CARDINAL SQUARE, LLC, Plaintiff, v. QBE SPECIALTY INSURANCE COMPANY, Defendant. LG ELECTRONICS U.S.A., INC., SEA, LTD, Movants No. 1:23-cv-00114-JRS-MJD United States District Court, S.D. Indiana, Indianapolis Division Filed September 19, 2023 Counsel Jason R. Delk, Delk McNally LLP, Muncie, IN, Russ Campbell, Ryan Hodinka, Sean W. Shirley, Pro Hac Vice, Balch & Bingham LLP, Birmingham, AL, for Plaintiff. Bradford Schane Moyer, Pamela A. Paige, Plunkett Cooney, P.C., Indianapolis, IN, Danielle Rose Chidiac, Pro Hac Vice, Drew L. Block, Pro Hac Vice, Joshua LaBar, Pro Hac Vice, Kenneth C. Newa, Plunkett Cooney, PC, Bloomfield Hills, MI, J. Russ Campbell, Pro Hac Vice, Balch & Bingham LLP, Birmingham, AL, for Defendant. Dinsmore, Mark J., United States Magistrate Judge ORDER ON MOTIONS TO QUASH AND/OR FOR PROTECTIVE ORDER *1 This matter is before the Court on two motions, one filed by Non-Party LG Electronics U.S.A., Inc., (“LG”), [Dkt. 85], and the other filed by Non-Party SEA, LTD, (“SEA”) [Dkt. 86].[1] For the reasons and to the extent set forth below, the motions are GRANTED IN PART and DENIED IN PART. The motion for oral argument filed by LG and SEA, [Dkt. 100], is DENIED; the parties have had ample opportunity to present their arguments in their briefs. See Local Rule 7-5(d)(1) (“The court may ... deny a request for oral argument ... in its sole discretion.”). I. Background This action relates to HVAC units in two student housing apartment buildings in Muncie, Indiana. During the course of the construction of the buildings, in November 2013, Plaintiff contracted with Validated Custom Solutions (“VCS”) to purchase, install, and maintain the HVAC units. The units were manufactured by LG. In 2018, Plaintiff filed suit against VCS, LG, and others, alleging that the HVAC units did not function properly because they were improperly installed, improperly maintained, and/or subject to design or manufacturing issues. That case will hereinafter be referred to as the “Prior Litigation.”[2] The Prior Litigation eventually was resolved among the parties. Part of the resolution included the execution of a Confidentiality Agreement. In addition, while the case was pending in this court, a Protective Order was issued that included the following provision: Information that is produced or exchanged in the course of this action and designated [“Confidential”] under this Order may be used solely for the preparation of trial, trial, and any appeal of this action, as well as related settlement negotiations, and for no other purpose, without the written consent of the Designating Party.... No designated information may be disclosed to any person except in accordance with the terms of this Order absent written consent of the Designating Party or court order. All persons in possession of designated information agree to exercise reasonable care with regard to the custody, use, or storage of such information to ensure that its confidentiality is maintained. This obligation includes, but is not limited to, the Receiving Party providing to the Designating Party prompt notice of the receipt of any subpoena that seeks production or disclosure of designated information and consulting with the Designating Party before responding to the subpoena. Any use or disclosure of Confidential information in violation of the terms of this Order may subject the disclosing person or party to sanctions. [Dkt. 85-1 at 6.][3] *2 During the course of the Prior Litigation, LG retained a consulting expert, Peter McClellan from SEA. McCellan was never identified by LG as a testifying expert in the Prior Litigation. In the instant case, Plaintiff brings breach of contract and bad faith claims against its insurer, Defendant QBE Specialty Insurance Company, alleging that QBE has failed to provide coverage for damage to the HVAC units that was caused by lightning strikes in October 2020. II. The Subpoenas At issue in the instant motions are non-party subpoenas served by Defendant QBE on LG and SEA seeking the following: 1. Any and All Documents or Communications Relating to your retention by Cardinal Square or any other entity in connection with services or work provided at or for the Property, including but not limited to, Any and All retention contracts, fee schedules, and invoices for services rendered from 2014 to the present. 2. All Documents and Communications Relating to any work, services, repairs, replacements, inspections, or investigations you performed in connection with the HVAC System at the Property from 2014 to the present. 3. All Documents and Communications Relating to any work, services, repairs, replacements, inspections, or investigations you performed in connection with any Non-HVAC Items at the Property from 2014 to the present. 