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Lori Precourt, Individually and As Administrator of v. Fairbank Reconstruction

May 5, 2011

LORI PRECOURT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CAROLYN BLACK; AND DIANA MORRISON, PLAINTIFFS,
v.
FAIRBANK RECONSTRUCTION CORPORATION D/B/A FAIRBANK FARMS, A FOREIGN CORPORATION; GREATER OMAHA PACKING COMPANY, INC., A FOREIGN ) CORPORATION; AND SHAW'S SUPERMARKETS, INC., A ) FOREIGN CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER

On December 29, 2010, Beef Product, Inc. (BPI), a nonparty to the above entitled action, moved to quash two subpoenas issued by Greater Omaha Packing Company (GOPAC). The court granted the motion and imposed attorney fees for BPI as a sanction on GOPAC. GOPAC moves to reconsider the court's award of attorney fees to BPI and, alternatively, objects to BPI's requested attorney fees. BPI resists the motion. GOPAC's motion is denied in part and granted in part.

GOPAC served two new subpoenas on BPI, and BPI moves to quash these subpoenas. GOPAC resists the motion to quash. BPI's motion is denied in part and granted in part.

BACKGROUND

The pertinent facts to this order are as follows:*fn1 BPI manufactures beef trim product known as lean fine textured beef (LFTB). BPI is based in Dakota Dunes, South Dakota, and has processing plants in South Sioux City, Nebraska; Waterloo, Iowa; Finney County, Kansas; and Amarillo, Texas.

In the fall of 2009, a strain of E. coli bacteria broke out in New England from beef products. As a result of this outbreak, multiple individuals brought separate actions against Fairbank and GOPAC, including the underlying action in this case Lori Precourt v. Fairbank Reconstruction Corp. et. al. (Precourt), pending in the District of New Hampshire. That action alleges that on October 1, 2009, Carolyn Black consumed ground beef from Shaw's Supermarket, Inc. and two days later become ill with symptoms consistent with E. coli poisoning. Black was hospitalized and subsequently died on October 30, 2009.

Various state and federal agencies commenced investigations regarding the E. coli outbreak. On October 31, 2009, the United States Department of Agriculture's Food Safety and Inspection Services announced that Fairbank would voluntarily recall over 500,000 pounds of ground beef that had been produced at its Ashville facility between September 14 and September 16, 2009. Fairbank admitted that it was the source of the E. coli tainted meat sold by Shaw's. The recalled beef was processed by Fairbank using raw beef trim from other beef manufacturers. GOPAC and BPI supplied product to Fairbank and one of the central issues in Precourt is who is the source of the E. coli that was introduced into Fairbank's product. GOPAC intends to argue that another manufacturer, such as BPI, and not GOPAC, is the ultimate source of the E. coli.

Before GOPAC issued subpoenas in this case, it twice served subpoenas on BPI in Long v. Fairbank Farms (Long), a similar action pending in the District of Maine. BPI did not respond because GOPAC failed to comply with the procedural rules. On November 24, 2010, GOPAC reissued the subpoena for documents and commanded BPI to produce documents at the Holiday Inn Express in Vermillion, South Dakota, on December 10, 2010. GOPAC also issued a subpoena for a Rule 30(b)(6) deposition for the same time and location. On November 30, 2010, BPI informed GOPAC that if it effected service of the subpoenas, BPI would object. On December 1, 2010, the two subpoenas were delivered to the residence of Rich Jochum, BPI's corporate administrator and registered agent, and were served on his wife.

BPI informed GOPAC, in writing, that it objected to the subpoenas on December 6, 2010, but it offered to voluntarily produce certain documents if GOPAC would forgo further discovery from BPI. Among the documents BPI agreed to voluntarily produce were all sale invoices and certificates of laboratory analysis relating to the BPI products that could have potentially been part of any product involved in Fairbank's recall.

During a December 8, 2010, telephone conversation, BPI's counsel again offered to voluntarily disclose the above-mentioned documents to GOPAC's counsel. GOPAC's counsel refused the offer and stated that GOPAC would serve new subpoenas on BPI. Because discovery closed in Long on December 20, 2010, GOPAC stated that the new subpoenas would be served in Precourt.

On December 14, 2010, GOPAC served two subpoenas on BPI by leaving the subpoenas with Jochum's wife at his home. One subpoena commanded BPI to produce certain requested documents at the Holiday Inn Express in Vermillion, South Dakota, on December 29, 2010, (document subpoena). The other subpoena directed BPI to attend a deposition on the same date at the same location (deposition subpoena). See Dockets 1-1 and 1-2.

