CHESTER PLOTNER, ET AL. v. ANCHOR DIVING & CONSTRUCTION, LLC, ET AL CIVIL ACTION NO. 22-553 United States District Court, E.D. Louisiana Filed July 22, 2022 Counsel Stanwood R. Duval, April A. Trahan, C. Berwick Duval, II, Harley M. Papa, Duval, Funderburk, Sundbery, Richard & Watkins, APLC, Houma, LA, for Chester Plotner, et al. Robert Joshua Koch, Jr., Koch & Schmidt, LLC, New Orleans, LA, Joseph Durkin Ledgard, Pro Hac Vice, Renshaw, P.C., Houston, TX, for Anchor Diving & Construction, LLC, et al. Currault, Donna Phillips, United States Magistrate Judge ORDER AND REASONS *1 Before me is a Motion to Quash and Limit Subpoenas Duces Tecum filed by Plaintiffs Chester and Tiffany Plotner. ECF No. 27. Defendants Anchor Diving and Construction LLC and Charles Zamora timely filed an Opposition Memorandum. ECF No. 35. The Court held oral argument on Wednesday, July 20, 2022. At the hearing, the Court granted and denied in part several issues and took the remaining issues under advisement. Having considered the record, the oral and written arguments of counsel, and the applicable law, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion to Quash or Limit Subpoenas Duces Tecum (ECF No. 27), treated as a request for protective order, for the reasons stated herein. I. BACKGROUND A. Factual Background In response to Anchor's Texas declaratory judgment action filed March 30, 2021 seeking a determination that Zamora is the sole owner of Anchor, Plaintiffs Chester and Tiffany Plotner filed suit against Anchor Diving and Construction LLC and Charles Zamora alleging that Zamora approached Chester Plotner about working with him and being a co-owner of Anchor shortly after Anchor was formed on October 30, 2017. ECF No. 1-2, ¶¶ 3–-4, 9. Plaintiffs claim that Tiffany Plotner was employed as Anchor's HR manager earning $48,100 per year and created an employee handbook as well as policies and procedures. Id. ¶¶ 6–7, 10. Chester Plotner contends he was employed at an annual salary of $145,999.98. Id. ¶ 15. Plaintiffs seek unpaid wages, asserting that Tiffany was only paid $9,250 for 5 pay periods (id. ¶¶ 10-11), and is owed $147,075 and Chester is owed $363,311.95. Id. ¶ 13, 15. Both also seek statutory penalties and attorneys' fees. Id. ¶ 17, 21. The Plotners also contend that the Zamoras did not have cash to run the company, so the Plotners loaned Anchor $105,911.81 but were only reimbursed for $30,140, leaving a balance of $75,771.81 owed. Id. ¶¶ 8, 23–24. They assert additional claims for breach of contract, unfair trade practices, veil piercing, fraud, conversion, and intentional infliction of emotional distress. Id. ¶¶ 27–50. Anchor filed a counterclaim against the Plotners and their entity Splash Rentals, LLC alleging breach of contract, conversion of corporate assets (equipment, cash and accounts receivables), fraud and alter ego liability, seeking compensatory and punitive damages. ECF No. 10, at 5–8. Anchor contends that the Plotners agreed to transfer 50% ownership of Splash to Zamora from its inception in 2016, but failed to do so. Id. ¶¶ 5–6. Anchor contends that the Plotners unlawfully accessed its online account at Go Daddy, removed equipment, convinced certain customers to pay the Plotners rather than Anchor, and improperly used Anchor funds for personal debts. Id. ¶¶ 8–24. The Honorable Lance M. Africk issued a Scheduling Order on April 7, 2022 establishing an October 17, 2022 trial date, with an August 1, 2022 discovery deadline. ECF No. 13, at 2, 4. B. The Motion to Quash or Modify On July 8, 2022, Plaintiffs filed this Motion to Quash and/or Modify subpoenas duces tecum issued by Defendants to (1) Blanchard Industrial, LLC (ECF No. 27-1); (2) Herbert J. Adams, CPA (ECF No. 27-2); (3) Excel Diving and Construction, LLC, which is another entity owned by the Plotners; (ECF No. 27-3); (4) Splash Rentals, LLC, which is a third-party defendant in this proceeding and owned by the Plotners (ECF No. 27-4); and (5) Professional Divers of Houma, LLC, which is another entity owned by the Plotners (ECF No. 27-5).[1] These subpoenas appear to have been issued on June 13, 2022 and served on June 24-25, 2022. See ECF Nos. 27-1–27-5; 35-1. *2 Plaintiffs contend that they have a personal right or privilege in the subject matter of the material sought, and thus, have standing to file this Motion to Quash. ECF No. 27-6, at 2. Further, they contend that Defendants served these subpoenas without giving prior notice, as required by Rule 45(a)(4) of the Federal Rules of Civil Procedure. Id. at 2, 4. They also claim that Defendants are on a fishing expedition, seeking irrelevant information that is outside of the scope of discovery. Id. at 4-5. For instance, Excel was not formed until June 23, 2021, which is after the severance of any relationship between the Plotners and Anchor. Id. In addition, Defendants have sought tax returns for all entities related to the Plotners. Id. at 4. Defendants oppose the motion, arguing that the information sought is relevant to Plaintiff's claims that they worked full-time for Anchor and will demonstrate that Plaintiffs were working for their other companies and not Anchor and that Plaintiffs have transferred Anchor property to their other companies for use on jobs performed by those entities. ECF No. 35, at 2-4; see also id. at 6-8. Defendants acknowledge that they failed to provide notice of the subpoenas prior to service, but argue that there was no prejudice and they provided notice as soon as they were made aware of the oversight on July 8, which was well before the return date. Id. at 4-5. In addition, they have agreed not to review any returns until after the hearing on this motion. Id. at 4. C. July 20, 2022 Hearing During oral argument, the parties presented the Court with 10 additional subpoenas, including Whitetail, sent from Defendant Anchor to non-parties and to which Plaintiffs object. In total, the 15 subpoenas at issue were the six previously identified by Plaintiffs (including Whitetail Oilfield Services, LLC) and Marlin Oilfield Divers, Inc., EMT Electronics, Inc., James W. Fowler, Co., White Horse Water, LLC, AE2S Engineering, Grand Isle Shipyard, LLC, Ballard Marine Construction, LLC, W.C. Fore Trucking, Inc., and Maintenance and Dredging, Inc. See ECF No. 42-1. Plaintiffs reiterated their objection to these subpoenas for lack of proper notice, as well as relevance of requesting documents from Excel, as they were formed in March 2021 and Professional Divers as they dissipated in March 2018. Plaintiffs further argued the subpoena requests were not limited to a certain time-period. As to prejudice, Plaintiffs argued the late filing and notice of these subpoenas hinders Plaintiffs from taking depositions of these companies before the discovery deadline. Defendants stated that four companies had already responded and produced documents to the subpoenas – White Horse, Grand Isle Shipyard, EMT Electronics, and James W. Fowler. Defendants conceded to limiting all subpoena requests to 2017 and on. They argued that the document requests were to discover whether equipment Anchor contends was taken by the Plotners or Splash Rentals is being used in jobs for the companies owned by the Plotners. Defendants argued that Professional Diving once it closed became Excel Diving and both of these companies are owned by the Plotners. Defendants argue some of the information they seek is to clarify who has ownership in these supposed Plotner owned companies. The Court addressed the tax returns requested from Herbert Adams and ordered the production of Chester and Tiffany Plotner's tax returns from 2017 to 2021, subject to an appropriate protective order, and allowed the Plotners to produce W-2s, 1099s, K-1s, or other similar documents for those relevant years in which the Plotners have not filed a tax return. As to non-parties, including Excel and Professional Divers, the Court quashed without prejudice the production of tax returns and instructed Defendants to pursue alternative methods for the information before seeking tax returns. ECF No. 42, at 2. II. APPLICABLE LAW A. Rule 37's Meet and Confer Requirement *3 In connection with a discovery motion, Rule 37(a)(1) of the Federal Rules of Civil Procedure requires: The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. To ensure compliance with this Rule, this Court expressly requires the parties to provide detailed information in the required Rule 37 certification, specifying: (1) how the required conference was scheduled, (2) who participated in the conference, (3) the date and time of the conference, (4) whether the conference was conducted by phone or in person, (5) the duration of the conference, (6) the specific topics that were addressed at the conference, and (7) whether any issues were resolved by the parties, and, if so, the terms of the resolution.[2] These instructions further direct that the “meet and confer [must be] either in person or by telephone, not simply via email exchange.”[3] Plaintiffs did not include a Rule 37 certification with regard to the issues raised in this motion. The failure to engage in a fulsome meet and confer prior to filing a discovery motion constitutes sufficient reason in itself to deny the motion.[4] Indeed, courts routinely deny discovery motions for failure to comply with Rule 37(a)(1).[5] B. Requirement of Pre-Service Notice of Subpoenas Rule 45 of the Federal Rules of Civil Procedure provides that, “[i]f the subpoena commands the production of documents ... , 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.” Fed. R. Civ. P. 45(a)(4). The “purpose of such notice is to afford other parties an opportunity to object to the production or inspection.”[6] Failure to serve a copy of a subpoena upon an opposing party or to give notice of its content deprives that party of any meaningful right to object or to otherwise protect its interests.[7] Accordingly, the failure to comply with the requirements of Fed. R. Civ. Proc. 45(a)(4) is a proper basis to quash a subpoena.[8] Before doing so, however, courts typically look to whether the failure to provide pre-service notice prejudiced the other party.[9] C. Scope of Discovery *4 Rule 26 authorizes the parties to “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(b)(1). The threshold for relevance at the discovery stage is lower than the threshold for relevance of admissibility of evidence at the trial stage.[10] This broader scope is necessary given the nature of litigation, where determinations of relevance for discovery purposes are made well in advance of trial.[11] Facts that are not considered in determining the ultimate issues may be eliminated in due course of the proceeding.[12] At the discovery stage, relevance includes “[a]ny matter that bears on, or that reasonably could lead to, other matters that could bear on, any issue that is or may be in the case.”[13] Discovery should be allowed unless the party opposing discovery establishes that the information sought “can have no possible bearing on the claim or defense of the party seeking discovery.”[14] If relevance is in doubt, the court should be permissive in allowing discovery.[15] Rule 26(b) is not, however, “a license to engage in an unwieldy, burdensome, and speculative fishing expedition.”[16] While relevancy in the discovery context is broader than in the trial context, that legal tenet should not be misapplied to allow fishing expeditions in discovery.[17] Thus, while the discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials,[18] discovery does have “ ‘ultimate and necessary boundaries.’ ”[19] A party seeking discovery must comply with Rule 26(b)(1)'s proportionality limits on discovery requests and is subject to Rule 26(g)(1)(B)'s requirement to certify that the discovery request is “(i) consistent with these rules ... ; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Fed. R. Civ. P. 26(g)(1)(B). Rule 26(b)(2)(C) also mandates that the Court limit the frequency or extent of discovery otherwise allowed, if it determines: (1) 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; (2) the party seeking discovery had ample opportunity to obtain the information; or (3) the proposed discovery is outside the scope of Rule 26(b)(1).