Opinion
CASE NO.: 1:19-CV-21 (LAG)
2022-03-30
Nelson GAMACHE, et al., individually and on behalf of a class of all others similarly situated, Plaintiffs, v. John F. HOGUE, Jr., et al., Defendants.
Colin M. Downes, R. Joseph Barton, Washington, DC, Daniel Mark Feinberg, Nina R. Wasow, Feinberg Jackson Worthman & Wasow LLP, Berkeley, CA, William S. Stone, Atlanta, GA, for Plaintiffs. Joelle C. Sharman, Atlanta, GA, Robert E. Lesser, Covington, GA, for Defendants John F. Hogue, Jr., Graham Thompson, Technical Associates of Georgia Inc. Employee Stock Ownership Plan, John Does 1-20, Administrative Committee of the Technical Associates of Georgia, Inc. Employee Stock Ownership Plan. Joelle C. Sharman, Atlanta, GA, for Defendants James Urbach, Glenn Kirbo, Randy Hall.
Colin M. Downes, R. Joseph Barton, Washington, DC, Daniel Mark Feinberg, Nina R. Wasow, Feinberg Jackson Worthman & Wasow LLP, Berkeley, CA, William S. Stone, Atlanta, GA, for Plaintiffs.
Joelle C. Sharman, Atlanta, GA, Robert E. Lesser, Covington, GA, for Defendants John F. Hogue, Jr., Graham Thompson, Technical Associates of Georgia Inc. Employee Stock Ownership Plan, John Does 1-20, Administrative Committee of the Technical Associates of Georgia, Inc. Employee Stock Ownership Plan.
Joelle C. Sharman, Atlanta, GA, for Defendants James Urbach, Glenn Kirbo, Randy Hall.
ORDER
LESLIE A. GARDNER, JUDGE
Before the Court is Non-Party James H. Moore, III's Motion to Quash Plaintiffs' Subpoena (Doc. 120). For the reasons stated below, the Motion is DENIED .
BACKGROUND
Plaintiffs filed this class action under the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1001 et seq. against Defendants John F. Hogue, Jr., Graham Thompson, James Urbach, Glenn Kirbo, Randy Hall, and the Administrative Committee of the Technical Associates of Georgia, Inc. Employee Stock Ownership Plan. (Doc. 1). Plaintiffs amended their Complaint on April 19, 2019. (Doc. 30). Plaintiffs, former employees of Technical Associates of Georgia, Inc. (TAG) and participants in the TAG Employee Stock Ownership Program (ESOP), allege that Defendants engaged in prohibited transactions and breached fiduciary duties in violation of 29 U.S.C. §§ 1104(a)(1), 1105, 1106(a)(1)(D), and 1106(b). (Id. at 26–33).
On August 31, 2021, "Plaintiffs issued a Subpoena to Testify at a Deposition in a Civil Action (the ‘Subpoena’)" to nonparty James H. Moore, III. (Doc. 120 at 1; see also Doc. 120-1). Moore, is an attorney and the managing partner of Moore, Clark, DuVall & Rodgers, P.C. (MCDR) who "regularly provides legal services to [TAG] in transactional and litigation matters most often relating to engineering services agreements and employment agreements." (Doc. 120 at 1; see also Doc. 120-2 ¶ 1). "In 2011, Moore served as legal counsel to TAG and its corporate subsidiaries ... in a loan transaction whereby TAG obtained an extension of credit of approximately $11,000,000.00." (Doc. 120 at 2; Doc. 120-2 ¶ 2). Moore contends that the legal services he provided were not rendered to the ESOP, the Employee Stock Ownership Trust (ESOT), any trustee for either the ESOP or ESOT, TAG in its role as administrator, or other fiduciaries of the ESOP. (Doc. 120 at 2; Doc. 120-2 ¶ 3). Moore also asserts that he acted as legal counsel for Defendants Hogue and Thompson "solely as their roles as individual guarantors of the obligations of TAG and subsidiaries to the Bank under the 2011 Loan." (Doc. 120 at 3; Doc. 120-2 ¶ 5). In May and April 2018, Plaintiff Nelson Gamache emailed the TAG Board of Directors (the Board) to inquire about the ESOP's assets and ownership interests. (Doc. 120 at 4; Doc. 120-2 ¶ 7; Doc. 126 at 2; see also Doc. 111-2). Gamache advised that his questions were "addressed to the Board in its capacity as a fiduciary of the ESOP" and that he "want[ed] to receive a response from or on behalf of a fiduciary in that capacity." (Doc. 111-2 at 3). On May 9, 2018, Moore indicated that TAG and the Board asked him to "act as their spokesperson for addressing ESOP-related questions." (Id. at 6). On May 23, 2018, Moore responded to Gamache's inquires via a letter. (Doc. 51-17). Moore asserts that any correspondence related to Gamache's inquires was not issued "as part of his representation of TAG or any other person in the 2011 transaction." (Doc. 120 at 4; Doc. 120-2 ¶ 7).
