JULIE A. SU, Acting Secretary of Labor, United States Department of Labor, Plaintiff, v. TOSH PORK, LLC, and DIANNA ROSA, Defendants No. 1:24-cv-01038-STA-jay United States District Court, W.D. Tennessee, Eastern Division Filed October 15, 2024 York, Jon A., United States Magistrate Judge ORDER On May 10, 2024, Movants, Ms. Ma Concepcion Cazares Franco and Mr. Carlos Alberto Almaras Villegas, filed a Motion to Quash or Modify Subpoenas and for a Protective Order. (Docket Entry “D.E.” 35.) The U.S. District Court Judge subsequently referred the Motion to the Undersigned Magistrate Judge for determination. (D.E. 54). Plaintiffs filed their Response in Opposition to the Motion and a Supplement to the Response on May 31, 2024. (D.E. 39; D.E. 40.) Movants subsequently provided a Reply on June 18, 2024. (D.E. 46.) Defendants filed their Surreply on July 3, 2024. (D.E. 52.) For the reasons set forth below, the Motion to Quash or Modify Subpoenas and for a Protective Order is GRANTED in part and DENIED in part. I. BACKGROUND A. Factual Background Plaintiff Julie A. Su, the Acting Secretary of Labor, United States Department of Labor brought this cause of action against Tosh Pork, LLC and Dianna Rosa (“Defendants”) seeking to enjoin and restrain the Defendants from retaliating against employees of Tosh Pork, LLC under the antiretaliation provision of the Fair Labor Standards Act (“FLSA”). (Docket Entry “D.E.” 1.) The Complaint alleges that Defendants retaliated against the Movants, Ms. Franco and Mr. Villegas. (Id. 1–2.) The Department of Labor cites three incidents of purported retaliation in the Complaint: verbal retaliation in the form of heightened and unwarranted criticism against Mr. Villegas, threats of termination to both Movants, and the discovery of a severed pig's head in Mr. Villegas work area. (Id. at 2.) Considering the potential spoliation of relevant cellular phone data held by the Movants, the Court issued a preservation instruction at the April 3, 2024, TRO/Preliminary Injunction Hearing to “preserve any videos or text messages or emails that relate to the events that occurred, according to his testimony, on January 23rd of 2024.” (D.E. 26 at 73.) Following the hearing, Defendants served the Movants with a subpoena to produce documents. (See D.E. 35-1.) Relevant here, Defendants seek production of the following: REQUEST NO. 1: A complete, electronic copy of your cellular telephone. Regarding this request, please contact Tosh Pork management to immediately schedule a time to obtain the same. REQUEST NO. 2: All communications involving the Department of Labor, including any attorney, investigator, and/or other agent for the Department of Labor, including emails, text messages, WhatsApp communications, and letters. REQUEST NO. 3: All documents that you provided to the Department of Labor, including any attorney, investigator, and/or other agent for the Department of Labor. REQUEST NO. 4: All documents that you received from the Department of Labor, including any attorney, investigator, and/or other agent for the Department of Labor. REQUEST NO. 5: All photographs and videos in their original, native form provided by you to the Department of Labor, including any attorney, investigator, and/or other agent for the Department of Labor. [ ] REQUEST NO. 7: All communications with any Tosh Pork employee regarding overtime wages, including emails, text messages, WhatsApp communications, and letters. REQUEST NO. 8: All communications with any Tosh Pork employee regarding wages or benefits, including emails, text messages, WhatsApp communications, and letters. [ ] REQUEST NO. 11: All communications with any person and/or agency, other than the Department of Labor, relating to wages, benefits, and/or working conditions at Tosh Pork. REQUEST NO. 12: All documents that you provided to any person and/or agency, other than the Department of Labor, relating to wages, benefits, and/or working conditions at Tosh Pork. REQUEST NO. 13: All documents that you received from any person and/or agency, other than the Department of Labor, relating to wages, benefits, and/or working conditions at Tosh Pork. (Id. at 6–9.) The Movants object to the scope, burden, and content of these requests (the “Requests”). (See generally D.E. 35.) As the Court sees it, there is clearly relevant data possessed by the Movants that necessitates production and preservation to some degree, (see D.E. 26 at 71–73.); however, there are significant disagreements as to the scope, breadth, and burdens created by compliance with the challenged Requests. B. Position of Movants and Defendants Movants seek an order quashing or modifying the above quoted Requests, a protective order to prevent further oppression and undue burden, and—should the Court deny the Motion—an award of costs for compliance. (D.E. 35 at 2–3; 18.) Defendants' response does not address the protective order request, but Defendants claim that Movants failed to provide sufficient evidence or good cause to shift the costs of producing records in compliance with the Requests. (D.E. 39 at 17–18.) 