United States District Court, E.D. Tennessee, Knoxville
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 Keven and Patricia Monroe
(“Movants”). Defendants have responded in
opposition to the Motion [Doc. 13], and Movants filed a Reply
[Doc. 18]. 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 June 18, 2019, Senior District Judge Joseph
McKinley, Jr., transferred the Motion. 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 [Doc. 1].
POSITIONS OF THE PARTIES
request [Doc. 1] that the Court quash a subpoena setting
their depositions for May 22, 2019. In addition, Movants request
a protective order prohibiting Defendants from taking their
depositions in this case. Movants state that they were
originally listed in the initial disclosures exchanged in
this case as individuals having relevant knowledge of the
facts, but Plaintiffs revised their initial disclosures and
removed their names. Movants deny that they have knowledge of
any relevant facts in this matter. Movants state that they
filed their own case against Defendants in the Middle
District of Tennessee and answered written discovery, so
Defendants already know about their experience in buying a
timeshare. Movants argue that Defendants do not need their
deposition to defend the instant matter and that subpoenaing
their depositions was to annoy, oppress, and burden them.
Movants state that Defendants are acting in bad faith and are
trying to increase the costs of the litigation.
filed a Response [Doc. 13], 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 Movants. 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 subpoenas to Movants were proper
and that the scope of non-party discovery is broad.
Defendants sought to depose Movants in support of their
defenses in the cases pending in the Eastern District of
Tennessee. Defendants argue that Movants' testimony were
not sought in relation to the merits of their now dismissed
lawsuit; but rather, their 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 subpoenas directed to Movants were made in
good faith because Defendants believe that Movants are
uniquely suited to provide testimony that will lead to the
discovery of information relevant to timeshare relief
companies and Defendants' defenses. Defendants state that
Movants filed their own case in the Middle District of
Tennessee but dismissed the case with prejudice just two
weeks before depositions. Defendants state that during
Movants' depositions, they would have questioned them
regarding what, if any, contact they had with timeshare
relief companies. Defendants state that to the extent any
improper legal solicitation pervades these cases, Movants are
unique, non-parties that likely have knowledge of the wrong
doing. Defendants state that Movants' dismissal of their
own case on the eve of depositions is highly suspicious, and
Defendants believe that dismissal is correlated with
Movants' knowledge of improper solicitation by timeshare
relief companies. Defendants assert that such gamesmanship in
discovery is disfavored.
Defendants argue that Movants' depositions are
proportional to the needs of this case for similar reasons as
above. Specifically, Defendants argue that Movants are
uniquely suited to provide Defendants with information
related to the timeshare relief companies, which is highly
probative of their defenses. Defendants state that Movants
will not be unduly burdened by sitting for depositions.
Defendants state that the subpoenas provided them ample time
to prepare or schedule a different date if they 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
filed a Reply [Doc. 12], maintaining that the Court should
enter a protective order prohibiting their depositions.
Movants state that in a letter to Defendants, their counsel
unequivocally acknowledged that Movants will not be used as
witnesses to support any claim or defense in this case or any
cases presently pending. Further, Movants maintain that their
names were removed from Plaintiffs' initial disclosures.
Movants assert that Defendants' request for their
deposition is simply a fishing expedition and argues that
Defendants failed to articulate how their depositions are
relevant to this specific case. Movants assert that
Defendants cannot establish that their testimony is relevant
under Federal Rule of Evidence 401. Movants state that if
Defendants want to discover relevant evidence in this case,
they can simply ask Plaintiffs whether timeshare relief
companies solicited them. Movants state 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 them.
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 Movants' deposition. The Court will first address
Movants' request to quash the subpoena and then turn to
the request to prohibit Defendants from taking their
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 Movants. 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).
Movants seek a protective order prohibiting their depositions
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 ...