MEMORANDUM OPINION & ORDER

*1 This matter is before the Court on non-party Vendarryl L. Jenkins's filing captioned “Sustaining Objection to Subpoena.” ECF No. 206. Given the nature and scope of Jenkins's arguments, the Court construes his pro se filing as a motion to quash or further modify Defendants' third-party subpoena commanding Jenkins to produce electronically stored information (“ESI”) and documents relevant to the claims and defenses remaining in this civil action. See Order of Oct. 13, 2017, at 6, ECF No. 205; Fed. R. Civ. P. 45(d).

I. Standard of Review

Under Rule 45(a) of the Federal Rules of Civil Procedure, a party to litigation may serve on a non-party to the litigation a subpoena for the production of discoverable material in the non-party's possession, custody, or control. Fed. R. Civ. P. 45(a)(1)(A)(iii); In re Subpoena of Am. Nurses Ass'n, 643 F. App'x 310, 314 (4th Cir. 2016) (per curiam). “In turn, the non-party may contest the subpoena,” In re Am. Nurses Ass'n, 643 F. App'x at 314, by timely filing a motion in the proper district court, and the court “must quash or modify a subpoena that ... subjects a person to undue burden,”[1]Fed. R. Civ. P. 45(d)(3)(A)(iv). Where, as here, “a non-party claims that a subpoena is burdensome and oppressive, the non-party must support its claim by showing how production would be burdensome.” In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 612 (E.D. Va. 2008); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2463.1 (3d ed. 2010). The scope of discovery from a non-party is “ ‘the same as the scope of a discovery request made upon a party to the action,’ and ‘a party is entitled to information that is relevant to a claim or defense in the matter’ at issue.” Bell, Inc. v. GE Lighting, LLC, No. 6:14cv12, 2014 WL 1630754, at *6 (W.D. Va. Apr. 23, 2014) (quoting Smith v. United Salt Corp., No. 1:08cv53, 2009 WL 2929343, at *5 (W.D. Va. Sept. 9, 2009)). Because the rules governing Rule 45 subpoenas are coextensive with the general rules governing all discovery, a non-party cannot be required to produce any ESI or document that a party to the litigation would not also be required to produce under Rule 34(a). See Cook v. Howard, 484 F. App'x 805, 812 (4th Cir. 2012) (per curiam) (citing Fed. R. Civ. P. 26(b)(1)); Maxtena, Inc. v. Marks, 289 F.R.D. 427, 434–35 (D. Md. 2012); Wright & Miller, supra, §§ 2459, 2463.1.

II. Background

This lawsuit arises out of an encounter between Plaintiff Martese Johnson and three special agents from Virginia's Department of Alcoholic Beverage Control in the early morning hours of March 18, 2015. Johnson v. Dep't of Alcoholic Beverage Control, No. 3:15cv55, 2016 WL 7235836, at *1 (W.D. Va. Dec. 13, 2016).[2] In August 2017, the remaining Defendants issued subpoenas duces tecum to several non-parties, including Johnson's friend Vendarryl Jenkins. See Jenkins Subpoena, ECF No. 207-1, at 1–3. The Jenkins subpoena sought five categories of ESI, documents, or other records that Defendants considered relevant to the March 18 incident. SeeJenkins Subpoena Attach. A ¶¶ 1–5, ECF No. 207-1, at 4; Defs.' Resp. in Opp'n to Jenkins Mot. 2–4, ECF No. 207. Johnson promptly filed a motion challenging the subpoena's first bullet point, which demanded production of “[a]ll communications and correspondence between [Vendarryl Jenkins] and Martese Johnson from March 16, 2015 through March 19, 2015,” as facially overbroad and not proportional to the needs of the case. Pl.'s Br. in Supp. Mot. to Quash Defs.' Third Party Subpoenas 10–12, ECF No. 185; seeJenkins Subpoena Attach. A ¶ 1. On September 6, 2017, I held a hearing on the motion to quash and several other discovery-related motions. ECF No. 195. The parties were able to resolve many of the issues, and I ruled on the remaining disputes. See Order of Oct. 13, 2017, at 1. After the hearing, I issued an Order memorializing the parties' agreements and the Court's rulings. Id.

