In re Zantac (Ranitidine) Prods. Liab. Litig.
In re Zantac (Ranitidine) Prods. Liab. Litig.
2022 WL 19919934 (S.D. Fla. 2022)
May 23, 2022
Reinhart, Bruce E., United States Magistrate Judge
Summary
The Emery Parties requested reimbursement of attorney's fees and costs incurred in responding to subpoenas from Defendants Sanofi and Boehringer Ingelheim. The court found that the Emery Parties were entitled to some compensation under Rule 45(d)(1) and ordered the parties to meet and confer to see if they can reach agreement on the amount of compensable fees.
Additional Decisions
IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION
CASE NO. 20-md-2924-RLR
United States District Court, S.D. Florida
Entered on FLSD Docket May 23, 2022
Reinhart, Bruce E., United States Magistrate Judge
ORDER ON MOTION FOR FEES AND COSTS BY EMERY PHARMA AND DR. RON NAJAFI [ECF No. 5450]
*1 Third parties Najafi Pharma Inc. d/b/a Emery Pharma and Dr. Ron Najafi (collectively “the Emery Parties”) ask for reimbursement of attorney's fees and costs incurred in responding to subpoenas from Defendants Sanofi and Boehringer Ingelheim. Emery Pharma is an independent testing laboratory in California. Dr. Najafi is the principal of Emery Pharma. Dr. Najafi is now also a retained expert for Plaintiffs in this MDL.
The Motion is GRANTED IN PART and DENIED IN PART.
I. PROCEDURAL HISTORY
In June 2020, Sanofi served a subpoena duces tecum on Emery Pharma. ECF No. 5194-1 at 22-30. One month later, Emery Pharma served objections to the subpoena but also produced 2347 pages of responsive materials. Id. at 32-41; ECF No. 5450-1 ¶3. Eight months later, in April 2021, Boehringer Ingelheim served a subpoena duces tecum to Emery Pharma. ECF No. 5194-1 at 45-55. On May 25, 2021, Emery Pharma timely filed objections to that subpoena and produced 204 more pages of responsive materials. Id. at 57-77; ECF No. 5450-1 ¶5.
On November 17, 2021, Boehringer Ingelheim served a subpoena for a Rule 30(b)(6) deposition of Emery Pharma, to be held on January 4, 2022 (“the 30(b)(6) subpoena”). ECF No. 5194-1 at 1-16. Also on November 17, 2021, Boehringer Ingelheim served a deposition subpoena on Dr. Najafi for testimony on January 5, 2022 (“the Najafi subpoena”). Id. at 18-20.
On December 20, 2021, the Emery Parties filed a motion in the Northern District of California invoking Federal Rule of Civil Procedure 45(d)(3) to quash the deposition subpoenas. ECF No. 1 in SDFL case no. 22-80208. On January 5, 2022, Boehringer Ingelheim responded to the motion. ECF No. 17 in SDFL case no. 22-80208. Two days later, on January 7, Boehringer Ingelheim moved to transfer the Motion to Quash to this Court. ECF No. 18 in SDFL case no. 22-80208. The Emery Parties opposed the Motion to Transfer. ECF No. 22 in SDFL case no. 22-80208. A hearing on the Motion to Transfer was scheduled for February 17 in the Northern District of California.
In the meantime, on January 3, 2022, the Brand Defendants filed a motion in this Court to compel deposition testimony from Dr. Najafi and Emery Pharma. ECF No. 5051.[1] The Emery Parties opposed the Motion to Compel on multiple grounds, including that this Court lacked jurisdiction. See ECF No. 5061. After briefing from the interested parties on the jurisdictional issue, Judge Rosenberg found that this Court had jurisdiction. ECF No. 5094. In light of Judge Rosenberg's ruling, the Northern District of California transferred the Motion to Quash to this Court. ECF No. 5210-1.
After further briefing on the merits, I held hearing on February 15, 2022, on the Emery Parties’ Motion to Quash and the Brand Defendants’ Motion to Compel. I compelled the 30(b)(6) deposition of Emery Pharma and quashed the deposition subpoena to Dr. Najafi in his non-expert capacity. ECF No. 5259.
