After considering the motions and record, the undersigned recommends The Honorable Ronald B. Leighton deny the Motion to Quash and for Protective Order (Dkt. 82), but direct Defendant to not receive documents from U.S. Bank for 7 days from the date of his entry of an order adopting or modifying this Report and Recommendation. This will allow the parties to meet and confer in good faith to resolve the scope and terms of a protective order. The undersigned further recommends Judge Leighton approve the parties’ Stipulated Discovery Order (Dkt. 88).

I. Motion to Quash and for Protective Order (Dkt. 82)

On February 12, 2019, Plaintiff filed the Motion to Quash and for Protective Order, requesting the Court quash a subpoena duces tecum Defendant issued to U.S. Bank National Association (“U.S. Bank”) and enter a protective order over the requested documents. Dkt. 82.

A. Motion to Quash

Plaintiff argues the Court should quash the subpoena because it seeks “irrelevant, privileged, and unduly burdensome information.” Dkt. 82, p. 4; see also pp. 4-7. Defendant asserts Plaintiff lacks standing to bring a motion to quash the subpoena served on non-party U.S. Bank on the grounds that the subpoena is irrelevant and overly broad. Dkt. 85, pp. 5-7. Defendant also maintains Plaintiff has failed to establish the documents requested from U.S. Bank are privileged or confidential. Id. at p. 7.

Before issuing a subpoena requesting “production of documents,” the party issuing the subpoena must give a copy of the subpoena with notice to other parties. Fed. R. Civ. P. 45(a)(4). On timely motion, the Court “must quash or modify a subpoena that,” in relevant part, “requires disclosure of privileged or other protected matter,” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). The Court may also quash or modify a subpoena if it requires “disclosing a trade secret or other confidential research, development, or commercial information[.]” Fed. R. Civ. P. 45(d)(3)(B)(i). But “[a] party lacks standing under [Rule] 45(c)(3) to challenge a subpoena issued to a non-party unless the party claims a personal right or privilege with respect to the documents requested in the subpoena.” Eric v. Van Cleave, 2017 WL 553276, at *6 (W.D. Wash. Feb. 10, 2017) (citations omitted); see also Campagnolo S.R.L. v. Full Speed Ahead, Inc., 2010 WL 11527270, at *1 (W.D. Wash. Jan. 4, 2010) (citations omitted). Hence, a party lacks standing to object to a subpoena issued to a non-party on grounds that the subpoena seeks irrelevant information or would impose an undue burden, “especially where the non-party, itself, has not objected.” First American Title Ins. Co. v. Commerce Assocs., LLC, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017) (citation and quotation marks omitted).

*2 Here, the evidence shows that on January 30, 2019, Defendant’s counsel issued a “Notice of Intent to Subpoena U.S. Bank National Association.” See Dkt. 82-1; Dkt. 89-1, Yanick Dec., ¶ 5. In the attached subpoena, Plaintiff commanded U.S. Bank produce “[a]ll documents, including communications, relating or referring to” Plaintiff and Defendant on several items. See Dkt. 82-1, p. 6. Plaintiff also requested U.S. Bank produce “[a]ll communications” with Plaintiff. Id.

On February 12, 2019, counsel for Defendant spoke with counsel for U.S. Bank about the relevant documents U.S. Bank may have in its possession. Dkt. 86, Gohmann Bigelow, ¶ 2. On February 14, 2019, Defendant’s attorney and counsel for U.S. Bank participated in a follow-up phone call, during which the attorneys agreed to two categories of documents U.S. Bank may have “and which [Defendant] would deem sufficient to comply fully with the subpoena.” Dkt. 86, Gohmann Bigelow, ¶ 4. Counsel for Defendant sent a letter to U.S. Bank’s attorney that day, memorializing the scope of documents the parties agreed U.S. Bank would produce in compliance with the subpoena. Id.; see also id. at pp. 5-6. In pertinent part, Defendant’s counsel confirmed U.S. Bank would produce: (1) documents, including communications, “referring or relating to [Plaintiff’s] finances or financial status,” and (2) documents, including communications, “referring or relating to any disputes, or their basis, between [Plaintiff] and [Defendant],” including the present litigation, the work Plaintiff performed for Defendant, and invoices Plaintiff sent to Defendant. Dkt. 86, pp. 5-6.