*2 With respect to the Jenkins subpoena, the Order narrowed the subject matter “of the first bullet point to: all communications and correspondence between you (Vendarryl L. Jenkins) and Martese Johnson about Johnson's plans for March 18, 2015, including but not limited to any and all statements, text messages, e-mails, letters, notes, social media messages, social media posts, recordings, and phone messages of any kind, omitting nothing.” Id. at 6; see Jenkins Subpoena Attach. A ¶ 1. The Order did not modify the subpoena in any other respect. Order of Oct. 13, 2017, at 6. At the hearing, counsel for Defendants advised the Court that Jenkins had lodged an untimely objection to the subpoena. Accordingly, the Order also gave Jenkins fourteen days to inform the Court whether he wished to maintain his objection. Id. Jenkins filed his written objections to the modified subpoena on October 25, 2017. ECF No. 206.

III. Discussion

In his motion, Jenkins broadly objects that Defendants' requests set out in the modified subpoena's first, second, fourth, and fifth bullet points[3] are “unduly burdensome and overly broad” or seek information that would be “overly cumulative” of material that Johnson's counsel have already produced in discovery. Jenkins Mot. 1. Defendants respond that they are entitled to the requested material under Rule 26(b)(1), and that it is “reasonable [for them] to request additional communications documents from a third party such as Mr. Jenkins in order to assure completeness and sufficiency in whatever party discovery has been produced (which has been very little to date).” See Defs.' Resp. in Opp'n to Jenkins Mot. 2–4.

Jenkins objects that the modified first bullet point is still too burdensome because: (1) he has “changed mobile devices several times in the more than 2 years that have passed” since March 2015, and he does “not have access to the record of text messages for the dates specified” in the subpoena; (2) “a search of emails did not yield any results of correspondence between Mr. Johnson and [Jenkins] for the specified dates”; and (3) letters between Johnson and Jenkins “do not exist.” Jenkins Mot. 1. Defendants respond that Jenkins's claim he does not have any records for “a single communication with Plaintiff regarding the incident” seems implausible at best, but that, if true, Jenkins “should be compelled to state as much in response” to their modified subpoena. Defs.' Resp. in Opp'n to Jenkins Mot. 3; see also Pl.'s Br. in Supp. Mot. to Quash Defs.' Third Party Subpoenas 11 (describing the substance of several communications, including emails, between Johnson and Jenkins during the specified four-day period).

Jenkins also objects that Defendants' requests set out in the second, fourth, and fifth bullet points are “unduly burdensome and overly broad” or require him to produce records that “would merely be duplicates of the materials Mr. Johnson's counsel has already made available” through the parties' discovery. Jenkins Mot. 1; see Jenkins Subpoena Attach. A ¶¶ 2, 4, 5. In particular, he asserts that Defendants' “request for all communications and correspondence between [himself] and any other person or entity,” including any of Johnson's friends or representatives, “about Mr. Johnson's arrest is ... unduly burdensome and overly broad” because

[o]ver the past several years, a definition of “all communications” could include even the slightest passing comment about the night of the incident without offering any probative value. These communications are undocumented and I have no reliable method of recall. Such an effort to recall would involve hundreds, perhaps even thousands[,] of undocumented conversations. As a student and non-party to the suit, I do not have the proper resources, or available time to begin to tackle such a task.

*3 Jenkins Mot. 1; see Jenkins Subpoena Attach. A ¶ 2. Finally, Jenkins objects that some of the information Defendants seek, such as the substance of his interviews with media outlets and his communications with Johnson's counsel, is available from other sources. Jenkins Mot. 1 (“It is an undue burden to place the responsibility upon me to collect and organize public information that the requesting party could easily obtain through a [G]oogle search of my name.”); see Jenkins Subpoena Attach. A ¶¶ 2, 4, 5.

Jenkins's objections offer little more than mere assertions that requiring him to comply with Defendants' proportional requests for information relevant to the claims and defenses remaining in this action, Fed. R. Civ. P. 26(b)(1), would subject him to an undue burden. See Wright & Miller, supra, § 2463.1(noting that the objecting non-party “cannot rely on a mere assertion that compliance would be burdensome and onerous without showing the manner and extent of the burden and the injurious consequences of insisting upon compliance with the subpoena”). Although certainly relevant to Rule 45(d)'s “undue burden” analysis, see id., the mere fact that Defendants might be able to obtain the requested information from Johnson or some other source, without more, is not a sufficient reason to quash or further modify an otherwise enforceable subpoena at this stage of the litigation. Fed. R. Civ. P. 26(b), 34(c), 45(e)(1)(D); see Software Rights Archive, LLC v. Google Inc., Misc. No. 09-017-JJF, 2009 WL 1438249, at *2 (D. Del. May 21, 2009) (explaining that third-party production of documents “that are likely to be in the possession of an opposing party ... is appropriate where those documents constitute a ‘non-well-defined set’ ‘whose completeness is not readily verifiable’ ” (quoting Viacom Int'l, Inc. v. YouTube, Inc., No. C 08-80129 SI, 2008 WL 3876142, at *2 (N.D. Cal. Aug. 18, 2008))). This is especially so where the number of documents possessed by both Mr. Jenkins and counsel for Johnson appear to be few in number.