1. Request 1 As to Request 1, the Movants allege that the request for electronic copies of their phones is vague, unsubstantiated, and overbroad. (D.E. 35 at 7–8.) Furthermore, the Movants claim that the Defendants' request is based on mere skepticism. (Id. at 9.) The Movants note that absent evidence of spoliation, the intrusive request must be quashed. (Id. at 10.) They claim an undue burden would be placed on them by needing to turn over entire cell phones with “a vast amount of personal, highly sensitive, and confidential information.” (Id. at 11.) From the Movants' perspective, all relevant information contained in the cell phones can and will be turned over, but an entire digital footprint of their cell phones goes beyond the scope of relevancy. (Id.) Movants also object to a proposed third-party custodian, as sensitive “personal and private information” will be “exposed” outside their control. (Id.) In summary, the probative value of the entire copy of Movants' cell phone data would be far outweighed by the inherent privacy concerns regarding that data. (Id.) Defendants claim that Request 1 only seeks the preservation of the cell phone data, not production of the cell phone data. (D.E. 39 at 7.) As such, the privacy concerns are irrelevant because no data will be produced until a court order requires production. (Id.) Defendants state that the Movants are key witnesses necessary to formulate a defense. (Id. at 7–8.) Because Defendants only seek preservation, not production, they claim the objections on grounds of vagueness or overbreadth are moot. (Id. at 8–9.) Preservation is purportedly necessary because there exist “legitimate concern[s] that” the Movants' relevant phone data will be destroyed through either intentional acts or unavailability. (Id. at 9.) Accompanying their Response, Defendants filed a supplement alleging alteration or destruction of critical data, including photographs and videos related to the pig's head incident. (D.E. 40.) In the Reply, Movants note that the alleged evidence of spoliation in the supplement is insufficient and inaccurate. (D.E. 46 at 5–7.) Movants further contend that “a forensic image of a personal electronic device is a per se invasion of privacy,” evidencing the need to quash Request 1. (Id. at 5.) In their Surreply, Defendants rebut the claim of per se privacy violations and reassert the need for preservation of the Movants' cell phone data. (See Generally D.E. 52.) 2. Requests 2–5 As to Requests 2 through 5, Movants allege that the requests are both overbroad and sought from an improper source. (D.E. 35 at 12.) Movants state that Defendants must seek the information from a “more convenient source” because “numerous courts have quashed subpoenas issued to non-parties when the requesting” party could obtain the information from another party to the case. (Id. at 12.) Because “Defendants have not demonstrated that” the Movants are the sole custodians of the information sought, the Movants believe that “Defendants must first direct their requests to Plaintiff.” (Id.) Defendants claim that the Movants' position will “impose a new standard under the Federal Rules of Civil Procedure.” (D.E. 39 at 11–12.) Although the “Plaintiff likely possesses some of the documentation sought,” the Defendants contend they may request production from the Movants to “confirm the accuracy” of the records produced by the Plaintiffs. (Id.) As to the allegation of overbreadth, Defendants hold the position that the Movants failed to show good cause that production of the requested information would create an undue burden. (Id. at 12–13.) Defendants are receptive to limiting the scope of requested information from April 2021 to present. (Id. at 13.) Movants assert that they have not proposed a “new standard,” but instead are using the standard used by this Court in similar cases. (D.E. 46 at 7–8 (citing Raymond James & Assoc., Inc. v. 50 N. Front St., TN, LLC, No 18-cv-2104-JTF-tmp, 2018 WL 6528192, at *1 (W.D. Tenn. Sept 10, 2018).) Under the Movants' reading of the caselaw, the Defendants' failure to establish that the information cannot be obtained from a more convenient source is an insufficient basis for shifting the burden of producing information onto a non-party. (Id.) 3. Requests 7 and 8 Movants claim that Requests 7 and 8 are overbroad, seek information that the Defendants may purportedly acquire from their own agents and employees, and protected by Tennessee's marital communications privilege. (D.E. 35 at 13–16.) Nevertheless, Movants “intend to produce the documents responsive to” Requests 7 and 8 that are “proportional to the needs of the litigation.” (Id. at 16.) Defendants dispute that the Federal Rules of Civil Procedure require them to obtain the records from a party before seeking them from a non-party. (D.E. 39 at 13.) Furthermore, the Requests seek relevant information, and the Movants did not provide a reasonable basis for failing to produce the information sought. (Id. at 13–15.) Defendants are nonetheless agreeable that information related to “in-network health providers, reimbursements for co-pays, [and] questions to