Stephen L. JOHNSON and Catherine Johnson, Plaintiffs, v. WERNER CO., also known as Werner Ladder Co., and Lowes Home Centers LLC, Defendants Civil Action No. 2:23-03573-BHH United States District Court, D. South Carolina, Charleston Division Signed November 14, 2024 Counsel Derek Devere Tarver, Ronnie L. Crosby, Parker Law Group LLP, Hampton, SC, Donald Jay Davis, Jr., Clement Rivers, Charleston, SC, for Plaintiffs. Jonathan E. Hall, Pro Hac Vice, Phelps Dunbar LLP, Raleigh, NC, William G. DesChamps, IV, Parker Poe Adams and Bernstein, Charleston, SC, for Defendants. Baker, Mary G., United States Magistrate Judge ORDER *1 Plaintiffs, through counsel, initially filed this civil action in state court. (Dkt. No. 1-1.) The case was removed to federal court on July 25, 2023. (Dkt. No. 1.) The Complaint alleges causes of action for product defect negligence, strict liability, and breach of warranty. (Dkt. No. 1-1.) This matter is currently before the Court on Defendant Werner's Motion to Quash and/or Motion for Protective Order (Dkt. No. 46), which was filed on October 11, 2024, and referred to the undersigned by the Honorable Bruce Howe Hendricks, United States District Judge, on November 6, 2024. (Dkt. No. 50). DISCUSSION Plaintiffs filed this civil action following a severe injury that Plaintiff Stephen Johnson (“Mr. Johnson”) suffered while using a “Werner 16FT Type II Aluminum D-Rung Extension Ladder, Model No.: D1216-2, Mk 21, Part No.: 100513-27,” which Plaintiffs claim was “designed, tested, manufactured, distributed, imported, and/or sold” by Defendant Werner. (Dkt. No. 1-1 at 4–5; see also Dkt. No. 24.) On August 16, 2024, Plaintiffs filed a Motion to Compel. (Dkt. No. 37.) In that motion, Plaintiffs alleged that Mr. Johnson was injured because “his Werner-brand ladder collapsed due to the ladder being ‘false locked’—i.e., the ladder's locking mechanism did not fully engage the rung, resulting in the ladder being in an unsecured extended position.” (Id. at 1.) Plaintiffs contended that “the design aspects of the ladder's locking mechanism created a tendency for the ladder to ‘false lock,’ rendering the ladder unreasonably dangerous and defective.” (Id. at 1–2.) Plaintiffs further asserted that “ ‘[f]alse lock’ is not a novel defect theory” and that “[o]ver the last thirty years, Werner has faced countless ‘false locking’ reports and lawsuits involving a variety of its extension ladder models.” (Id. at 2.) As such, Plaintiffs asked that the Court compel Defendant Werner to: “(i) identify all other complaints, reports, and lawsuits involving alleged incidents of ‘false locking’ in any Werner-brand extension ladder and (ii) to produce any and all documents and information related to those complaints, reports, and lawsuits ....” (Id. at 1.) The Court granted Plaintiffs’ Motion to Compel on October 10, 2024 and ordered Defendant Werner to supplement its discovery responses by October 25, 2024. (Dkt. No. 45.) More specifically, the Court ordered Defendant Werner to: (1) identify all complaints, reports, and lawsuits involving alleged incidents of “false locking” in any Werner-brand extension ladder occurring within the last thirty years, and (2) produce any and all documents and information related to the complaints, reports, and lawsuits for which it had responsive materials. (Id.) The following day, October 11, 2024, Defendant Werner filed the instant Motion to Quash and/or Motion for Protective Order regarding a subpoena Plaintiffs issued to a personal injury law firm in Philadelphia—Marciano Legal. (Dkt. Nos. 46, 46-1.) The subpoena at issue seeks deposition transcripts and expert reports from four cases involving Defendant Werner. (Dkt. No. 46-1 at 5.) According to Defendant Werner, Marciano Legal acted as plaintiff's counsel in each of the lawsuits. (Dkt. No. 46-2 at 2.) *2 In its motion, Defendant Werner seeks an order from this Court “quashing the subpoena issued by Plaintiffs to non-party Marciano Legal in this matter and/or for a protective order barring production of confidential and protected documents from unrelated previous litigation.” (Dkt. No. 46 at 1.) Plaintiffs responded to Defendant Werner's motion on October 25, 2024, asserting that “Werner's motion is unavailing, for several substantive and procedural deficiencies ....” (Dkt. No. 47 at 2.) For the reasons set forth in greater detail below, the undersigned agrees with Plaintiffs and finds that Defendant Werner's motion (Dkt. No. 46) should be DENIED. I. Legal Standard Federal district courts are vested with broad discretion in resolving discovery disputes, Erdmann v. Preferred Research, Inc., of Ga., 852 F.2d 788, 792 (4th Cir. 1988), and discovery under the Federal Rules of Civil Procedure “is broad in scope and freely permitted,” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir. 2003). The Federal Rules allow a party to subpoena a non-party during discovery for documents in the non-party's “possession, custody, or control.” See Fed. R. Civ. P. 34(c), 45(a)(1)(A)(iii), 45(a)(1)(C). Subpoenas issued to nonparties are governed by Rule 45 of the Federal Rules of Civil Procedure, which “adopts the standard codified in Rule 26” in determining what is discoverable. Schaaf v. SmithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 2005); see Fed. R. Civ. P. 45; Fed. R. Civ. P. 34(c) (“As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.”). Accordingly, a non-party subpoena may seek information “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). II. Analysis As noted, Defendant Werner takes issue with a subpoena Plaintiffs served on Marciano Legal. (Dkt. No. 46-2 at 1.) Defendant Werner contends that “[t]he subpoena served upon Marciano Legal impermissibly demands that Marciano Legal, a non-party, produce documents which are, upon information and belief, subject to confidentiality orders and/or confidentiality agreements in other matters, and therefore privileged and prohibited from disclosure.” (Id.) Defendant Werner further contends that “any information which Marciano Legal may have relating to the prior lawsuits at issue pertains to ladders which are materially different models from the ladder used by Mr. Johnson in the case at hand and is therefore irrelevant and outside the scope of discovery,” and that “Plaintiffs’ subpoena to Marciano Legal improperly circumvents the rules of discovery” because the subpoena requests information that Plaintiffs have already requested from Defendant Werner in their Requests for Production. (Id. at 1–3.) Plaintiffs retort that Defendant Werner's contentions lack merit. (See generally Dkt. No. 47.) Plaintiffs explain that “the Court has already found the materials Plaintiffs’ subpoena requested are relevant and discoverable” and that the subpoena therefore “fits squarely within the scope of permissible discovery.” (Id. at 2.) Plaintiffs further contend that “Werner's reassertion of its earlier argument that these materials are ‘irrelevant’ because the ladders are ‘different’ is a frivolous waste of the Court's time and resources and may run afoul of the standards imposed by Rule 11(b), Fed. R. Civ. P.” (Id.) Plaintiffs next assert that “Werner presents no evidence in support of its assertion” that the requested materials are subject to confidentiality orders or agreements. (Id. at 3.) According to Plaintiffs, “review of the public dockets ... reveals that there was never a confidentiality order entered in any of those cases” and “also reveals that at least one quarter of the documents Werner claims are ‘confidential,’ ... were filed in open court without any confidentiality designation.” (Id.) Plaintiffs further assert that “the rules of discovery permit Plaintiffs to obtain documents from a third party via subpoena [where, as here,] the opposing party's objections have been deemed meritless and the opposing party claims no longer to have the documents,” and that “Werner's motion is procedurally deficient because Werner filed it without complying with the meet-and-confer requirements of D.S.C. Local Civil Rule 7.02 and the Court's judicial preferences mandating a pre-filing conference with the Court on any discovery-related motions.” (Id. at 4.) Upon review, the undersigned agrees with Plaintiffs. *3 At the outset, Plaintiffs are correct that Defendant Werner has failed to comply with the meet-and-confer requirements of this Court's Local Rules and judicial preferences. The undersigned notes that Defendant Werner's motion could be denied on this basis alone. See Local Civil Rule 7.02 (D.S.C.) (requiring “all motions,” absent an enumerated