United States District Court, W.D. Oklahoma
DEBORAH KIZER, Individually and as Mother and Next Friend of R.J.K., a Minor, Plaintiffs,
STARR INDEMNITY & LIABILITY CO., NORTH AMERICAN TRANSPORT SERVICES, LLC, and DANIEL PALMA, Defendants.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
the Court is Defendants North American Transport Services,
LLC, (“NATS”) and Daniel Palma's
(“Palma”) Amended Objection and Motion to Quash
the Subpoenas to T-Mobile Subpoena Compliance Department
(“T-Mobile”) [Doc. No. 25]. Plaintiffs have filed
a response in opposition [Doc. No. 34]. The matter is fully
briefed and at issue.
case arises out of a motor vehicle accident involving
Plaintiffs' Nissan Pathfinder and Palma's
tractor-trailer which occurred on May 16, 2018 at
approximately 1:15 p.m. Plaintiffs brought this action
alleging various claims for negligence related to: (1)
Palma's operation of the tractor-trailer while in the
course and scope of his employment with NATS; (2) both
Defendants' maintenance of the tractor-trailer; (3)
NATS' hiring of Palma; and, (4) NATS' negligent
entrustment of the tractor-trailer to Palma. During the
course of discovery both have parties sought cell phone
records from the other. Plaintiffs objected to the production
of Plaintiff Deborah Kizer's cell phone records for the
thirteen (13) hours preceding and eleven and one half (11.5)
hours after the accident as overbroad and irrelevant.
Plaintiffs' Responses to Requests for Production at 8.
Plaintiffs eventually agreed to produce records for the five
hours preceding and forty (40) minutes after the accident.
Response at 12-13.
respect to their contention that Palma was negligent in his
operation of the tractor-trailer at the time of the accident,
Plaintiffs issued a subpoena duces tecum to T-Mobile for all
of Palma's cell phone records for the three days prior to
and one day after the accident, specifically from 12:00 a.m.
om May 14, 2018, through 12:00 p.m. on May 17, 2018. The
records sought by the subpoena include, but are not limited
to, “all call registers, (incoming and outgoing), text
message logs (incoming and outgoing), call details [sic]
records (CDR), multimedia logs, and all other electronic data
usage.” Subpoena Duces Tecum [Doc. No. 25-1] at 2. Both
parties agree that the records sought also include
application usage. Motion at 4, 5; Response at 13, 14.
parties conferred pursuant to LCvR 37.1 in an attempt to
resolve Defendants' objections to the temporal scope of
the request for Palma's cell phone records. Motion at 2.
As a result of that conference Defendants agreed to
production of cell phone records limited to thirty (30)
minutes before the accident. Id. However, Plaintiffs
declined that limitation and refused to withdraw or limit the
time frame of the Subpoena. Id.; Email from
Plaintiff's Counsel, December 24, 2018, [Doc. No. 25-2]
assert that the full scope of the information sought by the
subpoena is relevant to determine whether Palma: (1) took
sufficient rest stops; (2) was fatigued at the time of the
accident; (3) was using his cell phone at the time of the
accident; (4) had a habit of using his cell phone during
mandated periods of rest; and, (5) communicated with NATS
regarding maintenance issues. Response at 1, 6-7. Plaintiffs
also contend the requested records will indicate Palma's
work schedule and periods of rest for the days preceding the
accident and the NATS personnel with whom Palma communicated
after the collision. Id. at 7.
move to quash the subpoena on the basis that it is overly
broad and violates Palma's reasonable expectation of
privacy. Defendants request that any production of
Palma's cell phone records “be limited to a
relevant time frame and should not contain any information
other than his text and call history.” Motion at 5.
Plaintiffs respond that: (1) NATS lacks standing to challenge
the subpoena; (2) the subpoena is not overbroad; and (3)
Palma does not have a legitimate expectation of privacy in
his cell phone records.
subpoena served on a third party is considered discovery
within the meaning of the Federal Rules of Civil Procedure
pursuant to Rule 45. Rice v. United States, 164
F.R.D. 556, 556-57 (N.D. Okla. 1995). Accordingly,
considerations of both relevance and proportionality govern
the subpoenas at issue. “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.” Fed.R.Civ.P.
45(d)(1). The Court is authorized under Rule 45(d)(3) to
quash a subpoena under specified circumstances, including
when the subpoena requires disclosure of privileged or
protected materials (when an exception or waiver does not
apply), or when the subpoena subjects a person to undue
burden. Fed.R.Civ.P. 45(d)(3)(A)(iii) and (iv).
Rule 26(b)(1) sets forth the scope of discovery and provides:
Parties 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, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ.P. 26(b)(1). Under this standard,
“relevance” has been broadly defined to include
“any matter that bears on, or that reasonably could
lead to other matter[s] that could bear on, any issue that is
or may be in the case.” United States v.
Childs, No. CR-09-146-D, 2018 WL 775018, at *3 (W.D.
Okla. Feb. 7, 2018) (citations omitted). The Advisory
Committee Notes for the 2000 Amendments to Rule 26 direct the
parties and courts to “focus on the actual claims and
defenses involved in the action” in determining
relevance for purposes of discovery. See Fed. R.
Civ. P. 26, Advisory Committee Notes, 2000 Amendments,
Subdivision (b)(1). As such, the Court “has the
authority to confine discovery to the claims and defenses
asserted in the pleadings, and signals to the parties that
they have no entitlement to discovery to develop new claims
or defenses.” Id.
moving party bears the burden of establishing grounds for
quashing the subpoena, with the party seeking to quash a
subpoena carrying a particularly heavy
burden as opposed to one seeking only limited protection.
In re Coordinated Pretrial Proceedingsin
Petroleum Prod. Antitrust Litig., 669 F.2d 620, 623
(10th Cir. 1982). The objecting party must submit “a
particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory