WALTER PETTAWAY, Plaintiff, v. NICHOLAS D. BARBER, et al., Defendants CASE NO. 2:19-cv-8-ECM-JTA United States District Court, M.D. Alabama, Northern Division Signed May 17, 2022 Counsel Gordon Griffin Sikes, Jr., Attorney at Law, Montgomery, AL, Horace Earl Nix, Jr., H. E. Nix, Attorney at Law, Montgomery, AL, for Plaintiff. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Rebecca L. Chambliss, Chambliss Law, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, for Defendant Nicholas D. Barber. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, for Defendant Ernest N. Finley. Allison Alford Ingram, Charles Winston Sheehan, Jr., Sydney Kay Brasfield, Ball Ball Matthews & Novak PA, Montgomery, AL, Robert Lee DeMoss, III, Balch & Bingham, Montgomery, AL, Stacy Lott Bellinger, City of Montgomery, Montgomery, AL, for Defendant The City of Montgomery, Alabama. Adams, Jerusha T., United States Magistrate Judge ORDER *1 Before the court is Defendant City of Montgomery's Motion to Quash. (Doc. No. 253.) The City of Montgomery (“City”) urges the court to quash the subpoena duces tecum issued by the plaintiff to produce the following: For every civil action filed since Jan. 1, 2012, which contained a § 1983 claim against the City of Montgomery or a City policeman in which either was represented by a lawyer not employed by the City Legal Department, the records sufficient to identify (a) the jurisdiction in which the civil action was filed (b) style of the civil action including its civil action number (c) the lawyer representing the City or police officer (d) defendants represented. (Doc. No. 253-1.) The plaintiff, Walter Pettaway, opposes the motion (Docs. No. 270, 275), and the City has replied (Docs. No. 274, 303). The undersigned held oral argument on the motion on April 11, 2022, thus the motion is ripe for review. The plaintiff issued the subpoena to the City in order to obtain documents pertaining to his motion for the recusal of Chief United States District Judge Emily C. Marks from this case.[1] The City argues the subpoena is unduly burdensome and thus due to be quashed under Federal Rule of Civil Procedure 45(d)(3)(A). (Doc. No. 253.) The City contends the subpoena is unduly burdensome because the information sought is publicly available on AlaCourt, PACER, WestLaw and LexisNexis. (Doc. No. 253 at 3.) The City also appears to argue that the subpoena is seeking irrelevant information in contradiction to Federal Rule of Civil Procedure 26(b), but provides no specific argument in that regard.[2] (Doc. No. 253 at 1-2.) The City further argues generally that the subpoena “appears to encompass privileged material” but does not provide any supporting documentation which supports its position. (Doc. No. 253 at 4.) *2 The plaintiff argues in opposition that the subpoena does not seek any privileged information or materials and that responding to the subpoena will not entail voluminous production of documents. (Doc. No. 270.) In his response, the plaintiff concedes the requested records “that would disclose the categories of information are already public records ... The paper records are in the Court's files and are also accessible electronically through Pacer.” (Doc. No. 270 at 6, ¶ 28.) Yet, the plaintiff contends it is impossible to retrieve the requested information from PACER without the names of the policemen named as defendants. (Doc. No. 270 at 6, n.3.) The plaintiff further argues that responding to the subpoena does not pose an undue burden on the City because the “City Comptroller could provide records of payment made to private practice lawyers and the cases they were hired in very, very easily.” (Doc. No. 270 at 6, ¶ 31.)[3] Finally, at oral argument, the plaintiff argued two cases which he claims are in support of his position: Doe v. Cabrera, 139 F. Supp. 3d 472 (D.D.C. 2015) and Cheeves v. Southern Clays, Inc., 797 F. Supp. 1570 (M.D. Ga. 1992).[4] “For purposes of discovery, a party may subpoena information from a [party] to litigation, but Federal Rule of Civil Procedure 45 protects the subpoena recipient by requiring the issuer to ‘take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena’ and by setting out several mandatory and discretionary grounds for quashing a subpoena.” Jordan v. Comm'r, Mississippi Dep't of Corr., 947 F.3d 1322, 1329 (11th Cir.), cert. denied sub nom. Jordan v. Georgia Dep't of Corr., 141 S. Ct. 251, 208 L. Ed. 2d 25 (2020) (quoting Fed. R. Civ. P. 45(d)(1), (3)). Rule 45(d)(3)(A) provides the court must quash or modify a subpoena on timely motion, if the subpoena “(i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical time 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.” Fed. R. Civ. P. 45(d)(3)(A). “The party seeking to quash a subpoena bears the burden of establishing at least one of the requirements articulated under Rule 45(d)(3).” Malibu Media, LLC v. Doe, No. 8:14-CV-2351-T-36AEP, 2015 WL 574274, at *3 (M.D. Fla. Feb. 11, 2015). Here, the undersigned finds that requiring the City to comply with the subpoena would impose an undue burden under the circumstances. The undue burden analysis requires the court to “balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it.” ... Several factors have been identified as pertinent to the analysis, including the “relevance of the information requested” to the underlying litigation and the “burden [that would be] imposed” by producing it..... Jordan v. Comm'r, Mississippi Dep't of