United States District Court, D. Idaho
THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff,
CLEARWATER PAPER CORPORATION, Defendant.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
This is a whistleblower case brought under Section 11(c) of the Occupational Safety and Health Act of 1970 ("Section 11(c)") by the Secretary of Labor against the Clearwater Paper Corporation. Clearwater owns and operates a saw mill located in Lewiston, Idaho. The government alleges that Clearwater retaliated against Anthony Tenny, the Complainant and a former saw mill employee, because Tenny complained that red cedar dust at the mill presented health, combustibility, and operational hazards.
On January 22, 2015, after providing notice and allowing the government to object, Clearwater served Tenny in this matter with a Subpoena Duces Tecum ("January Subpoena") demanding two categories of documents:
1. All Documents and/or ESI related to communications and/or correspondence by and between Strindberg Scholnick, including, but not limited to, Erika Birch, and the U.S. Department of Labor, including, but not limited to, Donna F. Bond, pertaining to the subject lawsuit or matters underlying the litigation herein, through the present.
2. All Documents and/or ESI related to communications and/or correspondence by and between Strindberg Scholnick, including, but not limited to, Erika Birch, and anyone outside of Strindberg Scholnick related to this Lawsuit, excluding any privileged communications with Anthony Tenny.
January Subpoena, Attachment 7 to Bond Decl., Dkt. 25-7.
The government moves to quash the subpoena, arguing that (1) the subpoena is untimely, and (2) the information sought is protected by the common-interest privilege.
The Court will quash Clearwater's subpoena for a number of reasons. First, it is untimely. "Case law establishes that subpoenas under Rule 45 are discovery, and must be utilized within the time period permitted for discovery in a case." Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999) (Third party subpoena for documents served after the discovery cut-off was improper attempt to circumvent court's deadline). The discovery deadline expired on January 2, 2015; Clearwater issued this subpoena two weeks after the deadline, on January 22, 2015. Thus, Clearwater failed to issue the subpoena within the discovery timeline, and it is therefore untimely and must be quashed.
Clearwater argues that "this argument is nonsensical given that the parties are still engaged in discovery even though discovery technically closed January 2, 2015." Def's Opening Br. at 4, Dkt. 24. But the government agreed - at Clearwater's request - to extend discovery for purposes of the 30(b)(6) deposition of Clearwater only because Clearwater was not available for any of the dates the government proposed within the discovery period for the 30(b)(6) deposition. Bond Decl. ¶ 13, Dkt. 25-1. At no time did any party propose taking any deposition or initiating any discovery other than the government's proposed 30(b)(6) of Clearwater outside of the discovery period. Id. ¶ 11. The government should not be penalized for acceding to Clearwater's request to extend the discovery period for purposes of the 30(b)(6) deposition.
2. Common-Interest Privilege
Even if the subpoena had been issued before the discovery deadline, the Court finds that the common-interest privilege applies - at least with respect to the communications among the Department of ...