In re Deposition Subpoena Served on Evan Rainwater

          MEMORANDUM DECISION AND ORDER RE: MOTION TO QUASH DEPOSITION SUBPOENA (DOCKET NO. 1)

          Ronald E. Bush Chief U.S. Magistrate Judge

         Pending before the Court is Evan Rainwater's Motion to Quash Deposition Subpoena (Docket No. 1). This Motion has been referred to the undersigned for decision by the Honorable Edward J. Lodge. Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         BACKGROUND

         Winn-Dixie sued the Defendants (dairy cooperatives and a federation of dairy cooperatives) in the United States District Court for the Middle District of Florida for their alleged violation of the Sherman Act. Winn-Dixie claims that Defendants inflated the price of raw milk by operating a program - the Herd Retirement Program (the “HRP”) - that subsidized the sale of dairy herds into the beef market between 2003 and 2010, a step which reduced the No. of milk cows and therefore also reduced the amount of raw milk. Winn-Dixie alleges damages from having to pay higher negotiated premiums for raw milk than it would have paid absent the HRP. In response, Defendants assert that the HRP was widely publicized within the dairy industry and the general public throughout its existence. Winn-Dixie disputes this, denying that its employees were ever aware of the HRP.

         To help substantiate their defenses, Defendants issued a subpoena (to give testimony and produce documents) to Evan Rainwater. Mr. Rainwater currently resides in Idaho, where he works in upper management for Albertsons, Inc.^[1] However, he was Winn-Dixie's Vice President of Manufacturing from 2002 through 2005 and, according to Defendants, was responsible for Winn-Dixie's raw milk purchases that form the basis of a significant portion of the $21 million damages (potentially trebled) that Winn-Dixie seeks from Defendants.

         Mr. Rainwater says he knows nothing of relevance about the facts underlying the lawsuit, and has provided a sworn declaration stating that he did not have discussions with any raw milk supplier regarding raw milk prices; did not negotiate prices of raw milk, nor any agreements for the supply of raw milk; and had never heard of the HRP before receiving the subpoena. Mr. Rainwater therefore believes that he should not have to appear for a deposition in such circumstances and has moved to quash Defendants' subpoena accordingly. He argues that (1) he has no information relevant to the underlying lawsuit and sitting for the deposition would cause an undue burden on him, and (2) Defendants failed to comply with the Middle District of Florida's Handbook on Civil Discovery Practice (the “Handbook”) when seeking to depose Mr. Rainwater.

         Defendants counter that they are entitled to probe Mr. Rainwater's knowledge (or claimed lack of knowledge) in light of the HRP's alleged well-documented history, ^[2] particularly given an alleged implausibly small production of documents by Winn-Dixie from the period Mr. Rainwater was employed there. Defendants also argue that the Handbook is neither binding in Florida, nor even applicable to subpoenas issued in Idaho, but that its requirements were nonetheless satisfied after Defendants supplied specific reasons for Mr. Rainwater's deposition in writing.

         ANALYSIS

         Federal Rule of Civil Procedure 45 governs discovery of non-parties by subpoena, providing, among other things, that a party may command a non-party to testify at a deposition and produce designated documents. See Fed.R.Civ.P. 45(a)(1)(A)(iii). The scope of discovery through a Rule 45 subpoena is the same as the scope of discovery permitted under Rule 26(b).^[3]See Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., 2016 WL 3162218, at *2 (N.D. 2016) (citing Fed.R.Civ.P. 45 Advisory Comm.'s Note (1970)). With this in mind, Rule 45 states that a Court must quash or modify a subpoena that “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iv).

         “The Ninth Circuit has long held that non-parties subject to discovery requests deserve extra protection from the courts.” Lemberg Law LLC v. Hussin, 2016 WL 3231300, at *5 (N.D. Cal. 2016); see also United States v. C.B.S., Inc., 666 F.2d 364, 371-72 (9^th Cir. 1982) (“Non- party witnesses are powerless to control the scope of litigation and discovery, and should not be forced to subsidize an unreasonable share of the costs of a litigation to which they are not a party.”). Courts in the Ninth Circuit - including this Court - have consequently held that, on a motion to quash a subpoena, the moving party has the burden of persuasion, but that the party issuing the subpoena must demonstrate that the discovery sought is relevant and material to the allegations and claims at issue in the proceedings. See Rocky Mountain Med. Mgmt., LLC v. LHP Hosp. Group, Inc., 2013 WL 6446704, at *3 (D. Idaho 2013) (citations omitted). “In all controverted cases, it is up to the court to strike a balance among the degree of relevance of the requested material, the severity of the burden on the subpoenaed person or entity, and the utility of the protective mechanisms provided by the Federal Rules.” Id. (citing 9A Fed. Prac. & Proc. Civ. § 2459 (3d ed. 2013)). Against this standard, for the reasons discussed below, Mr. Rainwater's arguments in favor of quashing Defendants' subpoena are not persuasive and, thus, his Motion to Quash Deposition Subpoena is denied.