Plaintiff argues the Court should quash the subpoena because it seeks irrelevant, unduly burdensome, and overly broad information. Dkt. 82, pp. 4-7. But a party has standing to move to quash a subpoena issued to a non-party only to the extent the subpoena seeks documents over which the party has a “personal right or privilege.” Van Cleave, 2017 WL 553276, at *6 (citations omitted); see also Silcox v. AN/PFG Acquisitions Corp., 2018 WL 1532779, at *2 (W.D. Wash. Mar. 29, 2018) (denying a motion to quash a subpoena served to a non-party where the moving party did “not have a personal right or privilege with regard to the documents sought”); Equal Emp’t Opportunity Comm’n v. Cheesecake Factory, Inc., 2017 WL 3887460, at *8 n.13 (W.D. Wash. Sept. 6, 2017) (finding a party lacked standing to object to “third-party subpoenas on grounds of irrelevance, overbreadth, and proportionality”); Campagnolo S.R.L., 2010 WL 11527270, at *1 (collecting cases) (“A party generally lacks standing under [Rule] 45 to challenge a subpoena issued to a third party absent a claim of privilege, proprietary interest, or personal interest in the subpoenaed matter.”).

Plaintiff relies on Scanlon v. Life Ins. Co of N. Am, 2008 WL 11343466, at *3 (W.D. Wash. Dec. 12, 2008), for the proposition that this Court has previously granted a motion to quash a subpoena issued to a non-party because the material sought was “neither material nor probative of the determinative issues presented in th[e] case.” Dkt. 89, p. 6 (alteration in original); see also Dkt. 82, pp. 7-8. In Scanlon, however, the non-party who had been issued the subpoena entered a limited appearance in the case, requesting the Court protect it from any undue burden or expense. See Scanlon, 2008 WL 11343466, at *2. As U.S. Bank has not entered an appearance in this case or otherwise moved to quash the subpoena, Scanlon is distinguishable. Additionally, Defendant has asserted an affirmative defense and a counterclaim alleging Plaintiff overbilled Defendant in violation of the parties’ contract and Plaintiff failed to cure this “default.” See Dkt. 27 (“Answer to Complaint”), pp. 6, 13, 17, 19-20. Accordingly, any documents relating to Plaintiff’s alleged default – including bank records – fall within the scope of relevant discovery, and Plaintiff’s argument is unavailing. See Fed. R. Civ. P. 26(b)(1) (the scope of discovery includes “any nonprivileged matter that is relevant to any party’s claim or defense”).

*3 Plaintiff also requests the Court quash the subpoena “to the extent it seeks disclosure of [Plaintiff’s] confidential information,” including “financial” and “sensitive commercial information.” Dkt. 82, p. 6. As previously stated, a party may move to quash a subpoena if the party has a personal right or privilege in the subpoenaed documents. See, e.g., Van Cleave, 2017 WL 553276, at *6. But the Supreme Court has held there is no right to “ownership nor possession” in bank records. United States v. Miller, 425 U.S. 435, 440 (1976) (abrogated by statute on other grounds). “Instead, these are the business records of the banks.... All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the bank[.]” Id. at 440, 442; see also Brown v. Sperber-Porter, 2017 WL 10409840, at *3 (D. Ariz. Nov. 6, 2017) (denying motion to quash a subpoena issued to a bank because the moving party did not explain how the bank records were privileged or otherwise protected); In re Rule 45 Subpoena Issued to JP Morgan Chase Bank, N.A., 319 F.R.D. 132, 134 (S.D. N.Y. 2016)(citations omitted) (“sensitive financial information is generally discoverable in federal court”); U.S. Bank Nat’l Ass’n v. James, 264 F.R.D. 17, 18-19 (D. Me. Feb. 21, 2010) (quoting Miller, 425 U.S. at 436, 438, 440-45) (“Here, the defendant asserts a privilege [in bank records subpoenaed by plaintiff], but does not identify that privilege ... He cites no authority in support of this assertion. Federal law is to the contrary. The Supreme Court has determined that a customer’s bank records ‘lack ... any legitimate expectation of privacy’ and held that subpoenas seeking a party’s bank records may not be quashed on this basis.”).

