On September 14, 2016, Plaintiff Deluxe Financial Services, LLC (“Deluxe”) brought claims against former employee Brian S. Shaw (“Shaw”) and Deluxe’s competitor (and Shaw’s new employer) Harland Clarke Corp. (“Harland Clarke”) for misappropriating trade secrets and tortiously interfering with Deluxe’s business. (Compl. [Doc. No. 1].) According to the Amended Complaint dated November 7, 2016, the allegations stem from Shaw’s alleged improper retention of Deluxe documents after he was terminated by Deluxe as part of a workforce reduction and later joined Harland Clarke. (Am. Compl. ¶¶ 10, 39, 48 [Doc. No. 14].) Specifically, Deluxe alleges Shaw brought multiple USB devices containing over 7,000 Deluxe business files to his employment at Harland Clarke. (Id. ¶¶ 41, 64.) Shaw then used this confidential information to respond to a request for proposal for a new multiyear contract, and stole one of Deluxe’s former clients, costing Deluxe millions of dollars of lost revenue in the coming years. (Id. ¶¶ 53-54.)

Deluxe sought information from Harland Clarke after it discovered Shaw’s alleged misconduct. Harland Clarke informed Deluxe that its investigation revealed Shaw had inserted at least two USB devices containing Deluxe files into his Harland Clarke work computer. (Sottile Decl. ¶ 6 [Doc. No. 80].) Harland Clarke eventually provided these USBs to Deluxe’s forensic expert, Stroz Friedberg. (Id. ¶ 9.) Harland Clarke also reported to Deluxe that it had performed a search of Shaw’s Harland Clarke work laptop computer and had found no Deluxe files from the two USB devices on the laptop. (Id. ¶ 12.)

Mark Johnson (“Johnson”) previously worked at Deluxe with Shaw, but was terminated in the same workforce reduction in which Shaw was terminated in May 2014. (Johnson Decl. ¶ 2 [Doc. No. 56].) Johnson states that he was in retirement for a year and a half, but came out of retirement to join Harland Clarke in early 2016 after his non-compete obligation to Deluxe had expired. (Id. ¶ 4.) Shaw had joined Harland Clarke in February 2016. (Am. Compl. ¶ 8; Shaw Answer ¶ 8 [Doc. No. 40].) A declaration submitted by Deluxe’s President John D. Filby in opposition to Johnson’s motion stated that while at Deluxe, Johnson and Shaw had worked so closely together as business development executives that other Deluxe employees referred to them as “Shawnson.” (Filby Decl. ¶¶ 3, 4 [Doc. No. 69].) Filby states that “Deluxe” has heard “in the marketplace” that the two have continued to work together at Harland Clarke and in particular to solicit Deluxe customers, but does not specify the source of the information or even whether it was Filby who heard it. (Id. at ¶ 9.)

*2 Deluxe’s Amended Complaint does not mention Johnson directly or indirectly,[2] but on December 9, 2016, Deluxe served on Johnson a subpoena duces tecum seeking

Johnson moved to quash the subpoena and for a protective order precluding Deluxe from seeking the requested discovery from Johnson. In his memorandum in support of his motion, Johnson urged the Court to quash the entire subpoena because it lacked relevance. In particular, Johnson argued that rather than seeking information related to Deluxe’s claims, the subpoena was an impermissible “fishing expedition” intended to develop new claims against Johnson, a non-party. Johnson also argued that the subpoena was so broad that responding to it would place an undue burden on him, both because of the intrusion on his personal information and because of the volume of material encompassed (although he made no attempt in his memorandum or at oral argument to quantify the volume of documents at issue or the burden of searching for and reviewing them). He further argued the documents sought by the subpoena could be just as easily obtained through discovery from the parties themselves.

*3 In response, Deluxe argued that “[c]ourts construe the relevancy requirement of Rule 26 broadly to encompass ‘any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” (Pl.’s Mem. Opp’n at 10 [Doc. No. 67] (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).) Deluxe asserted that although Johnson is not himself a party, the documents sought may yield information relevant to the claims against, and the defenses asserted by, Shaw and Harland Clarke. Deluxe noted in particular that although there are no claims directly against Johnson, because of the close working relationship between Johnson and Shaw, information in Johnson’s possession may contain circumstantial evidence supporting the claims against Shaw and Harland Clarke, and that plaintiffs in trade secret misappropriation cases are often required to rely upon circumstantial evidence to establish the alleged misconduct. Deluxe also pointed out that Johnson has been identified in Harland Clarke’s initial disclosures as a witness with knowledge upon which Harland Clarke may rely in support of its defenses in this case. As for Johnson’s argument that the subpoena is intended to “fish” for new claims against Johnson, Deluxe argued that so long as the discovery seeks information relating to the existing claims, the fact that it may also result in the assertion of new claims, perhaps against Johnson himself, is not grounds to deny it, as courts routinely allow parties to add claims based on information received in discovery. See, e.g., 3M Innovative Prop. Co. v. Tredegar Corp., No. 09-cv-3335 (DWF/AJB), 2011 WL 13141018, at *2 (D. Minn. Apr. 5, 2011).

At the hearing, Deluxe’s counsel introduced for the first time two email “strings” that appeared to show that Johnson, Shaw, and personnel from Harland Clarke had communicated about possible approaches to soliciting customers both before and after Johnson and Shaw became employees of Harland Clarke, and that Johnson and Shaw had used their personal email accounts for some of those communications. In his post-hearing letter, Johnson concedes that in light of the new information he would be willing to respond to a reasonably tailored request for (1) “non-privileged communications between Mr. Shaw and him discussing Fifth Third Bank [the customer that Shaw allegedly helped Harland Clarke steal from Deluxe] from August 1, 2015, to August 23, 2016” in Johnson’s personal email account, and (2) “non-privileged pre-employment communications with Harland Clarke regarding Mr. Shaw’s recruitment and employment.” [Doc. No. 84 at 3]. Johnson argues this more limited scope is adequate because the proposed timeline covers the period from Shaw and Johnson’s first meeting with Harland Clarke in late 2015 through the date of Deluxe’s letter to Harland Clarke and Shaw asserting that Shaw improperly downloaded Deluxe’s business files before leaving the company [Doc. No. 84 at 3 n.6], and, further, that it includes the completion of Harland Clarke’s pitch to the Fifth Third Bank.

Deluxe takes issue with Johnson’s proposed temporal and subject matter limits [Doc. No. 86]. It argues that communications between Shaw and Johnson that pre-date August 1, 2015, are relevant because Shaw might have shared one or more files with Johnson to assist in preparing to solicit Deluxe customers before their first meeting with Harland Clarke. Further, it contends communications after August 23, 2016, are also relevant because it has reason to believe Harland Clarke’s solicitation of Deluxe customers did not end with the successful wooing of Fifth Third Bank. While Deluxe does not explicitly state its willingness to limit the scope of the subpoena, however, its letter does appear to focus on communications between Shaw and Johnson, and communications between Johnson and Deluxe customers, including but not limited to Fifth Third Bank [Doc. No. 86 at 1].

Subpoenas under Federal Rule of Civil Procedure 45 “are subject to the same ‘constraints that apply to all of the other methods of formal discovery.’ ” Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 236 (D. Minn. 2013)(quotation omitted). In other words, Federal Rule of Civil Procedure 26(b)(1)describes the permissible scope of discovery, regardless of whether that discovery is directed to parties or non-parties.

