*1 Pending before the Court is Vital Farms, Inc.'s objections to the Magistrate Judge's order quashing a nonparty deposition subpoena served on People for the Ethical Treatment of Animals, Inc. (“PETA”) and awarding PETA and the Foundation to Support Animal Protection (the “Foundation”) attorney's fees. For the reasons stated below, Vital Farms' objections are OVERRULED, and Magistrate Judge Robert J. Krask's ruling is AFFIRMED.[1]

This matter has been extensively litigated both in the Western District of Texas, home to the underlying lawsuit, and in this Court, where PETA and the Foundation moved to quash three third-party subpoenas.[2]

In May 2021, a putative class of consumer plaintiffs (“Usler Plaintiffs”) filed a deceptive trade practices lawsuit against Vital Farms in the United States District Court for the Western District of Texas. Usler v. Vital Farms, Inc., 1:21cv00447, ECF No. 1 (W.D. Tex.). The Usler Plaintiffs allege that Vital Farms, an egg producer, “markets itself as an ethical company that treats animals in an ethical, humane, and transparent manner” but that its marketing is “false and misleading” and Vital Farms has “tricked” consumers “into paying an unjustifiably high premium” for its eggs. Id. ¶ 1. Attorneys with the Foundation, along with other counsel, represented the Usler Plaintiffs in the false advertising lawsuit from May 25, 2021, until June 1, 2023. See generally Usler v. Vital Farms, Inc., 1:21cv00447 (W.D. Tex.).

Vital Farms served third-party document subpoenas on PETA and the Foundation (jointly, “Movants”). Both organizations moved to quash the document subpoenas in this Court. See Mot. to Quash, ECF No. 1 (PETA's Motion to Quash); Motion to Quash, Found. to Support Animal Protection v. Vital Farms, Inc., 2:22mc00023, ECF No. 1 (E.D. Va. Dec. 30, 2022) (the Foundation's Motion to Quash). The matter was referred to Magistrate Judge Krask, who subsequently granted the motions to quash and deferred Movants' request for sanctions. Order, ECF No. 40. No party objected to the April 3, 2023 Order quashing the document subpoenas.

*2 While the motions to quash the document subpoenas were pending, Vital Farms served PETA with an additional subpoena commanding deposition testimony. Deposition Subpoena, ECF No. 26-2. Although the subpoena was served on PETA, it defined PETA to include the Foundation. Deposition Subpoena, Attach. A at 2, ECF No. 26-2. The subpoena sought testimony on nineteen topics. Id. at 3–6. Movants objected to the subpoena, and the parties met and conferred. Decl. of Abby H. Meyer ¶ 2, ECF No. 34-1. Vital Farms then sent a letter on February 7, 2023, that listed “11 clarified deposition topics.”[3] Id. ¶ 3. The topics are expansive, and the Court will not summarize every topic; however, at a high level, Vital Farms sought testimony on topics including the data Movants collect about egg production practices, Movants' understanding of consumers' beliefs about egg production practices and the marketing of eggs, and Movants' dealings with any of the plaintiffs in the Western District of Texas litigation. See Meet & Confer Letter, ECF No. 34-3 (listing the eleven clarified deposition topics). PETA and the Foundation jointly moved to quash the deposition subpoena, again requesting sanctions. Mot. to Quash, ECF No. 25; Br. in Supp. at 22–23, ECF No. 26.

On April 13, 2023, Judge Krask issued an Opinion and Order (“Order”) quashing the deposition subpoena and awarding Movants sanctions in the form of attorney's fees. Op. & Order, ECF No. 43. Vital Farms objected to the Order. Vital Farms, Inc.'s Objs. to Magistrate Judge's Order Quashing Additional Nonparty Subpoena (“Objs.”), ECF No. 46. Movants filed a joint response, ECF No. 56, and Vital Farms has replied, ECF No. 57. Accordingly, the matter is ripe for adjudication.[4]

Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the district court must “modify or set aside any part” of a magistrate judge's order on a non-dispositive motion if that order is “clearly erroneous or ... contrary to law.” Fed. R. Civ. P. 72(a). A magistrate judge's “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “An order is contrary to law if it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Philpott v. Va. Dep't of Transp., 7:21cv00274, 2022 WL 3359361, at *1 (W.D. Va. Aug. 15, 2022). “The ‘contrary to law’ standard ordinarily suggests a plenary review of legal determinations, but many courts have noted that decisions of a magistrate judge concerning discovery disputes ... should be afforded ‘great deference.’ ” In re Outsidewall Tire Litig., 267 F.R.D. 466, 470 (E.D. Va. 2010); see also Philpott, 2022 WL 3359361, at *2 (“The objecting party carries a heavy burden in persuading a district court to disturb a magistrate judge's ruling in a discovery matter.”).

