*1 This matter is before the court on two discovery motions: ECF Nos. 100 and 111. They are referred under 28 U.S.C. § 636(b). ECF Nos. 101, 112.

The court concludes that for these motions, a detailed recitation of background facts is not necessary. Both Judge Mix and Judge Arguello have recited the factual background, and the court assumes familiarity with their rulings. ECF Nos. 21, 27. After those rulings, the pro se Plaintiff Jimmy Jones has one claim remaining against the Defendants Tracey Woodrow, Marshall Currier and J.R. Towing, Inc.: his claim that his impounded vehicle was sold without due process or just compensation. ECF No. 27 at 16. Plaintiff also has a motion for leave to file an amended complaint, but the court has not yet ruled on that motion. Accordingly, the scope of discovery is based on the claims of the Complaint and Defendants’ defenses.

Federal Rule of Civil Procedure 45 both authorizes and circumscribes the scope of subpoenas. “A party ... responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden ... on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction ... on a party ... who fails to comply.” Fed. R. Civ. P. 45(d)(1).

“[T]he court ... must quash or modify a subpoena that ... subjects a person to undue burden.” Id., Rule 45(d)(3)(A)(iv). The court “may, instead of quashing or modifying a subpoena, order ... production under specified conditions if the serving party: shows a substantial need for the ... material that cannot be otherwise met without undue hardship.” Id., Rule 45(d)(3)(C)(i).

“[T]he scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b).” GSL Grp. Inc. v. Travelers Indem. Co., No. 1:18-cv-00746-MSK-SKC, 2020 WL 12813087, at *2 (D. Colo. May 27, 2020) (citing 9A Wright & Miller, Federal Practice and Procedure § 2452 (3d ed. 2008)); see also Wang v. All. for Sustainable Energy, LLC, No. 20-cv-03780-NYW, 2022 WL 1500779, at *2 (D. Colo. May 12, 2022) (same). “[A] subpoena is bound by the same [Rule 26] standards that govern discovery between the parties, and, to be enforceable, a subpoena must seek information that is relevant to a party's claims or defenses and proportional to the needs of the case.” Oransky v. Martin Marietta Materials, Inc., No. 18-cv-00266-MSK-NRN, 2018 WL 11514384, at *1 (D. Colo. Sept. 7, 2018).

Federal Rule of Civil Procedure 26(b)(1) sets forth the familiar standard for the scope of discovery:

*2 Fed. R. Civ. P. 26(b)(1) (emphasis added). Thus, Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.

In considering proportionality, this court “weighs the importance of the discovery to the issues at stake ..., the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Carlson v. Colo. Ctr. for Reprod. Med., LLC, 341 F.R.D. 266, 282 (D. Colo. 2022) (citing Fed. R. Civ. P. 26(b)(1)).

“The court ‘must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that’... the proposed discovery is outside the scope permitted by Rule 26(b)(1).” JL v. Regis Univ., No. 21-cv-00580-DDD-NYW, 2022 WL 1443059, at *2 (D. Colo. May 6, 2022) (quoting Fed. R. Civ. P. 26(b)(2)(C)). The court must also limit discovery for several other reasons listed in Rule 26(b)(2)(C), including when it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient [or] less burdensome.” Fed. R. Civ. P. 26(b)(2)(C)(i). “Factors considered in determining whether a subpoena is unduly burdensome include non-party status, relevance, the issuing party's need for the discovery, and the breadth of the request. The party seeking to quash the subpoena bears the burden of proving that it is unduly burdensome.” Oransky, 2018 WL 11514384, at *1.

Rule 26(c)(7) allows the court “for good cause, [to] ...: protect a ... person .... [by] requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way.” Fed. R. Civ. P. 26(c) and (c)(7). “The burden is on the party resisting discovery or dissemination to establish that the information sought should be subject to additional protection. To meet this burden, the moving party must set forth specific facts showing good cause, not simply conclusory statements.” Netquote, Inc. v. Byrd, No. 07-cv-00630-DME-MEH, 2007 WL 2438947, at *1 (D. Colo. Aug. 23, 2007) (internal citation omitted).

Finally, “[d]iscovery rulings are within the broad discretion of the trial court, and [the Tenth Circuit Court of Appeals] will not disturb them absent a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Kenno v. Colo. Governor's Off. of Info. Tech., No. 21-1353, 2023 WL 2967692, at *7 (10th Cir. Apr. 17, 2023) (cleaned up, citing Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1386 (10th Cir. 1994)), cert. denied, 144 S. Ct. 696 (2024), reh'g denied sub nom. Kenno v. Colo. Governor's Off. of IT, No. 23-596, 2024 WL 1143834 (U.S. Mar. 18, 2024). See also S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (discovery rulings are reviewed for abuse of discretion).

In addition, Plaintiff is pro se. In applying the above principles, this court is mindful that Plaintiff proceeds pro se and thus affords his filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall, 935 F.2d at 1110, and applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); see also Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (“Pro se status ‘does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.’ ”).

*3 The court first addresses Defendants’ motion (ECF No. 100) to quash subpoenas that Plaintiff Jimmy Jones issued and served to Lorena Medina as a records custodian for the Archuleta County Sheriff's Office (ECF No. 100-1) for the “towed vehicle summary 21-5” and “audit log of all changes made to” it. Plaintiff received a copy of the towed vehicle summary. ECF No. 100-2.

As for an “audit log” of the towed vehicle summary, Defendants state that there is no such document based on Ms. Medina's knowledge and that of Ms. Lattin, Operations Commander in the Sheriff's Office.

