*1 Judge Clark Waddoups referred this case to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Defendants LeeWay Global Logistics, LLC and LeeWay Global Logistics, Inc. (collectively “LeeWay”) have motioned the court for a protective order limiting the scope of sixteen document subpoenas (“Customer Subpoenas”) noticed by Plaintiff XPO Logistics, Inc. (“XPO”).[2] Having reviewed the parties’ briefs and the relevant law, the court renders the following Order.[3]

XPO's lawsuit alleges that several former XPO employees breached their employment agreements with XPO.[4] On June 10, 2016, Judge Waddoups stayed discovery in this case until the court could issue a written ruling on various motions to dismiss filed by Defendants.[5] However, on September 7, 2016, Judge Waddoups permitted the parties to engage in third party discovery.[6]

Subsequently, on December 16, 2016, XPO served LeeWay with a Notice of Intent to Issue Subpoenas on sixteen “actual or potential logistics customers.”[7] While the pleadings are unclear, it appears that the Customer Smaruti ubpoenas seek information from XPO's current or former customers. Each of the Customer Subpoenas request information regarding the customer's dealings with LeeWay, Casey McKell, Aaron Peterson, Adam Sudweeks, Richard Wade, Josh Rosevear, Whit Lee, Joshua Morin, Vern Coggle, Casey Aisnworth, and Track & Doc., LLC.[8]

LeeWay's motion requests a protective order limiting the scope of the Customer Subpoenas to exclude requests regarding Joshua Morin, Vern Coggle, and Track & Doc., LLC.[9] LeeWay claims that “[n]either Joshua Morin, Vern Coggle, nor Track & Doc, LLC are mentioned in the operative and proposed pleadings.”[10] Furthermore, LeeWay argues XPO improperly relies on an email from Josh Morin to Casey McKell (“Morin Email”) to attest to the relevance of the information requested.[11] Based on irregularities in the Morin Email, LeeWay claims that this email was forged by XPO and cannot be used as a basis to seek discovery from third parties.[12]

LeeWay's allegations of forgery aside, XPO counters that the Morin Email provides support for XPO to seek the information in the Customer Subpoenas. Specifically, XPO argues that the Morin Email suggests:

XPO claims that the information requested in the Customer Subpoenas directly relate to XPO's allegation that Defendants have “indirectly solicited XPO's customers through a variety of intermediaries.”[14] Furthermore, XPO points out that in the past XPO issued, with no objection from LeeWay, third party subpoenas requesting communications between the subpoenaed party and Joshua Morin, Vern Coggle, and Track & Doc., LLC.[15]

On December 20, 2016, LeeWay filed the instant motion seeking a protective order. Prior to the court ruling on LeeWay's motion, XPO served the Customer Subpoenas.[16] XPO represents that it has “contacted all subpoena respondents save one who had already responded (but with no responsive documents relating to the three requests at issue) and informed them that they need not comply with those requests until the instant Motion has been resolved.”[17]

Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties 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 ....” Relevant information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). “[T]he scope of discovery under the federal rules is broad” and “discovery is not limited to issues raised by the pleadings, for discovery ... is designed to help define and clarify the issues.” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). However, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” by “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters ....” Fed. R. Civ. P. 26(c)(1); see also DUCivR 26-2.

For the reasons that follow, LeeWay's motion for a protective order is denied. LeeWay has put the cart before the horse, so to speak. At its core, the authenticity of the Morin Email is an issue of admissibility, not discoverability. In other words, LeeWay's concern that the Morin Email is forged is a fight for another day. Presumably, LeeWay will have a future opportunity to convince the court that the Morin Email is a forgery and, therefore, inadmissible. See Fed R. Evid. 403. Furthermore, if the Morin Email proves to be a forgery, LeeWay may have grounds to seek sanctions against XPO. However, at this stage, it would be inappropriate for the court to place protective order on XPO's discovery requests. XPO has provided a factual basis that the information sought in the Customer Subpoenas is germane to XPO's claims. Furthermore, LeeWay has failed to convince the court that disclosure of the information sought in the Customer Subpoenas would result in embarrassment, oppression, or undue burden or expense. Therefore, the court denies LeeWay's request for a protective order.

*3 As to the issue of XPO serving the subpoenas prior to the court's ruling, the court wishes to remind XPO's counsel of their professional obligations. In this court members of the bar are expected to treat each other with professionalism and civility. XPO is correct that there is no technical rule preventing it from issuing the third party subpoenas without waiting for the court's resolution. However, professional courtesy would dictate giving LeeWay the benefit of the court's ruling before issuing the subpoenas. Moreover, waiting to issue the subpoenas would also have benefited the third parties who are being unwillingly dragged into litigation where there is a possibility the subpoenas will not be enforced as broadly as XPO would hope.

Additionally, the court reminds counsel of their duty to aid the court in ensuring the “just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Rushing to issue contested subpoenas for no other purpose than there is no rule prohibiting it is antithetical to ensuring the speedy and inexpensive determination of this discovery dispute.

Based on the foregoing, LeeWay's motion for a protective order is DENIED.[18] This Order does not preclude any subpoena recipient from challenging the merits of XPO's Customer Subpoenas.

IT IS SO ORDERED.

DATED this 2nd Day of February, 2017.

Dkt. No. 11.

Dkt. No. 108.

Pursuant to DUCivR 7-1(f), the court elects to determine the present motion on the basis of the written memorandum and finds that oral argument would not be helpful or necessary.

See Dkt. No. 2.

Dkt. No. 75. In addition to LeeWay, there are two individual defendants in this case: Aaron Peterson and Adam Sudweeks. Dkt. No. 2. XPO's proposed amended complaint seeks to add Transfac Capital, Inc.; S. Whitfield Lee; Josh Rosevear; Richard Wade; and Casey McKell as defendants. Dkt. No. 78-1.

Dkt. No. 92 at 2.

Dkt. No 108 at 3; id. at Ex. 1.

Id. at Ex. 2 at 4.

Dkt. No. 108 at 2

Id. at 4. XPO's motion to amend its complaint is pending before the court. Dkt. No. 78.

Dkt. No. 111 at 12.

Id. at 3–10.

Dkt. No. 110 at 3.

Dkt. No. 116-1 at 4.

Dkt. No. 110 at Exs. 4, 5. The parties agree that XPO did not comply with the notice requirements of Rule 45 when issuing these subpoenas. Dkt. No. 116-1 at 6, n.7. Nevertheless, LeeWay did not object to these subpoenas once LeeWay discovered the subpoenas were served.

Id. at 7.

Id.

Dkt. No. 108.