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

I. BACKGROUND.

Clearlight Partners, LLC (“Clearlight”), pursuant to an order of this Court, conducted an ESI search of its company data bases and information technology (“IT”) systems as part of discovery.[1] Doc. No 267. Joseph D. James, Jr., who is employed by Halcyon Financial Technology, L.P. (“Halcyon”), performed the ESI search for Clearlight. Doc. Nos. 349; 363 at 17. Halcyon and Mr. James have provided IT support to Clearlight for all periods dating back to 2007. Id. Upon completing the ESI search, Mr. James submitted an “ESI Certification of Universe of Data Bases and Search Protocols Deployed” (“ESI Certification”) providing details of the nature of the searches conducted, and the locations of such searches. Id.

Upon receiving the ESI discovery and ESI Certification, Plaintiffs Classic Soft Trim, Inc. and Roadwire LLC (collectively “CST”) raised questions about how the searches were conducted and about the results obtained. Doc. Nos. 349, 363. On July 27, 2020, CST issued a non-party subpoena (the “Subpoena”) to depose Mr. James and provided notice of the same to the parties. Doc. No. 349-2. On August 4, 2020, despite the fact the Subpoena was addressed to James D. Joseph, Jr. instead of Joseph D. James, Jr. it was personally served on Mr. James at the address provided. Doc. No. 363 at 29. On August 10, 2020, Mr. James, Clearlight, Defendant Katzkin Leather, Inc. (“Katzkin”), and Defendant Clearlight Partners Management, LLC served objections to the Subpoena on CST. Doc. No. 349-3.

On August 14, 2020, Katzkin filed a Motion for Protective Order or to Quash Subpoena to Non-Party Joseph James, Jr. (the “Motion”). Doc. No. 349. Katzkin argues that the Subpoena is improper and defective, and that its issuance is a sanctionable violation of this Court's previous order permitting CST to conduct five additional depositions. Id.; see Doc. No. 292. Katzkin also argues that CST cannot depose Mr. James because he is a non-testifying expert in this matter and his file is protected work product. Id. Finally, Katzkin argues that the information CST seeks is unnecessary because Katzkin has provided and will provide all the necessary information to CST to clarify how the ESI search was conducted. Id.

On August 27, 2020, CST filed a response to the Motion (the “Response”). Doc. No. 363. CST argues that deposing Mr. James does not violate this Court's order granting five additional depositions because two of its original ten depositions remained available after those deponents did not appear. Id. CST argues that Mr. James is a fact witness, not a non-testifying expert, because he was not retained solely in anticipation of litigation, but was part of the company that routinely provided IT services to Clearlight. Id. CST argues that none of the identified procedural defects are fatal to the Subpoena and that it has a real need to depose Mr. James because CST believes there is discoverable information that was withheld from the ESI search. Id.

II. APPLICABLE LAW.

*2 “The discovery process is designed to fully inform the parties of the relevant facts involved in their case.” U.S. v. Pepper's Steel & Alloys, Inc., 132 F.R.D. 695, 698 (S.D. Fla. 1990) (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). The Court has the discretion, however, to limit discovery. Fed. R. Civ. P. 26(b)(2).

Federal Rule of Civil Procedure 45 permits the issuance of a subpoena to testify at deposition to non-parties. Fed. R. Civ. P. 45(a). “The scope of discovery under a Rule 45 subpoena is the same as the scope of discovery under Rule 26.” Woods v. On Baldwin Pond, LLC, No. 6:13-CV-726, 2014 WL 12625078, at *1 (M.D. Fla. Apr. 2, 2014). “A Rule 45 subpoena ‘should be enforced unless it is clear that the evidence sought can have no possible bearing on the issues.’ ” State Farm Mut. Auto. Ins. Co. v. Maistrenko, No. 19-20850, 2020 WL 486271, at *3, 2020 U.S. Dist. LEXIS 15285, at *6 (S.D. Fla. Jan. 30, 2020) (quoting Benavides v. Velocity IQ, Inc., No. 05-cv-1536-T-30, 2006 WL 680656, at *2, 2006 U.S. Dist. LEXIS 14777, at *6 (M.D. Fla. Mar. 15, 2006)).

