United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court are plaintiff Joey Shutrump's motion to
quash (Dkt. # 29) and non-party American Mercury Insurance
Company's (Mercury) motion to quash (Dkt. # 32).
Plaintiff and Mercury both ask the Court to quash a subpoena
issued by defendant for Mercury's file from a prior
insurance claim made by plaintiff. Plaintiff and Mercury
assert that the file is irrelevant and contains privileged
documents. Dkt. ## 29, 32. Defendant argues that the file is
relevant and discoverable. Dkt. ## 34, 40. Defendant also
argues that plaintiff does not have standing to object to the
subpoena and that the Court should not consider Mercury's
motion because Mercury failed to meet and confer with
defendant prior to filing the motion. Dkt. # 34, at 7-9; Dkt.
# 40, at 7-8.
case arises from an automobile accident between plaintiff and
an uninsured motorist in April 2014. Dkt. # 2-5, at 3. At the
time of the accident plaintiff had an uninsured motorist
insurance policy issued by defendant. Id. Plaintiff
filed a claim for uninsured motorist benefits with defendant
for injuries he alleges were caused by the accident.
Id. Defendant made an offer to settle
plaintiff's claim for less than the amount plaintiff
claimed. Id. Plaintiff filed this suit alleging
claims against defendant for breach of contract and breach of
the duty of good faith and fair dealing. Id. at 4-6.
Defendant asserts that it offered plaintiff less than the
full amount claimed because some of plaintiff's medical
bills stem from a prior automobile accident. Dkt. # 40, at 6.
In March 2009, plaintiff was involved in an automobile
accident and, as a result, sustained neck and back injuries.
Dkt. # 40-2, at 21-24. Plaintiff sued the driver of the other
car for negligence and Mercury for breach of contract and bad
faith. Id. at 49-51. Plaintiff settled with both the
driver and Mercury. Id. Plaintiff admits that his
current injuries are due to a “combination” of
injuries from the March 2009 and April 2014 accidents.
Id. at 18. Defendant issued at subpoena to Mercury
for “[t]he entire file relating to [plaintiff's]
claim for insurance benefits” arising from the March
2009 accident. Plaintiff and Mercury now move to quash the
subpoena. Dkt. ## 29, 32.
Rule of Civil Procedure 26(b)(1) provides that
“[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.” A subpoena may be quashed under Rule 45(d)(3) if
it “(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographic limits
specified in Rule 45(c); (iii) requires disclosure of
privileged or other protected matter, if no exception or
waiver applies; or (iv) subjects a person to undue
burden.” Although Rule 45 does not include relevance as
a reason for quashing a subpoena, it is well-settled that the
scope of discovery under a subpoena is the same as that under
Rule 26(b) and Rule 34. E.E.O.C. v. Unit Drilling
Co., No. 13-CV-147-TCK-PJC, 2014 WL 130551, at *2 (N.D.
Okla. Jan. 13, 2014). The burden is on the moving party to
establish grounds for quashing a subpoena. Morales v.
E.D. Etnyre & Co., 228 F.R.D. 694, 696 (D.N.M.
Court must first determine whether plaintiff has standing to
challenge the subpoena for Mercury's March 2009 accident
file. Generally, absent a claim of privilege, personal
interest, or proprietary interest, a party lacks standing to
quash a subpoena served on a third party. Howard v.
Segway, Inc., No. 11-CV-688-GFK-PJC, 2012 WL 2923230, at
*2 (N.D. Okla. July 18, 2012). Plaintiff does not
specifically address the issue of standing in his motion, but
asserts that the file contains “sensitive”
information about him, including medical records and details
about his settlement negotiations with Mercury. Dkt. # 29, at
4. Plaintiff clearly has a privacy interest in a file that
contains his medical records, and because plaintiff has a
legitimate privacy interest in the contents of the file, he
has standing to challenge the subpoena. See Black Card,
LLC v. VISA U.S.A., Inc., No. 15-CV-027-S, 2016 WL
7325684, at *2 (D. Wyo. May 9, 2016) (holding that the
plaintiff had standing to challenge third-party subpoenas for
documents related to trademark litigation settlement
agreement involving plaintiff due to plaintiff's
“legitimate privacy interests”); Howard,
2012 WL 2923230 at *2 (holding that the plaintiff had
standing to challenge a third-party subpoena “based
upon his personal privacy interest in the contents of his
and Mercury argue that the subpoena should be quashed because
the information in the file is irrelevant. Plaintiff's
claims against defendant arise from defendant's refusal
to pay plaintiff for the full amount he claimed under his
uninsured motorist policy. Defendant's defense is that
some of the injuries plaintiff claimed were not a result of
the April 2014 accident, but the March 2009 accident.
Therefore, the March 2009 accident and the injuries plaintiff
sustained in that accident are central to defendant's
defense. Plaintiff argues that he has provided defendant with
medical records related to the March 2009 accident. However,
“[a] party is not required to rely on information
furnished by the other party and may choose the method by
which it seeks to obtain relevant information.”
Fullbright v. State Farm Mut. Auto. Ins. Co., No.
CIV-09-297-D, 2010 WL 274131, at *2 (W.D. Okla. Jan. 15,
2010). Moreover, the file may contain information that is
additional to, or different from, the medical records
provided by plaintiff. Mercury conducted its own
investigation of the March 2009 accident, and its findings
are likely not entirely covered by the medical records.
Therefore, the Court finds that the Mercury March 2009
accident file is relevant.
and Mercury also assert that the subpoena is overly broad.
The purpose of discovery is not to give parties the
opportunity to go on “fishing expeditions” to
support their arguments. See United States v. 2121
Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572,
582-83 (D.N.M. 2015). Here, defendant seeks a discrete file
from Mercury, and requests for the production of discrete
documents are not overly broad on their face. See Stewart
v. Mitchell Transport, No. 01-2546-JWL, 2002 WL 1558210,
at *4 (D. Kan. July 11, 2002) (finding that a subpoena was
not overly broad to the extent it requested the production of
discrete documents such as an employee's personnel file).
Neither plaintiff nor Mercury has provided any reason to
believe the subpoena is more broad than it appears on its
face. Thus, the Court finds that the subpoena is not overly
plaintiff and Mercury argue that the subpoena should be
quashed because the file is privileged. Mercury asserts that
it is protected under attorney-client privilege and the work
product privilege. The party asserting privilege bears the
burden of establishing its existence. Williams v.
Sprint/United Mgmt. Co., 245 F.R.D. 660, 667 (D. Kan.
2007). As Mercury has failed to provide any support for its
assertions of attorney-client and work product privileges, it
has failed to carry its burden. Additionally, plaintiff and
Mercury argue that the file is privileged because it contains
a settlement agreement that is subject to a confidentiality
agreement. “[C]onfidentiality does not equate to
privilege, ” and “the mere fact that the settling
parties agree to maintain the confidentiality of their
agreement does not serve to shield the agreement from
discovery.” DIRECTV, Inc. v. Puccinelli, 224
F.R.D. 667, 685 (D. Kan. 2004); see also Tanner v.
Johnston, No. 2:11-cv-00028-TS-DBP, 2013 WL 121158, at
*1-2 (D. Utah Jan. 8, 2013) (noting that federal district
courts in the Tenth Circuit have generally found that
“settlement agreements are not shielded from discovery
merely because they are confidential”). If Mercury
claims that any of the documents in its file are protected by
attorney-client and/or work product privileges, it should
comply with Rule 26(b)(5).
IS THEREFORE ORDERED that plaintiff Joey
Shutrump's motion to quash (Dkt. # 29) and non-party
American Mercury Insurance ...