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In re Gateway Engineers

October 9, 2009


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court is the MOTION TO QUASH (Docket entry number 1) filed by movant The Gateway Engineers, Inc., and the MEMORANDUM IN RESPONSE TO THE GATEWAY ENGINEERS, INC.'S MOTION TO QUASH SUBPOENA (Doc. No. 5). The motion is ripe for disposition.


Movant seeks to quash a subpoena served upon it by Sitarik Contracting, the defendant in a civil action in a sister district. The underlying case was initiated by way of a complaint filed in U.S. District Court in the Northern District of Ohio on August 6, 2007 at case number 1:07-cv-2402. The following facts are taken from the pleadings. Plaintiff Mack Industries, Inc. ("Mack Industries") entered into a contract with Defendant Edward T. Sitarik Contracting, Inc. ("Sitarik Contracting") to provide Defendant with various materials and services to be used in the construction of a sewerin Cecil Township, Pennsylvania. The Cecil Township Municipal Authority ("CTMA"), a non-party to the civil action, hired Defendant Sitarik Contracting to serve as the general contractor for the project. Movant Gateway, also a non-party to the case, served as the engineering firm to the CMTA on the project. The complaint alleges nonpayment by Defendant to the Plaintiff. The affirmative defenses to the claim and a counterclaim filed by Defendant allege that the manholes provided by Plaintiff Mack Industries leaked, which caused great expense for remediation and consequent delay in completing the project, which formed the basis for CTMA to claim a breach of its contract with Sitarik Contracting.

The subpoena at issue here was served on Movant Gateway Engineers on June 22, 2009, by Defendant Sitarik Contracting, and generally sought various documents and file materials related to the construction project. Earlier in discovery, Plaintiff Mack Industries served subpoenas ("Mack subpoenas") on Ed Kuenzig and Scott Rusmisel, two employees of Movant, on or about March 25, 2009. Each of those subpoenas directed to respective witnesses to bring documents pertaining to the Cecil Township Interceptor Project to depositions scheduled on April 3, 2009. While some documents were produced by the witnesses, Defendant learned during the depositions that not all documents requested were produced. The reason for this was explained by Movant in its Motion to Quash. More specifically, in response to the Mack subpoenas, Kuensig and Rusmisel, with the assistance of counsel, "spent multiple hours reviewing thousands of pages of documents related to the Project, and thereafter produced any and all documents in its possession relevant to the Case at their depositions." Doc. No. 1 at ¶ 13. At the depositions, each witness admitted that various other documents existed related to the Project that were not produced. See, e.g., Exhibit 4 of Doc. No. 5 at transcript p. 39 (Rusmisel admits that there could be email correspondence among members of the design team and field personnel over the issue of leaks in the manhole gaskets that were not produced), Exhibit 4 at transcript pp. 48-49 (Rusmisel admits that he maintained time sheets identifying the dates in which he was present on the site and the work he performed that were not produced); see also, Exhibit 3 at transcript pp. 147-150 (Kuenzig admits that inspection reports regarding the installation of the sewer lines exist and were not produced). On June 22, 2009, Defendant Sitarik issued a subpoena to Movant Gateway for documents pertaining to the project. On July 13, 2009, twenty-one days later, Gateway Engineers moved to quash, arguing that responding to the subpoena, or more specifically, renewing the same efforts undertaken in response to the Mack subpoenas, would amount to an undue burden.It is important to further note that Movant has not sought relief based upon any claim of privilege, or that any of the requested information is confidential, potentially embarrassing, beyond its control, involves trade secrets, or otherwise protected.


Federal Rule of Civil Procedure 26 defines the methods, scope, limits and process of discovery. Section (b) of that rule establishes the scope and limits of discovery. It provides that parties may obtain discovery regarding any party's claim or defense. Rule 26(b) also provides that for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. In interpreting Rule 26(b)(1), district courts must be mindful that relevance is a broader inquiry at the discovery stage than at the trial stage. Nestle Foods Corp. V. Aetna Cas. And Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of the admissible evidence." Fed.R.Civ.P. 26(b)(1).

While broad, discovery is not boundless. Rule 26(b)(2) vests the District Court with the authority to limit a party's pursuit of otherwise discoverable information. The Third Circuit recognized this power stating that "[a]lthough the scope of discovery under the Federal Rules is... broad, this right is not unlimited and may be circumscribed." Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). Specifically, the rules provide that the frequency or extent of discovery otherwise permitted under the rules or by local rule shall be limited by the court if the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues. Fed.R.Civ.P. 26(b)(2)(C).

