*1 Ray Kouza and Dalia Kouza brought a complaint against the United States of America and alleged improper withholding of taxes for the 2015 tax year. (ECF No. 1.) Plaintiffs alleged that on October 30, 2017, they timely filed an application for a tax refund with the Internal Revenue Service for the 2015 tax year and have yet to receive a refund. (Id.)

On December 5, 2022, plaintiffs filed a motion for a protective order prohibiting the deposition of plaintiff Ray Kouza and to quash the deposition subpoena to third-party witness Raad Kouza, Ray Kouza's business partner. (ECF No. 23.) The plaintiffs filed their motion a day before the depositions of Ray Kouza and Raad Kouza were set to occur. Thus, the government filed a response on the same day the motion was filed. (ECF No. 24.) On December 6, 2022, United States District Judge Gershwin A. Drain referred the plaintiffs’ motion to the undersigned. (ECF No. 25.)

For the reasons stated below, the Court DENIES plaintiffs’ motion for a protective order under Federal Rules of Civil Procedure 26(c) and 26(b)(2)(C). Further, the Court DENIES plaintiffs’ motion to quash subpoena (ECF No. 23) under Rule 45(d)(3).[1]

I. Legal Standard

“Parties may obtain discovery on any non-privileged matter that is relevant to any party's claim or defense, and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The scope of discovery should be “accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). However, “the court must limit the frequency or extent of discovery otherwise allowed ... if ... the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive ... or the proposed discovery is outside of the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

Additionally, “[a] party or any person from whom discovery is sought may move for a protective order ... The court may, 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)(1). To establish that good cause exists for a protective order, the movant is required to illustrate one of Rule 26(c)(1)’s enumerated harms “with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (citations omitted). Courts have authority under either of Rules 26(b) or 26(c) to limit discovery. Fed. R. Civ. P. 26(b); Fed. R. Civ. P. 26(c).

*2 The court must grant a motion to quash a subpoena if it imposes an undue burden on the person subject to the subpoena. Fed. R. Civ. P. 45(d)(3)(A)(iv). But before a party or person seeks to quash a subpoena, they must establish standing by showing they will suffer or did suffer a particularized and concrete injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Since a party not subjected to a subpoena typically suffers no burden or expense, that party lacks standing to challenge a subpoena issued to a non-party absent a showing of some personal right or privilege at stake. Mann v. Univ. of Cincinnati, 114 F.3d 1188, 1997 WL 280188, at *4 (6th Cir. 1997) (unpublished table decision); Underwood v. Riverview of Ann Arbor, No. 08-11024, 2008 WL 5235992, at *1 (E.D. Mich. Dec. 15, 2008); In re Romanzi, No. 18-11375, 2019 WL 4877574, at *2 (E.D. Mich. Feb. 25, 2019) (collecting cases and describing exceptions).

Courts have broad discretion over discovery matters. Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999).

II. Analysis

As an initial matter, the Court is concerned by this last-minute request to prohibit a set of depositions the day before they are to take place. Plaintiffs have known about the government's intention to depose Ray Kouza and Raad Kouza since October 18, 2022. (ECF No. 24.) Plaintiffs filed their motion on December 5, 2022.

Notwithstanding this concern, the Court finds that good cause does not exist to grant a protective order under Rule 26(c)(1) or to limit discovery under Rule 26(b)(2)(C) of any tax documents regarding the 2015 tax year. Plaintiffs claim they no longer possess those documents. (ECF No. 23, PageID.116, 119.) The Court cannot order production of documents that do not exist. See Waskul v. Washtenaw County Community Mental Health, 569 F. Supp. 3d 626, 639 (E.D. Mich. 2021). However, Rule 26(g)(1) requires that if the plaintiffs’ counsel finds that the requested documents do not exist, after a reasonable inquiry, the counselor must say so in a signed response certifying that the documents do not exist to the best of the counselor's knowledge. Id. A signed response complying with Rule 26(g)(1) establishes the existence or non-existence of the documents. Id.

The plaintiffs have not provided the Court with such a signed response. If the plaintiffs have provided or do provide the government with a signed response, consistent with Rule 26(g)’s requirements, stating that the documents do not exist, the Court will not entertain a motion requesting production of the documents absent a showing of improper certification. See Fed. R. Civ. P. 26(g)(3). Therefore, the Court DENIES a protective order for production of the documents.

Further, the Court finds that good cause does not exist to issue a Rule 26(c) protective order prohibiting the deposition of Ray Kouza nor finds that it must prevent the deposition under Rule 26(b)(2).

The Court notes that in contrast to Rule 45, governing subpoenas to third-parties, Rule 30, governing depositions of parties, does not provide any explicit method of objecting to the taking of a deposition or requesting prohibition of depositions. While Rule 30 does provide options to move to terminate or to object to individual questions during a deposition, those remedies are only available after the deposition has begun. Further, party depositions are covered by Rule 26(c) protective orders and the Rule 26(b) limits to the scope of discovery and discovery practices.