coworkers about the scope of coverage for various benefits plans” do not need to be produced. (Id. at 15.) The Defendants express doubts of the applicability of the marital privilege in the case, and request that Movants “log responsive documents that are protected from production by privilege.” (Id.) In their Reply, Movants reassert the claim of overbreadth. (D.E. 46 at 8–9.) Specifically, the request for all communications far exceeds the scope of litigation. (Id.) Furthermore, production of the requested information would necessarily require production of communications protected by attorney-client privilege and marital privilege. (Id. at 9.) Movants also conclude that the requests may “have a chilling effect on employees' ability to engage in protected activity.” (Id. at 9.) Defendants object to this argument, stating that new arguments may not be raised for the first time on reply. (D.E. 52 at 1, 3.) 4. Requests 11–13 Movants claim that Requests 11, 12, and 13 raise the same concerns as those in Requests 7 and 8; specifically, the Requests “impose undue burdens on Nonparties because they are overbroad, not relevant to the parties' claims or defenses, and are not proportional to the needs of the litigation.” (D.E. 35 at 16.) Movants are particularly concerned with the breadth of the request for “any written communication” with “any person, at any time since April 2021, regarding wages, benefits, or conditions of work,” which may include communications regarding insurance coverage, financial transactions, tax filings, and property leases. (Id. at 16–17.) Defendants reaffirm that the request is not overbroad but agree that communications related to “in-network health providers, reimbursements for co-pays, [and] questions to coworkers about the scope of coverage for various benefits plans” do not need to be produced. (D.E. 46 at 16.) Movants reassert their claim of overbreadth and incorporate their concerns that production would have a chilling effect. (D.E. 46 at 9.) II. LEGAL STANDARD Federal Rule of Civil Procedure 26(b) provides that the scope of discovery includes any “nonprivileged matter that is relevant to any party's claim or defense” so long as it is “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The “operative test” is “whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence.” Conti v. Am. Axle and Mfg., Inc., 326 Fed. Appx. 900, 904 (6th Cir. 2009) (internal quotations omitted). Under the Federal Rules of Civil Procedure, a court must quash or modify subpoenas that “requires disclosure of privileged or other protected matter, if no exception or waiver applies,” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(iii), (iv). Rules 33 and 34 of the Federal Rules of Civil Procedure require more than boilerplate objections to discovery requests. Jones v. Am. River Transp. Co., No. 2:19-cv-2558-SHM-tmp, 2020 WL 7865326, at *2 (W.D. Tenn. 2020 June 17, 2020) (internal citations omitted). In short, merely claiming that a request is an “undue burden” or “overly broad” will not suffice as an actual objection as these terms are not “self-proving.” Neale v. Coloplast Corp., No. 1:18-cv-00274-TRM-SKL, 2020 WL 6948361, *2 (E.D. Tenn. Nov. 2, 2020) (internal citations omitted). When sufficiently pleaded, an undue burden can be identified by factors such as “relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” In re: Mod. Plastics Corp., 890 F.3d 244, at 251 (citing Am. Elec. Power Co., Inc. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999)). The Sixth Circuit recognizes that non-party status is a factor as well. Id. As to non-parties, this Court has held that “to determine whether production poses an undue burden, the court should consider the burden placed on the producing party, as well as the necessity of the information for the party seeking production, and whether the information can be obtained from more convenient sources.” Allen v. Howmedica Leibinger, GmhH, 190 F.R.D. 518, 525 (W.D. Tenn. 1999). Numerous courts, including this one, “have quashed subpoenas issued to non-parties when the requesting party” could obtain the relevant documents from other parties to the litigation. See Raymond James & Assoc., Inc, v. 50 N. Front St. TN, LLC, 18-cv-2104-JTF-tmp, 2018 WL 6528192, at *1 (W.D. Tenn. Sept. 10, 2018) (citing five cases which quashed subpoenas on similar grounds). The Sixth Circuit has provided the following considerations for compelling forensic examination, given the “significant privacy and confidentiality concerns” with access to electronic data. John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008). The first consideration is caution: if the request is “unduly vague or unsubstantiated in nature” or too “broad in nature” given the nexus between the electronic devices and the claims raised, the court should deny the forensic analysis request. John B., 531 F.3d at 459-60 (internal quotations omitted). Second, “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” Id. at 460. Finally, a court “must consider the significant interests implicated by forensic imaging before ordering such procedures.” Id. For