I. BACKGROUND

A. Overview of Case

This case arises out of a multi-million dollar loan between Plaintiff BMO Harris Bank, N.A. (“BMO”), a commercial bank, and its borrower, A.B.L. Farms, Inc. (“ABL”), on which ABL defaulted. BMO alleges that in October 2014, it entered into the loan transaction with ABL based on misrepresentations that Richert Funding, a factoring company, and its principals, Defendants Dwight Richert and Bart Garbrecht, made to BMO concerning Defendants' prior financial agreements and security interests with ABL. BMO further alleges that when it was underwriting the loan, Richert Funding prepared and submitted to BMO false and misleading financial statements and accounts receivable data. In November 2015, BMO brought this action against Richert Funding, Richert, and Garbrecht for fraud, fraudulent inducement, and conspiracy to commit fraud. [See Doc. 8.]

B. The Subpoena to Nonparty BB&T

During the summer of 2015, ABL and its affiliate Southern Melon Distributors, Inc. (“Southern Melon”) were involved in a purported check kite scheme using ABL's accounts at BMO and Southern Melon's accounts at BB&T in an attempt to inflate their apparent assets. BB&T became aware of the scheme on Friday August 14, 2015. Later that day, BB&T advised BMO of the purported check kite.

On September 14, 2016, Richert Funding served a subpoena to produce documents on nonparty BB&T seeking documents relating to BB&T's relationship with Southern Melon. [Doc. 95-1.] After a lengthy definitional section, the subpoena requested ten broad categories of electronic and “hard-copy” documents, including virtually every record relating to Southern Melon's accounts at BB&T:

[Doc. 95-1 at 5-6.]

The subpoena demanded that BB&T produce the documents at noon on September 23, 2016—nine days after service—at Richert Funding's counsel's office in Boca Raton, Florida. [Doc. 95-1 at 1.]

On September 23, 2016, BB&T served objections to the subpoena. [Doc. 95-2.] BB&T objected generally that the subpoena failed to provide a reasonable period of time for BB&T to review and produce responsive documents. [Id. at 2.] It also objected to the subpoena in its entirety on the ground that the cost to review and produce the materials would result in significant expense to BB&T. [Id.] BB&T then went on to lodge specific objections to each of the ten requests, including that each request sought documents that have no apparent relevance to this action and that the burden on BB&T to produce the documents was not proportional to the needs of the parties. [See id. at 3-15.]

Over the next several days, counsel for BB&T and Richert Funding engaged in verbal and written communications in an effort to resolve BB&T's objections. [See Docs. 95-3, 95-4, 101-6.] But by September 30, 2016, they had reached an impasse. BB&T's last offer was to produce the following items relating to BB&T's lending relationship with Southern Melon, which it had previously produced in the PACA Lawsuit:

According to BB&T, its proposed production would consist of 3,012 pages of documents. [See Doc. 95-3 at 14.] BB&T also insisted on four conditions to production: (1) the production on payment of $1,190.50 to cover its costs of production; (2) certification or written assurance that ABL and the Letsingers have been notified of the subpoena; (3) certification that Richert Funding would treat the production as confidential under the terms of the protective order in the PACA Litigation; and (4) written confirmation that the production would satisfy BB&T's obligations under the subpoena. [Docs. 95-3 at 14, 95-4.]

On November 3, 2016, Richert Funding filed the motion to compel presently before the Court. Richert Funding asks that the Court (1) overrule all of BB&T's objections to the subpoena; (2) compel BB&T to produce all responsive non-privileged documents; and (3) direct BB&T to provide a privilege log indicating any responsive documents that it withholds from production. [Doc. 95 at 13.] On November 21, 2016, BB&T filed its response. [Doc. 101.] Due to the stay in discovery between November 11, 2016 and December 9, 2016, the Court held oral argument on the motion on December 12, 2016, the first business day following expiration of the stay. The motion is now ripe for resolution.

II. APPLICABLE STANDARD

*3 Federal Rule of Civil Procedure 45 governs discovery from a nonparty by subpoena. Rule 45 provides that a party may command a nonparty to “produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii). The scope of discovery for a nonparty is the same as the scope of a discovery request made upon a party to the action under Rule 26. See Am. Fed'n of State, Cty. & Mun. Emps. (AFSCME) Council 79 v. Scott, 277 F.R.D. 474, 476 (S.D. Fla. 2011).

