*1 Before the court is the motion, filed on February 21, 2020, by the defendant, City of Memphis, Tennessee (the “City”), to quash the subpoenas duces tecum issued to nonparties Kemp Conrad (“Conrad”) and Commercial Advisors, LLC (“Commercial Advisors”) on February 6, 2020 by the plaintiffs, Elvis Presley Enterprises, Inc., EPPF, LLC, and Guesthouse at Graceland, LLC (collectively “EPE”), or in the alternative for a protective order prohibiting discovery of the documents sought. (Def.'s Mot., ECF No. 185.) On February 20, 2020, Conrad and Commercial Advisors each filed objections to the subpoenas. (Conrad's Notice of Obj., ECF No. 180; Commercial Advisors' Notice of Obj., ECF No. 183.)[1] On March 6, 2020, EPE filed a response to the City's motion along with a combined motion and incorporated memorandum of law to compel Conrad and Commercial Advisors to produce documents responsive to the subpoenas. (Pl.'s Resp. & Mot. to Compel, ECF No. 213.) The court granted the City leave to file a reply to EPE's combined response and motion to compel on March 23, 2020. (Order, ECF No. 229.) The City filed its reply on March 23, 2020. (Def.'s Reply, ECF No. 231.) The motions have been referred to the United States Magistrate Judge for determination. (Order of Reference, ECF No. 240.) For the reasons that follow, the City's motion to quash and for a protective order is granted. EPE's motion to compel Conrad and Commercial Advisors to produce documents responsive to the subpoenas is denied.

I. BACKGROUND

On February 6, 2020, EPE served virtually identical subpoenas duces tecum on Conrad and his employer, Commercial Advisors (collectively the “Conrad Subpoenas”), pursuant to Fed. R. Civ. P. 45 commanding the production of certain documents by February 28, 2020. (See Conrad Subpoenas, ECF Nos. 180-1 & 183-1.) The Conrad Subpoenas seek the production of sixty categories of documents regarding communications between Conrad and former City Attorney Bruce McMullen (“McMullen”), City Mayor Jim Strickland (the “Mayor”), City Chief Operating Officer Doug McGowen (“McGowen”), and other City representatives regarding EPE and the Graceland Project from August 1, 2017 to present. (Id.) The documents sought concern: (i) the Graceland Project; (ii) the Graceland TIF; (iii) the Arena; (iv) the Arena Use Agreement; (v) EPE; and/or (vi) Joel Weinshanker.[2] (See Conrad Subpoenas, ECF Nos. 180-1 & 183-1.) Conrad Subpoena Request Nos. 2, 5, 8, 11, 14, 17, 20, 23, 26, 29, 32, 35, 38, 41, 44, 47, 50, 53, 56, and 59 relate to EPE's pursuit of public funding. (Commercial Advisors' Notice of Obj. 14, ECF No. 183.) Conrad Subpoena Request Nos. 1-3, 16-18, 31-33, and 46-48 involve communications between Conrad and former City Attorney McMullen. (Id. at 11-12.) Copies of the Conrad Subpoenas were served on counsel of record for the City on February 7, 2020.

*2 Conrad served as an elected member of the City Council from 2008 to 2019. His last term spanned from January 1, 2016 to December 31, 2019. (Conrad's Notice of Obj. 2, ECF No. 180.) Conrad was City Council Chairman in 2016 and 2019. CUSHMAN & WAKEFIELD, COMMERCIAL ADVISORS, LLC, Kemp Conrad, SIOR, Dual Designation: Principal, https://commadv.com/kempconrad (last visited Mar. 30, 2020). Conrad is a principal and member with Commercial Advisors. Commercial Advisors “is a leading third-party leasing [and] management firm in Memphis” which provides “strategic advisory and occupier services in office, industrial, land, and retail real estate.” CUSHMAN & WAKEFIELD, COMMERCIAL ADVISORS, LLC, About, https://commadv.com/about (last visited Mar. 30, 2020). The complaint does not mention Conrad or Commercial Advisors. (See Compl., ECF No. 1.)

EPE served requests for production of documents (“RFPs”) on the City in July 2019. (Def.'s Mem. 2, ECF No. 185-1.) The City objected to several of EPE's RFPs[3] because they were overbroad, not proportional, or sought information that was equally available to EPE. (Id.) On August 26, 2019, prior to the deadline for the City to respond to EPE's RFPs, counsel for the City sent counsel for EPE a letter requesting that the parties reach an agreement as to how the electronic search would be conducted. (Aug. 26, 2019 Letter, ECF No. 185-4.) The August 26, 2019 letter requested the following information about EPE RFP Nos. 3, 9-11, and 16: (i) the persons from the City whose electronic information EPE was requesting; (ii) the representatives for EPE for whom EPE was seeking communications with the City (and/or domain names EPE wanted searched); and (iii) a list of search terms to be used in the City's electronic search. (Id.)