If any of the ESI, documents, records, or other tangible things set out in the modified subpoena are actually in Jenkins's possession, custody, or control, then Jenkins must give those materials to Defendants' counsel as specified in the subpoena. Order of Oct. 13, 2017, at 6; Jenkins Subpoena 1–3; Jenkins Subpoena Attach. A ¶¶ 2–5; see Fed. R. Civ. P. 45(e)(1), (g). As a general rule, a person has “control” over extant ESI or documents if he has “the legal right, authority, or practical ability to obtain the materials sought upon demand.” S.E.C. v. Credit Bancorp, Ltd., 194 F.R.D. 469, 471 (S.D.N.Y. 2000). If Jenkins has not retained certain communications on his cell phone or computer, he may be able to obtain them through a request to his cell phone or email service provider or he could execute a release authorizing Defendants to request those records directly from the provider. See 18 U.S.C. § 2702; cf. Fisher v. Fisher, Civil No. WDQ-11-1038, 2012 WL 2050785, at *7 (D. Md. June 5, 2012) (concluding that defendant who was “informed that all records relating to the account at issue ha[d] been purged” established that he had “no practical ability to obtain” and produce requested bank records).

If Jenkins truly does not have possession or control of a requested document or record, whether electronically stored or otherwise, then he needs to tell Defendants that in his response to their modified subpoena. Fed. R. Civ. P. 45(d), (e), (g); cf. Eramo v. Rolling Stone, LLC, No. 3:14cv23, Mem. Op. & Order 3–4 (W.D. Va. June 21, 2016) (denying plaintiff's motion to compel production of emails and text messages from third-party respondent where respondent's counsel described their efforts to find and produce records of all the electronically stored communications in respondent's possession or control); Federico v. Lincoln Military Hous., LLC, No. 2:12cv80, 2014 WL 7447937, at *8–10 (E.D. Va. Dec. 31, 2014)(explaining that the plaintiffs' “failure to produce any text messages from the [relevant] time” resulted either from “the routine, good-faith operation of their phones” or from their cellular provider's routine practice of retaining “text message content” for only a few days). In his response, Jenkins may also identify any ESI available from sources that are “not reasonably accessible” to him “because of undue burden or cost.” Fed. R. Civ. P. 45(e)(1)(D). As explained, however, Jenkins's mere assertion that Defendants “could easily obtain” the requested ESI “through a [G]oogle search of [his] name,” Jenkins Mot. 1, is not enough to show that Defendants' request imposes an undue burden or cost on Jenkins at this stage of the proceeding.

*4 Finally, Jenkins is not required to create a record of any “passing comment” or other “undocumented” oral conversation, Jenkins Mot. 1, that he does not have in his possession or control. Cf. Frasier Healthcare Consulting, Inc. v. Grant Mem'l Hosp. Reg'l Healthcare Ctr., No. 2:12cv87, 2014 WL 12701042, at *4 (N.D. W. Va. Jan. 9, 2014) (“In general, Rule 34only requires a party to produce documents and information already in existence.”); Paramount Pictures Corp. v. Replay TV, No. CV 01-9358 FMC (Ex), 2002 WL 32151632, at *2 (C.D. Cal. May 30, 2002) (noting that a “party cannot be compelled to create, or cause to be created, new documents solely for their production” in discovery). The subpoena seeks only specified “documents and tangible things.” Jenkins Subpoena Attach. A. If a requested document or record does not exist, then Jenkins should inform Defendants of that fact.