On September 16, 2021, Moore filed the instant Motion to Quash. (Doc. 120). On October 7, 2021, Plaintiffs filed their Response. (Doc. 126). After an extension, Moore filed his Reply on November 4, 2021. (See Docs. 127, 131). Moore's Motion is now ripe for review. See M.D. Ga. L.R. 7.3.1(A).
LEGAL STANDARD
" Federal Rule of Civil Procedure 45 ‘permits a party to procure discovery from a non-party through the issuance and service of a subpoena.’ " KMC Acquisition Corp. v. Escoe Indus. Mech., Inc. , No. 3:15-CV-119 (CAR), 2017 WL 354852, at *2 (M.D. Ga. Jan. 24, 2017) (citation omitted). "A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45." Fed. R. Civ. P. 30(a)(1).
The general rules of discovery outlined in Rule 26 govern the scope of a Rule 45 subpoena. "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 ...." Fed. R. Civ. P. 26(b)(1). Courts must employ a liberal discovery standard in keeping with the spirit and purpose of the discovery rules. See Akridge v. Alfa Mut. Ins. , 1 F.4th 1271, 1276–77 (11th Cir. 2021). Rule 26 also states that "[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1) ; see also Fed. R. Evid. 401. This requires that discovery be provided if the information has some bearing on the claims or defenses in the case. See Akridge , 1 F.4th at 1276 (quoting Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) ); Dunkin Donuts, Inc. v. Mary's Donuts, Inc. , No. 01-0392-CIV-GOLD, 2001 WL 34079319, at *2 (S.D. Fla. Nov. 1, 2001).
Under Rule 45, "[o]n timely motion" courts
must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in rule 45(c) ; (iii) requires disclosure of privileged or other protected matter, if no exception applies; or (iv) subjects a person to undue burden.
DISCUSSION
Moore argues that Plaintiffs' subpoena should be quashed because: (1) depositions of attorneys are discouraged, (2) his testimony regarding his communications is protected by attorney-client privilege and not subject to ERISA's fiduciary exception, and (3) the subpoena imposes an undue burden under Rule 45(d)(3)(iv). (See generally Doc. 120). Plaintiffs refute each of these arguments. (See generally Doc. 126). I. Attorney Depositions
Moore first argues that "[w]hile the Federal Rules of Civil Procedure do not directly prohibit the taking of attorney depositions, the practice is nonetheless discouraged." (Doc. 120 at 5 (citing In re Insogna , No. 3:19-cv-1589-LAB-AHG, 2020 WL 85487, at *9 (S.D. Cal. Jan. 3, 2020) ). Plaintiffs argue that the cases and standard upon which Moore relies have not been adopted in the Eleventh Circuit and are distinguishable because Moore is not trial or litigation counsel. (Doc. 126 at 5). Plaintiffs also argue that Moore's deposition is necessary and appropriate because it will lead to evidence relevant to Defendants' statute of limitations defense. (Id. at 5–6).
The cases cited by Moore rely on the Shelton test established by the Eighth Circuit in Shelton v. American Motors Corp. , 805 F.2d 1323 (8th Cir. 1986). (See Doc. 120 at 5–6). "Under the Shelton test, the moving party must show that ‘(1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and non-privileged, and (3) the information is crucial to the preparation of the case.’ " Axiom Worldwide , 2013 WL 230241, at *3 (quoting Shelton , 805 F.2d at 1327 ). "Courts have declined to apply Shelton when the proposed deponent is not trial or litigation counsel in the underlying case." In re Insogna , 2020 WL 85487, at *3 (citing Pamida, Inc. v. E.S. Originals, Inc. , 281 F.3d 726, 730–31 (8th Cir. 2002) (other citations omitted)). Moore is not trial or litigation counsel. Thus, to the extent that the Shelton test has been adopted by district courts in the Eleventh Circuit, it does not apply here.
