*1 Before the Court are three motions: first, Defendants/Counter-Plaintiffs' Motion to Quash and for Protective Order (Doc. #121); second, Defendants/Counter-Plaintiffs' Motion to Stay (Doc. #122), Plaintiffs/Counter-Defendants' Response (Doc. #125), and Defendants/Counter-Plaintiffs' Reply (Doc. #126); and third, Plaintiff/Counter-Defendants' Motion to Strike (Doc. #127). Having considered the parties arguments, submissions, and the applicable legal authority, the Court grants Defendants/Counter-Plaintiffs' Motion to Quash in part and denies their Motion to Stay in full. Additionally, the Court denies Plaintiff/Counter-Defendants' Motion to Strike as moot.

I. Background

In 2009, Defendants Russ Robinson (“Robinson”) and US SDR, LLC (“USSDR”) sold their near-bankrupt steel dust recycling business, Steel Dust Recycling, LLC (“SDR”), to Zinc Nacional, S.A. (“ZN”) and Plaintiff DRA, Inc. (“DRA”) (collectively, the “Buyers”) for a purchase price of approximately $60 million. Doc. #99 ¶¶ 44–46. In connection with the sale, USSDR and the Buyers executed the Membership Interest Purchase Agreement (“MIPA”). Id. ¶ 45. Following the sale, Robinson stayed on as an SDR employee. Id. ¶¶ 52, 65. He signed an employment agreement containing restrictive covenants, noncompetition, and confidentiality provisions. Id. ¶¶ 48, 52, 64.

In 2014, Plaintiff Zinc International, S.A. (“ZI”) provided loans and eventually acquired a 50% stake in a South Korean steel dust recycling venture founded by Robinson (“GSDK”). Id. ¶¶ 71–75. In connection with ZI's investment, Robinson and his corporate affiliates executed the 2014 Non-Competition Agreement and the Zinc Bonus Payment Agreement, in addition to other documents associated with the 2014 transaction. Id. ¶ 75. Under the 2014 Non-Competition Agreement, Robinson agreed to modify his employment agreement and extend his non-solicitation and noncompetition obligations until July 18, 2021. Doc. #99 ¶¶ 75–77. On July 31, 2019, SDR, DRA, and ZI (collectively, “Plaintiffs”) initiated this lawsuit to enforce Robinson's non-solicitation and noncompetition obligations against him. Doc. #1.

Between May 10 and May 20, 2022, Plaintiffs served subpoenas on five nonparties: (1) Mr. Johnny Stricklen (“Stridden”), (2) M&N Construction, LLC (“MNC”), (3) Kiln Technology Company, Inc. (“Kiln Tech”), (4) Quail Ridge Engineering (“Quail Ridge”), and (5) Foley & Lardner LLP (“Foley”) (collectively, the “Nonparty Subpoenas”). Doc. #121 at 2. Robinson and Zinc Resources, LLC (“ZR”) (together, “Defendants”) move to quash the Nonparty Subpoenas and request the Court issue a protective order. Id. at 1-2. In connection with their Motion to Quash, Defendants also move to stay discovery related to the Nonparty Subpoenas. Doc. #122. Since the time Defendants filed their Motion to Quash (doc. #121) and Motion to Stay (Doc. #122), the parties have resolved their disputes regarding the subpoenas of Stricklen, MNC, and Kiln Tech. Doc. #125 at 3 n.3. Therefore, only the disputes regarding the Quail Ridge and Foley subpoenas are before this Court.

II. Legal Standards

a. Federal Rule of Civil Procedure 26

*2 Under Federal Rule 26(c)(1), a court may grant a protective order to forbid or otherwise limit the scope of discovery into certain matters “for good cause ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c)(1); see Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly.”). “A motion for a protective order may be made by any party and such party may seek a Rule 26(c) protective order if it believes its own interest is jeopardized by discovery sought from a third person.” Field v. Anadarko Petro. Corp., No. 4:20-CV-00575, 2020 WL 4937122, at *2 (S.D. Tex. Aug. 24, 2020). To determine whether a protective order is appropriate, a court must keep in mind that parties may discover “any nonprivileged matter that is relevant to any party's claim or defense.” Id. (citing FED. R. CIV. P. 26(b)(1)).

b. Federal Rule of Civil Procedure 45

Under Federal Rule of Civil Procedure 45, a party may serve a subpoena that commands a nonparty “to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises.” FED. R. CIV. P. 45(a)(1)(A)(iii). A person may file a motion to quash on grounds such as privilege and undue burden. FED. R. CIV. P. 45(d)(3)(A). On a “motion to quash or modify a subpoena, the moving party has the burden of proof.” MetroPCS v. Thomas, 327 F.R.D. 600, 609 (N.D. Tex. 2018) (citing Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004)). “Generally, modification of a subpoena is preferable to quashing it outright.” Wiwa, 392 F.3d at 818.

