order compelling [the Accounting Firm] to provide [Mann and Bell] with access to their documents (both hard copy and electronic) and computer systems and servers to conduct searches for emails and documents responsive to the subpoena” (Doc. 3 at 5 – 6), is due to be denied as premature. As has been established, both in the July 17 order and this order, Rule 45(a)(1)(D) already grants Mann and Bell the right to conduct this search, and they have made no representation that the Accounting Firm has refused their attempts thus far to do so. Accordingly, it is ORDERED that Mann and Bell's “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), with the “Objection to and Request for Clarification of July 17, 2019 Order” being construed as a request for reconsideration of the July 17 order, is DENIED. If objections to this order are not filed within 14 days of its entry, see Fed. R. Civ. P. 72(a), the Clerk of Court is DIRECTED to close this miscellaneous action for administrative and statistical purposes. DONE and ORDERED this the 29th day of August 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. See Fed. 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 Rules 45(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 Rule 45(c).”). [2] Generally, a signed discovery response with no objections can be accepted as indicating that response is “consistent with” the Federal Rules of Civil Procedure and “not interposed for any improper purpose...” Fed. R. Civ. P. 26(g)(1)(B). “The fact that a party may disbelieve or disagree with a response to a discovery request ... is not a recognized ground for compelling discovery, absent some indication beyond mere suspicion that the response is incomplete or incorrect.” Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992). See also West v. Temple, No. 5:14-CV-86-MTT-MSH, 2015 WL 3620471, at *3 (M.D. Ga. June 9, 2015) (“The fact that Plaintiff disagrees with the content of some of Defendant's responses is not a ground for compelling discovery.”); Rong Ran v. Infinite Energy, Inc., No. 1:07-CV-249-MMP-AK, 2010 WL 148240, at *1 (N.D. Fla. Jan. 12, 2010) (“Defendants have responded to Plaintiff's requests, and the fact that Plaintiff disagrees with Defendants' responses does not provide a basis for this Court to order any relief.”). [3] See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011) (“The district court has broad discretion under Federal Rule of Civil Procedure 26 to compel or deny discovery; we therefore review the court's discovery rulings for an abuse of that discretion.”); Progressive Emu Inc. v. Nutrition & Fitness Inc., No. 18-10671, 2019 WL 3798494, at *3 (11th Cir. Aug. 13, 2019) (per curiam) (unpublished) (“The parties agree that an abuse of discretion standard applies when determining the propriety of sanctions imposed under Rule 45. We have previously applied an abuse of discretion standard when evaluating discovery sanctions under Rule 37. Serra Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137, 1146–47 (11th Cir. 2006). And other circuits have applied an abuse of discretion standard when addressing sanctions under Rule 45(d)(1). See Legal Voice v. Stormans Inc., 738 F.3d 1178, 1185 (9th Cir. 2013); In re: Modern Plastics Corp., 890 F.3d 244, 250 (6th Cir. 2018). Accordingly, we apply here an abuse of discretion standard in assessing the propriety of the sanction imposed under Rule 45(d)(1).”).