*1 On March 29, 2023, the Court held a hearing to address a motion filed by non-party Mathews Building, L.L.C. and Defendant Stacy Incorporated d/b/a Berkshire Hathaway HomeServices Premier Properties (“Premier”) for a protective order or to quash a subpoena for production of documents that Plaintiff served on Mathews Building.[1] As stated on the record, the Court grants the motion in part and denies it in part, as follows.

Request No. 1 seeks items reflecting negotiations between Mathews Building and the seller of the property at 1505 Heights Boulevard, Houston, Texas 77008 (the “Property”), which Plaintiff currently leases. How much was paid for the Property, and on what terms, lacks any apparent relevance to Plaintiff's claims. The motion is therefore granted with respect to this request.

On the record, Plaintiff withdrew Request No. 5, which sought documents showing the relationship between Mathews Building and Premier. Mathews Building's objection to this request therefore is moot.

Mathews Building's motion is denied with respect to Request Nos. 2, 3, and 4, which seek documents and communications that are relevant to Plaintiff's claim that Premier tortiously interfered with the non-compete, non-solicitation, and non-disclosure obligations that Defendant Jennifer Wilbur owes to Plaintiff. Given the common control between Premier and Mathews Building, Plaintiff is entitled to ascertain whether Mathews Building plans to push Plaintiff out of the Property so that Premier can establish its office there; whether it decided to do so based on Premier's use of confidential or trade secret information provided by Wilbur; and whether there are intentions or plans for Wilbur to office in or manage Premier's business from a location on the Property, notwithstanding her covenant not to compete with Plaintiff.

Mathews Building did not meet its burden to show that production of items responsive to Request Nos. 2, 3, or 4 would be unduly burdensome. See S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (movant's burden to prove undue burden, typically by “affidavit or other evidentiary proof”). Counsel admitted that he did not know the volume of documents involved—none had been gathered. And Mathews Building proffered no evidence about the burden of production. Its demand for reimbursement of costs is misplaced, see Dkt. 108 ¶¶ 35-37; that rule concerns a “person's attendance” to provide testimony, not documents. Fed. R. Civ. P. 45(b)(1) (“Serving a subpoena requires delivering a copy of the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law.”) (emphasis added).

The affidavit of Mathews Building's manager, Stacy Mathews, cannot justify refusing to produce requested items. Mr. Mathews asserts that the information sought is “private” and “not public.” Dkt. 108-2 ¶ 2. “The Federal Rules do not, however, provide for the withholding of subpoenaed documents on the grounds that the non-party wishes to keep them secret.” Dotson v. Edmonson, 2017 WL 11535244, at *3 (E.D. La. Nov. 21, 2017). Moreover, the protective order explicitly covers “documents furnished by non-parties who receive subpoenas in connection with this action ....” Dkt. 27 at 1. The Court further authorizes Mathews Building to designate responsive items as “Attorneys' Eyes Only.” These safeguards adequately address any asserted privacy concerns, and Mathews Building has not shown otherwise. See Dotson, 2017 WL 11535244, at *3 (noting that “a protective order would satisfy [the third party's] concerns” about confidentiality); Garcia v. El Paso Teachers Fed. Credit Union, 2021 WL 2784561, at *4 (W.D. Tex. Jan. 21, 2021) (protective order resolved non-party's “concerns regarding confidential information and trade secrets”; non-party “failed to explain why the Confidentiality and Protective order does not adequately guard its interests”).

*2 For the foregoing reasons, Mathews Building, L.L.C.'s and Premier's motion for protective order or to quash Plaintiff's subpoena for third-party production (Dkt. 108) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to items responsive to Request No. 1. The motion is DENIED as moot with respect to Request No. 5 and further DENIED on the merits with respect to Request Nos. 2, 3, and 4.

It is therefore ORDERED that, pursuant to Rule 45, Mathews Building, L.L.C. must produce—by April 14, 2023—all documents and communications responsive to Request Nos. 2, 3, and 4 pursuant to the subpoena dated March 8, 2023. In addition, by April 3, 2023, counsel for Plaintiff and for Mathews Building must agree on the search terms to be used to identify the responsive items in the ESI that Mathews Building must collect.

Signed on March 29, 2023, at Houston, Texas.