Opinion
No. 21-mc-65-TSC-ZMF
2023-03-07
IN RE NON-PARTY SUBPOENA TO the CENTER FOR the STUDY OF SOCIAL POLICY, Non-Party Movant, Wyatt B., et al., Plaintiffs, v. Tina Kotek, et al., Defendants.
Michael J. Anstett, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, for Non-Party Movant. Paul Andrew Garrahan, Oregon Department of Justice, Natural Resources Section, General Counsel Division, Salem, OR, Harry Wilson, Pro Hac Vice, Lauren Blaesing, Pro Hac Vice, Markowitz Herbold PC, Portland, OR, for Defendant.
Michael J. Anstett, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, for Non-Party Movant. Paul Andrew Garrahan, Oregon Department of Justice, Natural Resources Section, General Counsel Division, Salem, OR, Harry Wilson, Pro Hac Vice, Lauren Blaesing, Pro Hac Vice, Markowitz Herbold PC, Portland, OR, for Defendant. MEMORANDUM OPINION AND ORDER ZIA M. FARUQUI, UNITED STATES MAGISTRATE JUDGE
Judge Chutkan referred this miscellaneous action—which stems from a lawsuit pending in the District of Oregon, see Wyatt B. v. Tina Kotek, No. 19-cv-556 (D. Or. filed Apr. 16, 2019)—to the undersigned for determination of non-party The Center for the Study of Social Policy's ("CSSP") Motion to Quash. See Mot. Quash Defs.' Subpoena to Non-Party Center for Study of Social Policy ("Mot. Quash"), ECF No. 1. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the non-party's motion.
I. BACKGROUND
A. The Parties
Plaintiffs in the underlying litigation are individual foster children representing a class of Oregonian foster children (collectively "Plaintiffs"). See Mot. Quash, Non-Party Center for Study of Social Policy's Mem. L. Supp. Mot. Quash Subpoena ("CSSP's Mem.") 8, ECF No. 1-1. Defendants are the Oregon Department of Human Services ("ODHS"), the Governor of Oregon, the Director of ODHS, and the Director of Child Welfare for ODHS (collectively "Defendants"). See id. CSSP is a national nonprofit based in Washington, D.C., that researches and provides technical assistance to state child welfare systems. See Mot. Quash, Decl. of Judith Meltzer ("Meltzer Decl.") ¶ 2, ECF No. 1-2. Over the past decade, federal courts have appointed CSSP as a third-party monitor to oversee child welfare systems in five states and the District of Columbia. See id. ¶ 3. Oregon is not one of the five states. See id. ¶ 4.
B. Defendants' Subpoena to CSSP
On April 16, 2019, Plaintiffs filed a complaint alleging myriad deficiencies in the administration of Oregon's foster care system. See Compl. 2, Wyatt B. v. Tina Kotek, No. 19-cv-556 (D. Or. Apr. 16, 2019), ECF No. 1. CSSP is not mentioned in the complaint. See id.
On July 6, 2021, Defendants served CSSP with a subpoena duces tucum (the "Subpoena"). See Mot. Quash, Decl. of Kevin H. Marino, Ex. A, Subpoena 6-16, ECF No. 1-3. The Subpoena sought (1) all documents published by CSSP related to child welfare systems affected by legal disputes and federal lawsuits; (2) all work plans, written reports, or published documents related to CSSP's work as a third-party monitor for legal disputes involving child welfare systems; (3) all documents related to the success or failure of any legal dispute in improving a child welfare system; (4) all written proposals, promotional materials, pitches, resumes, websites, brochures, or presentations prepared by CSSP related to its qualifications or abilities to serve as a third-party monitor concerning legal disputes involving child welfare systems; (5) all documents related to any training CSSP provided to its personnel or third parties involved in reviewing case files for individuals or families served by child welfare systems; (6) all documents reflecting the methods and standards utilized in CSSP's role as a third-party monitor concerning legal disputes involving child welfare systems; (7) all documents reflecting CSSP's fees for serving as a third-party monitor related to legal disputes involving child welfare systems; (8) all documents related to CSSP's financial interest in, relationship with, and experience with A Better Childhood, Inc. and Children's Rights, Inc.; (9) all communications between CSSP and A Better Childhood, Inc. and Children's Rights, Inc.; and (10) all communications between CSSP and anyone about the underlying litigation. See id. at 15-16. Document requests 1-2 and 4-9 cover the period of January 1, 2010, to July 23, 2021, and document requests 3 and 10 contain no time limit. See id.
