PROVIDENCE TITLE COMPANY v. TRULY TITLE, INC., ET AL CIVIL NO. 4:21-CV-147-SDJ United States District Court, E.D. Texas, Sherman Division Signed September 29, 2022 Counsel Chase Tyler Cobb, Haley Mowdy Owen, Seth Michael Roberts, William Scott Hastings, Locke Lord LLP, Dallas, TX, for Providence Title Company. Alison Rae Ashmore, John Clayton Sokatch, Amelia H. Marquis, Christopher David Kratovil, Dykema Gossett PLLC, Dallas, TX, for Truly Title, Inc., Graham Hanks. Brittani Wilmore Rollen, Rory Michael Divin, Russell Alan Devenport, Sarah Margaret Kline, McDonald Sanders, PC, Fort Worth, TX, for Tracie L. Fleming, Mark J. Fleming, Kim Sheets-Sheffield. Tracie L. Fleming, Pro Se. Mark J. Fleming, Pro Se. Jordan, Sean D., United States District Judge ORDER *1 Before the Court is Defendants Truly Title, Inc. and Graham Hanks's (collectively, “Truly”) Motion to Quash and Motion for Protective Order for Plaintiff's Subpoenas to Non-Party Jones Lang LaSalle and Memorandum in Support. (Dkt. #147). Plaintiff Providence Title Company has responded in opposition, (Dkt. #149), and Truly filed a reply, (Dkt. #156). On November 5, 2021, the Court held a telephone conference concerning various discovery disputes, including the subpoenas at issue here. (Dkt. #159). Having considered the motion, the subsequent briefing, the arguments made during the discovery conference, the record, and the applicable law, the Court concludes that the motion to quash should be DENIED without prejudice, and that the motion for protective order should be GRANTED in part and DENIED in part. I. BACKGROUND Providence and Truly Title, Inc. are competitors in the Texas title insurance market. In 2019, Truly and Providence unsuccessfully negotiated Truly's potential acquisition of Providence. As part of these negotiations, Truly agreed to abide by nonsolicitation and nondisclosure agreements as a condition of receiving confidential information from Providence. In late 2020 and early 2021, Truly successfully recruited a number of Providence's senior employees in North Texas, including Tracie Fleming, Mark Fleming, and Kim Sheets Sheffield. The departure of these key employees was accompanied by an exodus of Providence personnel to Truly from several of Providence's North Texas offices. Providence filed this case in February 2021 and maintains that the actions of Truly, Truly's president of Texas operations—Graham Hanks, the Flemings, and Sheffield associated with these events went beyond the norms of free market competition, and instead involved the misappropriation of Providence's trade secrets, as well as Truly's violation of nonsolicitation and nondisclosure agreements, among other claims. Based on these allegations, Providence asserts various causes of action against Truly, Hanks, the Flemings, and Sheffield, including claims asserted against all Defendants under the Defend Trade Secrets Act and the Texas Uniform Trade Secrets Act. In July 2021, on Providence's motion, the Court entered a preliminary injunction prohibiting Tracie Fleming, Providence's former president, from violating the noncompete provision of the Providence Shareholders' Agreement, to which she is a party. (Dkt. #94). Ms. Fleming is thus enjoined from maintaining employment in any capacity with Truly, or with any other competitor of Providence, within the Texas counties of Tarrant, Dallas, Harris, Bexar, or any Texas counties contiguous to those counties pending the resolution of this case. (Dkt. #94 at 44). The Court denied Providence's request to enjoin the remaining Defendants from soliciting Providence's employees or using Providence's alleged trade secrets. (Dkt. #94). On October 12, 2021, Providence subpoenaed nonparty real estate firm Jones Lang LaSalle, Real Estate (“JLL”), (Dkt. #147-1 at 2), requesting that, among other demands, JLL provide Providence with its “entire work file relating to Truly.” (Dkt. #147-1 at 10). JLL is Truly's third-party real estate broker, and Providence asserts that discovery from JLL “will be relevant to assess Defendants' continued breaches of its obligations under the NDA and this Court's injunction.” (Dkt. #149 at 4). Truly has moved to quash the subpoena pursuant to Federal Rule of Civil Procedure 45(d)(3), and for a protective order pursuant to Federal Rule of Civil Procedure 26(c). (Dkt. #147 at 2–3). II. LEGAL STANDARD *2 Under Federal Rule of Civil Procedure 26, “the court must limit the frequency or extent of discovery otherwise allowed” if the court determines that “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” FED. R. CIV. P. 