Vital Farms raises three objections to Judge Krask's Order: the Order (1) applied the wrong legal standard when assessing the relevancy of the topics and Vital Farms' need for the subpoenaed information; (2) erred in quashing, as opposed to modifying, the deposition subpoena; and (3) erred in awarding sanctions. Objs. at 12, 18–19, ECF No. 46. The Court will address each objection in turn.

A. Judge Krask's Conclusions Regarding Relevancy and Need

*3 In the Order, Judge Krask quashed the subpoena, having concluded that the subpoena topics either lacked relevancy, were not needed by Vital Farms, or were available from sources more appropriate than PETA or the Foundation. Op. & Order at 9–16, ECF No. 43. Judge Krask appropriately applied the relevant Federal Rules of Civil Procedure and case law. See id. at 7–16. (citing Fed. R. Civ. P. 26, 45; Va. Dep't of Corr. v. Jordan, 921 F.3d 180 (4th Cir. 2019)).

As Judge Krask noted, the “ultimate question” in a motion to quash a subpoena is “whether the benefits of discovery to the requesting party outweigh the burdens on the recipient.” Jordan, 921 F.3d at 189 (citations omitted). In Virginia Department of Corrections v. Jordan, the Court of Appeals for the Fourth Circuit explained that when a party issues a subpoena to a nonparty under Rule 45, “courts must give the recipient's nonparty status ‘special weight,’ leading to an even more ‘demanding and sensitive’ inquiry than the one governing discovery generally.” Id. (quoting In re Pub. Offering PLE Antitrust Litig., 427 F.3d 49, 53 (1st Cir. 2005)). When assessing the potential benefit of discovery requested by a subpoena, “courts should consider not just the relevance of information sought, but the requesting party's need for it.” Id. The information sought must “offer some value over and above what the requesting party already has.” Id. Courts are also instructed to “consider what information is available to the requesting party from other sources,” such as the parties to the litigation and “other third parties that would be more logical targets for the subpoena.” Id. The potential benefits of the information are then weighed against the burdens of complying, including the monetary cost of compliance as well as noneconomic interests, such as whether the subpoena imposes a burden by invading privacy, privilege, or confidentiality interests. Id. at 189–90.

Judge Krask correctly applied this “more demanding” proportionality analysis in the Order quashing the deposition subpoena. In the Order, Judge Krask reviewed each of the subpoena topics, considering first the “benefit side of the ledger.” See id. at 189; Op. & Order at 9–16, ECF No. 43. For each, Judge Krask considered “not just the relevance of information sought, but the requesting party's need for it.” Op. & Order at 7, ECF No. 43 (quoting Jordan, 921 F.3d at 189). Although Judge Krask's reasoning differs by topic, he generally concluded that the subpoena topics lacked relevancy, were not needed by Vital Farms, or were available from sources more appropriate than PETA or the Foundation. Id. at 9–16. Importantly, Judge Krask repeatedly notes that Vital Farms fails to explain the relevancy of the information sought or its need for the information. See, e.g., id. at 11 (“Vital fails to explain why it cannot obtain this industry insight on its own (if not already possessed).”); id. at 14 (“It is not clear to the Court what relevance [images from PETA's website] have to the [underlying] lawsuit, and Vital makes no attempt to explain.”). The absence of an acceptable explanation is appropriately considered by the Court. See Jordan, 921 F.3d at 189 n.2 (stating that while the movant bears the burden of proof and persuasion, those “are not terribly difficult burdens to meet if the requesting party cannot articulate its need for the information and address obvious alternative sources”).

*4 Having found that the benefits of discovery were low, Judge Krask also considered the burden side of the ledger, finding that the “designated topics are expansive” and that “[p]reparing for a deposition on these topics would impose a substantial burden on PETA.” Op. & Order at 16–17, ECF No. 43. Judge Krask also found that the subpoena was overbroad and implicated attorney-client privilege, further tipping the scales in favor of quashing the subpoena. Id. at 17.

