Travelpass Grp., LLC v. Caesars Entm't Corp.
Travelpass Grp., LLC v. Caesars Entm't Corp.
2021 WL 2492858 (E.D. Tex. 2021)
May 4, 2021
Craven, Caroline M., United States Magistrate Judge
Summary
The court considered a motion to compel Booking Holdings, Inc. to produce documents in response to a subpoena issued by Red Roof Inns, Inc. The court found that the motion was untimely and denied it, noting that BHI had failed to produce documents as agreed and that the Moving Defendants had not included their objections to the Subpoena as an exhibit in support of the motion to compel. The court also noted that a person can file a motion to quash or modify the subpoena in lieu of or in addition to serving objections on the party seeking discovery.
Additional Decisions
TRAVELPASS GROUP, LLC, PARTNER FUSION, INC. and RESERVATION COUNTER, LLC
v.
CAESARS ENTERTAINMENT CORPORATION, ET AL.
TRAVELPASS GROUP, LLC, PARTNER FUSION, INC. and RESERVATION COUNTER, LLC
v.
CAESARS ENTERTAINMENT CORPORATION, ET AL
v.
CAESARS ENTERTAINMENT CORPORATION, ET AL.
TRAVELPASS GROUP, LLC, PARTNER FUSION, INC. and RESERVATION COUNTER, LLC
v.
CAESARS ENTERTAINMENT CORPORATION, ET AL
Case No. 5:18-cv-153-RWS-CMC
United States District Court, E.D. Texas, Texarkana Division
Filed May 04, 2021
Counsel
Christopher W. Patton, Jared Daniel Eisenberg, Samuel Butler Hardy, IV, Christopher John Schwegmann, Cory Courtney Johnson, Lynn Pinker Cox & Hurst, LLP, Rebecca Lynn Adams, Lynn Pinker Hurst & Schwegmann, LLP, Ruben Alan Garcia, Dallas, TX, Jason H. Kim, Todd Schneider, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, Paul Joseph Stancil, Paul Stancil, Attorney, Orem, UT, for TravelPass Group LLC.Christopher W. Patton, Jared Daniel Eisenberg, Samuel Butler Hardy, IV, Ruben Alan Garcia, Christopher John Schwegmann, Lynn Pinker Cox & Hurst, LLP, Rebecca Lynn Adams, Lynn Pinker Hurst & Schwegmann, LLP, Dallas, TX, Jason H. Kim, Todd Schneider, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, Paul Joseph Stancil, Paul Stancil, Attorney, Orem, UT, for Partner Fusion Inc., Reservation Counter LLC.
Maria Wyckoff Boyce, Hogan Lovells US LLP, Houston, TX, Anna Kurian Shaw, Brendan C. Quinn, Justin W. Bernick, Lauren Beth Cury, Hogan Lovells US LLP, Washington, DC, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, Michael E. Jones, Potter Minton, a Professional Corporation, Tyler, TX, for Choice Hotels International Inc.
Diane Siegel Danoff, Thomas J. Miller, Dechert LLP, Philadelphia, PA, Britton Dale Davis, Jeffrey L. Poston, Luke Van Houwelingen, Crowell & Moring LLP, Shari Ross Lahlou, Pro Hac Vice, Dechert LLP, Washington, DC, Jennifer Insley-Pruitt, Dechert LLP, New York, NY, Jordan Lee Ludwig, Crowell & Moring LLP, Los Angeles, CA, Lance Lee, Attorney at Law, Cole Alan Riddell, Jennifer Haltom Doan, Joshua Reed Thane, Haltom & Doan, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, for Marriott International Inc.
Alexander G. Gray, Danielle Chattin, Emily Shoemaker Newton, Jeffrey S. Cashdan, Logan Robert Hobson, Lohr A. Beck-Kemp, Melanie C. Papadopoulos, Russell Edward Blythe, King & Spalding LLP, Atlanta, GA, Deron R. Dacus, Shannon Marie Dacus, The Dacus Firm, PC, Tyler, TX, Jennifer Haltom Doan, Haltom & Doan, Lance Lee, Attorney at Law, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, Steven Mark Zager, King & Spalding LLP, Austin, TX, for Six Continents Hotels Inc.
Craven, Caroline M., United States Magistrate Judge
ORDER
*1 The above-referenced causes of action were referred to the undersigned United States Magistrate Judge for pretrial purposes in accordance with 28 U.S.C. § 636. The following motions are before the Court:
Plaintiffs' Motion for Protective Order (Cause No. 5:18cv153, Docket Entry # 448); and
Marriott International, Inc., Choice Hotels International, Inc., and Six Continents Hotels, Inc.'s Motion to Compel Booking Holdings, Inc.'s Production of Documents (Cause No. 5:21mc1, Docket Entry # 1).
The Court, having carefully considered the relevant briefing, is of the opinion Plaintiffs' motion for protective order should be GRANTED and Moving Defendants' motion to compel should be DENIED.[1]
I. BACKGROUND
Plaintiff TravelPass Group, LLC and its predecessor or related entities, Reservation Counter, LLC, and Partner Fusion, Inc., (collectively, “TravelPass”) are downstream online travel agencies that sell hotel rooms from different chains to consumers in the United States. Cause No. 5:18cv153, Docket Entry # 1, ¶ 45. TravelPass originally filed this antitrust case against the following hotel chains: (1) Caesars Entertainment Corporation; (2) Choice Hotels International, Inc.; (3) Hilton Domestic Operating Company, Inc.; (4) Hyatt Corporation; (5) Marriott International, Inc.; (6) Red Roof Inns, Inc.; (7) Six Continents Hotels, Inc.; and (8) Wyndham Hotel Group, LLC (collectively, “Hotel Defendants”). TravelPass alleges these hotel chains and others conspired to eliminate interbrand competition on keyword searches. Id., ¶ 1.
The fact discovery deadline (to complete non-party discovery and depositions of identified and agreed-upon party witnesses) was December 30, 2020. Cause No. 5:18cv153, Docket Entry # 382. The expert discovery deadline is May 4, 2021. Id., Docket Entry # 457. The pretrial conference is set for October 5, 2021, with jury selection and trial scheduled October 25, 2021. Id.
II. THE MOTIONS
On February 5, 2021, Defendants Marriott International, Inc., Choice Hotels International, Inc., and Six Continents Hotels, Inc. (collectively, “Moving Defendants”)[2] filed, in federal court in Connecticut, a motion to compel directed at non-party Booking Holdings Inc. (“BHI”).[3] See Cause No. 5:21mc1, Docket Entry # 1. Pursuant to Federal Rule of Civil Procedure 45(d)(2)(B)(i), Moving Defendants request an order compelling BHI to comply with Hotel Defendants' Rule 45 subpoena to produce documents in the underlying action captioned TravelPass Group, LLC, et al. v. Caesars Entertainment Corp., et al., 5:18-cv-00153-RWS-CMC (the “Underlying Litigation”).
On February 17, 2021, Moving Defendants filed an emergency motion to transfer their Motion to Compel Booking Holdings, Inc.'s Production of Documents to the Eastern District of Texas, the Court where the Underlying Litigation (Cause No. 5:18cv153) is pending and from which the subpoena in dispute was issued. On March 8, 2021, the court in Connecticut granted Moving Defendants' motion to transfer, finding exceptional circumstances support transfer and BHI had not established it would suffer an undue burden were the motion to be granted.[4] The transferred miscellaneous case, consisting only of the Moving Defendants' motion to compel, was opened in the Eastern District of Texas, Texarkana Division, as miscellaneous Cause No. 5:21-mc-00001-RWS-CMC.
*2 Meanwhile, on March 5, 2021, TravelPass filed in the Underlying Litigation a motion for protective order pursuant to Federal Rule of Civil Procedure 26(c), to excuse non-party BHI from compliance with Moving Defendants' Rule 45 subpoena. See Cause No. 5:18cv153, Docket Entry # 448. The Court provides the following timeline of events (and related assertions) as set forth in the briefing related to both motions.
III. TIMELINE
On February 18, 2020, Red Roof Inns, Inc. (“Red Roof”) issued a subpoena (the “Subpoena”) to non-party BHI, seeking discovery in the Underlying Litigation. The Subpoena seeks twenty-one categories of documents related to, among other things, BHI's relationship and communications with and about TravelPass and the Hotel Defendants.[5] See Cause No. 5:21mc1, Docket Entry #1-5. The Subpoena defines BHI to include all of its subsidiaries (which includes Priceline.com, LLC (“Priceline”)). The Subpoena defines “Defendant” or Defendants” to mean the eight Hotel Defendants in the Underlying Litigation (Caesars Entertainment Corporation, Choice Hotels International, Inc., Hilton Domestic Operating Company, Inc., Hyatt Hotels Corporation, Marriott International, Inc., Red Roof Inns, Inc., Six Continents Hotels, Inc., and Wyndham Hotel Group, LLC), and all of the requests asking for information about a Hotel Defendant ask for information regarding “any Defendant.” Id. (Requests 6, 7, 9, 14, 20). None of the requests ask for any information specific to Red Roof. See id.
