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City of Orem v. Evanston Insurance Co.

United States District Court, D. Utah, Central Division

August 29, 2017

CITY OF OREM and JAMES LAURET, Plaintiffs,
v.
EVANSTON INSURANCE COMPANY, Defendant.

          District Judge Jill N. Parrish

          MEMORANDUM DECISION AND ORDER DENYING DEFENDANT EVANSTON INSURANCE COMPANY'S SHORT FORM MOTION TO QUASH SUBPOENA

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE

         District 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).[1] 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).

         BACKGROUND

         On June 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.

         For 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.

         DISCUSSION

         Evanston's 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.

         Rule 34 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.

         Evanston's 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 noticeā€ on the party pursuant to ...


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