"The Federal Rules of Civil Procedure do not prevent the deposition of another party's lawyer, so long as the deposition seeks relevant, non-privileged information." Gaddy v. Terex Corp. , No. 1:14-cv-1928-WSD, 2015 WL 13545486, at *2 (N.D. Ga. Oct. 28, 2015) (citing Fed. R. Civ. P. 26(b)(3), 30(a) ). Depositions of attorneys "call[ ] for special scrutiny because ‘experience teaches that countenancing unbridled depositions of attorneys constitutes an invitation to delay, disruption of the case, harassment, and perhaps disqualification of the attorney.’ " Id. (quoting N.F.A. Corp. v. Riverview Narrow Fabrics, Inc. , 117 F.R.D. 83, 85 (M.D.N.C. 1987) ). "On the other hand, a ‘protective order which prohibits a deposition is rarely given.’ " Id. (quoting Axiom Worldwide Inc. v. HTRD Grp. Hong Kong Ltd. , No. 8:11-cv-1468-T-33TBM, 2013 WL 230241, at *2 (M.D. Fla. Jan. 22, 2013) ). "A lawyer's profession is not a talisman of privilege, automatically granting attorneys immunity from discovery under the federal rules." Bank of Am., N.A. v. Ga. Farm Bureau Mut. Ins. Co. , No. 3:12-CV-155 (CAR), 2014 WL 4851853, at *2 (M.D. Ga. Sept. 29, 2014). "The Eleventh Circuit has not adopted a specific rule establishing when the deposition of a[n attorney] is appropriate." Gaddy , 2015 WL 13545486, at *2. In the absence of a specific rule, courts in the Middle District of Georgia "focus [their] analys[e]s on weighing and balancing [the moving party's] need for the information sought with [the subpoenaed party's] interests in its attorney-client relationship." Bank of Am. , 2014 WL 4851853, at *3. "Where an attorney is a fact witness, his or her deposition may be both necessary and appropriate." Gaddy , 2015 WL 13545486, at *3 (quotation marks and citation omitted). "An attorney's deposition may be necessary and appropriate where the attorney is the person with the best information concerning non-privileged matters relevant to a lawsuit." Id. (citation omitted).
In weighing Plaintiffs' need for complete discovery and Moore and Defendants' interest in their attorney-client relationship, "the Court also takes into account that [Moore is] not litigation counsel ... thus the considerations weighing against attorney depositions are mitigated." Id. at *4 (citations omitted); see also Bledsoe v. Remington Arms Co. , No. 1:09-CV-69 (WLS), 2010 WL 147052, at *2 (M.D. Ga. Jan. 11, 2010) (declining to apply the Shelton factors and permitting the deposition of an attorney who was both the defendant's in-house counsel and vice president). As discussed below, the testimony Plaintiffs seek has not been made available from other sources, is relevant to Defendants' statute of limitations defense, and relates to "non-privileged factual matters separate and apart from [Defendants'] litigation strategy in this case." Gaddy , 2015 WL 13545486, at *4 (citation omitted). Thus, Moore's status as an attorney does not preclude Plaintiffs from deposing him on the subjects discussed below.
II. Attorney-Client Privilege
Moore next argues that "any deposition ... regarding the 2011 Loan or 2018 correspondence with Gamache, which are the likely topics of deposition ..., will almost certainly result into inquiry in privileged matters." (Doc. 120 at 6). Plaintiffs contend that some of Moore's communications are not privileged, and others are subject to the fiduciary exception. (See Doc. 126 at 6–9).
"Privileges available in federal cases that contain no state law claims, are governed by Rule 501 of the Federal Rules of Evidence. It provides that privileges are governed by principles of the common law as interpreted by the federal courts." Akridge v. City of Moultrie , No. 6:04-CV-31 (HL), 2005 WL 8166033, at *1 (M.D. Ga. Nov. 1, 2005) ; see also In re Grand Jury Proc. 88-9 (MIA), 899 F.2d 1039, 1044 (11th Cir. 1990) ("[Q]uestions of attorney-client privilege in this circuit are governed by federal common law."). "The privilege protects ‘confidential communications between a lawyer and his client in matters that relate to the legal interests of society and the client.’ " Akridge , 2005 WL 8166033, at *1 (quoting In re Grand Jury Investigation , 723 F.2d 447, 451 (6th Cir. 1983) ).
The Eleventh Circuit elaborated on this premise and articulated an extensive set of elements that must be proven to claim the attorney-client privilege at the federal level:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [the] member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, Inc. , No. 504-cv-394 HL, 2007 WL 1964062, at *3–4 (M.D. Ga. June 29, 2007) (alteration in original) (quoting In re Grand Jury Proc. , 899 F.2d at 1042 ).
A. Nonprivileged Communications
Moore argues that he was acting as counsel for TAG and the Board in response to Gamache's inquiries and not as a "non-attorney mouthpiece for Plan fiduciaries." (Doc. 131 at 2; see also Doc. 120 at 4). Plaintiffs contend that Moore's communications with Gamache "as a ‘spokesperson’ for TA, the Board, and/or the ESOP Trustees" were not privileged because Moore was acting in a non-legal capacity. (Doc. 126 at 6). Plaintiffs also assert that Moore's "communications on behalf of Hogue and Thompson with counterparties to the 2011 transaction are not privileged" because the privilege was waived due to the presence of the third-party. (Doc. 126 at 7).
1. Spokesperson Communications
Attorneys "do not always act in a legal capacity." Gaddy , 2015 WL 13545486, at *3. "When an attorney serves a client in a way that is not legal in nature, the attorney-client privilege does not protect their communications." Id. (first citing United States v. Davis , 636 F.2d 1028, 1044 (5th Cir. 1981) ; and then citing In re Lindsey , 148 F.3d 1100, 1106 (D.C. Cir. 1998) ). Privilege likewise does not attach when counsel "provides non-legal, business advice." Bledsoe , 2010 WL 147052, at *2 (first citing NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 135, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ; and then citing Shelton , 805 F.2d at 1327 (8th Cir. 1986) ). "A communication made for a purpose other than to seek or give legal advice is not privileged, and the mere fact that a lawyer is used to make the non-legal communication does not make it privileged." In re Blue Shield Antitrust Litig. (MDL No. 2406) , No. 2:13-CV-20000-RDP, 2015 WL 10891632, at *4 (N.D. Ala. Nov. 4, 2015).
Contrary to Plaintiffs' argument, Moore's function as a spokesperson does not—by itself—transform his advice regarding Gamache's inquiries into a non-legal advice. "Calling the lawyer's advice ‘legal’ or ‘business’ advice does not help in reaching a conclusion; it is the conclusion.... What matters is whether the lawyer was employed with or without ‘reference to his knowledge and discretion in the law,’ to give the advice." United States v. Chen , 99 F.3d 1495, 1502 (9th Cir. 1996) (citation omitted). Moore states that "acting as counsel for TAG, and its Board of Directors, [he] issued correspondence to Gamache in factual response to his inquiries." (Doc. 120 at 4; Doc. 120-2 ¶ 7). Moore further explains that "[i]n connection with [his] preparation of correspondence with Mr. Gamache in 2018, [he] engaged in confidential communications with TAG officers and directors regarding the contents and issuance of the correspondence." (Doc. 120-2 ¶ 7). The correspondence Moore prepared and sent Gamache involved responses to questions that underly the current litigation. Thus, based on Moore's affidavit and the content of the letters, Moore was acting in a legal capacity in his communications with TAG and the Board in preparing the correspondence. Cf. United States v. Sabbeth , 34 F. Supp. 2d 144, 154 (E.D.N.Y. 1999) (finding that an attorney spokesman's communications were not protected by attorney-client privilege when the attorney "understood that his comments ... would be relayed virtually verbatim to [an outside paty]"). As such, Moore's communications would be protected by attorney-client privilege. But, as discussed below, these communications are discoverable under the fiduciary exception.
