*1 This matter comes before me on motion by non-party Antonopoulos Legal Group LLC (“ALG”) to quash the Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action by Joe Panos, Inc. (“Panos”). (Docket # 27.) ALG, which has represented Panos for more than a decade, argues that the subpoena “requires information that is privileged and protected and would necessarily result in undue burden to ALG.” (Docket # 30.) For the reasons explained below, ALG's motion to quash is granted in part and denied in part.

On June 2, 2022, Panos filed a complaint alleging trademark infringement and unfair competition against Bullwinkle's at the Galleria (“BG”). (Docket # 1.) On June 24, 2022, BG filed its answer and a counterclaim alleging breach of contract, promissory estoppel and acquiescence, and intentional misrepresentation by Panos. On June 25, 2022, BG filed a third-party complaint against George Panagiotopoulus (“GP”) alleging breach of contract and intentional misrepresentation.

Counsel for Panos and ALG exchanged emails between June and August 2022 regarding Panos’ request for documents and information, but Panos and ALG were unable to reach a resolution. (Docket # 29-1.) Panos then issued the Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action to ALG on August 24, 2022. (Docket # 29-2.) ALG filed this motion to quash on September 9, 2022, arguing that the information sought by Panos constitutes privileged materials, subjects ALG to undue burden, and seeks to reveal confidential information related to the business operation of BG. (Docket # 30 at 2–9.) ALG further argues that compliance with the subpoena would force ALG to ratify decisions and actions made without the consent and oversight of Panos’ Board of Directors. (Id. at 9–10.)

Generally, the Federal Rules of Civil Procedure allow for broad discovery. Fed. R. Civ. P. 26(b) provides:

However, despite the general breadth of discovery, the court may limit discovery where the discovery sought can be obtained from some other source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs its likely benefits. See Fed. R. Civ. P. 26(b)(2)(C)(i) & (iii). Courts may also “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c).

*2 Fed. R. Civ. P. 45(a)(1)(A)(iv) provides that a subpoena for relevant information may be quashed or modified if it “subjects a person to undue burden.” Additionally, Fed. R. Civ. P. 45(d)(3)(B)(i) permits a court to quash a subpoena based on a timely motion if the subpoena requires the disclosure of “a trade secret or other confidential research, development, or commercial information.”

When addressing a motion to quash a non-party subpoena, “non-parties are not treated exactly like parties in the discovery context, and the possibility of mere relevance may not be enough; rather, non-parties are entitled to somewhat greater protection.” Patterson v. Burge, No. 03 C 4433, 2005 WL 43240, at *1 (N.D. Ill. 2005) (citing Nw. Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 923 (7th Cir. 2004)). “That protection encompasses weighing the need for the material subpoenaed against the burden involved in its production. Burden in this context means more than mere administrative hardship. It encompasses the interests that enforced production would compromise or injure.” Patterson, 2005 WL 43240, at *6 (citing Nw. Mem'l Hosp., 362 F.3d at 928–29). The party opposing discovery has the burden of showing the discovery is overly broad, unduly burdensome, or not relevant. Teed v. JT Packard & Associates, Inc., No. 10-MISC-23, 2010 WL 2925902, at *2 (E.D. Wis. July 20, 2010).

The Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action issued to ALG on August 24, 2022 requests the following:

(Docket # 29-2 at 5.)

ALG objects to this subpoena on the basis that it is “broad and seeks information [that] is protected by attorney-client privilege”; “would result in an immense amount of time and resources spent in compliance with each of the ten enumerated items sought”; and “would require ALG to disclose confidential business information of Bullwinkle's at the Galleria, LLC.” (Docket # 30 at 2–9.) ALG further argues that because “this suit is not authorized by the Joe Panos, Inc. Board of Directors,” the subpoena “places ALG in a position where compliance would effectively ratify decisions and actions made without the unanimous consent or oversight of the Board of Directors of Joe Panos, Inc.” (Id. at 9–10.) I will address each argument in turn.

*3 ALG asserts that it “has represented Panos in various matters over a period of more than ten years and has had a relationship to each of the individuals listed in the subpoena even longer.” (Docket # 30 at 4.) ALG also asserts that it has “assisted Peter Antonopoulos and BG separately from ALG's representation of Panos.” (Id. at 3.) Given these attorney-client relationships, ALG asserts that the subpoena “seems nearly calculated to bring about the disclosure of privileged communication and correspondence” and that “compliance with the subpoena will surely result in the production of documents, information, and communications which will include privileged communications.” (Id. at 4.)

In Wisconsin, “a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” DeMarco v. Chomas, No. 08-CV-143, 2008 U.S. Dist. LEXIS 90031, at *4-5 (E.D. Wis. Oct. 23, 2008) (quoting Wis. Stat. § 905.03(2)). This privilege extends to communications between the client's representative and the client's attorney. Id. Confidential communications are defined as “not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Id. (quoting Wis. Stat. § 905.03(1)(d)). The Wisconsin Supreme Court has recognized that the attorney-client privilege can be “an obstacle to the investigation of the truth,” and that the privilege should, therefore, be narrowly construed. Id. (quoting Lane v. Sharp Packaging Systems, Inc., 2002 WI 28, 251 Wis. 2d 68, 640 N.W.2d 788, 797–98).