According to BHI, the Subpoena was issued to BHI solely by “Red Roof Inns, Inc.” See Cause No. 5:21mc1, Docket Entry # 24 at p. 4 (noting the first sentence of the cover letter accompanying the Subpoena states “[o]ur firm represents Red Roof Inns, Inc. (‘Red Roof’) in the above-referenced lawsuit” and makes no mention of any other defendant in the Underlying Litigation). Moving Defendants assert Red Roof served the Subpoena on behalf of all the Hotel Defendants.
According to the Declaration of Jordan L. Ludwig (“Ludwig Decl.”), attached in support of Moving Defendants' motion to compel, the Hotel Defendants agreed and intended that Red Roof would have primary responsibility for the BHI Subpoena, would serve the Subpoena on behalf of all of the Hotel Defendants, and would negotiate BHI's compliance with the Subpoena on behalf of the Hotel Defendants. Ludwig Decl., ¶ 4. Mr. Ludwig states drafts of the Subpoena were circulated among the Hotel Defendants, and several provided feedback. Id. According to Mr. Ludwig, after service of the Subpoena in mid-February 2020, Red Roof's counsel (primarily Christopher Wood from Lewis Brisbois Bisgaard & Smith) began negotiating with BHI's counsel (primarily Ian Clarke-Fisher from Robinson & Cole), discussing, among other things, the initial assessment of burden and the BHI subsidiaries for which BHI would be willing to respond without requiring a separate subpoena.[6] Id., ¶ 7. Throughout this process, Red Roof's counsel kept the other Hotel Defendants' counsel apprised of the negotiations and sought feedback and input about moving forward. Id.; see also attached Ex. 4 (email chain dated May 19, 2020, in which Red Roof's counsel forwarded information provided by BHI to counsel for certain other of the Hotel Defendants, including Mr. Ludwig).
*3 The discussions between Red Roof's counsel and BHI continued through July and August of 2020. See Cause No. 5:21mc1, Docket Entry # 1-7 (email chain from July 22, 2020 through October 16, 2020). On July 31, 2020, Mr. Wood emailed Mr. Clarke-Fisher, stating “[w]e very much need to keep moving toward production.” Id. at p. 17. Regarding email ESI, Mr. Wood noted another week had passed and Red Roof had not received further information “on the loading, review, and production of Priceline email ESI.” Id. Mr. Wood further noted that “[w]hile Red Rood appreciate[d] the dynamics of the current market, we are now approaching six months since service of the subpoena.” Id. Mr. Wood pointed out that “Red Roof's willingness to date to coordinate on Priceline email and non-email ESI production [did] not constitute a waiver of any Red Roof right to move to compel production pursuant to Fed. R. Civ. P. 45(d).” Id.
By August 24, 2020, Mr. Wood and Mr. Clarke-Fisher had narrowed down the non-email ESI and email ESI. Id. at pp. 10-16. On September 8, 2020, Mr. Wood emailed Mr. Clarke-Fisher and asked about scheduling a phone call. Id. at p. 8. In that email, Mr. Wood stated as follows: “I'm adding another of the defense counsel in the case (Jordan Ludwig, representing Marriott) because I'd like him to join the discussion.” Id.
BHI asserts Red Roof's counsel added Mr. Ludwig, Marriott's counsel, to the discussion in September of 2020, “on the premise that Mr. Ludwig had an expertise in ESI and the search parameters being discussed.” Cause No. 5:21mc1, Docket Entry # 24 at p. 2. According to BHI, on September 30, 2020, Mr. Ludwig began communicating directly with BHI's counsel about the Subpoena. See id., Docket Entry # 1-7.
According to Mr. Ludwig, upon learning that Red Roof had resolved its dispute with TravelPass, he became involved in the ongoing negotiations with BHI in early September 2020. Ludwig Decl., ¶ 8. Mr. Ludwig states Mr. Clarke-Fisher never objected to his involvement, and Mr. Wood began copying Mr. Ludwig on emails with Mr. Clarke-Fisher and his colleague. Id. (further stating he was also included on phone calls). By the end of September, Mr. Ludwig became the primary point of contact for the Hotel Defendants “and indicated as much to Mr. Clarke-Fisher.” Id. On September 30, Mr. Ludwig emailed Mr. Clarke-Fisher to indicate he was providing “the position of a broader set of hotel defendants.” Id.; see also attached Ex. 5 (email chain with the last-in-time date of October 16, 2020). In that email, Mr. Ludwig stated as follows:
Chris [Wood] has asked me for the position of a broader set of hotel defendants, so to expedite matters I respond directly with the following:
Unfortunately, we cannot accept a proposal that would limit the document universe in this manner.... Booking/Priceline is a critical third party and is an un-named co-conspirator in this litigation. In view of that fact, and the scope of the party and non-party document productions to date, we do not believe that a request to review 11,000 documents is unreasonable or overly burdensome.
We have a discovery cutoff of November 30, and need to wrap up this process quickly. Accordingly, please let us know by Friday (October 2) whether Booking will review the 11,000 documents based on our last proposal. We very much hope to avoid any litigation over this subpoena, but as we have stated, we believe Booking is a key third party here.
Cause No. 5:21mc1, Docket Entry # 1-7 at p. 5 (emphasis added).
According to BHI, although the communications initially included Red Roof's counsel, by mid-October of 2020, Red Roof's counsel “appears to have disappeared from the discussions.” Id., Docket Entry # 24 at p. 2. BHI asserts at no time during these discussions did Mr. Ludwig (or Red Roof's counsel) ever state, or give any indication, that Red Roof was in the process of settling out of the Underlying Litigation. Id. at pp. 2-3.
*4 On October 12, 2020, unbeknownst to BHI, a “Joint Motion to Dismiss with Prejudice of Plaintiffs and Red Roof Inns, Inc. and RRI Financial, Inc.” was filed in the Underlying Litigation. Cause No. 5:18cv153, Docket Entry # 358. That same day, Mr. Ludwig emailed Mr. Clarke-Fisher asking for an update. Cause No. 5:21mc1, Docket Entry # 1-7 at p. 2.
On October 14, 2020, Red Roof was dismissed with prejudice from the Underlying Litigation. Cause No. 5:18cv153, Docket Entry # 360. Moving Defendants note the dismissal was publicly disclosed on the Court's docket. Id., Docket Entry # 451 at p. 2 (citing Docket Entry # 360). According to TravelPass, Defendant Marriott, unbeknownst to TravelPass, took over negotiation of the Red Roof-issued Subpoena in October 2020. Id., Docket Entry # 448 at p. 1.
As noted above, by the end of October, Mr. Ludwig was corresponding directly with Mr. Clarke-Fisher, without the involvement of Red Roof's counsel. Ludwig Decl., ¶ 9. After further meet-and-confer efforts, including telephone conferences that did not include Red Roof's counsel, on October 26, 2020, Mr. Ludwig emailed Mr. Clarke-Fisher to memorialize the Hotel Defendants' proposal. Id. Specifically, Mr. Ludwig stated “we will consider Booking's obligations under the subpoena complete upon production of responsive documents from the set of approximately 11,000 documents that resulted from our last search term proposal sent by Chris Wood on September 17, 2020. Please confirm that this is acceptable.” Cause No. 5:21mc1, Docket Entry # 1-8 at p. 6.
On October 26, 2020, Hotel Defendants in the Underlying Litigation jointly petitioned the Court for a one-month extension of the fact discovery deadline (from November 30, 2020 to December 30, 2020), stating they were “still pursuing various discovery from several non-party entities....” Cause No. 5:18cv153, Docket Entry # 365 at p. 5. According to TravelPass, Defendants specifically referenced TravelPass's low-volume inventory suppliers that were the subject of former Defendant Hyatt's motion to compel, but failed to mention they were pursuing discovery initiated by any settled Defendants, like the BHI Subpoena.[7] On November 9, 2020, the Court granted and modified Hotel Defendants' requested amendment to the Docket Control Order, extending the fact discovery deadline to December 30, 2020. Cause No. 5:18cv153, Docket Entry # 380.