*2 The Emery Parties now move for an award of attorney's fees and costs.[2]
II. LEGAL PRINCIPLES
The Emery Parties cite three Federal Rules of Civil Procedure as the bases for cost shifting: Rule 26(c)(1)(B), Rule 37(a)(5)(B), and Rule 45(d). ECF No. 5450 at 2.[3]
A. Rule 26(c)(1)(B)
Rule 26(c)(1)(B) authorizes a party responding to a discovery request to seek a protective order that “specif[ies] terms, including time and place or the allocation of expenses, for ... the discovery.” Fed. R. Civ. P. 26(c)(1)(B). The Emery Parties only cite Rule 26(c)(1)(B) once – in the introductory sentence of its Motion. There is no further discussion or analysis of why this Rule justifies an award of attorney's fees. “It is axiomatic that arguments not supported and properly developed are deemed waived.” Beres v. Daily Journal Corp., 0:22-CV-60123-WPD, 2022 WL 805733, at *6 n.6 (S.D. Fla. Mar. 8, 2022) (J. Dimitrouleas) (citations omitted).
B. Rule 37(a)(5)(B)
In order to properly frame the Emery Parties’ request for compensation under Rule 37(a)(5)(B), it is instructive to review the structure of that Rule and the procedural history of this matter in more detail.
*3 Rule 37(a)(1) authorizes “a party to move for an order compelling disclosure or discovery.” Rule 37(a)(3) discusses two categories of specific motions: (1) motion to compel a party to make initial disclosures, Fed. R. Civ. P. 37(a)(3)(A), and (2) motion to compel “an answer, designation, production, or inspection,” including a deponent's failure to answer a question or a party's failure to produce documents under Rule 34. Fed. R. Civ. P. 37(a)(3)(B). A separate rule addresses a deponent's failure to appear. Fed. R. Civ. P. 37(d). If a Rule 37(a)(1) motion to compel is denied, Rule 37(a)(5)(B) requires the Court to order reimbursement of reasonable expenses, including attorney's fees, “incurred in opposing the motion [unless] the motion was substantially justified or other circumstances make an award of expenses unjust.” Fees may be assessed against “the movant, the attorney filing the motion, or both.” Fed. R. Civ. P. 37(a)(5)(B).
The Brand Defendants argue that Dr. Najafi cannot invoke Rule 37(a)(5) because “Rule 37(a) does not ‘address a motion to compel a party or non-party to appear for a deposition.’ ” ECF No. 5484 at 10 (quoting MetroPCS v. Thomas, 327 F.R.D.600, 611 (N.D. Tex. 2018)). The Brand Defendants are correct. As MetroPCS explains, Rule 37(a) does not contemplate a motion to compel a person to appear for deposition. Proper service of the deposition notice imposes a legal obligation to appear. No further order is required. The deponent has three choices: (1) appear and refuse to answer some or all questions, (2) do not appear, or (3) move to quash or for a protective order. Rule 37(a) applies to the first scenario. Rule 37(d) applies to the second. Rules 26(c) and 45(d)(3) apply to the third.
Here, the Emery Parties were properly served with deposition notices. They moved to quash in the Northern District of California under Rule 45(d). The Brand Defendants moved in this Court to compel the depositions. To the extent the subpoenas called for witness testimony, the Brand Defendants’ Motion to Compel testimony was procedurally unnecessary and arguably moot (given the properly-served deponents’ existing obligation to appear), but the Emery Parties never challenged the Motion to Compel on those grounds. Because Emery Pharma objected to the duces tecum aspect of the 30(b)(6) deposition, the Brand Defendants could file a Motion to Compel the production of documents pursuant to Rule 45(d)(2)(B)(i). In any event, once the Motion to Quash was transferred to this Court from the Northern District of California, that motion properly raised the substantive issue of whether the Emery Parties should be required to testify in response to the deposition subpoenas. Although my ruling was captioned “Order Granting in Part and Denying in Part Defendants’ Motion to Compel Non-Party Depositions,” it also incorporated granting the Motion to Quash in part and denying it in part.
To summarize, Rule 37(a)(5)(B) applies only when a proper motion to compel is denied. Here, the only procedurally proper motion to compel related to the duces tecum aspect of the 30(b)(6) subpoena. I granted that motion to compel. So, the Emery Parties are not entitled to relief under Rule 37(a)(5)(B).
