McComas v. Wells Mkt.
McComas v. Wells Mkt.
2020 WL 12698021 (E.D. Ky. 2020)
November 30, 2020

Smith, Candace J.,  United States Magistrate Judge

Exclusion of Evidence
Possession Custody Control
Third Party Subpoena
Attorney Work-Product
Bad Faith
Attorney-Client Privilege
Failure to Produce
Proportionality
Sanctions
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Summary
The court found that plaintiff Cathy McComas had violated Federal Rules of Civil Procedure 45 and 26 by failing to give notice before serving subpoenas and seeking discovery before the parties met for a Rule 26(f) conference. As a result, the court ordered the exclusion and destruction of the ESI obtained in violation of the rules. The court also denied McComas's motion to compel Efunds to comply with a subpoena and granted Stop N Shop #3's motion to quash a traditional bank subpoena.
CATHY MCCOMAS PLAINTIFF
v.
WELLS MARKET, et al. DEFENDANTS
CIVIL ACTION NO. 16-217-WOB-CJS
United States District Court, E.D. Kentucky
Filed November 30, 2020

Counsel

Ted L. Wills, Pro Hac Vice, Cincinnati, OH, for Plaintiff.
Jack S. Gatlin, Gatlin Voelker, PLLC, Ft. Mitchell, KY, for Defendant Wells Market.
Christopher A. Melton, Daniel P. Reed, Wyatt, Tarrant & Combs, LLP, Louisville, KY, for Defendant Stop N Shop # 3, LLC.
Smith, Candace J., United States Magistrate Judge

MEMORANDUM ORDER

*1 This matter is before the Court on several pending motions: 1) Defendant Stop N Shop #3's Motion in Limine to Exclude Bank Records and Motion for Sanctions (R. 91); 2) Plaintiff Cathy McComas's Motion to Compel Discovery (R. 98); 3) Plaintiff's Motion for Order Directing Efunds to Comply with Subpoena (R. 115); 4) Plaintiff's Motion for Court to Order Mr. Rompf to Produce Documents (R. 121); 5) Movant Stop N Shop, LLC's Motion to Quash Subpoena (R. 129); and 6) Non-Party Traditional Bank, Inc's Motion to Quash Subpoena (R. 131). The Court has reviewed and considered each motion and will address them in order.
 
I. FACTS AND PROCEDURAL HISTORY
Cathy McComas's initial Complaint alleged violations of the False Claims Act as well as federal and state wage laws against only two defendants: Wells Market and Balbinder Singh Randhawa. (R. 1 at Page ID 1). That Complaint also listed five dbas for Wells Market: New Wells Market, Wells Market LLC, Wells Open Air Food Market, Wells Carry Out, and Stop N Shop #3. (Id.). McComas returned an executed summons to the Court for both defendants. (R. 17).
 
Before either defendant made an appearance in the case, McComas served a subpoena on non-parties Heritage Bank, U.S. Bank, and Fifth Third Bank, requesting information on the defendants as well as the five dbas listed for Wells Market, among others. (R. 20). In response, the Court held a Status Conference with counsel for McComas (R. 22), in which counsel represented to the Court that service had been achieved and reaffirmed that Wells Market operated under the dbas listed in the Complaint. (See R. 22; 11/29/17 Telephonic Status Conference audio recording at 12:00). The Court ordered that if counsel desired to issue any additional subpoenas before a scheduling order had been issued, he needed to file a motion with the Court. (R. 22).
 
McComas then filed with the Court another executed summons on Wells Market, (R. 29), including its five dbas, and requested an entry of default (R. 30), which was entered by the Clerk. (R. 32). Following the entry of default, Stop N Shop #3 moved the Court to set aside the judgment for failing to achieve proper service. (R. 33). The Court granted the motion. (R. 37).
 
In response, McComas filed an Amended Complaint which alleged that Stop N Shop #3 owned Wells Market and was the alter ego of the various corporations which have operated the Wells Market gas station. (R. 38). Stop N Shop #3 moved to dismiss (R. 43) and, after an oral argument before the presiding District Judge, the motion to dismiss was denied and the parties were given a nine-month period for discovery. (R. 50).
 
During this discovery period,[1] McComas issued several subpoenas and served upon Stop N Shop #3 a set of interrogatories and requests for documents. In them, McComas requested information concerning not just Stop N Shop #3, but also the following entities: Wells Market; Wells Market, LLC; Balbinder Singh Randhawa; New Wells Market, LLC; Gill Petroleum, LLC; Jeevan Singh; Falmouth BP, LLC; APS1, LLC; Parminder Singh; Stop N Shop, LLC; Wells Open Air Food Market; Wells Carry Out; Falmouth Foodmart; and Falmouth Foodmart, LLC. (See R. 68, 69, 70, 71, 73, 74, 75, 76, 77, 120). The motions that are currently pending before the Court concern these discovery requests, as well as the subpoenas McComas issued prior to Stop N Shop #3's appearance in this case.
 
II. ANALYSIS
A. Motion in Limine and Motion for Sanctions
*2 Stop N Shop #3 moves the Court to exclude evidence Plaintiff's counsel, Ted Wills, obtained in his subpoenas to Heritage Bank, U.S. Bank, and Traditional Bank. (R. 91 at Page ID 977). It argues that Mr. Wills violated Federal Rules of Civil Procedure 45 and 26 by failing to give them notice before serving the subpoenas and by seeking discovery before the parties met for a Rule 26(f) conference. (Id. at Page ID 977-982). Mr. Wills argues that he complied with the federal rules and that, even if he did not, excluding the evidence is not the appropriate sanction. (R. 96 at Page ID 1108, 1116). Initially, it needs to be determined if Mr. Wills violated the federal rules and then, if he did, what sanctions, if any, are appropriate.
 
“A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f) ... or by court order” Fed. R. Civ. P. 26(d)(1). Further, if “[a] subpoena commands the production of documents ... then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.” Fed. R. Civ. P. 45(a)(1)(4). Courts in this circuit have found non-compliance with Rule 45 when parties either violate the letter or spirit of the Rule's notice requirement. See Auto. Inspection Servs., Inc. v. Flint Auto Auction, Inc., No. 06-15100, 2007 WL 3333016, at *3-7 (E.D. Mich. Nov. 9, 2007) (sanctioning a party when plaintiff sent subpoenas without notice to defendant and copied the materials); Mann v. Univ. of Cincinnati, Nos. 95-3195, 95-3292, 1997 WL 280188 (6th Cir. May 27, 1997) (Table) (upholding monetary sanctions when defendants violated the spirit of Rule 45 by requesting and viewing subpoenaed information early despite otherwise complying with the notice requirement).
 