Unbeknownst to TravelPass, on November 2, 2020, Mr. Clarke-Fisher emailed Mr. Ludwig his agreement to the October 26, 2020 proposal. See Ludwig Decl.,¶ 9; see also attached Ex. 6 (email chain with the last-in-time date of January 25, 2021). Mr. Clarke-Fisher stated they expected to produce the set of responsive documents by November 23 and that, once done, “this will satisfy Booking Holdings Inc. and Priceline.com, LLC's subpoena obligations to Defendants.”[8] Cause No. 5:21mc1, Docket Entry # 1-8 at p. 6 (emphasis added).
*5 BHI failed to produce documents as agreed by November 23, 2020. According to Mr. Ludwig, on November 23, Mr. Clarke-Fisher e-mailed Mr. Ludwig to indicate that BHI's document review was ongoing and that BHI would make a production in a few weeks, likely the week of December 14. Ludwig Decl., ¶ 10. That date, too, passed with no production.[9]
On December 23, 2020, Mr. Ludwig e-mailed Mr. Clarke-Fisher to inquire about the status of BHI's production. Ludwig Decl., ¶ 11. Mr. Ludwig states Mr. Clarke-Fisher did not respond to that email. Id.
On December 30, 2020, fact discovery closed in the Underlying Litigation pursuant to the operative docket control order. Cause No. 5:18cv153, Docket Entry # 382. In his declaration, Mr. Ludwig further states as follows:
When I did not hear back, I followed up with Mr. Clarke-Fisher again on January 5 and January 15. He similarly did not respond to those emails. Finally, on January 22, 2021, I e-mailed Mr. Clarke-Fisher to indicate that given all of the time that had elapsed, we would move to compel production if we did not have a production by January 27, 2021. Only then did Mr. Clarke-Fisher respond, indicating his position that the subpoena was no longer enforceable for the first time....
Ludwig Decl., ¶ 11. Specifically, the January 22, 2021 email stated as follows:
It has now been nearly three months since we reached our agreement on the parameters of the document review and production, which was preceded by several months of negotiations. You first told me that we could expect production by November 23, and then later extended that to the week of December 14. Since then, you have ignored three of my emails. Our time for waiting has expired, and we need these documents to proceed with our litigation. If we do not receive your production by Wednesday, January 27, we will seek relief from the Court.
Cause No. 5:21mc1, Docket Entry # 1-8 at p. 4 (emphasis original).
On January 25, 2021, Mr. Clarke-Fisher advised Mr. Ludwig that despite his failure to disclose the fact that Red Roof had been dismissed from the Underlying Litigation with prejudice, BHI had come to learn of Red Roof's dismissal and based on this fact it would not produce documents in the absence of a valid and enforceable subpoena from the Moving Defendants. Cause No. 5:21mc1, Docket Entry # 1-8 at p. 3. According to the BHI's understanding of the applicable rules, following the dismissal of Red Roof from the Underlying Litigation, “there is no pending subpoena against either BHI or Priceline that would obligate Priceline to produce documents to Marriott or otherwise respond to your request.” Id. Mr. Clarke-Fisher further noted in the email that the last day of discovery in the Underlying Litigation was December 30, 2020; thus, “it would seem that the Court's scheduling order bars further productions from non-parties.” Id.
*6 According to Mr. Ludwig, after further e-mails on the topic in an attempt to resolve the issue, he had a telephonic meet and confer with Mr. Clarke-Fisher on February 2, 2020, to attempt to resolve the issues or reduce the area of controversy. Ludwig Decl., ¶ 12. Mr. Ludwig provided Mr. Clarke-Fisher with the arguments raised in the accompanying motion. They were unable to reach agreement on the issues raised in the motion. Id. Moving Defendants filed their motion to compel in Connecticut on February 5, 2021, seeking to compel BHI to produce documents. Cause No. 5:21mc1, Docket Entry # 1. According to Moving Defendants, the motion was necessitated by BHI's “breach of its agreement to comply with a non-party subpoena by stringing the Hotel Defendants along for months until the discovery deadline passed and then claiming the subpoena is not enforceable because it was served by a now dismissed party.” Memorandum of Law in Support of Motion to Compel at p. 1.
In its response, non-party BHI argues Moving Defendants “are moving to compel a moot subpoena past the discovery deadline, without standing to do so under the plain language of Rule 45 of the Federal Rules of Civil Procedure.” Cause No. 5:21mc1, Docket Entry # 24 at p. 1. BHI states at no time did Red Roof explain the Subpoena was on behalf of all Hotel Defendants; nor did Red Roof's attorney correct BHI's statements confirming its understanding that Red Roof was the issuing party. According to BHI, following the initial meet and confer between BHI and Red Roof, on April 6, 2020, Red Roof's counsel sent BHI's counsel an email which indicated the negotiations with BHI were on behalf of Red Roof, not every defendant in the Underlying Litigation. Specifically, Red Roof's counsel noted that certain search terms “will give Priceline and Red Roof a general sense of” the quantity of data the parties are discussing. See Cause No. 5:21mc1, Docket Entry # 24 at p. 2 (emphasis original); see also attached Ex. 1 (email chain). BHI further asserts none of the Moving Defendants provided BHI “with the courtesy of notifying it that Red Roof had been dismissed with prejudice from the Underlying Litigation, and thus it was under the impression the Red Roof Subpoena was valid.” Id. at p. 10. Finally, BHI states Moving Defendants have not explained how the missing evidence is relevant to Moving Defendants' defenses or claims. Id.
The motion to compel was transferred to this Court on March 10, 2021.[10] By that time, TravelPass had filed in the Underlying Litigation its motion for protective order. Cause No. 5:18cv153, Docket Entry # 448. TravelPass primarily argues the motion is untimely. On March 12, 2021, Moving Defendants filed a response in opposition to TravelPass's motion. Cause No. 5:18cv153, Docket Entry # 451. Moving Defendants argue as follows:
TravelPass has aligned itself with the bad-faith gamesmanship of Booking, which agreed to produce documents in response to Defendants' subpoena, represented that the production was forthcoming, and then, only after the discovery deadline passed, indicated it would no longer abide by its agreement. Booking's ploy is the subject of an earlier-filed motion to compel and request for sanctions, which was recently transferred to this Court from the District of Connecticut.... TravelPass now seeks a protective order denying Defendants access to highly relevant materials from Booking—a non-party that TravelPass claims is a co-conspirator in the alleged ‘secondary conspiracy.’ TravelPass's motion should be denied for the following reasons.
First, TravelPass's argument that Defendants have not been diligent is wrong. The record establishes that Booking affirmatively led Defendants to believe that a production was forthcoming. The dispute did not ripen until January 25, when Booking breached its agreement. At that point, Defendants promptly filed their motion. Contrary to TravelPass's unsupported contention, a motion prior to the cutoff would therefore have been premature.
*7 Second, TravelPass also incorrectly claims Defendants' motion is untimely because it was filed after the close of fact discovery. This Court has considerable discretion to consider the circumstances that led to the filing of this motion. Given Booking's egregious conduct, the pertinent factors from Days Inn Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395 (N.D. Tex. 2006) strongly favor denying TravelPass's motion.
Id. at pp. 1-2 (emphasis original).
IV. APPLICABLE LEGAL STANDARDS GOVERNING DISCOVERY
A. Rule 45
Under Rule 45 of the Federal Rules of Civil Procedure, a “command in a subpoena to produce documents ... requires the responding person to permit inspection, copying, testing, or sampling of the materials.” Mustang Innovation, L.L.C. v. Sonoco Prod. Co., Civil Action No. 4:14-CV-3756-RBH, 2015 WL 4508830, at *2 (D.S.C. July 24, 2015) (quoting FED. R. CIV. P. 45(a)(1)(D)). Under Federal Rule of Civil Procedure 45(d)(1), “[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,” and “[t]he court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply.” MetroPCS v. Thomas, 327 F.R.D. 600, 606 (N.D. Tex. 2018) (quoting FED. R. CIV. P. 45(d)(1); also citing Am. Fed'n of Musicians of the U.S. & Canada v. Skodam Films, L.L.C., 313 F.R.D. 39, 57-59 (N.D. Tex. 2015)). And Federal Rule of Civil Procedure 45(d)(2)(B) requires that “[a] person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested”—and that “[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Id. at 606–07 (quoting FED. R. CIV. P. 45(d)(2)(B)).
Under Rule 45(d)(2)(B), “[if] an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.” Id. at 607 (quoting FED. R. CIV. P. 45(d)(2)(B)). Timely serving written objections therefore suspends the non-party's obligation to comply with a subpoena commanding production of documents, pending a court order. Id. (citing FED. R. CIV. P. 45(d)(2)(B)(ii); also citing Am. Fed'n, 313 F.R.D. at 44).
