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Meyer v. Delaware Valley Lift Truck, Inc.

United States District Court, E.D. Pennsylvania

July 5, 2019

JAMES E. MEYER, Plaintiff,



         Defendants Delaware Valley Lift Truck, Inc. (“DVLT”), John W. Meyer (“Jack”), Barbara A. Meyer, and the Law Offices of Barry F. Penn (“Penn”) (collectively, “Defendants”) move to quash Jim Meyer's subpoena duces tecum issued to Christopher J. McGuckin, CPA, who is not a party in this litigation. For the reasons that follow, Defendants' motion to quash will be denied.

         I. BACKGROUND

         Jim initially brought this action asserting various state law claims that turn primarily on the allegation that Defendants “squeezed” him out of DVLT by firing him in violation of Jack and Jim's Shareholder Agreement, physically barring Jim from the premises, and ultimately seizing control of DVLT. Defendants filed a motion to dismiss that was granted in part and denied in part. Several claims remain, including breach of contract and corporate waste.

         In the course of discovery, Jim issued a subpoena duces tecum to Christopher McGuckin, DVLT's accountant, requesting that he be deposed and that he produce documents related to the accounting services he provided for DVLT. Defendants moved to quash both the deposition and document request. Both parties have briefed the motion and provided affidavits from relevant parties-Defendants offer an affidavit from McGuckin, Jim provides an affidavit from his expert, John E. Mitchell, CPA. As to the documents Jim seeks, Defendants specifically objected to the request that McGuckin produce “the Permanent File for DVLT, ” “all general and subsidiary ledgers and journals for DVLT, ” “all files . . . for any financial/accounting management software system in use for DVLT, ” “all workpapers prepared for DVLT, ” and “all trial balances relating to DVLT, including adjusting entries.”


         “[T]he serve-and-volley of the federal discovery rules govern the resolution of a motion to quash.” In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 239 (E.D. Pa. 2014) (internal quotation marks omitted). “The subpoenaing party must first show that its requests are relevant to its claims or defenses, within the meaning of Federal Rule of Civil Procedure 26(b)(1).” Id. The burden then shifts to the subpoenaed non-party who must show that the disclosure is protected. See Id. The burden to support a motion to quash is “particular heavy . . . as contrasted to some more limited protection such as a protective order.” Frank Brunckhorst Co. v. Ihm, 2012 WL 5250399, at *4 (E.D. Pa. Oct. 23, 2012) (internal quotation marks omitted).

         Defendants assert that deposing McGuckin at this time is untimely because McGuckin is an expert and the time for expert depositions has not yet occurred, and that the accompanying document request is overly broad because it seeks irrelevant documents. Jim responds that McGuckin will be deposed as a fact witness and that all documents requested are relevant because they will “establish a baseline for what the two owners drew from the business” and to “show what Jack took from DVLT after he seized complete control” of the company.[1]

         A. Deposition

         Federal Rule of Civil Procedure 26(b)(4)(A) provides that a party may only depose a designated expert who has submitted his or her expert report. See Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (noting that Rule 26 “governs depositions and accompanying subpoenas duces tecum issued to experts”). Defendants argue that because McGuckin has not submitted an expert report, he may not be deposed.

         The real dispute here, however, is whether Jim is seeking to depose McGuckin as an expert-or as a fact witness.[2] If the latter, then the Rule 26(b)(4)(A) timing requirements would not apply. Fact witnesses testify based on “personal knowledge of the matter” in question, Keiser v. Borough of Carlisle, 2017 4075057, at *3 (M.D. Pa. Sept. 14, 2017) (quoting Fed.R.Evid. 602), whereas expert witnesses opine based on “knowledge, skill, experience, training or education” where such specialized insight will, inter alia, “help the trier of fact to understand the evidence or to determine a fact in issue, ” Fed.R.Evid. 702.

         Defendants assert, with little reasoning or argumentation, that “McGuckin's testimony is being sought only as an expert” because “there is no allegation of any financial wrongdoing in this case.” Jim, on the other hand, explains that in order to show both liability and damages for his breach of contract and corporate waste claims, he will need to compare DVLT's operation and accounting prior to and after the alleged 2017 “squeeze out.” Jim further states that he plans to have his own expert create a model comparing DVLT's finances before and after the “squeeze out, ” which will show, among other things, the value of the company at the time in question and whether corporate assets were spent in uncharacteristic ways following Jim's ejection from the company. And Jim asserts that McGuckin possesses “personal knowledge” about DVLT's operations and accounting-due to his many years of service as DVLT's accountant-that is relevant to such a model. Moreover, Jim notes that McGuckin has not, as yet, been designated as an expert witness by either party.

         To the extent that the facts about which Jim will question McGuckin stem from McGuckin's personal knowledge and would not entail asking McGuckin about any opinions he may have should he become a designated expert, deposing him during fact discovery is appropriate. The motion to quash the deposition request will be denied.

         B. ...

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