That being said, the Emery Parties are not left without recourse. As will be discussed in the next section, under appropriate circumstances, a third party who successfully moves to quash a subpoena can receive compensation. See Fed. R. Civ. P. 45(d)(1), (d)(3)(A). And, a third party can receive compensation if a subpoena imposes an undue burden, even if the subpoena is enforced in whole or in part. Fed. R. Civ. P. 45(d)(1).
C. Rule 45(d)
Rule 45(d) requires the issuer of a subpoena on a third party to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction – which may include lost earnings and reasonable attorney's fees – on a party or attorney who fails to comply.” Fed. R. Civ. P. 45(d)(1). Rule 45(d) takes a broader perspective than Rule 37(a)(5)(B). The former looks to the entire course of conduct involved in issuing and subsequently seeking to enforce a third-party subpoena. The latter focuses solely on a party's decision to prosecute a motion to compel.
*4 Several provisions of Rule 45(d) can be the basis for shifting expenses to the party issuing a subpoena. Rule 45(d)(1) authorizes “an appropriate sanction – which may include lost earnings and reasonable attorney's fees – on a party or attorney who fails to [take reasonable steps to avoid imposing undue burden or expense.]”
Rule 45(d)(2)(B) addresses the proper procedure after a subpoena recipient serves an objection to producing materials or permitting inspection. The serving party can move for an order compelling compliance. Fed. R. Civ. P. 45(d)(2)(B)(i). If the motion to compel is granted, “the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii).
Rule 45(d)(3)(C)(ii) addresses shifting expenses related to subpoenas calling for confidential commercial information or certain expert witness testimony. The Emery Parties do not seek reimbursement under Rule 45(d)(3)(C)(ii).
Compensation under Rule 45(d)(2)(B) is not limited to expenses incurred after the order compelling the deposition. “The rule draws no distinction between compliance costs incurred before the court's order and those incurred after.” In re Gladstone Consulting, Inc., No. 17-80845-CIV, 2018 WL 7820218, at *3 (S.D. Fla. Sept. 21, 2018). The rule's purpose is not to eliminate all expense to the third party, but only to avoid significant expense. The relevant question is “whether the subpoena imposes expenses on the non-party, and whether those expenses are ‘significant.’ If they are, the court must protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder ‘non-significant.’ The rule is susceptible of no other interpretation.” Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir. 2001); see also Sun Cap. Partners, Inc. v. Twin City Fire Ins. Co., No. 12-CIV-81397, 2016 WL 1658765, at *7 (S.D. Fla. Apr. 26, 2016) (J. Matthewman) (a non-party can be required to bear some or all of its expenses “where the equities of a particular case demand it.”).
The Emery Parties bear the burden of proof under both Rules 45(d)(1) and 45(d)(2)(B). Accord Cutlass Collieries, LLC, v. Jones, No. 20-CV-80001-RLR, 2021 WL 6135152, at *1 (S.D. Fla. Dec. 7, 2021). The amount of compensation under Rules 45(d)(1) and 45(d)(2) is within the court's discretion “and generally made after balancing the need for discovery against the burden imposed on the person from whom discovery was sought.” In re ATIF, Inc., 622 B.R. 127, 131 (Bankr. M.D. Fla. 2020); accord In re Gladstone Consulting, Inc., No. 17-80845-CIV, 2018 WL 7820218, at *2 (S.D. Fla. Sept. 21, 2018) (J. Middlebrooks) (under Rule 45(d)(2), degree of compensation within court's discretion); see, e.g., Progressive Emu Inc. v. Nutrition & Fitness, Inc., 785 Fed. Appx. 622, 628 (11th Cir. 2019) (applying abuse of discretion standard to Rule 45(d)(1) order).
Courts apply the same three-part balancing test to cost shifting under both Rule 45(d)(1) and Rule 45(d)(2)(B). First, whether the non-party has an interest in the outcome of the case; second, whether the non-party can more readily bear the cost than the requesting party; third, whether the litigation is of public importance. See, e.g., In re Gladstone Consulting, Inc., 2018 WL 7820218, at *2 (Rule 45(d)(2)(B)); Sun Capital Partners, Inc., 2016 WL 1658765, at *7 (Rule 41(d)(1)). Both parties cite and discuss this balancing test. ECF No. 5450 (Emery Parties’ Motion) at 5, 8; ECF No. 5484 (Brand Defendants’ Response) at 11.