A nonparty may object to a subpoena for the production of documents by serving written objections to the propounding party. Fed. R. Civ. P. 45(d)(2). The objection must be served within the earlier of either the date of compliance or fourteen days after the subpoena is served. After the nonparty makes a written objection, “the party serving the subpoena may not have access to the requested documents absent a court order, but may at any time move for an order to compel document production.” Kilopass Tech. Inc. v. Sidense Corp., No. C 10-02066 SI, 2011 WL 2470493, at *2 (N.D. Cal. June 21, 2011); see also Fed. R. Civ. P. 45(d)(2)(B)(i).

III. DISCUSSION

A. The Court Rejects Richert Funding's Assertion that BB&T's Objections are “Boilerplate.”

Richert Funding argues that all of BB&T's objections should be overruled because BB&T's objections are “boilerplate,” and thus, violate the Court's standing order, which prohibits boilerplate objections. The Court observes that BB&T has asserted some specific objections that appear to be unnecessary. For example, BB&T asserted privilege objections to Requests No. 8 and 10, even though those requests explicitly call for the production of “non-privileged” documents. But the Court does not find that all of BB&T's objections are “boilerplate,” especially BB&T's relevancy and undue burden objections. Those objections are explicitly tailored to the circumstances of this case; not the one-size-fits-all rote objections that all too often pollute discovery responses. Accordingly, the Court declines to overrule all of BB&T's objections.

B. Richert Funding Has Not Met Its Burden to Show that the Requested Documents Are Relevant.

Richert Funding argues that the requests are “narrowly tailored in both scope and time, and seek documents relevant to the claims and defenses asserted by BMO and Richert Funding.” [Doc. 95 at 8.] The Court disagrees.

First, the requests cannot fairly be characterized as narrowly tailored in scope or in time. With the exception of Requests No. 5 and 8, none of the requests places any limit on time, and Request No. 8 seeks communications from January 1, 2014 to the “present,” going far beyond the date restrictions that the parties negotiated. In fact, it is apparent that Richert Funding authored the requests to be as broad as possible. Take for example Request No. 8, which seeks all documents (including electronically stored information) “evidencing communications” between BB&T and any of Southern Melon, ABL, or the Letsingers since 2014, long before the alleged check kite. [Doc. 95-1 at 7.] Not only does the subpoena ask for the production of all communications, it also broadly defines BB&T, Southern Melon, and ABL to include all corporate parents and affiliates as well as anyone acting or purporting to act on its behalf, including its officers, directors, employees, and agents. [Id. at 5-6.]

*4 But even assuming that the requests were, in fact, narrow in scope and time, Richert Funding has not come close to meeting its burden of showing that the requested documents have any relevance to the claims and defenses in this action.[2] Richert Funding asserts that documents relating to the check kite are relevant to determining whether BMO failed to properly administer its loans with ABL and whether any losses that BMO suffered were therefore caused by parties other than Richert Funding. [Doc. 95 at 8-9.] But Richert Funding makes no attempt to demonstrate how evidence surrounding the apparent check kite could shift any loss that could be ultimately attributable to it onto another party. Instead, Richert Funding repeats its conclusory assertion that the check kiting scheme could show just that. [See Doc. 95 at 2, 4, 9, 12-13; 95-3 at 2.]

At oral argument on this motion, counsel for Richert Funding provided some more focus to its argument, asserting that the evidence could show that BMO should have been aware of the check kiting at an earlier date, and, if it had been, it may not have extended a loan or as large of a loan to ABL.[3]The problem with that argument is that the check kite was discovered in mid-August 2015, well after BMO entered into the loan agreement with ABL and advanced funds. Further, there is no indication or assertion that the check kiting predated any loan that BMO extended to ABL. Thus, Richert Funding has not made a credible argument that any amount of due diligence on BMO's part could have uncovered a check kite scheme before BMO entered into the loan agreement or advanced funds.

