United States District Court, D. Idaho
In re Matter of 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 (9th 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
(9th 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 ...