Opinion
CONSOLIDATED CASE NO. 3:17-cv-00301-SDD-RLB
08-27-2020
CYNTHIA JARRELL Plaintiff, v. WRIGHT NATIONAL FLOOD INSURANCE COMPANY, Defendant.
CONSOLIDATED WITH AND PERTAINS TO:
17-cv-00772-SDD-RLB Adams, et al. v. Wright National Flood Insurance Company 17-cv-00735-SDD-RLB Aiken, et al. v. Wright National Flood Insurance Company 17-cv-00709-SDD-RLB Allen, et al. v. Wright National Flood Insurance Company 17-cv-00805-SDD-RLB Anderson, et al. v. Wright National Flood Insurance Company 17-cv-01381-SDD-RLB Barclay v. Wright National Flood Insurance Company 17-cv-01123-SDD-RLB Barnes v. Wright National Flood Insurance Company 17-cv-00715-SDD-RLB Barney, et al. v. Wright National Flood Insurance Company 17-cv-01553-SDD-RLB Beysselance, et al. v. Wright National Flood Insurance Company 17-cv-00796-SDD-RLB Blackard, et al. v. Wright National Flood Insurance Company 17-cv-00722-SDD-RLB Bond v. Wright National Flood Insurance Company 17-cv-00782-SDD-RLB Broussard, et al. v. Wright National Flood Insurance Company 17-cv-01367-SDD-RLB Brown v. Wright National Flood Insurance Company 17-cv-00789-SDD-RLB Bryant, et al. v. Wright National Flood Insurance Company 17-cv-00707-SDD-RLB Casselberry, et al. v. Wright National Flood Insurance Company 17-cv-01343-SDD-RLB Chehl, et al. v. Wright National Flood Insurance Company 17-cv-01369-SDD-RLB Clardy v. Wright National Flood Insurance Company 17-cv-00737-SDD-RLB Coleman, et al. v. Wright National Flood Insurance Company 17-cv-00769-SDD-RLB Cothern v. Wright National Flood Insurance Company 17-cv-01500-SDD-RLB Courtney, et al. v. Wright National Flood Insurance Company 17-cv-00806-SDD-RLB Curtis-Pea v. Wright National Flood Insurance Company 17-cv-00761-SDD-RLB Daniels v. Wright National Flood Insurance Company 17-cv-00800-SDD-RLB Dedon, et al. v. Wright National Flood Insurance Company 17-cv-00705-SDD-RLB Diaz, et al. v. Wright National Flood Insurance Company 17-cv-00909-SDD-RLB Dyer v. Wright National Flood Insurance Company 17-cv-00716-SDD-RLB Ford, Sr. v. Wright National Flood Insurance Company 17-cv-00741-SDD-RLB Fortenberry, et al. v. Wright National Flood Insurance Company 17-cv-00751-SDD-RLB French, et al. v. Wright National Flood Insurance Company 17-cv-00728-SDD-RLB Garcia, et al. v. Wright National Flood Insurance Company 17-cv-00748-SDD-RLB Hall, et al. v. Wright National Flood Insurance Company 17-cv-01651-SDD-RLB Harris, et al. v. Wright National Flood Insurance Company 17-cv-01330-SDD-RLB Harrison, et al. v. Wright National Flood Insurance Company 17-cv-00758-SDD-RLB Harrison v. Wright National Flood Insurance Company 17-cv-00753-SDD-RLB Herbert v. Wright National Flood Insurance Company 17-cv-00746-SDD-RLB Jacobs v. Wright National Flood Insurance Company 17-cv-00734-SDD-RLB Kanada v. Wright National Flood Insurance Company 17-cv-00791-SDD-RLB Karajulles-Taylor v. Wright National Flood Insurance Company 17-cv-01122-SDD-RLB Laird v. Wright National Flood Insurance Company 17-cv-00712-SDD-RLB Larry v. Wright National Flood Insurance Company 17-cv-00804-SDD-RLB Lathers v. Wright National Flood Insurance Company 17-cv-00745-SDD-RLB Lee v. Wright National Flood Insurance Company 17-cv-00713-SDD-RLB Leleu v. Wright National Flood Insurance Company 17-cv-00738-SDD-RLB Lemons, et al. v. Wright National Flood Insurance Company 17-cv-00750-SDD-RLB