Corrections, 947 F.3d 1322, 1337 (11th Cir. 2020) (internal citations omitted). The undersigned finds that the interests served by quashing the subpoena clearly and greatly outweigh the interests served by enforcing it. The burden to produce the documents should not fall on the City when, as the plaintiff concedes, the requested information is publicly available. The plaintiff contends he needs the names of the defendant policemen to locate the requested information on PACER, but conceded at oral argument that he had not considered searching for the information by using the name of the attorney at issue. Because the plaintiff can obtain the requested information by other means which are less burdensome on the City, the subpoena is due to be quashed. See United States v. Dean Foods Co., 2011 WL 9161, *1 (E.D. Wis. Jan. 3, 2011) (“[A] district court has discretion to modify or quash a subpoena if it seeks discovery that is ‘unreasonably cumulative or duplicative, or is obtainable from other source that is more convenient, less burdensome, or less expensive....”). *3 In addition, the cases upon which the plaintiff rely to support his position are not wholly favorable to the plaintiff. In Doe v. Cabrera, 139 F. Supp. 3d 472 (D.D.C. 2015) and Cheeves v. Southern Clays, Inc., 797 F. Supp. 1570 (M.D. Ga. 1992), both courts noted that a required factor for enforcing the subpoenas at issue was that the “information [sought] is not obtainable from some other source that is more convenient.” Cabrera, 139 F. Supp. 3d at 478 (citation omitted); Cheeves, 797 F. Supp. at 1580, n.17. It is undisputed here that the information sought is obtainable from some other source that is more convenient, to wit: the publicly available sources of PACER, any public legal database, and court records. Placing the burden on the City to obtain the information that is publicly available and which spans a decade constitutes an undue burden. Accordingly, the court must quash the subpoena under Rule 45(d)(3)(A)(iv).[5] For the foregoing reasons, it is hereby ORDERED that the Motion to Quash Subpoena (Doc. No. 253) is GRANTED. DONE this 17th day of May, 2022. Footnotes [1] (See Doc. No. 270 at 3, ¶ 15.) The plaintiff moved for the recusal of Chief Judge Marks arguing that the City Attorney hired one of its private practice attorneys because of the attorney's allegedly “very close professional working relationship” with Chief Judge Marks. (Doc. No. 263). Chief Judge Marks denied the motion for recusal prior to the oral argument for the motion to quash. (Doc. No. 293.) At oral argument, the City argued that the subpoena is moot due to the denial of the recusal motion. The plaintiff disagreed and argued that the documents sought can be used to support a motion to reconsider or to challenge the issue on appeal. The undersigned agrees with the plaintiff and hence will address the merits of the motion to quash. See Doe v. Cabrera, 139 F. Supp. 3d 472, 478 (D.D.C. 2015) (finding denial of recusal motion “did not render the discovery dispute moot” and “it is the duty of this Court to assemble a meaningful and complete record in the event of appellate review”). [2] In its supplemental reply filed after oral argument, the City appears to shy away from its prior relevancy argument. (See Doc. No. 303) (“Defendant would submit that it has not argued that the Federal Rules of Civil Procedure, in essence, ‘prevent the party seeking recusal from trying to engage in discovery incident to a recusal motion’ ”). Notably, some courts have found that discovery of a recusal issue is relevant under Rule 26(b). See, e.g., Cheeves v. Southern Clays, Inc., 797 F. Supp. 1570, 1580 (M.D. Ga. 1992) (concluding “the discovery mechanisms of the Federal Rules of Civil Procedure would be available in an appropriate case to a party who contemplates filing a motion for disqualification of the presiding judge pursuant to 28 U.S.C. §§ 144 or 455(a)”); Cobell v. Norton, 237 F. Supp. 2d 71, 101 n. 26 (D.D.C. 2003) (discovery is appropriate to gather “admissible evidence in support of a pending or contemplated motion for disqualification”). The City has provided no case law establishing the contrary and, based upon its supplemental reply, the undersigned finds the City has abandoned its relevancy argument. [3] The plaintiff contends the motion to quash should be denied because the City did not attempt to confer prior to filing the motion. (Doc. No. 270 at 3.) However, the plaintiff appears to mistakenly apply the good faith conference certification requirement from Federal Rule of Civil Procedure 26(c)(1) (motion for protective order) and Federal Rule of Civil Procedure 37(a)(1) (motion to compel) to this Rule 45(d)(1) motion to quash. (See Docs. No. 92, 171.) [4] The plaintiff did not cite these cases in his response in opposition to the motion to quash so the undersigned afforded the City an opportunity to file a brief addressing these cases after oral argument. (See Doc. No. 292.) [5] See also Fed. R. Civ. P. 26(b)(2)(C) mandates that the court “limit the frequency or extent of discovery otherwise allowed ... if it determines that: (I) the discovery sought ... can be obtained from some other source that is more convenient, less burdensome, or less expensive; ... or (iii) the burden or expense of the proposed discovery outweighs its likely benefit,” considering, among other factors, “the needs of the case” and “the importance of the discovery in resolving the issues.”