Opinion
Docket Number: CL13-5085
07-28-2015
JESSICA LEGASPI, Plaintiff, v. TME ENTERPRISES, INC., Defendant.
OPINION AND ORDER
This action was before the Court on July 27, 2015, for a hearing on five Motions to Quash filed by Defendant TME Enterprises, Inc. ("TME"), proper notice having been given to all parties. The Motions to Quash sought to quash the subpoenas duces tecum filed by Plaintiff Jessica Legaspi ("Legaspi") on non-parties as untimely in light of the Court-entered Scheduling Order and Supplemental Scheduling Order. The issues before the Court are: (1) whether TME has standing to file the Motions to Quash; and (2) whether subpoenas duces tecum are considered "discovery" as contemplated by the Scheduling Order and Supplemental Scheduling Order such that the Scheduling Order discovery cutoff date controls the date by which the subpoenas duces tecum must be served. The Court heard arguments from counsel and took the motion under advisement in order to consider the standing issue and merits of the motions.
The parties entered into a Scheduling Order on October 29, 2014, which set the trial date for June 30, 2015, and states that "all discovery must be served sufficiently in advance of trial to allow a timely response . . . at least 30 days before trial." (Scheduling Order ¶ 2 (first emphasis added)). The Court granted a continuance of the June 30, 2015, trial date at the request of Legapsi's counsel. TME objected to the continuance and indicated it was ready to proceed with trial. The Court specifically continued only the trial date, and the Supplemental Scheduling Order entered on May 5, 2015, states, "The cut-off dates for the completion of discovery and the designation of expert witnesses are not extended beyond those contained in the original scheduling order except by agreement of counsel." (Supplemental Scheduling Order 2).
Now the Court—after considering the arguments at the July 27, 2015, hearing, reviewing the related briefs, noting the procedural history of the case, and consulting applicable authorities—GRANTS TME's Motions to Quash.
The Court finds that TME has standing pursuant to Rule 4:9(A) of the Rules of Supreme Court of Virginia to file the Motions to Quash. The Rule expressly contemplates the filing of motions to quash by "the person so required to produce, or by the party against whom such production is sought." Va. Sup. Ct. R. 4:9(A)(c)(3) (emphasis added). The Supreme Court of Virginia has interpreted the phrase "against whom such production is sought" as referring to the opposing party in the matter. Tonti v. Akbari, 262 Va. 681, 686, 553 S.E.2d 769, 771 (2001). For these reasons, the Court finds that TME—as the opposing party in this matter—has standing as a "party against whom such production is sought" to file the Motions to Quash.
The Court also finds that a subpoena duces tecum is a form of discovery contemplated by the Scheduling Order and the Supplemental Scheduling Order. Discovery includes, inter alia, "requests for production of documents, electronically stored information, and things." Va. Sup. Ct. R. 4:1. Rule 4:9A of the Rules of Supreme Court of Virginia governs production from non-parties, including the use of subpoenas duces tecum. Id. R. 4:9A; see also Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678, 708 (2014) (describing a subpoena duces tecum as "a rule-based discovery tool" (emphasis added)), rev'd on other grounds, 770 S.E.2d 440 (2015). The Court therefore concludes that the subpoenas duces tecum at issue are a form of discovery, and, as a result, the language in the Scheduling Order and Supplemental Scheduling Order controls the discovery deadline. The subpoenas duces tecum that TME seeks to quash were served on various dates at the end of June 2015, after the deadline established in the Scheduling Order and affirmed in the Supplemental Scheduling Order, i.e., "sufficiently in advance of trial to allow a timely response . . . at least 30 days before trial," and without agreement of counsel.
For the reasons stated herein, the Court grants the Motions to Quash, as the subpoenas duces tecum were not served prior to the deadline established by the Scheduling Order and affirmed by the Supplemental Scheduling Order or by agreement of counsel.
Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail (or e-mail) copies of this Order to all counsel of record.
IT IS SO ORDERED this 28th day of July, 2015.
/s/_________
Judge
David W. Lannetti, Judge