United States District Court, E.D. Tennessee
IN RE: MOTION TO QUASH SUBPOENA, REQUEST FOR PROTECTIVE ORDER IN THE CASE OF: EDNA-ALLEN and VICKI ALLEN-HUGHES, Plaintiffs,
WYNDHAM WORLDWIDE OPERATIONS, INC., et al., Defendants.
MEMORANDUM AND ORDER
C. Poplin United States Magistrate Judge
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and the Order of Referral [Doc.
8] by the District Judge.
before the Court is a Motion to Quash Subpoena, Request for
Protective Order [Doc. 1], filed by Gail Matthews
(“Movant”). Defendants have responded in
opposition to the Motion [Doc. 10], and Movant filed a Reply
[Doc. 12]. The Motion is ripe for adjudication.
of background, the Motion was originally filed in the Western
District of Kentucky. Along with other requests for relief,
Movant requested that the Motion be transferred to the
Eastern District of Tennessee. In response, Defendants
consented to transferring Movant's Motion to the instant
forum. On May 30, 2019, Chief Judge Greg Stivers transferred
the Motion based on Movant's request and Defendants'
consent. The Court has considered the filings in this matter,
and for the reasons set forth below, the Court hereby
GRANTS IN PART AND DENIES IN PART the Motion
POSITIONS OF THE PARTIES
requests [Doc. 1] that the Court quash a subpoena setting
her deposition for May 23, 2019. In addition, Movant requests
a protective order prohibiting Defendants from taking her
deposition in this case. Movant states that she was
originally listed in the initial disclosures exchanged in
this case as an individual having relevant knowledge of the
facts, but Plaintiffs revised their initial disclosures and
removed her name. Movant denies that she has knowledge of any
relevant facts in this matter. Movant states that she filed
her own case against Defendants in the Middle District of
Tennessee and answered written discovery, so they already
know about her experience in buying a timeshare. Movant
argues that Defendants do not need her deposition to defend
the instant matter and that subpoenaing her deposition was to
annoy, oppress, and burden her. Movant states that Defendants
are acting in bad faith and are trying to increase the costs
of the litigation.
filed a Response [Doc. 10], agreeing to hold the subpoena in
abeyance until the completion of Plaintiffs' depositions
in this action or the related cases in order to further
establish the basis regarding the relevancy of information
sought from Movant. Defendants agree to work with
Plaintiffs' counsel in an attempt to reach an agreement
as to the timing and scope for such depositions in order to
avoid the necessity of further involvement of the Court.
Defendants argue that their subpoena to Movant was proper and
that the scope of non-party discovery is broad. Defendants
sought to depose Movant in support of their defenses in the
cases pending in the Eastern District of Tennessee.
Defendants argue that Movant's testimony was not sought
in relation to the merits of her now dismissed lawsuit; but
rather, her knowledge of timeshare relief company
solicitation. Defendants argue that such information is
highly probative of their defenses because they believe that
timeshare companies wrongfully solicited individuals to file
lawsuits. Defendants list a number of questions, claiming
that such questions go to the heart of their affirmative
defenses, the various plaintiffs' motives in filing
lawsuits, and plaintiffs' credibility.
maintain that the subpoena directed to Movant was made in
good faith because they believe that she is uniquely suited
to provide testimony that will lead to the discovery of
information relevant to timeshare relief companies and
Defendants' defenses. Defendants state that Movant filed
her own case in the Middle District of Tennessee but
dismissed her case with prejudice just one week before her
deposition. Defendants state that during her deposition, they
would have questioned her regarding what, if any, contact she
had with timeshare relief companies. Defendants state that to
the extent any improper legal solicitation pervades these
cases, Movant is a unique, non-party that likely has
knowledge of the wrong doing. Defendants state that
Movant's dismissal of her own case on the eve of her
deposition is highly suspicious, and they believe that her
dismissal is correlated with Movant's knowledge of
improper solicitation by timeshare relief companies.
Defendants assert that such gamesmanship in discovery is
Defendants argue that Movant's deposition is proportional
to the needs of this case for similar reasons as above.
Specifically, Defendants argue that Movant is uniquely suited
to provide them with information related to the timeshare
relief companies, which is highly probative of their
defenses. Defendants state that Movant will not be unduly
burdened by sitting for a deposition. Defendants state that
the subpoena provided her ample time to prepare or schedule a
different date if she had a conflict and the topics were
limited in scope. Defendants state that the information
relative to the non-attorney timeshare relief companies is
neither confidential, nor privileged.
filed a Reply [Doc. 12], maintaining that the Court should
enter a protective order prohibiting her deposition. Movant
states that in a letter to Defendants, her counsel
unequivocally acknowledged that Movant will not be used as a
witness to support any claim or defense in this case or any
cases presently pending. Further, Movant maintains that her
name was removed from Plaintiffs' initial disclosures.
Movant asserts that Defendants' request for her
deposition is simply a fishing expedition and argues that
Defendants failed to articulate how her deposition is
relevant to this specific case. Movant asserts that
Defendants cannot establish that her testimony is relevant
under Federal Rule of Evidence 401. Movant states that if
Defendants want to discover relevant evidence in this case,
they can simply ask Plaintiffs whether timeshare relief
companies solicited them. Movant states that it strains
credulity for Defendants to argue that the best way of
procuring data for these nominal, undifferentiated defenses
in this case is to depose her.
the Court has considered the positions as outlined above, and
for the reasons more fully explained below, the Court hereby
GRANTS IN PART AND DENIES IN PART the Motion
[Doc. 1]. As mentioned above, the Motion
seeks two types of relief: (1) quashing the subpoena, and (2)
entering a protective order prohibiting Defendants from
taking Movant's deposition. The Court will first address
Movant's request to quash the subpoena and then turn to
the request to prohibit Defendants from taking her
initial matter, in Defendants' Response, they agree to
hold the subpoena in abeyance until after the completion of
Plaintiffs' depositions in this action or the related
cases in order to further establish the basis regarding the
relevancy of information sought from Movant. Defendants
further agree to work with Plaintiffs' counsel in an
attempt to reach an agreement as to the timing and scope for
such depositions in order to avoid the necessity of further
involvement of the Court. While Defendants agree to hold the
subpoena in abeyance, the Court finds that the better course
of action is to QUASH the subpoena, which
sets the deposition for May 22, 2019, and includes document
requests, and permit Defendants to issue another subpoena if
they believe such discovery is warranted under Rule 26(b).
Movant seeks a protective order prohibiting her deposition in
this case. Under Rule 26(c)(1)(G), “[t]he court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense.” Further, good cause exists when the party
moving for the protective order “articulate[s] specific
facts showing ‘clearly defined and serious injury'
resulting from the discovery sought . . .” Nix v.
Sword, 11 Fed.Appx. 498, 500 (6th Cir. 2001) (citing
Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987));
see also In re Skelaxin Antitrust Litig., 292 F.R.D.
544, 549 (E.D. Tenn. 2013) (“To show good cause, the
moving party must articulate specific facts that show a
clearly defined and serious injury resulting ...