*1 This cause came on for consideration without oral argument on the following motion:

This case was originally filed in state court and removed to this Court. Doc. No. 2. On December 27, 2018, CST filed an Amended Complaint which added Roadwire LLC as a plaintiff and Katzkin Leather, Inc. (“Katzkin”) and Clearlight Partners LLC (“Clearlight”) as defendants. Doc. No. 35. The Amended Complaint alleges causes of action against Katzkin and Clearlight, including: 1) violation of Florida's Deceptive and Unfair Trade Practices Act; 2) violation of Ohio's Deceptive Trade Practices Act; 3) tortious interference with a contractual relationship and business relationships; 4) inducing breach of loyalty and fiduciary duties; 5) intentional interference with employee/employer relations; 6) injurious falsehood; and 7) attempted monopolization in violation of section 2 of the Sherman Act. Doc. No. 35. In the Amended Complaint, Plaintiffs allege that Katzkin's violations involved non-parties Classic Design Automotive LLC (“CDA”), John Held, and John Donellan (collectively the “non-parties”). Doc. No. 35 at 11-16. CDA, Held, and Donellan were defendants in the original state action but were dismissed with prejudice prior to removal of this case to federal court. Doc. No. 86 at 1-2.

As part of discovery in the pending federal case, Plaintiffs served CDA, Held, and Donellan with non-party subpoenas duces tecum seeking production of documents in Orlando, Florida. Doc. No. 71 at 28-60. There were thirteen requests seeking documents related to two broad categories: 1) All documents, including email and text communications, which related to CST, Roadwire, Defendant Ross Albert (“Albert”), Peter Y. Kim at Clearlight, Clearlight, and Katzkin; and 2) financial information for CDA including revenues, financing from Katzkin, contracts between CDA and Katzkin, and the lease agreement for CDA's building. Doc. No. 86 at 1-12.

On December 10, 2018, CDA, Held and Donellan served objections to the Subpoena. Doc. No. 86 at 62-74. CDA, Held, and Donellan acknowledged service of the subpoenas on Wednesday December 5, 2018, and first argue that they were not given enough time to comply with the subpoenas. Doc. No. 86 at 63. They also claim their status as defendants who had been dismissed with prejudice precludes any discovery. Doc. No. 86 at 63-64. CDA, Held, and Donellan then claim all of the requests are irrelevant, overbroad, unreasonably burdensome, involved confidential or proprietary information, and were privileged. Doc. No. 86 at 64-73. On December 18, 2018, in response to the objections, Plaintiffs provided additional time to serve responses.[1] Doc. No. 86 at 77. On January 9, 2019, CDA, Held, and Donellan responded that they were no longer parties to the action and refused to comply with the subpoena and stood upon the prior objections. Doc. No. 86 at 100-102.

*2 On February 1, 2019, Plaintiffs filed a motion to compel but failed to serve it on CDA, Held, and Donellan. Doc. No. 71. On February 28, 2019, the Court denied that motion. Doc. No. 84. On March 1, 2019, Plaintiffs filed a second motion to compel the non-parties to respond to the subpoenas duces tecum (the “Motion”). Doc. No. 86. Plaintiffs argue that CDA, Held, and Donellan have made only general objections, have failed to file a privilege log, and that Plaintiffs have offered to execute a confidentiality agreement, provide IT support as necessary, and allow more time if needed to comply with the requests. Doc. No. 86. On March 14, 2019, CDA, Held and Donellan filed a response (“Response”) to the Motion. Doc. No. 93. CDA, Held, and Donellan assert they are not required to comply with the subpoena because they were dismissed with prejudice from the state action when they were defendants. Doc. No. 93 at 3. They also claim the information sought in the subpoenas is “confidential, proprietary, and sensitive in nature” with respect to CDA's business related activities, and was requested on short notice. Doc. No. 93 at 1-2. The non-parties also generally argue that the requests are overbroad, irrelevant, and that they cannot comply because they cannot obtain the information. Doc. No. 93. The non-parties point to the fact that some of the requests seek information beyond when Defendant Ross Albert (“Albert”) was employed by Plaintiff and that CDA and CST are business competitors. Doc. No. 93.

II. ANALYSIS.

Upon review of the requests in the subpoenas and the objections interposed, the Court finds that the discovery Plaintiffs seek is relevant and proportional with the exception of Requests to Produce Numbers 3, 4, 5, 6, 7, 8. Fed. R. Civ. P. 26. The Court finds these requests, while relevant, are not proportional and finds that the non-parties’ objection thereto based on overbreadth is well-taken. Doc. No. 93.

A party may subpoena documents, electronically stored information (“ESI”), or tangible things in a non-party's possession pursuant to Federal Rule of Civil Procedure 45. Fed. R. Civ. P. 45(a)(1)(A)(iii). “The scope of discovery under Rule 45 is the same as the scope of discovery under Federal Rule of Civil Procedure 26.” Digital Assur. Certification, LLC v. Pendolino, 6:17-cv-72, 2017 WL 4342316, at *8, 2017 U.S. Dist. LEXIS 160399, at *22 (M.D. Fla. Sept. 29, 2017). “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). The party seeking to enforce a subpoena has the burden of demonstrating the information sought is relevant. Fadalla v. Life Auto. Prods, Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007). “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 party opposing a subpoena has the burden of demonstrating that compliance with the subpoena presents an undue burden or that it requires the disclosure of privileged or protected information. Fadalla, 258 F.R.D. at 504.