IV. Conclusion & Order

For the foregoing reasons, it is hereby ORDERED that Vendarryl Jenkins's objections to Defendants' modified subpoena duces tecum are OVERRULED and his motion to quash or further modify the subpoena, ECF No. 206, is DENIED without prejudice. Mr. Jenkins shall produce the ESI, documents, or other tangible things requested in the subpoena, as modified by the Court's October 13, 2017 Order, to Defendants counsel on or before January 20, 2018.

If any dispute persists regarding the subpoena, the parties are DIRECTED to contact the Clerk's Office in Harrisonburg, Virginia to schedule a conference call with the undersigned magistrate judge.

It is so ORDERED.

The Clerk shall deliver a copy of this Order to all counsel of record and to Mr. Jenkins.

Footnotes

[1]

A court must also quash or modify a subpoena that fails to allow a reasonable time to comply, requires the person to comply beyond the Rule's geographical limits, or demands disclosure of privileged or other protected matter, and it may quash or modify a subpoena that would require the person to disclose certain protected information. Fed. R. Civ. P. 45(d)(3)(A)–(B). Jenkins's motion does not invoke any of these grounds as an alternative reason to quash or further modify Defendants' subpoena. SeeJenkins Mot. 1, ECF No. 206.

[2]

A detailed discussion of Johnson's factual allegations and remaining claims is set out in the presiding District Judge's Memorandum Opinion granting in part and denying in part Defendants' motion to dismiss the amended complaint. See generally Johnson, 2016 WL 7235836, at *1–10.

[3]

Jenkins does not specifically object to the third bullet point, which contains Defendants' request that he produce “[a]ny affidavit, declaration, or similar document prepared by [Jenkins] at the request of Martese Johnson,” or any person acting on Johnson's behalf, “concerning, involving, or relating to the March 18, 2015 arrest of Martese Johnson outside of Trinity in Charlottesville, Virginia and/or the use of force during said arrest.” Jenkins Subpoena Attach. A ¶ 3; see Jenkins Mot. 1.

Johnson v. Miller

Citation: 2017 WL 6617056 (W.D. Va. 2017)

Summary: The court overruled Vendarryl Jenkins' objections to the modified subpoena duces tecum and denied his motion to quash or further modify it. Jenkins is required to produce the ESI, documents, or other tangible things requested in the subpoena to Defendants' counsel by January 20, 2018. The court also directed the parties to contact the Clerk's Office in Harrisonburg, Virginia to resolve any disputes.

Court: United States District Court, W.D. Virginia

Date decided: December 21, 2017

Judge: Hoppe, Joel C.