The Court's power to quash or modify a subpoena inherently lies within the provisions to enter a protective order under Fed.R. Civ.P. 26(c). A motion to quash is similar to a motion for a protective order that discovery not be had under Rule 26(c), and is judged under similar standards. 9 James W. Moore et al., Moore's Federal Practice § 45.50[2] (3d ed. 2008). Federal Rule of Civil Procedure 26(c)(1) provides that a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including the following: (A) forbidding the disclosure of discovery; and (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.

A court may quash or modify a subpoena if it fails to allow reasonable time for compliance, requires a non-party deponent to travel over 100 miles from his/her residence, or subjects a person to undue burden. Fed.R.Civ.P. 45(c)(3)(A)(i)-(iv). The "burden of proving that a subpoena is oppressive is on the party moving to quash." Linder v. Department of Defense, 133 F.3d 17, 24 (C.A.D.C. 1998)(quoting Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C.Cir. 1984)). Whether a burdensome subpoena is reasonable "must be determined according to the facts of the case," such as the party's need for the documents and the nature and importance of the litigation. Id. Movant makes various arguments why responding to the subpoena would amount to an undue burden, the most predominant of which is the general averrment that the requested information is not relevant. All bases will be addressed in seriatim.

Federal Rule of Civil Procedure 26 allows for discovery of "any matter, not privileged, that is relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). A federal court has the authority to quash a subpoena that seeks material which is clearly irrelevant. 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 2459, at 42 (1995). By incorporating reference to Fed.R.Civ.P. 26(b), Rule 45(d)(1) applies an "exceedingly broad" standard of relevancy to a subpoena seeking material from a non-party. See Advisory Committee Notes to Subdivision (d) of Rule 45 of 1991 Amendments; 9A Wright & Miller, supra, § 2459, at 42. The relevancy threshold is not high: material sought need not be admissible at trial, but must be relevant to the subject matter of the litigation and reasonably calculated to lead to admissible evidence. See 9A Wright & Miller, supra, § 2459, at 45; see also 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure: Civil 2d § 2008, at 101 & n. 7 (1994) ( "The proposition stated in the text is now so well settled that the cases cited are only illustrative of many others.")

The broad scope of discovery is necessary given the very nature of litigation, where determinations of relevance for discovery purposes are made well in advance of trial. Those facts which, with the progression of discovery, are not to be considered in determining the ultimate issues may be eliminated in due course. Cash Today of Texas, Inc. v. Greenberg, 2002 WL 31414138 (D.Del. 2002). Therefore, only if "it is palpable that the evidence sought can have no possible bearing upon the issues" should a court deny discovery by quashing a subpoena. Id. (quoting Hercules Powder Co. v. Rohm & Hass Co., 3 F.R.D. 302, 304 (D.Del. 1943)). If a party objects to the production of information or documents on the basis of relevancy, then the objecting party "must show specifically how each [request] is not relevant..." Highland Tank & Mfg. Co. v. PS International, Inc., 227 F.R.D. 374, fn 8 (W.D.Pa. 2005)(quoting Josephs v. Harris Corp., 677 F.2d 985, 991-92 (3d Cir. 1982)). Once done, the party seeking discovery bears the burden of demonstrating the relevance of the sought information to the issues in litigation. Andritz Sprout-Bauer v. Beazer East, 174 F.R.D. 609, 631 (E.D.Pa. 1997).

In addition, "[a] district court whose only connection with a case is supervision of discovery ancillary to an action in another district should be 'especially hesitant to pass judgment on what constitutes relevant evidence thereunder.'" Truswal Systems Corp. V. Hydro-Air Engineering, Inc., 813 F.2d 1207, 1211-12 (Fed.Cir. 1987)(citing Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961). If relevance is unclear, Rule 26(b)(1) indicates that the court should be permissive. Id. (Citing Heat & Contro, Inc. V. Hester Industries, Inc., 785 F.2d 1017 (Fed.Cir. 1986).

In the instant case, Defendant Sitarik Contracting seeks the disclosure of documents relating to the interceptor project. With its motion, Movant argues that the documents sought "are not relevant to whether Sitarik has wrongfully withheld payment from Mack and/or whether Mack has supplied defective and nonconforming manholes to Sitarik". Doc. No. 1 at ΒΆΒΆ ...

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