example, when the computer data is likely to contain confidential or “private personal information that is wholly unrelated to the litigation,” the court must account for the risk of improper exposure of that information; however, privacy concerns are not dispositive. Id. at 459-61. A district court may grant a protective order which prevents production of discovery material to protect an entity from “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The moving party carries the burden of showing good cause for protection from the harms found in Rule 26(c)(1). In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016). If “specific prejudice or harm will result from the absence of a protective order,” then good cause exists. Id. (internal quotations omitted). III. ANALYSIS A. Request 1 Request 1 seeks “A complete, electronic copy of [Movants'] cellular telephone[s].” (D.E. 35-1 at 6.) The Court finds that the privacy interests of the Movants is highly relevant to determining whether the request is unduly burdensome and proportionate to the needs of the case. Many courts have placed weight on the privacy issues concerning requests to inspect or make copies of personal electronic devices. Henson v. Turn, Inc., No. 15-cv-01497-JSW (LB), 2018 WL 5281629, at *5 (N.D. Cal. October 22, 2018) (collecting cases). The Movants' status as a non-party is also critical, as the data will undoubtedly contain swaths of highly private information that is wholly irrelevant to the case. However, Defendants propose a protocol for collecting and preserving the information on the Movants' cell phones without unduly impeding on their privacy. While Movants object to a proposed third-party custodian, they provide little basis for their objection beyond generalized claims of privacy violations and concern for risk of improper disclosure. While Movants allege that the relevant information sought in the digital data may be obtained through less intrusive means, Defendants provide a good-faith argument that the information they have received from the Movants' thus far is insufficient. (See D.E. 35 at 9–10 (citing Corum v. Wensley, No. 22-CV-241, 2023 WL 6192728, at *4 (E.D. Tenn. July 19, 2023); Etherton v. Serv. First Logistics, Inc., No. 17-CV-10341, 2018 WL 1558858, at *2 (E.D. Mich. Jan. 22, 2018)); D.E. 39 at 9–10.) Furthermore, Defendants have gone on the record affirming that they have reasonable belief that the videos and communications contained on the Movants' cell phone devices will contradict testimony provided by the Movants. (See D.E. 26 at 72–73; D.E. 40.) Goetz supports the Movants' notion that Court should only require “mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature.” 531 F.3d at 460. However, by Movants own admission, the WhatsApp messages, photographs, and videos contained on the Movant's cell phones are necessarily central to the retaliation claim stemming from the pig's head incident. (D.E. 35 at 8.) While this Court would be reluctant to order production of the forensic digital copies of the Movants' cell phones based upon the reasonable belief that the critical data may be altered or destroyed, this Court is less hesitant considering Defendants' request for preservation. Given the good-faith concerns expressed by the Defendants over the potential for accidental destruction or alteration of critical data, this Court finds it appropriate to require the parties to agree to conditions that ensure the preservation of the Movants' cell phone data. The Court also recognizes there will be a high volume of irrelevant and highly personal data contained in the cell phone data along with the critical evidence related to the retaliation claims; therefore, providing “a specific prejudice or harm” necessary to establish good cause for a protective order. In re Ohio Execution Protocol Litig., 845 F.3d at 236. As such, the Court ORDERS the parties to submit a joint protective order within fourteen (14) days of this order, providing for the preservation of complete, electronic copies of the Movants' cellular telephones. The joint protective order must be drafted such that the contents of the electronic copies will be exclusively held by and examined by a mutually agreed upon third-party custodian. The third-party custodian should be granted authority to produce communications and documents necessary and proportionate to the litigation upon subsequent order from the Court. Any documents, communications, or records produced by the custodian in the course of litigation are to remain confidential. All records that may be subject to production by a subsequent order from the Court will be examined through in camera review prior to production. Lastly, the Defendants will bear the costs associated with (1) securing the third-party custodian, (2) preserving the data with that custodian, and (3) producing any materials from the preserved data. B. Requests 2–5 Requests 2–5 seek communications, documents, photographs, and videos exchanged between the Movants and the Department of Labor. As seen in Raymond James, a subpoena with “broad scope” that seeks information from a non-party may be quashed when the opportunity “to obtain the same documents” from a party exists. 