Opinion
No. 00-2334-KHV.
November 9, 2001
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff's Motion to Quash Subpoena and Notice of Deposition (doc. 122). More specifically, Plaintiff seeks to quash
• a subpoena issued to the law firm of Hovey, Williams, Timmons Collins ("Hovey, Williams") by Defendant Intervenor Nikitin ("Nikitin") commanding production of
• The file history of U.S. Patent No. 5,995,868 entitled, "System for the Prediction, Rapid detection, Warning, Prevention, or Control of Changes in Activity States in the Brain of a Subject" dated November 30, 1999.
• The file history of International Publication No. WO/26823, entitled "Systems for Prediction, Rapid Detection, Warning, Prevention or Control of Changes in Activity States in the Brain" dated July 31, 1997.
• A printout of Kyle Elliott's electronic file folders listing the clients Kyle Elliott represented and the matters he worked on during his tenure at Hovey, Williams.
• Any and all electronic time keeping records showing the work performed by Kyle Elliott and/or the number of hours Kyle Elliott worked on each matter during his tenure at Hovey, Williams.
(2) a deposition subpoena issued by Nikitin to Warren Williams ("Williams") of the Hovey, Williams law firm.
In support of its Motion to Quash, FHS states that compliance with the subpoenas necessarily would require Warren Williams and the Hovey, Williams law firm to disclose privileged and other protected confidential information of FHS. In response, Nikitin argues that Williams' testimony and the documents referenced in the subpoena duces tecum are relevant to the issues raised by FHS's October 3, 2001 Motion to Disqualify Blackwell Sanders. Nikitin further argues the documents at issue are not protected by the attorney-client privilege and that, even if the documents are protected from disclosure by the attorney-client privilege, such privilege has been waived: either explicitly by statute or implicitly by affirmatively placing the documents at issue in this case.
A review of facts material to the issues presented is not necessary given a summary of the relevant facts is set forth in a Memorandum and Order issued by the Court ruling on Nikitin's Motion to Compel and filed contemporaneously with this Memorandum and Order. ( See Doc. ___).
DISCUSSION
The Federal Rules of Civil Procedure provide that a court "shall quash or modify [a] subpoena if it . . . requires disclosure of privileged or other protected matter and no exception or waiver applies, or [if it] subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iii) and (iv). Moreover, and for good cause shown, the court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). Such orders may include completely prohibiting certain discovery or imposing a designated method by which discovery must be conducted. Fed.R.Civ.P. 26(c)(1) and (3). One seeking a protective order or to quash a subpoena carries the burden to show good cause and/or the right to be protected. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996).
• Subpoena Commanding Appearance of Warren Williams for Deposition
As noted above, FHS seeks to quash the deposition subpoena of Warren Williams on the grounds that compliance with the subpoena necessarily would require Warren Williams, as shareholder in a law firm retained by FHS, to disclose privileged and other protected confidential information of FHS or, in the alternative, that the information sought is neither relevant nor likely to lead to the discovery of admissible evidence. Nikitin disagrees, arguing that he will limit the scope of Williams' deposition testimony to a single meeting Williams had with Nikitin and Nikitin's then-attorney Frank Flink in May 2000 to discuss Hovey, Williams possibly representing Nikitin in the Douglas County lawsuit. Nikitin asserts this information is not privileged or confidential and that it is relevant because Williams allegedly stated in the May 20, 2000 meeting that neither Flint Hills Scientific, LLC nor FHS had been identified as a client of the Hovey, Williams firm pursuant to a conflict check run by the firm.
• Subpoena Duces Tecum Commanding Production of Documents
Upon consideration of the arguments of counsel, the Court finds the Motion to Quash Williams' deposition should be denied under the circumstances presented and Nikitin shall be permitted to depose Williams on the limited subject of the May 2000 meeting and the conflict check system utilized by Williams personally and the Hovey, Williams law firm during the relevant time period. If questions are posed by Nikitin at the deposition that seek information from Williams to which FHS feels it legitimately holds a privilege pursuant to the attorney-client privilege, FHS may lodge the appropriate objection and direct the witness not to answer.
FHS seeks to quash the document subpoena on grounds that compliance with the subpoena necessarily would require disclosure of privileged and other protected confidential information of FHS. In response, Nikitin argues (1) the documents requested within the subpoena are extremely relevant to the issue of disqualification; (2) the documents requested are not privileged; and (3) even if they were protected by the attorney-client privilege, such privilege has been waived: either explicitly by statute or implicitly by affirmatively placing the documents at issue in this case.