There is no “absolute privilege” for trade secrets and similar confidential business information, rather the court weighs “the claim to privacy against the need for disclosure, and commonly enter[s] a protective order restricting disclosure.” United States ex rel. Willis v. SouthernCare, Inc., No. CV410-124, 2015 WL 5604367, at *3, 2015 U.S. Dist. LEXIS 127746, at *10 (S.D. Ga. Sept. 23, 2015) (quoting Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006)); Fed. R. Civ. P. 45(d)(3)(B)(ii) (“To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires ... disclosing ... commercial information.”). “The party resisting discovery must first establish that the information sought is [otherwise confidential] and then demonstrate its disclosure might be harmful.” Sams v. GA West Gate, LLC, 316 F.R.D. 693, 698 (N.D. Ga. 2016); Fadalla, 258 F.R.D. at 504. The burden then shifts to the requesting party to demonstrate a “substantial need” which cannot otherwise be met without undue hardship and assures that the non-party is reasonably compensated. Sams, 316 F.R.D. at 698 (citing Gonzales v. Google, Inc., 234 F.R.D. 674, 684 (N.D. Cal. 2006)). Instead of quashing or modifying a subpoena under these circumstances, a court may also impose specified conditions for disclosure. Fed. R. Civ. P. 45(d)(3)(C).

*3 Plaintiffs seek information related to the claims in their Amended Complaint. Doc. Nos. 35, 86. That information includes all documents, including e-mails and text messages by and between the non-parties and Defendants in this matter and financial information that could demonstrate that Defendants actively worked to displace Plaintiffs’ market share in Central Florida and interfered with Plaintiffs’ business interests through CDA, Held, and Donellan. Doc. No. 86. The problem is that several of the requests are not proportional to this case. For example, “All Documents, including but not limited to emails and or text messages to or from or on which Ross Albert is copied from 2014-present” does not sufficiently tailor the request to documents that are both relevant and proportional to the matter at hand. Doc. No. 86 at 66. The same is true of request number 6 related to Peter Y. Kim. Doc. No. 86 at 68. Conversely, other requests do not suffer from overbreadth, including request number 1 which seeks “All Documents, including but not limited to emails and or text messages to or from or on which any Katzkin salesperson, executive, or employee, is copied that refers to CST in any part of the Document from 2014 to present.” Doc. No. 86 at 64.

The non-parties make the objection that the requests will require production of “confidential, proprietary, or sensitive” business information. Doc. No. 93 at 1. Rule 45(c)(3)(A) states that “on timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it requires disclosure of privileged or other protected matter” and Rule 45(c)(3)(B) provides that a court may quash or modify a subpoena if it requires disclosure of commercial information. Fadalla, 258 F.R.D. at 504. Rule 45 contemplates that a non-party will file a motion and seek relief from the Court. Despite arguing that the information sought is confidential, proprietary, and sensitive, CDA, Held, and Donellan did not file a motion to quash or modify the subpoena. Doc. No. 86 at 23.

Arguably, some of the information sought by Plaintiffs in requests to produce 1, 2, 9, 10, 11, 12, and 13 may include confidential, proprietary, or sensitive information but CDA, Held, and Donellan have failed to satisfy their burden to demonstrate the confidential, proprietary, or sensitive nature of the information sought, or even identify it beyond a general objection made to each request. Doc. No. 86 at 63-73. Rather, the non-parties take the position that because CDA is a competitor of Plaintiff CST there is harm, but that does not satisfy the initial burden of demonstrating the information sought is actually confidential or proprietary. Doc. No. 93 at 13. Thus, this conclusory assertion is insufficient to satisfy the non-parties’ burden. See Sams, 316 F.R.D. at 698 (conclusory statement subpoena is too broad and that some responsive documents may be confidential is insufficient); Barger v. First Data Corp., 2:18-mc-1569, 2018 WL 6591883, at *8, 2018 U.S. Dist. LEXIS 211430, at *25 (N.D. Ala. Dec. 14, 2018) (mere conclusory statement information sought may contain trade secret or could be harmful is insufficient).[2] Here, CDA, Held, and Donellan fail to satisfy the first step of the inquiry with respect to the confidential nature of the information and the question of harm or shifting the burden back to Plaintiffs to demonstrate substantial need is unnecessary.

The non-parties also fail to satisfy their burden to demonstrate disclosure of emails and contracts between Defendants and CDA, Held, and Donellan would be so burdensome as to require denial of the Motion.[3] Fed. R. Civ. P. 45(d)(3)(B). Additionally, Plaintiffs have indicated they would accommodate a longer compliance window. Doc. No. 86. Plaintiffs have also offered IT assistance to capture the relevant ESI such that the requests will not be overly burdensome. Doc. No. 86.

*4 Finally, CDA, Held, and Donellan have also made no effort to identify privileged information even though they claim privilege. Fed. R. Civ. P. 45(e)(2)(A) (if claiming privilege a party must “describe the nature of the withheld documents, communications, or tangible thing in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.”).

Upon review, the Court finds that requests 1, 2, 9, 10, 11, 12 and 13 are relevant and proportional. The parties are directed to comply with this Court's standing order regarding confidential information as Plaintiffs have already agreed to this condition for disclosure of the documents requested.

Accordingly, it is ORDERED that:

DONE in Orlando, Florida on April 12, 2019.