A court may, on timely motion, quash or modify a subpoena that subjects a person to undue burden or requires disclosure of privileged or other protected matter. Mustang, 2015 WL 4508830, at *2 (quoting FED. R. CIV. P. 45(d)(3)(A)). “Ordinarily ‘only the party or person to whom the subpoena is directed has standing to move to quash or otherwise object to a subpoena.’ ” Id. (quoting In re C.R. Bard, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2187, 2014 WL 1660386, at *2 (S.D.W.Va. Apr.22, 2014) (quoting Transcor, Inc. v. Furney Charters, 212 F.R.D. 588, 590 (D. Kan. 2003))). An exception exists, however, when the person objecting to the subpoena has a personal right or privilege in the information sought by the requester. Id. (citing United States v. Idema, 118 Fed. Appx. 740, 744 (4th Cir.2005) (citations omitted in Mustang Innovation)). “[T]he scope of discovery allowed under a subpoena is the same as the scope of discovery allowed under Rule 26.” Id. (quoting HDSherer L.L.C. v. Natural Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C.2013) (citing Cook v. Howard, 484 Fed. Appx. 805, 812 (4th Cir.2012))).
B. Scope of discovery
*8 Federal Rule of Civil Procedure 26(b) provides that the permissible scope of discovery includes “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”[11] Matter of AET, Inc., Ltd., Civil Action No. 1:10-CV-51, 2018 WL 4201264, at *2 (E.D. Tex. June 8, 2018) (quoting FED. R. CIV. P. 26(b)(1)).
In addition to being relevant, discovery must be proportional. Federal Rule of Civil Procedure 26(b) has been amended, effective December 1, 2015. Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 284 (N.D. Tex. June 26, 2017) (“Samsung II”). “Under Rule 26(b)(1), [as amended,] discoverable matter must be both relevant and proportional to the needs of the case—which are related but distinct requirements.”[12] Id. at 279. The burden is on the party resisting discovery to establish the discovery is not proportional. KAIST IP US L.L.C. v. Samsung Electronics Co. Ltd., No. 2:16-CV-01314-JRG-RSP, 2017 WL 9937760, at *1(E.D. Tex. Dec. 21, 2017) (citing Samsung Elecs. Am., Inc. v. Yang Kun Chung, No. 3:15-CV-4108-D, 2017 WL 896897, at *11 (N.D. Tex. Mar. 7, 2017) (“Samsung I”)); see also Samsung II, 321 F.R.D. at 284 (explaining the amendments to Rule 26 do not alter the burdens imposed on the party resisting discovery).
“[J]ust as was the case before the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can—and must—limit proposed discovery that it determines is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit—and the court must do so even in the absence of a motion.” Samsung II, 321 F.R.D. at 284 (citing Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011)). Thus, as amended, Rule 26(b)(2)(C) provides that, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule 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).” Samsung II, 321 F.R.D. at 284 (quoting FED. R. CIV. P. 26(b)(2)(C)).
C. Protective orders
*9 The court also “may find that a subpoena presents an undue burden when the subpoena is facially overbroad.” MetroPCS, 327 F.R.D. at 610 (quoting Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (footnote omitted in MetroPCS)). “Courts have found that a subpoena for documents from a non-party is facially overbroad where the subpoena's document requests seek all documents concerning the parties to [the underlying] action, regardless of whether those documents relate to that action and regardless of date; [t]he requests are not particularized; and [t]he period covered by the requests is unlimited.” Id. (quoting Am. Fed'n, 313 F.R.D. at 45 (internal quotation marks omitted in MetroPCS)).
Federal Rule of Civil Procedure 26(c)(1) provides that “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.” Id. (quoting FED. R. CIV. P. 26(c)(1)). Rule 26(c)(1) further provides that the court “may, for good cause,” protect a party from “undue burden or expense” by issuing an order forbidding the disclosure or discovery of certain matters, specifying terms for the disclosure or discovery, or limiting the scope of disclosure or discovery. Matter of AET, 2018 WL 4201264, at *2 (quoting FED. R. CIV. P. 26(c)(1)(D)).
In order to prevail on a motion for protective order or successfully resist a motion to compel, a party must specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of discovery, that a discovery request would impose an undue burden or expense, or that a discovery request is otherwise objectionable. Tijerina v. Guerra, Civil Action No. 7:19-CV-285, 2020 WL 1663181, at *5 (S.D. Tex. Apr. 1, 2020) (citing Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (citing McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990))). The party resisting discovery must show specifically how each discovery request is not relevant or how each request is overly broad, burdensome, or oppressive. Tijerina, 2020 WL 1663181, at *5 (citing O'Bryant v. Walgreen Co., Civil Action No. 19-60363, 2020 WL 996464, at *5 (5th Cir. 2020) (citing McLeod, 894 F.2d at 1485) (“[T]he party resisting discovery must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.” (internal quotations omitted in Tijerina))).
V. DISCUSSION
A. Whether the Subpoena is moot
As an initial matter, the Court considers whether the Subpoena is moot. BHI asserts the Subpoena, which was issued by Red Roof, is moot and unenforceable following Red Roof's dismissal from the Underlying Litigation. In their motion to compel, Moving Defendants rely on an unreported case from the District of Kansas, wherein the court rejected that same argument.
In Heartland Surgical Specialty Hospital, L.L.C. v. Midwest Division, Inc., Civil Action No. 05-2164-MLB-DWB, 2007 WL 1112525 (D. Kan. 2007), the defendants sought an order requiring the physician-founders (“Founders”) of the plaintiff hospital (“Heartland”) to respond to subpoenas issued by the United defendants. Id. at *1. In their joint motion to compel compliance with the subpoenas, the defendants argued the subpoenas were issued on behalf of all the defendants in the case. Founders argued the subpoenas were issued solely by the United defendants who had, subsequent to the issuance of the subpoenas, settled and been dismissed from the litigation. Id. Thus, according to Founders, the subpoenas were moot. Id.
*10 United's counsel stated in an affidavit supporting the defendants' motion that he “undertook the effort to draft and issue these subpoenas for the benefit of all defendants, and all defendants approved them. Thus, while the subpoenas listed a United attorney as the ‘issuing officer,’ the subpoenas sought discovery on behalf of all defendants.” Id. (further noting six of the twenty-three categories related specifically to United, at least in part, and the remaining categories were more broadly phrased). United's counsel stated he had notified the plaintiff's counsel that he had cleared the subpoenas with all the defendants and that all the defendants had approved. Id.
After the issuing party (United) settled, another defendant (Humana) then “stepped into the fray over the subpoenas.”Id. at *2. Believing the subpoenas were issued by all the defendants, Humana urged the Founders to honor the subpoenas despite the United settlement; in subsequent meet and confer sessions, the Founders “initially agreed that they would honor the subpoenas with the exception of the six requests they identified as ‘United specific.’ ” Id. That agreement ultimately fell apart after Humana rejected the Founders' proposal that the defendants provide assurance that no additional subpoenas would be directed to Founders. Id.
Humana filed the motion to compel on behalf of all the defendants (and then settled with the plaintiff and was also dismissed from the litigation). Just as BHI argues here, the Founders in Heartland argued that “once claims are dismissed against a party and that party is dismissed from the case, discovery issued by that party is moot,” and that “United never indicated that the subpoenas were being issued on behalf of all Defendants during initial discussions, and that Defendants took this new position only after United had settled.” Id. at *3. The defendants argued the circumstances surrounding the “multi-party litigation ma[d]e it clear that the subpoenas were, in fact, issued by all Defendants.” Id.
The court rejected the Founders' arguments, noting, among other things, “United's counsel indicate[d] he had previously cleared the subpoenas through all Defendants and his intent was to serve the subpoenas on behalf of all Defendants, not just United.” Id. (further noting the majority of the discovery propounded to non-parties in the litigation had been issued by one defendant). According to the court, “[t]he logical presumption ... is that the discovery to these non-parties is on behalf of all Defendants. Otherwise, each Defendant would have presumably propounded its own individual discovery request to these important non-parties by this late stage of fact discovery.” Id.
