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ZooBuh, Inc. v. Better Broadcasting, LLC

United States District Court, D. Utah, Central Division

August 21, 2017

ZooBuh, Inc., a Utah corporation, Plaintiff,
Better Broadcasting, LLC, a Utah limited liability company; IONO Interactive, a company doing business in Utah; Does 1-40, Defendants.

          David Nuffer District Judge.


          Brooke C. Wells United States Magistrate Judge.

         Before the court is non-party EMServe LLC's Motion for Protective Order.[1] EMServe objects to a subpoena issued to Wells Fargo Bank by Plaintiff Zoobuh, Inc. As set forth below the court will deny the motion.[2]


         In May 2013 judgement was entered in favor of Zoobuh and against Defendants Better Broadcasting, LLC and IONO Interactive for $1, 608, 360.[3] 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.


         Federal Rule of Civil Procedure 69(a)(2) provides that a judgment creditor “may obtain discovery from any person”[4] 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 rules.

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 debtor.”[5]

         This 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.'”[6]

         Before 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 subpoena.”[7]

         In U.S. v. Continental Bank & Trust Co.[8] 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.”[9] 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 . . . .”[10] 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.[11]

         Other courts have rejected similar arguments as those made by EMServe regarding undue burden, [12] relevancy[13] and over breadth[14] 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.[15] 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.[16]


         IT IS ...

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