Musket Corp. v. Star Fuel of Okla., LLC
Musket Corp. v. Star Fuel of Okla., LLC
2013 WL 12090346 (W.D. Okla. 2013)
March 13, 2013
Miles-LaGrange, Vicki, United States District Judge
Summary
The Court found that Musket's counsel did not breach his duty to take reasonable steps to avoid imposing undue burden or expense upon Weeks when Musket's counsel issued the Subpoena for Electronically Stored Information. The Court, therefore, denied Weeks' Motion for Order Directing Parties to Pay Fees and Costs Incurred by Independent Forensic Expert with respect to fees and costs sought pursuant to Rule 45(c)(1).
Additional Decisions
Musket Corporation, Plaintiff,
v.
Star Fuel of Oklahoma, LLC, Lincoln O. Clifton, David A. Selph, and Mark Luitwieler, Defendants
v.
Star Fuel of Oklahoma, LLC, Lincoln O. Clifton, David A. Selph, and Mark Luitwieler, Defendants
Case No. CIV-11-444-M
Signed March 13, 2013
Counsel
David A. Elder, Matthew W. Brockman, William A. Johnson, Hartzog Conger Cason & Neville, Michael L. Brooks, Brooks Law Firm LLC, Oklahoma City, OK, for Plaintiff.Gary S. Chilton, Gideon A. Lincecum, James E. Warner, III, Stephen R. Johnson, Holladay Chilton & Degiusti, Oklahoma City, OK, for Defendants.
Mark Luitwieler, Katy, TX, pro se.
Miles-LaGrange, Vicki, United States District Judge
ORDER
*1 Before the Court is Calvin Weeks' (“Weeks”) Motion for Order Directing Parties to Pay Fees and Costs Incurred by Independent Forensic Expert, filed October 9, 2012. On October 30, 2012, defendant Star Fuel of Oklahoma, LLC (“Star Fuel”) filed its objection, and on November 5, 2012, Weeks filed his reply. On November 9, 2012, plaintiff Musket Corporation (“Musket”) filed its response, and on November 15, 2012, Weeks filed his reply.
This action arose out of a contractual dispute between Musket and Star Fuel relating to an alleged agreement for the sale and purchase of hundreds of thousands of gallons of unleaded gasoline. Musket originally filed this case in the District Court of Oklahoma County, State of Oklahoma in November 2008. In April 2011, this case was removed to this Court.
During the course of the litigation in state court, an issue arose over whether defendant Mark Luitwieler wrongfully uploaded to a web-based data and file backup account known as IDrive and then downloaded to his Star Fuel laptop a number of Musket's confidential and proprietary trade secret documents. As a result of this issue, an Agreed Protective Order was entered by the presiding judge in state court. The Agreed Protective Order provided that the parties would hire a mutually agreeable Independent Forensic Expert (“IFE”) to perform certain tasks. The Agreed Protective Order further provided:
If the Parties are unable to agree on the Independent Forensic Expert within ten (10) business days of the date of this Order, each side will submit the name of one person or entity that is neither a party to this lawsuit nor the attorney of any party to this lawsuit and that is familiar with the field of E-Discovery and Digital Forensics. These designated representatives will then have five (5) business days to mutually agree on the Independent Forensic Expert to be hired. If these designated representatives are unable to reach an agreement after five (5) business days, the Parties will submit the name of at least one (1) proposed Forensic Expert to the Court and allow the Court to determine which Forensic Expert will be utilized.
Agreed Protective Order at ¶ 3, attached as Exhibit 1 to Plaintiff's Response to the Motion of Calvin Weeks for Order Directing Parties to Pay Fees and Costs Incurred by Independent Forensic Expert.
The parties agreed to select Weeks, and Weeks agreed to serve, as the IFE in this case. Attached to Weeks' email in which he agreed to serve as the IFE was a Client Request for Forensic Computer Services Form with Standard Terms and Conditions, setting forth certain provisions regarding fees and costs. Weeks submitted the Final Report of his work as IFE to the parties on or about April 16, 2012. Weeks submitted to his deposition by agreement of the parties beginning on August 22, 2012.
During his deposition, Star Fuel's counsel asked a number of questions regarding whether Weeks had a private investigator's license and asserting that such a license was required under Oklahoma state law to perform the type of work Weeks performed in this case. Based upon the line of questioning by Star Fuel's counsel, following his deposition Weeks retained legal counsel to protect his interests as the IFE in this case. Weeks' deposition reconvened on August 29, 2012, during which Star Fuel's counsel continued his questioning regarding the private investigator's license issue. Weeks' counsel attended the deposition with him.
*2 On August 22, 2012, Musket served a Subpoena Duces Tecum (“Subpoena”) on Weeks to produce the Hitachi hard drive from Michele Luitwieler's laptop by August 29, 2012. Defendants Star Fuel and Mark Luitwieler objected to the Subpoena and filed a Joint Motion to Quash and Joint Motion for Protective Order. On September 11, 2012, the Court entered an order granting in part and denying in part the joint motion to quash. The Court's order required Weeks to, within five (5) days of the Court's order, “produce for forensic inspection and examination a mirror image of the ‘Hitachi hard drive from Michele Luitwieler laptop’ also described as Item #DC39550000697 in his Hash Library Search Report dated April 11, 2012, excluding any attorney-client privileged documents, as referenced in paragraph 8 of the Agreed Protective Order, any Star Fuel documents, and any personal or confidential information regarding Luitwieler.” September 11, 2012 Order [docket no. 193] at 7.
Weeks, however, did not have sufficient information to be able to determine which documents should be excluded from production without further direction from the parties. The parties were unable to agree on the manner in which this information would be provided, and on September 17, 2012, Weeks filed a motion to quash the Subpoena arguing that it was technically impossible to comply with the Court's September 11, 2012 Order within the deadlines imposed. On September 21, 2012, the Court granted Weeks' motion to quash and quashed the Subpoena.
Weeks now moves this Court to order the parties to pay his outstanding expert fees and costs incurred in this case, including all attorney fees incurred by him relating to (1) researching, defending, and rebutting the private investigator license issue asserted by defendants, and (2) researching, responding to, and quashing the Subpoena. Weeks asserts his motion pursuant to Federal Rule of Evidence 706, Federal Rule of Civil Procedure 11(b)(2), Federal Rule of Civil Procedure 26(b)(4)(E), and Federal Rule of Civil Procedure 45(c)(1).
I. Jurisdiction
Before reaching the merits of Weeks' motion, the Court finds that there is a substantial issue as to whether this Court has jurisdiction over Weeks' claim for payment of his outstanding expert fees and costs, which is, at its core, a state law breach of contract claim. Federal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005); Penteco Corp. Ltd. P'ship – 1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991). This Court has an obligation to consider whether jurisdiction exists, even if the parties have not raised the issue.
The Court would first find that it does not have supplemental jurisdiction over Weeks' claim.
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
28 U.S.C. § 1367(a). “A claim is part of the same case or controversy if it ‘derive[s] from a common nucleus of operative fact.’ ” Price v. Wolford, 608 F.3d 698, 702-03 (10th Cir. 2010) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 165 (1997)). Reviewing the parties' submissions, the Court finds that Weeks' claim for payment of his outstanding expert fees and costs and the claims in the underlying action clearly do not derive from a common nucleus of operative fact. The Court, therefore, does not have supplemental jurisdiction over Weeks' claim.
In his motion, Weeks relies, in part, upon Federal Rule of Evidence 706 as a basis for his entitlement to his expert fees and costs. Rule 706 applies to court-appointed expert witnesses. Weeks, however, is not a court-appointed expert. While the state court entered the Agreed Protective Order and retained the authority to appoint an IFE if the parties could not mutually agree on the selection of one, the parties did, in fact, agree to select Weeks as the IFE. The parties hired Weeks; the state court did not appoint him. The Court, therefore, finds that Rule 706 is inapplicable and does not provide any basis for this Court's jurisdiction over this matter.
*3 Weeks also relies upon Federal Rules of Civil Procedure 11(b)(2) and 26(b)(4)(E) as a basis for his entitlement to his expert fees and costs. Rule 11 governs an attorney's representations to the Court in his pleadings, motions, and other papers and provides for sanctions if an attorney violates Rule 11(b). Having carefully reviewed the parties' submissions, and considering the nature of the relief sought by Weeks, the Court finds that Rule 11 does not provide any basis for awarding Weeks the expert fees and costs, including attorney fees, that he is seeking through his motion. Rule 26(b)(4)(E) governs the payment of an expert for time spent in responding to discovery under Rule 26(b)(4)(A) (deposition of an expert who may testify) and Rule 26(b)(4)(D) (discovery from an expert employed only for trial preparation). Having carefully reviewed the parties' submissions, and considering the nature of the relief sought by Weeks, the Court finds that Rule 26(b)(4)(E) is inapplicable to Weeks' claim—Weeks was not employed only for trial preparation and he is not seeking fees and costs for his deposition. Accordingly, the Court finds that neither Rule 11(b) nor Rule 26(b)(4)(E) provides any basis for this Court's jurisdiction over this matter.