An attorney's power to issue subpoenas as officers of the court comes with “increased responsibility ... for the misuse of [that] power.” Fed. R. Civ. P. 45 advisory committee's note to 1991 amendment. The Rule's notice requirement was implemented to “afford other parties an opportunity to object to the production or inspection.” Id. Courts have called this ability to object prior to disclosure “the greatest safeguard under [Rule 45].” Auto. Inspection Services, 2007 WL 333016, at *4 (quoting Spencer v. Steinman, 179 F.R.D. 484, 489 (E.D. Pa. 1998)).
 
Mr. Wills filed his notice of the subpoenas on September 19, 2017, (R. 20), well before the Court ordered discovery on Stop N Shop #3 in January of 2019. (R. 5). By sending his subpoenas out before the Court's order, he violated the letter of Rule 26(d). Counsel's argument that subpoenas are not governed by the language of Rule 26(d) is misleading and contradicted by the majority of courts in this circuit. See Katebian v. Missaghi, No. 18-13379, 2019 WL 1422618, at *1 (E.D. Mich. Jan. 10, 2019); Malibu Media, LLC v. Doe, No. 17-10432, 2018 WL 2177964, at *2 (E.D. Mich. May 18, 2017); Martin v. Knox Cnty., Tenn., No. 3:06-CV-278, 2006 WL 2770983 (E.D. Tenn. Sept. 25, 2006).[2]
 
*3 Further, Mr. Wills sent out these subpoenas requesting information on Stop N Shop #3 without notifying Stop N Shop #3. This circumvented the notice requirement of Rule 45, depriving Stop N Shop #3 of the “greatest safeguard” against the subpoena power, which is the ability to object prior to disclosure. Counsel's argument that he did not violate Rule 45 because he provided notice to the only two parties in the case at the time fails for two reasons. The first is that it is in violation of the spirit of Rule 45. Mann, 1997 WL 280188, at *5.[3] The second is because it appears that he failed to provide even those parties in the case at the time with the requisite notice. Wells Market is a non-legal entity[4] and it is unclear how a non-entity could be provided notice. And Balbinder Singh Randhawa has, at the time of this Order, still failed to make an appearance, with validity of the original service subject to question.[5]
 
In sum, the Court concludes both Civil Rule 26 and Civil Rule 45 were violated. Therefore, the Court considers whether sanctions are warranted.
 
Courts are vested with “[c]ertain implied powers.... by their very creation.... to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers v. Nasco, Inc., 501 U.S. 32, 43 (1991). The Sixth Circuit requires either a specific finding of bad faith or conduct that was tantamount to bad faith for the use of a court's inherent powers. First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 519 (6th Cir. 2002) (“In this Circuit, ‘bad faith’ is a requirement for the use of the district court's inherent authority, but this Circuit has also upheld the use of such sanctions for conduct that ‘was tantamount to bad faith,’ and ‘even in the absence of a specific finding of bad faith.’ ”) (internal citations omitted). Contours of bad faith vary depending on the different factual scenarios of a case.[6] However, the Sixth Circuit has stated that it must be more than a “mistake.” Mann, 1997 WL 280188, at *5.
 
Counsel's actions here amount to more than a mistake; they represent a reckless approach to litigation that was tantamount to bad faith. This action was initiated against Stop N Shop #3 as a dba of a non-legal entity. Information was acquired on Stop N Shop #3 without notifying it of subpoenas or that Plaintiff was investigating a case against it. The Complaint was then modified in order to aim the qui tam action against it, effectively substituting Stop N Shop #3 in the place of prior defendant Wells Market, who, as it has later come to light, lacks legal standing to be sued. This “gamesmanship view of discovery ... is appropriately addressed under the Court's inherent authority to address bad faith conduct.” In re Nat'l Century Fin. Enterprises, Inc. Fin. Inv. Litig., No. 2:03-md-1565, 2009 WL 10687963, at *6 (S.D. Ohio Sept. 1, 2009).
 
*4 This bad faith is further evidenced by counsel's “unrepentant attitude towards opposing counsel, third-parties, and the Court....” Auto. Inspection Servs., Inc., 2007 WL 3333016, at *3. Counsel's arguments and demeanor in the oral argument before the Court demonstrated a lack of appreciation of his actions in the difficulties arising from this case. He blames Stop N Shop #3 for his violation of Rule 45,[7] excused his own violations of the federal rules by stating that he “did the best he could to provide notice” and had “good cause” for expedited discovery,[8] and made before the Court a variety of confusing arguments that amount to post-hoc rationalizations for his violation of the federal rules. Counsel violated Rule 26, violated, at a minimum, the spirit of Rule 45, and these actions were tantamount to bad faith. Therefore, sanctions will be imposed. See Mann, 1997 WL 280188.
 
With sanctions deemed appropriate, the next question is, what form should the sanctions take? Stop N Shop #3 argues that the exclusion of the ill-gotten evidence is the appropriate sanction. Mr. Wills argues that fines would be appropriate.
 
The primary aspect of the Court's inherent power to sanction is “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.”[9] Chambers, 501 U.S. at 44-45 (internal citations omitted); see also Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 589 (6th Cir. 2014) (“Our caselaw gives district courts wide latitude to fashion appropriate remedies for discovery violations.”). While the Sixth Circuit has prescribed no black-letter standard for determining what sanctions are appropriate, “courts generally consider the proportionality of the sanction in relation to the violation, whether the opposing side suffered prejudice, and necessity for deterrence.” See Hutchison v. Parent, No. 3:12-cv-320, 2015 WL 1782011, at *1 (N.D. Ohio, April 19, 2015) (quoting Coleman-Hill v. Governor Mifflin Sch. Dist., 271 F.R.D. 549, 552 (E.D. Pa. 2010); see also Auto. Inspection Servs., Inc., 2007 WL 3333016, at *7 (fining plaintiff because the defendant only suffered financial harm). “The exclusion of evidence is usually considered an extraordinary sanction ‘absent a showing of willful deception or flagrant disregard of a court order.” Hutchison, 2015 WL 1782011, at *1 (quoting Coleman-Hill, 271 F.R.D. at 553).
 
