United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI Chief United States District Judge.
the Court is Plaintiff's Motion to Preclude Service of
Subpoena Duces Tecum, Motion to Quash Subpoena Duces Tecum,
Motion for Protective Order, and Motion for Alternative
Subpoena [Doc. No. 24]. Defendant has responded in
opposition. The matter is fully briefed and at issue.
case arises out of a motor vehicle accident on February 7,
2017, on Interstate 35, north of the Lindsey Street exit in
Norman, Oklahoma. Plaintiff alleges that Defendant's
employee/driver was driving commercial truck northbound on
Interstate 35 and “negligently and recklessly changed
lanes and collided with Plaintiff's vehicle.” [Doc.
No. 1-2 ¶ 3]. According to Plaintiff, Defendant's
driver left the scene of the accident without exchanging
information with Plaintiff, without checking on Plaintiff,
and without rendering aid to Plaintiff. Plaintiff intends to
call Robert Abraham as a witness at trial. Mr. Abraham
reportedly was an eyewitness to the accident. Mr. Abraham was
deposed by Defendant's counsel. Following the deposition,
Defendant noticed its intent to subpoena records from Pro Box
Portable Storage (“Pro Box”), Mr. Abraham's
former employer. Defendant asserts that Mr. Abraham was a
driver for Pro Box at the time of the accident. Defendant
clarifies in its response [Doc. No. 29 at 2-3] what records
it intends to request from Pro Box:
1. Abraham's driver qualification file, excluding any
protected health information;
2. Abraham's driver's logs from February 1, 2017
through February 8, 2017;
3. Abraham's time sheets from February 1, 2017 through
February 8, 2017;
4. Abraham's trip-related documents from February 7,
5. Any disciplinary or termination notices related to
Abraham's driving performance, driving record, or acts of
asserts that the production request is overly broad and seeks
irrelevant, abusive, harassing, and personal materials
concerning Mr. Abraham, a non-party. Plaintiff asks the Court
to either preclude service of the subpoena, quash the
subpoena, enter a protective order, or enter an alternative
limited subpoena duces tecum. Defendant presents several
arguments - the first of which is that Plaintiff does not
have standing to challenge Defendant's subpoena. Because
this issue is dispositive, the Court will resolve it first.
to Fed.R.Civ.P. 45(d)(3)(A), an issuing court, upon timely
motion, must quash or modify a subpoena that falls into
certain categories specified in the Rule, including a
subpoena that “requires disclosure of privileged or
other protected matter, if no exception or waiver
applies” or a subpoena that “subjects a person to
undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iii) and (iv).
Decisions applying Rule 45(d)(3)(A) require a court to
consider the movant's standing. The general rule is that
only the person to whom the subpoena is directed has standing
to object to its issuance. See, e.g., Public Service Co.
of Okla. v. A Plus, Inc., No. CIV-10-651-D, 2011 WL
691204, at *2 (W.D. Okla. Feb. 16, 2011); Scallion v.
Richardson, No. CIV-17-992-G, 2018 WL 6037536, at *2
(W.D. Okla. Nov. 16, 2018). An exception to that rule occurs
where the challenging party asserts a personal right or
privilege with respect to the materials subpoenaed.
Id; see also Shirazi v. Childtime Learning
Center, Inc., No. CIV-07-1289-C, 2008 WL 4792694, at *1
(W.D. Okla. Oct. 31, 2008).
satisfy the standing requirement, the movant must
specifically identify the personal right or privilege on
which she relies. A Plus, Inc., 2011 WL 691204, at
*3; Windsor v. Martindale, 175 F.R.D. 665, 668 (D.
Colo. 1997). Plaintiff does not address standing in her
motion to the Court and has not filed a reply to
Defendant's response, which raised the issue of standing.
The time to file a reply brief has long passed. Although Mr.
Abraham or Pro Box would have standing to object to the
issuance of the subpoena, Plaintiff has no personal right to
Mr. Abraham's employment records and Plaintiff's
right of privacy is not implicated in any way by the
disclosure of Mr. Abraham's ...