United States District Court, D. Colorado
ORDER ON MOTION TO QUASH
Michael E. Hegarty, United States Magistrate Judge.
Infinity Home Collection (“Infinity”) seeks to
quash Plaintiffs Jamal Coleman and Sheena Coleman's
subpoena. I first find that, although disfavored, class-wide
discovery is not prohibited at this stage. I then find that
five of Plaintiffs' six requests seek relevant,
non-burdensome, and non-privileged information. However,
Infinity's motion is moot as to the sixth disputed
request. Therefore, I deny in part and deny as moot in part
Infinity's Motion to Quash Subpoena.
August 4, 2017, Plaintiffs filed a class action complaint
against Weyerhaeuser Company in the United States District
Court for the District of Delaware. See Compl., ECF No. 1,
No. 17-cv- 01093-JFB-SRF (D. Del. Aug. 4, 2017). Weyerhaeuser
produces and sells joists, which are installed in homes and
other structures. Id. at ¶¶ 3, 27.
Plaintiffs allege Weyerhaeuser attempted to enhance the fire
protection of its TJI joists by coating them with “Flak
Jacket Protection.” Id. ¶¶ 23-24.
However, according to Plaintiffs, the Flak Jacket Protection
contains a formaldehyde-based resin, which emits excessive
levels of noxious and toxic gases. Id. ¶¶
26, 34. These gases allegedly render homes unhabitable.
Id. ¶ 34.
on these allegations, Plaintiffs assert claims for: (1)
breach of express warranty, (2) breach of implied warranty of
merchantability, (3) violation of the Magnuson-Moss Warranty
Act, (4) negligence, (5) negligent failure to warn, (6)
violation of the Delaware Consumer Fraud Act, (7) unjust
enrichment, and (8) declaratory relief. Id.
¶¶ 58-146. Plaintiffs assert these claims on behalf
of themselves and all individuals and entities who own or
have signed contracts to purchase homes in which
Weyerhaeuser's joists are installed. Id. ¶
November 20, 2017, Magistrate Judge Sherry Fallon issued a
Scheduling Order. Scheduling Order, ECF No. 14, No.
17-cv-01093-JFB-SRF (D. Del. Nov. 20, 2017). This order sets
August 1, 2018 as the deadline for a class certification
motion. Id. at 6. Additionally, the order states
that the parties will prioritize discovery relating to class
certification issues. Id. at 2.
November 29, 2017, Plaintiffs served a subpoena on
Infinity-one of the thirty-five entities that constructed
homes with the allegedly defective joists. See Subpoena, ECF
No. 1-3; Reply in Supp. of Mot. to Quash 3, ECF No. 27
(“Infinity acknowledges that it was one of the
thirty-five (35) builders.”). The subpoena contains
eighteen requests for documents. Subpoena 4-7. On December
14, 2017, Infinity filed the present Motion to Quash Subpoena
in this District. Mot. to Quash, ECF No. 1. Infinity contends
the subpoena impermissibly seeks merits-related discovery,
does not allow a reasonable time to comply, seeks disclosure
of privileged information, subjects it to undue burden, and
impermissibly asks for information in Weyerhaeuser's
possession. Id. at 4-7. Plaintiffs' response
brief notes that the parties have narrowed the scope of the
subpoena to six requests. Resp. to Mot. to Quash 6, ECF No.
21. Plaintiffs argue these requests seek relevant and
non-burdensome information. Id. at 6-16. After
Plaintiffs filed their brief, Infinity partially responded to
the remaining requests. Reply in Supp. of Mot. to Quash 8-10,
ECF No. 27. However, Plaintiffs still believe that
Infinity's production was inadequate. Id. at 10.
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. Simpson v. University of Colo., 220
F.R.D. 354, 359 (D. Colo 2004).
subpoena served on a third party pursuant to Federal Rule of
Civil Procedure 45 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 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 the subpoena requires
disclosure of a trade secret or other confidential
information. Fed.R.Civ.P. 45(d)(3)(B).
Infinity's request to quash the subpoena. I first find
that pre-certification discovery is not limited to
class-certification issues unless the discovery would pose an
undue burden on the responding party. Then, I find that
requests six, nine, eleven, twelve, and sixteen seek
relevant, non-privileged, and non-burdensome information. I