On January 6, 2020, the City and EPE reached a final agreement (the “Electronic Search Protocol Agreement”)[4] regarding the parameters for the City's electronic search. (See Electronic Search Protocol Agreement, ECF No. 215-1.) The agreed-upon parameters included a list of seven City representatives (and their corresponding email addresses), along with the names of the senders and recipients (and their email addresses). (Id.) The parties agreed that the following persons were City representatives for the purposes of the electronic search: (i) the Mayor; (ii) McGowen; (iii) Josh Whitehead; (iv) Ursula Madden; (v) John Zeaneh; (vi) Jeffery Penzes; and (vii) Jennifer Sink. (Id.) Despite being a city councilman and chair of the City Council during the relevant time period, Conrad was not included as a City representative, custodian, sender, or recipient. (Id.) The City conducted an electronic search in accordance with the Electronic Search Protocol Agreement and provided EPE with its initial document production on January 17, 2020. (Def.'s Mem. 4, ECF No. 185-1.)

On November 20, 2018, the district court entered a scheduling order which set July 30, 2019 as the deadline for the completion of written discovery and August 30, 2019 as the deadline for the completion of “all discovery.” (Scheduling Order, ECF No. 19.) On September 9, 2019, upon joint motion of the parties, the district court amended the scheduling order and set March 31, 2020 as the new deadline for the completion of “all discovery.” (Am. Scheduling Order, ECF No. 73.) The district court's September 9, 2019 order did not extend the July 30, 2019 deadline for completion of written discovery. By order dated March 6, 2020, the court extended the deadline for the completion of all depositions to April 15, 2020 but stated that all other deadlines remain the same. (Order Am. Dep. Deadline, ECF No. 214.) Finally, on March 23, 2020, the court granted EPE's emergency motion to postpone the depositions of all the City's witnesses indefinitely because of the COVID-19 pandemic. (Order, ECF No. 230.)

II. DISCUSSION

*3 The essence of the City's argument in its motion to quash and for protective order is that EPE has used Rule 45 to circumvent the written discovery deadline: “EPE should not be permitted an end-run around the discovery deadlines and its own strategy decisions by its eleventh-hour subpoena for documents....” (Def.'s Mem. 8, ECF No. 185-1.) The City contends that EPE has circumvented Rule 34 and the district court's scheduling orders by serving the Conrad Subpoenas more than six months after the deadline for the completion of written discovery had expired. (Id. at 7.) The City points out that the Conrad Subpoenas seek documents that Conrad “only had access to or possession of by virtue of his status as a City official” and that none of the requested documents were sent from or received by Conrad in his individual capacity. (Id. at 2.) The City also argues that the Conrad Subpoenas are duplicative because the documents sought cover much of the same subject matter as the documents sought by EPE's RFPs under the Electronic Search Protocol Agreement. (Id. at 4.)

In its combined response and motion to compel, EPE argues that the discovery completion deadline was extended to March 31, 2020, and therefore the subpoenas were timely served on February 6, 2020. (Pls.' Resp. 4, ECF No. 213.) EPE also argues that the City lacks standing under Rule 45 because Conrad is in exclusive possession of the documents sought. (Id. at 5-6.) EPE contends that the Conrad Subpoenas are not duplicative and insists that EPE has the right to issue subpoenas to nonparties for information that is similar to the information sought in EPE's previous written discovery requests. (Id. at 5.)

At the outset before addressing the substantive arguments, the court must decide whether the City has standing to quash the Conrad Subpoenas under Rule 45. The City insists that it has standing under Rule 45 to quash the Conrad Subpoenas because Conrad is a City representative with respect to the documents sought. (Def.'s Mem. 6, ECF No. 185-1.) According to the City, Conrad does not have access to or possession of “any documents related to EPE or the Graceland Project in his individual capacity or as an employee of Commercial Advisors, LLC.” (Id.) EPE maintains, however, that “the documents are in the exclusive possession of [Conrad] and Commercial Advisors....” (Pls.' Resp. 6, ECF No. 213.)

Under Rule 45, on timely motion, the court “must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). To have standing to quash or object to a Rule 45 subpoena, a party must typically establish a claim of privilege or personal right with regard to the requested documents. Boodram v. Coomes, 2016 WL 11333789, at *2 (W.D. Ky. Jan. 28, 2016)(citations omitted). “Personal rights or interests sufficient to confer standing to quash or object to a subpoena can arise in a variety of contexts.” Id. “For example, a party has a personal interest in his or her employment records held by a subpoenaed non-party ..., and in banking records of a party that are in the possession of a financial institution....” Id. (citing Halawani v. Wolfenbarger, 2008 WL 5188813, at *1 (E.D. Mich. Dec. 10, 2008)(standing due to party's claim of personal interest of privacy in his personnel file and home address); Catskill Dev., L.L.C. v. Park Place Ent. Corp., 206 F.R.D. 78, 93 (S.D.N.Y. 2002)(standing to oppose discovery of personal bank records)); see also, e.g., Prado v. Mazeika, 2019 WL 1039896, at *3 (S.D. Ohio Mar. 5, 2019)(standing to move to quash subpoena of documents from a non-party employee of the defendant when the defendant had custody and control of the documents sought); Stokes v. Xerox Corp., 2006 WL 6686584, at *2 (E.D. Mich. Oct. 5, 2006)(standing to move to quash subpoena of documents from a non-party employee of the defendant where the non-party employee was “acting as a representative” for the defendant with respect to the documents requested).