Furthermore, Plaintiff objects to the subpoena “to the extent it seeks trade secrets, confidential, business ... proprietary, competitive or sensitive commercial information[.]” Dkt. 82, p. 6. Plaintiff’s arguments that the subpoena may disclose trade secrets or other proprietary information are speculative and contain only conclusory allegations that the subpoena could produce this type of information. Plaintiff provides no evidence or particularized argument showing the scope of documents will impede on any such right or privilege. See Bodyguard Prods., Inc. v. Doe 1, 2018 WL 2387841, at *2 (W.D. Wash. May 25, 2018) (denying a party’s motion to quash a subpoena issued to a non-party where the moving party failed to show the subpoena required “disclosure of privileged or otherwise protected information”); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 592-93 (D. Kan. 2003) (“broad, general assertion that production” of bank records would put moving party “at a competitive disadvantage” is insufficient to meet the burden in a motion to quash).

Plaintiff similarly objects to the subpoena “to the extent” it “seeks documents authored or received” by U.S. Bank’s legal counsel. Dkt. 82, pp. 4-5. Although the current scope of the documents to be produced includes documents relating to the present litigation, neither the text of the subpoena nor defense counsel’s letter memorializing the scope of the subpoena indicate the produced documents would include attorney communications. See Dkt. 82-1, p. 6; Dkt. 86, pp. 5-6. Additionally, Defendant agrees U.S. Bank “may withhold” and “provide a privilege log” regarding any responsive documents that are privileged, or “seek a protective order” over any “responsive documents [that] are confidential and proprietary.” Dkt. 85, p. 7.

Accordingly, Plaintiff fails to meet its burden of showing the subpoena impedes on any protected right or privilege. See Doutherd v. Montesdeoca, 2018 WL 3008867, at *2 (E.D. Cal. June 15, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)) (although defendant had standing to move to quash a subpoena issued to a non-party based on “its own confidential business records,” defendant’s “conclusory statement” that such records would be produced was “insufficient to carry its burden of demonstrating that it ha[d] a privacy interest in the requested documents”); DirecTV, Inc. v. Richards, 2005 WL 1514187, at *1, *4 (D. N.J. June 27, 2005) (in subpoena issued to non-party bank, “[d]efendant only offers vague legal conclusions and speculates about the existence of a personal privilege ... Defendant has not proven the existence of a threatened privilege.”); see also Malden Transp., Inc. v. Uber Techs., Inc., 2018 WL 5808422, at *2 (W.D. Wash. Nov. 6, 2018) (overruling discovery objections where the objecting party did not provide “any evidence in support of their speculative and conclusory arguments”).

*4 In sum, the undersigned finds Plaintiff lacks standing to object to the breadth and relevance of documents the subpoena issued to U.S. Bank seeks to produce. Moreover, any documents relating to Plaintiff’s alleged default – including bank records – fall within the scope of relevant discovery. The undersigned further concludes Plaintiff has failed to meet its burden of showing the responsive documents would impede on any protected right or privilege. The undersigned therefore recommends the Court deny the Motion to Quash.

B. Motion for Protective Order

Plaintiff also requests the Court enter a protective order regarding the proposed subpoena to U.S. Bank. Dkt. 82, pp. 4-11. Pursuant to Federal Rule of Civil Procedure 26(c):

This Court’s Local Civil Rules likewise require any motion for a protective order “include a certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good faith meet and confer conference with the other affected parties in an effort to resolve the dispute without court action.” LCR 26(c). Local Civil Rule 26 states “[t]he certification must list the date, manner, and participants to the conference.” If a certification is not included, the Court many deny the motion without addressing the merits. LCR 26(c).

As explained above, Defendant’s attorney issued a “Notice of Intent to Subpoena U.S. Bank National Association” on January 30, 2019. See Dkt. 82-1; Dkt. 89-1, Yanick Dec., ¶ 5. Counsel for Defendant and U.S. Bank had their first phone call regarding the subpoena on February 12, 2019. Dkt. 86, Gohmann Bigelow, ¶ 2. That same day, counsel for Defendant and Plaintiff participated in a phone call regarding the scope of the subpoena issued to U.S. Bank. Id.at ¶ 5; Dkt. 89-1, Yanick Dec., ¶ 12. Both parties contend they met and conferred but were unable to come to a resolution because the opposing party would not reasonably compromise regarding the scope of the subpoena. SeeDkt. 86, Gohmann Bigelow, ¶ 5; Dkt. 89-1, Yanick Dec., ¶ 12. Plaintiff’s counsel filed the Motion to Quash and for Protective Order later that day. Dkt. 86, Gohmann Bigelow, ¶ 7; see also Dkt. 82. Two days later, on February 14, 2019, Defendant’s attorney participated in a second phone call with counsel for U.S. Bank, during which the attorneys agreed to the two categories of documents U.S. Bank would produce. Dkt. 86, Gohmann Bigelow, ¶ 4.; see also id. at pp. 5-6.

