*1 THIS MATTER is before the court on Plaintiff's Motion to Quash Subpoenas [128]. On September 30, 2020, Defendant filed two Notices of Intent to Serve Subpoenas [126] and [127]. In the first Notice [126], Defendant served a request on Ellisville State School to produce documentation regarding Plaintiff's wages from January 1, 2019 to the present. On the same day, Defendant noticed Plaintiff of intent to serve a subpoena on Mayor Johnny Magee for documentation regarding compensation of Plaintiff during the same time frame. On October 1, 2020, Plaintiff filed the instant Motion to Quash Subpoenas [128]. Defendant filed its response [132] on October 15, 2020. On October 20, 2020 Plaintiff filed his Reply [133].

Plaintiff argues that discovery in the case ended on May 1, 2020, and therefore subpoenas, a form of discovery, should not be permitted to be issued nearly five months after the close of discovery. Defendant argues that Plaintiff's Motion [128] should be denied because he lacks standing to pursue a motion to quash subpoenas served on a third party and failed to comply with the good faith conferral requirements of the discovery rules.

The court must first address Plaintiff's standing to oppose a subpoena issued to a nonparty. The Fifth Circuit has held that a non-party does not have standing to oppose a subpoena since the party is “not in possession of the materials subpoenaed and [has] not alleged any personal right or privilege with respect to the materials subpoenaed.” Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979). In addition, Rule 26(c) of the Fed. R. Civ. P. provides that “A party or any person whom discovery is sought may move for a protective order....” If the party or person establishes good cause, the court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....” A “motion for a protective order in this circumstance does not seek to vindicate a non-party's right to resist the compulsory processes of the court.” Wilson v. Scruggs, No. Civ. A. 3:02-cv-525-LN, 2003 WL 23521358 (S.D. Miss. Apr. 10, 2003). Instead, Plaintiff's motion seeks to compel the Defendants to adhere to the discovery deadline previously imposed by the court in the Amended Case Management Order [25]. Plaintiff plainly has standing to enforce a violation of the case management order.

Defendant argues that Plaintiff's Motion should also be denied because he failed to comply with the court's good faith conferral requirement under the discovery rules. There is no Certificate of Good Faith attached to the Motion, as is required by both Fed.R.Civ.P. 26(c) and L.U.Civ.R. 37(a). Rule 26(c) requires a party moving for a protective order to “include a certification that the movant has in good faith conferred or attempted to confer with other affected parties not making the disclosure in an effort to resolve the dispute without court action....” Rule 37(a) also requires counsel to confer in good faith prior to the filing of a discovery motion and goes on to state, “A Good Faith Certificate must be filed with all discovery motions.” Thus, the moving party's filing of a Good Faith Certificate, in proper form, is a prerequisite to the court's consideration of a motion for a protective order.

*2 Under certain circumstances discovery motions may be denied on the basis of this omission. Here, however, while the motion is discovery related, it primarily addresses the court-imposed case management order. And, it should be noted Defendant did not request a conference or leave of court before it engaged in further discovery beyond the deadline. The court will consider the Motion on its merits.

A subpoena for the production of records from third parties is a discovery device. See Williams v. Weems Community Mental Health Center, No. Civ. A. 4:04-CV-179-LR, 2006 WL 905955 (Apr. 7, 2006). Moreover,“[m]otions regarding subpoenas will be considered discovery motions and are governed by the procedural requirements that govern discovery motions.” L.U. Civ. R. 45(e). Local Rule 26(b)(2) provides that “Counsel must initiate discovery requests and notice or subpoena depositions sufficiently in advance of the discovery deadline date to comply with this rule, and discovery requests that seek responses or schedule depositions that would otherwise be answerable after the discovery deadline date are not enforceable except by order of the court for good cause shown.”

As discovery ended on May 1, 2020, any additional discovery requests beyond that date are not permitted by the Amended Case Management Order [25]. The subpoenas were issued by Defendant on September 30, 2020 and directed a response by October 20, 2020. Notices [126] [127]. Defendant has not established good cause, or even attempted to establish good cause, to serve or enforce the subpoenas outside the deadlines set in the case management order. Defendant has also failed to explain why the subpoenas were not issued during the discovery period.

As the subpoenas were issued and are returnable far after the discovery deadline, and Defendant has not sought or been granted an extension, the Plaintiff's Motion to Quash Subpoenas [128] should be granted.

IT IS, THEREFORE, ORDERED that:

SO ORDERED this the 22nd day of October, 2020.