In his opposition, Plaintiff asserts that the software the Sheriff's Office uses (from IDNetworks) allows among other things for building “custom queries/reports against any field in any part of the system.” ECF No. 102 at 3. He does not, however, point to any field in the towed vehicle summary that would permit running an “audit” report of any changes to that document. Nor do any of the other software capabilities suggest it is possible to generate an audit log. Plaintiff speculates that it must be possible to generate an audit log for “state requirements,” but he does not cite any factual or legal basis for that belief.

“The Court cannot compel Defendant to produce a document that does not exist.” Bethel v. United States ex rel Veterans Admin. Med. Ctr., No. 05-cv-01336-PSF-KLM, 2008 WL 45382, at *4 (D. Colo. Jan. 2, 2008). In addition, Plaintiff's request for an audit log is unduly burdensome for the needs of the case. Plaintiff's only remaining claim concerns the sale of his vehicle, valued at approximately $5,500. ECF No. 1 (Complaint ¶¶ 62, 63). While Plaintiff alleges the vehicle summary was “forged,” he does not present any facts suggesting forgery. Rather, he contends that the report was completed inaccurately or falsely because in his view, he did not abandon his vehicle as the form states. But completing a report with false or inaccurate information does not constitute forgery. See, e.g., United States v. Hunt, 456 F.3d 1255, 1260 (10th Cir. 2006) (discussing forgery in the common law). And more broadly, Plaintiff does not present any facts or law to establish good cause for requiring Ms. Medina or the Sheriff's Office to search their electronically stored information further for responding to Plaintiff's subpoena. Cf. Fed. R. Civ. P. 26(b)(2)(B). Accordingly, Defendants’ motion to quash the subpoenas is GRANTED.

In his opposition, Plaintiff asserts that if the motion to quash is granted, this “would result in Plaintiff obtaining another Subpoena where Plaintiff will seek to have the Federal Marshall's [sic] lock down the Archuleta County Sheriff's Office, escort Mrs. Medina to the computer terminal, and have her print off the requested audit log.” ECF No. 102 at 6. This assertion is inappropriate. It is arguably presented for the improper purpose of harassing and oppressing Ms. Medina. Fed. R. Civ. P. 11(b)(1). Federal subpoenas do not authorize such a request or action. Plaintiff shall not attempt to issue any further subpoena to Mrs. Medina or other staff in the Sheriff's Office without first obtaining approval from the undersigned.

The court cautions Plaintiff that if the court finds that he has filed any papers or issued any discovery for an improper purpose, the court may impose sanctions against him under Rule 11(c), Rule 45(d), or Rule 26(g). Permissible sanctions include an award of attorney fees, other monetary sanctions, and dispositive sanctions that could limit Plaintiff's ability to present his claim up to dismissal thereof.

*4 In Defendants’ motion (ECF No. 111) for protective order, they argue that they should not have to produce an unredacted copy of the potentially applicable insurance policy that they produced to Plaintiff in their initial disclosures. In this court's review of the document, Defendants redacted the names and contact information for the “named insured,” “broker of record” and “claims administrator” from the first page of the policy. They argue, citing a case concerning personnel files, that they should not have to produce the names and addresses because if Plaintiff subpoenas, contacts, or wishes to depose those individuals, it would be for inappropriate purposes under Rule 26(g)(1)(B).

Plaintiff's opposition to this motion does not address Defendants’ concern that he may use the individuals’ names from the insurance policy for improper purposes. ECF No. 115. Considering Plaintiff's assertion in ECF No. 102 as to Ms. Medina, Defendants have good reason to question whether Plaintiff will attempt to harass or oppress the individuals named in the insurance policy.

As the movant, Defendants must show they are entitled to the relief requested, and they do not cite any legal authority on point for preemptively withholding this information. Nor is this court aware of any such authority in the Tenth Circuit or under Colorado law. To the contrary, the Fed. R. Civ. P. 26 advisory committee note to the 1970 amendment instead notes that “disclosure [of insurance coverage] does not involve a significant invasion of privacy.” Defendants have not shown that the individuals’ names and contact information are subject to a privacy interest.

However, to address Defendants’ legitimate concern that Plaintiff may use that information to harass or oppress, Plaintiff shall not attempt to issue any subpoenas to the individuals named in the insurance policy without first obtaining approval from the undersigned.

This court also strongly cautions Mr. Jones that he is subject to Rule 26(g)(1), which prohibits discovery that is not “warranted by existing law or by a nonfrivolous argument for” changing or “establishing new law”; is “interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation”; or is “unreasonable [ ]or unduly burdensome or expensive.” Fed. R. Civ. P. 26(g)(1)(B)(i),(ii),(iii). On motion or on its own, the court “must impose an appropriate sanction” for violating this rule, including without limitation, to “pay the reasonable expenses, including attorney's fees, caused by the violation.” Id. 26(g)(3). This court again warns Plaintiff that he will be subject to sanctions if the court finds that he has used this litigation to oppress or harass any person.

Accordingly, the court DENIES the Defendants’ motion ECF No. 111. Defendants shall produce the unredacted copy of the insurance policy by April 30, 2024. If they wish to produce the page in question subject to a protective order governing confidential information in this case, the parties shall promptly confer and propose such an order using the example available on this court's webpage, Appendix A in the Uniform Civil Practice Standards of the Magistrate Judges of this court, available at Uniform Civil Practice Standards Magistrate Judges April2024.pdf (uscourts.gov).

For the reasons stated above, Defendants’ Motion No. 100 to quash subpoena is GRANTED, and their Motion No. 111 for protective order is DENIED.[1]