*5 The Brand Defendants had a duty to comply with Rule 45(d)(1) for all four subpoenas. So, Dr. Najafi and Emery Pharma both can request compensation under Rule 45(d)(1).
In contrast, only Emery Pharma can invoke Rule 45(d)(2)(B), and only as to the duces tecum aspect of the 30(b)(6) subpoena. The entry of an order compelling production or inspection is a necessary prerequisite for compensation under Rule 45(d)(2)(B). In re Am. Kidney Fund, Inc., No. CV TDC-17-1787, 2019 WL 1894248, at *4 (D. Md. Apr. 29, 2019) (“the protections of Rule 45(d(2)(B)(ii) are only applicable if a responding non-party timely enters objections to the subpoena and a court subsequently issues an order compelling a response to the requests.”). Here, over Emery Pharma's objection, I entered an order compelling it to produce documents responsive to the 30(b)(6) subpoena.[4] See ECF No. 5194-1 at 16 (documents requested as part of the 30(b)(6) subpoena). Emery Pharma contemporaneously moved for fees associated with future compliance and preparation for the 30(b)(6) deposition. 2/15/22 Hrg. Tr. at 58-60. I took that matter under advisement. ECF No. 5259.
III. DISCUSSION
Emery Pharma requests $45,000 to compensate it for responding to the document subpoenas. Emery Pharma served objections to the subpoenas but never brought those objections before the Court. It produced documents responsive to the subpoenas in July 2020 and May 2021. There is no evidence in the record that Emery Pharma contemporaneously requested compensation from Sanofi or Boehringer Ingelheim to offset the costs of compliance. Regardless, Emery Pharma did not ask this Court to shift costs under Rule 45(d)(1) until April 2022, which was more than 18 months after the Sanofi subpoena and a year after the Boehringer Ingelheim subpoena.
I exercise my discretion and my inherent authority to control my docket to deny this cost-shifting request as untimely. See Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018) (recognizing district court's “inherent authority to control its docket and ensure the prompt resolution of lawsuits”) (quoting Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1320 (11th Cir. 2015). The authority to award sanctions or attorney's fees is grounded in the Court's traditional equitable powers. See Chambers v. NASCO, Inc., 501 U.S. 32 (1991); Hall v. Cole, 412 U.S. 1, 4-5 (1973). Equity principles require the timely prosecution of legal claims. See, e.g., EEOC v. Dresser Industries, Inc., 668 F.2d 1199 (11th Cir. 1982) (dismissing claim based on laches). Claims that are not timely presented are waived.
Consistent with these principles, this Court's practice is to require requests for sanctions or fee shifting to be raised at or about the time that the issue arises. For example, Local Rule 26(g) requires most discovery disputes to be raised within 30 days of when they arise. Timely presentation of these issues to the Court advances the just, speedy, and inexpensive resolution of matters. See Fed. R. Civ. P. 1.
*6 Particularly in an MDL of this magnitude, collateral issues such as sanctions and attorney's fees cannot be allowed to linger for unreasonable periods of time. Although Rule 45(d) does not specify a timeframe in which to seek relief, under the circumstances of this case, waiting 12 months and 18 months to bring a sanctions issue before the Court is an unreasonable delay. No compensation will be awarded for responding to the document subpoenas.
The Emery Parties request $20,000 in outside counsel fees for litigating the Motion to Quash and the Motion to Compel. Emery Pharma asks for additional reimbursement of $36,000 for preparing its 30(b)(6) witness: $21,000 for internal costs and $15,000 for outside counsel fees. Emery Pharma does not request any compensation for document production related to the 30(b)(6) subpoena.