C. Procedural History
On August 4, 2021, CSSP filed its motion to quash the Subpoena. See Mot. Quash. On August 23, 2021, Defendants filed their opposition to CSSP's motion. See Defs.' Opp'n Mot. Quash Subpoena Non-Party Center for Study of Social Policy ("Defs.' Opp'n"), ECF No. 4. On August 30, 2021, CSSP filed its reply. See Non-Party Center for Study of Social Policy's Reply Mem. L. in Further Supp. Mot. Quash Subpoena ("CSSP's Reply"), ECF No. 5. On January 17, 2023, the parties filed a joint status report stating that "CSSP still seeks to quash the subpoena issued by [D]efendants in the underlying Oregon litigation, and [D]efendants still oppose the motion." Joint Status Report 1, ECF No. 14. On January 26, 2023, Judge Chutkan referred the instant motion to the undersigned for resolution. See Min. Order (Jan. 26, 2023).
Given the sufficiency of the parties' written submissions, the Court denies CSSP's request for a hearing on the instant motion. See Mot. Quash at 1; LCvR 7(f) (stating allowance of oral hearing is "within the discretion of the Court").
Though not raised by the parties, this Court is required to consider its jurisdiction to entertain the movant's arguments. "The Federal Rules of Civil Procedure contain a clear set of instructions regarding how subpoenas for documents, and also disputes related to such subpoenas, are to be handled." In re Disposable Contact Lens Antitrust Litig., 306 F. Supp. 3d 372, 375 (D.D.C. 2017). A subpoena to produce materials or to permit inspection "must issue from the court where the action is pending." Fed. R. Civ. P. 45(a)(2). If the recipient of the subpoena objects, the recipient may move to quash or modify a subpoena in "the district where compliance is required." Id. 45(d)(3)(A). Because the Subpoena ordered CSSP to comply in the District of Columbia, this Court may properly consider the instant motion. See Subpoena at 6; In re Disposable Contact Lens, 306 F. Supp. 3d at 377.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure ("Rules") contemplate a broad scope of discovery. See, e.g., Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Fed. R. Civ P. 26(b)(1). However, courts have "the discretion to limit discovery to prevent undue [burden] to third parties, even if the discovery [sought] is within the permissible scope of the [Rules.]" Phillips & Cohen, LLP v. Thorpe, 300 F.R.D. 16, 18 (D.D.C. 2013) (cleaned up); see Fed. R. Civ. P. 45(d)(3)(A)(iv). The "party resisting discovery" bears the burden "to show that the documents requested are . . . unduly burdensome[.]" BuzzFeed, Inc. v. U.S. Dep't of Just., 318 F. Supp. 3d 347, 356 (D.D.C. 2018). "Whether a subpoena imposes an undue burden depends on the specific facts of the case[.]" Dell Inc. v. DeCosta, 233 F. Supp. 3d 1, 3 (D.D.C. 2017) (cleaned up). "[C]ourts must balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it." Id. (cleaned up). Factors courts consider in determining whether there is an undue burden include:
(1) whether the discovery sought is "unreasonably cumulative or duplicative";
(2) whether the discovery sought "can be obtained from some other source that is more convenient, less burdensome, or less expensive"; and (3) whether the discovery sought is "proportional to the needs of the case," taking into account "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit[.]"BuzzFeed, Inc., 318 F. Supp. 3d at 358 (quoting Fed. R. Civ. P. 26(b)(1), (2)(C)).
III. DISCUSSION
A. Document Requests 1-9
Requests 1-9 of the Subpoena seek information about CSSP's internal policies and procedures, its involvement in federal litigation in other jurisdictions, its work as a third-party monitor, and its communications and relationship with third-party entities A Better Childhood, Inc. and Children's Rights, Inc. See Subpoena at 15-16. These requests contemplate the review and production of voluminous information. See Meltzer Decl. ¶ 5.
1. Relevance of the Discovery Requests
"No requirement of relevance is included in the text of Rule 45; however, it is settled that a subpoena is limited in scope by Rule 26(b)(1)[.]" Coleman v. District of Columbia, 275 F.R.D. 33, 36 (D.D.C. 2011). "[A] request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the claim or defense of any party." In re Denture Cream Prods. Liab. Litig., 292 F.R.D. 120, 123 (D.D.C. 2013) (cleaned up). "In making relevancy assessments, a court with jurisdiction over a discovery dispute for an action pending in a different district generally has limited exposure to and understanding of the primary action[ ] and should be wary of unduly restricting the scope of discovery." Darling v. Girard, No. 15-mc-499, 2015 WL 13898434, at *5 (D.D.C. July 20, 2015) (cleaned up).
