United States District Court, W.D. Pennsylvania
RUDY FABIAN, FABIAN LEGAL SERVICES, LLC., Plaintiffs/Counterclaim Defendants,
RICHARD E. SHENKAN, SHENKAN INJURY LAWYERS, LLC., Defendants/Counterclaim Plaintiffs.
J. Schwab, United States District Judge.
the Court are Defendants' Motion to Enforce Subpoena and
for Sanctions (ECF 43) and Brief in Support (ECF
44). Also before the Court are Plaintiffs' Motion to
Modify Subpoena (ECF 45) and Brief in Support
(ECF 46), which this Court construes as a Response
to Defendants' Motion filed at ECF 43. Finally,
Defendants filed a Response to the Plaintiffs' Motion
(ECF 50), which this Court construes as a Reply to
Plaintiffs' Response filed at ECF 43. Thus, the
issues raised concerning the Subpoena at issue are ripe for
disposition. Both the Motion to Enforce and the Motion to
Modify will be granted in part and denied in part.
of the Federal Rules of Civil Procedure establishes a liberal
discovery policy. Great West Life Assurance Company v.
Levithan, 152 F.R.D. 494, 497 (E.D. Pa. 1994). Discovery
is generally permitted of any items that are relevant or may
lead to the discovery of relevant information. Hicks v.
Big Brothers/Big Sisters of America, 168 F.R.D. 528, 529
(E.D. Pa. 1996). However, even though “the scope of
relevance in discovery is far broader than that allowed for
evidentiary purposes, it is not without its limits.”
Stabilus v. Haynsworth, Baldwin, Johnson, and
Greaves, P.A., 144 F.R.D. 258, 265 (E.D. Pa. 1992).
Discovery is not permitted when a request is made in bad
faith, is unduly burdensome, irrelevant to the general
subject matter of the action, or relating to confidential or
privileged information. Ruddy v. Polaris Indus.,
Inc., No. 17-CV-423, 2019 WL 319805, at *2 (M.D. Pa.
Jan. 24, 2019)
of the Federal Rules of Civil Procedure regulates discovery
directed to non-parties in a lawsuit. Fed.R.Civ.P. 45.
Generally, “only the non-parties whom were served with
the subpoenas may move to have them quashed[.]”
Davis v. General Accident Ins. Co. of America, No.
98-4736, 1999 WL 228944, at *2 (E.D. Pa. April 15, 1999)
(citations omitted). An exception to this rule permits a
party to move to quash when it “claims ‘some
personal right or privilege in respect to the subject matter
of a subpoena duces tecum directed to a nonparty.'”
Id., quoting Dart Indus., Inc. v.
Liquid Nitrogen Proc. Corp. of Cal., 50 F.R.D. 286, 291
(D. Del. 1970). A subpoena may also be quashed or modified
when that subpoena fails to allow a reasonable time to comply
and/or if that subpoena requires disclosure of privileged or
protected matter, assuming no waiver or exception applies.
Fed.R.Civ.P. 35(d)(3)(A)(i) and (iii).
properly note that neither Plaintiffs nor the non-party
accountants filed a Motion to Quash or Modify the subpoena
which Defendants served on Plaintiffs' accountants. Only
after Defendants filed their Motion to Enforce Subpoena did
Plaintiffs respond by filing a Motion to Modify Subpoena.
While this Court does not take any position as to whether
Plaintiffs' very late Motion to Modify is, in fact, time
barred, the Court concurs with Defendants that
Plaintiffs' failure to timely request modifications to
the scope of the subpoena is dubious.
said, the Court notes that the Subpoena requests that
Plaintiffs' accountants produce all federal and state tax
returns from 2015 “through 2019, inclusive.”
ECF 44-1. Given that tax year 2019 has not yet been
completed, any request for any tax returns from 2019 is
premature. Accordingly, the Motion to Enforce the portion of
the subpoena requesting Plaintiffs' 2019 tax returns is
the Subpoena at issue also demands “[a]ll documents
relating to or concerning any of the subject tax returns,
including but not limited to all bank statements, all credit
card statements, all receipts of any expenses, and all
e-mails sent to or received by Jon Rosenberg, Rosenberg
Accountancy, LLC, Fabian Legal Services, LLC, and/or Rudy
Fabian.[, ]” and “[a]ll IRS 1099 and W-2 forms
relating to either Rudy Fabian or Fabian Legal Services, LLC,
for the years 2009 through 2019, inclusive.” ECF
44-1. Again, given that tax year 2019 has not yet been
completed, any request for documents upon which the 2019 tax
returns will be based, and any 1099 or W-2 form issued for
tax year 2019 which have not yet been provided to Plaintiffs
or Plaintiffs' accountant is a premature request.
Accordingly, the Motion to Enforce that portion of the
subpoena relating to the documentation upon which the 2019
tax returns will be prepared is DENIED. However, any 1099
forms or W-2 forms for tax year 2019 relating to either Rudy
Fabian or Fabian Legal Services, LLC, which are currently in
the possession of Plaintiffs' accountants, must be
Subpoena is to be honored in all other respects, and to the
entity to whom the subpoena is addressed is hereby ORDERED to
comply with the production of documents by no later than
Monday, December 16, 2019 at 5 pm. The Court declines to