Opinion
Civil Action No. 1:CV-01-2159
June 13, 2002
ORDER
Defendant Thurston Bell has filed two motions (docs. 18 and 29) to quash a subpoena duces tecum requested by the government, issued by the United States District Court of Northern California, and service on PayPal, a non-party to the present litigation. The Government read the motions to encompass matters beyond the scope of the subpoena, to include a motion for a more general protective order. The Court will address both motions together, and will examine whether Bell is entitled to an order quashing the subpoena, and whether Bell is entitled to a protective order.
Motion to Ouash
In support of his motion, Defendant states that "Plaintiff is using such subpoena for no other purpose but to obtain financial records of Defendant and to find more information concerning the individuals who have become members in Defendant's organization National Institute for Taxation Education." Mt. to Quash, p. 1. Federal Rule of Civil Procedure 45(c)(3)(A) provides that, "[o]n timely motion, the court by which a subpoena was issued shall quash or modify the subpoena" if the subpoena is beyond the permissible scope of a subpoena in a number of enumerated circumstances. As a preliminary matter, the motion to quash should have been brought before the court that issued the subpoena, the United States District Court of Northern California, and not the present Court.
Even if the Court had the ability to quash or modify a subpoena issued by a court in another jurisdiction, Plaintiff fails to establish grounds for such action. The subpoena was issued to PayPal, a non-party to the present dispute. While a court can quash a subpoena that "requires disclosure of privileged or other protected matter and no exception or waiver applies, Fed.R.Civ.P. 45(c)(3)(A)(iii), Bell cannot assert privilege on behalf of PayPal, and has not established any personal privilege with respect to the requested information. "A motion to quash or modify a subpoena duces tecum may only by 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." Inc., 189 F.R.D. 620 (D. Kan. 1999). Bell simply has not set forth sufficient facts to establish that the information sought by the subpoena is protected by any privilege maintained by him. He has not established that he has a constitutionally protected privacy right in the information sought, nor has he established any other privilege. Therefore, the motion to quash will be denied.
Motion for Protective Order
In so far as Defendant is requesting a protective order limiting the types of discovery permissible in the present matter, the Court will address the motion as if it were a motion for a protective order. Defendant argues that the Government intends to use the information it obtains from the subpoena and through discovery to harass NITE members, and that the information sought will not have any probative value for the issues under investigation in the present case. Federal Rule of Civil Procedure 26(c) allows a court to issue a protective order upon motion by a party or by the person from whom discovery is sought, for good cause shown. All West Pet Supply Co. v. Hill's Pet Prods. Division, Colgate Palmolive Co., 152 F.R.D. 634, 640 (D. Kan. 1993).
Defendant bears the burden of establishing the merits of his motion. Cippolone v. Liggett Group, 785 F.2d 1108, 1121 (3d Cir. 1986) (burden of persuasion is on the party seeking the protective order). The "broad allegations of harm, unsubstantiated by specific examples or articulated reasoning" raised by Defendant simply will not suffice to establish good cause for a protective order pursuant to Rule 26(c). Frank v. County of Hudson, 924 F. Supp. 620, 623 (D.N.J. 1996) (citations omitted). Defendant has, quite simply, failed to state any reason the Court should issue a protective order or otherwise curb discovery at this juncture. The information sought by Plaintiff is directly related to the allegations in the complaint, and may lead to discovery of admissible evidence. Therefore, the Court will not issue a protective order at this time.
Order
AND NOW, therefore, IT IS ORDERED THAT Defendant's motions to quash (docs. 18 and 29) are DENIED.