*1 Before the Court is Defendants' and Former Defendants/Non-Parties' Motion to Quash and for Protective Order Regarding Subpoena Issued to First Fidelity Bank [Doc. No. 51]. Defendants also submit the Declaration of Paul Vorel [Doc. No. 53] in support of their Motion. Plaintiffs have responded [Doc. No. 56]. For the reasons set forth, the Motion is GRANTED in PART and DENIED in PART.

I. Introduction

Plaintiffs operate a number of personal loan and check-cashing stores in the State of Nevada. Defendants Paul M. Vorel (Vorel) and Accounting for Edmond, LLC (AFE) provided accounting and other services to Plaintiffs. As part of those services, AFE utilized accounts owned by different entities including MER No. 1 Limited Partnership (MER), Investors Services, Inc. (ISI) and Sun Cash Financial (Sun Cash) to hold certain funds generated by Plaintiffs' respective stores.[1] Plaintiffs allege Defendants have commingled funds belonging to them with those belonging to Defendants' other clients and have otherwise misappropriated their funds. Plaintiffs' claims against Defendants include professional negligence, breach of contract, breach of fiduciary duty and unjust enrichment.

Plaintiffs have issued a subpoena to non-party First Fidelity Bank (FFB). See Notice [Doc. No. 46]. The subpoena seeks production of banking records for all accounts owned by AFE, MER, ISI and Sun Cash. It also seeks production of personal banking records for the individual defendants, Vorel, John Light and Tina Light.[2]

Defendants move to quash the subpoena and further move for the entry of a protective order. Defendants contend the subpoena is “premature given the current status of the case” and further, that the document requests are “overbroad in scope.” In support of the former argument, Defendants point to Plaintiffs' purported inability to provide a computation of damages as part of Plaintiffs' initial disclosures. See Fed. R. Civ. P. 26(a)(1)(A)(iii). According to Defendants, “[i]f Plaintiffs are unable to provide an initial damages computation, then the Court should question whether they have a ‘modicum of support’ for what has been alleged in the First Amended Complaint.” Defs.' Mot. at 8.[3]

In support of their overbreadth argument, Defendants challenge the temporal scope of the production requests. Defendants contend that documents are sought through the time period April 19, 2019, but that AFE ceased providing any work for Plaintiffs in July 2018. Defendants provide a chart setting forth “end-dates” for any involvement with the respective accounts and argue the production should be narrowed to require production only up to those end-dates. See Defs.' Mot. at 9-10.

*2 Defendants also challenge the request for personal account information of the individual defendants “at least at this time.” Defs.' Mot. at 10. Defendants contend the allegations of the Amended Complaint fail to show how these individual accounts would be implicated in this case.

Finally, Defendants contend that “financial data of other third parties – specifically, AFE's other clients – will be improperly disclosed” through the requested production. Defs.' Mot. at 12. Defendants note that Plaintiffs have refused their offer to produce the documents with this information redacted. Id. at n. 5.

II. Governing Standard

“[T]he scope of discovery under a [Rule 45] subpoena is the same as the scope of discovery under Rule 26(b)[.]” Goodyear Tire & Rubber Co. v. Kirk's Tire & Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 662 (D. Kan. 2003); see also Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 307 (S.D. Ind. 2016) (“The limits and breadth of discovery expressed in Rule 26 are applicable to non-party discovery under Rule 45.”); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D. Kan. 2003) (a Rule 45 subpoena must seek relevant information and the same standards set forth in Rule 26(b) apply); Int'l Bhd. of Teamsters v. Frontier Airlines, Inc., No. 11-cv-02007-MSK-KLM, 2012 WL 1801979 at * 7 (D. Colo. May 16, 2012) (“Rule 26 governs the scope of discovery, in the context of a Rule 45 subpoena or otherwise.”).

Rule 26(b) allows discovery “regarding any nonprivileged matter that is relevant to any ... claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). The information requested “need not be admissible in evidence to be discoverable.” Id. And, relevance is broadly construed. See Strand v. USANA Health Sciences, Inc., No. 2:17-cv-00925-HCN-PMW, 2019 WL 2745537 at *1 (D. Utah June 28, 2019) (“[A] request for discovery should be considered relevant if there is any possibility the information may be relevant to the subject matter of the action.” citations omitted)).

III. Discussion

Defendants initially argue they have standing to quash the subpoena, directed to a non-party, because the subpoena seeks production of their bank records. The Court agrees. See, e.g., Public Serv. Co. of Okla. v. A Plus, Inc., No. CIV-10-651-D, 2011 WL 691204 at *3 (W.D. Okla. Feb. 16, 2011) (recognizing exception which gives a party with a “personal right” in the information subpoenaed to have standing to challenge subpoenas issued to non-parties and identifying bank records as one type of information in which a party has such a personal right (citing cases)); see also Fullbright v. State Farm Mut. Auto. Ins. Co., No. 09-297-D, 2010 WL 273690 at *2 (W.D. Okla. 2010) (individuals have a privacy interest in their personal financial affairs sufficient to give them standing to move to quash a subpoena served on a non-party financial institution).

Plaintiffs do not dispute that Defendants have standing based upon their personal right in the bank records at issue. Instead, Plaintiffs contend Defendants do not have standing to challenge the subpoena on grounds of relevance. Here, however, Defendants further seek entry of a protective order, and the Court therefore finds the scope of discovery is at issue and otherwise properly addressed pursuant to Rule 26.

