FULL DISCLOSURE: The law firm of Bordas & Bordas represented Respondent throughout these proceedings.
Petitioner, Kahle’s Kitchens, Inc., filed a lawsuit in Pennsylvania alleging that plywood it received from a distributer, DSI, contained word-boring insects. Through discovery, Petitioner learned that Respondent, Shutler Cabinets, Inc., had also received plywood from the same shipment. Petitioner then filed a miscellaneous proceeding in Marshall County, asking the court to issue a subpoena directing Respondent to produce any and all documents relating to plywood shipments received from DSI over a one-year period. More than that, Petitioner demanded production of Respondent’s entire customer lists for the same time period, together with any work orders, diagrams, etc. Respondent objected that the subpoena was overbroad on its face and requested appropriate relief, including attorney fees.
The trial court quashed the subpoena without a hearing. Petitioner then filed a motion, under Rule 59, asking to alter or amend the court’s prior order. The parties again briefed the issues, and Respondent also provided an affidavit confirming the following facts: (1) that in Respondent’s 31 years of doing business, it had never experienced an infestation of word-boring insects at its own facility, (2) that in Respondent’s 31 years of doing business, it had never received a complaint from a customer involving wood-boring insects, and (3) that Respondent regards the names and addresses of its customers to be confidential, together with any related work orders, diagrams, etc. Despite this, Petitioner insisted that it should have the right to personally contact Respondent’s customers regarding any possible infestation, known or unknown. Thereafter, the trial court denied Petitioner’s motion under Rule 59, received evidence in support of Respondent’s fees, and made a fee award of approximately $7800. Petitioner appealed.
Did the trial court act properly in refusing to enforce petitioner’s subpoena and awarding attorney fees?
The Supreme Court reaffirmed the rule that, when a subpoena is being used as a discovery device, the general limitations and protections outlined in Rule 26 are applicable. See, e.g., Keplinger v. Virginia Electric & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000). Fundamentally, the Court focused on two substantive issues. First, Respondent had objected that some of the documents included in the subpoena were obtainable directly from DSI, who was a party to the Pennsylvania litigation. Rule 26(b)(1)(A) specifically authorizes trial courts to limit or prohibit discovery where the same information is, in fact, “obtainable from some other source that is more convenient, less burdensome, or less expensive.” The Court acknowledged that production could still be ordered if “there is reason to believe that the files of the third party may contain different versions of documents, additional material, or perhaps, significant omissions.” Visto Corp. v. Smarter Info. Sys., Ltd., 2007 W.L. 218771 (N.D.Cal. 1/29/07). Here, however, Petitioner made no such showing. Accordingly, the trial court’s rulings in this regard were affirmed.
The second issue was on burdensomeness. The Court readily determined that Petitioner’s request for a year’s worth of project materials was overbroad--especially in light of the fact that the subpoena was not limited to projects involving plywood received from DSI. The court also gave “special weight” to the fact that Respondent was a nonparty to Petitioner’s ongoing litigation against DSI. The rules recognize that “concern for the unwanted burden thrust upon nonparties is a factor entitled to special weight in evaluating the balance of competing needs.” The broad request for materials, including Respondent’s customer list, was found to be patently unreasonable. Accordingly, this part of the trial court’s order was also affirmed.
The final issue involved the trial court’s award of attorney fees. Citing Rule 45(d)(1), the court held that a party issuing a subpoena is under “a clear, unambiguous duty…to take reasonable steps to avoid imposing undue burden…on a person subject to [a] subpoena.” Here, the subpoena “sought to impose an undue burden on Respondent” because the records to be subpoenaed were “unrelated” to any transactions with DSI and, furthermore, were “completely irrelevant to [Petitioner’s] Pennsylvania lawsuit.” The Court, therefore, affirmed the award of attorney fees. However, because the trial court granted relief without providing a hearing, no fee was awarded with respect to Petitioner’s Rule 59(e) motion.
This case is a good reminder of the trial court’s power under Rule 26 to prevent overbroad and burdensome discovery, whether in the form of a subpoena or otherwise. Too often subpoenas are being used without due regard for the rights of the third parties upon whom they are served. Certainly, this case stands as a warning that not only will subpoenas be quashed if they are overbroad, burdensome, or otherwise beyond the scope of proper discovery under Rule 26, but a fee award may also be made as a sanction for this kind of improper discovery.