I now turn to the three-part test under Rule 45(d). The first factor incorporates the principle that a burden or expense is not “undue” if the subpoena recipient has a vested interest in the outcome of the litigation. see e.g., In re Hornbeam Corp., 14-CV-24887, 2019 WL 5106768, at *3 (S.D. Fla. Sept. 27, 2019) (J. Louis) (Court can apportion partial costs to a subpoena respondent who is not a “classic disinterested” party.). The Brand Defendants argue that Emery Pharma is not a wholly disinterested third party because it is conducting testing related to ranitidine that helped lead to the current litigation. See ECF No. 5484 at 11-12. They also note that Dr. Najafi has a financial interest in the case because he is a retained expert for Plaintiffs. Id. Dr. Najafi responds that before he was hired as an expert, his efforts to study ranitidine were done “without contribution from any other third party in order to bring to public attention a great matter of public health.” ECF No. 5450 at 8.
The second factor focuses on the financial burden. Here, the Brand Defendants can more readily bear the costs of subpoena compliance than the Emery Parties can. The Brand Defendants do not meaningfully dispute this point. ECF No. 5484 at 12.
Finally, this MDL, one of the largest consolidated litigations ever, is undoubtedly a matter of public importance. This factor incorporates the principle that it is sometimes appropriate to have a non-party witness incur expenses when the information sought will ultimately benefit the public. See, e.g., United States v. IBM, Corp., 62 F.R.D. 526, 529 (S.D.N.Y. 1974).
Having considered the relevant factors, I find that the Emery Parties have met their burden of proving an entitlement to some compensation under Rule 45(d)(1).
The Brand Defendants argue that the Emery Parties should be denied all compensation because they failed to comply with Local Rule 7.3. That rule applies to motions “for an award of attorneys’ fees and/or non-taxable expenses and costs arising from the entry of a final judgment or order.” SDFL L.R. 7.3(a). It does not apply here. First, Rule 45(d)(1) is not an attorneys’ fee rule, it is a discovery sanctions rule. And, no final judgment or order is required under Rule 45(d)(1), nor has any such judgment or order been entered. For all these reasons, Local Rule 7.3 presents no bar to a compensation award, here.
IV. COST SHIFTING
I now address several specific categories of requested expenses.
The Brand Defendants should not have to bear the additional expenses incurred in educating a 30(b)(6) witness other than Dr. Najafi. ECF No. 5484 at 13-14. The ultimate touchstone of Rule 45(d)(1) is whether the Brand Defendants’ conduct imposed an undue burden on Emery Pharma. The decision to appoint a 30(b)(6) witness that required more expensive preparation was uniquely within the power of Emery Pharma. Even if those additional costs were unduly burdensome (an issue I need not decide), they were not caused by the Brand Defendants. On the other hand, if Emery Pharma can substantiate expenses that would have been incurred to prepare Dr. Najafi to testify, those expenses would be compensable.
*7 The Brand Defendants incorrectly argue that the Emery Parties cannot be compensated for attorney's fees incurred in resisting subpoena compliance. Id. at 15. They cite Raymond James & Assocs., Inc. v. Terran Orbital Corp., No. CV 20-MC-80718, 2020 WL 5367319, at *3 (S.D. Fla. Sept. 8, 2020) (J. Matthewman). In that case, the Court granted in part and denied in part a motion to quash a document subpoena. The third party was ordered to comply with the subpoena. It sought cost-shifting that included outside counsel fees related to the motion to quash. Judge Matthewman denied these fees, saying:
“The plain language of Rule 45 provides that non-parties must be protected from significant expenses resulting from compliance [with a court order or subpoena]. It is a tenuous proposition, at best, that attorneys’ fees incurred resisting a subpoena are expenses resulting from compliance.” Stormans Inc. v. Selecky, No. C07-5374 RBL, 2015 WL 224914, at *5 (W.D. Wash. Jan. 15, 2015); see also In re Aggrenox Antitrust Litig., No. 3:14-MD-02516 (SRU), 2017 WL 4679228, at *9 (D. Conn. Oct. 18, 2017) (finding that legal fees incurred related—directly or indirectly—to its efforts to resist the subpoena were not recoverable).
Raymond James. at *3 (brackets in original). Read in context, particularly the reference to “significant expenses resulting from compliance,” it is clear that Raymond James is applying Rule 45(d)(2)(B)(ii).
As discussed above, Rule 45(d)(1) is more expansive than Rule 45(d)(2)(B). It authorizes “an appropriate sanction – which may include lost earnings and reasonable attorney's fees.” See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813–14 (9th Cir. 2003). So, I find that the Emery Parties are not categorically precluded from being compensated for attorney's fees related to opposing the deposition subpoenas.