4. Any and All Documents and Communications Relating to any work, services, repairs, replacements, inspections, or investigations you performed in connection with the HVAC System at the Property specifically in response to or because of Lightning. 5. Any and All Documents and Communications Relating to any claims asserted, losses claimed, or damages alleged by Cardinal Square or any other entity in connection with any work, services, repairs, replacements, inspections, or investigations performed in connection with the Property. 6. Any and All Documents, Communications, pleadings, filings, and other Documents Relating to the [Prior Litigation]. 7. Any and All Documents and Communications Relating to any payments made to or settlements reached with Cardinal Square or any other entity in response to and/or to resolve in whole or in part any claims identified in Paragraph 5 and/or alleged in the [Prior Litigation]. 8. To the extent not encompassed by the foregoing, Your entire file, including but not limited to notes, draft and final reports, analysis, photographs, videos, invoices, maps, logs, and other Documents and Communications Relating in Any way to the performance of any work, services, repairs, replacements, inspections, or investigations performed in connection with the HVAC System at the Property. [Dkt. 85-2 at 10] (subpoena to LG); id. at 22 (virtually identical subpoena to SEA). LG and SEA (hereinafter collectively referred to as “the Movants”) now move to quash the subpoenas in their entirety. III. Discussion The Movants make various arguments in support of the instant motions, each of which is addressed, in turn, below. A. General Arguments The basis of the Movants’ arguments in support of the instant motions is that the parties to the Prior Litigation entered into a Confidentiality Agreement[4] in which they apparently agreed to designate a wide variety of documents “Confidential.”[5] Based on this designation, the Movants, relying on Centillion Data Systems, Inc. v. Ameritech Corp., 193 F.R.D. 550 (S.D. Ind. 1999), argue that “ ‘[o]nce the recipient of a discovery request moves for a protective order and shows that confidential information is sought, the burden is on the requester to show that the requested information is sufficiently relevant and necessary to outweigh the harm from disclosure of the confidential information’ ” and argue that QBE has failed to satisfy that burden. [Dkt. 85 at 8] (quoting Centillion, 193 F.R.D. at 552, and citing 8 Charles A. Wright and Richard L. Marcus, Federal Practice and Procedure § 2043, p. 559 (1994) (when a discovery target establishes the confidentiality of the requested information, the burden is on the requester to “ ‘establish that the information is sufficiently relevant and necessary to his case to outweigh the harm disclosure would cause....’ ”)). *3 The problem with that argument is that—with two exceptions[6]—the Movants have not even attempted to establish that the documents at issue are entitled to protection based on their content; they have merely stated that the parties to the Prior Litigation designated them as confidential. Federal Rule of Civil Procedure 45(d)(3)(A) requires the quashing of a subpoena that “requires disclosure of privileged or other protected material, if no exception or waiver applies.” The agreement of the parties to the Prior Litigation that they did not want certain documents to be discoverable in other cases does not make those documents “privileged” or “protected” for purposes of Rule 45; therefore, that agreement is not relevant to the question of whether those documents are discoverable. Cf. Meharg v. I-Flow Corp., No. 108CV0184-DFH-TAB, 2009 WL 3032327, at *5 (S.D. Ind. Sept. 18, 2009) (confidentiality provision in settlement agreement “is not protected by any legally recognized privilege”). Just as a client cannot invoke the attorney-client privilege and “refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney,” Upjohn Co. v. United States, 449 U.S. 383, 396 (1981), nor can the parties to a lawsuit protect otherwise discoverable documents from future disclosure simply by agreeing that they should be so protected. The Movants have simply not demonstrated that the documents sought in the subpoenas are privileged or protected such that quashing the subpoenas is appropriate. The Movants also make the general, unsupported statement that “the requested confidential information (and the terms of the Confidentiality Agreement itself), also contains sensitive commercial and financial information pertaining to [LG] and others.” [Dkt. 85 at 