Some of the requested documents "may be . . . relevant at trial." Educ. Fin. Council v. Oberg, No. 10-mc-79, 2010 WL 3719921, at *3 (D.D.C. Mar. 8, 2010). In their Answer in the underlying litigation, Defendants raise several affirmative defenses that they claim can be supported by information possessed by CSSP due to its "experience as a frequently appointed [third-party m]onitoring organization[.]" Defs.' Opp'n at 9; see Joint Status Report, Ex. A, Defs.' Answer and Affirmative Defenses ("Defs.' Answer") 33-35, ECF No. 14. The Court is unpersuaded by Defendants' argument that there is a nexus between CSSP and the underlying litigation, see infra III.B; however, it is at least conceivable that CSSP may possess information responsive to document requests 1-9 that relates to Defendants' affirmative defenses. See In re Denture Cream Prods. Liab. Litig., 292 F.R.D. at 124-25 (finding information sought by subpoena relevant when it related to the issue of causation). Nevertheless, though conceivable, Defendants' requests bear little apparent connection to Defendants' affirmative defenses of abstention, separation of powers, and undue burden. Compare Subpoena at 15-16, with Defs.' Answer at 33-35. And Defendants point to only one authority in support of this argument, which is easily distinguishable. Therefore, it is not "evident that the [documents that Defendants] seek[ ] to compel in this litigation . . . [are] directly relevant to [Defendants'] defense[s] in the [Oregon] litigation." BuzzFeed, Inc., 318 F. Supp. 3d at 358.
In BuzzFeed, Inc., Judge Mehta held that deposition testimony sought by BuzzFeed from law enforcement organizations was directly relevant to the news website's fair report privilege defense in a related defamation action where the District Court in Florida had already ruled "that the fair report privilege [was] a viable defense for BuzzFeed and that, to prevail, BuzzFeed [needed to] support the defense with evidence." 318 F. Supp. 3d at 357-58. Conversely, the undersigned is not aware of a ruling in the underlying litigation concerning the viability of Defendants' affirmative defenses.
2. The Burden of the Discovery Outweighs the Benefit
The Court next considers burden. It takes into account: "the breadth of the document request, the time period covered by it, the particularity with which the documents are described[,] and the burden imposed." Flatow v. Islamic Republic of Iran, 196 F.R.D. 203, 206-207 (D.D.C. 2000), vacated in part and aff'd in part on other grounds, 305 F.3d 1249 (D.C. Cir. 2002). Moreover, " 'concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs' in the Rule 45 inquiry[.]" Oberg, 2010 WL 3719921, at *2 (quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)).
The Court agrees with CSSP that Defendants' requests encompass "virtually every document in CSSP's possession related to its court-appointed work in six jurisdictions over the course of a decade." CSSP's Mem. at 6. "These requests are overbroad on their face and exceed the bounds of fair discovery in that they seek information over a ten-year or greater period and seek information regarding all [federal litigation involving CSSP], not only [litigation involving Oregon]." Moon v. SCP Pool Corp., 232 F.R.D. 633, 637-38 (C.D. Cal. 2005) (cleaned up); see Subpoena at 15-16; Meltzer Decl. ¶ 5; see also Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 50-51 (S.D.N.Y. 1996) (holding that subpoena that sought discovery of "virtually every document" relating to the defendant that was generated or maintained by a non-party witness during the past ten years was overbroad and had to be quashed or modified).
In Dell Inc. v. DeCosta, Judge Collyer held that subpoenas requesting documents for production as part of discovery in an underlying action were "overbroad and unduly burdensome" when a non-party would be expected to review thousands of documents, "most of which would be protected by the attorney-client privilege or attorney work-product doctrine." 233 F. Supp. 3d at 3-4. Likewise, many of the responsive documents here likely contain privileged attorney-client communications and/or attorney work product because they stem from litigation in other federal jurisdictions. See Subpoena at 15-16. In addition, the responsive documents contain confidential information about minor children, see Meltzer Decl. ¶ 5, and Courts "show[ ] particular concern for protecting the privacy interests of children." Doe v. MedStar Georgetown Univ. Hosp., Inc., No. 13-cv-898, 2014 WL 12993130, at *3 (D.D.C. Apr. 16, 2014); see Yaman v. U.S. Dep't of State, 786 F. Supp. 2d 148, 153-54 (D.D.C. 2011) ("[C]ourts are more inclined to protect the privacy interests of children than adults[ ] whether because children are conceived as more vulnerable or because the child whose privacy is at stake has not chosen for himself or herself to pursue the litigation[.]") (cleaned up). "Such open document requests . . . would impose an undue and disproportionate burden on [CSSP] to prepare a privilege log [and redactions] of the thousands of documents that [CSSP] could reasonably be expected to possess after [over] a decade of" involvement in federal court litigation concerning minor children. DeCosta, 233 F. Supp. 3d at 3-4 (cleaned up); see Meltzer Decl. ¶ 5. Conducting this review would impose substantial costs on CSSP, see Meltzer Decl. ¶ 5, which further tips the scales in favor of establishing that the Subpoena "constitutes an undue burden." In re Motion to Compel Compliance with Subpoena Direct to Dep't of Veterans Affs., 257 F.R.D. 12, 19 (D.D.C. 2009).