The court also found noteworthy the fact that “three-fourths of the document requests ... appear[ed] to be applicable to all Defendants” and “the discovery in th[e] case ha[d] been undertaken as a joint effort.” Id. (noting the depositions of the Founders were noticed as one deposition, but that each Founder was questioned by each defendant and further noting that when Founders did produce some documents, they produced copies to each defendant, not just to United). After considering all of the arguments of counsel, the court in Heartland ultimately concluded the “subpoenas issued by United were issued on behalf of all Defendants and as such [were] still viable notwithstanding the fact that United ha[d] .... been dismissed as a party in the case.” Id. at *4. The court concluded that granting the movant's motion would “further[ ] the Court's endeavor toward a fair trial” and “the purpose of the Federal Rules of Civil Procedure which are to be ‘construed and administered to secure the just, speedy and inexpensive determination in every action.’ ” Id. (quoting FED. R. CIV. P. 1) (further noting all “parties, both the Founders and Defendants, would be subject to additional burden and expense if the Court required the subpoena process to be started over again”).
*11 According to Moving Defendants, all of the facts that led the Heartland court to reach its conclusion are present here. In Marriott's counsel's declaration, filed in support of Moving Defendants' motion to compel, Mr. Ludwig states as follows: “[a]s is common in multi-party cases, rather than having each defendant separately serve its own subpoena on every non-party, the Hotel Defendants agreed to divide primary responsibility for non-party discovery among themselves.” Ludwig Decl., ¶ 3 (“Otherwise each non-party would receive multiple, identical subpoenas and would be forced to expend resources to respond to and negotiate each individually.”). To the best of Mr. Ludwig's knowledge, all of the subpoenas in the Underlying Litigation have been signed and served by one Hotel Defendant on behalf of the entire group of Hotel Defendants.[13] Id. Mr. Ludwig asserts the Hotel Defendants agreed and intended that Red Roof would have primary responsibility for the BHI Subpoena, would serve the Subpoena on behalf of all of the Hotel Defendants, and would negotiate BHI's compliance with the Subpoena on behalf of the Hotel Defendants. Id., ¶ 4.
BHI argues the facts in Heartland are “distinct from the present motion in that the ‘non-parties’ in Heartland that were subject to the motion to compel were not ‘nonparties’ in the true sense of the word, but were the physician-founders of the hospital-plaintiff and were represented by the same counsel as the plaintiff. That is to say, they were intimately involved in the Heartland litigation.” Cause No. 5:21mc1, Docket Entry # 24 at p. 6 (further pointing out “non-parties” in Heartland did not even file an opposition to the motion to compel; rather, the opposition was filed by the plaintiff, which the court considered to have been filed on behalf of the Founders). BHI further asserts it is noteworthy that the court's analysis in Heartland has not been adopted by any other court, despite the decision having been around for over fourteen years.[14]
It is noteworthy to the Court that the Founders of the plaintiff Heartland and Heartland itself were represented by the same counsel in Heartland. At one point in the opinion, the court in Heartland referred to the Founders as parties. See Heartland, 2007 WL 1112525, at *4 (“There could be no question that all parties, both the Founders and Defendants, would be subject to additional burden and expense if the Court required the subpoena process to be started over again.”) (emphasis original). Here, BHI is not a party to the Underlying Litigation.
Even so, the Court is not convinced the Subpoena is moot. In the Heartland case, counsel for the serving defendant stated in an affidavit that he undertook the effort to draft and issue the subpoena for the benefit of all defendants, and the subpoenas sought discovery on behalf of all defendants. Similarly here, counsel for Marriott, who stepped into negotiations with BHI's counsel, stated in an affidavit that the Hotel Defendants collaborated on drafting the Subpoena to BHI. Ludwig Decl., ¶ 4. Mr. Ludwig states drafts of the Subpoena were circulated among the Hotel Defendants, and several provided feedback. Id. Mr. Ludwig further states he was personally involved in this process and provided suggested topics, edits, and comments. Id.
*12 Additionally, like in Heartland, the general subject matter of the Subpoena's topics seem to clearly relate to all Hotel Defendants. Thus, the Court finds persuasive Moving Defendants' assertion that the Subpoenas were a joint effort.[15] Notwithstanding the fact that Red Roof has now been dismissed as a party in the Underlying Litigation, the Subpoena issued on behalf of all Hotel Defendants is still viable. Even though the Court is not convinced the Subpoena is moot, another issue remains which was not specifically addressed by the Heartland court.[16]
B. Whether Moving Defendants may move to compel a response to the Subpoena
Even if the Subpoena is not moot, BHI argues “Moving Defendants do not have standing to compel it.” Cause No. 5:21mc1, Docket Entry # 24 at p. 4 (citing Troice v. Proskauer Rose L.L.P., Civil Action 3:09-CV-1600-N-BG, 2015 WL 13729620, at *2 (N.D. Tex. Mar. 9, 2015) (citing FED. R. CIV. P. 45(d)(2)(B)(i)). Focusing on the language of Rule 45(d), BHI argues that because only Red Roof served the Subpoena, Moving Defendants have no standing to enforce it.
Federal Rule of Civil Procedure 45(d)(2)(b)(i) provides, in pertinent part, as follows:
(i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.
FED. R. CIV. P. 45(d)(2)(B)(i) (emphasis added). BHI asserts Rule 45(d)(2)(B)(i) specifically states that the “serving party” may move the court for an order compelling production or inspection. The serving party must avoid imposing an undue burden or expense, and the court must enforce this duty. Scalia v. Reliance Tr. Co., Civil Action No. 17-CV-4540 (SRN/ECW), 2020 WL 2111368, at *5 (D. Minn. May 4, 2020) (FED. R. CIV. P. Rule 45(d)(1)).
According to BHI, to the extent Heartland can be read for the overarching proposition that co-defendants have standing to compel a response to a subpoena that they are not a party to, “this is in direct contravention to Rule 45 and would lead to absurd results.”[17] Cause No. 5:21mc1, Docket Entry # 24 at p. 5. As one example, BHI argues that, upon dismissal of the serving party, the subpoenaed non-party would not be able to avail itself of Rule 45(d)(1) protections, which allows for sanctions against “[a] party or attorney responsible for issuing and serving a subpoena.”[18] Id.
*13 The Court is not convinced that Moving Defendants may move to compel the production of information from BHI. The Court finds helpful Troice v. Proskauer Rose L.L.P., Civil Action No. 3:09-CV-1600-N-BG, 2015 WL 13729620 (N.D. Tex. Mar. 9, 2015), the case relied upon by BHI. That case involved a subpoena Chadbourne & Parke LLP served on the receiver requesting the receiver—who was neither a plaintiff nor defendant in the lawsuit—to produce documents related to class certification. Id. at *1. The receiver served formal objections to the subpoena on December 19, 2014. Id. The defendants, Proskauer Rose LLP (Proskauer) and Chadbourne & Parke LLP (Chadbourne), subsequently filed a motion to compel the receiver to produce documents responsive to the subpoena on January 13, 2015. Id.
At the outset, the court noted only Chadbourne served the subpoena upon the receiver. Id. at *2. According to the court, although the Notice of Subpoena stated that “Defendants Chadbourne & Parke, LLP [and] Proskauer Rose, LLP ... intend to serve the attached subpoena to produce documents on Ralph S. Janvey,” the subpoena itself listed only Chadbourne as the issuing party of the subpoena. See id. After pointing out Rule 45(d)(2)(B)(i) specifically states that the “serving party may move the court ... for an order compelling production or inspection,” the court held Chadbourne, as the only party that served the receiver with the subpoena, was the sole party with standing to compel the production of information from the receiver. Id. (quoting FED. R. CIV. P. 45(d)(2)(B)(i) (emphasis added in Troice)). Even though Proskauer joined in the motion to compel, Proskauer's motion was denied for this reason. Id. However, even if Proskauer had served the subpoena on the receiver, the court held it would still not be entitled to the discovery it sought to compel in its motion, as discussed later in the opinion. Id.
Similarly here, the Court is not persuaded Moving Defendants have standing to move to compel the production of information from BHI when Red Roof was the only party that served the Subpoena. See also Joint Stock Co. Channel One Russia Worldwide v. Infomir L.L.C., Civil Action No. 16-CV-1318(GBD) (BCM), 2018 WL 6712769, at *5 n. 5 (S.D.N.Y. Nov. 30, 2018) (“Defendant Infomir did not serve the Subpoenas, and thus has no standing to enforce them.”). However, even if Moving Defendants had served the Subpoena on BHI, Moving Defendants' motion would still fail, as explained below.
Importantly, putting aside the issue of whether Moving Defendants have standing to move to compel, the Court finds, after considering the good cause factors, that Moving Defendants' motion should be denied on this independent ground.[19]
C. Whether there is good cause to reopen fact discovery
1. The issues
The Court's Sixth Amended Docket Control Order established December 30, 2020 as the fact discovery deadline, which explicitly included the completion of non-party discovery and depositions of identified and agreed-upon party witnesses. Cause No. 5:18cv153, Docket Entry # 382. Moving Defendants filed their motion to compel on February 5, 2021, well after the expiration of the deadline for completing all non-expert discovery, including the discovery sought from non-party BHI.
