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In re Keebaugh

United States District Court, E.D. Pennsylvania

November 7, 2019



          Savage, J.

         Pursuant to Federal Rule of Civil Procedure 45(d)(3)(A)(iii), defendant IBM Corporation moves to quash a subpoena issued by plaintiff Susan Conrey commanding a former IBM employee to produce documents that had been produced subject to a protective order in an action against IBM in the Southern District of New York. IBM argues that Conrey has already sought many of these documents from IBM in her underlying action in the District of New Jersey, and that the documents are privileged under a stipulated protective order entered in the New York case. Conrey contends that IBM's motion to quash is untimely and IBM has failed to meet its burden of showing the requested documents are privileged or that any harm will result from disclosure.

         We conclude that IBM's motion to quash is untimely, but the untimeliness is excused for good cause. We shall grant IBM's motion to quash the subpoena to the extent that the requested documents are privileged under the stipulated protective order in the New York action or were already sought from IBM in the underlying case. Any remaining documents that do not fall into either of those categories are more appropriately sought from IBM through the discovery process. The District of New Jersey has already entered a confidentiality order and is considering a pending motion for a protective order in the underlying action.

         Factual Background

         In February 2017, Susan Conrey sued IBM Corporation, her former employer, for age discrimination in the District of New Jersey (the “Conrey Action”).[1] On August 16, 2019, she served a non-party subpoena on former IBM employee Terry Keebaugh, seeking documents relating to (1) communications with Denise Williams, IBM's former Vice President of Human Resources, (2) IBM's new hire programs, and (3) IBM's “Millennial Task Force” or “Early Career” programs (the “Keebaugh subpoena”).[2] Conrey gave notice to IBM of the Keebaugh subpoena on August 14, 2019.[3]

         Keebaugh is a plaintiff in an unrelated lawsuit for age discrimination against IBM in the Southern District of New York (the “Keebaugh Action”).[4] IBM produced documents to Keebaugh during discovery in that action. The production was subject to a stipulated protective order limiting the use of any IBM-produced documents designated as “confidential” or “attorney's eyes only” to solely the Keebaugh Action (the “Keebaugh Protective Order”).[5]


         Federal Rule of Civil Procedure 45(d)(3)(A)(iii) provides “[o]n timely motion, the issuing court must quash or modify a subpoena that . . . requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed.R.Civ.P. 45(d)(3)(A)(iii) (emphasis added). “The party moving to quash bears the burden of establishing that a privilege attaches to the subpoenaed documents.” Savant Systems, LLC v. Crestron Elecs., Inc., No. 12-51, 2012 WL 987404, at *4 (E.D. Pa. Mar. 22, 2012) (citations omitted).

         A. Standing

         A party has standing to move to quash a non-party subpoena if it claims a personal right or privilege regarding the production. Savant Systems, 2012 WL 987404, at *3 (citing Davis v. Gen. Acc. Ins. Co., No. 98-4736, 1999 WL 228944, at *2-3 (E.D. Pa. Apr. 15, 1999)). The subpoena seeks confidential documents that have been produced subject to a protective order in Keebaugh's unrelated action against IBM. Thus, because IBM has a personal right with respect to the documents sought, it has standing to challenge the Keebaugh subpoena. See Davis, 1999 WL 228944, at *2-3 (finding defendants had standing to challenge non-party subpoena where they did not specifically address whether they allege any personal right or privilege in the subject matter, but claim the subpoenas involve production of documents protected by attorney-client privilege).[6]

         B. Timeliness

         Motions seeking to quash or modify a subpoena under Rule 45(d)(3)(A) must be “timely.” Fed.R.Civ.P. 45(d)(3)(A); 9 Moore's Federal Practice § 45.50[1] (3d ed. 2016). Rule 45 does not provide a specific time period for bringing a motion to quash. Courts have required motions to quash be made before the date for compliance, unless the compliance period is unreasonably short. Id.; City of St. Petersburg v. Total Containment, Inc., No. 06-20953, 2008 WL 1995298, at *2 (E.D. Pa. May 5, 2008) (denying motion to quash as untimely where party filed motion one day after compliance date).[7]

         What is a “reasonable time to comply” is flexible. Courts consider fourteen days from the date of service presumptively reasonable. Grant Heilman Photography, Inc. v. John Wiley & Sons, Inc., No. 11-1665, 2011 WL 5429005, at *7 (E.D. Pa. Nov. 7, 2011) (citing Cris v. Fareri, No. 10-1926, 2011 WL 4433961, at *2 (D. Conn. Sept. 22, 2011)). Some courts have found less time reasonable. See City of St. Petersburg, 2008 WL 1995298, at *2 (denying motion to quash where subpoena provided compliance period of twelve days).

         Here, Conrey served the subpoena on Keebaugh on August 16, 2019, after giving IBM notice by email two days earlier. The date of compliance listed in the subpoena is August 29, 2019.[8] This compliance period is reasonable.

         On September 3, 2019, five days after the return date in the subpoena, IBM filed a motion to quash in the District of New Jersey.[9] On September 11, 2019, the court dismissed the motion without prejudice because it lacked jurisdiction over the motion.[10]On September 18, 2019, twenty days after the subpoena return date, IBM filed the instant motion to quash the subpoena.[11] We conclude IBM's motion to quash is untimely.

         “Good cause” or other circumstances may excuse an untimely motion. Courts have discouraged imposing a waiver of privilege merely because a party filed a belated motion to quash. See Chevron Corp. v. Stratus Consulting, Inc., No. 10-00047, 2010 WL 2135217, at *4 (D. Colo. May 25, 2010). The movant's communicating opposition to the subpoena before the compliance date may excuse an untimely motion to quash. See Spring Pharm., LLC v. Retrophin, Inc., No. 18-04553, 2019 WL 3731725, at *6 (E.D. Pa. Aug. 8, 2019). Where the delay in filing a motion to quash resulted from attempts to negotiate and resolve the dispute, courts may excuse untimeliness. See Hartz Mountain Corp. v. Chanelle Pharmaceutical Veterinary Products Manufacturing Ltd., 235 F.R.D. 535, 536 (D. Me. 2006); Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 52 (S.D.N.Y. 1996). To hold otherwise would discourage parties from attempting to resolve disputes before seeking judicial intervention.

         Denying IBM's motion to quash as untimely would result in disclosure of confidential material subject to a protective order in another case. This ground alone constitutes “good cause” sufficient to excuse the untimeliness. Additionally, IBM's counsel communicated its objection to the Keebaugh subpoena to Conrey's counsel on August 22, 2019, before the compliance date.[12] The parties attempted to resolve the dispute, but were unsuccessful.[13] The Keebaugh subpoena seeks documents without carving out those designated as confidential under the Keebaugh Protective Order.[14] These circumstances are sufficient to excuse the filing of the motion after the compliance date.

         C. ...

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