2. Communications on Behalf of Hogue and Thompson with Counterparties
"Typically, the attorney-client privilege is ‘readily waived by disclosure to a third party.’ " City of Rome v. Hotels.com, L.P. , No. 4:05-CV-249-HLM, 2012 WL 13024577, at *3 (N.D. Ga. Feb. 3, 2012) (citation omitted); see also In re Photochromic Lens Antitrust Litig. , No. 8:10-MD-2173-T-27EAJ, 2014 WL 12617458, at *3 (M.D. Fla. Jan. 3, 2014) (citing United States v. Blackburn , 446 F.2d 1089, 1091 (5th Cir. 1971) ). "[W]aiver can be prevented under the common interest doctrine ...." Aspen Am. Ins. v. Tasal, LLC , No. 6:20-cv-875-Orl-40-DCI, 2020 WL 10140952, at *9 (M.D. Fla. Dec. 23, 2020) (citation omitted). The common interest doctrine applies "when the parties have a shared interest in actual or potential litigation against a common adversary, and the nature of the common interest is legal, and not solely commercial." Id. (citation omitted).
Moore's communications on behalf of Defendants Hogue and Thompson with counterparties to the 2011 transaction waived any privilege and the common interest exception does not apply. Nor does Moore raise this exception. (See generally Docs. 120, 131). Accordingly, Moore can testify about any interactions he had with third parties on behalf of Hogue and Thompson in negotiating the terms of their compensation surrounding the 2011 transaction.
B. Fiduciary Exception
Moore argues that the fiduciary exception has not been recognized by any binding authority on the Court and even if the Court were to recognize it, would not apply to his communications because: (1) he did not represent the ESOP and (2) his representation of Hogue, Thompson, the Board, and TAG was limited to non-fiduciary matters. (See Doc. 120 at 7; Doc. 130 at 3). Plaintiffs argue that the fiduciary exception has been adopted by several courts and is federal common law. (Doc. 126 at 8 n.4 (citations omitted)). Plaintiffs further argue that the fiduciary exception applies here because "Moore provided legal advice that concerns [the] administration of the ESOP," including: (1) "[o]btaining a loan for the ESOP ... by Mssrs. Hogue and Thompson, and by TA itself," (2) giving "advice to the TA Board of Directors regarding its fiduciary obligations in communicating with an ESOP participant (Plaintiff Gamache)," and (3) communicating with Gamache "on behalf of the Board." (Id. at 8).
The Parties agree that the Eleventh Circuit has not directly addressed the fiduciary exception in the context of ERISA. (See Doc. 130 at 3; Doc. 126 at 8 n.4). But several district courts in the Eleventh Circuit have "recognized the exception's existence under federal common law." Johnston v. Aetna Life Ins. , 282 F. Supp. 3d 1303, 1315 (S.D. Fla. 2017) (applying the fiduciary exception to ERISA fiduciaries); see also Hooper v. UNUM Life Ins. Co. of Am. , No. 5:11-CV-624-OC-10TBS, 2012 WL 1415585, at *2 (M.D. Fla. Apr. 24, 2012) ; Harvey v. Standard Ins. , 275 F.R.D. 629, 632–34 (N.D. Ala. 2011). Moore "provides no legal or factual explanation of why this Court should not apply this doctrine, however. Indeed, application of this doctrine to ERISA actions finds significant support in federal case law." Moore v. Metro. Life Ins. , 799 F. Supp. 2d 1290, 1293 n.3 (M.D. Ala. 2011) (quoting Maltby v. Absolut Spirits Co. , No. 08-80628-CIV, 2009 WL 800142, at *2 (S.D. Fla. Mar. 25, 2009) ).
"Under the common law fiduciary exception, the attorney-client privilege does not apply with respect to communications made to certain fiduciaries who obtain legal advice in the execution of their fiduciary obligations." Id. at 1293 (footnote omitted). "[A] fiduciary of an ERISA plan ‘must make available to the beneficiary, upon request, any communications with an attorney that are intended to assist in the administration of the plan.’ " Id. (quoting In re Long Island Lighting Co. , 129 F.3d 268, 272 (2d Cir. 1997) ). Courts, however, "have determined that the fiduciary exception does not defeat attorney-client privilege with respect to communications between an ERISA fiduciary and its attorney on non -fiduciary matters, such as litigation defense or other private interests." Harvey , 275 F.R.D. at 633 (citation omitted).