[20] D. Motion to Quash *5 Discovery may be obtained from non-parties pursuant to Rule 45 of the Federal Rules of Civil Procedure. A non-party served with a subpoena duces tecum may object by sending written objections to the issuing party within 14 days of service or before the return date, whichever is earlier. Fed. R. Civ. P. 45(d)(2)(B). If the non-party timely provides written objections, it has satisfied its obligations. The serving party may then file a Motion to Compel seeking compliance. Fed. R. Civ. P. 45(d)(2)(B)(i). Although governed in the first instance by Rule 45, non-party subpoenas are also subject to the parameters of Rule 26.[21] “Both Rules 45 and 26 authorize the court to modify a subpoena duces tecum when its scope exceeds the boundaries of permissible discovery or otherwise violates the parameters of Rule 45.”[22] A subpoena may be quashed or modified if the subpoena “(i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.”[23] The person filing the motion to quash also bears the burden of proof to demonstrate that compliance would impose undue burden or expense.[24] To determine whether the subpoena presents an undue burden, the Fifth Circuit considers the following factors: (1) relevance of the information requested; (2) the need of the party for the documents; (3) the breadth of the document request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed.[25] “Whether a burdensome subpoena is reasonable ‘must be determined according to the facts of the case,’ such as the party's need for the documents and the nature and importance of the litigation.”[26] “Further, if the person to whom the document request is made is a non-party, the court may also consider the expense and inconvenience to the non-party.”[27] Modification of a subpoena is generally preferable to quashing it outright.[28] Absent a personal right or privilege with respect to the subpoenaed materials, a party generally does not have standing to quash a subpoena duces tecum issued to a third party because the party is not in possession of the materials subpoenaed.[29] Further, a party “cannot challenge a Rule 45 subpoena directed to a third party on the basis that ... the subpoena is overly broad, or that the subpoena seeks information that is irrelevant because only the responding third party can object and seek to quash a Rule 45 subpoena on those grounds.”[30] Although a party does not have standing under Rule 45 to challenge the sufficiency of notice, burden, or relevance in the absence of a personal right or privilege with respect to the materials subpoenaed,[31] a party does have standing to challenge relevance under Rule 26(c).[32] E. Protective Order *6 Under Rule 26, a “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). “Good cause” exists when disclosure will result in a clearly defined and serious injury to the party seeking the protective order.[33] In determining good cause, the court must balance the risk of injury without the protective order and the requesting party's need for information.[34] The party seeking the protective order 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.”[35] Rule 26 offers a variety of potential options that the court may use to protect the moving party, including forbidding or limiting the scope of discovery into certain matters or requiring that a trade secret or other confidential commercial information not be revealed or be revealed in only a certain way. Fed. R. Civ. P. 26(c)(1)(D), (G). A district court may exercise its sound discretion in determining how far to restrict discovery; and, in particular, the decision whether to grant or deny a request for a protective order is entrusted to the district court's sound discretion.[36] The trial court enjoys wide discretion in setting the parameters of a protective order.[37] F. Tax Returns Tax returns are neither privileged nor undiscoverable.[38] Courts are reluctant, however, to order the disclosure of tax returns as they are considered “highly sensitive documents.”[39] To determine whether tax returns should be produced, the moving party must “demonstrate both: (1) that the requested tax information is ‘relevant’ to the subject matter of the action; and (2) that there is a ‘compelling need’ for the information because the information contained in the tax returns is not ‘otherwise readily obtainable’ through alternative forms of discovery.”[40] Once the moving party has shown relevance, “the burden shifts to the party opposing production to show that other sources exist from which the information contained in the income tax returns may be readily obtained.”[41] III. ANALYSIS Although Plaintiffs have not complied with Rule 37.1, given the impending discovery deadline, the Court will address the merits of this motion. Defendants failed to provide pre-service notice of the subpoenas to Plaintiffs. The only prejudice articulated by Plaintiffs is potentially the inability to take depositions of the companies not included in Defendants earlier witness disclosure but included on its later witness list. That prejudice, however, relates to Defendants' failure to supplement their earlier disclosures, not the failure to provide prior notice of subpoenas. Plaintiffs received notice 10 days before the return date and Defendants agreed not to review any responsive materials until after this Court's resolution of the issue. Accordingly, Plaintiffs have not been deprived of a fair opportunity to protect their interests, and therefore, the subpoenas will not be quashed on this basis. *7 As to standing, Plaintiffs have a personal privacy right and interest in their financial information and thus have standing to seek to quash the