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Clay v. Lambert

United States District Court, D. Colorado

October 20, 2017



          Michael E. Hegarty, United States Magistrate Judge.

         Defendants seek to quash a subpoena Plaintiffs served on Verizon Wireless-Defendants' cell phone carrier. The subpoena requests Defendants' phone records for the day before and the day of the accident underlying this case. According to Defendants, the subpoena is overbroad and seeks information over which they have a legitimate privacy interest. The Court quashes the subpoena to the extent it seeks the specific phone numbers to which Defendants made calls or sent messages and the substance of communications Defendants had while using their cell phones. However, Plaintiffs are entitled to information Verizon maintains about the cell towers Defendants' phones accessed. Accordingly, the Court modifies the subpoena so as to request only permissible information.


         Plaintiffs filed the operative Amended Complaint against Defendants on February 24, 2017. ECF No. 21. Plaintiffs assert they were injured in an automobile collision on December 23, 2014. Id. ¶¶ 14-16. According to Plaintiffs, at the time of the accident Defendants Richard Lambert and Malissa Hill were operating a semi-truck owned by Defendant Midwest Transport, LLC. Id. ¶ 10. The truck jack-knifed on the freeway and blocked all lanes of traffic. Id. ¶ 11. Plaintiffs, who were traveling behind Defendants, collided with the side of the truck. Id. ¶ 12.

         Plaintiffs assert causes of action for negligence and recklessness against all Defendants and vicarious liability and negligence in hiring against Midwest Transport only. Id. ¶¶ 18-27. The Court issued a Scheduling Order on April 25, 2017, ECF No. 38, and the parties proceeded with discovery.

         On August 3, 2017, Plaintiffs served a subpoena on Verizon Wireless seeking Defendants Lambert's and Hill's cell phone records from December 22, 2014 at 12:00 a.m. through December 23, 2014 at 12:00 p.m. Subpoena Duces Tecum 2, ECF No. 40-1. Defendants moved to quash the subpoena on August 17, 2017. Mot. to Quash Subpoena, ECF No. 40. Defendants argue the subpoena is overbroad and seeks irrelevant information over which they have a legitimate privacy interest. Id. at 2. Plaintiffs respond that the data indicating what cell towers Defendants' phones accessed will show Defendants' travel route leading up to the accident. Resp. to Mot. to Quash Subpoena 6, ECF No. 47. Plaintiffs intend to use this information to demonstrate that Defendants failed to take sufficient rest stops and were fatigued at the time of the accident. Id. at 7. Furthermore, Plaintiffs contend Lambert and Hill do not have a legitimate privacy interest in their location while driving for Midwest Transport. Id. at 8-9. Defendants filed their reply brief on September 21, 2017. Reply in Supp. of Mot. to Quash Subpoena, ECF No. 49. Defendants assert that although Plaintiffs may be entitled to the cell tower records, the subpoena is not narrowly tailored to request only this data. Id. at 3. Because the subpoena also seeks confidential and irrelevant information, Defendants urge the Court to quash the subpoena in its entirety. Id. at 3-4. Furthermore, Defendants advise the Court that they served an identical subpoena on Verizon and will provide Plaintiffs with any relevant information Verizon produces in response. Id.


         I. Rule 26(b)(1)

         “[T]he scope of discovery under the federal rules is broad.” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995). Federal Rule of Civil Procedure 26(b)(1) permits discovery regarding any nonpriviliged matter that is relevant to a party's claim or defense and proportional to the needs of the case. Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” In considering whether the discovery is proportional to the needs of the case, Rule 26(b)(1) instructs courts to analyze “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.” Fed.R.Civ.P. 26(b)(1). The party objecting to discovery must establish that the requested information does not fall under the scope of discovery as defined in Fed. R. Civ. P 26(b)(1). Simpson v. University of Colo., 220 F.R.D. 354, 359 (D. Colo 2004).

         II. Rule 45

         A subpoena served on a third party pursuant to Rule 45 of the Federal Rules of Civil Procedure is subject to the same standards that govern discovery between the parties-it must seek relevant information and be proportional to the needs of the case. Segura v. Allstate Fire & Cas.

         Ins. Co., No. 16-cv-00047-NYW, 2016 WL 8737864, at *5 (D. Colo. Oct. 11, 2016) (citing Rice v. United States, 164 F.R.D. 556, 556-57 (N.D. Okla. 1995)). Rule 45 requires courts to quash or modify a subpoena that “(i) fails to allow a reasonable time to comply, (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c), (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). Additionally, a court may quash a subpoena if it requires disclosure of a trade secret or other confidential information. Fed.R.Civ.P. 45(d)(3)(B).


         In relevant part, ...

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