This case concerns a vehicular injury to Plaintiff that allegedly occurred on Defendant's premises as the result of the negligent operation of a company vehicle by an employee of Defendant, Corey Lee Ellerd. See Pl.'s Compl. Plaintiff allegedly suffered, amongst other injuries, a traumatic brain injury after being ejected from the bed of a single cab pickup operated by Ellerd, allegedly with the permission of Defendant. Id. at 3. Plaintiff brought suit, alleging various theories of negligence as well as gross negligence. Id. at 4-5.

Federal Rule of Civil Procedure 45(d)(3) governs the issuance of subpoenas to obtain discovery from non-parties. The party issuing the subpoena “must take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). A court must, on a timely motion, quash or modify a subpoena if it requires disclosure of privileged or other protected matters, or otherwise subjects the subpoenaed person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). Additionally, subpoenas under Rule 45 to a third party “are discovery devices which, although governed in the first instance by Rule 45, are also subject to the parameters established by Rule 26.” In re Application of Time, Inc., 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999) (citations omitted).

For a party to have standing to quash a subpoena under Rule 45(d), the movant must “be in possession or control of the requested material; be the person to whom the subpoena is issued; or have a personal right or privilege in the subject matter of the subpoena.” Black v. DMNO, LLC, 2018 WL 488991, at *2 (E.D. La. Jan. 18, 2018) (citing Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)). Generally, a party attempting to quash a subpoena issued to a non-party does not have standing “unless the objecting party claims some personal right or privilege with regard to the documents sought.” Wright & Miller, 9A Fed. Prac. & Proc. Civ. § 2459 (3d ed.).

A party challenging a subpoena issued to a non-party may not object on the grounds that it “violates another person's privacy rights..., that the subpoena is overly broad, or that the subpoena seeks information that is irrelevant because only the responding third party can object and seek to quash a Rule 45 subpoena on those grounds.” River House Partners, LLC v. Grandbridge Real Est. Cap. LLC, No. CV 15-58-BAJ-RLB, 2016 WL 3747613, at *3 (M.D. La. July 11, 2016) (citing Frazier v. RadioShack Corp., No. CIV.A. 10-855-BAJ-CN, 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012)). A party does have standing to move for a protective order pursuant to Rule 26(c)(1) to challenge the scope of a subpoena even if the party does not have standing to move to quash the subpoena pursuant to Rule 45(d). Id. (citations omitted).

*2 Under Rule 26(c), the Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including...designating the persons who may be present while the discovery is conducted.” Fed. R. Civ. P. 26(c)(1)(E). “[T]he burden is upon [the party seeking the protective order] to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, 134 F.3d 302, 306 (5th Cir. 1998) (internal quotation marks and citation omitted).

A protective order is warranted in those instances in which the party seeking it demonstrates good cause and a specific need for protection. See Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th Cir. 1990). The Court has broad discretion in determining whether to grant a motion for a protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). “The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

A. Defendant lacks standing to quash any of the DWQs and accompanying subpoenas under Rule 45(d).

Defendant seeks to quash DWQs and their associated subpoenas that seek information on Defendant's employee, Corey Lee Ellerd. Two of the subpoenas at issue seek medical information on Ellerd. See generally Def.'s Mot. to Quash BSW DWQ; see also Def.'s Mot. to Quash Temple Fire DWQ. One subpoena seeks information regarding an investigation into an assault allegedly committed by Ellerd. See Def.'s Mot to Quash Temple PD DWQ. Defendant adamantly maintains it has standing to quash all three of the subject DWQs to non-party entities. See, e.g., Def.'s Mot. to Quash BSW DWQ at 3-4. Defendant is mistaken. Defendant lacks the requisite standing to challenge any of the subject DWQs and subpoenas under Rule 45.

Defendant's arguments to the contrary border on bad faith. Defendant notes that, “[a] party, although not in possession or control of the materials sought in a subpoena and not the person to whom the subpoena is directed, has standing to file a motion to quash or modify a subpoena issued to a non-party if he has a personal right or privilege in the subject matter of the subpoena or a sufficient interest in it.” Def.'s Mot. to Quash BSW DWQ at 3; see also Def.'s Mot. to Quash Temple Fire DWQ at 3-4; Def.'s Mot to Quash Temple PD DWQ at 4. Defendant articulates its interest as follows: “[Defendant] has standing in that the information and documentation sought by Plaintiff jeopardizes its interest in that the information is wholly irrelevant and far more prejudicial than probative.” See, e.g., Def.'s Mot. to Quash BSW DWQ at 4.

The Court will not belabor the point: the mere ipse dixit of Defendant does not create a personal interest in the information and documentation sought in any of the three DWQs and subpoenas. As noted, a party challenging a subpoena issued to a non-party may not object on the grounds that it “violates another person's privacy rights..., that the subpoena is overly broad, or that the subpoena seeks information that is irrelevant because only the responding third party can object and seek to quash a Rule 45 subpoena on those grounds.” River House Partners, LLC, 2016 WL 3747613, at *3 (citing Frazier v. RadioShack Corp., 2012 WL 832285, at *1 (M.D. La. Mar. 12, 2012)). Defendant's Motions make precisely these types of impermissible objections.