The Court finds that none of the Rule 26(b)(2)(C) factors warrant the prohibition of Ray Kouza's deposition. Ray Kouza initiated this suit and is a plaintiff in this case. The Court will not prohibit the government from conducting a reasonable deposition of Ray Kouza because plaintiffs have not established that the government's request imposes undue burden or expense on the plaintiffs or Ray Kouza.

*3 Plaintiffs claim that subjecting Ray Kouza to a deposition would impose undue burden or expense as Ray Kouza no longer possesses and likely never possessed any knowledge of the accounting, profits, or losses with the businesses at issue. (ECF No. 23, PageID.119.) However, plaintiffs have the burden of proving their business losses in tax refund cases. Dargie v. United States, 742 F.3d 243, 245 (6th Cir. 2014). As the government states, the topics of accounting, profits, and losses are relevant to this tax refund case. Ray Kouza's testimony to a lack of knowledge or lack of documentation regarding the business losses at issue in this case would provide relevant information. Thus, at this stage of the case, the Court finds that answers provided by Ray Kouza in a deposition would fall within the broad scope of discovery set by Rule 26(b)(1) even if Ray Kouza lacks knowledge regarding the losses. See Hickman v. Taylor, 329 U.S. 495, 507 (1947) (scope of discovery is broad and liberally construed). Thus, Rule 26(b)(2)(C)(iii) provides no relief for plaintiffs.

For all the same reasons, the Court cannot accept that subjecting Ray Kouza to a deposition would impose an undue burden or expense, nor create any embarrassment, annoyance, or harassment under Rule 26(c). Therefore, a protective order is also unavailable to plaintiffs. See Fed. R. Civ. P. 26(c)(1). If plaintiffs believe that any of the questions are meant to embarrass, annoy, or harass Ray Kouza, they may object to those questions during the deposition. Fed. R. Civ. P. 30(c). Further, it is Ray Kouza's duty, as a plaintiff, to participate in and prosecute this case. See Fed. R. Civ. P. 41(b); E.D. Mich. LR 41.2.

The Court further finds that plaintiffs lack standing to challenge the subpoena issued to Raad Kouza. Raad Kouza is not a plaintiff and has not filed a separate motion to quash. Plaintiffs claim no privilege or personal right to any of the information requested by the subpoena. Thus, the taking of Raad Kouza's testimony does not create any concrete or particularized injury to the plaintiffs. See Lujan, 504 U.S. at 560; see also Mann, 114 F.3d 1188, 1997 WL 280188, at *4.

The plaintiffs are concerned that the government is using these depositions as an end-run around Raad Kouza's Fifth Amendment Constitutional rights in an unrelated criminal case against Raad Kouza. There are two issues with this argument. First, Raad Kouza is not a plaintiff in this case and the Court is unable to find that plaintiffs will suffer legally recognized harm from a violation of Raad Kouza's Fifth Amendment right since it is not the plaintiffs’ Fifth Amendment right at stake. See Lujan, 504 U.S. at 560 (“plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest”); Sierra Club v. Morton, 405 U.S. 727, 735 (1972) (the party seeking judicial relief must themselves be injured). Thus, plaintiffs have no standing to challenge this alleged violation of Raad Kouza's rights.

Second, Raad Kouza is free to assert his Fifth Amendment right during a deposition for this case. In re Flint Water Cases, 53 F.4th 176, 192 (6th Cir. 2022) (citing McCarthy v. Arndstein, 266 U.S. 34, 40 (1924)) (Fifth Amendment right against self-incrimination applies in civil and criminal cases to both parties and non-parties). Thus, there is no Fifth Amendment violation for subjecting Raad Kouza to deposition questioning in this case since Raad Kouza can refuse to answer individual questions pursuant to the Fifth Amendment. Id. Raad Kouza may also file a motion to quash, for protective order, or to limit discovery for any alleged undue burden or expense or violation of a constitutional right that a subpoena might impose. Fed. R. Civ. P. 45(d)(3)(4), 26(b)(2), 26(c); see also Mann, 1997 WL 280188, at *4 (non-parties have standing to challenge a subpoena issued to them because subjecting the non-party to a subpoena would impose a burden or expense on the non-party).

*4 On December 13, 2022, the government filed a subsequent motion to compel Ray Kouza's appearance for deposition and for sanctions against Ray Kouza for failing to appear at a scheduled deposition. (ECF No. 26.) Judge Drain referred that motion to the undersigned on December 14, 2022. That motion has been fully briefed. A motion for sanctions is a particularly serious request so the Court will schedule a hearing. Thus, the undersigned defers ruling on the merits of the government's motion pending further consideration and a hearing.

For the above reasons, the Court DENIES a protective order covering the document production and DENIES Plaintiffs’ motion for a protective order or to limit discovery under Federal Rules of Civil Procedure 26(c)(1), 26(b)(2)(C), or 45(d)(3) regarding the depositions of Ray Kouza and Raad Kouza (ECF No. 23). Defendant may proceed with the depositions.

SO ORDERED.