Taken together, "[t]he burden of producing this information outweighs its relevance." Oberg, 2010 WL 3719921, at *4. "As a result, this Court finds that the . . . Subpoena must be quashed or modified[.]" Concord Boat Corp., 169 F.R.D. at 53. "Although Rule 45 empowers a district court to modify a subpoena, Fed. R. Civ P. 45(c)(3)(A), this Court declines to do so in the instant case" for requests 1-9. Id. (cleaned up). "It is beyond the capabilities of this Court to divine precisely which of the voluminous documents received, created, or maintained by [CSSP] . . . might assist [Defendants'] preparation of their underlying . . . suit." Id. at 54. "Furthermore, even if this Court could forecast [Defendants'] discovery needs, it would hesitate to do so in the instant case where the underlying litigation is pending in a distant jurisdiction, subject to other discovery orders of which this Court is unaware, and based on facts about which this Court knows little." Id. Ultimately, these requests attempt to conscript CSSP into service as an unretained expert, which "the Court will not condone." Darling, 2015 WL 13898434, at *7.
B. Document Request 10
The final document request of the Subpoena seeks "[a]ll Communications between [CSSP] and anyone about the [underlying litigation]." Subpoena at 16. Defendants seem to base this request on CSSP President Judith Meltzer's comments in a single article published on February 21, 2020, by a Portland, Oregon-based newspaper, Street Roots. See Defs.' Opp'n at 7-8; Defs.' Opp'n, Decl. of Anna M. Joyce Supp. Defs.' Opp'n Mot. Quash Subpoena Non-Party Center for Study of Social Policy, Ex. 2, Street Roots Article 8-9, ECF No. 4-1. Specifically, Defendants argue that Ms. Meltzer's comments on child welfare systems demonstrate that she (and CSSP more broadly) "has opinions about the [u]nderlying [l]itigation and how to reform Oregon's child welfare system[.]" Defs.' Opp'n at 8. The Court finds that this document request falls within the broad scope intended by Rules 26(b)(1) and 45—and thus declines CSSP's invitation to quash this portion of the subpoena.
1. Relevance of the Discovery Request
First, this document request is relevant. See Oberg, 2010 WL 3719921, at *3. Ms. Meltzer appears to have opinions about how to improve Oregon's child welfare system. See Street Roots Article at 8-9. This is a central issue in the underlying litigation. See Defs.' Opp'n at 8. It follows that CSSP may possess communications concerning this issue. See Darling, 2015 WL 13898434, at *6. In short, "[t]he Court is persuaded that [CSSP's] efforts to refute the relevance of [document request 10] are unavailing[.]" Id. at *5.
2. The Burden of the Discovery Does Not Outweigh the Benefit
Second, "the burden imposed on [CSSP] by complying with [document request 10 of] the [S]ubpoena does not outweigh its benefit to [Defendants.]" Id. at *7. The request is targeted, which mitigates the burden. See id. at *4-5. Specifically, document request 10 seeks a narrow category of documents—"communications" between CSSP and others about the underlying litigation—whereas requests 1-9 seek "all [d]ocuments" for open-ended categories. See Subpoena at 15-16. And because the underlying litigation commenced in 2019, the request covers less than a four-year period, unlike document requests 1-9, which cover more than a decade. See Defs.' Opp'n at 11. Compare Alexander v. U.S. Fed. Bureau of Investigation, 186 F.R.D. 21, 36 (D.D.C. 1998) (document requests were not "overly broad and unduly burdensome" when the requests were limited "to the time period relevant to [the] case"), with DeCosta, 233 F. Supp. 3d at 3-4 (document requests "overbroad and unduly burdensome" when they "could reasonably be expected" to cover thousands of documents spanning a decade).
Therefore, "the Court will permit [Defendants'] document request [10]." Oberg, 2010 WL 3719921, at *5. If CSSP truly "has no connection whatsoever to the [u]nderlying [l]itigation" and has no responsive documents in its possession, CSSP's Mem. at 8; see Meltzer Decl. ¶ 4, then it may state as much in its response.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that
1. CSSP's Motion to Quash is GRANTED IN PART with respect to document requests 1-9 and DENIED IN PART with respect to document request 10. 2. CSSP shall comply with Defendants' Subpoena, as modified, by not later than April 4, 2023.