2018 WL 6528192, at *2. Here, Requests 2–5 broadly seek all communications, documents, photographs, and videos involving agents from the Department of Labor. Defendants attempt to differentiate their claim from Raymond James, where a Defendant's objection on a motion to quash failed because it “provided no basis” for why the records could not be received from a party to the litigation. (D.E. 39 at 11–12.) Defendants' basis for why the records could not be received from the Plaintiff is that Requests 2–5 include “documents and communications exchanged with third parties and Tosh Pork employees.” (Id.) However, third party documents and communications are not sought in Requests 2–5, as seen by their plain language. (D.E. 35-1 at 2–3.) In fact, Requests 7–8 and 11–13 specifically cover the “communications exchanged with third parties and Tosh Pork employees” that Defendants now claim Requests 2–5 cover. (Id. at 3–4.) Upon review, Requests 2–5 apply exclusively to documents and communications with the Department of Labor, not any third party. The Court finds the Defendant's argument to be as compelling as the rejected argument seen in Raymond James. 2018 WL 6528192 at * 2 (“While [Defendant] argues it cannot obtain the subpoenaed documents from any other source, it offers no basis for the contention.”). Defendants can obtain all communications, documents, photographs, and videos “involving,” “provided to,” and “received from” the attorneys, investigators, and agents of the Department of Labor directly from their party opponent, the Acting Secretary of Labor of the Department of Labor. While Defendants claim they “have a right to confirm the accuracy that all the records are produced by Plaintiff,” they provide no basis for why they doubt Plaintiff will meet their evidentiary duties. (D.E. 39 at 11–12.) Thus, the Court finds that “the broad scope of the subpoena coupled with [Movant's] non-party status and the ability to obtain the documents from [Plaintiff],” requires an order GRANTING the Motion to Quash Requests 2–5. See Raymond James 2018 WL 6528192, at *2. C. Requests 7–8 The Court finds that Defendants' request that the Movants produce “[a]ll communications with any Tosh Pork employee regarding overtime wages, [wages, and benefits], including emails, text messages, WhatsApp communications, and letters,” is not overly broad, unduly burdensome, or disproportionate to the needs of this case. The Court also incorporates Defendants limitation that “in-network health providers, reimbursements for co-pays, [and] questions to coworkers about the scope of coverage for various benefits plans need not be produced.” (D.E. 39 at 15.) Any objection based on marital privilege should be logged in responsive documents. Addressing the Movants' concerns over the chilling effect of producing such communications, the parties are instructed to include in their proposed joint protective order a clause requiring produced communications under Requests 7 and 8 to remain confidential, for attorneys' eyes only. As such, Movants' Motion to Quash these Requests is DENIED. Defendants must bear the costs of producing such records, as the non-party Movants should be protected from the expenses they may incur in the collection and production of such communications. See Fed. R. Civ. P. 45(d)(2)(B)(ii). D. Requests 11–13 The Court finds that Defendants' request that Movants produce “[a]ll communications with [and documents provided or received from] with any person and/or agency, other than the Department of Labor, relating to wages, benefits, and/or working conditions at Tosh Pork” is not overly broad, unduly burdensome, or disproportionate to the needs of this case. The Court also incorporates Defendants limitation that “in-network health providers, reimbursements for co-pays, [and] questions to coworkers about the scope of coverage for various benefits plans need not be produced.” Addressing the Movants' concerns over the chilling effect of producing such communications, the parties are instructed to include in their proposed joint protective order a clause requiring produced communications under Requests 11 through 13 to remain confidential, for attorneys' eyes only. As such, Movants' Motion to Quash these Requests is DENIED. Defendants must bear the costs of producing such records, as the non-party Movants should be protected from the expenses they may incur in the collection and production of such communications. See Fed. R. Civ. P. 45(d)(2)(B)(ii). IV. CONCLUSION For the foregoing reasons, the Motion to Quash or Modify Subpoenas and for a Protective Order is GRANTED in part and DENIED in part. The parties are ordered to submit a Joint Protective Order to the undersigned's ECF mailbox within fourteen (14) days of entry of this Order. If the parties are unable to agree upon the contents and form of a Joint Protective Order, the parties are Ordered to file their respective proposed protective orders. IT IS SO ORDERED this the 15th day of October, 2024.