When asked about how evidence relating to the check kite could be relevant given the timing issue, Richert Funding's attorney stated that he did not know. Counsel suggested that BMO could have taken some steps at that point to limit its losses with ABL, but failed to suggest how that could be the case. On this record, and without any real guidance from Richert Funding's counsel at the hearing, the Court fails to understand how BMO could have mitigated its damages based on events that occurred after the loan was extended. Accordingly, the Court fails to see how BB&T's or BMO's discovery of the check kite has any bearing on the claims or defenses in this case.[4]

C. The Subpoena Did Not Provide Adequate Time for Compliance.

BB&T also objected to the Subpoena on the basis that it “fail[ed] to allow a reasonable time to comply, as required by Fed. R. Civ. P. 45(d)(3)(i).” [Doc. 95-2 at 1.] Richert Funding makes three arguments as to why this objection should be overruled. Each argument fails.

*5 First, Richert Funding asserts that under Rule 45, a nonparty must file a motion to quash in order to object that the subpoena does not allow a reasonable time for compliance. [Doc. 95 at 10.] Richert Funding cites no cases that support its argument, and Rule 45 itself does not support its argument either. Rule 45 requires that the court “quash or modify a subpoena that: (i) fails to allow a reasonable time to comply.” Fed. R. Civ. P. 45(d)(3)(A)(i). Properly understood, that section of Rule 45 provides instructions to the court on what it must do to protect nonparties from overly burdensome subpoenas. It does not, however, specify that the only way a party can raise a timeliness objection is through a motion to quash. The Court sees no reason why such an objection must be raised only in a formal motion, especially when other grounds for quashing a subpoena listed in Rule 45(d)(3)(A) – including that the subpoena seeks privileged information or that it subjects a person to undue burden – are commonly raised in Rule 45(d)(2) objections. In fact, BB&T asserted those objections here, and yet Richert Funding does not contend that those objections had to be raised in a motion to quash. The only reasonable way to read Rule 45 is that a nonparty who receives a subpoena for the production of documents can raise a timeliness objection two ways, either by serving a written objection under Rule 45(d)(2)(B) or filing a motion to quash under Rule 45(d)(3).

Second, Richert Funding argues that nine days was a sufficient period of time for BB&T to produce documents in response to the subpoena because BB&T had made an earlier production in the PACA Lawsuit. [Doc. 95 at 11.] Richert Funding further points out that 50 days have elapsed since the Subpoena was originally served, and yet BB&T has still not produced a single document to Richert. [Id.] Those arguments are meritless. True, at the time that Richert Funding moved to compel, BB&T had not produced a single document. But BB&T objected to the subpoena, which under Rule 45(d)(2), relieved it of its responsibility to produce any documents in response to the subpoena, and shifted the burden to Richert Funding to file a motion to compel the production of documents. See Fed. R. Civ. P. 45(d)(2). Also, Richert Funding's subpoena seeks far more than just the documents that BB&T produced in the PACA Lawsuit, and it is readily apparent to the Court, especially after oral argument, that nine calendar days would not have given BB&T adequate time to complete the production in compliance with the letter of the subpoena.[5] Accordingly, the Court sustains BB&T's objection to the subpoena on the grounds that it did not provide a reasonable period of time for compliance.

D. The Court Will Direct BB&T To Produce the Documents Produced in the PACA Litigation Upon Payment of Costs.

Even though the Court fails to see the relevance of the documents that Richert Funding has requested and the subpoena itself was overbroad and failed to provide reasonable time for BB&T to comply, the Court recognizes both that BB&T has stated that it is willing to produce the documents it produced in the PACA Lawsuit and that Richert Funding is willing to pay the costs of the production. In light of those positions, the Court deems that, should Richert Funding still wish to pay for the production of those documents, it is appropriate to direct BB&T to produce to the Richert Funding the documents it produced in the PACA Lawsuit. [See Doc. 95 at 12 n.3.] The production shall be made pursuant to the protective order in this case.[6] BB&T shall produce the documents within fourteen (14) days after it or its counsel receives the $1,190.50 payment.

E. Fee Shifting Under Rule 45(d)(1).

*6 Rule 45 provides that “[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.” Fed. R. Civ. P. 45(d)(1). The Court is required to enforce this duty and, where appropriate, order the party or attorney who fails to comply to pay the nonparty's attorney fees and expenses. Id. The nonparty opposing the subpoena bears the burden of demonstrating that compliance with a subpoena presents an undue burden; however, the party seeking to enforce a subpoena bears the burden of demonstrating that the requests are relevant. Fadalla v. Life Auto. Prods., Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007). To determine whether a subpoena imposes an undue burden, courts consider the relevance of the discovery sought, the requesting party's need for the documents, and the potential hardship to the nonparty subject to the subpoena. Sams v. GA W. Gate, LLC, 316 F.R.D. 693, 697 (N.D. Ga. 2016) (King, M.J.); see also Great Am. Ins. Co. v. Veteran's Support Org., 166 F. Supp. 3d 1303, 1310 (S.D. Fla. 2015).