MARTESE JOHNSON, Plaintiff, v. JARED MILLER et al., Defendants Civil Action No. 3:15cv00055 United States District Court, W.D. Virginia Filed December 21, 2017 Hoppe, Joel C., United States Magistrate Judge MEMORANDUM OPINION & ORDER *1 This matter is before the Court on non-party Vendarryl L. Jenkins's filing captioned “Sustaining Objection to Subpoena.” ECF No. 206. Given the nature and scope of Jenkins's arguments, the Court construes his pro se filing as a motion to quash or further modify Defendants' third-party subpoena commanding Jenkins to produce electronically stored information (“ESI”) and documents relevant to the claims and defenses remaining in this civil action. See Order of Oct. 13, 2017, at 6, ECF No. 205; Fed. R. Civ. P. 45(d). I. Standard of Review Under Rule 45(a) of the Federal Rules of Civil Procedure, a party to litigation may serve on a non-party to the litigation a subpoena for the production of discoverable material in the non-party's possession, custody, or control. Fed. R. Civ. P. 45(a)(1)(A)(iii); In re Subpoena of Am. Nurses Ass'n, 643 F. App'x 310, 314 (4th Cir. 2016) (per curiam). “In turn, the non-party may contest the subpoena,” In re Am. Nurses Ass'n, 643 F. App'x at 314, by timely filing a motion in the proper district court, and the court “must quash or modify a subpoena that ... subjects a person to undue burden,”[1]Fed. R. Civ. P. 45(d)(3)(A)(iv). Where, as here, “a non-party claims that a subpoena is burdensome and oppressive, the non-party must support its claim by showing how production would be burdensome.” In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 612 (E.D. Va. 2008); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2463.1 (3d ed. 2010). The scope of discovery from a non-party is “ ‘the same as the scope of a discovery request made upon a party to the action,’ and ‘a party is entitled to information that is relevant to a claim or defense in the matter’ at issue.” Bell, Inc. v. GE Lighting, LLC, No. 6:14cv12, 2014 WL 1630754, at *6 (W.D. Va. Apr. 23, 2014) (quoting Smith v. United Salt Corp., No. 1:08cv53, 2009 WL 2929343, at *5 (W.D. Va. Sept. 9, 2009)). Because the rules governing Rule 45 subpoenas are coextensive with the general rules governing all discovery, a non-party cannot be required to produce any ESI or document that a party to the litigation would not also be required to produce under Rule 34(a). See Cook v. Howard, 484 F. App'x 805, 812 (4th Cir. 2012) (per curiam) (citing Fed. R. Civ. P. 26(b)(1)); Maxtena, Inc. v. Marks, 289 F.R.D. 427, 434–35 (D. Md. 2012); Wright & Miller, supra, §§ 2459, 2463.1. II. Background This lawsuit arises out of an encounter between Plaintiff Martese Johnson and three special agents from Virginia's Department of Alcoholic Beverage Control in the early morning hours of March 18, 2015. Johnson v. Dep't of Alcoholic Beverage Control, No. 3:15cv55, 2016 WL 7235836, at *1 (W.D. Va. Dec. 13, 2016).[2] In August 2017, the remaining Defendants issued subpoenas duces tecum to several non-parties, including Johnson's friend Vendarryl Jenkins. See Jenkins Subpoena, ECF No. 207-1, at 1–3. The Jenkins subpoena sought five categories of ESI, documents, or other records that Defendants considered relevant to the March 18 incident. SeeJenkins Subpoena Attach. A ¶¶ 1–5, ECF No. 207-1, at 4; Defs.' Resp. in Opp'n to Jenkins Mot. 2–4, ECF No. 207. Johnson promptly filed a motion challenging the subpoena's first bullet point, which demanded production of “[a]ll communications and correspondence between [Vendarryl Jenkins] and Martese Johnson from March 16, 2015 through March 19, 2015,” as facially overbroad and not proportional to the needs of the case. Pl.'s Br. in Supp. Mot. to Quash Defs.' Third Party Subpoenas 10–12, ECF No. 185; seeJenkins Subpoena Attach. A ¶ 1. On September 6, 2017, I held a hearing on the motion to quash and several other discovery-related motions. ECF No. 195. The parties were able to resolve many of the issues, and I ruled on the remaining disputes. See Order of Oct. 13, 2017, at 1. After the hearing, I issued an Order memorializing the parties' agreements and the Court's rulings. Id. *2 With respect to the Jenkins subpoena, the Order narrowed the subject matter “of the first bullet point to: all communications and correspondence between you (Vendarryl L. Jenkins) and Martese Johnson about Johnson's plans for March 18, 2015, including but not limited to any and all statements, text messages, e-mails, letters, notes, social media messages, social media posts, recordings, and phone messages of any kind, omitting nothing.” Id. at 6; see Jenkins Subpoena Attach. A ¶ 1. The Order did not modify the subpoena in any other respect. Order of Oct. 13, 2017, at 6. At the hearing, counsel for Defendants advised the Court that Jenkins had lodged an untimely objection to the subpoena. Accordingly, the Order also gave Jenkins fourteen days to inform the Court whether he wished to maintain his objection. Id. Jenkins filed his written objections to the modified subpoena on October 25, 2017. ECF No. 206. III. Discussion In his motion, Jenkins broadly objects that Defendants' requests set out in the modified subpoena's first, second, fourth, and fifth