9.] While Rule 45(d)(3)(B)(i) permits the quashing of a subpoena that requires “disclosing a trade secret or other confidential research, development, or commercial information,” the Movants’ bare assertion that such information is at issue is not sufficient to invoke that provision. See Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and undeveloped arguments are waived.”). The Movants also argue generally that the “extremely broad” subpoenas “impose[ ] a burden on nonparties that is vastly disproportional to the needs of this case” and that QBE “has failed to carry its burden of establishing that any of the information it seeks has relevance to the pending litigation or that its requests are proportional to the needs of this case.” [Dkt. 85 at 12, 13.][7] However, the burden rests on the party resisting discovery to establish the undue burden of the discovery sought. In re Morning Song Bird Food Litig., 2018 WL 1948807, at *2 (S.D. Ind. Apr. 25, 2018) (citing United States ex rel. Robinson v. Ind. Univ. Health Inc., 2015 WL 3961221, at *5 (S.D. Ind. 2015) (“A party resisting discovery on the basis of undue burden must show with specificity that the discovery requests at issue are objectionable.”) (collecting cases)). “While nonparty status is a ‘significant factor’ in the proportionality analysis, nonparties still must demonstrate ‘significant expense’ before receiving protection from discovery.” Id. (citing Keaton v. Hannum, 2013 WL 4481889, at *1 (S.D. Ind. 2013)). Here, rather than monetary expense, the burden claimed by the Movants is the disclosure of confidential information. Again, however, with the exception of the issues discussed below, the Movants have simply not demonstrated that the information is protected or privileged. Therefore, the Movants have not supported their proportionality argument. B. The Settlement Agreement The Movants specifically object to producing the settlement agreement from the Prior Litigation. Because settlement agreements are often found to be protected from discovery, the Court will address that document separately. *4 The Movants argue that the settlement agreement should be protected from discovery, noting that “ ‘[b]ecause confidentiality of settlement agreements is a primary inducement to parties to settle cases, courts require a strong countervailing interest to breach that confidentiality.” [Dkt. 85 at 8] (quoting Centillion, 193 F.R.D. at 552). However, as Judge Hamilton recognized in Meharg, 2009 WL 3032327, at *5, settlement agreements are not automatically protected from disclosure. Here, as in Meharg, and unlike in Centillion, there is no “ongoing competitive relationship” between the party seeking disclosure and the party objecting to it. Id. The Movants articulate no way in which the disclosure of the settlement agreement in this case will cause them any competitive disadvantage or hinder settlements in the future. To the extent that public disclosure could cause the Movants such harm, that can be avoided by having the Movants execute the protective order in this case and producing the settlement agreement pursuant to that order. See [Dkt. 69]. The Court finds that here, as in Meharg, “[t]he reasoning of Centillon Data Systems does not extend to bar disclosure of the settlement agreement in this case.” Meharg, 2009 WL 3032327, at *5. LG also argues that it should not be required to produce the settlement agreement because QBE has not demonstrated that it cannot obtain that document from Plaintiff: The fact that QBE seeks to bring [LG] into its dispute with Cardinal Square and require [LG] to produce confidential information from the Prior Litigation, including the Confidentiality Agreement is legally improper and justifies an order quashing QBE's nonparty subpoena. Acuity v. Kerstiens Home & Designs, Inc., No. 1:16-cv02800-JMS-DLP, 2018 WL 3375015 (S.D. Ind. July 10, 2018) (“Even if the subpoena's request is relevant, the court can quash it if there is an easier way for the requesting party to obtain the information. Fed. R. Civ. P. 26(b)(2)(C)(i). A party's ability to obtain documents from a source with which it is litigating is a good reason to forbid it from burdening a non-party with production of those same documents.”) (emphasis added); see also Indiana Materials Processing, LLC v. Tire Waste Transport, LLC, Cause No. 1:15-MC-8, 2015 WL 1647461, **5-6 (N.D. Ind. April 14, 2015) (granting the movant's motion to quash a subpoena that requested confidential information, where the requesting party failed to make a “strong showing of need” to compel the disclosure of such information, because, among other things, the requesting party failed to convincingly