subpoena issued to their accountant. Although Plaintiffs do not appear to have a personal right or privilege in other categories of requested materials or the subpoenas sent to other entities, they have standing to seek a protective order pursuant to Rule 26. The Court ruled on the four companies that already produced documents as well as the objections to the tax returns requested from Herbert Adams during the hearing on July 20th. Accordingly, those issues are not further addressed here. See ECF No. 42. Defendants issued similar, though not identical, subpoenas to 11 entities including several owned by the Plotners (Professional Diver of Houma, Inc. (“Professional Divers”), Excel Diving and Construction, LLC (“Excel”), and Splash Rental, LLC (“Splash Rental”)) and others businesses not owned by the Plotners (AE2S Engineering (“AE2S”), Marlin Oilfield Divers, Inc. (“Marlin”), Whitetail Oilfield Services, L.L.C. (“Whitetail”), Blanchard Industrial, L.L.C. (“Blanchard”), Ballard Marine Construction, L.L.C. (“Ballard”), W.C. Fore Trucking, Inc. (“W.C. Fore Trucking”), and Maintenance and Dredging, Inc. (“Maintenance & Dredging”)). With regard to these 11 subpoenas, some of the requested information falls outside of Rule 26's discovery parameters but other items fall well within the parameters of proper discovery. Given that the response date to the subpoenas passed during the pendency of this motion, the Court will require responses to subpoenas as modified here herein no later than Friday, July 29, 2022 (unless explicitly instructed otherwise in this Order). In considering the claims and defenses in this case and Defendants' concession during oral argument, all subpoena requests will be limited to the years 2017 to date. The Subpoena to Splash Rentals seeks: 1. All insurance certificates provided to customers or potential customers at any time during the period January 1, 2016 to the present. 2. All records of ownership. 3. All job quotes issued by Splash for work during the period January 1, 2016 through the present. 4. A copy of all governance documents for the period January 1, 2016 through the present including, without limitation, Operating Agreement, employment agreements and statement of capital contribution. 5. A list of all assets, including purchase invoices and photographs. 6. List of all jobs performed by Splash during the period January I, 2016 to the present. 7. All contracts with Whitetail Oilfield, White Horse Water LLC, Adventure Divers, ECI Drilling, J. W. Fowler, AE2S Engineering, Ballard or Ballard Diving, Grand Isle Shipyard, Blanchard Industrial LLC, Blanchard Construction, Cross Diving, Marlin Diving, Maintenance and Dredging, Professional Divers of Houma, WC Fore Trucking company. 8. All communications, including emails, with Whitetail Oilfield, White Horse Water LLC, Adventure Divers, ECI Drilling, J. W. Fowler, AE2S Engineering, Ballard or Ballard Diving, Grand Isle Shipyard, Blanchard Industrial LLC, Blanchard Construction, Cross Diving, Marlin Diving Maintenance and Dredging, Professional Divers of Houma, WC-4 during the period January 1, 2016 to the present. 9. All communications with ADCI. l0. Tax returns and schedules for the period January 1, 2016 through the present. 11. All records, including photographs, reflecting or relating to the condition, location and/or disposition of Anchor Diving equipment in the Anchor yard in Houma as of and following Hurricane Ida. 12. All records, including photographs, reflecting or relating to the condition, location and/or disposition of Splash equipment in the Anchor yard in Houma as of and following Hurricane Ida. *8 13. Any and all Bills of Lading and Load Out Sheets / Time Tickets and Daily logs. ECF No. 27-4; 42-1, at 36. The Subpoena to Professional Divers of Houma, LLC seeks: 1. Please produce all certificates of insurance issued to customers at any time during the period January 1, 2016 through the present. 2. Please produce all employee contracts for the period above. 3. Please produce all W-9 and W-2's provided by you. 4. Please produce all job quotes/bids issued by you for any job during the period above. 5. Please produce all job files for the period above. 6. Please produce all records reflecting payment during the period above. 7. Please produce any and all records of communication with Chet and/or Tiffany Plotner and/or Charles Zamora. 8. Please produce a list of all equipment owned at any time during the period January 1, 2017 to the present. 9. Please produce all insurance policies in existence 2016 to present. ECF No. 27-5, 42-1, at 65. The Subpoena to Excel Diving and Construction, LLC seeks: 1. Please produce all insurance certificates provided to customers or potential customers at any time during the period January 1, 2017 to the present. 2. Please produce any and all records of ownership in Excel. 3. Please produce all job quotes issued by Excel for work during the period January l, 2017 through the present. 4. Please produce a copy of all governance documents for the period January l, 2017 through the present including, without limitation, Operating Agreements, employment agreements and statements of capital contribution. 5. Please produce a list of all assets, including purchase invoices and photographs. 6. Please produce a list of all jobs performed by Excel during the period January 1, 2017 to the present. 7. Please produce all communications, including emails, between Excel and Laurie Bailey during the period January 1, 2017 to the present. This includes all contracts with Laurie Bailey. 8. Please produce any and all contracts with Whitetail Oilfield, White Horse Water LLC, Adventure Divers, ECI Drilling, J. W. Fowler, AE2S Engineering, Ballard or Ballard Diving, Grand Isle Shipyard, Blanchard Industrial LLC, Blanchard Construction, Cross Diving, Marlin Diving Maintenance and Dredging, Professional Divers of Houma, WC Fore Trucking Company. 