Although Hovey, Williams, as the entity to which the subpoena was directed, has not filed a Motion to Quash the subpoena at issue, the law firm did informally transmit its objections and a response to the subpoena on October 18, 2001. See Letter from Tom Luebbering to Floyd Finch, Exhibit 3 to Defendant Nikitin's Opposition to Plaintiff's Motion to Quash (doc. 133). In this letter, Hovey, Williams responds to the document requests set forth in the subpoena as follows:
1. No responsive documents exist. The entire file for U.S. Patnet No. 5,995,868 was transferred in March 1999 to Donald Schoonover who is now at Lathrop Gage. However, we do have a general file with attorney-client privileged communication related to this patent. We object to producing any attorney-client communications. We understand that copies of these privileged documents are in the possession of Scott Block and that he will be submitting them for in-camera review.
2. The application corresponding to International Publication No. WO-26823 published long ago and is now closed. Therefore, the entire file history is available for public inspection from WIPO. We do have a PCT file with attorney-client privleged communications related to his international application. We object to producing any attorney-client communications. We understand that copies of these privileged documents are in the possession of Scott Block and that he will be submitting them for in-camera review.
3. We searched our computer archives and located a document that appears to be the client list that Kyle Elliott said he prepared in 1999. We also located an archived copy of our old billing program that may contain Kyle's electronic timekeeping records. . . . The document also does not list Flint Hills, Mark Frei, Medtronic, the University of Kansas or Kansas University Medical Center Research Institute. The client list and the electronic timekeeping records contain attorney-client privileged information and attorney work product of many clients to his firm and confidential trade secrets of our firm. Moreover, your requests are overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.Id.
Given the information set forth by Tom Luebbering on behalf of the Hovey, Williams firm has not been disputed by any of the parties to this matter, the Court finds the Motion to Quash Subpoena Duces Tecum moot with respect to the first two categories of documents requested. Hovey, Williams represents that the documents requested are either (a) not in its possession; (b) public record; or (c) in its possession but also in the possession of FHS, who previously submitted them for in camera review by the Court. Notably, production of such documents are currently the subject of Nikitin's Motion to Compel and, given the directives issued by the Court with regard to such Motion, the Court finds it is more expedient to rule on discoverability of the documents in that context.
The Court next addresses the client list and the electronic timekeeping records at issue in the subpoena. As a preliminary matter, FHS fails to establish it has standing to quash the subpoena with respect to these last two categories of documents requested. "Generally speaking, a party does not have standing to quash a subpoena served on a third party." Johnson v. Gmeinder, 191 F.R.D. 638 (D.Kan. 2000) (citing Windsor v. Martindale, 175 F.R.D. 665, 668 (D.Colo. 1997)). "A motion to quash or modify a subpoena duces tecum may only be made by the party to whom the subpoena is directed except where the party seeking to challenge the subpoena has a personal right or privilege with respect to the subject matter requested in the subpoena." Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620 (D.Kan. 1999) (quoting Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D.Kan. 1995)). FHS makes no argument that it has a personal right to be protected or that the documents sought are privileged, especially given the Hovey, Williams firm has stated — and no party disputes — that neither FHS, Mark Frei, Medtronic, the University of Kansas and Kansas University Medical Center Research Institute appear in the documents as clients. Accordingly, the Motion to Quash will be denied as to these last two categories on the grounds that FHS does not have standing to quash. If Hovey, Williams still claims a privilege with regard to these last two categories of documents, it shall file any Motion to Quash by November 16, 2001.
CONCLUSION
Based upon the discussion above, it is hereby ordered that
• FHS's Motion to Quash Deposition Subpoena of Warren Williams is denied to the extent that Nikitin shall be permitted to depose Williams on the limited subject of the May 2000 meeting and the conflict check system utilized by Williams personally and the Hovey, Williams law firm during the relevant time period. If questions are posed by Nikitin at the deposition that seek information from Williams to which FHS feels it legitimately holds a privilege pursuant to the attorney-client privilege, FHS may lodge the appropriate objection and direct the witness not to answer.
• FHS's Motion to Quash Subpoena Duces Tecum is denied as moot with regard to the first two categories of documents listed and denied due to lack of standing on behalf of FHS for the last two categories of documents listed. If Hovey, Williams still claims a privilege with regard to these last two categories of documents, it shall file any Motion to Quash by November 16, 2001.
IT IS SO ORDERED.