*1 Before the Court are Plaintiffs’ Motion to Quash, Motion for Protective Order, and Motion for Sanctions on Defendant's Notice of Intention to Take Oral Deposition of Dallas Kaemmerling with Subpoena Duces Tecum (ECF No. 35), filed October 16, 2022, and Plaintiffs’ Motion to Quash, Motion for Protective Order, and Motion for Sanctions on Defendant's Notice of Intention to Take Oral Deposition of Brady Sandlin with Subpoena Duces Tecum (ECF No. 37), filed October 17, 2022 (collectively “Motions”). On October 19, 2022, the Court issued an Order (ECF No. 39) staying the pending disputed depositions and ordering briefing on Plaintiffs’ Motions. The briefing has been submitted and the Motions are ripe for review.

Upon review of the parties’ respective submissions, the Court finds that the subpoenas of Dallas Kaemmerling and Brady Sandlin should be QUASHED. The Court further finds that Plaintiffs’ motions for protective orders are MOOT and that Plaintiffs’ requests for sanctions should be, and are hereby, DENIED. The Court's reasoning is explained below.

With respect to Plaintiffs’ motions to quash, Plaintiffs have successfully demonstrated their entitlement to relief. Under the Federal Rules of Civil Procedure, “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” FRCP 45(d)(1). Furthermore, “The court for the district where compliance is required 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.” Id.

Here, Defendant concedes that it failed to request any depositions before September 23, 2022.[1] On September 23, 2022, Defendant requested five depositions less than two weeks before the then-current October 3, 2022 discovery deadline.[2] After the Court granted an extension of the discovery deadline on October 11, 2022, Defendant attempted to schedule its desired depositions before the new October 25, 2022 deadline.[3] When Plaintiffs’ experts were putatively unavailable to be deposed during that two-week window at the end of October, Defendant served them with subpoenas on 7- and 9-day notice to force their compliance.[4] These facts reveal that Defendant failed to diligently conduct its discovery, and it has attempted to rectify this error at the last minute by any means necessary. For their part, Plaintiffs’ have introduced evidence about the undue burden that Defendant's conduct has placed upon Plaintiffs’ counsel and Plaintiffs’ expert witnesses.[5]

Defendant attempts to raise two objections, but neither objection is sufficient. First, Defendant argues that Federal Rule of Civil Procedure 45 does not afford Plaintiffs’ a right to attempt to quash subpoenas of their own expert witnesses.[6] But Defendant fails to cite binding authority on this question of law, and the unreported district-level persuasive authority offered by Defendant is not on point. See Diamond Consortium Inc. v. Manookian, No. 4:17-MC-00002, 2017 WL 699052 (E.D. Tex. Feb. 22, 2017) (denying motion to quash subpoenas on third-party corporate entities); Jim S. Adler, P.C. v. McNeil Consultants, LLC, No. 3:19-CV-2025-K-BN, 2022 WL 1624785 (N.D. Tex. May 23, 2022) (discussing without resolving a motion to quash a subpoena on a third-party corporate entity). On the contrary, the Fifth Circuit routinely allows parties to file motions to quash on behalf of their own expert witnesses without objection. Woodson v. Surgitek, Inc., 57 F.3d 1406 (5th Cir. 1995) (affirming the lower court's handling of a case, including its decision to quash depositions of plaintiff's experts based on motions from plaintiff).

*2 And second, Defendant contends that its conduct pursuing the depositions of Plaintiffs’ experts has been reasonable and not unduly burdensome.[7] The Court disagrees. Defendant argues that its failure to properly conduct discovery stemmed from a discussed, yet never filed, joint motion to extend various deadlines in this case.[8] But even after this motion to extend was purportedly agreed upon, Defendant proceeded to file briefing on its motion for summary judgment pursuant to the unmodified deadlines imposed by the Court. It seems that Defendant only remembered the purported extension agreement after it found itself without any depositions less than a week before the discovery deadline. Therefore, because Plaintiffs’ have carried their burden and because Defendant's objections lack legal and factual support, Plaintiffs’ motions to quash should be granted.

Turning to Plaintiffs’ other motions, the Court finds that Plaintiffs’ motions for a protective order are moot. The discovery deadline for this case passed yesterday on October 25, 2022, and the Court finds no good cause to extend it. Therefore, Plaintiffs no longer require protection from Defendant's discovery requests, since Defendant is no longer allowed to conduct discovery.

Finally, Plaintiffs’ motions for sanctions are denied. The decision to impose sanctions and costs is discretionary under Federal Rule of Civil Procedure 45, and the court declines to impose them.

To summarize, the Court finds that the subpoenas of Dallas Kaemmerling and Brady Sandlin should be QUASHED. The Court further finds that Plaintiffs’ motions for protective orders are MOOT and that Plaintiffs’ requests for sanctions should be, and are hereby, DENIED.

SO ORDERED on this 26th day of October, 2022.