*3 The Court rejects Defendants' argument that the document production requested by Plaintiffs is “premature.” Plaintiffs' remaining claims, which have survived Defendants' motion to dismiss, see Order [Doc. No. 35], arise from conduct involving alleged financial improprieties including accounting malpractice, breach of contract, breach of fiduciary duty and unjust enrichment. Moreover, Plaintiffs have described the “complex” nature of the methods used by Defendants in providing their services. See Pls.' Resp. at 2-5. The banking records at issue are likely to lead to the discovery of admissible evidence regarding the alleged financial improprieties or any ill-gotten gains. See, e.g., In re Capuccio, 558 B.R. 930, 936 (Bankr. W.D. Okla. 2016) (finding defendant's bank records “clearly relevant” to the plaintiff's investigation of possible misappropriation of funds by the defendant).

It would be patently unfair to require Plaintiffs to prove their damages without the benefit of a review of these banking records. See, e.g., Crocs, Inc. v. Effervescent, Inc., No. 06-cv-00605-PAB-KMT, 2017 WL 5714720 at * 3 (D. Colo. Nov. 28, 2017) (finding defendant's financial statements relevant and subject to discovery notwithstanding plaintiff's refusal to articulate a specific theory of recovery: “by arguing that plaintiff has failed to establish a clear link between its damages claims and the requested financial data, defendant improperly shifts the burden of proof onto plaintiff (citation omitted)); see also Malhomme v. Benet, No. 16-81989-CIV, 2017 WL 7794293 at * 2 (S.D. Fla. Apr. 13, 2017) (“It is the responding party's duty to produce materials relevant to it's adversary's legal claim, not the adversary's duty to prove the claim in order to obtain the very proof it needs.”).

The Court also rejects Defendants' argument that the bank records of the individual defendants are not discoverable because those accounts have not been “implicated.” Plaintiffs allege a claim of unjust enrichment against the individual defendants. The individual defendants hold membership interests in the business entities alleged to have misappropriated funds from Plaintiffs. The Court finds these allegations are sufficient to deem the bank records relevant and subject to discovery.

Defendants, however, further argue that the production should be temporally limited. Plaintiffs wholly fail to address this issue. Instead, Plaintiffs argue only that Defendants lack standing to challenge the subpoena on grounds of undue burden. See Fed. R. Civ. P. 45(d)(3)(A)(iv). But Defendants base their argument on overbreadth, not undue burden. The Court agrees that the scope of the production should be limited as urged by Defendants, see Defs.' Mot. at 9-10 (table summary), particularly where Plaintiffs offer no argument as to why the scope should extend to April 19, 2019.[4]

Finally, the Court finds that to the extent the information requested contains information concerning third parties,[5] Plaintiffs represent that the parties' agreed-upon protective order addresses these concerns. See Agreed Protective Order [Doc. No. 39]. Moreover, Plaintiffs further represent that the parties have agreed to a further amendment to the protective order, reached during the parties meet and confer pursuant to LCvR. 37.1, that addresses these concerns. See Pls.' Mot. at 10; see also Medical Tech. Inc. v. Breg, Inc., No. 10–MC-00100, 2010 WL 3734719, at *5 (E. D. Pa. Sept. 21, 2010) (declining to quash third-party subpoenas on the basis that they sought production of highly confidential information where the requested documents would be subject to a protective order providing “that all documents designated as ‘confidential’ or ‘highly confidential’ are to be produced ‘for attorney's eyes only’ and not divulged to the parties themselves”). The Court, therefore, conditions production of any documents subject to the subpoena and containing information of third parties as addressed, on the parties first submitting, and the Court approving, the proposed amendment to the Agreed Protective Order.

*4 IT IS THEREFORE ORDERED that Defendants' and Former Defendants/Non-Parties' Motion to Quash and for Protective Order Regarding Subpoena Issued to First Fidelity Bank [Doc. No. 51] is GRANTED in PART and DENIED in PART.

IT IS FURTHER ORDERED that within seven days of the date of this Order, the parties shall submit a Joint Proposed Protective Order for the Court's approval, as set forth.

IT IS SO ORDERED this 15th day of May, 2020.

Plaintiffs originally sued MER, ISI and Sun Cash as additional defendants, but the Court previously dismissed these business entities from the action and, therefore, they are no longer parties. See Order [Doc. No. 35].

Defendant Tina Light is a member of AFE. Defendant Ernest Light is Vorel's stepfather and owns 100% of the profit and loss interest in MER. See Pls.' Resp. at 2, n. 1 and 2.

Defendants have not sought relief before the Court with respect to Plaintiffs' Rule 26 disclosure obligations. See, e.g., Fed. R. Civ. P. 37(a). Defendants state that “Plaintiffs advised they would provide an amended computation by Wednesday, April 1.” Defs.' Mot. at 4. Defendants did not file a reply and there is no further record before the Court regarding the same.

Defendants further submit the Declaration of Paul Vorel to demonstrate the last month each account was used for each of Plaintiffs' businesses. See Decl., ¶ 7. The temporal scope permitted by the Court is defined by the table and the Declaration.

The parties fail to address Defendants' standing to raise a challenge based on private financial information of these third-parties. The standing issue addressed by the parties is limited to Defendants' standing to challenge the subpoena issued to non-party, FFB.