III. Analysis

a. Quail Ridge Subpoena

Plaintiffs' subpoena on Quail Ridge seeks information concerning allegations related to ZR's recycling plant in Texas. Doc. #121 at 14–15. In support of their Motion to Quash, Defendants argue that, by subpoenaing Quail Ridge, Plaintiffs are attempting to “circumvent standard discovery through Defendants” and seek confidential information “without providing Defendants [ ] the opportunity to respond....” Doc. #121 at 12. Defendants argue that the information sought from Quail Ridge is “equally available” to them. Id. at 15. Despite the information being equally available to them, Defendants have not produced the information to Plaintiffs even in the of face requests for production of the same information. Doc. #121, Ex. 5; Doc. #125, Ex. 2, Ex. 3.

Moreover, the subpoena was issued to Quail Ridge in Tupelo, Mississippi. Doc. #125 at 8.[1] Under Federal Rule of Civil Procedure 45, the “court for the district where compliance is required” alone has jurisdiction to quash or modify a subpoena and is the only court from which relief may be sought in the first instance. FED. R. CIV. P. 45(d)(3)(A)-(B). The court of compliance, with respect to a subpoena requesting the production of documents, is the court that is “within 100 miles of where the person [subject to the subpoena] resides.” FED. R. CIV. P. 45(c)(2). In the case of Tupelo, Mississippi, that would be either the Northern District of Mississippi or the Northern District of Alabama. This Court is the issuing court. Therefore, Defendants have moved to quash in the wrong court. During the telephone conference on October 9, 2019, this Court already determined that it does not have jurisdiction over the issuance of a third-party subpoena where compliance will occur in Mississippi. Therefore, Defendants' Motion to Quash is denied with respect to the Quail Ridge Subpoena. Furthermore, the Court does not find staying discovery to be necessary and Defendants' Motion to Stay is also denied with respect to the Quail Ridge Subpoena.

b. Foley Subpoena

*3 Plaintiffs' subpoena to Foley seeks information concerning Foley's communications with Plaintiffs' customers. Doc. #125, Ex. 7 at 11-13; Doc. #121 at 14-15. These requests are relevant to Plaintiffs' claims that Robinson wrongfully solicited Plaintiffs' customers and wrongfully competed for business from Plaintiffs' customers, as described at length in Plaintiffs' Second Amended Complaint. Doc. #99 ¶¶ 93–124, 155. In support of their Motion to Quash, Defendants argue that, by subpoenaing Foley, Plaintiffs “seek communications and documents protected by both attorney-client and work-product privileges.” Doc. #121 at 9. However, attorney client privilege covers communications “between a client or client representative and a lawyer or his subordinate.” Green v. Kroger Co., No. 4:20-CV-01328, 2022 WL 1078024, at *2 (S.D. Tex. Apr. 11, 2022) (citing United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)); see In re Seigel, 198 S.W.3d 21, 27 (Tex. App.—El Paso 2006) (holding the same under Texas law). Therefore, Defendants cannot assert privilege over these communications because Plaintiffs' steel dust suppliers are not Foley's clients. Moreover, Foley has sole possession of the relevant documents and there is no other party form which Plaintiffs could obtain them. Doc. #125, Ex. 8 at 10–11. Accordingly, Defendants' Motion to Quash is denied with respect to information concerning Foley's communications with Plaintiffs' customers.

Plaintiffs' subpoena on Foley additionally seeks information concerning any draft or final legal opinions regarding the enforceability of Russ Robinson's non-solicitation and noncompetition obligations. Doc. #121 at 11; Doc. #125, Ex.7 at 10. Defendants argue that these communications are covered by attorney-client privilege. Doc. #121 at 10–11. Plaintiffs argue that Robinson waived this defense by sharing his legal counsel's opinion on enforceability with prospective customers. Doc. #125 at 11. To support this argument, Plaintiffs cite the following portion of Robinson's deposition:

Id. at 10. This excerpt fails to show Robinson waiving any privileged information. Moreover, Defense counsel instructed Robinson to answer the question “as long as [Plaintiffs] don't claim it's somehow opening the door to broader waiver.” Doc. #126, Ex. 2 at 2-3. Defendants' Motion to Quash is therefore granted with respect to Foley's legal opinion about the enforceability of his noncompete.