Pursuant to Rule 45, a Court may quash a subpoena if it (1) fails to allow a reasonable time to comply; (2) requires a person to comply beyond the geographical limits specified in Rule 45(c); (3) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (4) subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). The party seeking to quash a subpoena bears the burden of establishing at least one of the requirements articulated under Rule 45(d)(3). Malibu Media, LLC v. Doe, No. 8:14-cv-2351, 2015 U.S. Dist. LEXIS 16641, at *5 (M.D. Fla. Jan. 22, 2015).

Federal Rule of Civil Procedure 26(c) provides that upon motion by a party, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court may make any order which justice requires to protect the party from annoyance, embarrassment, oppression, or undue burden or expense. When discovery sought appears otherwise relevant, the party resisting discovery has the burden to establish the request is improper or creates an undue burden. O'Connor v. GEICO Indem. Co., No. 8:17-cv-1539, 2018 WL 1409750, at *2, 2018 U.S. Dist. LEXIS 46285, at *4 (M.D. Fla. Mar. 21, 2018); Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D. Fla. 2000).

A party moving for a protective order must demonstrate “good cause” for such relief. In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11th Cir. 1987). In Dovin v. Nair and Co., Inc., No. 2:08-cv-104, 2009 WL 10670056, at *1, 2009 U.S. Dist. LEXIS 135743, at *2 (M.D. Fla. Jun. 30, 2009), the Court provided further guidance regarding the good cause standard:

Dovin, 2009 WL 10670056, at *1, 2009 U.S. Dist. LEXIS 135743, at *2 (citations omitted). Thus, the Court should only issue a protective order when the movant demonstrates, through affidavit or testimony, the specific harm that would result from disclosure or loss of confidentiality. Id. Furthermore, generalized concerns, conclusory statements, or unsupported contentions are not sufficient reasons for entry of a protective order. Id.; see also United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978) (noting that a showing of good cause “contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements”).[2]

III. ANALYSIS.

*3 As an initial matter, the Court finds the Subpoena does not violate this Court's previous order permitting an additional five depositions. See Doc. No. 292. As such, it is not a “sanctionable violation” of that Order. This deposition was not one of the enumerated additional depositions requested in CST's motion that were ultimately denied because they would have been duplicative or cumulative. Id. This deposition does not cause CST to exceed the ten depositions that may be taken without leave of Court because the additional five depositions were taken with leave of court, and in total, CST would not exceed fifteen depositions. Fed. R. Civ. P. 30(a)(2). That two of the depositions CST anticipated taking did not occur does not mean that CST was prohibited from replacing those depositions, particularly when the events addressed by this Subpoena occurred after the Court's order was entered on June 15, 2020. See Doc. Nos. 292; 349-3 at 2; 349-4.

Katzkin, Clearlight, Clearlight Partners Management LLC, and Ross Albert were served notice of the deposition on July 27, 2020. Doc. No. 349-2. Katzkin's counsel claims Mr. James was personally served with the Subpoena on August 5, 2020, and the deposition was scheduled for August 18, 2020, a window of less than fourteen days. Docs. No. 349 at 18; 349-1 at 1. Katzkin argues the Subpoena must be quashed or a protective order issued because CST did not comply with the Middle District's Discovery Handbook when CST failed to give Mr. James at least fourteen days notice of the deposition. Doc. No. 349 at 18. Local Rule 3.02 provides that “a party desiring to take the deposition of any person upon oral examination shall give at least fourteen (14) days notice in writing to every other party to the action and to the deponent (if the deponent is not a party).” A review of the Affidavit of Service executed by the process server indicates Mr. James was served on August 4, 2020 at 7:05 p.m., and the Affidavit of Service was executed on August 5, 2020. Doc. No. 363 at 29. Katzkin does not address this discrepancy.

