United States District Court, D. Utah, Central Division
District Judge Jill N. Parrish
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT
EVANSTON INSURANCE COMPANY'S SHORT FORM MOTION TO QUASH
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE
Judge Jill N. Parrish Chief Magistrate Judge Paul M. Warner
District Judge Jill N. Parrish referred this matter to Chief
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Defendant Evanston
Insurance Company's Short Form Discovery Motion to Quash
Subpoena (the “Motion”). Having reviewed the
parties' briefs and the relevant law, the court renders
the following Memorandum Decision and Order. Pursuant to
civil rule 7-1(f) of the Rules of Practice for the United
States District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will
determine the motion on the basis of the written memoranda.
See DUCivR 7-1(f).
20, 2017, City of Orem and James Lauret (collectively
“Plaintiffs”) served on Burns and Wilcox, a
non-party, a subpoena requesting Evanston Insurance
Company's (“Evanston”) underwriting
guidelines (the “Subpoena”). Evanston essentially
makes three arguments in support of the Motion. First,
Evanston argues that the Subpoena improperly
“circumvents” Fed.R.Civ.P. 34 by seeking
documents from a non-party, instead of through a discovery
request to Evanston. Second, Evanston argues that the
Subpoena should be quashed because it seeks
“confidential and proprietary” documents.
Finally, Evanston argues that the Subpoena was untimely and
did not allow for adequate time to comply.
their part, Plaintiffs argue that the underwriting guidelines
are relevant and although they concede that service of the
Subpoena to Evanston was technically untimely, Evanston is
not prejudiced by the untimely service.
first argument in support of the Motion's request to
quash the Subpoena is that Plaintiffs may not subpoena a
non-party to produce a document that it did not request from
a party under Rule 34. This is not the rule.
provides that “[a] party may serve on any
party a request within the scope of Rule 26(b) . . . to
produce . . . items in the responding party's possession,
custody, or control” including documents and tangible
things. Fed.R.Civ.P. 34(a) (emphasis added). Although Rule 34
permits a party to request production of documents in the
responding party's possession, custody, or control,
Plaintiffs are not prevented from obtaining such documents
from a non-party also in possession of them. Indeed,
“there is more than one way to skin the discovery cat-
getting at needed information through so many different
modes, whether document requests, interrogatories,
depositions, third party subpoenas, or requests for
admission, to name but a few . . .” Regan-Touhy v.
Walgreen Co., 526 F.3d 641, 647 (10th Cir. 2008)
(emphasis added). The court rejects Evanston's argument
that the Subpoena “circumvents” Rule 34, and
declines to quash the Subpoena on that basis.
timeliness arguments are equally unpersuasive. Evanston
contends that the Subpoena was untimely because it was served
on Evanston the same day it was served on Burns and Wilcox,
and because it was served ten days prior to the close of
discovery and should therefore be quashed. Evanston argues
that this untimeliness has deprived Burns and Wilcox of a
reasonable time to comply, and deprived Evanston of the
notice to which it is entitled.
Pursuant to Fed.R.Civ.P. 45(d)(3)(A), the court
must quash or modify a subpoena that: (i) fails to allow a
reasonable time to comply; (ii) requires a person to comply
beyond the geographical limits specified in Rule 45(c); (iii)
requires disclosure of privileged or other protected matter,
if no exception or waiver applies; or (iv) subjects a person
to undue burden.
DUCivR 45-1 provides that a “subpoena may not be served
upon the nonparty until four
(4) days after the service of the notice” on the party
pursuant to ...