explain why it could not obtain the requested documents from the parties to the litigation). [Dkt. 98 at 5.] However, the point of the cases cited by LG is that the ability to obtain the subpoenaed information from a party is relevant to the assessment of whether responding to the subpoena would be an undue burden on the non-party. There is virtually no burden involved in producing the settlement agreement—a single document—pursuant to a court order, so the fact that it may also be available from Plaintiff is not particularly relevant. That said, if, in fact, QBE has obtained the settlement agreement from Plaintiff or another source, QBE shall withdraw its request to obtain it from LG. In addition, the Court agrees with LG that it should not be required to produce the remainder of the documents sought in Topic 7 of the subpoena, which seeks “Any and All Documents and Communications Relating to any payments made to or settlements reached with Cardinal Square or any other entity in response to and/or to resolve in whole or in part any claims identified in Paragraph 5 and/or alleged in the [Prior Litigation].” [Dkt. 85-2 at 10] While LG's assertion that “all such communications and documents are barred from discovery by Fed. R. Evid. 408 and associated case law” is incorrect, see Meharg, 2009 WL 3032327, at *3 (“Rule 408 applies only to admissibility at trial, not to discovery.”),[8] the Court finds that, unlike the actual settlement that was reached, the communications related to settlement negotiations are simply not relevant to the claims or defenses in this case. Therefore, LG's obligation to respond to Topic 7 is limited to the settlement agreement itself. C. Materials from the Consulting Expert *5 Finally, the Movants object to producing documents relating to the work of LG's non-testifying expert, McClellan, arguing that they are protected work product pursuant to Federal Rule of Civil Procedure 26(b)(3)(A) and 26(b)(4)(D). They are not. By their express terms, these rules protect work product from production only when a party to a lawsuit seeks to obtain information from another party in the same lawsuit. See Webb v. Hendricks Cnty. Sheriff's Off., 2021 WL 3077925, at *3 (S.D. Ind. July 21, 2021) (“A third party who is neither a party to nor interested in the action may not assert the work product doctrine to protect its files or documents, even if the person is a party to a closely related lawsuit.”) (citing Galambus v. Consolidated Freightways Corp., 64 F.R.D. 468, 473 (N.D. Ind. 1974); Davis v. Carmel Clay Schools, 282 F.R.D. 201, 204-05 (S.D. Ind. 2012); 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2024, at 354): see also Walls v. Vasselli, 2022 WL 1004248, at *2 (N.D. Ill. Apr. 4, 2022) (“This Court and many others have held that non-parties may not invoke the work product doctrine to withhold documents sought via a Rule 45 subpoena.”) (citing Hill v. City of Chicago, 2015 WL 12844948, at *2 (N.D. Ill. May 28, 2015) (collecting cases)). That is not the case here. In their reply briefs, the Movants cite Bell v. Pension Comm. of ATH Holding Co., LLC, 2018 WL 7350951, at *8 (S.D. Ind. Aug. 16, 2018), for the proposition that work product protection can extend beyond that provided by Rule 26. In Bell, Judge Brookman noted that “[a] growing number of courts have recognized that the protection afforded by Hickman [v. Taylor, 329 U.S. 495 (1947)] extends beyond that of Fed. R. Civ. P. 26(b)(3).” Id. (citing In re Student Finance Corp., 2006 WL 3484387 (E.D. Pa. Nov. 29, 2006); Jean v. City of New York, 2010 WL 148420 (E.D.N.Y. Jan. 12, 2010); Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 699 (N.D. Ga. 2007); ASARCO, LLC v. Americas Mining Corp., 2007 WL 3504774 (D. Idaho 2007)). The Court does not disagree with the proposition that the work product protection recognized in Hickman might extend beyond that provided in Rule 26 under certain circumstances. But those circumstances are not present here. In each of the cases cited above, the party seeking to obtain the work product was adversarial in some way to the party seeking to prevent its production or, as in Jean, 2010 WL 148420, at * 3, otherwise “ha[d] a continuing interest in the matters in dispute here that provides a sufficient basis for protecting their work product.” No such continuing interest or adversarial relationship has been identified here. IV. Conclusion For the reasons set forth below, the motions to quash, [Dkt. 85 and 86], are GRANTED with respect to Topic 7, with the exception of the settlement agreement from the Prior Litigation, and DENIED in all other respects. That said, to the extent that any documents responsive to the