The factors as stated in Hutchison will be used as a framework. That counsel's actions demonstrate bad faith was considered above. These actions resulted in willful deception to the Court and favors the sanction of excluding the information obtained by those actions. Therefore, the Court moves on to the remaining two factors: prejudice and deterrence.
 
Fines cannot cure the prejudice to Stop N Shop #3. Stop N Shop #3 was unaware that Mr. Wills had brought a case against it. It was unaware that Mr. Wills was using the power of the Court to gather evidence against it. Being compensated for finances does not remedy the prejudice to a party who has the disadvantage of being brought over a year late into a case in which it is now apparently a key defendant. This factor favors excluding the discovery obtained.
 
*5 Further, a strong need for deterrence exists. Counsel's request to impose only a fine is telling. He found the information he gathered through the subpoenas useful, stating that they show “the intermingling of funds between Stop N Shop #3, Stop N Shop, and the various lessees.” (See R. 106, minute entry; 12/17/19 Oral Argument, audio record at 1:24:30). He would rather pay a fine than part with the information gathered by his violations of the Civil Rules. This indicates that a fine will not be enough to deter counsel from similar gamesmanship. Attorneys should not be encouraged through lack of appropriate sanctions to turn discovery into a transaction, weighing the benefit of information received against the monetary fines that may be imposed. Because of the above, the Court concludes the appropriate sanction is the exclusion and destruction of the evidence. See Mann v. Univ. of Cincinnati, 152 F.R.D. 119, 126-27 (S.D. Ohio 1993) (affirming magistrate's order for the return of documents obtained in violation of Rule 45 to the custodian and preventing their use in the case); Mirra v. Jordan, No. 13 Civ. 5519(AT), 2014 WL 2511020, at *3-6 (S.D.N.Y. May 28, 2014) (ordering defendant not to review information obtained in violation of Rule 45's notice requirement when obtained prior to the granting of the motion to quash).
 
B. Motion to Compel
McComas moves the Court to compel Stop N Shop #3 to adequately respond to discovery requests she feels were insufficiently responded to. (R. 98). McComas, when propounding discovery requests, asks for information that would otherwise be in the possession or knowledge of entities other than Stop N Shop #3. (See R. 98-2 at Page ID 1183-1224). She believes that Stop N Shop #3 is using the corporate form to shirk its discovery obligations and to refuse to respond to discovery. (See R. 98; R. 102). Stop N Shop #3 objects generally on the basis that the requests are overbroad, vague, and confusing in nature. (See R. 98-2 at Page ID 1180-1181). It asserts that it has responded to McComas's requests with all relevant information in its possession. (R. 99 at Page ID 1345).
 
The parties have a fundamental disagreement about what entities Stop N Shop #3 can be compelled to answer on behalf of and the scope the requests can take. Therefore, to aid in the ultimate resolution of the Motion to Compel, the Court will first determine what corporations Stop N Shop #3 can produce information on behalf of and the scope of that discovery.
 
There are two categories of corporations that McComas argues that Stop N Shop #3 can be compelled to produce discovery for. The first category are those businesses, and their owners, which leased premises where the underlying allegations occurred: 109 Second Street, Falmouth, Ky, 41040. This would be New Wells Market, LLC and owner Balbinder Singh; Gill Petroleum, LLC and owner Jeevan Singh; and Falmouth, BP, owner Parminder Singh, and APS1, which is a separate corporation which Parminder Singh owns. (See R. 102 at Page ID 1394-1399). The second category are businesses which Stop N Shop #3 has operated. This includes Wells Market; Wells Market, LLC; Wells Open Air Food Market; Wells Carry Out; Falmouth Foodmart; Falmouth Foodmart, Inc., along with Stop N Shop #3's parent corporation, Stop N Shop, LLC. (Id. at Page ID 1389-1394).
 
Only parties “to whom [interrogatories] are directed” must answer them. Fed. R. Civ. P. 33(b)(1)(A). Further, a party need only produce items that it has in its “actual possession, custody, or control, or has the legal right to obtain the documents on demand.”[10] “The party seeking documents bears the burden of establishing control.” In re Porsche Cars N. Am., Inc., No. 2:11-md-2233, 2012 WL 4361430, at *4 (S.D. Ohio Sept. 25, 2012). “When a party argues that one company has the legal right to demand documents from another company, courts closely analyze the relationship between the two companies.” Id. Adequate evidence that “one company operates another as its alter ego” supports a finding of control, but “[s]peculation that one company has legal control over the documents of another simply because they are related corporate entities is insufficient to establish control and compel discovery.” Id. “Factors relevant to a finding of alter ego status for discovery purposes includes ‘whether the enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision and ownership.’ ” See Nat'l Labor Relations Bd. v. Allcoast Transfer, Inc., 780 F.2d 576, 579 (6th Cir. 1986). The Court requires pervasive intermingling of funds and control over the day-to-day operations to support a finding of alter-ego. See Trs. of Resilient Floor Decorators Ins. Fund v. A & M Installations, Inc., 395 F.3d 244, 249 (6th Cir. 2005).
 
*6 McComas often mischaracterizes and speculates upon the significance of evidence. She argues that Stop N Shop #3's lease to the lessees “controlled the hours that the location would be open, where it would buy gas, the price of gas, and from whom Balbinder and Jeevan Singh would buy inventory.” (R. 98 at Page ID 1160). This argument exaggerates the impact the lease had on the operation of the premises, which obligates the new lessor to purchase the inventory in the store from the prior lessor, to purchase gas from Bishop Oil for “two cents per gallon over rack price,” and to stay open sixteen hours a day. (R.98-2 at Page ID 1226, 1230, 1234). This control merely establishes parameters in which to do business and does not rise to the level of pervasive control required for a finding of alter ego.
 
McComas's most compelling pieces of evidence are inadequate to support a finding of control for purposes of discovery production. For instance, McComas presents a check sent from Gill Petroleum and Jeevan Singh to Balbinder Singh for $4000 on the basis of “rent.” (R. 98-4 at Page ID 1286). Even if this evidence could raise questions concerning the business relationships between New Wells Market, LLC and Gill Petroleum, it does not indicate that Stop N Shop #3 has the legal right to obtain documents from either company. McComas's speculation otherwise does not carry her burden of establishing control for the purposes of discovery.
 
