DECURTIS LLC, Plaintiff, v. CARNIVAL CORPORATION, Defendant. CARNIVAL CORPORATION, Plaintiff, v. DECURTIS CORPORATION and DECURTIS LLC, Defendants. ARNOLD DONALD, BARBARA JONES, and KARL SESTAK, Plaintiffs, v. DECURTIS CORPORATION and DECURTIS LLC, Defendants Case No. 20-CV-22945-SCOLA/TORRES United States District Court, S.D. Florida Signed July 19, 2022 Counsel Daniel J. Klein, Pro Hac Vice, Jennifer H. Wu, Pro Hac Vice, Kyle N. Bersani, Pro Hac Vice, Nicholas Groombridge, Pro Hac Vice, Allison Penfield, Pro Hac Vice, Groombridge, Wu, Baughman & Stone LLP, Cold Spring, NY, Jared Kneitel, Pro Hac Vice, Wuinn Emanuel Urquhart & Sullivan LLP, Seattle, WA, Jason Paul Stearns, Freeborn & Peters LLP, Tampa, FL, Jeffrey C. Wu, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan LLP, Salt Lake City, UT, Adam Louis Schwartz, Brian John Lechich, John F. O'Sullivan, Quinn Emanuel, Miami, FL, Antonio M. Hernandez, Jr., Homer Bonner Jacobs, P.A., Miami, FL, Andrew K. Glenn, Pro Hac Vice, Edward E. Shapiro, Pro Hac Vice, Lindsey R. Skibell, Pro Hac Vice, Lyn R. Agre, Pro Hac Vice, Michael P. Bowen, Pro Hac Vice, Tian Gao, Pro Hac Vice, Glenn Agre Bergman & Fuentes LLP, New York, NY, Andrew C. Nordahl, Pro Hac Vice, David C. Gustman, Pro Hac Vice, Jeffery M. Cross, Pro Hac Vice, Jennifer L. Fitzgerald, Pro Hac Vice, Jill C. Anderson, Pro Hac Vice, Freeborn & Peters LLP, Chicago, IL, Marc L. Kaplan, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, IL, Christopher A. Mathews, Pro Hac Vice, Justin C. Griffin, Pro Hac Vice, Patrick T. Schmidt, Pro Hac Vice, Scott L. Watson, Pro Hac Vice, Zachary A. Schenkkan, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, James D. Judah, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan LLP, San Francisco, CA, Martha Anne Leibell, FL, for Plaintiff DeCurtis LLC. Diana Marie Fassbender, Eileen M. Cole, Pro Hac Vice, Emily Luken, Pro Hac Vice, John Jurata, Jr., Pro Hac Vice, Steven J. Routh, T. Vann Pearce, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Jorge Tadeo Espinosa, GrayRobinson.com, Miami, FL, Mayanne Downs, GrayRobinson, P.A., Orlando, FL, Olivia Clements, Pro Hac Vice, Orrick Herrington & Sutcliffe LLP, New York, NY, Robert Ralph Jimenez, Milberg Coleman Bryson Phillips Grossman, PLLC, Coral Gables, FL, David R. Medina, Pro Hac Vice, Orrick, Herrington & Sutcliffe LLP, Los Angeles, CA, Johannes Hsu, Pro Hac Vice, Orrick, Herrington & Sutcliffe LLP, Irvine, CA, Laura B. Najemy, Pro Hac Vice, Sheryl K. Garko, Pro Hac Vice, Orrick Herrington & Sutcliffe LLP, Boston, MA, for Defendant Carnival Corporation. Torres, Edwin G., United States Magistrate Judge ORDER *1 Before the Court is DeCurtis’ motion to compel compliance with third-party subpoenas and Arnold Donald, Barbara Jones, and Karl Sestak's (collectively, the “Movants”) related motion to quash other third-party subpoenas. [D.E. 254, 11]. These cases have been consolidated, and the matters have been referred to the undersigned for disposition. [D.E. 102, 257]. Arnold Donald has two email addresses. As the President and CEO of Carnival, he has a “work” email that is provided and maintained by his employer. As a private citizen, he has a “personal” email that he maintains independently. At his deposition on January 31, 2022, Donald testified under penalty of perjury that he is “very disciplined” about preserving the separation between the Carnival-related matters discussed through his work email and the private matters discussed through his personal email. [D.E. 279-1 at 28-33]. For example, whenever a Carnival-related email finds its way into his personal inbox, it is his routine practice to redirect that conversation into his work inbox by adding his work email address into the list of recipients. Id. The main issue here is whether DeCurtis is entitled to discovery from Donald's personal email address. To a very limited extent, Donald is a fact witness in the dispute between DeCurtis and Carnival primarily because Donald, acting in his official capacity, advised his counterpart at a competing cruise line of Carnival's patent portfolio while DeCurtis was providing that competitor with technological services that potentially infringed on Carnival's patents. Because of this, DeCurtis sought discovery from Carnival that included, among other things, relevant documents associated with Donald's work email. Additionally, DeCurtis subpoenaed Donald, who is not a party in the underlying case, seeking discovery from Donald's personal email. Donald objected to this subpoena, and DeCurtis then sought to work around his objection by sending additional subpoenas to the companies that enabled Donald's personal accounts – GoDaddy and Barracuda. DeCurtis timely filed a motion to compel Donald's compliance with its subpoena to him, and Donald timely filed a motion to quash the subpoenas served on GoDaddy and Barracuda. By way of