That being said, I agree with the Brand Defendants that the Emery Parties should not be compensated for opposing the Motion to Transfer this matter to the MDL court in both the Northern District of California and the JPML. Nor should they be compensated for fees related to challenging this Court's jurisdiction. Given the magnitude of this MDL, this Court was uniquely situated to rule on the propriety of these deposition subpoenas quickly and inexpensively. The availability of remote courtroom access eliminated the cost and inconvenience of the Emery Parties having to litigate in a district across the continental United States. The JPML recognized these efficiencies when it authorized a conditional transfer. The Emery Parties should have recognized them as well. It was absolutely within Emery Pharma's rights to oppose transfer to this Court, but the financial costs of that decision cannot fairly be attributed to the Brand Defendants.
To summarize, the following categories of expenses are compensable. First, the Emery Parties may recover outside counsel fees for litigating the Motion to Quash and the Motion to Compel except for fees associated with the transfer and jurisdictional motions. Second, Emery Pharma may recover internal and external expenses incident to preparing the 30(b)(6) witness that would have been necessary to prepare Dr. Najafi.
With this guidance, it is ORDERED that the parties shall meet and confer to see if they can reach agreement on the amount of compensable fees. If no agreement can be reached, the Emery Parties may file a supplemental motion that provides evidentiary support for the authorized expense categories.
*8 DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 20th day of May 2022.
Footnotes
Also on January 3, the Judicial Panel on Multidistrict Litigation (JPML) issued a Conditional Transfer Order to transfer the motion to quash to this Court. Emery Pharma and Dr. Najafi opposed that Order, so it was set for further briefing by the JPML.
The Emery Parties take inconsistent positions about the remedy they seek. On the one hand, their motion states, “Emery moves for an order for the payment of the fees and costs that it incurred in response to Defendants’ deposition and document subpoenas served by Eva Canaan, counsel for defendant Boehringer Ingelheim Pharmaceuticals, Inc. (‘BIP’) in the MDL action.” ECF No. 5450 at 2. This language limits the request to fees and costs associated with the April 2021 subpoena duces tecum the Najafi subpoena, and the 30(b)(6) subpoena; it would exclude the June 2020 subpoena duces tecum served by Sanofi. On the other hand, later in their Motion, the Emery Parties ask for reimbursement of fees and costs spent responding to all four subpoenas. ECF No. 5450 at 3 (“Emery seeks an award of all outside legal expenses, and Emery's internal costs for its personnel's time, incurred in responding to Defendants’ four subpoenas to Emery and Dr. Najafi.”). And, their enumeration of costs includes costs associated with the Sanofi subpoena. Because I ultimately conclude that Emery Pharma is not entitled to reimbursement for fees and costs related to the Sanofi subpoena, I need not resolve this inconsistency.
The Emery Parties also make passing references to 28 U.S.C. § 1927. Id. at 7 n.1 and at 11. This argument is not properly presented or fully developed. See Plain Bay Sales, LLC v. Gallaher, No. 18-80581-CIV, 2019 WL 1782761, at *6 (S.D. Fla. Apr. 24, 2019) (J. Matthewman) (refusing to consider substantive argument raised in a footnote). It is therefore waived. In any event, a finding of bad faith is a prerequisite to § 1927 sanctions. Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225–26 (11th Cir. 2003). The Emery Parties bear the burden of showing bad faith. Mack v. Delta Air Lines, Inc., Mack v. Delta Air Lines, Inc., No. 1:13-CV-1162-LMM, 2014 WL 12628621, at *15 (N.D. Ga. Nov. 26, 2014), report and recommendation adopted, 2015 WL 12862475 (N.D. Ga. Mar. 30, 2015), aff'd, 639 F. App'x 582 (11th Cir. 2016). They have not met this burden.
Emery Pharma did not serve a separate “objection” to the document request in the 30(b)(6) subpoena. It filed a Motion to Quash that asserted the additional document requests were unduly burdensome and harassing. ECF No. 1 in SDFL case no. 22-80208 at 5-6. I find that the Motion to Quash was sufficient to satisfy Rule 45(d)(2)(B)’s requirement of “a written objection.”