bullet points[3] are “unduly burdensome and overly broad” or seek information that would be “overly cumulative” of material that Johnson's counsel have already produced in discovery. Jenkins Mot. 1. Defendants respond that they are entitled to the requested material under Rule 26(b)(1), and that it is “reasonable [for them] to request additional communications documents from a third party such as Mr. Jenkins in order to assure completeness and sufficiency in whatever party discovery has been produced (which has been very little to date).” See Defs.' Resp. in Opp'n to Jenkins Mot. 2–4. Jenkins objects that the modified first bullet point is still too burdensome because: (1) he has “changed mobile devices several times in the more than 2 years that have passed” since March 2015, and he does “not have access to the record of text messages for the dates specified” in the subpoena; (2) “a search of emails did not yield any results of correspondence between Mr. Johnson and [Jenkins] for the specified dates”; and (3) letters between Johnson and Jenkins “do not exist.” Jenkins Mot. 1. Defendants respond that Jenkins's claim he does not have any records for “a single communication with Plaintiff regarding the incident” seems implausible at best, but that, if true, Jenkins “should be compelled to state as much in response” to their modified subpoena. Defs.' Resp. in Opp'n to Jenkins Mot. 3; see also Pl.'s Br. in Supp. Mot. to Quash Defs.' Third Party Subpoenas 11 (describing the substance of several communications, including emails, between Johnson and Jenkins during the specified four-day period). Jenkins also objects that Defendants' requests set out in the second, fourth, and fifth bullet points are “unduly burdensome and overly broad” or require him to produce records that “would merely be duplicates of the materials Mr. Johnson's counsel has already made available” through the parties' discovery. Jenkins Mot. 1; see Jenkins Subpoena Attach. A ¶¶ 2, 4, 5. In particular, he asserts that Defendants' “request for all communications and correspondence between [himself] and any other person or entity,” including any of Johnson's friends or representatives, “about Mr. Johnson's arrest is ... unduly burdensome and overly broad” because [o]ver the past several years, a definition of “all communications” could include even the slightest passing comment about the night of the incident without offering any probative value. These communications are undocumented and I have no reliable method of recall. Such an effort to recall would involve hundreds, perhaps even thousands[,] of undocumented conversations. As a student and non-party to the suit, I do not have the proper resources, or available time to begin to tackle such a task. *3 Jenkins Mot. 1; see Jenkins Subpoena Attach. A ¶ 2. Finally, Jenkins objects that some of the information Defendants seek, such as the substance of his interviews with media outlets and his communications with Johnson's counsel, is available from other sources. Jenkins Mot. 1 (“It is an undue burden to place the responsibility upon me to collect and organize public information that the requesting party could easily obtain through a [G]oogle search of my name.”); see Jenkins Subpoena Attach. A ¶¶ 2, 4, 5. Jenkins's objections offer little more than mere assertions that requiring him to comply with Defendants' proportional requests for information relevant to the claims and defenses remaining in this action, Fed. R. Civ. P. 26(b)(1), would subject him to an undue burden. See Wright & Miller, supra, § 2463.1(noting that the objecting non-party “cannot rely on a mere assertion that compliance would be burdensome and onerous without showing the manner and extent of the burden and the injurious consequences of insisting upon compliance with the subpoena”). Although certainly relevant to Rule 45(d)'s “undue burden” analysis, see id., the mere fact that Defendants might be able to obtain the requested information from Johnson or some other source, without more, is not a sufficient reason to quash or further modify an otherwise enforceable subpoena at this stage of the litigation. Fed. R. Civ. P. 26(b), 34(c), 45(e)(1)(D); see Software Rights Archive, LLC v. Google Inc., Misc. No. 09-017-JJF, 2009 WL 1438249, at *2 (D. Del. May 21, 2009) (explaining that third-party production of documents “that are likely to be in the possession of an opposing party ... is appropriate where those documents constitute a ‘non-well-defined set’ ‘whose completeness is not readily verifiable’ ” (quoting Viacom Int'l, Inc. v. YouTube, Inc., No. C 08-80129 SI, 2008 WL 3876142, at *2 (N.D. Cal. Aug. 18, 2008))). This is especially so where the number of documents possessed by both Mr. Jenkins and counsel for Johnson appear to be few in number. If any of the ESI, documents, records, or other tangible things set out in the modified subpoena are actually in Jenkins's possession, custody, or control, then Jenkins must give those materials to Defendants' counsel as specified in the subpoena. Order of Oct. 13, 2017, at 6; Jenkins Subpoena 1–3; Jenkins Subpoena Attach. A ¶¶ 2–5; see Fed. R. Civ. P. 45(e)(1), (g). As a general rule, a person has “control” over extant ESI