         First, the information sought from Mr. Rainwater is unquestionably relevant in the context of the parties' claims and defenses in the underlying lawsuit. From 2002 to 2005, Mr. Rainwater oversaw Winn-Dixie's raw milk procurement and, because the underlying lawsuit involves Winn-Dixie's purchase of raw milk at higher prices during this time (allegedly because of the HRP administered by Defendants), it cannot be said that Mr. Rainwater's deposition amounts to an idle exercise. In short, the information Defendants seek via Mr. Rainwater's deposition is relevant. That Mr. Rainwater may not remember the particulars of Winn-Dixie's raw milk purchases generally or the existence of the HRP specifically, ^[4] does not change the fact that the information sought from him remains relevant and material to the parties' respective positions.^[5]

         Second, there is no dispute that submitting to a deposition, party or non-party, is burdensome on several levels - especially here, with Mr. Rainwater now an executive at Albertsons. But a burden alone is not enough to quash a subpoena; instead, Rule 45 requires that the burden be “undue” before a court must quash or modify a subpoena. See supra; see also U.S. v. $160, 066.98 from Bank of Am., 202 F.R.D. 624, 628 (9^th Cir. 2001) (“‘Undue' burden requires parties to show more than expense or difficulty.”). Here, the Court is satisfied that there is no intent on Defendants' part to harass or purposely inconvenience Mr. Rainwater by deposing him. To be sure, they are willing to conduct Mr. Rainwater's deposition in Idaho and, keeping in mind his work schedule, conduct the deposition at a time that is convenient to him. See 2/19/18 Ltr. from Defs.' Counsel to Rainwater, attached as Ex. 1 to Mem. in Supp. of Mot. to Quash (Docket No. 1-2) (“On behalf of the Defendants in the [underlying lawsuit], we look forward to working cooperatively with you and your counsel on matters of convenience, including finding a mutually agreeable date for your deposition if you are not available on the date we included in your subpoena.”). Thus, though a burden in the sense that any deposition represents an inconvenience to a busy professional, its severity in this instance does not rise to the level of being undue. Simply put, there is no indication that, by preparing for and attending his deposition, Mr. Rainwater cannot still tend to his current responsibilities at Albertsons - particularly if the deposition is more form than substance (and, hence, limited in scope and duration), owing to Mr. Rainwater's claimed lack of knowledge about the underlying lawsuit.

         Third, while it is true that Mr. Rainwater is a non-party witness to the underlying lawsuit, he was an integral employee with a former employer, Winn-Dixie, which is now pursuing multimillion-dollar claims against Defendants that relate, at least in organizational structure, to Mr. Rainwater's duties while at Winn-Dixie. So, it would seem that Mr. Rainwater's technical status as a non-party witness is therefore a “horse of a different color” when compared to those cases involving non-party witnesses whose conduct does not directly contribute to the issues at play. See, e.g., Rocky Mountain, 2013 WL 6446704 (D. Idaho 2013) (non-party surgical center that defendants believed plaintiffs accused them of unlawfully delaying vis à vis plaintiffs' interference with prospective economic advantage claim). As such, any “special weight” accorded to non-parties in those more-removed circumstances does not neatly or fully apply here.^[6]

         Fourth, Defendants' efforts before subpoenaing Mr. Rainwater are notable. That is, up until that point, Winn-Dixie had produced only 120 documents which, according to Defendants, “contain[ed] largely irrelevant information” and “le[ft] many unanswered questions with respect to the background facts that date back to a critical window of time during which Mr. Rainwater was a Vice President at Winn-Dixie.” Opp. to Mot. to Quash, pp. 5-6 (Docket No. 2). Further, the record reflects that Winn-Dixie has not identified (either by Rule 30(b)(6) designations, Rule 26(a)(1) disclosures, or within its written discovery responses to date) individuals with personal knowledge of the facts underlying Winn Dixie's allegations or, likewise, information germane to Defendants' defenses - including information relating to the topics on which ...