Further, McComas argues that New Wells Market, LLC was undercapitalized and survived on an influx of funds from Stop N Shop (R. 98 at Page ID 1164), citing four checks ranging from $650 to $1800 sent to New Wells Market, LLC over the course of four months. (R. 98-5 at Page ID 1302-1305). This scant evidence does not carry the argument that New Wells Market, LLC was undercapitalized nor that it relied upon the funds from these checks to stay afloat. It also does not demonstrate the type of pervasive intermingling of funds necessary to support a finding of alter ego. See Iron Workers' Local No. 25 Pension and Ben. Funds v. Steel Enter., Inc.¸ No. 07-CV-10882-DT, 2009 WL 3645633, at *6 (E.D. Mich. Oct. 30, 2009) (funds sent to a company to pay payroll, fringes, and expenses is “evidence of ‘pervasive intermingling of funds and operations necessary to find that the companies are alter egos.”) (citing Resilient Floor, 395 F.3d at 249).
 
McComas argues that there is evidence of structural interlocking, and therefore Stop N Shop #3 can produce documents on behalf of the tenants. She uses two cases to demonstrate structural interlocking, General Environmental Science Corporation v. Horsfall, 136 F.R.D. 130 (N.D. Ohio 1991), and Cooper Industries, Inc. v. British Aerospace, Inc., 102 F.R.D. 918 (S.D.N.Y. 1984). However, both are distinguishable. In General Environmental, the Court found documents of one company to be in the control of another when that company answered letters on behalf of the first company, shared a manager, and when it owned most of the equity in the second company. Gen. Envtl., 136 F.R.D. at 133-34. In Cooper Industries, the Court found that an airplane corporation had custody and control over service manuals and blueprints because defendant worked with the documents “every day” and was wholly owned by the British affiliate who manufactured the planes that defendant sold and serviced. Cooper Industries, 102 F.R.D. at 919-20. Such a pervasive intermingling of the companies has not been shown here with regard to Stop N Shop #3. As noted above, McComas's speculation does not evidence similar control, and there is no compelling evidence in the record suggesting that Stop N Shop #3 could obtain the documents from the companies who leased the 109 Second Street premises on demand.
 
Further, for similar reasons as above, Stop N Shop #3 will not be compelled to produce discovery that would otherwise be in the possession of Wells Market or Wells Market, LLC. This is because Wells Market is the name of the store in question, and it was operated as the dba of the various corporations listed above. Similarly, Wells Market, LLC is not an entity that appears in this case and seems to be an attempt by McComas to cast as wide a net as possible.
 
*7 Now that it has been determined that Stop N Shop #3 cannot be compelled to produce documents on behalf of the lessees of the 109 Second Street premises, it must be determined whether Stop N Shop #3 can be compelled to produce documents on behalf of the remaining entities. There is only one rule necessary to decide this issue, and that is that parties who file a motion to compel “bear the burden to prove the relevancy of the information sought.” Burton v. Zwicker & Assocs., PSC, No. 10-227-WOB-JGW, 2012 WL 12925675, at *1 (E.D. Ky. Jan. 9, 2012).
 
McComas asserts that Stop N Shop #3 ran the 109 Second Street location as Wells Open Air Food Market and Wells Carry Out and therefore argues that they have the control necessary to produce the documents. (R. 98 at Page ID 1160; R. 102 at Page ID 1393-94). Stop N Shop #3 asserts that it ran the 109 Second Street location for a brief period in 2009.[11] (R. 99 at Page ID 1347-49). This falls outside the 2013-2019 timeframe requested in the interrogatories and document requests. (See R. 98-2 at Page ID 1183-1224). McComas's argument that there is evidence that the 109 Second Street location was operating under the names Wells Open Air Food Market and Wells Carry Out in 2016 does not take into account that Wells Open Air Food Market and Wells Carry Out are not incorporated entities, but dbas. It has no more significance that multiple corporations used the dbas Wells Open Air Food Market and Wells Carry Out than it does that multiple corporations operated under the dba Wells Market. Because McComas has not shown that Stop N Shop #3's operation of Wells Open Air Food Market and Wells Carry Out occurred within the requested timeframe, Stop N Shop #3 cannot be compelled to produce documents on behalf of these entities.
 
McComas also argues that Stop N Shop should be compelled to produce discovery on behalf of Falmouth Foodmart. (R. 98 at Page ID 1165; R. 102 at Page ID 1390-92). McComas's argument relies on inferences and speculation. She asserts that the Kentucky Secretary of State's website shows that the location of Falmouth Foodmart, Inc. is located at 109 Second Street and that Falmouth Foodmart made daily distributions to Stop N Shop during the period that Balbinder Singh and New Wells Market, LLC operated Wells Market, and therefore Stop N Shop has control over Falmouth Foodmart and should be compelled to produce documents on its behalf. (R. 102 at Page ID 1390-92). This argument runs into many problems. First, there is no indication that Falmouth Foodmart operated as Wells Market during the relevant time period. Second, there is no indication that even if it had, distributions to Stop N Shop would amount to control. And third, Stop N Shop #3 asserts that Stop N Shop, LLC runs a Falmouth Foodmart, LLC at a different location. (R. 99 at Page ID 1348). McComas therefore has not carried her burden of establishing the relevancy of the information sought, because she has not shown that the Falmouth Foodmart location in Stop N Shop's control is relevant to the 109 Second Street premises where the incidents in this suit occurred.
 
That leaves only Stop N Shop #3's parent corporation, Stop N Shop, LLC. McComas argues that Stop N Shop #3 should not be able to withhold documents based on the distinction between parent and subsidiary. (R. 98 at Page ID 1173). Both corporations are owned by Pinki Singh and engage in leasing businesses to other corporations. Stop N Shop, LLC established Stop N Shop #3 with the specific purpose of managing the premises at 109 Second Street. Tellingly, Stop N Shop #3 has asserted that it has provided McComas with all responsive documents that Stop N Shop, LLC has in its control. (R. 99 at Page ID 1347). Accordingly, with regards to the discovery requests, Stop N Shop #3 will be considered to have the legal right to obtain the documents otherwise in the possession of Stop N Shop, LLC and has voluntarily provided them regardless of whether it has a legal obligation to do so.
 
*8 Now that it has been determined that Stop N Shop #3 can only be compelled to produce documents on behalf of itself and Stop N Shop, LLC, the Court moves on to address the proper scope of discovery. Many of the requests propounded ask for financial documents and information of the corporations that would encompass the entirety of their business and appear to not be related to the alter ego claim alleged against Stop N Shop #3.
 
Discovery should be allowed into any non-privileged matter, proportional to the needs of the case and relevant to the parties' claims or defenses. Fed. R. Civ. P. 26. Courts have explained that the “scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998)). Courts have cautioned, however, that “[d]iscovery requests are not limitless, and parties must be prohibited from taking ‘fishing expeditions’ in hopes of developing meritorious claims.” Bentley v. Paul B. Hall Reg'l Med. Ctr., No. 7:15-CV-97-ART-EBA, 2016 WL 7976040, at *1 (E.D. Ky. Apr. 14, 2016). “[T]he [C]ourt retains the final discretion to determine whether a discovery request is broad or oppressive.” Id. (citing Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)). Further, a Court “must limit the frequency or extent of discovery otherwise allowed ... if ... the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
 
As explained in the prior section, what would be relevant to an alter ego claim is evidence that defendants have “substantially identical management, business purposes, operation, equipment, customers, supervision and ownership.” See Nat'l Labor Relations Bd., 780 F.2d at 579. While there is “no hard and fast rule governing discovery in cases involving alter ego theory of liability,” Pain Center of SE Indiana, LLC v. Origin Healthcare Solutions LLC, No. 1:13-cv-133-RLY-DKL, 2014 U.S. Dist. LEXIS 31772, at *9 (S.D. Ind. March 12, 2014), courts have limited discovery that seeks all financial records of a corporation or when the discovery seeks information concerning locations outside the area where the alleged wrong occurred. See Fla. Carpenters Reg'l Council Training Trust Fund v. The Colsanti Group, Inc., No. 07-13501, 2008 WL 418267, at *2 (E.D. Mich. 2008) (limiting the scope of discovery when plaintiff sought all employment records of all places a defendant does business to the state of incorporation where the alleged infraction occurred); Tacori Enterprises v. Nerces Fine Jewelry, Inc., No. CV 12-02753-DSF, 2014 WL 12575818, at *3 (C.D. Cali. Apr. 9, 2014) (limiting financial documents and information concerning financial documents and business dealings despite “some possible relevance to the information.”).
 
Many of the discovery requests in question exceed the scope of discovery permitted by the alter-ego doctrine. Interrogatory 5 asks for all administrative actions, civil complaints, litigations, settlements, judgments, criminal charges, pleas, or convictions that the defendants have been a part of. (R. 98-2 at Page ID 1186). Interrogatory 10 asks for each person who has been contracted or employed to do bookkeeping, record keeping, and financial services, amongst others. (R. 98-2 at Page ID 1191-92). Document Request 5 asks for all documents concerning purchases, loans, receipts, close out slips, calculations, EBT transactions, and income amongst others, which, for Stop N Shop #3, would amount to allowing McComas to sort through the entirety of its financial documents and record keeping and far exceeds the scope of the alter ego claim. (R. 98-2 at Page ID 1196-97). Therefore, and pursuant to the obligations placed upon it by the Federal Rules to limit discovery when it exceeds the scope as defined in 26(b)(1), the Court finds that the relevant scope of discovery in this case is that related to the business of 109 Second Street starting with the occurrence of the claims as stated in the Complaint and the organizational relationships between Stop N Shop #3 and the corporations it is alleged to be the alter ego of.
 
*9 With the disputes over alter-ego and scope determined, the Court moves on to the individual discovery requests. These requests take on four categories: 1) requests that fall outside the scope of discovery, 2) requests that Stop N Shop #3 has answered, 3) requests that Stop N Shop #3 will be compelled to produce, and 4) other miscellaneous requests.
 
The first category is the largest. Most of the discovery requests fall outside the scope of discovery as explained above by requesting information unrelated to the alter ego theory against Stop N Shop #3 or by requesting documents or information other defendants should respond to. This includes Interrogatories 5, 9, 10, and Document Requests 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14. (See R. 98-2 at Page ID 1183-1224). The Motion to Compel concerning these discovery requests is denied.
 
The second category contains Interrogatories 7 and 11 and Document Requests 2, 3, and 4. Interrogatory 7 asks for the actions taken to provide electronically stored information in response to the discovery requests, and Stop N Shop #3 answered that it looked through its electronic files manually without search terms to find them. (R. 98-2 at Page ID 1188). Interrogatory 11 asks for the names of representatives of other named defendants that Stop N Shop #3 contacted in responding to the discovery requests and Stop N Shop #3 answered that it did not contact any. (R. 98-2 at Page ID 1193). Document Request 2 asks for a copy of insurance policies that apply to the lawsuit in any way and Stop N Shop #3 states that it does not maintain liability insurance. (R. 98-2 at Page ID 1195). Document Requests 3 and 4 ask for communications and documents involving Cathy McComas and Stop N Shop #3 answered that it did not possess any. (R. 98-2 at Page ID 1195-96). Because Stop N Shop #3 asserts it has answered these questions, and counsel has not pointed to any compelling evidence showing that this statement is false, the Motion to Compel will be denied.
 
The third category contains Interrogatories 2 and 12 and Document Requests 1 and 15. Interrogatory 2 requests the name, address, and telephone number of individuals likely to have discoverable information (R. 98-2 at Page ID 1195), and Document Requests 1 and 15 request all documents that Stop N Shop #3 would use to support its defense. (R. 98-2 at Page ID 1194, 1222-23). Both encompass initial disclosures required by the Federal Rules of Civil Procedure, so to the extent that Stop N Shop #3 has not met its obligations to supplement its initial disclosures pursuant to the Civil Rules, it is compelled to do so. Interrogatory 8 requests the persons involved, date, location, equipment, and results achieved of searching for electronically stored information. (R. 98-2 at Page ID 1188-89). Stop N Shop #3 objects to this information as duplicative with Interrogatory 7 and vague and ambiguous. (R. 98-2 at Page ID 1189). Discovery of discovery is appropriate under the Civil Rules, and therefore to the extent that Stop N Shop #3 did not provide the information requested, it will be compelled. See Ruiz-Bueno v. Scott, No. 2:12-cv-0809, 2013 WL 6055402, at *1 (S.D. Ohio Nov. 15, 2013). Interrogatory 12 requests a privilege log for documents withheld based on privilege. (R. 98-2 at Page ID 1193). McComas asserts that Stop N Shop #3 has not provided it. (R. 98 at Page ID 1174-75). Therefore, Interrogatory 12 shall be compelled regarding documents that Stop N Shop #3 withholds based on privilege.
 