subpoenas are protected by the attorney-client privilege, those documents may be withheld from production if a detailed privilege log is provided. The motion for oral argument, [Dkt. 100], is DENIED. The Movants shall respond fully and completely to the subpoenas, except for Topic 7 as set forth above, and serve any privilege log within 14 days of the date of this Order. SO ORDERED. Distribution: Service will be made electronically on all ECF-registered counsel of record via email generated by the Court's ECF system. Footnotes [1] The two motions are substantively identical, as are the briefs relating to them, with the exception of some issues that apply only to LG. For ease of reading, the Court will cite only to the briefs related to the motion filed by LG. [2] The Prior Litigation was filed in Kentucky state court, see Cardinal Square, LLC v. Envelop Group, LLC, et al., 18-CI-02870 (Jefferson, KY, Circuit Court), removed to the Western District of Kentucky, transferred to this court (under cause number 1:18-cv-03351-RLY-DLP), and then remanded to the original Kentucky state court for lack of subject matter jurisdiction when it was determined that complete diversity did not exist. [3] As QBE correctly points out in its response, the Protective Order entered in the Prior Litigation does not prohibit LG or SEA from producing any documents that LG or SEA itself designated as confidential. [Dkt. 92 at 7] (citing provision in Protective Order that reads “[r]egardless of any designations made hereunder, the Designating Party is not otherwise restricted from use or disclosure of its protected information outside of this action”). [4] The Movants have offered to provide the Confidentiality Agreement to the Court for an in camera review, but the Court does not find that to be necessary to resolve the instant motions. [5] The Movants state that the Confidentiality Agreement “defines information and documents produced in or related to the Prior Litigation as ‘Confidential Information’ ” and that “production or disclosure of such information would constitute a material breach of the agreement.” [Dkt. 85 at 5.] However, the Movants concede that the Confidentiality Agreement's prohibition on disclosure is “subject to certain limited exceptions, such as a court order compelling its production.” Id. Therefore, the Movants’ concern regarding violating the Confidentiality Agreement by producing the documents would be entirely mooted by the granting of this motion, which would constitute a court order compelling production, and thus that concern is simply not relevant to the issue of whether the subpoenas should be quashed. The same is true of the protective order that was entered in the Prior Litigation. [6] The exceptions are the settlement agreement from the Prior Litigation and discovery from the consulting expert, both of which are addressed below. [7] In their opening briefs, the Movants merely mention relevancy without analysis. They expand upon their relevancy arguments in their reply briefs. However, because the definition of relevance in the discovery context is very broad, “[r]elevance is not, on its own, a high bar.” Virginia Dep't of Corr. v. Jordan, 921 F.3d 180, 188 (4th Cir. 2019). The Court finds that QBE has satisfied this relatively low bar, with the exception of Topic 7, discussed below. [8] Neither of the cases cited by LG hold to the contrary. Centillion Data Systems, Inc., 193 F.R.D. at 552, noted that the party seeking discovery had not shown “how the information in the settlement agreement [was] reasonably calculated to lead to the discovery of admissible evidence” given Rule 408’s limits on the admissibility of settlement-related materials. LG cites to Heckler v. Koch, Inc. v. German Sport Guns GmbH, 2014 WL 533270 at *2 (S.D. Ind. February 7, 2014) as “[n]oting that ‘[s]ettlement negotiations encourage candor among participants so as to facilitate and promote settlement,’ and holding that, ‘[a]bsent an adequate reason to necessitate waiver, documents relating to settlement ... are privileged and production is thus denied.’ ” While the case is accurately quoted, the citation is highly misleading. The court in Heckler did not hold that documents relating to settlement are privileged because they relate to settlement; in fact, the court recognized that there was no such “recognized federal privilege.” Id. Rather, in Heckler the requested documents related to settlement were protected by the attorney-client privilege and work product doctrine; the court merely found that requesting party “failed to provide a basis for waiving such privileges” and therefore the documents were privileged and not discoverable. Id.