9. Please produce all communications, including emails, with Whitetail Oilfield, White Horse Water LLC, Adventure Divers, ECI Drilling, J. W. Fowler, AE2S Engineering, Ballard or Ballard Diving, Grand Isle Shipyard, Blanchard Industrial LLC, Blanchard Construction, Cross Diving, Marlin Diving Maintenance and Dredging, Professional Divers of Houma, WC Fore Trucking Company, during the period January l, 2017 to the present. 10. Please produce any and all communications with ADCI. 11. Please produce any tax returns and schedules for the period January 1, 2017 through the present. 12. Please produce all records, including photographs, reflecting, or relating to the condition, location and/or disposition of Anchor Diving equipment in the Anchor yard in Houma as of and following Hurricane Ida. 13. Please produce all records, including any photographs, reflecting, or relating to the condition, location and/or disposition of Splash equipment in the Anchor yard in Houma as of and following Hurricane Ida. *9 ECF No. 27-3; 42-1, at 40. The Subpoena to Blanchard Industrial, LLC seeks: 1. All certificates of insurance received from Excel Diving and Construction, LLC and Splash Rentals, LLC. 2. All contracts with Excel Diving and Splash, LLC. 3. All W-9's provided to you by Excel Diving and/or Splash, LLC. 4. All job quotes received from Excel Diving and/or Splash, LLC. 5. All job files reflecting personnel and equipment provided by Excel Diving and/or Splash, LLC. 6. All records reflecting payment to or on behalf of Excel Diving and/or Splash, LLC. 7. All records reflecting payment of commissions to Laurie Bailey by or on behalf of Excel Diving and/or Splash, LLC and/or Chet Plotner. 8. All internal policies prohibiting contractors paying employees or contractors for work. ECF No. 27-1; 42-1, at 49. The Subpoena to Marlin Oilfield Divers, Inc. seeks: 1. Please produce all certificates of insurance received from Excel Diving and Splash Rentals, LLC. 2. Please produce any and all agreements, contractual or otherwise, including, but not limited to drafts, associated with Excel Diving and Splash Rentals, LLC. (or All contracts with Excel Diving and Splash Rentals, LLC) 3. Please produce all W-9's provided to you by Excel Diving and/or Splash Rentals, LLC. 4. Please produce all job quotes received from Excel Diving and/or Splash Rentals, LLC 5. Please produce all job files reflecting personnel and equipment provided by Excel and/or Splash Rentals, LLC. 6. Please produce any and all records reflecting payment to or on behalf of Excel and/or Splash Rentals, LLC. 7. Please produce any and all records of communication with Excel, Splash Rentals, Chet and/or Tiffany Plotner. 8. Please produce all records, photos, videos, and whereabouts of any suspect missing Marlin Oilfield equipment. 9. Please produce a list of all equipment believed by you to have been taken by Excel and/or Splash Rentals and/or Chet Plotner. ECF No. 42-1, at 12. The Subpoena to AE2S Engineering seeks: 1. All certificates of insurance received from Excel Diving and Splash Rentals, LLC 2. All contracts with Excel Diving and Splash Rentals, LLC. 3. All W-9's provided to you by Excel Diving and/or Splash Rentals, LLC. 4. All job quotes received from Excel Diving and/or Splash Rentals, LLC 5. All job files reflecting personel and equipment provided by Excel and/or Splash Rentals, LLC. 6. All records reflecting payment to or on behalf of Excel and/or Splash Rentals, LLC. 7. All records reflecting payment of commissions to Aaron Faaken, Adventure Divers, Sonya Faaken, by or on behalf of Excel Diving and/or Splash Rentals and/or Chet Plotner. 8. All intemal policies prohibiting contractors paying employees or contractors for work ECF No. 42-1, at 28. The Subpoena to Whitetail Oilfield Services, LLC seeks: 1. Please produce all certificates ofinsurance received from Excel Diving and Splash Rentals, LLC. 2. Please produce any and all agreements, contractual or otherwise, including, but not limited to drafts, associated with Excel Diving and Splash Rentals, LLC. 3. Please produce all W-9's provided to you by Excel Diving and/or Splash Rentals, LLC. *10 4. Please produce all job quotes received from Excel Diving and/or Splash Rentals, LLC 5. Please produce all job files reflecting personnel and equipment provided by Excel and/or Splash Rentals, LLC. 6. Please produce any and all records reflecting payment to or on behalf of Excel and/or Splash Rentals, LLC. 7. Please produce any and all records of communication with Excel, Splash Rentals, Chet and/or Tiffany Plotner. 8. Please produce all communications between Whitetail Oilfield (Shawn Pellegrin, T. Plotner, C. Plotner). 9. Please produce all communications between Shawn Pellegrin and Laris Insurance on behalf of T. Plotner and C. Plotner. 10. Please produce all photos and videos of the equipment yard at 214 Industrial Ave., Houma, LA during the period of January 2019 through the present. ECF No. 42-1, at 36. The Subpoena to Ballard Marine Construction, LLC seeks: 1. Please produce all certificates of insurance received from Excel Diving and Splash Rentals, LLC. 2. Please produce any and all agreements, contractual or otherwise, including, but not limited to drafts, with Excel Diving and Splash Rentals, LLC. 3. Please produce all W-9's provided to you by Excel Diving and/or Splash Rentals, LLC. 4. Please produce all job quotes received from Excel Diving and/or Splash Rentals, LLC 5. Please produce all job files reflecting personnel and equipment provided by Excel and/or Splash, LLC. 6. Please produce any and all records reflecting payment to or on behalf of Excel and/or Splash Rentals, LLC. 7. Please produce any and all records of communication with Excel, Splash Rentals, Chet and/or Tiffany Plotner. 8. Please produce any and all rental equipment receipts for the Lemon Dam, Littleton Project, Durango Projects. 