While the parties contend they met and conferred regarding the subpoena dispute, the evidence shows the parties have only engaged in discussions regarding the initial scope of the subpoena. The parties discussed the subpoena two days prior to Defendant and U.S. Bank second conversation about what documents U.S. Bank would produce. The evidence shows that during those discussions, Defendant and U.S. Bank narrowed the substantive scope and time period of the relevant documents. Compare Dkt. 82-1, p. 6 (subpoena) with Dkt. 86, pp. 5-6 (defense counsel’s letter to U.S. Bank). Hence, the parties have not met and conferred regarding the current scope of documents to be produced in compliance with the subpoena, and as such, the parties did not fail to come to a resolution prior to involving the Court.

*5 As the evidence shows the parties have not attempted to resolve any dispute regarding the documents to be produced in compliance with the subpoena, the parties have not reached an impasse regarding the current scope of the subpoena. Thus, the undersigned finds the parties have not completed the meet and confer requirement and recommends the request for a protective order be denied at this time. See Beasley v. State Farm Mut. Auto. Ins. Co., 2014 WL 1268709, at *3 (W.D. Wash. Mar. 25, 2014) (denying motion to compel when there is no suggestion that the parties reached impasse before the plaintiff filed his motion); Branch Banking & Trust Co. v. Pebble Creek Plaza, LLC, 2013 WL 12176465, at *1 (D. Nev. July 26, 2013) (citation and quotation marks omitted) (judicial intervention is appropriate only when “informal negotiations have reached an impasse on the substantive issue in dispute”).

Nonetheless, because the parties may be able to resolve the scope and terms of a protective order after meeting and conferring, the undersigned recommends Judge Leighton direct Defendant to not receive the subpoenaed documents from U.S. Bank for 7 days from the date of hs entry of an order adopting or modifying this Report and Recommendation. During that period, the parties shall, in good faith, engage in discussions regarding whether a protective order is appropriate and, if so, the scope and terms thereof. After that seven-day period, the parties may, if necessary, file a joint or single-party motion for a protective order. The parties should only seek Court intervention if they reach an impasse on a substantive issue.

C. Request for Fees and Costs

Both parties move for the opposing party to be ordered to pay attorney’s fees and expenses related to the request for a protective order. Dkt. 82, p. 9; Dkt. 85, p. 10; see also Fed. R. Civ. P. 26(c)(3); Fed. R. Civ. P. 37(a)(5). As the undersigned finds the parties have not completed the meet and confer requirement as to the current scope of the subpoena, the undersigned recommends Judge Leighton decline to award fees and expenses.

II. Stipulated Discovery Order (Dkt. 88)

On February 21, 2019, the parties filed the Stipulated Discovery Order regarding the discovery of electronically stored information in this matter. See Dkt. 88. At the telephonic conference held March 14, 2019, the parties represented that they remain in agreement regarding the terms of the Stipulated Discovery Order. The undersigned therefore recommends Judge Leighton approve the Stipulated Discovery Order (Dkt. 88).

III. Conclusion

In conclusion, the undersigned recommends Judge Leighton deny the Motion to Quash and for Protective Order (Dkt. 82). However, the undersigned recommends Defendant be directed to not receive documents from U.S. Bank for 7 days from the date of Judge Leighton’s entry of an order adopting or modifying this Report and Recommendation, so the parties may meet and confer regarding the current scope of the subpoena and whether a protective order is appropriate.

The undersigned also recommends Judge Leighton approve the Stipulated Discovery Order (Dkt. 88).

The parties may file written objections to this Report and Recommendation on or before April 2, 2019. See Dkt. 52, p. 2 (“The parties shall have a reasonable time to object.”); see also Fed. R. Civ. P. 53(f)(2) (allowing the Court to set the time for objections). The Clerk is directed to set the matter for consideration on April 5, 2019, as noted in the caption.

Also pending are Plaintiff’s Motion to Compel (Dkt. 83), Plaintiff’s Motion to Strike Unauthorized Surreply (Dkt. 96), and Defendant’s Motion to Compel (Dkt. 97). The undersigned will hold oral argument on the motions to compel on March 26, 2019 and will thereafter issue a report and recommendation on these motions. See Dkt. 100.