*1 This matter is before the Court on non-party JRL Coal, Inc.'s (JRL) Motion to Quash Plaintiff's Subpoena [R. 99] and Plaintiff ARC Resource Management, Inc. and related parties' (ARC) Motion for Leave to File a Sur-Reply to JRL's Motion to Quash Subpoena. [R. 103]. ARC has filed its Response opposing JRL's motion and JRL has filed a Reply in support of its motion. [R. 101; R. 102]. Because JRL included an affidavit in its Reply, ARC seeks leave to file a Sur-Reply to address this new document. [R. 103]. For the sake of completeness and to allow ARC a full opportunity to address JRL's arguments in support of its Motion to Quash, the undersigned will grant ARC's motion for leave to file a sur-reply. Therefore, the matter of the motion to quash is fully briefed and ripe for review.

This case originally centered around ARC's allegations that Defendant Civil, LLC (Civil) had breached its Contract Mining Agreement relating to mining activities located in Buchanan County, Virginia by failing to mine 38,000 tons of coal. [See R. 1; R. 92 at pg. 1]. The matter has since evolved to involve multiple corporate entities, complex claims and counterclaims, and possible damages of more than $15,000,000. The case was originally removed to the Eastern District of Kentucky on February 28, 2020, [R. 1], and since then extensive written and oral discovery has taken place. [See R. 28; R. 29; R. 30; R. 31; R. 32; R. 33; R. 38; R. 58; R. 78; R. 79; R. 87; R. 88; R. 89]. As part of this discovery process, on June 13, 2024, ARC served a subpoena on JRL for several categories of documents that relate to a Highwall Miner that is at issue in this case. [R. 99 at pg. 2]. As part of this subpoena, ARC described several categories of information and documentation that it was seeking in relation to this request. [Id. at pgs. 2–5]. ARC requested that these documents and information be produced by June 28, 2024. [Id. at pg. 2]. JRL now seeks to quash this subpoena on the grounds that it seeks irrelevant information and is otherwise overbroad and unduly burdensome. [Id.].

Pursuant to FED. R. CIV. P. 26(b)(1), unless otherwise limited, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case... Information within this scope of discovery need not be admissible in evidence to be discoverable.” The courts have broadly construed this language “to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). While this scope is not without limits, the Sixth Circuit has consistently held that ‘ “[t]he scope of discovery is within the sound discretion of the trial court, and a ruling by the trial court limiting or denying discovery will not be cause for reversal unless an abuse of discretion is shown.” ’ France v. Lucas, 836 F.3d 612, 631 (6th Cir. 2016) (quoting S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008)).

*2 Additionally, pursuant to FED. R. CIV. P. 45(d)(3) a subpoena may be quashed or modified if the subpoena “fails to allow a reasonable time to comply” or “subjects a person to undue burden.” ‘ “The party seeking to quash a subpoena bears the ultimate burden of proof.” ’ Schnatter v. 247 Grp., LLC, 343 F.R.D. 325, 330 (W.D. Ky. 2022) (quoting Hendricks v. Total Quality Logistics, 275 F.R.D. 251, 253 (S.D. Ohio 2011)). Whether a subpoena is unduly burdensome depends on the facts of the case and to make this determination, “the court must weigh the relevance of the requested material against the burden of producing the material.” Id. (citing E.E.O.C. v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994)). Further, non-party status is a factor the Court should consider in this analysis. Id. The Court is also to consider ‘ “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” ’ In re: Mod. Plastics Corp., 890 F.3d 244, 251 (6th Cir. 2018) (quoting Am. Elec. Power Co., Inc. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999)). Ultimately, the Court must balance the need of discovery against the burden imposed on the subpoenaed party. Id. Finally, the subpoenaing party must take reasonable steps to avoid imposing an undue burden or expense on the subpoenaed entity. FED. R. CIV. P. 45(c)(1).

Here, JRL argues that ARC's subpoena is overly broad and unduly burdensome because it seeks irrelevant information about a “random Highwall Mining Machine” and requests a large quantity of documentation that has no connection to the pending litigation. [R. 99 at pg. 8]. JRL also asserts that the subpoena should be quashed because ARC did not give it a reasonable amount of time to comply with the subpoena and “the requests, as written, would require JRL to search the files of each and every one of its employees for any document created or relied upon during the last five to seven years that references or in any way relates to a Highwall Miner.” [Id.]. JRL has also provided an affidavit from Timothy B. Lusby, CEO, Co-Director and Co-Founder of JRL, that supports these arguments and indicates that JRL would be forced to hire a computer forensics engineer to assist in the search of any responsive documents if it is forced to comply with this subpoena. [R. 102-1].

ARC, however, argues that its subpoena is narrowly tailored because “[i]t seeks records related to only one specific highwall miner, the one used by Civil on the Property and Project that underlies this lawsuit. JRL does not have to review the records of any other piece of equipment it owns.” [R. 101 at pg. 5]. ARC also asserts that the subpoena lists multiple categories of documents not to request a vast amount of documentation but to ensure that JRL “does not intentionally withhold relevant documents by claiming that they fall outside of the literal and technical language of any single category.” [Id.]. ARC then avers that this evidence is relevant to support ARC's assertion that Civil's failure to mine the required tonnage of coal was caused, at least in part by, Civil's failure to have proper equipment to mine the Property. [Id. at pg. 7]. ARC also explains that it has sought this information from Civil but that Civil only produced some of the requested information and thus ARC has now requested these documents from JRL to ensure that it receives any relevant documents that may still be in JRL's possession. [Id. at pg. 9; see also R. 101-2 at pgs. 4–5]. Finally, ARC responded to Lusby's affidavit in its Sur-Reply and emphasized that the subpoena should not require JRL to hire a computer forensics engineer to help gather these documents. [See R. 103-1].

These arguments, however, fail to consider the timing of this subpoena within the broader context of this case. JRL explains that it received this subpoena on June 13, 2024. [R. 99 at pg. 2]. The Court's Eighth Amended Scheduling Order, however, established June 14, 2024, as the deadline for fact discovery and specifically stated that “[t]his deadline means, as relevant, service of written discovery calculated to secure a response by and compliant with the deadline.” [R. 86 at pg. 1 (emphasis added)]. Serving a subpoena for documents related to fact discovery the day before the fact discovery deadline elapses, as the Plaintiff did here, therefore does not comply with the Court's Scheduling Order. While the undersigned understands Plaintiff's reasoning for requesting these documents, the Court cannot allow ARC to circumvent the deadlines that have been established in this matter—especially since the Court has been exceedingly lenient in extending the pretrial deadlines in this case multiple times. [See R. 43; R. 46; R. 48; R. 60; R. 62; R. 69; R. 71; R. 86; R. 98].

*3 Therefore, because of the untimely nature of Plaintiff's subpoena, the undersigned will grant JRL's motion to quash. Accordingly, having reviewed the matter and being otherwise sufficiently advised,

IT IS ORDERED that:

Signed July 10, 2024.