In their motion, Moving Defendants first argue their motion to compel is timely, focusing on the fact the operative docket control order in the Underlying Litigation contains no deadline for motions to compel. The Court addresses this issue in its good cause analysis below. Relatedly, Moving Defendants assert BHI should be estopped from invoking the discovery cutoff. See Cause No. 5:21mc1, Docket Entry # 1 at p. 10. Arguing BHI misrepresented to Moving Defendants it intended to produce documents to comply with the Subpoena, an assertion BHI knew Moving Defendants would rely upon, Moving Defendants assert BHI is equitably estopped from arguing the Court's docket control order bars further production from non-parties.
*14 The Court finds the equitable estoppel argument unpersuasive. First, as noted by BHI, the Second Circuit case relied upon by Moving Defendants, Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706 (2d Cir. 2001), does not involve a discovery matter like in this case. Second, BHI argues equitable doctrines do not apply as BHI “itself was misled to believe that it was complying with an enforceable subpoena.” Cause No. 5:21mc1, Docket entry # 24 at p. 8, n. 3. Third, in its motion for protective order, TravelPass has also raised the issue of whether the Moving Defendants' motion was timely filed.[20] More significantly, Federal Rule of Civil Procedure 16(b) requires good cause and leave of court for a deviation from the deadlines contained in a docket control order. Thus, independent of BHI's and TravelPass's arguments as to timeliness, the Court considers whether there is good cause to modify the docket control order in order to compel production from BHI. The Court now turns to its good cause analysis.
2. Applicable law
Under Federal Rule of Civil Procedure 16(b), federal courts have the clear authority to control and expedite the discovery process through a scheduling order. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). Consistent with the authority vested in the district court by Rule 16, the trial court is granted broad discretion to preserve the integrity and purpose of such pretrial orders. See id. (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)); see also Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir. 2008) (affording district courts a great deal of deference in determining whether to modify scheduling orders especially where the record suggests the movant repeatedly demonstrated a lack of diligence). Scheduling orders and their enforcement are regarded as essential in ensuring that cases proceed to trial in a just, efficient, and certain manner. Gauthier v. Union Pac. R.R. Co., Civil Action No. 1:07-CV-12 (TH/KFG), 2009 WL 10676647, at *3 (E.D. Tex. Mar. 10, 2009) (citing Hernandez v. Mario's Auto Sales, Inc., 617 F. Supp. 2d 488, 495 (S.D. Tex. 2009) (citations omitted)).
Federal Rule of Civil Procedure 16(b)(4) provides that deadlines in a schedule “may be modified only for good cause and with the judge's consent.” The Fifth Circuit has “interpreted Rule 16(b)(4)'s ‘good cause’ standard to require the movant to ‘show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.’ ” Puig v. Citibank, N.A., 2013 WL 657676, at *5 (5th Cir. Feb. 22, 2013) (quoting S & W Enterprises, L.L.C. v. Southtrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir.2003)).
The Fifth Circuit has stated four factors trial courts must consider when determining whether good cause exits to allow a deviation from the court's scheduling order: (1) the explanation for the failure to meet the deadline; (2) the importance of the modification of the deadline; (3) potential prejudice in allowing the modification; and (4) the availability of a continuance to cure such prejudice. Reliance Ins. Co. v. The Louisiana Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997); Geiserman, 893 F.2d at 791.
3. Good cause analysis
a. Moving Defendants' diligence
In assessing good cause, the trial court primarily considers the diligence of the party seeking to alter the existing schedule. See Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan.1995); see also Smith v. BCE, Inc., 225 Fed. Appx. 212, 217 (5th Cir. 2007). The party's explanation for seeking relief from the schedule must demonstrate that it could not have met the deadline despite its diligence. The Court finds Moving Defendants' explanation does not demonstrate it could not have met the deadline despite its full diligence.
*15 Even though Red Roof's counsel served the Subpoena on BHI on February 18, 2020, Moving Defendants waited until February of 2021, almost one year after the Subpoena was served, to file the instant motion to compel. The timing alone would suggest that Moving Defendants were not diligent in seeking to compel compliance with the BHI Subpoena (putting aside the separate issue of whether they would even be able to do so without issuing a new subpoena served by Moving Defendants). In attempting to show good cause for the delay in filing their motion to compel, Moving Defendants first state the operative docket control order in the Underlying Litigation, while providing a December 30, 2020 fact discovery deadline, “is silent on any deadline for discovery motions.” Cause No. 5:21mc1, Docket Entry # 1 at p. 11.
It is unnecessary for the Court's docket control order to have a separate deadline for the filing of discovery motions. In order to timely obtain the fact discovery which Moving Defendants seek in their motion to compel, Moving Defendants' motion had to be filed sufficiently in advance of the discovery deadline in order to allow it to be heard by a court, and if granted, to allow the compelled discovery to be produced prior to the deadline. See Days Inn Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395, 398 (N.D. Tex. 2006).[21] As the court in Wells v. Sears Roebuck and Co., 203 F.R.D. 240, 241 (S.D. Miss.2001) stated, “if the conduct of a respondent to discovery necessitates a motion to compel, the requester of the discovery must protect himself by timely proceeding with the motion to compel. If he fails to do so, he acts at his own peril.” Id. at 399. As explained in further detail below, Moving Defendants should have taken reasonable steps to meet the deadline or to move for its extension.[22]
Moving Defendants next rely on BHI's November 2, 2020 agreement to the Hotel Defendants' October 26, 2020 proposal regarding production of documents. From Moving Defendants' perspective, BHI had an agreement with the Hotel Defendants, and BHI violated that agreement after “intentionally push[ing] back the date promised for production to get as close as it could to the discovery cutoff so it could then run out the clock.” Cause No. 5:18cv153, Docket Entry # 451 at p. 4. Moving Defendants assert it was only after the discovery deadline passed that BHI indicated it would no longer abide by its agreement. Specifically, Moving Defendants assert as follows:
This motion is unfortunately necessitated by [BHI's] breach of its agreement to comply with a non-party subpoena by stringing the Hotel Defendants along for months until the discovery deadline passed and then claiming the subpoena is not enforceable because it was served by a now dismissed party. This gamesmanship should be rejected.
*16 Cause No. 5:21mc1, Docket Entry # 1 at p. 1.
As the party seeking to reopen the now-expired fact discovery deadline, it is Moving Defendants' diligence that is at issue here. According to Moving Defendants, the record is clear they sought relief from the court quickly upon learning that BHI would breach its agreement to comply with the Subpoena. The Moving Defendants first learned on January 25, 2020 that BHI would not honor its commitment, and filed this motion shortly thereafter. Moving Defendants argue they would have filed their current motion prior to the discovery deadline if they had not been “lulled ... into believing the production was forthcoming through multiple, affirmative misleading statements, and then subsequently ignored” when Marriott's counsel attempted to follow-up prior to the fact discovery deadline. Id. at p. 12.
While an informal agreement between Moving Defendants and BHI could support a finding of good cause under certain circumstances, it does not here. The motion to compel indicates that Red Roof's counsel received BHI's timely objections to the Subpoena, which was served in February of 2020.[23] “Beyond that, [BHI was] not required to do anything.” Herrington v. Babcock L. Firm, L.L.C., Civil Action No. 14-MC-31-JJB, 2014 WL 4996182, at *4 (M.D. La. Oct. 7, 2014). Timely serving written objections suspends the non-party's obligation to comply with a subpoena commanding production of documents, pending a court order.[24] Traut v. Quantum Servicing, L.L.C., Civil Action No. 3:18-MC-14-D-BN, 2018 WL 1035134, at *6 (N.D. Tex. Feb. 23, 2018) (citing FED. R. CIV. P. 45(d)(2)(B)(ii); also citing Am. Fed'n, 313 F.R.D. at 44). “Once the person subpoenaed objects to the subpoena ... the provisions of Rule 45(d) come into play. Then the party seeking discovery must obtain a court order directing compliance.” In re Subpoena to Vaughn Perling, Civil Action No. 2:19MC00083-CAS(Ex), 2019 WL 8012372, at *3 (C.D. Cal. Dec. 2, 2019) (Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n.5 (9th Cir. 1983)).