26(b)(2)(C)(i). Rule 26 authorizes “[a] party or any person from whom discovery is sought” to seek, and a court to grant, a protective order for “good cause” in order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c)(1). “The movant bears the burden of showing that a protective order is necessary, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017) (quotation omitted). Federal Rule of Civil Procedure 45 provides that, under certain circumstances and on timely motion, “the court for the district where compliance is required” may or must quash or modify a subpoena. FED. R. CIV. P. 45(d)(3) (emphasis added). III. DISCUSSION A. Proper Court for Rule 45(d)(3) Motion At the outset, the Court notes that Truly seeks an order under Rule 45(d) quashing subpoenas that command production by nonparty JLL. The subpoenas identify the place of production as the offices of Locke Lord, LLC, located at 2200 Ross Avenue in Dallas, Texas. See (Dkt. #147-1 at 2, Dkt. #147-2 at 2). Under Rule 45(d)(3), the place of production listed on the subpoena determines “the court for the district where compliance is required.” CSS, Inc. v. Herrington, 354 F.Supp.3d 702, 709 (N.D. Tex. 2017) (explaining that, “for purposes of a Rule 45(d)(2) or 45(d)(3) motion, the court or district ‘where compliance is required’ is determined by the location or ‘place’ for compliance identified on the subpoena as required by Rule 45(a)(1)(A)(iii).”); cf. Folkenflik v. Chapwood Cap. Inv. Mgmt., LLC, No. 4:20-MC-36, 2020 WL 9936142, at *2, *4 (E.D. Tex. June 5, 2020) (noting that, in the context of a Rule 45(d)(2)(B)(i) motion to compel, the place of production listed on the subpoena determines “the court for the district where compliance is required”). Contra Raap v. Brier & Thorn, Inc., No. 17-MC-3001, 2017 WL 2462823, at *2–3 (C.D. Ill. July 7, 2017) (noting that “[i]n light of the purposes behind Rule 45, the Court finds that the better approach is to tie the place of compliance to the location of the subpoenaed person or entity,” and collecting cases interpreting Rule 45's use of “the place of compliance”). Here, the place of production for the materials requested by the subpoenas, the Locke Lord law firm's Dallas office, is located in Dallas County, Texas. Dallas County is within the jurisdiction of the United States District Court for the Northern District of Texas.[1] Because the Northern District of Texas is the district where compliance is required for the subpoenas at issue, under Rule 45(d)(3) this Court lacks authority to rule on Truly's motion to quash. Therefore, the motion will be denied without prejudice so that it may be refiled in the correct court.[2] B. Standing *3 The parties do not dispute that Truly has standing to bring a motion for protective order on behalf of JLL. However, the Court concludes that Truly has standing to bring the instant motions for protective orders in a more limited capacity than what is claimed. “A motion for a protective order may be made by any party and such party may seek a Rule 26(c) protective order ‘if it believes its own interest is jeopardized by discovery sought from a third person.’ ” Kilmon v. Saulsbury Indus., Inc., No. MO:17-CV-99, 2018 WL 5800759, at *4 (W.D. Tex. Feb. 13, 2018) (quoting 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2035 (3d ed. 2002). However, even where a moving party lacks standing to request a Rule 26(c) protective order on behalf of a nonparty, courts have found within their “inherent power” to manage discovery the ability to sua sponte issue a protective order under Rule 26(c) to effectuate the moving party's request. See, e.g., MAP Co. v. Lebanese Arak Corp., No. CV 16-05039-AB (RAOx), 2017 WL 10434017, at *3 (C.D. Cal. Oct. 26, 2017) (“To the extent Defendant lacks standing with respect to some of its arguments in support of quashing the subpoenas, the Court considers the merits of the motion to quash pursuant to its inherent discretion to manage discovery and its authority to sua sponte issue a protective order under Rule 26(c).”). Truly asserts four grounds upon which it seeks a protective order on behalf of JLL: (1) the subpoenas are “harassing” to JLL; (2) the subpoenas seek information that is “unnecessary and disproportionate to the needs of the case imposing an undue burden” on JLL; (3) the subpoenas are “overly broad seeking confidential information”; and (4) the subpoenas seek information that is “irrelevant to the claims and defenses in this lawsuit.” (Dkt. #147 at 1). Truly alleges, and Providence does