Rule 26(b)(1) provides:

*4 The 2015 amendments to Rule 26 “restore[d] the proportionality factors to their original place in defining the scope of discovery.” Fed. R. Civ. P. 26advisory committee’s note to 2015 amendment. Furthermore, the oft-cited phrase “reasonably calculated to lead to the discovery of admissible evidence” that had been in the previous version was deleted by the 2015 amendments because the phrase had been used, incorrectly, to expand the scope of discovery. Id. Thus, Deluxe’s reliance upon pre-2015 case law, citing the very language deleted by the 2015 amendments, to support the idea that “[c]ourts construe the relevancy requirement of Rule 26 broadly to encompass ‘any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case’ ” is both misplaced and troubling.[3]

Even where the Court determines that the discovery sought by a subpoena is relevant, “ ‘discovery is not permitted where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.’ ” Misc. Docket Matter No. 1 v. Misc. Docket Matter No. 2, 197 F. 3d 922, 925 (8th Cir. 1999) (quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990)). Indeed, concern for the burden on non-parties carries “special weight in evaluating the balance of competing needs.” Misc. Docket Matter No. 1, 197 F.3d at 927(quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)). These considerations are echoed in the proportionality factors set forth in the amended Rule 26(b)(1).

Deluxe points out that some decisions in this District have put “the burden of establishing lack of relevancy” on the party resisting production. See, e.g., Heitzman v. Engelstad, No. 12-cv-2274 (MJD/LIB), 2013 WL 4519403, at *3 (D. Minn. July 11, 2013), aff’d, 2013 WL 4516320 (D. Minn. Aug. 26, 2013). Others have stated that the party seeking discovery must “make[ ] a threshold showing that the discovery is relevant under Rule 26(b)(1),” after which “the party resisting production bears the burden of establishing lack of relevancy or undue burden.” See, e.g., Unitherm Food Sys., Inc. v. Hormel Foods Corp., No. 14-cv-4034 (JNE/BRT), 2015 WL 13021799, at *1 (D. Minn. Nov. 13, 2015). The advisory committee notes to the 2015 amendments state that “the party seeking discovery [has] the burden of addressing all proportionality considerations,” noting in particular that “[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.” At the same time, the objecting party will ordinarily have better information about burden or expense. Id. In the end, as the advisory committee notes emphasize, it is the “collective” responsibility of the parties and the Court “to consider the proportionality of all discovery.” Thus, as the Court examines the issues presented here, it does not place the “burden” rigidly on one party or the other, but must consider all of the information brought by the parties to reach a case-specific determination about the appropriate scope of the subpoena.

Finally, Federal Rule of Civil Procedure 26(c) grants the trial court broad discretion to decide when a protective order is appropriate, and what degree of protection is necessary. May Coating Tech., Inc. v. Illinois Tool Works, 157 F.R.D. 55, 57 (D. Minn. 1994) (citations omitted). Courts use a balancing test to determine whether good cause exists, weighing the moving party’s potential burden against the opposing party’s interest in the discovery at issue. Brosdahl-Nielsen v. Walden Automotive Group, Inc., No. 04-cv-1363 (JMR/JSM), 2004 WL 6040018, at *2 (D. Minn. Nov. 24, 2004).

*5 The Court is persuaded — and Johnson essentially concedes — that the subpoena at least in part seeks information that is relevant and proportional to the existing claims and defenses in this case. That being said, the Court agrees with Johnson that, even when the additional documents introduced for the first time at the hearing are taken into account, the subpoena goes too far. While the Court acknowledges the possibility that discovery may at some point reveal a legitimate basis to draw Johnson into the litigation, there are currently no claims against him, or even claims that refer to him; the existing claims pertain to Shaw’s alleged misconduct, and to Harland Clarke’s conduct insofar as it knew or should have known of that alleged misconduct and benefited by it. Therefore, generally speaking, the scope of the subpoena should be limited to documents that will shed light on those claims, or on Harland Clarke’s defenses thereto, and should not be the launching pad for a purely exploratory mission in search of potential new claims about Johnson personally. Compare 3M Innovative Prop. Co., No. 09-cv-3335 (DWF/AJB), 2011 WL 13141018, at *2 with Roberts v. Shawnee Mission Ford, Inc., 352 F. 3d 358, 361-62 (8th Cir. 2003) (affirming district court’s decision quashing subpoena where plaintiff “assume[d] an investigatory/prosecutorial role” and “[sought] not only information to buttress her action as it presently stands, but also additional defendants [ ] to join in her suit”); Leisman v. Archway Medical, Inc., Civ. No. 14-1222, 2015 WL 4994084, at *2 (E.D. Mo. Aug. 19, 2015) (granting defendant’s protective order where plaintiff’s discovery requests constituted “a fishing expedition . . . to develop new claims”) (citing Adv. Comm.’s Notes to the 2000 Amendments to Fed. R. Civ. P. 26(b)(1)).