Lyles, et al. v. Wright National Flood Insurance Company 17-cv-00766-SDD-RLB McCutcheon, Jr. v. Wright National Flood Insurance Company 17-cv-01647-SDD-RLB McDaniel v. Wright National Flood Insurance Company 17-cv-00799-SDD-RLB McDaniel, et al. v. Wright National Flood Insurance Company 17-cv-00794-SDD-RLB Mellion, et al. v. Wright National Flood Insurance Company 17-cv-01596-SDD-RLB Meyer, et al. v. Wright National Flood Insurance Company 17-cv-01339-SDD-RLB Meyers, et al. v. Wright National Flood Insurance Company 17-cv-00778-SDD-RLB Mitchell, et al. v. Wright National Flood Insurance Company 17-cv-00729-SDD-RLB Morris v. Wright National Flood Insurance Company 17-cv-00739-SDD-RLB Morris v. Wright National Flood Insurance Company 17-cv-01121-SDD-RLB Motichek, et al. v. Wright National Flood Insurance Company 17-cv-00754-SDD-RLB Neal v. Wright National Flood Insurance Company 17-cv-00704-SDD-RLB O'Conner, et al. v. Wright National Flood Insurance Company 17-cv-01366-SDD-RLB P and N Enterprises v. Wright National Flood Insurance Company 17-cv-00802-SDD-RLB Pace, et al. v. Wright National Flood Insurance Company 17-cv-01591-SDD-RLB Padial v. Wright National Flood Insurance Company 17-cv-01575-SDD-RLB Plantation Car Wash v. Wright National Flood Insurance Company 17-cv-01410-SDD-RLB Porche, et al. v. Wright National Flood Insurance Company 17-cv-00718-SDD-RLB Porter, et al. v. Wright National Flood Insurance Company 17-cv-00786-SDD-RLB Reid, et al. v. Wright National Flood Insurance Company 17-cv-01574-SDD-RLB Richardson v. Wright National Flood Insurance Company 17-cv-00755-SDD-RLB Robinson v. Wright National Flood Insurance Company 17-cv-00752-SDD-RLB Ruiz v. Wright National Flood Insurance Company 17-cv-00714-SDD-RLB Sagona v. Wright National Flood Insurance Company 17-cv-00733-SDD-RLB Scott v. Wright National Flood Insurance Company 17-cv-01124-SDD-RLB Sibley v. Wright National Flood Insurance Company 17-cv-01052-SDD-RLB Smith, et al. v. Wright National Flood Insurance Company 17-cv-01556-SDD-RLB Smith v. Wright National Flood Insurance Company 17-cv-01348-SDD-RLB Southern v. Wright National Flood Insurance Company 17-cv-00767-SDD-RLB Spears v. Wright National Flood Insurance Company 17-cv-01341-SDD-RLB Spencer v. Wright National Flood Insurance Company 17-cv-00759-SDD-RLB St. Angelo, Jr. v. Wright National Flood Insurance Company 17-cv-01532-SDD-RLB Stewart, et al. v. Wright National Flood Insurance Company 17-cv-00798-SDD-RLB Tate, et al. v. Wright National Flood Insurance Company 17-cv-00787-SDD-RLB Tureau, et al. v. Wright National Flood Insurance Company 17-cv-00749-SDD-RLB Ward v. Wright National Flood Insurance Company 17-cv-00756-SDD-RLB White, et al. v. Wright National Flood Insurance Company 17-cv-00784-SDD-RLB Winnfield v. Wright National Flood Insurance Company 17-cv-00762-SDD-RLB Young v. Wright National Flood Insurance Company ORDER
Before the Court is the Motion to Quash Subpoenas Issued to ATA Consulting, LLC filed by Plaintiffs on May 29, 2020. (R. Doc. 145). The Motion is Opposed. (R. Doc. 148). The Court notes at the outset that it has resolved several other disputes regarding the discovery at issue and some others remain pending. It is not clear if this issue - whether the Court would permit subpoenas issued to ATA Consulting, LLC - is even still in dispute.