Regardless, the Court finds that delivering the notice on July 27, 2020 and effecting service on August 4th or 5th provided a reasonable amount of time to comply under Rule 45(d)(3)(A)(i). See In re Rule 45 Subpoena to Fid. Nat'l Info. Servs. v. Am. Express Co., 09-mc-29-J, 2009 WL 4899399, at *1, 2009 U.S. Dist. LEXIS 122142, at *3 (M.D. Fla. Dec. 11, 2009) (noting that although “reasonable time” is not explicitly defined by Rule 45, courts analyzing the issue have found that fourteen days from the date of service is presumptively reasonable); Parrot, Inc. v. NiceStuff Distrib. Int'l, Inc., No. 06-61231, 2009 WL 197979, at *4, 2009 U.S. Dist. LEXIS 8528, at *10 (S.D. Fla. Jan. 26, 2009) (rejecting non-party's argument that subpoena did not provide sufficient time for response and reiterating that “reasonableness” is considered on a case by case basis). Katzkin does not argue otherwise.

As Katzkin has not suggested Mr. James was somehow unduly burdened by the allegedly shortened compliance window, and as the notice and service otherwise comply with Rule 45, the Court declines to quash the Subpoena or enter a protective order on this basis.

Mr. James's first and last name were transposed on the Subpoena.[3] Doc. No. 349-1 at 1. With respect to misnomers, misspellings, and other omissions in a recipient's name in the context of service of process, the Fourth Circuit Court of Appeals observed:

King v. Marcy, No. 2:17-cv-112, 2019 WL 691782, at *4, 2019 U.S. Dist. LEXIS 26059, at *11-12 (S.D. Ga. Feb. 19, 2019) (quoting United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947)). The same can be said of the Subpoena here. See cf. Transcon. Ins. Co. v. L.F. Staffing Servs., No. 07-80865, 2008 WL 11333664, at *4, 2008 U.S. Dist. LEXIS 136370, at *12 (S.D. Fla. Aug. 13, 2008) (“as a general rule the misnomer of the name of a corporation in a notice, summons ... or other step in a judicial proceeding is immaterial if it appears that the corporation could not have been, or was not, misled”) (citations omitted).

*4 The Subpoena reflects Mr. James's correct middle initial, and the Junior appended to the end of his name but obviously transposes his first and last names. Doc. No. 349-2 at 1. The Subpoena asks the recipient to produce his entire file related to his IT work in this case. Id. Mr. James personally accepted service at the address provided on the Subpoena. Doc. No. 363 at 29. Thus, there was no confusion as to the intended recipient of the Subpoena.

The Court finds that Shomon v. Pott, No. 84 C 10583, 1986 WL 2734, at *1, 1986 Dist. LEXIS 28956, at *2-3 (N.D. Ill. Feb. 21, 1986), upon which Katzkin relies, is inapposite. First, unlike Mr. James's Subpoena, which merely transposed his first and last name, the named party in the subpoena in Shomon was another witness in the case. Id. at *1. Second, the Court in Shomon did not find the subject subpoena defective solely on that basis. Instead, the Court found that the subpoena was defective “not merely because it contained the name of the wrong witness, but also because Mr. Touhy served it by mail rather than in person, as Rules 31 and 45 require.” Shomon, 1986 WL 2734, at *1, 1986 U.S. Dist. LEXIS 28956, at *2-3.

The Court finds that as there can be no confusion as to whom the Subpoena was directed, and Katzkin has otherwise failed to demonstrate any prejudice resulting from the transposition of Mr. James's first and last name on the face of the Subpoena, the Subpoena is not defective and the Court declines to quash the Subpoena or issue a protective order on that basis.

Mr. James was retained by Clearlight to conduct an ESI search for responsive discovery in Clearlight's IT systems and databases. Doc. No. 349-1 at 2 (“Clear[l]ight and its attorneys retained the services of Halcyon and its staff as consulting experts to assist in responding to discovery in this action”). Halcyon and Mr. James have “provided IT support to Clearlight for all periods dating back to 2007.” Doc. No. 363 at 17. Upon completion of that ESI search, Mr. James executed an ESI Certification explaining how he conducted the search for responsive discovery. Doc. No. 363 at 17. The ESI Certification was provided to CST. Id. CST now seeks to depose Mr. James regarding the nature of his ESI search and review his file related thereto. Doc. No. 349-2.