*3 None of the information sought in any of the subpoenas is “confidential or protected information sensitive to” Defendant; instead, the sole link Defendant has to the information sought is that the subject matter relates to one of Defendant's employees. See KeyBank Nat. Ass'n v. Perkins Rowe Assocs., L.L.C., No. CIV.A. 09-497-JJB-SR, 2011 WL 338470, at *2 (M.D. La. Jan. 31, 2011). There is no articulable interest between an employer and an employee's medical records or an employee's criminal history sufficient to confer Rule 45 standing.

As such, Defendant's arguments based on HIPAA and/or the physician-patient privilege are also misplaced. See Def.'s Mot. to Quash BSW DWQ at 2; see also Def.'s Mot. to Quash Temple Fire DWQ at 2. Defendant's arguments are based on third party privacy concerns and Defendant lacks standing to assert any alleged privilege belonging to its employee. See, e.g., Peccia v. Dep't of Corr. & Rehab., No. 2:18-CV-03049 JAM AC, 2020 WL 2556751, at *2 (E.D. Cal. May 20, 2020) (denying motion to quash based on third party HIPAA concerns). Therefore, all three Motions are DENIED to the extent they seek to quash the DWQs and subpoenas under Rule 45.

B. Defendant fails to establish good cause under Rule 26(c) with respect to the subpoenas directed at BSW and Temple Fire; Defendant does establish good cause with respect to the subpoena directed at Temple PD.

Defendant cites Rule 26(c) in all three motions and requests that a protective order issue with respect to all three DWQs and accompanying subpoenas. See Def.'s Mot. to Quash BSW DWQ at 7; Def.'s Mot. to Quash Temple Fire DWQ at 9; Def.'s Mot to Quash Temple PD DWQ at 9. As previously noted, Defendant does have standing under Rule 26(c) to challenge the scope of the subpoenas at issue. Defendant, then, must show the necessity of any protective order's issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements. In re Terra Int'l, 134 F.3d at 306.

Defendant fails to carry this burden with respect to the Motions directed at BSW and Temple Fire. Outside of the arguments previously addressed, the remaining challenges are based in relevance or the requests being overly burdensome. See, e.g., Def.'s Mot. to Quash BSW DWQ at 2; Def.'s Mot. to Quash Temple Fire DWQ at 2; Def.'s Mot to Quash Temple PD DWQ at 2. Parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).

The Court finds that the information sought in the subpoenas directed at BSW and Temple Fire passes the low bar for relevance and is proportional to the needs of the case. These subpoenas seek information regarding an alleged drunk driving accident that Ellerd was involved in two months prior to the incident involving Plaintiff; these subpoenas seek a single day's worth of information from the two organizations. See Pl's Resp. to Def.'s Mot. to Quash BSW DWQ at 2, 11-12; Pl.'s Resp. to Def.'s Mot. to Quash Temple Fire DWQ at 2, 12-13. Given Plaintiff's claims of negligence and gross negligence, the information sought is relevant and narrowly tailored. Accordingly, these two Motions are DENIED in their entirety.

The subpoena directed at Temple PD seeks information regarding an alleged assault carried out by Ellerd against his wife in October 2019, months after the June 2019 incident involving Plaintiff. See Pl.'s Resp. to Def.'s Mot to Quash Temple PD DWQ at 3. Plaintiff avers it seeks this information in connection with his gross negligence claim to establish a pattern of behavior with respect to Defendant's continued retention of Ellerd as an employee. Id. at 9. As Defendant points out, however, Plaintiff already possesses the information that Ellerd was arrested for the assault in question. Def.'s Reply to Def.'s Mot to Quash Temple PD DWQ at 4. Given the tenuous tie, at best, to the incident in question, the Court finds that Plaintiff possesses the only relevant information to the case at bar regarding the assault. Accordingly, the Court ORDERS Def.'s Mot to Quash Temple PD DWQ GRANTED IN PART under Rule 26(c) because the only relevant information sought is already in possession of Plaintiff and FURTHER ORDERS a protective order barring the DWQ and subpoena directed at Temple PD.

C. The parties must confer on an appropriate protective order.

*4 As discussed, this case may involve sensitive medical data. Therefore, on its own Motion, the Court ORDERS the parties to confer on an appropriate proposed Confidentiality and Protective Order and file the joint proposed Order on or before May 3, 2021. The Court directs the parties to the Court's standard Confidentiality and Protective Order as a place to begin their discussions.[1]

D. Defendant is admonished to file no further discovery motions without complying with the Court's Docket Control Order.

On March 31, 2020, the Court issued a Docket Control Order. See ECF No. 7. The Docket Control Order provides that, prior to the filing of any discovery motion, the parties schedule with the Court a telephonic conference. Id. at 3. Defendant has ignored this requirement with all three of the Motions at issue. The parties are admonished that further failure to follow the Court's Order will result in summary denial of any additional non-compliant motions.

For the foregoing reasons, IT IS ORDERED that:

SIGNED this 21st day of April, 2021.

Available at https://www.txwd.uscourts.gov/wp-content/uploads/Forms/Civil/Western%20District%20of%20Texas%20Prote...