To determine whether a particular attorney-client communication concerns a matter of plan administration as opposed to legal advice for the fiduciary's own benefit, "courts engage in a fact-specific inquiry, examining both the content and context of the specific communication.
Frequently, the key question is whether the communication was made before or after the final decision to deny benefits."
Id. (citation omitted); see also United States v. Mett , 178 F.3d 1058, 1063 (9th Cir. 1999) (noting that "the fiduciary exception has its limits ... [and that] an ERISA trustee is not completely debilitated from enjoying a confidential attorney-client relationship"). An additional question courts must answer is "not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary's interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint." Pegram v. Herdrich , 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). In short, "communications between an[ ] attorney and an ERISA plan administrator that solely concern ERISA plan administration are an exception to the general shield of attorney-client privilege." Harvey , 275 F.R.D. at 634.
1. Loan Communications
Plaintiffs first seek to depose Moore about his communications in connection with the 2011 Loan. (See Doc. 126 at 8). These communications are subject to the fiduciary exceptions for two reasons. First, these communications were made before initiation of this action. Second, obtaining a loan on behalf of the ESOP was a fiduciary act by Defendants Thompson, Hogue, and TAG. "[A] person is a fiduciary with respect to a plan to the extent ... he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management of disposition of its assets." 29 U.S.C. § 1002(21)(A) ; see, e.g., Donovan v. Mercer , 747 F.2d 304, 306–07 (5th Cir. 1984) (holding that a person was a fiduciary when she acted on behalf of a plan "in connection with a number of loans and extensions of credit made by the Plan"); Spear v. Fenkell , No. 13-2391, 2016 WL 5661720, at *16 (E.D. Pa. Sept. 30, 2016) (finding that a defendant was "a fiduciary who caused the plan to engage the ESOP Loan Transaction, which used plan assets"), clarified on denial of reconsideration , 2016 WL 7475814 (E.D. Pa. Dec. 29, 2016). While Moore's opinion letter in relation to the Loan expressly disavowed any opinion as to compliance with any law or regulation, that is not enough to remove his communications from the fiduciary exception. (See Doc. 120 at 2 (citing Doc. 120-2 at 2)). Defendants Hogue and Thompson had fiduciary roles in the 2011 Loan transaction and the Loan involved the Plan. Any advice Moore may have given to Defendants Hogue, Thompson, or TAG in connection with it falls under the fiduciary exception and is discoverable regardless of Moore's contention that his representation was limited to non-fiduciary matters.
2. Advice to the Board Regarding Fiduciary Obligations in Communications with Gamache
As discussed above, Plaintiffs also seek to depose Moore about his communications with the Board regarding its fiduciary obligations in communicating with Gamache's inquiries. (See Doc. 126 at 8). While these communications would normally be protected under attorney-client privilege, they too are subject to the fiduciary exception. Again, these communications occurred before the instigation of this action. And communication with ESOP participants about an employee benefit plan is a textbook ERISA fiduciary function. "Conveying information about the likely future of plan benefits ... would seem to be an exercise of power ‘appropriate’ to carrying out important plan purpose.... ERISA itself specifically requires administrators to give beneficiaries certain information about the plan." Varity Corp. v. Howe , 516 U.S. 489, 502, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (citations omitted). "And administrators, as part of their administrative responsibilities, frequently offer beneficiaries more than the minimum information that the statute requires ...." Id. at 502–503, 116 S.Ct. 1065 ; cf. Woods v. S. Co. , 396 F. Supp. 2d 1351 (N.D. Ga. 2005) (declining to dismiss a plaintiff's claim when it could "fairly be read as alleging that [the defendants] assumed a fiduciary role in directing certain communications (‘directly’) to Plan participants"). Moore's statement that "conveyance of factual information regarding TAG ownership to Gamache" was not related to Plan administration does not make it so. (See Doc. 120 at 7). Gamache made it clear that he was seeking information on behalf of the Board in their fiduciary capacity, and the content of the communication sought and conveyed was also made in the Boards fiduciary capacity. (See Doc. 111-2 at 3, 7, 9). Thus, any communications Moore made with the Board related to their obligations in responding to Gamache's inquiries are discoverable under the fiduciary exception. Additionally, as the Parties note, any facts conveyed to Gamache are not privileged in the first place. (See Doc. 120 at 6; Doc. 126 at 9); Meade v. Gen. Motors, LLC , 250 F. Supp. 3d 1387, 1392 (N.D. Ga. 2017) ("It is generally recognized that the communication of factual information is not protected by the attorney-client privilege.")