Plaintiffs seek to quash subpoenas issued by Defendant to ATA Consulting, LLC, a third party to this litigation. Parties have limited standing to quash subpoenas served on non-parties pursuant to Rule 45. See Frazier v. RadioShack Corp., No. 10-855, 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012) ("[A] plaintiff cannot challenge a Rule 45 subpoena directed to a third party on the basis that it violates another person's privacy rights . . ., that the subpoena is overly broad, or that the subpoena seeks information that is irrelevant because only the responding third party can object and seek to quash a Rule 45 subpoena on those grounds."). Nevertheless, a party has standing to move for a protective order pursuant to Rule 26(c) seeking to limit the scope of discovery, even if the party does not have standing pursuant to Rule 45(d) to bring a motion to quash a third-party subpoena. Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240 n. 2 (E.D. Va. 2012); Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005); Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005). "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). Rule 26(c)'s "good cause" requirement indicates that the party seeking a protective order has the burden "to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
Plaintiffs' argument is that the subpoenas issued to ATA Consulting, LLC should be quashed because they "seek documents related to non-retained experts more than three months after the close of non-expert discovery." (R. Doc. 145 at 5). Plaintiffs represent that their retained expert is Tommy Tomkins of ATA Consulting, LLC, but that ATA Consulting, LLC itself is not a retained expert, such that the subpoenas issued to ATA Consulting, LLC constitute untimely and inappropriate fact discovery. (R. Doc. 145 at 6). Citing to excerpts of the Tomkins deposition and expert reports, Defendant highlights various purportedly inconsistent statements, and suggests that the subpoenas issued to ATA Consulting, LLC are intended to be a vehicle toward clarity surrounding the expert designation and reports. Defendant suggests that the subpoenas seek essentially two categories of information: (1) information regarding the estimate relied upon by Tomkins; and (2) financial information regarding the retention of Tomkins and purportedly ATA Consulting, LLC as an expert. (R. Doc. 148 at 15).
The Court granted Defendant's request to extend the expert and dispositive motion deadlines to August 31 and September 30, 2020, respectively, by way of Order dated July 2, 2020. (R. Doc. 151). This Court's July 2, 2020 Order references and adopts the July 2, 2020 Order in Robert ("Bobby") and Tina Annison v. Metropolitan Property and Casualty Insurance Company, Case No. 3:17-cv-1629-SDD-EWD (Entry No. 57) (hereinafter, the "Annison Order"). Therein, the lack of clarity with regard to the identity of Plaintiffs' retained expert was noted, specifically citing Plaintiffs' designation of Tommy Tomkins juxtaposed with Tomkins's report stating that ATA Consulting, LLC was retained. (Annison Order, p. 12).
Further, the Annison Order, adopted in this docket, contemplates the extension of the expert and dispositive motion deadlines in order to seek discovery from ATA Consulting, LLC and/or Austin Tanner to fully understand the Tomkins expert report and any remaining issues. Therein, we stated that, "[o]ther than discovery directed to and/or a deposition of Tanner/ATA, there appears to be no way for Defendant to obtain the photographs (or determine whether they still exist), much less determine whether the photographs do, in fact, support Tomkins's opinions expressed in his Report. Given this, it appears that modifications to the Scheduling Order requested by Defendant are critically important to Defendant and its ability to defend the Action." (Annison Order, p. 14) (emphasis added). We also made a finding of exceptional circumstances to depose Tanner, while explicitly not dictating the method which Defendant may use to obtain the expert discovery it seeks. (Annison Order, pp. 16-17).
While the focus of the Annison Order is on the photographs Defendant seeks in connection with Tomkins's expert report, the reasoning therein is applicable here. Defendant has established good cause for the discovery directed to ATA. Plaintiff has not raised with the Court any objection to any specific request contained in the subpoenas on any grounds other than the suggestion of general untimeliness as fact discovery. Because the Court finds this argument without merit, the Court finds it appropriate to deny Plaintiffs' Motion to Quash.
The Court notes that there is a corresponding Motion to Compel filed by Defendant in Alabama and transferred to this Court in Wright National Flood Insurance Company v. ATA Consulting, LLC, Case No. 3:20-mc-00078-SDD-RLB, raising substantive issues and objections, which objections are being addressed by way of separate order. --------
Based on the foregoing,
IT IS ORDERED that the Motion to Quash Subpoenas Issued to ATA Consulting, LLC (R. Doc. 145) filed by Plaintiffs on May 29, 2020 is DENIED.
IT IS FURTHER ORDERED that the deadline for the subpoenas issued by Defendant, Wright National Flood Insurance Company, shall be fourteen (14) days from the date of this Order.
Signed in Baton Rouge, Louisiana, on August 27, 2020.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE