United States District Court, E.D. Pennsylvania
JAMES E. MEYER, Plaintiff,
DELAWARE VALLEY LIFT TRUCK, INC., MATERIAL HANDLING POWER DESIGNERS, LLC, JOHN W. MEYER, BARBARA A. MEYER, AND LAW OFFICES OF BARRY F. PENN, P.C., 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.
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.
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.”
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).
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.
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.
real dispute here, however, is whether Jim is seeking to
depose McGuckin as an expert-or as a fact
witness. 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.
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.
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.