Finally, Weeks relies upon Federal Rule of Civil Procedure 45(c)(1) as a basis for his entitlement to his expert fees and costs, including attorney fees, incurred in quashing the Subpoena. Having reviewed the parties' submissions, the Court finds that Rule 45(c)(1) may provide a basis for Weeks to be entitled to his expert fees and costs incurred in quashing the Subpoena but does not provide a basis for any entitlement to the other fees and costs sought through his motion.
The Court, therefore, finds that it only has jurisdiction to consider whether Weeks is entitled to his expert fees and costs, including attorney fees, incurred in quashing the Subpoena. The Court does not have jurisdiction to consider the remaining portions of Weeks' claim for payment of his expert fees and costs. To obtain payment for these remaining fees and costs, to which Weeks may or may not be entitled, Weeks would need to file a breach of contract action in state court.
II. Entitlement to expert fees and costs pursuant to Rule 45(c)(1)
Rule 45(c)(1) provides:
A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply.
Fed. R. Civ. P. 45(c)(1). Additionally,
While Rules 11 and 26(g)(2) focus on the actions and motives of the issuing party, Rule 45(c) focuses on the burden imposed on the subpoena recipient. Rule 45(c)(3) requires the court to modify or quash a subpoena that imposes an undue burden on the recipient. Rule 45(c)(1) requires the attorney issuing the subpoena to take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena, and directs that the court “shall enforce this duty.” That language suggests that “this duty” owed to non-parties is in addition to the duties imposed by Rules 11 and 26(g). Thus, good faith in issuing a subpoena is not sufficient to avoid sanctions under Rule 45(c)(1) if a party has issued the subpoena in violation of the duty imposed by that Rule.
Huntair, Inc. v. Climatecraft, Inc., 254 F.R.D. 677, 679 (N.D. Okla. 2008) (quoting Builders Ass'n of Greater Chi. v. City of Chi., No. 96 C 1122, 2002 WL 1008455 at *3 (N.D. Ill. May 13, 2002)). “The test then is whether there has been a breach of counsel's duty to take reasonable steps to avoid imposing undue burden or expense upon the person subject to the subpoena.” Id.
Having carefully reviewed the parties' submissions, the Court finds that Musket's counsel did not breach his duty to take reasonable steps to avoid imposing undue burden or expense upon Weeks when Musket's counsel issued the Subpoena. While the Court ultimately found that the Subpoena, as modified by the Court's September 11, 2012 Order, would be an undue burden on Weeks, the Court has never found, and does not find now, that compliance with the Subpoena, as originally issued, would have been an undue burden on Weeks. The Subpoena, as originally issued, merely requested that a mirror image of a computer hard drive be produced—a request that would not have taken Weeks a great deal of time to comply with and would not have imposed an undue burden. It was only after defendants objected and moved to quash the Subpoena, and the Court entered its September 11, 2012 Order modifying the Subpoena to require certain types of documents be excluded from the copy of the hard drive, that an undue burden was imposed on Weeks. This burden, however, was not the fault of, nor imposed by, Musket's counsel. Further, having reviewed the parties' submissions, the Court finds that once this burden was imposed, Musket's counsel proposed various alternatives to defendants' counsel to reduce the burden on Weeks and exhausted all means possible to him to eliminate the burden on Weeks as a result of the Court's September 11, 2012 modification. The Court, therefore, finds that no sanction should be imposed under Rule 45(c)(1) and that Weeks is not entitled to his expert fees and costs, including attorney fees, incurred in quashing the Subpoena under Rule 45(c)(1).
III. Conclusion
*4 Accordingly, for the reasons set forth above, the Court FINDS that it does not have jurisdiction over Weeks' claim for expert fees and costs, including attorney fees, except for that portion of his motion requesting fees and costs pursuant to Rule 45(c)(1) and DENIES Weeks' Motion for Order Directing Parties to Pay Fees and Costs Incurred by Independent Forensic Expert [docket no. 288] with respect to fees and costs sought pursuant to Rule 45(c)(1).
IT IS SO ORDERED.