9. Please produce all communications between C. Plotner, T. Plotner, and Jared Bell of Ballard Marine Construction. ECF No. 42-1, at 53. The Subpoena to W.C. Fore Trucking, Inc. seeks: 1. All certificates of insurance received from Excel Diving and Splash Rentals, LLC 2. All contracts with Excel Diving and Splash Rentals, LLC. 3. All W-9's provided to you by Excel Diving and/or Splash Rentals, LLC. 4. All job quotes received from Excel Diving and/or Splash Rentals, LLC 5. All job files reflecting personnel and equipment provided by Excel and/or Splash Rentals, LLC. 6. All records reflecting payment to or on behalf of Excel and/or Splash Rentals, LLC 7. All records of communication with Excel, Splash Rentals, Chet and/or Tiffany Plotner. 8. All job expense receipts such as fuel, subsistence, mileage reports, payroll reports, time tickets, invoices, daily logs. ECF No. 42-1, at 57. The Subpoena to Maintenance and Dredging, Inc. seeks: 1. Please produce all certificates of insurance received from Excel Diving and Splash, LLC during the periods of March 2021 and May 2021. 2. Please produce any and all agreements, contractual or otherwise, including, but not limited to drafts, with Excel Diving and Splash, LLC. 3. Please produce all W-9's provided to you by Excel Diving and/or Splash, LLC. 4. Please produce all job quotes received from Excel Diving and/or Splash, LLC *11 5. Please produce all job files reflecting personnel and equipment provided by Excel and/or Splash, LLC. 6. Please produce any and all records reflecting payment to or on behalf of Excel and/or Splash, LLC. 7. Please produce any and all records of communication with Excel, Splash Rentals, Chet and/or Tiffiury Plotner. 8. Please produce alljob expense receipts such as fuel, subsistence, mileage reports, payroll reports, time tickets, Daily Logs and invoices for the periods of January 2021, and May 2021. ECF No. 42-1, at 61. a. Certificates of Insurance During the hearing, Defendants reiterated their contention that the Plotners are using Anchor Diving and Construction's insurance information and policies for their current work, which is the reason they seek to obtain certificates of insurance. Plaintiffs argued that neither the Plotners nor Splash Rentals received a request for production seeking certificates of insurance. Nevertheless, given the fast-approaching discovery deadline and Defendants' counterclaims (ECF No. 10, at 6–7), the Court orders Splash Rentals, Professional Divers, and Excel to produce copies of any certificate(s) of insurance provided to customers or potential customers from 2017 to present. Additionally, the business entities not owned by the Plotners (AE2S, Whitetail, Blanchard, Ballard, W.C. Fore Trucking, and Marlin Oilfield) must all produce any certificates of insurance received from Excel Diving and Splash Rentals for 2017 to present. Maintenance and Dredging must only produce those certificates of insurance received in March 2021 and May 2021. b. Business Agreements between Entities and Excel/Splash Defendants requested “any and all agreements, contractual or otherwise, including but not limited to drafts, associated with Excel Diving and Splash Rentals, LLC” or “all contracts” from the non-party business entities not owned by the Plotners. Defendants have asserted counterclaims against the Plotners and Splash Rentals that Defendants own a 50% interest in Splash Rentals and thus are entitled to damages for failure of the transfer of that interest. These requests are duplicative and/or cumulative of Defendants' subpoena requests to party Splash Rentals and Excel Diving, a Plotner-owned company, for agreements and/or contracts with these non-party business entities. Rule 45 imposes an obligation on Defendants to minimize the undue burden on non-parties. In light of the impending discovery deadline, the Court will require these non-party entities to produce only final agreements and/or contracts for any completed jobs for which Splash Rentals or Excel Diving received payment. Additionally, Splash Rentals and Excel Diving must produce the final agreement and/or contract for jobs completed and for which payment was received from Whitetail Oilfield, Adventure Divers, ECI Drilling, AE2S Engineering, Ballard or Ballard Diving, Blanchard Industrial, Blanchard Construction, Blanchard LLC, Cross Diving, Marlin Diving, Maintenance and Dredging, Professional Divers of Houma, and WC Fore Trucking. c. Job Quotes or Lists and Personnel Job Files and W-2's *12 Defendants requested job quotes received from Excel and Splash Rentals, as well as job files reflecting personnel provided by Excel and/or Splash Rentals. Job quotes are not relevant to any claim or defense in this case as a quote does not represent payment or completed job, and no subpoenaed entity is required to produce any information or documents on this. Additionally, personnel provided by Excel and/or Splash or the production of any of their employees' W-2's are not relevant to any claim, counterclaim, or defense in this matter. Additionally, job expense receipts requested from Maintenance and Dredging are not relevant to any claims or defenses in this case as this has no bearing on payment made to Splash Rentals or equipment used for jobs. As to Splash Rentals, however, a list of the jobs performed for the relevant time period should be produced if it has not already produced same during discovery as such information would be relevant to Defendants' counterclaim. The request for a list of Splash's assets including invoices and photographs relating to these assets is overbroad and duplicative of the request for a list of equipment discussed below. d. Equipment Defendants seek identification or a list of Splash Rentals' equipment, which they contend will reflect that Splash Rentals improperly converted Anchor Diving and Construction's equipment for its own use or that of its other entities, Excel Diving, and Professional Divers. Defendants are directed to narrow their subpoena requests by identifying the equipment Defendants contend has been converted to require Splash, Excel and Professional Divers to