*10 The remaining discovery requests are Interrogatories 3, 4, and 6. Interrogatories 3 and 4 ask for the name of each person Stop N Shop #3 intends to call as a witness and for any document or exhibit it intends “to use for any purpose, including impeachment or rebuttal, at any hearing, deposition, or trial of this matter.” (R. 98-2 at Page ID 1185). Stop N Shop #3 objects because such lists are premature. (Id.). To the extent not otherwise covered by initial disclosure of persons having information, this Court generally orders disclosure of witness and exhibit lists at the final pretrial conference, and therefore the interrogatories are premature and the motion to compel will be denied. Interrogatory 6 uses identical language to Interrogatory 4 and therefore the motion to compel will be denied as duplicative.
 
C. Motion for Order Directing Efunds to Comply with Subpoena
McComas moves the Court to compel Efunds to comply with a subpoena requesting documents relating to the EBT transactions of the corporations discussed in the previous sections. (R. 115). No response has been filed. While a party may move for an order compelling discovery sought by a subpoena, Fed. R. Civ. P. 37; Fed. R. Civ. P. 45(d)(2)(B)(i), the serving party still needs to meet its independent burden under the discovery rules. The court “must limit the frequency or extent of discovery” if the proposed discovery is outside the scope as proposed by Rule 26(b)(1). Fed R. Civ. P. 26(b)(2)(C)(i-iii); see also Callidus Capital Corp. v. FCA Group, No. 14-10484, 2018 WL 1556231, at *3 (E.D. Mich. Mar. 30, 2018).
 
Two problems exist with McComas's subpoena: 1) as analyzed in subsection A, she has not provided notice to the majority of people for whom the subpoena seeks information; and 2) the subpoena is outside the scope of discovery by asking for information beyond the 109 Second Street location as analyzed in Section B. (See R. 69). Therefore, McComas has not shown that the motion to compel should be granted because it falls outside the scope of the discovery rules and because it seeks for the Court to compel production sought by a subpoena despite McComas failing to provide notice to the parties. McComas's Motion to Compel Efunds (R. 115) will be denied.
 
D. Motion for Court to Order Mr. Rompf to Produce Documents
McComas moves the Court to compel Attorney John Rompf to comply with a subpoena. (R. 121). The subpoena, after being narrowed in the Court's January 17, 2020 hearing conference, requests information and documents relating to the business activity occurring at the 109 Second Street location. (See R. 111). Attorney Rompf responded to the subpoena by stating that he only had documents relating to Gill Petroleum, LLC, Jeevan Singh, and Stop N Shop #3. (R. 121-1 at Page ID 1491). However, he provided no documents to McComas, claiming both attorney-client and work-product privilege. (Id. at Page ID 1491-93). In McComas's motion, there are seven categories of documents that she disputes are not protected by attorney-client privilege: (A) billing records; (B) communications between Jeevan Singh, Cory Johnson, and John Rompf; (C) communications with the USDA; (D) documents disclosed to a court; (E) documents disclosed to opposing attorneys; (F) documents related to 109 Second Street; and (G) communications with the Secretary of State. (R. 121). These will be examined in order.
 
“The elements of attorney-client privilege are as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.” Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998).[12] The work-product doctrine is codified by the federal rules and states that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative[.]” Fed. R. Civ. P. 26(b)(3). A party asserting either privilege bears the burden of showing that it applies. See United States ex rel. Scott v. Humana, Inc., No. 3:18-CV-61-GNS-CHL, 2019 WL 7403966, at *2 (W.D. Ky. Sept. 18, 2019); see also United States v. Dakota, 188 F.3d 663, 667 (6th Cir. 1999) (“The burden of establishing the existence of [attorney-client] privilege rests with the person asserting it.”).
 
*11 Concerning category A, McComas moves the Court to compel the disclosure of two billing records. (R. 121-1 at Page ID 1496; R. 121-1 at Page ID 1497) (Exhibit A document 33, and Exhibit B document 21). Plaintiff argues that attorney-client privilege does not protect billing records from disclosure. Attorney Rompf asserts that the billing records contain descriptions of the specific services performed. (R. 134 at Page ID 1624). “While legal billing records are generally not privileged, such records may be covered by the privilege to the extent they reveal litigation strategy, a client's motive in seeking representation, or the specific, rather than the general, nature of the legal services the attorney rendered.” Avery Outdoors LLC v. Outdoors Acquisition Co., LLC, No. 16-cv-2229-SHL, 2016 WL 10519113, at *4 (W.D. Tenn. Nov. 30, 2016). Besides the assertion of the specific descriptions, Attorney Rompf makes no argument, and the privilege log does not establish why such records should be privileged. Therefore, “[i]t is impossible to determine from [Attorney Rompf's] conclusory descriptions ... whether the attorney invoices capture privileged or ... protected information.” Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-cv-1081, 2013 WL 607969, at *18 (S.D. Ohio Feb. 19, 2013.). Because of the above, the two billing records will be compelled, “redacting only information that reveals [Gill Petroleum, Jeevan Singh, or Stop N Shop #3's] motive in seeking representation, litigation strategy, the specific nature of services rendered and/or counsel's mental impressions.” Id.
 
Concerning category B, McComas moves the Court to compel the production of “communications” between Jeevan Singh, Cory Johnson, and Attorney Rompf. (R. 121 at Page ID 1482-83). However, despite the request for multiple communications, only one communication appears in the privilege log: an email sent from Cory Johnson, the operations manager of Stop N Shop #3, to Attorney Rompf on behalf of Jeevan Singh inquiring about possible representation. (R. 121 at Page ID 1495; R. 134 at Page ID 1625) (Exhibit A document 1). McComas argues that this communication is not privileged because it was disclosed to third-party Cory Johnson. (R. 121 at Page ID 1482-83). Attorney Rompf argues that this email concerned possible representation and is therefore covered by attorney-client privilege. (R. 134 at Page ID 1625).
 
“As a general rule, the ‘attorney client privilege is waived by voluntary disclosure of private communications by an individual or corporation to a third party.’ ” In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir. 2002) (quoting In re Grand Jury Proceedings October 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996)). Exceptions to this rule exist, such as communications between corporate counsel and lower level employees when certain elements are met and when confidential communications are made in the presence of certain agents of the attorney. See Broessel v. Triad Guar. Ins. Corp., 238 F.R.D. 215, 218-19 (W.D. Ky. 2006).
 