On December 17, 2010, Fairbank served a document subpoena on BPI seeking limited documents. BPI fully complied with the subpoena and most of the documents produced to Fairbank would have been voluntarily produced to GOPAC if GOPAC had accepted BPI's offers on December 6 or 8. On December 22, 2010, BPI advised GOPAC in writing that its service of the December 14 subpoenas was ineffective. In this letter, BPI indicated that it had responded to Fairbank's subpoena and produced all documents related to BPI's sale, shipment, and laboratory analysis of product sent to Fairbank during the relevant time frame.

On December 28, 2010, BPI's counsel had a telephone conference call with GOPAC's counsel. GOPAC's attorney acknowledged that he had not reviewed BPI's production in response to Fairbank's subpoena, but he believed it was insufficient. GOPAC's attorney further indicated that court intervention would be necessary to resolve the dispute. Later that day, BPI filed its motion to quash, for a protective order, and for sanctions. GOPAC never responded to the motion. The court granted BPI's motion to quash, denied the motion for a protective order, and granted sanctions in the form of attorney fees to BPI on January 28, 2011. In that order, the court gave BPI's attorney 14 days to submit an affidavit detailing the fees incurred in preparing the motion to quash, and gave GOPAC 14 days after that order to object to the requested fees.

GOPAC served new subpoenas on BPI on January 6, 2011. The parties attempted to negotiate what documents would be produced under the new subpoenas and what topics the Rule 30(b)(6) deposition would cover. The negotiations failed on January 21, 2011, and the parties filed the pending motions.

DISCUSSION

I. Motion to Quash

BPI moves under Rules 26(c) and 45(c)(3)(A) to quash GOPAC's second set of subpoenas. The document subpoena orders that certain documents be produced at the Holiday Inn Express in Vermillion, South Dakota, on January 31, 2011. The deposition subpoena orders an appearance for a deposition at the same location on the same date. BPI seeks numerous forms of relief:

BPI asks the Court to quash the Subpoena . . . BPI also asks the Court to quash the Rule 30(b)(6) deposition of BPI . . . . Additionally, BPI asks the Court to enter a protective order pursuant to Federal Rule of Civil Procedure 26(c) prohibiting GOPAC from seeking documents from BPI other than those BPI has produced or offered to produce; limiting any Rule 30(b)(6) deposition of BPI to matters related to the BPI product that was used by Fairbank Farms in the recalled product; and permitting BPI to designate documents and information as confidential or attorneys' eyes only, if appropriate.

Docket 6 at 2.

Discovery may be obtained "regarding any non-privileged matter that is relevant to any party's claim or defense . . . ." Fed. R. Civ. P. 26(b)(1). While discovery is not a fishing expedition, the relevancy standard is broader for discovery than for admissibility of evidence. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (citations omitted). "Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case." Id. The party seeking discovery bears this burden. See id. " 'Even if relevant, discovery is not permitted where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.' " Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990)).

"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. The issuing court must enforce this duty and impose an appropriate sanction." Fed. R. Civ. P. 45(c)(1). A court "must quash or modify a subpoena that . . . subjects a person to undue burden." Id. Some courts utilize a six-factor test for determining if an undue burden exists: " '(1) relevance of the information requested; (2) the need of the party for the documents; (3) the breadth of the discovery request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed.' " Glenford Yellow Robe v. Allender, No. 09-5040-JLV, 2010 WL 1780266, at *5 (D.S.D. Apr. 30, 2010) (quoting Jade Trading, LLC v. United States, 65 Fed. Cl. 188, 190 (Fed. Cl. 2005)). The party moving to quash the subpoena bears the burden to prove that the subpoena would create an undue burden. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2459 (3d ed. 2008).

When a nonparty is subpoenaed, the court is particularly mindful of Rule 45's undue burden and expense cautions. Wright & Miller, at § 2459; see also Alberts v. HCA Inc., 405 B.R. 498, 503 (D.D.C. 2009) (reasoning that a "blatant abuse of the subpoena power is a common thread running through decisions in which sanctions have been awarded under Rule 45(c)(1)," such as seeking information from a nonparty to use in a different court action). To protect a nonparty from undue burden or expense, the court can modify the subpoena's scope or shift the financial burden of retrieving the information to the requesting party. Wright & Miller, at § 2459. If the party seeking the information can easily obtain the same information without burdening the nonparty, the court will quash the subpoena. See In re Cantrell, No. 09-mc-0158-CV-W-GAF, 2009 WL 1066011, at *2 (W.D. Mo. Apr. 21, 2009) (quashing a nonparty document subpoena because a party in the action had the information). If the subpoena seeks the ...


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