identify only those specific types of equipment owned or used in their operations. Defendants must serve this narrowed request by Tuesday, July 26, 2022, and Splash Rentals, Excel, and Professional Diving, as well as Maintenance and Dredging, AE2S, Whitetail, Blanchard, Ballard, W.C. Fore Trucking, and Marlin Oilfield Divers must respond by Friday, July 29, 2022 with the identification or list of such equipment. Any requested equipment rental receipts or any requests relating to any other equipment is not relevant and does not need to be produced. Further, Excel, Professional Diving, and Splash Rentals must produce documents reflecting their acquisition nor purchase for the subject equipment. With regard to Defendants' request for information regarding all assets, daily logs, tickets, or bills of lading, these requests are also overbroad, cumulative and duplicative of other requests. To the extent Defendants seek this information to value Splash Rentals in connection with their damages claim, that information is more readily obtainable through other avenues (e.g., financial statements, balance sheets). Defendants may serve an interrogatory or Request for Production for such financial information by Tuesday, July 26, 2022 to which Plaintiffs would respond no later than Friday, July 29, 2022. e. W-9's and Payments to Splash Rentals and Excel Maintenance and Dredging, AE2S, Whitetail, Blanchard, Ballard, W.C Fore Trucking, and Marlin must produce records, invoices, or other documents, reflecting payments to Splash Rentals, Excel or Professional Diving for the 2017-2021 time period as well as any W-9s received from these entities. No subpoenaed entity needs to produce payments made to them from Excel or Splash Rentals, or payments made to other entities or persons besides Splash Rentals, Excel, Professional Diving, or the Plotners. Defendants' request for internal policies from AE2S and Blanchard is stricken. Such policies are simply not relevant to any claim or defense in this case. f. Communications Defendants' requests for “any and all” communications between the non-party business entities and the Plotners and/or the entities owned by the Plotners are overboard. Further, requests regarding communications to the non-party entities are duplicative and cumulative of requests made to Splash Rentals and Excel. Therefore, the communication requests to Maintenance & Dredging, AE2S, Whitetail, Blanchard, Ballard, W.C. Fore Trucking, and Marlin are stricken. *13 Splash Rentals, Excel and Professional Diving, however, must produce their communications with the entities listed in the relevant subpoena requests, specifically communications regarding specified equipment Defendants contend is stolen, payments for completed jobs, and Anchor Construction and Diving. Defendants also requested communications between several of the non-party entities and Chet and Tiffany Plotner. If Defendants seek communications between Chet and Tiffany Plotner and any of the non-party business entities regarding the above detailed information, they can propound discovery requests to the Plotners by Tuesday, July 26, 2022, to which Chet and Tiffany Plotner must respond no later than Friday July 29, 2022. g. Additional Excel, Professional Diving, and Splash Rentals Subpoena Requests As to proof of ownership, the Defendants must serve no later than Tuesday, July 26, 2022, an interrogatory to Splash Rentals and/or the Plotners asking who they contend owns Excel Diving, Splash Rentals, and Professional Diving. Splash Rentals and the Plotners must respond fully and completely no later than Friday, July 29, 2022. Only Splash Rentals will be required to produce an operating agreement. No other governance documents must be produced as they are not relevant to any claims or defenses in this matter. IV. CONCLUSION For the foregoing reasons, IT IS ORDERED that Plaintiffs' Motion to Quash or Modify Subpoenas Duces Tecum (ECF No. 27), treated as a request for protective order, is GRANTED IN PART AND DENIED IN PART as stated herein. New Orleans, Louisiana, this 22nd day of July, 2022. Footnotes [1] Although Plaintiff indicated that Whitetail Oilfield Services, LLC also received a subpoena duces tecum (ECF No. 26-6, at 1), they did not attach a copy of this subpoena. [2] Motions & Oral Argument, The Honorable Donna Phillips Currault, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA, http://www.laed.uscourts.gov/judges-information/judge/honorable-donna-phillips-currault (last visited July 21, 2022). [3] Id. [4] Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014) (stating the Rule 37 certification is a prerequisite). [5] See, e.g., Greer v. Bramhall, 77 F. App'x 254, 255 (5th Cir. 2003) (finding the district court did not abuse its discretion in denying motion to compel for failing to follow Rule 37); D.H. Griffin Wrecking Co., Inc. v. 1031 Canal Dev., L.L.C., No. 20-1051, 2020 WL 8265341, at *3 (E.D. La. Apr. 16, 2020) (citing cases). [6] Westside–Marrero Jeep Eagle, Inc. v. Chrysler Corp. Inc., No. 97–3012, 1998 WL 186705, at *7 (E.D. La. April 17, 1998) (citing prior version at Fed. R. Civ. P. 45(b)(1)). [7] Hall v. Louisiana, No. 12-657, 2014 WL 1652791 at *12 (M.D. La. April 23, 2014). [8] Burkette v. East Feliciana Par. Sheriff, No. 18-996, 2022 WL 2101515, * 2 (M.D. La. June 10, 2022) (citing Hall, 2014 WL 1652791, at *12 (citing Williams v. Weems Comm. Mental Health Ctr., No. 04-179, 2006 WL 905955, at *2 (S.D. Miss. April 7, 2016) (additional citations omitted) (“A party's failure to serve a copy of a subpoena on his opponent, as required by [Rule 45(a)(4)], has been held to substantiate a decision to quash the subpoena.”))). [9] Hall, 2014 WL 1652791, at *12 (finding prejudice sufficient to justify quashing subpoena when the other party only learned of the subpoena one day before the hearing and 2-3 days before the return date and deposition); see also Hirsch v. US Health Advisors, LLC, No. 18-245, 2020 WL 1271588, at *2 (N.D. Tex. Feb. 14, 2020) (refusing to quash after finding no prejudice resulted from failure to provide pre-service notice) (citing HomeLife in the Gardens, LLC v. Landry, No. 16-15549, 2018 WL 733213, at *3 (E.D. La. Feb. 6, 2018) (“While there was some confusion with respect to the emails and attachments, the Plaintiffs have complied with Rule 45 since before the subpoena was served, notice and a copy was given to the opposing party in the case.”); Ezell v. Parker, No. 14-150, 2015 WL 859033, at *3 n.1 (S.D. Miss. Feb. 27, 2015) (declining to quash subpoenas based on Plaintiff's failure to comply with Rule 45(a)(4) because “Plaintiffs provided notice of the subpoenas immediately after service, and Defendants were not deprived of a fair opportunity to protect their interests.”)). But see Williams v. Weems Comm. Mental Health Ctr., No. 4-179, 2006 WL 905955, at *2 (S.D. Miss. Apr. 7, 2006) (collecting cases to hold that “a party's failure to serve a copy of a subpoena on his opponent, as required by Rule 45(b)(1), has been held to substantiate a decision to quash a subpoena,” even sometimes without prejudice). [10] Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 2011) (citations omitted). [11] Id. n.5 (citation omitted). [12] Id. [13] Id. (citations omitted). [14] Dotson v. Edmonson, No. 16-15371, 2017 WL 11535244, at *2 (E.D. La. Nov. 21, 2017) (citing Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)). [15] E.E.O.C. v. Simply Storage Mgmt., L.L.C., 270 F.R.D. 430, 433 (S.D. Ind. 2010) (quoting Truswal Sys. Corp. v. Hydro–Air Eng'g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987)). [16] Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011) (citation omitted). [17] Trident Mgmt. Grp., LLC v. GLF Constr. Corp., No. 16-17277, 2017 WL 3011144, at *4 (E.D. La. July 14, 2017) (citations omitted); see also Crosby, 647 F.3d at 264; Ganpat v. E. Pac. Shipping, PTE, Ltd., No. 18-13556, 2020 WL 1046336, at *3 (E.D. La. Mar. 4, 2020). [18] Herbert v. Lando, 441 U.S. 153, 176 (1979) (citations omitted). [19] Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). [20] Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii). [21] In re Application of Time, Inc., No. 99-2916, 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999) (citations omitted), aff'd, 209 F.3d 719 (5th Cir. 2000). [22] Hahn v. Hunt, No. 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016) (citing Fed. R. Civ. P. 45(d)(3); 26(c)(1)(D)). [23] Fed. R. Civ. P. 45(d)(3). [24] See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (finding party resisting discovery must show why each discovery request is not relevant or otherwise objectionable). [25] Wiwa, 392 F.3d at 818 (internal citations omitted). [26] Id. (citation omitted). [27] Id. (citation omitted). [28] Id; Tiberi v. CIGNA, Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994); see also Linder v. Nat'l Sec. Agency, 94 F.3d 693, 698 (D.C. Cir. 1996) (“[M]odification of a subpoena is generally preferred to outright quashing ....”). [29] Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979) (ruling movants lacked standing because they were not in possession of the materials subpoenaed and had no personal right or privilege in the materials subpoenaed); Bounds v. Cap. Area Fam. Violence Intervention Ctr., Inc., 314 F.R.D. 214, 218 (M.D. La. 2016) (“Parties have limited standing to quash subpoenas served on non-parties pursuant to Rule 45.”) (citation omitted); Black v. DMNO, LLC, No. 16-02708, 2018 WL 488991, at *2 (E.D. La. Jan. 19, 2018) (“[I]n order to challenge the subpoena, the movant must be: in possession or control of the requested material; be the person to whom the subpoena is issued; or have a personal right or privilege in the subject matter of the subpoena.”) (citation omitted). [30] Salmon v. Waffle House, Inc., No. 19-1349, 2020 WL 6708382, at *2 (E.D. La. Nov. 16, 2020) (citing Frazier v. RadioShack Corp., No. 10-855-BAJ-CN, 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012)). [31] Bounds, 314 F.R.D. at 218 (“Parties have limited standing to quash subpoenas served on non-parties pursuant to Rule 45.”) (citation omitted); Black v. DMNO, LLC, No. 16-02708, 2018 WL 488991, at *2 (E.D. La. Jan. 19, 2018) (“[I]n order to challenge the subpoena, the movant must be: in possession or control of the requested material; be the person to whom the subpoena is issued; or have a personal right or privilege in the subject matter of the subpoena.”) (citation omitted); see also Brown, 595 F.2d at 967 (ruling movants lacked standing because they were not in possession of the materials subpoenaed and had no personal right or privilege in the materials subpoenaed). [32] Bounds, 314 F.R.D. at 218 (“Nevertheless, a party has standing to move for a protective order pursuant to Rule 26(c) seeking to limit the scope of discovery, even if the party does not have standing pursuant to Rule 45(d) to bring a motion to quash a third-party subpoena.”) (citing Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240 n. 2 (E.D. Va. 2012); Auto–Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005); Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005)). [33] Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). [34] Blanchard & Co., Inc. v. Barrick Gold Corp., No. 02-3721, 2004 WL 737485, at *5 (E.D. La. Apr. 5, 2004). [35] E.E.O.C. v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017) (citing In re Terra Int'l, 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978))). [36] Nguyen v. Excel Corp., 197 F.3d 200, 209 n.27 (5th Cir. 1999) (citation omitted). [37] See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”). [38] F.D.I.C v. LeGrand, 43 F.3d 163, 172 (5th Cir. 1995). [39] Nat. Gas Pipeline Co. v. Energy Gathering, Inc., 2 F.3d 1397, 1411 (5th Cir. 1993). [40] Butler v. Exxon Mobil Refin. & Supply Co., No. 07-386, 2008 WL 4059867, at *2 (M.D. La. Aug. 28, 2008) (citing Nat. Gas Pipeline Co., 2 F.3d at 1411). [41] F.D.I.C., 43 F.3d at 172.