Vital Farms objects to the Order, arguing that Judge Krask's findings on relevancy and need are contrary to law. Specifically, Vital Farms asserts that Judge Krask failed to apply the “low” threshold for relevant information and erred by not addressing relevancy and focusing instead on Vital Farms' need. Objs. at 13–18, ECF No. 46. Vital Farms additionally argues that a party demonstrates “need for” the information sought if the information “offer[s] some value over and above what the requesting party already has.” Id. at 16. (citing Jordan, 921 F.3d at 189). These arguments misstate Jordan, which explicitly instructs courts to conduct a “more ‘demanding and sensitive’ inquiry than the one governing discovery generally.” Jordan, 921 F.3d at 189. Similarly, Vital Farms minimizes the inquiry as to need, ignoring the requirement that courts are to “consider what information is available to the requesting party from other sources” as well as the requesting party's explanation of its need. Id. As to Vital Farms' argument that Judge Krask should have addressed relevancy for each topic, this is not required. See id. at 190 (assuming the threshold relevance requirement was satisfied). Finally, Judge Krask's findings of burden—findings to which Vital Farms does not object—were reasonable given the extensive topics covered by the subpoena, and these findings provide additional support for quashing the subpoena.[5]

Upon review, the Court is satisfied that Judge Krask correctly applied Jordan and that Vital Farms failed to articulate the need for or relevance of the topics requested. Accordingly, the Order's conclusions regarding relevance and need were neither clearly erroneous nor contrary to law.

B. Judge Krask's Decision Quashing as Opposed to Modifying the Subpoena

Rule 45 provides the district court with discretion to quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies,” or that “subjects [the requested party] to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii), (iv). “Mere overbreadth ... usually warrants modifying a subpoena to narrow its scope, not quashing it.” Jordan, 921 F.3d at 190 n.4. However, here, Judge Krask found that Vital Farms' subpoena topics were not only “substantially overbroad” but also implicated privileged information. Op. & Order at 16–17, ECF No. 43. Additionally, Vital Farms “fail[ed] to demonstrate relevancy or a need to depose PETA or the Foundation for any of its designated topics.” Id. at 16 (emphasis added); see also Jordan, 921 F.3d at 190 n.4 (“A subpoena may be so sweepingly overbroad, however, that it should be quashed in its entirety.”). Having reviewed the subpoena topics and Judge Krask's opinion, the Court finds that Judge Krask's decision to quash the subpoena in its entirety was neither clearly erroneous nor contrary to law.

C. Judge Krask's Sanctions Award

*5 Rule 45 imposes a duty on a requesting party to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena” and instructs that a district court “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). Factors that the Court considers when assessing undue burden include “relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” In re Mod. Plastics Corp., 890 F.3d 244, 251 (6th Cir. 2018) (quoting Am. Elec. Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999)).

Judge Krask concluded that an award of attorney's fees was appropriate because Vital Farms served “three overbroad and unduly burdensome subpoenas” on Movants and failed to establish the “need and relevance for any of the documents or testimony it demanded.” Op. & Order at 18–19, ECF No. 43 (emphasis in original). Vital Farms argues that the record demonstrates that it “repeatedly met and conferred with PETA and the Foundation in good faith to ‘resolve the conflicts over its subpoenas and to avoid imposing an undue burden.’ ” Objs. at 20, ECF No. 46 (cleaned up) (quoting In re Am. Kidney Fund, Inc., No. TDC-17-1787, 2019 WL 1894248, at *6 (D. Md. Apr. 29, 2019)). However, a finding of bad faith is not required to award sanctions under Rule 45. See Peninsula Pathology Assocs. v. Am. Int'l Indus., 4:22mc00001, 2022 WL 19574484, at *3 (E.D. Va. Dec. 23, 2022). Further, while the record details the parties' attempts to confer, it was not clearly erroneous or contrary to law for Judge Krask to conclude that Vital Farms' conferral efforts did not constitute “reasonable steps” at avoiding imposing an undue burden on Movants. Accordingly, Judge Krask's award of attorney's fees was proper.

For the reasons stated above, Vital Farms' Objections, ECF No. 46, are hereby OVERRULED and Magistrate Judge Krask's ruling on the document subpoena is AFFIRMED.

It is SO ORDERED.

Norfolk, Virginia