background, this Court has repeatedly dealt with disputes between Carnival and DeCurtis relating to Carnival's production of company emails. [D.E. 238 at 4-8]. The record indicates that, as a general policy, Carnival's computer systems automatically deleted company emails after 90 days absent some affirmative choice to save those emails. Accordingly, with respect to John Padgett, a material fact witness, the Court has previously ordered Carnival to employ alternative means to search for and produce email correspondence that may have been automatically deleted after Carnival had a duty to preserve such emails. See id. Here, DeCurtis appears to be seeking similar relief with respect to Donald as it received with respect to Padgett: an alternative means for acquiring Carnival documents that are purportedly related to the underlying case. But there are several important distinctions that guide the Court's reasoning today. First, DeCurtis’ subpoena is not limited to Donald's work emails that may have been deleted pursuant to Carnival's “auto-delete” policy at a time when Carnival had a duty to preserve those communications; rather, it seeks documents and communications associated with Donald's personal email address without providing any corresponding temporal limitation. Second, DeCurtis does not argue that it has been unable to acquire relevant documents associated with Donald's work email from January 2020 or February 2020 – the time period where Carnival's auto-delete policy may have caused relevant documents to be improperly deleted. See [D.E. 238 at 4-8]. By contrast, Donald testified that he believes Carnival's auto-delete policy did not apply to his work email. [D.E. 279-1 at 29]. Third, Donald's connection to the underlying case as a fact witness is far more attenuated than his subordinate Padgett. And fourth, DeCurtis wants Donald's private emails even though it has presented the Court with no evidence that any business-related email that touched Donald's private inbox did not ultimately make its way into Donald's work inbox (where it presumably still resides). *2 A subpoena served on a non-party pursuant to Federal Rule of Civil Procedure 45, which encompasses the subpoenas at issue here, is limited by the relevancy and proportionality standards of Federal Rule of Civil Procedure 26(b). See Davis v. Nationwide Ins. Co. of Am., No. 19-cv-80606, 2020 WL 7480819, at *3 (S.D. Fla. Dec. 18, 2020) (citing Jordan v. Comm'r, Mississippi Dept. of Corr., 947 F.3d 1322, 1329 (11th Cir. 2020) and Stolfat v. Equifax Info. Servs., LLC, No. 19-cv-80428, 2019 WL 3779778, at *2 (S.D. Fla. Aug. 12, 2019)). Given the balancing required by Rule 26(b), the Court finds that the burden on Donald significantly outweighs DeCurtis’ general entitlement to acquire relevant, non-privileged materials through discovery. The intrusion into Donald's private email is unwarranted under the circumstances discussed above. But the subpoena served on Donald is not the only subpoena at issue. DeCurtis also subpoenaed Jones, Donald's executive assistant whom he personally employs, seeking similar documents from the private email address provided to her by Donald. Based on the evidence provided by DeCurtis as well as Donald's testimony, it appears that Jones has previously used this private email address to coordinate Donald's schedule as it related to Carnival business without copying Donald's work or personal email address. The ministerial act of scheduling, however, is not enough to change the outcome of the Rule 26(b) balancing equation. By contrast, it illustrates the minimal importance that Jones’ private emails would have with respect to the issues in the underlying case. Therefore, the Court is not persuaded that the limited relevance of Jones’ private emails justifies imposing the burden and cost of subpoena compliance on Jones, who is also not a party to the underlying case. For the foregoing reasons, DeCurtis motion to compel Donald and Jones’ compliance with its subpoenas is DENIED. And because DeCurtis’ subpoenas served on GoDaddy and Barracuda represent nothing more than an attempt to evade the well-founded objections to the subpoenas served on Donald and Jones, the Movants’ motion to quash those subpoenas is GRANTED.[1] DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of July, 2022. Footnotes [1] The subpoenas served on GoDaddy and Barracuda also related to a third private email account provided by Donald, which was used by his special projects consultant Sestak. Aside from referring to Sestak as Donald's “chief of staff,” DeCurtis has not explained how the private email account provided to Sestak by Donald, which uses the same domain as the private email accounts used by Donald and Jones, is relevant to the underlying case. Accordingly, the Rule 26(b) balancing inquiry weighs in favor of denying DeCurtis’ access to this information as well.