not challenge, that the subpoenaed documents “contain Truly Title's confidential communications and include their confidential and proprietary financial and business records,” (Dkt. #147 at 4), information which implicates Truly's “own interest.” Kilmon, 2018 WL 5800759, at *4. This interest gives Truly standing with respect to its claim that the subpoenas are “overly broad seeking confidential information.” However, this fact does not give Truly standing to challenge the subpoenas as “harassing” to JLL, nor does it give Truly standing to challenge the subpoenas as “imposing an undue burden” on JLL, as those claims are unique to JLL. See Jim S. Adler, P.C. v. McNeil Consultants, LLC, No. 3:19-CV-2025-K-BN, 2022 WL 1624785, at *2 (N.D. Tex. May 23, 2022) (“[E]ven if Defendants had standing to bring a motion to quash the Subpoena and could properly file it in this district, that standing does not go so far as to allow Defendants to challenge a non-party subpoena on the grounds that it unduly burdens the non-party. And neither may Defendants assert standing to seek a protective order on the non-party's behalf on those same grounds.” (cleaned up)). Finally, even to the extent Truly lacks standing to seek a protective order based on its assertion that the subpoenas seek information that is “unnecessary and disproportionate to the needs of the case” and “irrelevant to the claims and defenses in this lawsuit,” given Rule 26's command that “on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that ... the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive,” or that “the proposed discovery is outside the scope permitted by Rule 26(b)(1),” FED. R. CIV. P. 26(b)(2)(C)(i), (iii), the Court will consider those arguments. C. Merits In its subpoenas, Providence requests five categories of information from JLL. Specifically, Providence requests the following materials: from “January 1, 2019 through the present, unless a particular request states otherwise”: 1. All documents reflecting communications between [JLL] and Truly regarding the establishment of new offices for Truly in the following Texas cities and counties: .... *4 2. All documents reflecting communications between [JLL] and any third-party (e.g., landlords, brokers, listing agents, etc.) regarding the establishment of new offices for Truly in the following Texas cities and counties: .... 3. All documents reflecting communications between [JLL] and any of Departing Providence Employees.[3] 4. All documents reflecting communications between [JLL] and Truly regarding Providence and/or the Departing Providence Employees. 5. [JLL's] entire work file relating to Truly. (Dkt. #147-1 at 8, 10); (Dkt. #147-2 at 8, 10). As explained herein, Truly in part challenges the above requests as “seeking confidential information.” However, the Court has entered a Confidentiality and Protective Order, (Dkt. #33), which allows for the designation of confidential information as “Attorneys' Eyes Only,” (Dkt. #33 at 1), thus obviating any confidentiality concerns that Truly asserts. Truly further challenges the subpoenas as being overbroad, unnecessary, and disproportionate to the needs of the case. The Court agrees that where Providence requests that JLL produce “[a]ll documents reflecting communications between [JLL] and Truly,” those documents should be in the possession of Truly, and accordingly should be produced by Truly, and not a nonparty. Likewise, concerning Providence's request that JLL produce its “entire work file related to Truly,” this request will be limited to exclude any documents reflecting communications between JLL or Truly, or any documents that are otherwise also in the possession of Truly. To the extent that Providence argues that Truly is not producing requested communications between Truly and JLL, the appropriate remedy is to seek court intervention as to any such failures to comply with discovery requests. See Scrum All. Inc. v. Scrum, Inc., No. 4:20-CV-227, 2020 WL 6559625, at *3 (E.D. Tex. Nov. 9, 2020) (“Plaintiff argues the nonparty subpoenas are necessary because Defendants have not been forthcoming with discovery. But that grievance should be addressed by a motion to compel, not a subpoena to a nonparty.”). Otherwise, however, the Court finds that Providence's subpoenas to JLL seek information not in the possession of Truly that is relevant to the claims in this case. In particular, Providence's requests for documents reflecting JLL's communications with third parties in connection with the establishment of new offices for