The communication sent to Attorney Rompf from Cory Johnson falls outside the scope of attorney-client privilege for two reasons. The first is that it is not a communication made “by the client.” Reed, 134 F.3d at 355. This email was sent on behalf of the client by Cory Johnson. The second is that, necessarily, this email was disclosed to a third party, because it was sent by a third party. Attorney Rompf has not established why attorney-client privilege would apply in such a circumstance and therefore fails to meet his burden as the asserter of the privilege and the email will be compelled. Dakota, 188 F.3d at 667. However, McComas's request for Attorney Rompf to “produce related communications from Corey Johnson and Jeevan Singh” will be denied as there is no indication that such documents exist. (R. 121 at Page ID 1483).
 
Concerning categories C, D, E, F, and G, McComas argues that the documents were disclosed to an adversary. In C, she moves the Court to compel nine communications between Attorney Rompf and the USDA (R. 121 at Page ID 1484; R. 121-1 at Page ID 1495-96) (Exhibit A documents 2, 12, 13, 14, 15, 19, 20, 28, 31); in D, she moves the Court to compel documents already disclosed to a court (R. 121 at Page ID 1485; R. 121-1 at Page ID 1497) (Exhibit B documents 4, 5, 6, 8, 14, 15, 20); in E, she moves the Court to compel documents disclosed to opposing counsel (R. 121 at Page ID 1486; R. 121-1 at Page ID 1497) (Exhibit B documents 7, 13, 17); in F, she moves to compel disclosure of a leasing agreement for a yogurt machine because it was disclosed to opposing counsel (R. 121 at Page ID 1486; R. 121-1 at Page ID 1497) (Exhibit B document 2); and in G, she moves the Court to compel communications with the Secretary of State. (R. 121 at Page ID 1487; R. 121-1 at Page ID 1497) (Exhibit B document 19). Attorney Rompf maintains that attorney-client privilege or work-product privilege applies to all documents listed.
 
*12 “Disclosure to an adversary waives the work product protection as to items actually disclosed, even where disclosure occurs in settlement.” In re Columbia, 293 F.3d at 306. The Sixth Circuit has held that disclosure to a government agency during an investigation waives the disclosure both to that government agency and to all other adversaries for both work product and attorney-client privilege. Id. (“The ability to prepare one's case in confidence, which is the chief reason ... for the work product protections, has little to do with talking to the Government.”).
 
The communications between Attorney Rompf and the USDA will not be covered by work-product or attorney client-privilege. They do not fall under attorney-client privilege because they do not fall inside any of the seven elements outlined in Reed that creates said privilege. See Reed, 134 F.3d at 355-56. Further, while the communications would otherwise fall inside the work-product privilege because they are documents prepared in anticipation of litigation, McComas has met her burden of showing that the adversarial waiver applies. Since the communications happened with an adversary, the work-product doctrine is waived, and therefore the documents in question will be compelled to be produced.
 
The documents that McComas alleges were disclosed to a Court will not be compelled because they are covered by work-product privilege. First, most of the documents listed by Attorney Rompf are not court filings, and instead, are materials compiled or drafted in anticipation of litigation and therefore will be protected by the work-product doctrine. While there is one court filing, document 14, the Court will follow the analysis set by a separate court in this district in concluding that filings and draft pleadings are protected by the work-product doctrine. See Woods v. Standard Fire Ins. Co., No. 5:18-CV-658-JMH-MAS, 2020 WL 2420527, at *5-6 (E.D. Ky. May 12, 2020). Therefore, the request to compel these documents will be denied. See (R. 121 at Page ID 1485; R. 121-1 at Page ID 1497) (Exhibit B documents 4, 5, 6, 8, 14, 15, 20).
 
The communications between Attorney Rompf to opposing counsel do not fall under work-product privilege because they are communications to an adversary. Attorney Rompf argues that the communications are irrelevant to the case, however, the communications concern business conducted at 109 Second Street. The Court previously found that business conducted at 109 Second Street is relevant to the case. (See R. 111 at Page ID 1423). Therefore, these documents will be compelled. See (R. 121 at Page ID 1486; R. 121-1 at Page ID 1497) (Exhibit B documents 7, 13, 17).
 
The documents related to 109 Second Street, specifically a lease related to the property, are covered by attorney-client privilege. Attorney Rompf asserts that it is a communication between him and Cory Johnson, involving legal advice. McComas has not shown that a waiver applies, and therefore, the document will not be compelled. See (R. 121 at Page ID 1486; R. 121-1 at Page ID 1497) (Exhibit B document 2).
 
Likewise, the communications with the Secretary of State will be protected by work-product privilege. McComas argues that disclosure to the Secretary of State counts as disclosure to an adversary. However, Attorney Rompf asserts that McComas mischaracterizes the documents in that they are not communications with the Secretary of State, but documents obtained from the Secretary of State's website. Attorney Rompf has shown that the documents would fall under work-product privilege because they are prepared in anticipation of litigation, and McComas has not shown that a waiver will apply. Therefore the motion to compel will be denied. See (R. 121 at Page ID 1487; R. 121-1 at Page ID 1497) (Exhibit B document 19).
 
E. Motions to Quash Traditional Bank Subpoena
*13 Stop N Shop, LLC and Traditional Bank move to quash a subpoena served on Traditional Bank. (R. 129; R. 131). Stop N Shop argues that the subpoena is over burdensome, outside the scope of discovery, and outside the 100-mile distance allotted by the Federal Rules. (R. 129 at Page ID 1597). Stop N Shop further requests that McComas be sanctioned for submitting a subpoena outside the scope of discovery. (Id. at Page ID 1603). Traditional Bank argues that the Fair Credit Reporting Act and the Gramm-Leach Bliley Act do not permit the disclosure of financial information without the account holder's consent. (R. 131 at Page ID 1615). McComas has responded, contesting all points. Stop N Shop's Motion (R. 129) will be considered first.
 