*17 Thus, after BHI objected to the Subpoena, Red Roof was required to obtain a court order directing compliance. The Court appreciates the efforts counsel for Red Roof and then Marriott put into meeting and conferring regarding whether BHI would comply with the Subpoena without the need for litigation. However, full diligence requires that at some point negotiations must end, especially as Court-imposed deadlines are approaching and the non-party missed the production dates as initially stated.[25]
Counsel for Red Roof and then Marriott were aware of, and made BHI aware of, the time sensitive nature and Red Roof's right to move to compel production. By the end of July 2020, Red Roof's counsel, Mr. Wood, had emailed Mr. Clarke-Fisher with BHI, stating “[w]e very much need to keep moving toward production.” See Cause No. 5:21mc1, Docket Entry # 1-7 at p. 17. Mr. Wood further noted that “[w]hile Red Rood appreciate[d] the dynamics of the current market, we are now approaching six months since service of the subpoena.” Id. Mr. Wood pointed out that “Red Roof's willingness to date to coordinate on Priceline email and non-email ESI production [did] not constitute a waiver of any Red Roof right to move to compel production pursuant to Fed. R. Civ. P. 45(d).” Id.
By the end of September 2020, when Marriott's counsel, Mr. Ludwig, had already become the primary point of contact for the Hotel Defendants, it is clear from an email to BHI that Mr. Ludwig was aware of the approaching date of November 30 – a date that was then the fact discovery cutoff – and the need to “wrap up [the] process quickly.”[26] See Cause No. 5:21mc1, Docket Entry # 1-7 at p. 5; see also Ludwig Decl., ¶ 8. Mr. Ludwig also mentioned the possibility of litigation over the Subpoena, while expressing hope to avoid such litigation. Id.
Moving Defendants have not shown they exercised diligence for purposes of Rule 16(b) with regard to the Subpoena. The Court finds this factor weighs against modifying the docket control order to re-open fact discovery as to the third-party discovery now sought by Moving Defendants. The remaining factors also weigh against modification.
b. Importance of the requested modification
Moving Defendants have not convinced the Court of the importance of a modification. Non-party BHI has not been asked to sit for any depositions. According to BHI, the suggestion that Priceline's documents are essential to the Underlying Litigation is undermined by the simple fact that prior to the close of fact discovery, no one sought to compel a production.
Having failed to demonstrate the requested information would provide unique or non-cumulative information not already addressed through other fact discovery, the Court finds this factor weighs against modification of the fact discovery deadline.
c. Prejudice and availability of any continuance to cure prejudice
TravelPass asserts it would be prejudiced if fact discovery is re-opened at this late stage “for the potential production of thousands of documents.” Cause No. 5:18cv153, Docket Entry # 448 at p. 2. According to TravelPass, “allowing additional discovery could jeopardize the case schedule.” Id. TravelPass points out this case was originally scheduled for trial in October 2020 and has already been continued twice from its original setting.[27] Because the parties have “shifted into expert discovery and dispositive motions,” id. at p. 7, TravelPass argues re-opening fact discovery “while the parties are preparing expert rebuttal reports, taking expert depositions, and preparing for dispositive motion practice could lead to further unnecessary derivations from the schedule.” Id. at p. 2.
*18 The Court recently denied TravelPass's request for one additional fact witness deposition under similar circumstances, finding no good cause to permit the discovery, and the same reasoning applies here. See Cause No. 5:18cv153, Docket Entry # 440 (finding that “Marriott would be prejudiced if fact discovery is re-opened at this late stage for an additional deposition”).
d. Conclusion
The Court, having considered the four factors, does not find good cause to allow a deviation from the Court's Sixth Amended Docket Control Order. Specifically, Moving Defendants have not established good cause to reopen non-expert discovery months after that deadline expired. Accordingly, the Court will deny Moving Defendants' motion to compel.
In light of the foregoing, the Court will grant TravelPass's motion for protective order under Rule 26(c) on the basis that the discovery sought pursuant to the Subpoena is untimely.
D. Sanctions
Moving Defendants further request the Court order sanctions and the payment of Moving Defendants' attorneys' fees. According to BHI, although Moving Defendants only cite to Local Rule 37(c), sanctions under Rule 45 are not warranted either. Cause No. 5:21mc1, Docket Entry # 24 at p. 8, n. 4.
Under Rule 45(g) the Court “may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” For the reasons stated herein, BHI has provided an “adequate excuse.” Furthermore, “[a]lthough the Rule's plain text authorizes a court to hold a party in contempt simply for failing to comply with a subpoena, ‘courts in the Second Circuit have often held that ... a court should first issue an order compelling compliance with the subpoena.’ ” In re Dunne, 3:17-CV-1399 (MPS), 2018 WL 4654698, at *6 (D. Conn. Sept. 27, 2018) (citations omitted).
The Court declines to award sanctions. Based on the foregoing, it is
ORDERED that Plaintiffs' Motion for Protective Order (Cause No. 5:18cv153, Docket Entry # 448) is GRANTED. It is further
ORDERED that Marriott International, Inc., Choice Hotels International, Inc., and Six Continents Hotels, Inc.'s Motion to Compel Booking Holdings, Inc.'s Production of Documents (Cause No. 5:21mc1, Docket Entry # 1) is DENIED.
SIGNED this 4th day of May, 2021.
Footnotes
Moving Defendants' request for oral argument is denied.
All other Hotel Defendants (Caesars Entertainment Corporation, Hilton Domestic Operating Company, Inc., Hyatt Corporation, Red Roof Inns, Inc., and Wyndham Hotel Group, LLC) have been dismissed from the Underlying Litigation.
BHI's principal place of business is in Connecticut.
Federal Rule of Civil Procedure 45(f) provides “[wh]en the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.” The Notes of the Advisory Committee to the 2013 amendments further provide that “[i]n some circumstances, however, transfer may be warranted in order to avoid disrupting the issuing courts management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts.”
The term “Hotel Defendants” as used in the motion to compel and herein refers to all of the defendants, regardless of whether they have been dismissed.
Following receipt of the Subpoena and service of BHI's timely objections, Red Roof's counsel was advised that BHI, as a non-operating holding company, would not have any responsive documents but that, as a courtesy, Priceline, a BHI subsidiary, was willing to respond to the Subpoena as if it were served on Priceline. In an effort of cooperation, Priceline did not require a standalone subpoena to be served on Priceline. Priceline confirmed this in an email to Red Roof's counsel on May 18, 2020.
To limit the issues before this Court, Priceline is treating Moving Defendants' current motion to compel as if it is addressed against it. However, BHI reserves all its objections asserted in response to the Subpoena and, as a non-operating holding company, states it does not have any control over the documents at issue in the Moving Defendants' motion to compel.
According to TravelPass, Hotel Defendants further stated they only needed a “modest extension” of the fact discovery deadline to “facilitate completing the collection of documents and depositions of these important non-parties.” Cause No. 5:18cv153, Docket Entry # 365 at p. 6. Unlike prior versions of the Docket Control Order, Defendants' “[Proposed] Sixth Amended Docket Control Order” expressly stated that the fact discovery deadline included “non-party discovery.” Cause No. 5:18cv153, Docket Entry # 365-1 at p. 5.
Asserting it is undisputed that the Moving Defendants never informed BHI that Red Roof had been dismissed from the Underlying Litigation, BHI states it agreed, on November 2, 2020, to make productions to comply with the Subp oena. Cause No. 5:21mc1, Docket Entry # 1-8 at p. 6. BHI asserts it did not, however, agree to respond to an unenforceable subpoena.
TravelPass states it was not copied on any of this correspondence and was not invited to participate in any of these negotiations, all of which occurred without TravelPass's knowledge.
According to TravelPass, the parties in the Underlying Litigation were in regular communication towards the end of December 2020 to ensure that the fact discovery deadline was met. The parties agreed to handle several specific matters beyond the fact discovery period, if necessary, including production of certain Plaintiff financial documents, Defendants' corporate representative depositions, and non-party Expedia's deposition. TravelPass states Hotel Defendants never mentioned they were still pursuing document production from BHI, that they expected to receive a batch of documents from BHI, or even that compliance with the BHI subpoena remained an open issue; nor did Hotel Defendants ask Plaintiffs for consent to litigate that issue after the discovery deadline, as they did for certain other specific issues.
TravelPass states Defendants did not even serve TravelPass with that motion to compel. TravelPass further states it discovered that motion only after counsel for BHI informed counsel for TravelPass that the motion had been filed.
In the Eastern District of Texas, Local Rule CV-26 also provides guidance in considering whether information is relevant for discovery. The rule provides information is relevant if:
(1) it includes information that would not support the disclosing parties' contentions;
(2) it includes those persons who, if their potential testimony were known, might reasonably be expected to be deposed or called as a witness by any of the parties;
(3) it is information that is likely to have an influence on or affect the outcome of a claim or defense;
(4) it is information that deserves to be considered in the preparation, evaluation or trial of a claim or defense; and
(5) it is information that reasonable and competent counsel would consider reasonably necessary to prepare, evaluate, or try a claim or defense.