Lastly and more broadly, Plaintiffs' subpoena on Foley seeks information concerning Foley's communications with Defendant entities' non-managing members, employees, agents, or shareholders regarding Robinson's noncompetition and non-solicitation obligations, as well as regarding the named entities' formation, operating agreements, corporate structure, capital needs and investments, liabilities, minutes of meeting, and indemnity agreements. Doc. #121 at 11; Doc. #125, Ex. 7 at 10–11, 14–16. In their Response, Plaintiffs expressly limit their document requests to those communications with non-managing members and withdraw any request that extends to managing members of the named entities. Doc. #125 at 12 n.8. Defendants argue that these communications are covered by the work-product doctrine. Doc. #121 at 10-11. Ordinarily, work-product privilege applies only to “documents and tangible things that are prepared in anticipation of litigation or for trial.” FED. R. CIV. P. 26(b)(2)(A). Enron Corp. Sav. Plan v. Hewitt Assocs., L.L.C., 258 F.R.D. 149, 161 (S.D. Tex. 2009). “Although a court may order discovery of work-product materials upon a showing of substantial need, the court ‘must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney.’ ” Benevis, LLC v. Marne & Bagby, PLLC, No. 5:12-CV-36, 2015 WL 12763537, at *12 (S.D. Tex. Dec. 14, 2015) (quoting FED. R. CIV. P. 26(b)(3)(B)).

*4 Plaintiffs contend that there is “substantial need” for information regarding the formation, operation, and structure of corporate affiliates because it “is relevant to Plaintiffs' alter ego theory of liability.” Doc. #125 at 12 (citing Benevis, LLC, 2015 WL 12763537, at *12). Plaintiffs further contend that communications regarding Mr. Robinson's restrictive covenants are “significant as they speak to the willfulness and recklessness with which Robinson violated his obligations.” Id. The Court finds Plaintiffs' articulated needs are substantial enough to justify their discovery requests, especially considering the lack of alternative avenues for Plaintiffs to retrieve this information.

Defendants argue that Plaintiffs' subpoena unduly burdens Foley. But “parties have limited standing to quash subpoenas served on non-parties” and “cannot challenge a Rule 45 subpoena on the grounds that it is overly broad, seeks irrelevant information, or violates another person's privacy rights.” Edelson, P.C. v. Banda Law Firm, P.C., No. 2:18-MC-980, 2018 WL 6588436, 2018 U.S. Dist. LEXIS 210953 (S.D. Tex. Dec. 14, 2018). A party “may not challenge a subpoena issued to a nonparty, even where they have standing, on the grounds that the subpoena is unduly burdensome or irrelevant.” Schmidt Tr. of Estate of Border Anesthesia Services, P.C. v. McKee, No. CV B-10-20, 2012 WL 13137023, at *4 (S.D. Tex. Feb. 21, 2012). Defendants' undue burden argument is therefore rejected. Defendants also argue that the Foley subpoena “would require disclosure of confidential information.” Doc. #121 at 2, 8, 12, 16. However, the Court has already signed the parties' Joint Stipulated Confidentiality Order, which expressly covers productions from parties and non-parties alike, and also allows designation of documents as “attorney's eyes only.” Doc. #37. Defendants provide no explanation for how the Joint Stipulated Confidentiality Order's protections are insufficient to address their confidentiality concerns. See Doc. #121. Defendants' confidentiality argument is therefore rejected. Accordingly, Defendants' Motion to Quash Plaintiff's subpoena seeking Foley's communications with Defendant entities' non-managing members, employees, agents, and shareholders is denied.

IV. Conclusion

In conclusion, Defendants' Motion to Quash (Doc. #121) is GRANTED with respect to Foley's legal opinion about the enforceability of his noncompete and DENIED with respect to all other requests. Additionally, the Court finds a stay is not warranted and Defendants' Motion to Stay (Doc. #122) is DENIED. Lastly, the Court disregarded all unfounded arguments in the parties' briefing and further modification or briefing is not necessary. Therefore, Plaintiffs' Motion to Strike or File a Sur-Reply (Doc. #127) is DENIED as MOOT.

It is so ORDERED.