Rule 45 governs subpoenas issued to non-parties and permits the same scope and limitations as provided for under Federal Rule of Civil Procedure 26. See United States v. Blue Cross Blue Shield of Mich., No. 10-cv-14155, 2012 WL 4838987, at *2 (E.D. Mich. Oct. 11, 2012); United States v. Elsass, 2:10-cv-336, 2012 WL 1409624, at *3 (S.D. Ohio Apr. 23, 2012) (scope of subpoena under Rule 45 is the same as the scope of discovery under Rule 26). Federal Rule of Civil Procedure 45(d)(3)(A)(iv) requires a court to quash a subpoena which “subjects a person to undue burden.” Overbreadth and irrelevancy are included within the “undue burden” language of Rule 45, and “encompasses situations where the subpoena seeks information irrelevant to the case.” Singletary v. Sterling Transp. Co., Inc., 289 F.R.D. 237, 241 (E.D. Va. 2012) (internal quotations omitted).
 
The subpoena in question is overbroad and not tailored to a particular purpose. It requests checks, accounts, savings, deposits, withdrawals, transfers, statements, signature cards, and correspondence without limit to time frame or to location. It makes no attempt to limit its scope to the location at 109 Second Street or to the theory of alter-ego. Therefore, non-party Stop N Shop, LLC's Motion to Quash (R. 129) will be granted. Consequently, Traditional Bank's Motion to Quash (R. 131) will be denied as moot.
 
III. CONCLUSION
Accordingly, for the reasons stated above, IT IS ORDERED as follows:
 
1) Stop N Shop #3's Motion in Limine to Exclude Bank Records and Motion for Sanctions (R. 91) is granted and McComas shall destroy all documents obtained as a result of the subpoenas issued upon Heritage Bank, U.S. Bank, and Fifth Third Bank.
 
2) McComas's Motion to Compel (R. 98) is granted in part and denied in part. Stop N Shop #3 will be compelled to produce responses to Interrogatories 2 and 12 and Document Requests 1 and 15 to the extent previously discussed. All other requests to compel in McComas's Motion (R. 98) are hereby denied.
 
3) McComas's Motion for Order Directing Efunds to Comply with Subpoena (R. 115) is denied.
 
4) Motion for Court to Order Mr. Rompf to Produce Documents (R. 121) is denied.
 
5) Stop N Shop #3's Motion to Quash Traditional Bank Subpoena (R. 129) is granted.
 
6) Traditional Bank's Motion to Quash Subpoena (R. 131) is denied as moot.
 
Dated this 30th day of November, 2020.
 
Signed By:

Footnotes
Including an extension granted by the undersigned. (R. 106).
Mr. Wills cites three cases to support his argument that Rule 45 is not governed by Rule 26: Luxottica Retail v. Vision Servs. Plan, No. 1:14-cv-581, 2014 U.S. Dist. Lexis 128017 (S.D. Ohio, Sept. 12 2014); St. Petersburg v. Total Containment, No. 06-20953, 2008 U.S. Dist. Lexis 36735 (E.D. Pa. May 1, 2008); and O'Boyle v. Jensen, 150 F.R.D. 519, 520 (M.D. Pa. 1993). All three of these cases concern post-discovery subpoenas and do not concern Rule 26(d) which limits “discovery from any source.” Fed. R. Civ. P. 26(d)(1). Therefore, the cases do not provide support for counsel's proposition, much less the “explicit authority” he claims. (R. 96 at Page ID 1111).
At oral argument, Mr. Wills argued that Stop N Shop #3 did not have standing to challenge the subpoenas. However, a court has the power to sanction under its inherent powers even absent standing by the challenging party. Therefore, this issue will not be addressed. See Chambers v. Nasco, Inc., 501 U.S. 32, 42 n.8 (1991) (“The court generally may act sua sponte in imposing sanctions under the Rules.”); see also Mirra v. Jordan, No. 13 Civ. 5519, 2014 WL 2511020, *n.2 (S.D.N.Y. May 28, 2014) (“Courts may also order various sanctions, including quashing of non-noticed subpoenas, pursuant to their inherent powers. Thus, the Court need not address the parties' dispute regarding whether Plaintiff has standing to move to quash the subpoenas under Rule 45.”).
In 2020, the Court engaged in a lengthy discussion with all relevant parties in an attempt to clear the record. In the discussion, it came to light that Wells Market is a non-legal entity, and no attorneys present represented it. (See R. 111 minute entry for 1/17/20 Oral Argument, audio record at 15:00:00).
In order to achieve service on Wells Market and Balbinder Singh Randhawa, Mr. Wills had Plaintiff's husband go to the Wells Market gas station. He left the Complaint with the attendant after the attendant stated that they could accept mail on behalf of Wells Market. (See R. 22, minute entry; 11/29/17 Telephonic Status Conference, audio record at 10:45:00). It is difficult to envision how this satisfies the requirements of Rule 4(m).
Different tests for bad faith apply in the filing of a frivolous lawsuit, fraud on the court, and disobeying a court order. See Williamson v. Recovery Ltd. P'ship, 826 F.3d 297, 301-02 (6th Cir. 2016).
“[I]f Ms. McComas had been required to engage in a Rule 26 conference before issuing the subpoenas, Defendants would have been able to effectively block her from proceeding with a meritorious case. Defendants would have been able to do so by evading service, refusing to accept service, refusing to participate in litigation, transferring ownership of Wells Market, and erecting numerous corporate entities to escape liability.” (R. 96 at Page ID 1114).
(See R. 106, minute entry, 12/17/19 Oral Argument, audio record at 1:10:00).
Chambers lists various examples of the Court's inherent powers. These include the power of a court to vacate its own judgment if there has been fraud upon the court, to dismiss an action on the grounds of forum non conveniens, to act sua sponte to dismiss a suit for failure to prosecute, barring from the courtroom a criminal defendant who disrupts a trial, and the power to assess attorney's fees. Chambers, 501 U.S. at 43-45.
McComas argues that if a party has the “practical ability to obtain” documents, then that party is deemed to have control. (R. 98 at Page ID 1156). The Sixth Circuit has not adopted this broad definition of control.
McComas, in her reply, mischaracterizes Stop N Shop #3's argument by saying “Stop N Shop argues that it did not do business as Wells Open Air Food Market or Wells Carry Out.” (R. 102 at Page ID 1393).
Because Plaintiff's False Claims Act claim arises under federal law, this Court applies the federal law of privilege. Fed. R. Evid. 501; see also Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992) (“Since the instant case is a federal question case by virtue of the appellant's section 1983 claim, we hold that the existence of pendant state law claims does not relieve us of our obligation to apply the federal law of privilege.”).