As for how the metes and bounds should be drawn in this instance, Johnson argues his proposal to limit the timeframe of the subpoena to the period August 1, 2015, to August 23, 2016, is reasonable because it begins with Shaw and Johnson’s first meeting with Harland Clarke and ends with the date Deluxe sent its letter to Harland Clarke accusing Shaw of improperly downloading and transferring confidential Deluxe documents, and includes the completion of the response to the Fifth Third Bank RFP. Deluxe responds that information both before and after that range is also relevant.

With regard to earlier communications, the Court agrees with Deluxe. Assuming for the sake of argument that Johnson and Shaw did not meet with Harland Clarke until August 2015, they may still have exchanged communications prior to that meeting that would be relevant to the claims and defenses in this case. For example, there may have been relevant communications with Harland Clarke prior to that first meeting, or communications between Johnson and Shaw that addressed Shaw’s hypothetical future plans for retaining and using Deluxe confidential information for the benefit of a competitor, even if that competitor had not yet been identified as Harland Clarke.

As for communications after August 2016, it may be appropriate to allow post-complaint discovery where documents requested are relevant to the claims and defenses in the case, especially where the complaint alleges continuing violations. Carlson Companies, Inc. v. Sperry & Hutchinson Co., 374 F. Supp. 1080, 1102 (D. Minn. 1973). Here, Deluxe contends the use of its confidential business information continues to play a role in Harland Clarke’s efforts to solicit new customers. Although it is a closer question, the Court believes discovery into post-Complaint communications, limited as described below, is appropriate here.

Turning to Johnson’s proposal that the scope of the subpoena be limited to communications that “discuss Fifth Third Bank,” the Court is not persuaded that the scope should be so narrowly drawn. Although its claims are certainly focused on that customer, the Amended Complaint describes Deluxe information allegedly taken by Shaw relating to a number of other customers, and refers to Harland Clarke’s success in “winning over one or more longstanding customers of Deluxe.” (Am. Compl. ¶¶ 43, 50.)

Finally, the Court considers Johnson’s argument that the information requested, at least to the extent it reflects communications with the parties to the litigation, could and should be obtained from the parties and therefore need not be sought from Johnson himself. The Court is mindful of the requirement that discovery be proportional to the needs of the case, as well as of the need to give “special weight in evaluating the balance of competing needs” where discovery is sought from non-parties. Misc. Docket Matter No. 1, 197 F.3d at 927. Among other considerations, the Court can consider whether and to what extent the discovery sought can be more easily obtained from another source, in this instance, from the parties themselves. See, e.g., Gen. Parts Distribution, LLC v. Perry, No. 12-mc-93 (SRN/SER), 2013 WL 3223374, at *5 (D. Minn. June 25, 2013) (affirming magistrate judge’s decision to quash subpoena where the information sought should have been obtained from one of the parties where possible rather than a nonparty). But Johnson’s argument overlooks that Shaw, for example, may not have kept copies of the same communications that Johnson did. No rule requires the requesting party to seek discovery from only one party to any given conversation. In addition, Johnson has not quantified in any way the volume of documents or files that might be responsive to any part of the subpoena, and therefore the Court is unable to conclude that it would be too burdensome for him to search for information that the Court finds is otherwise relevant and proportional.