or documents if he has “the legal right, authority, or practical ability to obtain the materials sought upon demand.” S.E.C. v. Credit Bancorp, Ltd., 194 F.R.D. 469, 471 (S.D.N.Y. 2000). If Jenkins has not retained certain communications on his cell phone or computer, he may be able to obtain them through a request to his cell phone or email service provider or he could execute a release authorizing Defendants to request those records directly from the provider. See 18 U.S.C. § 2702; cf. Fisher v. Fisher, Civil No. WDQ-11-1038, 2012 WL 2050785, at *7 (D. Md. June 5, 2012) (concluding that defendant who was “informed that all records relating to the account at issue ha[d] been purged” established that he had “no practical ability to obtain” and produce requested bank records). If Jenkins truly does not have possession or control of a requested document or record, whether electronically stored or otherwise, then he needs to tell Defendants that in his response to their modified subpoena. Fed. R. Civ. P. 45(d), (e), (g); cf. Eramo v. Rolling Stone, LLC, No. 3:14cv23, Mem. Op. & Order 3–4 (W.D. Va. June 21, 2016) (denying plaintiff's motion to compel production of emails and text messages from third-party respondent where respondent's counsel described their efforts to find and produce records of all the electronically stored communications in respondent's possession or control); Federico v. Lincoln Military Hous., LLC, No. 2:12cv80, 2014 WL 7447937, at *8–10 (E.D. Va. Dec. 31, 2014)(explaining that the plaintiffs' “failure to produce any text messages from the [relevant] time” resulted either from “the routine, good-faith operation of their phones” or from their cellular provider's routine practice of retaining “text message content” for only a few days). In his response, Jenkins may also identify any ESI available from sources that are “not reasonably accessible” to him “because of undue burden or cost.” Fed. R. Civ. P. 45(e)(1)(D). As explained, however, Jenkins's mere assertion that Defendants “could easily obtain” the requested ESI “through a [G]oogle search of [his] name,” Jenkins Mot. 1, is not enough to show that Defendants' request imposes an undue burden or cost on Jenkins at this stage of the proceeding. *4 Finally, Jenkins is not required to create a record of any “passing comment” or other “undocumented” oral conversation, Jenkins Mot. 1, that he does not have in his possession or control. Cf. Frasier Healthcare Consulting, Inc. v. Grant Mem'l Hosp. Reg'l Healthcare Ctr., No. 2:12cv87, 2014 WL 12701042, at *4 (N.D. W. Va. Jan. 9, 2014) (“In general, Rule 34only requires a party to produce documents and information already in existence.”); Paramount Pictures Corp. v. Replay TV, No. CV 01-9358 FMC (Ex), 2002 WL 32151632, at *2 (C.D. Cal. May 30, 2002) (noting that a “party cannot be compelled to create, or cause to be created, new documents solely for their production” in discovery). The subpoena seeks only specified “documents and tangible things.” Jenkins Subpoena Attach. A. If a requested document or record does not exist, then Jenkins should inform Defendants of that fact. IV. Conclusion & Order For the foregoing reasons, it is hereby ORDERED that Vendarryl Jenkins's objections to Defendants' modified subpoena duces tecum are OVERRULED and his motion to quash or further modify the subpoena, ECF No. 206, is DENIED without prejudice. Mr. Jenkins shall produce the ESI, documents, or other tangible things requested in the subpoena, as modified by the Court's October 13, 2017 Order, to Defendants counsel on or before January 20, 2018. If any dispute persists regarding the subpoena, the parties are DIRECTED to contact the Clerk's Office in Harrisonburg, Virginia to schedule a conference call with the undersigned magistrate judge. It is so ORDERED. The Clerk shall deliver a copy of this Order to all counsel of record and to Mr. Jenkins. Footnotes [1] A court must also quash or modify a subpoena that fails to allow a reasonable time to comply, requires the person to comply beyond the Rule's geographical limits, or demands disclosure of privileged or other protected matter, and it may quash or modify a subpoena that would require the person to disclose certain protected information. Fed. R. Civ. P. 45(d)(3)(A)–(B). Jenkins's motion does not invoke any of these grounds as an alternative reason to quash or further modify Defendants' subpoena. SeeJenkins Mot. 1, ECF No. 206. [2] A detailed discussion of Johnson's factual allegations and remaining claims is set out in the presiding District Judge's Memorandum Opinion granting in part and denying in part Defendants' motion to dismiss the amended complaint. See generally Johnson, 2016 WL 7235836, at *1–10. [3] Jenkins does not specifically object to the third bullet point, which contains Defendants' request that he produce “[a]ny affidavit, declaration, or similar document prepared by [Jenkins] at the request of Martese Johnson,” or any person acting on Johnson's behalf, “concerning, involving, or relating to the March 18, 2015 arrest of Martese Johnson outside of Trinity in Charlottesville, Virginia and/or the use of force during said arrest.” Jenkins Subpoena Attach. A ¶ 3; see Jenkins Mot. 1.