United States District Court, D. Utah, Central Division
Nuffer District Judge.
MEMORANDUM DECISION AND ORDER
C. Wells United States Magistrate Judge.
the court is non-party EMServe LLC's Motion for
Protective Order. EMServe objects to a subpoena issued to
Wells Fargo Bank by Plaintiff Zoobuh, Inc. As set forth below
the court will deny the motion.
2013 judgement was entered in favor of Zoobuh and against
Defendants Better Broadcasting, LLC and IONO Interactive for
$1, 608, 360. Some time passed before Zoobuh sought to
collect on the judgment. Zoobuh then issued subpoenas to
different respective parties seeking to collect on the
judgment. Among these subpoenas is one issued to Wells Fargo
bank. Wells Fargo does not contest the subpoena but EMServe
brings the instant motion for a protective order.
Rule of Civil Procedure 69(a)(2) provides that a
judgment creditor “may obtain discovery from any
person” including but not limited to the judgment
debtor, in accordance with the Federal Rules or the state
rules where a court is located. A recent decision from this
court addressed the scope of Rule 69 under the discovery
The rules governing discovery “are to be accorded a
broad and liberal treatment.” This is true whether the
discovery is part of pretrial or post judgment proceedings.
The purpose of post judgment discovery is “to learn
information relevant to the existence or transfer of the
judgment debtor's assets.” Thus, when supplemental
proceedings are “an attempt to discover assets by which
to satisfy its judgment, plaintiff is entitled to a very
thorough examination of the judgment debtor.” This
thorough examination includes third parties. Indeed,
“there is no doubt that third parties can be examined
in relation to the financial affairs” of a judgment
subpoena served on Wells Fargo requests “'all bank
account records for the period beginning September 1, 2010
and ending September 1, 2013, including without limitation
all account statements, all checks (back and front) and all
deposit records, for each and every account belonging to or
in the name of EMServe, LLC.'”
turning to the merits of EMServe's objections the court
must first consider whether EMServe has standing.
“Generally, a party does not have standing to object to
a subpoena issued to a third party, unless the party
challenging the subpoena has a personal right or privilege
with respect to the subject matter sought by the
U.S. v. Continental Bank & Trust
Co. the Tenth Circuit concluded that the bank,
which was contesting a summons requesting a customer's
deposits and cancelled checks drawn on their account, had no
expectation of privacy in the bank account records. Relevant
here, even the customer, i.e. the account holder, had
“no proprietary interest in the bank's
records.” With no “bank-depositor
privilege” the records were not restricted and the
court stated a customer is “not entitled even to notice
of the proposed examination of the bank's records . . .
.” This precedent seriously calls into
question EMServe's standing to contest the subpoena.
EMServe, however, seeks to distinguish such precedent and the
“personal right or privilege” requirement by
arguing that it is not seeking “that the subpoena be
quashed pursuant to Rule 45, but rather has argued that there
are certain different protections offered under Rule
26” that warrant a protective order.
courts have rejected similar arguments as those made by
EMServe regarding undue burden,  relevancy and over
breadth when a third party has sought to quash a
subpoena. Even if the court presumes Rule 26 protections do
not fall within a similar analysis, the court is still not
persuaded by EMServe's arguments. First, there is an
adequate nexus between EMServe and others such as MSupport
and Ryan Poelman to warrant the discovery especially at the
broad initial stages of discovery. Second, EMServe has failed
to demonstrate “annoyance, embarrassment, oppression or
undue burden or expense. and finally, the requested discovery
is not outside the scope permitted by the Federal Rules. The
subpoena is limited in time and the court finds it is
proportional to the needs of the case.