BB&T expressly seeks an award of fees and costs in its response brief. [See Doc. 101 at 23-25.] Richert Funding did not file a reply.[7]

Based on the record before the Court, the Court believes that Richert Funding failed to take reasonable steps to protect BB&T from undue burden and expense. As discussed above, Richert Funding served a subpoena with an unreasonable date of compliance and then took a hard-nosed approach with respect to BB&T's relevancy and undue burden objections. The requests for production were also extraordinarily broad in both scope and time, even though Richert Funding now appears to contend that just records pertaining to the check kite scheme are relevant. In addition, the burden that would have been imposed on BB&T was made more problematic because the Court is unconvinced—even after thorough briefing and oral argument—that BB&T's handling of the check kite scheme has any real bearing on the claims and defenses in this case. See Sams, 316 F.R.D. at 697.

Because the documents sought by the subpoena have no apparent relevance to this action, the Court is particularly troubled by Richert Funding's unwillingness to limit the scope the subpoena. The correspondence between counsel for BB&T and Richert Funding shows that Richert Funding did little more than offer bare assertions that the requested materials were relevant. Specifically, on September 27, 2016, Richert Funding's counsel responded in writing to BB&T's relevancy objections, but gave no substantive reason why the requested materials were relevant to this action. Instead, Richert Funding's counsel demanded that BB&T abandon the objections because they were “boilerplate,” which as discussed above, was not an accurate characterization of the objections. [See Doc. 95-3 at 2.] Also, Richert Funding's counsel did not explain why the requested information was relevant, but instead simply argued by assertion that the requests sought materials relevant to the case. [Id.] The bottom line was that Richert Funding made no real effort to explain to BB&T why the requested information—especially electronically stored information and documents relating to BB&T's discovery of the check kite—was relevant to the claims and defenses in this case. As previously discussed, Richert Funding has also not convinced the Court of any such relevance.

*7 After some additional back-and-forth between counsel, on September 29, 2016, counsel for Richert Funding gave BB&T an ultimatum to either produce “all records within BB&T's possession, custody, and control responsive to the subpoena by 4:00 p.m. today” or assure Richert Funding by 4:00 p.m. that day that “all such records will be produced ... today.” [Doc. 101-6 at 3 (emphasis supplied).] Given the lack of relevance of the materials, the breadth of the requests, and Richert Funding's unwillingness or inability to articulate why the requested material is relevant, the Court cannot find that it was reasonable for Richert Funding to insist on complete compliance with the subpoena – especially on such a tight time deadline. Nor was it reasonable for Richert Funding to move to compel BB&T to produce all responsive documents.

The Court's only hesitation in shifting fees and expenses is that BB&T demanded that, before it would provide Richert Funding with copies of the documents it produced in the PACA Lawsuit, Richert Funding first agree that the production would satisfy BB&T's obligations under the subpoena. The Court is sympathetic to defense counsel's concern about making such an agreement without seeing the documents first. But even if BB&T made a partial production, it is obvious that Richert Funding would have sought judicial intervention to compel the production of other documents responsive to the subpoena, including electronically stored information, that have no have no apparent relevance to this action.

Accordingly, under Rule 45(d)(1), the Court concludes that BB&T should recover its fees and expenses in opposing the motion to compel.

IV. CONCLUSION

For the foregoing reasons, Richert Funding's Motion to Compel BB&T to Produce Documents Responsive to Amended Subpoena Duces Tecum [Doc. 95] is DENIED.

It is FURTHER ORDERED that within fourteen (14) days from the date of this Order BB&T's counsel shall submit to the Court competent evidence that sets forth the fees and expenses that BB&T incurred in connection with responding to the motion to compel and demonstrates the reasonableness of such fees and expenses. Richert Funding will have fourteen (14) days thereafter to respond to BB&T's evidence and the Court's decision to award fees and expenses.

It is FURTHER ORDERED that, should Richert Funding elect to pay the costs of production, BB&T shall produce to Richert Funding the documents that BB&T produced in the PACA Lawsuit within fourteen (14) days of BB&T's receipt of advance payment from Richert Funding in the amount of $1,190.50. Such production shall be made pursuant to the protective order in this case.