Truly in particular Texas counties directly relates to Providence's claim that Truly violated the nondisclosure agreement during the relevant period. Likewise, Providence's requests for all documents reflecting JLL's communications with a particular group of employees who left Providence after the initiation of merger discussions between Truly and Providence began directly relates to Providence's claim that Truly violated the nondisclosure agreement during the relevant period. And while Truly's final request for JLL's “entire work file relating to Truly” is broader than its other requests, the Court nonetheless finds that, to the extent that request is limited by this order and Providence's express representation that it seeks discovery concerning only Texas matters, (Dkt. #149 at 10–11), it is relevant to Providence's claim that Truly violated the nondisclosure agreement during the relevant period. *5 The Court will, however, limit the timeframe of the documents requested. Providence seeks communications between JLL and certain other nonparties from “January 1, 2019 through the present,” (Dkt. #147-1 at 8); (Dkt. #147-2 at 8), arguing that “a January 1, 2019 start date is appropriate because 2019 is the year when Truly started acquiring Providence's confidential information,” (Dkt. #149 at 10). Truly asserts the relevant timeframe should be, at most, “January 1, 2021 to August 1, 2021, which would cover the opening of the offices where former Providence employees joined Truly Title in February or March and the opening of the Tyler office in July 2021.” (Dkt. #147 at 13). In contrast to either party's argument, the Court concludes that the relevant time period should be informed by the metes and bounds of the nondisclosure agreement, which agreement gives rise to the relevance of Providence's requests. The nondisclosure agreement entered into was made effective beginning April 25, 2019, (Dkt. #149-1 at 2), and provided that “[w]ith respect to any particular Confidential Information [subject to certain exceptions], the Recipient's obligations under this Agreement will expire two (2) years after the Recipient's receipt of that Confidential Information unless sooner terminated or suspended by mutual agreement of the parties,” (Dkt. #149-1 at 4). In its First Amended Compliant, Providence alleges that it provided Truly “with substantial, material, non-public and trade secret information regarding its business, employees, and offices” “through late October 2019.” (Dkt. #153 at 6). Therefore, the Court concludes that Providence's subpoenas to JLL should be limited to the period of April 25, 2019, through October 31, 2021. IV. CONCLUSION For the foregoing reasons, the Court hereby ORDERS that Truly's Motion to Quash, (Dkt. #147), is DENIED without prejudice. Further, the Court ORDERS that Truly's Motion for Protective Order, (Dkt. #147), is GRANTED in part and DENIED in part. The motion is GRANTED with respect to: (1) any requests for documents reflecting communications between JLL and Truly, or for documents that are otherwise in the possession of Truly; and (2) any request for documents outside the time period spanning April 25, 2019, to October 31, 2021. The motion is DENIED with respect to the remainder of Providence's subpoenas to JLL. So ORDERED and SIGNED this 29th day of September, 2022. Footnotes [1] Even accepting the alternative definition advanced by some courts for “place of compliance” as being the “location of the subpoenaed person or entity,” this Court is still not the correct court for a Rule 45(d)(3) motion to quash. One subpoena was sent to the Houston, Texas, office of JLL, (Dkt. #147-1 at 2), which is located within the jurisdiction of the United States District Court for the Southern District of Texas, while the other subpoena was sent to the Austin, Texas, office of JLL, (Dkt. #147-2 at 2), which is located within the jurisdiction of the United States District Court for the Western District of Texas. [2] Providence served “identical subpoenas” addressed to two distinct entities named “Jones Lang Lasalle, Real Estate.” (Dkt. #149 at 5). In bringing the instant motions, however, Truly asserts that “Plaintiff served JLL with two Subpoenas,” (Dkt. #147 at 2), indicating that both subpoenas were directed at the proper JLL entity, albeit differently named. [3] The subpoenas define “Departing Providence Employees” to mean a group of employees who left Providence after the initiation of merger discussions between Truly and Providence began. See (Dkt. #147-1 at 8); (Dkt. #147-2 at 8).