The pro se Defendants, Paul Fletcher and Carole Wockner, object to the Magistrate Judge's Order on the Motion to Quash filed by non-parties Wayne R. and Graceia Golomb. For the reasons explained below, the court OVERRULES their Objection.

I. Background

In October 2012, Defendants entered into an agreement with Alerding Castor Hewitt LLP (“ACH”) to represent Fletcher in a forgery action against Mark Zupan. (Filing No. 14, Counterclaim ¶ 76). In 2016, the court conducted a bench trial and, after six hours of testimony, entered a directed verdict for Zupan.[1] (Id. ¶ 126). Following the trial, ACH sent Defendants a bill for over $114,000, which represented the fees charged to prepare for and try the case. (Id. ¶ 127). Defendants refused to pay ACH for those services.

On August 4, 2016, ACH filed the present action against Defendants in the Indiana Commercial Court located in Marion County, Indiana, Cause No. 49D01-1608-cc-28572, for breach of contract and unjust enrichment. On September 14, 2016, Defendants removed the action to this court. One month later, Defendants filed a counterclaim, alleging breach of contract, legal malpractice, and breach of fiduciary duty.

II. The Subpoena

On April 25, 2017, Defendants issued a subpoena to the Golombs seeking:

(Filing No. 61-2, Subpoena Rider) (emphasis in original). Fidelity notified the Golombs of the Subpoena. The Golombs then filed the instant Motion to Quash.

III. The Order

On December 5, 2017, the Magistrate Judge entered the Order on Motion to Quash granting the Golombs a protective order.[2] In support of the Subpoena, Defendants had argued that but for ACH's failure to obtain the Golombs’ financial records, Defendants would have prevailed in the Zupan lawsuit. The Magistrate Judge rejected this argument. (Filing No. 87, Order at 5). He noted that when ACH began its representation of Defendants in the Zupan lawsuit, discovery was already closed and a summary judgment deadline was approaching. ACH attempted to reopen discovery by appealing the trial court's refusal to reopen discovery in the case. ACH appealed, but the Indiana Court of Appeals affirmed the trial court's decision to close discovery. Fletcher v. Nat'l Fin. Servs., 4 N.E.3d 1225 (Table), No. 45A03-1306-PL-211, 2014 WL 458298, at *7-8 (Ind. Ct. App. Feb. 4, 2014). Thus, the discovery deadline remained closed and no additional discovery could have been served prior to Fletcher's trial against Zupan.

The Magistrate Judge also rejected Defendants’ argument that ACH should have pursued the subpoenaed documents in the separate legal malpractice action pending in the Northern District of Indiana. (Order at 6). In their Opposition to the Motion to Quash, Defendants asserted that they told ACH to pursue such discovery by collaborating with Fletcher's legal malpractice counsel and that ACH allegedly agreed to do so. The Magistrate Judge found:

(Id. at 6).

Finally, the Magistrate Judge found that the Golombs were entitled to reasonable expenses and fees related to Defendants’ Subpoena pursuant to Rule 37(a)(5) (stating that after a protective order is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees”). (Id. at 7).

Defendants timely filed an Objection to the Magistrate Judge's Order.

IV. Discussion

Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, the district court may modify or set aside any part of a non-dispositive order that is clearly erroneous or contrary to law. A factual finding is “clearly erroneous” “ ‘if the district court is left with the definite and firm conviction that a mistake has been made.’ ” Jones v. City of Elkhart, No. 2:10-cv-402-TLS, 2012 WL 2458606, at *1 (N.D. Ind. June 27, 2012) (quoting Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997)). A conclusion of law is “contrary to law” where the magistrate judge “ ‘fails to apply or misapplies relevant statutes, case law, or rules of procedure.’ ” Henry v. Centeno, No. 10 C 6364, 2011 WL 3796749, at *1 (N.D. Ill. Aug. 23, 2011) (quoting Tompkins v. R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 74 (N.D.N.Y. 2000)).

The court finds the Magistrate Judge's Order was not clearly erroneous or contrary to law for three reasons. First, at the time ACH began its representation of the Defendants, discovery had closed. ACH's quest to re-open discovery concluded when the Indiana Court of Appeals affirmed the trial court's order denying ACH's motion to re-open discovery. Accordingly, because discovery was closed when ACH began representing Defendants, ACH would not have been able to obtain the Golombs’ financial records as evidence in the Zupan lawsuit. Consequently, the Golombs’ financial records are not relevant to Defendants’ legal malpractice claim against ACH and thus, are not discoverable. See Price Waicukauski & Riley, LLC v. Murray, 47 F. Supp. 3d 810, 823 (S.D. Ind. 2014) (noting that the causation element in a legal malpractice claim requires the claimants to show that, but for the attorney's alleged negligence, the claimants would have prevailed in their lawsuit). Second, Defendants’ suggestion that ACH could have acquired the subpoenaed documents in a separate legal malpractice case filed in the Northern District has no support in the record. ACH was not a party to that lawsuit, and Defendants did not establish how ACH could have obtained those documents. Lastly, the Magistrate Judge's ruling granting the Golombs their attorney's fees related to the Defendants’ subpoena is authorized by the terms of Rule 37(a)(5).

V. Conclusion

The Magistrate Judge's Order granting the Golombs a protective order preventing the production of the subpoenaed documents was not clearly erroneous or contrary to law. Accordingly, Defendants’ Objection (Filing No. 90) is OVERRULED.

SO ORDERED this 20th day of March 2018.

Distributed Electronically to Registered Counsel of Record.

By the time the case went to trial, Fidelity was no longer a party to the case.

The court found the Golombs did not have standing to move to quash the subpoena because the subpoena was directed at Fidelity Investments, not the Golombs. Instead, the court found the Golombs had standing to move for a protective order pursuant to Federal Rule of Civil Procedure 26.