*4 In Stokes v. Xerox Corporation, the defendant moved to quash a Rule 45 subpoena served on one of the defendant's employees. 2006 WL 6686584, at *2 (E.D. Mich. Oct. 5, 2006). The subpoena sought documents relating to information that the non-party employee “would not have access to or possession of except for his employment by [the defendant].” Id. The court rejected the plaintiff's challenge to standing because the non-party employee was “acting as a representative” for the defendant with respect to the documents requested. Id. “Under such circumstances, [the defendant] has standing to challenge the subpoena served upon its intended representative.” Id. (citing Joiner v. Choicepoint Servs., Inc., 2006 WL 2669370 (W.D.N.C. Sept. 15, 2006)(defendant-employer allowed to move to quash subpoenas directed to its employees seeking documents belonging to defendant)).

In Prado v. Mazeika, the defendant, Greene County, Ohio, (“Green County”) moved to quash a subpoena requesting documents from the non-party Director of the Greene County Department of Job and Family Services. 2019 WL 1039896, at *3 (S.D. Ohio Mar. 5, 2019). Because Greene County was both the “employer and the custodian of records,” the court determined that Greene County had standing to move to quash the non-party subpoena. Id.

The documents sought by EPE relate solely to Conrad's time as a former City representative. Conrad would not have access to or possession of these documents except for the fact he was a representative of the City. While Conrad had a City email account, he “chose to use his business email account at Commercial Advisors for his City Council activities....” (Commercial Advisors' Notice of Obj. 14, ECF No. 183.) Even though Conrad used his Commercial Advisors' email, the documents were still received by Conrad as a representative of the City and remained within the control of the City through its city councilman. The City therefore has standing under Rule 45. In addition, the City can claim a privilege as to communications between Conrad and the former city attorney, Bruce McMullen. Even if the City lacked standing under Rule 45 to move to quash the Conrad Subpoenas, the City has standing to challenge the subpoenas via a protective order under Rule 26, “regardless of whether [it has] standing to bring a motion to quash under Rule 45” because it has an interest in these documents as belonging to the City and because the documents are potentially attorney-client privileged. HDSherer LLC v. Nat. Molecular Testing Corp., 292 F.R.D. 305, 307 (D.S.C. 2013).

The City argues that there is “good cause” under Rule 26(c) for a protective order prohibiting the production of the documents requested in the Conrad Subpoenas because the written discovery deadline has passed and such documents could have been obtained by EPE under the Electronic Search Protocol Agreement. (Def.'s Mem. 10, ECF No. 185-1.) The City contends that prohibiting EPE from obtaining the documents is warranted under Rule 26(b)(2)(C)(ii) because EPE has had ample opportunity to obtain the information by discovery in this action. (Id.)

Rule 26 authorizes the court “for good cause shown” to issue a protective order to protect a person “from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). “Good cause exists if ‘specific prejudice or harm will result’ from the absence of a protective order. In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016)(citation omitted). Rule 26 further provides that the court must limit the extent of discovery otherwise allowed by the Rules if it determines that “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

*5 There is good cause for a protective order because the deadline for written discovery has passed and EPE could have obtained the documents through its Rule 34 written discovery requests to the City pursuant to the Electronic Search Protocol Agreement. “The majority of courts ... allow Rule 45 subpoenas to be served on parties as well as non-parties. Among this majority, the consensus is that such subpoenas constitute ‘discovery’ and must be utilized prior to the close of the discovery period.” Neel v. Mid-Atl. of Fairfield, LLC, 2012 WL 98558, at *1 (D. Md. Jan. 11, 2012)

Even though Conrad is a not a party to this litigation, Conrad received these documents in his official capacity as a representative of the City. Therefore, the court considers this subpoena to be a subpoena for documents belonging to the City, a party to this litigation. Discovery from a party can be obtained under Rule 34. Written discovery from parties ended on July 30, 2019. The court will not allow EPE to circumvent its scheduling orders by seeking documents from a party by a Rule 45 subpoena. EPE could have discovered the information by including Conrad as a City representative, custodian, sender, or recipient when it negotiated the Electronic Search Protocol Agreement. To allow EPE “to use Rule 45 to circumvent the requirements of a court-mandated discovery deadline would clearly be contrary to the traditional interpretation of the Federal Rules of Civil Procedure, which dictates that the rules must be construed in a manner that is internally consistent.” Neel, 2012 WL 98558, at *1. Accordingly, the City's motion to quash and/or for a protective order prohibiting discovery of the documents requested in the Conrad Subpoenas is granted.

III. CONCLUSION

For the reasons stated above, the City's motion to quash and for a protective order is granted. EPE's motion to compel Conrad and Commercial Advisors to produce documents responsive to the subpoenas is denied.

IT IS SO ORDERED this 6th day of April, 2020.