Federal Rule of Civil Procedure 26(b)(3) provides that documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative are generally not discoverable. Such materials may be discoverable if they are otherwise discoverable under Federal Rule of Civil Procedure 26(b)(1) and the party seeking the materials “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(i) and (ii). Federal Rule of Civil Procedure 26(b)(4)(D) provides that “[o]rdinarily, a party may not, by interrogatories or deposition, discover facts known or opinion held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial but who is not expected to be called as a witness.” “The Rule's requirement that the expert be ‘retained or specially employed’ excludes, for example, a general employee of the party who is not specially employed for the case.” Essex Builders Grp., Inc. v. Amerisure Ins. Co., 235 F.R.D. 703, 704 (M.D. Fla. 2006) (citing Advisory Comm. Notes (1970)).

*5 “In determining whether a document was prepared in anticipation of litigation, key issues the court must consider are the function the document serves, the circumstances surrounding its creation, and the driving force behind its preparation.” Trenary v. Busch Entm't Corp., No. 8:05-cv-1630, 2006 WL 8440071, at *2, 2006 U.S. Dist. LEXIS 70584, at *5-6 (M.D. Fla. Sept. 28, 2006). “Work-product protection is waived when protected materials are disclosed in a way that ‘substantially increases the opportunity for potential adversaries to obtain the information.” Stern v. O'Quinn, 253 F.R.D. 663, 681 (S.D. Fla. 2008); Niagara Mohawk Power Corp. v. Stone & Webster, 125 F.R.D. 578, 587 (N.D.N.Y. 1989). The circumstances surrounding the disclosure are key as “not every situation in which work-product materials are disclosed warrants a finding of waiver.” Live Nations Worldwide, Inc. v. Cohl, No. 10-24144, 2011 WL 5597348, at *1, 2011 U.S. Dist. LEXIS 132954, at *5 (S.D. Fla. Nov. 17, 2011).

Katzkin argues that Mr. James is a non-testifying expert not subject to discovery and that the ESI search protocols he developed and executed are protected work product. While it is within the realm of possibility, but rather unlikely, that Mr. James was retained as a non-testifying expert witness by defense counsel, the record does not support Katzkin's contention. The record, including the ESI Certification, reflects that Mr. James was retained to discharge Clearlight's duty to produce responsive discovery in this litigation and not to assist counsel in the defense of this case. Mr. James's employer had provided IT support services to Clearlight since 2007. Similarly, while it is possible that Mr. James's file contains materials that may be protected work-product, Katzkin has failed to identify those materials in any particularized way. Instead, Katzkin has made a conclusory argument regarding the applicability of the work product doctrine.

The record suggests that Mr. James is a fact witness who was employed to conduct a discovery search on Clearlight's behalf. CST is entitled to depose Mr. James regarding the search he conducted and the resulting ESI Certification he executed. Katzkin has failed to make a particularized showing that a protective order is required, or that the Subpoena must otherwise be quashed under Rule 45. See Dovin, 2009 WL 10670056, at *1, 2009 U.S. Dist. LEXIS 135743, at *2; Malibu Media, LLC, 2015 U.S. Dist. LEXIS 16641, at *5; Fed. R. Civ. P. 45(d)(3)(iii). As such, the Motion will be denied and the deposition can go forward. The parties shall reschedule and conduct the deposition within twenty-one days from the date of this Order.

IV. CONCLUSION.

Accordingly, it is ORDERED that the Motion (Doc. No. 343) is DENIED. Mr. James's deposition shall be rescheduled and conducted within twenty-one (21) days from the date of this Order.

DONE and ORDERED in Orlando, Florida, on October 8, 2020.