*6 With those observations in mind, the Court turns to the specific requests in the subpoena.[4] The Court denies Johnson’s motion to quash insofar as the subpoena seeks non-privileged documents or communications in Johnson’s personal possession, custody or control, including in his personal email account, on his personal cellphone, or stored on personally owned devices or storage media (including “cloud” storage associated with personal accounts), but not including documents or data in his work email account or stored on company-owned devices, which reflect or relate to the following:

(1) all documents or communications sent to or received from Shaw, any employee or representative of Harland Clarke, or any employee or representative of a Deluxe customer, since July 1, 2014, that refer to Deluxe documents or business information or an intent to use Deluxe documents or business information;

(2) all documents or communications sent to or received from Shaw since July 1, 2014, that relate to possible solicitation of business from any Deluxe customer, including but not limited to Fifth Third Bank;

(3) all communications sent to or received from Shaw between July 1, 2014, and Shaw’s first day of employment with Harland Clarke that refer or relate to Shaw’s interest in, prospects for, plans for, or terms of employment with Harland Clarke;

The above includes any documents or files that are or were attached to such communications. In addition, if an email encompassed by one of the categories described above is part of a “string,” all other emails in the string must be produced even if arguably not responsive.

The Court grants Johnson’s motion to quash the subpoena and for a protective order to the extent the subpoena calls for production of documents beyond the scope described above.

Finally, it is unclear to the Court how many files, documents, emails, or texts within the stated timeframe Johnson may have to review to identify responsive documents. To the extent that Johnson and his counsel do not plan to conduct a manual, document-by-document review to identify for responsive communications, counsel shall meet and confer with counsel for Deluxe on a reasonable strategy for culling the number of documents to be reviewed.

Accordingly, IT IS HEREBY ORDERED that Non-Party Mark Johnson’s Motion to Quash Subpoena and for a Protective Order [Doc. No. 52] is GRANTED IN PART and DENIED IN PART as specifically set forth herein.

The Court also heard Plaintiff’s Motion to Compel Rule 34 Request for Inspection [Doc. No. 72] at that hearing. That motion has been addressed in a separate order [Doc. No. 88].

Deluxe’s memorandum states that Paragraph 53 of its Amended Complaint alleges “that Shaw and Harland Clarke (through Shaw, Johnson and perhaps other members of Harland Clarke’s Fifth Third Bank team) used Deluxe’s Confidential Sales Information to secure this customer.” (Pl.’s Mem. Opp’n at 6 [Doc. No. 67].) In fact, that paragraph alleges only that “Shaw and Harland Clarke presented the prospective customer pricing, guarantees, and incentives that negated some of Deluxe’s strengths, and that were not typical Harland Clarke offerings. Upon information and belief, Shaw used Deluxe Confidential Sales Information to secure this customer.” (Am. Compl. ¶ 53.) It makes no mention of Johnson whatsoever.

See Pl.’s Mem. Opp’n at 10 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Indeed, Deluxe’s memorandum contains no mention of the 2015 amendments to Rule 26(b)(1) or a single citation to a case concerning the scope of discovery that was decided after those amendments went into effect. The Court expects counsel to make sure the precedent it cites to the Court is up-to-date and consistent with the current rules.

Nothing in this Order should be read as commenting on how the Court would rule on requests directed by Deluxe to Shaw or Harland Clarke, or vice versa, nor on how the Court would rule on the scope of permissible discovery as to Johnson if new information obtained in the course of discovery or investigation gives reason to believe he has additional information relevant to the claims and defenses in the case as they then exist. With respect to the latter point, the Court assumes counsel for Johnson has advised him of his obligations with respect to the preservation of information, which may well be broader than the scope of discovery permitted at this time pursuant to this Order.