Here, ALG has not demonstrated that compliance with the subpoena would require disclosure of privileged materials. A party seeking to invoke attorney-client privilege has the burden of establishing all of its essential elements, and ALG has not established that the records requested were communications made to the attorney in confidence or that the confidences constitute information that was not intended to be disclosed by the attorney. See DeMarco, 2008 U.S. Dist. LEXIS 90031, at *5–6 (citing United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003)). Moreover, the attorney-client privilege protects only confidential communications and not necessarily the information underlying those communications. See generally Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981). In the event it becomes apparent that confidential communications would be revealed in responsive materials, the Federal Rules of Civil Procedure provide mechanisms through which the parties may address those communications without court intervention. See Fed. R. Civ. P. 26(b)(5) and 45(d)(2). As such, I find that quashing the subpoena is not warranted on this ground.

ALG contends that the subpoena served on it is “tremendously broad and would result in an immense amount of time and resources spent in compliance with each of the ten enumerated items sought.” (Docket # 30 at 5.) ALG further contends that the task of producing “virtually every document that it could possibly have in its possession which relates in almost any tangential way with two business entities spanning over a decade of representation ... would require an expenditure of time and resources entirely disproportionate to the interests served by such compliance.” (Id. at 5–6.)

When addressing a motion to quash a subpoena, the court must balance the interest served by demanding compliance with the subpoena against the interests furthered by quashing it. Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-CV-693, 2009 U.S. Dist. LEXIS 101104, *13 (E.D. Wis. Oct. 15, 2009) (quoting 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2463 (2d ed 1995)). That is, the court must compare “the hardship to the party [or person] against whom discovery is sought, if discovery is allowed, with the hardship to the party seeking discovery if discovery is denied.” Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1159 (7th Cir. 1984) (en banc). It is the party opposing the discovery that bears the burden of demonstrating that the discovery is overly broad, unduly burdensome, or not relevant. Teed, 2010 WL 2925902 at *2.

*4 Here, requests # 7–10 are tailored to elicit responses relevant to this lawsuit. Although the requests do not specify a timeframe, the nature of the requests are such that a reasonable time is inferred. However, requests # 1–6 are overly broad as to both time and scope. For example, request # 1 states: “Produce all documents relating to Panos” (emphasis added). ALG has represented Panos for many years. Is ALG to turn over every document during the course of its many years of representing Panos regardless of whether it is relevant to this lawsuit? That is a bridge too far. Thus, ALG's motion to quash is granted as to requests # 1–6.

Under Federal Rule of Civil Procedure 45(d)(3)(B)(i), the Court may quash or modify the subpoena if it requires “disclosing a trade secret or other confidential research, development, or commercial information.” According to ALG, “the danger of disclosures that run afoul of Fed. R. Civ. Pro. 45(d)(3)(B)(i) is particularly present with respect to items 1-3, 8, 9, and 10.” (Docket # 30 at 8.) ALG contends that those items would require ALG to “turn over privileged communications related to the relationship between ALG and BG” and to “produce documents that relate to research performed by BG, confidential negotiations regarding the execution of a lease, and discussions related to the selection of a business entity and financial ramification.” (Id.)

As to requests # 7–10, I find that the information sought is relevant, and ALG has not demonstrated that there is a significant risk of confidential business information getting disclosed. Moreover, any confidential business information that may potentially be disclosed in complying with the subpoena would be covered under the existing protective order. (Docket # 30.) As this protective order is designed to prevent the spread of knowledge regarding confidential business information beyond the attorneys in this case, it substantially reduces the burden ALG faces in complying with the subpoena. Accordingly, I find that quashing the subpoena is not warranted on this ground.

ALG contends that because the underlying suit was not authorized by Panos’ Board of Directors, the subpoena “places ALG in a position where compliance would effectively ratify decisions and actions made without the unanimous consent or oversight of the Board of Directors of Joe Panos, Inc.” (Docket # 30 at 10.) This issue is beyond the scope of this order. Thus, I do not find that quashing the subpoena is warranted on this ground. Additionally, I will deny ALG's request in the alternative to hold this motion in abeyance until a determination can be made as to whether the present suit was filed without the requisite authorization of the Joe Panos, Inc. Board of Directors.

NOW, THEREFORE, IT IS HEREBY ORDERED that Antonopoulos Legal Group LLC's Motion to Quash the Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Docket # 27) is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that Antonopoulos Legal Group LLC not comply with Requests # 1–6 of the Subpoena.

Dated at Milwaukee, Wisconsin this 20th day of January, 2023.