Matter of AET, Inc., Ltd., Civil Action No. 1:10-CV-51, 2018 WL 4201264, at *2 (E.D. Tex. June 8, 2018) (quoting E.D. Tex. Civ. R. CV-26(d)). Relevance “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Id. (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947))).
The 2015 amendments to Rule26 deleted “from the definition of relevance information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ because ‘[t]he phrase has been used by some, incorrectly, to define the scope of discovery’ and ‘has continued to create problems’ given its ability to ‘swallow any other limitation on the scope of discovery.’ ” Robroy Indus.-Tex., L.L.C. v. Thomas & Betts Corp., Civil Action No. 2:15-CV-512-WCB, 2017 WL 319064, at *4 (E.D. Tex. Jan. 23, 2017) (quoting FED. R. CIV. P. 26, 2015 comm. note).
Mr. Ludwig further represents as follows:
Before any subpoena was served, the responsible Hotel Defendant solicited feedback from the other Hotel Defendants, often received comments, and the subpoena was served on behalf of all the Hotel Defendants. Apart from non-party discovery, discovery in this case has generally been collaborative wherever possible. For example, the Hotel Defendants have negotiated collectively with the Plaintiff TravelPass regarding certain of TravelPass's requested discovery, including over search terms for TravelPass's document productions; rather than engaging in wasteful, duplicative individual negotiations.
Ludwig Decl., ¶ 3.
In a case from within the Fifth Circuit that distinguishes Heartland, the court noted the situation in Heartland was not the same as that of the case before the court, “in which it was clear that the discovery propounded by Moss Motors was not also propounded on behalf of [Mercedes-Benz] even though MB now seeks to compel the plaintiffs to respond.” Dugas v. Mercedes-Benz USA, L.L.C., Civil Action No. 6:12-CV-02885, 2014 WL 458083, at *1 (W.D. La. Feb. 3, 2014) (further stating “only the party that propounded the discovery may seek to compel a response” and finding “MB fail[ed] to explain how it ha[d] standing to seek to compel response to discovery propounded by another party, especially now that the propounding party ha[d] been dismissed from the suit”).
Moving Defendants persuasively argue BHI's counsel's current contention that he believed the Subpoena was served only by Red Roof is belied by the record, noting BHI's counsel expressly stated the understanding that producing documents would satisfy Booking and Priceline's “subpoena April 26, 2021 obligations to Defendants.” Cause No. 5:21mc1, Docket Entry # 1 at pp. 9-10 (quoting Ludwig Decl. ¶ 9, Ex. 6) (emphasis added by Moving Defendants).
The court in Heartland only referenced the argument advanced by BHI here, noting that the defendants did not respond to that argument in a reply. Heartland, 2007 WL 1112525, at *2.
And, as noted above, BHI argues that unlike the “non-parties” in Heartland who were involved in (if not integral to) the Heartland litigation, here Priceline is not a party to the Underlying Litigation and outside of the present motion to compel has no involvement with the Underlying Litigation. Cause No. 5:21mc1, Docket Entry # 24 at p. 6.
Federal Rule of Civil Procedure 45(d)(1) directs that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on aperson subject to the subpoena.” If the party or attorney serving the subpoena fails to do so, the court “must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees[.]” Hall CA-NV, L.L.C. v. Ladera Dev., L.L.C., Civil Action No. 3:18CV00124-RCJ-WGC, 2019 WL 5448458, at *14 (D. Nev. Oct. 24, 2019), aff'd, No. 3:18CV00124-RCJ-WGC, 2020 WL 1033560 (D. Nev. Mar. 2, 2020) (citing FED. R. CIV. P. 45(d)(1)).
The Court notes that there is no indication in the Heartland case that the discovery deadline had already passed. Heartland, 2007 WL 1112525, at *4 (noting the burden and expense of requiring the subpoena process to be started over again was not “justified this late in the discovery process”).
The Court sees no need to address TravelPass's standing to raise objections to the Subpoena against non-party BHI via a motion for protective order. While standing to challenge the Subpoena would generally be the Court's first inquiry, the parties do not take issue with TravelPass's standing. See Dean v. Akal Sec., Inc., Civil Action No. 1:18-MC-00033, 2019 WL 1549017, at *2 n. 6 (W.D. La. Apr. 8, 2019). Moreover, the Subpoena directed to BHI arguably concerns TravelPass's interests because the discovery requests seek documents related to TravelPass.
The Days Inn court considered the various factors courts consider in determining whether a motion to compel filed after the discovery deadline is untimely: “(1) the length of time since the expiration of the deadline, (2) the length of time that the moving party has known about the discovery, (3) whether the discovery deadline has been extended, (4) the explanation for the tardiness or delay, (5) whether dispositive motions have been scheduled or filed,” (6) the age of the case, (7) any prejudice to the party from whom late discovery was sought, and (8) disruption of the court's schedule. Alexam, Inc. v. J.C. Penney Co., Civil Action No. 2:13CV5, 2013 WL 12138891, at *4 (E.D. Tex. Sept. 25, 2013) (citing Days Inn, 237 F.R.D. at 398). After considering the factors, the court “found no basis for permitting [the] untimely motion.”Id. (citing Days Inn, 237 F.R.D. at 398-99).
The Days Inn factors resemble those the Court considers when determining whether good cause has been shown for modifying a scheduling order deadline. Id.
The Court disagrees with Moving Defendants' argument that, prior to the discovery deadline, “any motion would have been precautionary and potentially a complete waste.” See Cause No. 5:18cv153, Docket Entry # 451 at pg. 5.
As pointed out by BHI, its objections to the Subpoena were not included as an exhibit in support of the Moving Defendants' motion to compel. Cause No. 5:21mc1, Docket Entry # 24 at p. 4, n. 1. According to BHI, “[w]hile not directly material to the pending motion to compel, it raises the question of whether the Moving Defendants even have a copy, as they were only provided to Red Roof's counsel. This only further highlights the attenuated relationship that the Moving Defendants have to the Red Roof Subpoena.” Id.
Under Federal Rule of Civil Procedure 45(d), “[e]ither in lieu of or in addition to serving objections on the party seeking discovery, a person can ‘timely’ file a motion to quash or modify the subpoena” under Federal Rule of Civil Procedure 45(d)(3)(A). Traut v. Quantum Servicing, L.L.C., Civil Action No. 3:18-MC-14-D-BN, 2018 WL 1035134, at *6 (N.D. Tex. Feb. 23, 2018) (quoting In re Ex Parte Application of Grupo Mexico SAB de CV for an Order to Obtain Discovery for Use in a Foreign Proceeding, Civil Action No. 3:14-mc-73-G, 2015 WL 12916415, at *3 (N.D. Tex. Mar. 10, 2015), aff'd sub nom. Grupo Mexico SAB de CV v. SAS Asset Recovery, Ltd., 821 F.3d 573 (5th Cir. 2016); accord Monitronics Int'l, Inc. v. iControl Networks, Inc., Civil Action No. 3:13-mc-134-L-BN, 2013 WL 6120540, at *1 (N.D. Tex. Nov. 21, 2013) (“Rule 45 does not define a ‘timely motion’ but does provide that, if the subpoenaed party chooses to serve objections instead of moving to quash, ‘[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.’ FED. R. CIV. P. 45(c)(2)(B).”); cf. Andra Grp., LP v. JDA Software Grp., Inc., 312 F.R.D. 444, 451 (N.D. Tex. 2015)). Thus, “[i]n the majority of cases, a person—whether a traditional party (i.e., a plaintiff or defendant) or a non-party—waives objections if he/she/it fails either to serve timely objections on the party seeking discovery or to file a timely motion with the court.” Id. (quoting Grupo Mexico, 2015 WL 12916415, at *3).
BHI failed to produce documents as agreed by November 23, 2020. According to Mr. Ludwig, on November 23, Mr. Clarke-Fisher e-mailed Mr. Ludwig to indicate that BHI's document review was ongoing and that BHI would make a production in a few weeks, likely the week of December 14. Ludwig Decl., ¶ 10. That date, too, passed with no production.
On November 9, 2020, the Court extended the fact discovery deadline to December 30, 2020. Cause No. 5:18cv153, Docket Entry # 380.
This case is pending before District Judge Schroeder with a final pretrial conference set for October 5, 2021. Cause No. 5:18cv153, Docket Entry # 382.