IT IS SO ORDERED this 27th day of December, 2016.

The Perishable Agricultural Commodities Act (“PACA”) Lawsuit refers to the related case Evergreen Farms & Produce, LLC, et al. v. ABL Farms, Inc., et al., No. 1:15-cv-3171-AT, which is pending in this Court.

BB&T, citing to Richert Funding's good-faith letter, asserts that Richert conceded that “not all of the categories [that it requested in the subpoena] are facially relevant.” [Doc. 101.] The Court takes issue with that assertion. In its letter, Richert Funding asserted, “Most if not all of the categories are facially relevant to the parties' claims ....” [Doc. 95-3 at 2.] That assertion could be damaging enough made by the party that has the burden of establishing relevance. Nevertheless, BB&T manipulated the quote, deleting the words “[m]ost if” from its beginning, and in so doing altered the meaning of the sentence. In essence, Richert Funding was hedging as to whether the relevance of everything it asked for was apparent on its face, and BB&T changed the sentence to make it look like a concession. I therefore find BB&T's assertion completely unconvincing.

The Court issues this order before a transcript of the hearing has been finalized, but all assertions made about the hearing are based on a review of the recording of the hearing.

It also follows that Richert Funding has not demonstrated how discovery regarding how BB&T became aware of the check kiting scheme is relevant to this action.

Rule 45(d)(3) does not set a minimum amount of time required to be considered a reasonable time to comply, so courts make the determination of reasonableness on a case-by-case basis. See Stern v. Shelley, Nos. 3:09-CV-00082-JTC-RGV, 4:08-CV-2753-TLW, 2009 WL 9156145, at *11 (N.D. Ga. Aug. 31, 2009). Unsurprisingly, courts have found that a deadline of nine days can be unreasonable. See, e.g., AngioScore, Inc. v. TriReme Med., Inc., No. 12-cv-03393-YGR(JSC), 2014 WL 6706898, at *1 n.1 (N.D. Cal. Nov. 25, 2014) (nine days inadequate); Dixon v. Greyhound Lines, Inc., No. CIV. A. 13-179-JWD-RLB, 2014 WL 6474355, at *4 (M.D. La. Nov. 19, 2014) (nine days, including three over Labor Day holiday, unreasonable); Thomas v. IEM, Inc., No. CIV. A. 06-886-B-M2, 2008 WL 695230, at *3 (M.D. La. Mar. 12, 2008) (concluding that nine business days (15 calendar days) was “clearly inadequate” given the breadth of the requests).

As noted above, one of BB&T's conditions for producing the documents was certification from Richert Funding that it had notified ABL and the Letsingers of the subpoena. [See Doc. 95-4 at 1.] Under Georgia law, a party seeking the disclosure or production of certain types of financial records from a financial institution is required to “provide notification to the depositor or other customer of such request,” and “the financial institution may rely upon appropriate certification or written assurances from the requesting party.” O.C.G.A. § 7-1-360(b). The Court will not require Richert Funding to make such a certification for ABL or the Letsingers, as they do not appear to be depositors or customers of BB&T, and, therefore, fall outside the scope of persons who are entitled to notice under O.C.G.A. § 7-1-360(b). The Court is confident that any concerns regarding confidentiality of materials will be adequately addressed by the protective order in this case.

The award of fees and expenses under Rule 45 is a non-dispositive discovery order; thus, a magistrate judge has authority under 28 U.S.C. § 636(b)(1)(A) and Rule 72(a) to order expenses shifted under Rule 45. See Cincinnati Ins. Co. v. Cochran, No. 5:05CV93/RV/MD, 2005 WL 5277203, at *6 (N.D. Fla. Sept. 22, 2005), aff'd, 198 F. App'x 831 (11th Cir. 2006); Batture Fleet, Inc. v. Browner, No. CIV. A. 00-0205, 2000 WL 748093, at *2 (E.D. La. June 8, 2000); cf. Hopkins v. JPMorgan Chase Bank, NA, 618 F. App'x 959, 961-62 (11th Cir. 2015)(describing a magistrate judge's order imposing sanctions for spoliation under Rule 37 as non-dispositive), cert. denied, 136 S. Ct. 1826 (2016).