exemption not applicable here, to “contain an affirmation by the movant's counsel that prior to filing the motion he ... conferred or attempted to confer with opposing counsel and attempted in good faith to resolve the matter contained in the motion”); see also Bishop of Charleston v. Adams, 584 F. Supp. 3d 131, 143 (D.S.C. 2022) (finding motion procedurally defective under Local Civil Rule 7.02, “warranting denial”) rev'd on other grounds, Bishop v. Adams, 2023 WL 4363654 (4th Cir. July 6, 2023); Williams v. Clement, No. 18-437, 2019 WL 1146682, at *6 (D.S.C. Mar. 13, 2019) (“A party's failure to comply with the Local Civil Rules is sufficient to deny his or her motion.”). What is more, this Court has already determined that the information sought from Marciano Legal is relevant and discoverable. (See generally Dkt. No. 45.) Defendant Werner's arguments to the contrary are unconvincing for the reasons set forth in the Court's October 10, 2024 Order resolving Plaintiffs’ Motion to Compel. (Id.) As for Defendant Werner's contentions that the requested materials are subject to confidentiality orders and/or agreements, Defendant Werner has presented the Court with no evidence that might support its contentions on this point. (See generally Dkt. Nos. 46, 46-1, 46-2, 46-3, 46-4, 46-5, 46-6.) By contrast, Plaintiffs have submitted full docket sheets for each of the cases at issue which do not reflect confidentiality orders or agreements that might limit Plaintiffs’ ability to access the documents requested from Marciano Legal. (See generally Dkt. Nos. 47-1, 47-2, 47-3, 47-4.) Further, the undersigned is persuaded by Plaintiffs’ contention that the subpoena at issue was not improper in light of Defendant Werner's previous disclosures regarding its document retention policies. (Dkt. No. 47 at 9.) As noted in the Court's October 10, 2024 Order, Defendant Werner claimed to have a five-year document retention policy that precluded production of certain relevant materials pertaining to previous complaints, reports, and lawsuits involving alleged incidents of “false locking” in its extension ladders. (Dkt. No. 45 at 12.) Thus, it is not unreasonable that Plaintiffs would seek information regarding prior lawsuits from a third party. Indeed, as Plaintiffs correctly note, “[a party] is permitted generally to request information from a third party, regardless of whether it has also been requested from [the opposing party], so long as it is not unreasonably duplicative ....” Peters v. Baltimore City Bd. of School Com'rs, No. WMN-13-3114, 2014 WL 4187307, at *4 (D. Md. Aug. 21, 2014) (denying motion to quash).[1] Ultimately, Defendant Werner bears the burden to show that Plaintiffs’ subpoena to Marciano Legal is improper. Sherrill v. DIO Transp., Inc., 317 F.R.D. 609, 612 (D.S.C. 2016) (citing HDSherer LLC v. Nat. Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013)) (“[T]he burden of proof is with the party objecting to the discovery to establish that the challenged production should not be permitted.”). Defendant Werner has failed to meet this burden, and its Motion to Quash and/or Motion for Protective Order (Dkt. No. 46) is therefore DENIED.[2] *4 IT IS SO ORDERED. Footnotes [1] As discussed in the Court's October 10, 2024 Order, Plaintiffs later discovered that Defendant Werner also has a fifty-year document retention policy for “Plaintiff's Expert Materials.” (Dkt. No. 45.) It appears that Plaintiffs became aware of this policy only after serving the subpoena on Marciano Legal. (Dkt. No. 47 at 2.) Regardless, the subpoena covers materials beyond what would have been retained by Defendant Werner pursuant to its “Plaintiff's Expert Materials” document retention policy. (Dkt. No. 46-1 at 5.) [2] The undersigned notes Plaintiffs’ contention that Defendant Werner's motion “runs afoul of the standards imposed by Rule 11(b), Fed. R. Civ. P.” and their request that Defendant Werner be ordered to show cause as to why it should not be sanctioned. (Dkt. No. 47 at 35.) While the undersigned recognizes that Defendant Werner's arguments lack merit, the undersigned finds that Defendant Werner's conduct does not rise to the level of sanctionable conduct and therefore declines to order Defendant Werner to show cause as to why it should not be sanctioned.