Opinion
Civil No. AMD 05-901.
May 2, 2005
ORDER
Alan B. Fabian ("Fabian") has moved pursuant to Fed.R.Civ.P. 45(c) to quash the subpoena served on him by Maximus, Inc. ("Maximus"), commanding him to produce documents and to appear for a deposition, in connection with damages litigation pending in the United States District Court for the Northern District of Georgia ("the Georgia litigation"). Fabian seeks, alternatively, a protective order limiting the deposition to seven hours and precluding any further depositions of him in the Georgia litigation or any related proceedings.
The challenged Rule 45 subpoena seeks third party discovery from Fabian in an action, Fleet Business Credit, LLC v. Solarcom, LLC, et al., Case No. 1:04-CV-2455-BBM, in which Maximus, Fabian's former employer, has been sued for substantial damages on the basis of Fabian's alleged conduct while he was an employee of Maximus. In particular, Fabian allegedly purported to guarantee certain personal property leases on behalf of Maximus without Maximus's knowledge or consent. When payments under the leases went into default, the payees sued Maximus on the guaranty. According to Maximus, Fabian is the central witness in the Georgia litigation, and his testimony is critical. A second case pending in the United States District Court for the Eastern District of Pennsylvania raises similar issues. De Lage Landen Financial Services, Inc. v. Solarcom, LLC, et al., Case No. 1:04-CV-3712-PD.
Fabian objects to production of most or all of the requested documents. He asserts that the documents have already been produced to Maximus in connection with discovery taken by a co-defendant in the Georgia litigation. Also, Fabian is a defendant in a Maryland state court breach of contract case instituted by Maximus. That case has been stayed pending arbitration. Thus, Fabian contends that Maximus's attempt to obtain documents relevant to the issues in the state court litigation constitutes an "end run" around the stay of that action.
Fabian also objects to the deposition, asserting that requiring him to submit to a deposition is unduly burdensome because he has already been deposed (including the meeting of creditors) for a total of ten hours in a bankruptcy proceeding pending in this district, In re Strategic Partners Int'l, Inc., No. 04-30227-SD (Bankr. D.Md.). Maximus was represented during the bankruptcy depositions and participated in them to a greater or lesser extent.
After a careful consideration of the parties' memoranda and the applicable law, I find that Fabian has not met his burden of showing that the challenged subpoena is unduly burdensome and therefore the motion to quash shall be denied. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984) ("The burden of proving that a subpoena is oppressive is on the party moving to quash."); Flatow v. Islamic Republic of Iran, 201 F.R.D. 5, 8 (D.D.C. 2001) ("When the burdensomeness of a subpoena is at issue, the onus is on the party alleging the burden to prove that the subpoena violates Rule 45."). Contrary to Fabian's assertions, the depositions conducted in the bankruptcy proceeding do not equate to a "first deposition" in connection with the matters at issue in the Georgia litigation. Thus, the instant deposition subpoena would not result in "multiple depositions" of the same witness in connection with the same proceeding. Furthermore, based on my review of the transcript excerpts, I agree with Maximus that its counsel was limited in some respects by Fabian's counsel in the course of the bankruptcy depositions. Therefore, Maximus was not provided with an opportunity to depose Fabian regarding all of the relevant facts and circumstances surrounding his involvement with the lease agreements at the center of the Georgia litigation.
All that said, it is nevertheless clear, with two interrelated actions pending in two different federal district courts, the potential for overreaching, to Fabian's prejudice, is manifest. Accordingly, some exercise of this court's authority to superintend discovery in this district is warranted. I am told that the parties in the Georgia and Pennsylvania cases are cooperatively coordinating discovery; counsel are commended for their efforts in forging this agreement. Under the circumstances, see Fed.R.Civ.P. 26(c), it is hereby directed that Fabian shall be subject to a single deposition in both actions, for a period not to exceed nine hours (excluding time for breaks or unanticipated interruptions) over not more than two days. The allotted time shall be apportioned as agreed by the parties or, absent agreement, as further ordered by this court on application by any party.
Fabian's objection to the production of documents is also overruled. Maximus has agreed that Fabian need not produce any document that has already been produced. Furthermore, Maximus has narrowed the scope of its requests. That one or more documents called for here might also be relevant to the issues in the (stayed) state court litigation between Maximus and Fabian is not a sufficient basis for non-production of such documents in the federal litigation. Under the circumstances here, in which Fabian has himself sought the intervention of this court in connection with this discovery dispute, Maximus is not required to file a motion to compel.
For the reasons stated above, the motion to quash subpoena or in the alternative for a protective order is GRANTED IN PART AND DENIED IN PART.
SO ORDERED.