III. Undue Burden
Last, Moore argues that the Court should quash Plaintiffs' subpoena because it imposes an undue burden under Rule 45(d)(3). (See Doc. 120 at 7–9). Specifically, Moore argues that certain factors, such as his status as a nonparty and the burden of his testimony outweighing any benefit to Plaintiffs, "weighs against disclosure." (Id. ). Plaintiffs assert that Moore fails to "provide[ ] the specific information necessary to show that the deposition would be unduly burdensome" and that his deposition outweighs any burden imposed because "Plaintiffs have not received documents from Mr. Moore or his firm[, and a] deposition appears to be the only way to obtain [his] communications relevant to this case." (Doc. 126 at 9, 11).
Rule 45(d)(1) provides that "[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). To determine whether a subpoena imposes an undue burden, courts consider several factors, including the: (1) deponent's status as a party or nonparty, (2) "relevance of the information requested," and (3) burden imposed by enforcing the subpoena. See Hannah v. Armor Corr. Health Servs., Inc. , No. 8:19-cv-596-T-60SPF, 2020 WL 3414999, at *3 (M.D. Fla. June 22, 2020) (first citing Jordan v. Comm'r, Miss. Dep't of Corrs. , 947 F.3d 1322, 1337 (11th Cir. 2020), cert. denied sub nom. Jordan v. Ga. Dep't of Corr. , ––– U.S. ––––, 141 S. Ct. 251, 208 L.Ed.2d 25 (2020) (mem.); and then citing ML Healthcare Servs., LLC v. Publix Super Mkts., Inc. , 881 F.3d 1293, 1306–07 (11th Cir. 2018) ).
Some courts have included admissibility as a factor. See, e.g., Hannah , 2020 WL 3414999, at *3. The Eleventh Circuit has suggested in dicta that admissibility could be a ground to quash a subpoena. See ML Healthcare Servs. , 881 F.3d at 1306–07 ("Rule 45 does not set forth ‘inadmissibility’ as a ground for quashing a subpoena. The admissibility or relevance of a piece of evidence could be pertinent to an undue burden analysis ...." (emphasis added)). The Court declines to include admissibility as a factor because "[i]nformation within th[e] scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1). More recent cases from the Eleventh Circuit only discuss whether evidence is relevant. See Jordan , 947 F.3d at 1329 (analyzing whether evidence was relevant under Rule 45 ). Moreover, Moore does not raise the issue of admissibility in his undue burden argument. (See Doc. 126 at 7–9; see generally Doc. 131).
[A] party seeking to resist discovery on [proportionality] ground[s] ... bears the burden of making specific objection[s] and showing that discovery fails [the] proportionality calculation by coming forward with specific information to address, insofar as that information is available to it, [the:] importance of issues at stake in [the] action, amount in controversy, parties' relative access to relevant information, parties' resources, importance of discovery in resolving issues, and whether [the] burden or expense of the proposed discovery outweighs its likely benefit.
Herrera-Velazquez v. Plantation Sweets, Inc. , No. CV614-127, 2016 WL 183058, at *4 n.6 (S.D. Ga. Jan. 14, 2016) (citing Carr v. State Farm Mut. Auto. Ins. Co. , 312 F.R.D. 459, 463 (N.D. Tex. 2015) ).
Here, under the first factor, Moore's status as a nonparty weighs against the enforcement of the subpoena. See Robinson v. McNeese , No. 5:20-cv-00160-TES, 2021 WL 232672, at *2 (M.D. Ga. Jan. 22, 2021) (noting that "non-party status [in and of itself] is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue" (alteration in original) (citations omitted)). As to the second factor, Moore's activities as spokesman for the Board in response to Gamache's 2018 inquiries, his administration work on the ESOP, and the negotiations he conducted on behalf of Hogue and Thompson that involved third parties are relevant. This evidence is relevant to Defendants' statute of limitations defense because Moore's 2018 letter was, according to Plaintiffs, the "first written disclosure of the fact that Mr. Hogue and Mr. Thompson owned TA stock outside the ESOP." (Doc. 126 at 6 (citing Doc. 30 ¶¶ 3, 42, 69–71)). Thus, the second factor weighs in favor of enforcing the subpoena.
Last, under the third factor, the benefit of Moore's deposition to Plaintiffs outweighs any burden on him. Moore's argument that a deposition imposes an undue burden because it "would threaten his duty to maintain confidentiality of his client's privileged information and [would] require him and his clients to bear greatly increased costs and time of litigation" is insufficient to tip this factor in his favor. (Doc. 120 at 8). "While it is possible, anytime an attorney is deposed, that questions posed that would implicate the attorney-client privilege or work product doctrine, this cannot be the basis to quash a subpoena that would also encompass relevant, non-privileged information." Chesemore v. All. Holdings, Inc. , No. 1:11 MC 43, 2011 WL 4458782, at *2 (N.D. Ohio Sept. 23, 2011) (denying a motion to quash the deposition of two attorneys who had worked on and who provided legal advice in connection with an ESOP transaction). Moreover, "[t]o the extent that any question seeks to impermissibly encroach on a protected area, an objection may be made at the deposition to preserve the privilege." Id. ; accord United States v. Educ. Mgmt. LLC , No. 2:07-cv-00461, 2014 WL 12788187, at *4 (W.D. Pa. Feb. 10, 2014) (noting that it is not "shock[ing] if some questions may involve material that is arguably privileged" and that the "more appropriate method is to allow the deposition to be taken and permit the attorney to claim privilege in the face of certain questions, if necessary" (quotation marks and citations omitted)), R. & R. adopted , 2014 WL 1391179 (W.D. Pa. Apr. 9, 2014). Given the Court's conclusions above regarding privilege, the number of objections and need for additional "briefing, argument, and expense" should be minimal at worst.
Likewise, Moore's argument that Plaintiffs can and have deposed other persons "who directly participated in the 2011 Loan and refinancing transactions ... without implicating the same privilege concerns unique to a lawyer deponent" does not alter this analysis. (See Doc. 120 at 8). According to Plaintiffs, "[n]one of the other deponents in this case have testified about Mr. Moore's correspondence with Mr. Gamache or his advice to the ... ESOP" and "Plaintiffs have not received documents from Mr. Moore or his firm." (Doc. 126 at 10). It appears that Moore is the "primary if not only source of information about the tasks he performed" and the "discussions he had with the Board regarding its response to Mr. Gamache's inquires[ are] ... relevant to Defendants' statute of limitations defense and Plaintiffs' response to [that defense]." (Doc. 126 at 4, 6). See, e.g., Rainbow Invs. Grp. v. Fuji Trucolor Missouri, Inc. , 168 F.R.D. 34, 37–38 (W.D. La. 1996) (declining to grant a protective order for the deposition of plaintiff's counsel when counsel had relevant information "central to ... defenses asserted by the defendants" and plaintiffs were unable to obtain the information from other sources). "The deposition[ ] may or may not yield new information, but this is the case anytime multiple witnesses to the same event are deposed. The purpose of discovery is to allow the parties to ask questions of potential witnesses to ensure that it has all relevant information, as long as the requests are reasonable." Chesemore , 2011 WL 4458782, at *2. Thus, the third factor also weighs in favor of enforcing the subpoena. On balance, Moore has failed to demonstrate that enforcement of the subpoena will create an undue burden on him under Rule 45(d).
CONCLUSION
Accordingly, Non-Party Moore's Motion to Quash (Doc. 120) is DENIED . James H. Moore, III is hereby ORDERED to comply with Plaintiffs' subpoena (Doc. 120-1) dated August 31, 2021.
SO ORDERED , this 30th day of March, 2022.