United States District Court, D. Oregon, Pendleton Division.
BRUCE HAMPTON, an individual; VENESE HAMPTON, an individual; and BRUCE HAMPTON, as trustee of the Bruce & Venese Hampton Charitable Trust I and the Bruce & Venese Hampton Charitable Trust II, Plaintiffs,
FRED STEEN, individually and as Sheriff of Wallowa County; WALLOWA COUNTY SHERIFF'S OFFICE, a municipal subdivision of the State of Oregon; WALLOWA COUNTY, a municipal subdivision of the State of Oregon; PAUL CASTILLEJA, individually and as Commissioner of Wallowa County; and LLOYD TRACKWELL, JR., aka Lloyd R. Trackwell, aka Lloyd Ray Trackwell, individually and as an agent and informant for Wallowa County and Wallowa County Sheriff's Office, Defendants.
OPINION AND ORDER
PATRICIA SULLIVAN, Magistrate Judge.
Before the court are nine separate motions to quash subpoenas which were served by pro se defendant Lloyd Trackwell, Jr., a/k/a Lloyd R. Trackwell, a/k/a Lloyd Ray Trackwell ("Trackwell"). On May 29, 2014, nonparty Chenoweth Law Group P.C. moved to quash a subpoena served on them by Trackwell (doc. #169). On June 6, 2014, plaintiffs Bruce Hampton, Venese Hampton, and Bruce Hampton as trustee of the Bruce & Venese Hampton Charitable Trust I and the Bruce & Venese Hampton Charitable Trust II (collectively "Hamptons") moved to quash subpoenas served by Trackwell on nonparties D. Zachary Hostetter (doc. #173), Christian L. Brann (doc. #174), Caitlin Rice Hostetter (doc. #175), Charlene F. Wikstrom (doc. #176), Charles A. Wikstrom (doc. #177), Darrell A. Brann (doc. #178), Farm Services Agency (doc. #179), and Title One/Premier Title (doc. #180). No response to the Motions to Quash have been filed. For the reasons set forth below, the motions are GRANTED.
The facts of this case are complicated as the Hamptons and Trackwell have been involved in litigation in one court or another since 2008. See Order (doc. #104) at 2 n.1 (summarizing litigation history). On April 15, 2014, the Hamptons filed a 44-page Third Amended Complaint ("TAC") containing 92 paragraphs of facts and 27 claims under 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961-1968, the Oregon Racketeer Influenced and Corrupt Organization Act ("ORICO"), Or. Rev. Stat. §§ 166.715-166.735, the Oregon Unlawful Debt Collection Practices Act ("OUDCPA"), Or. Rev. Stat. §§ 697.005-697.115, the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692o, and numerous state common law torts. The following facts are alleged in the TAC.
In August 2007, Trackwell sought and procured an agreement to serve as an agent for American Bank of Missouri ("ABM"), to collect a debt allegedly owed by the Hamptons to ABM. TAC ¶ 14. However, the Hamptons claim they were never indebted to ABM. Id. The Hamptons assert, beginning on September 1, 2008, that Trackwell began attempting to collect the debt through a series of unlawful activities. The Hamptons also allege that such attempts were made by Trackwell without his registering as a debt collector with the Oregon Department of Consumer and Business Services, as required by Or. Rev. Stat. 697.015. Id. ¶¶ 15-16.
The Hamptons allege the unlawful activities by Trackwell include: filing lawsuits against them without probable cause, filing false reports about them with various state and federal law enforcement agencies, intentionally interfering with their business and contractual relationships with various third parties, contacting their pastor and other church members and falsely accusing the Hamptons of failing to pay their debts and committing crimes, stalking them and their family, filing fraudulent bankruptcy petitions, and causing the newspaper the U.S. Observer to publish defamatory articles about them. Id. ¶¶ 12-13, 15, 22-33, 37-40, 48-55.
In addition to Trackwell, the TAC names as defendants Wallowa County Sheriff Fred Steen ("Sheriff Steen"), Wallowa County Commissioner Paul Castilleja ("Commissioner Castilleja"), Wallowa County Sheriff's Office ("WCSO"), and Wallowa County (collectively "County defendants"). The Hamptons allege Trackwell committed many of these unlawful activities in a conspiracy and with the assistance of Sheriff Steen, Commissioner Castilleja, WCSO, and Wallowa County. Id. ¶¶ 17, 19, 34, 41. County defendants have pending motions to strike portions of the TAC (doc. #155) and to dismiss the TAC (doc. #157).
In early 2012, Trackwell was charged with criminal stalking in Wallowa County Circuit Court. TAC ¶ 70. On October 24, 2012, Trackwell was convicted of two counts of violating a stalking order and sentenced to two consecutive six month sentences and three years probation. Motion for Stay (doc #79) ¶ 6. On January 17, 2013, this court stayed all proceedings in this case (doc. #104) pending release of Trackwell from jail. The stay was also granted pending resolution of a state court proceeding in Wallowa County Circuit Court between the Hamptons and Trackwell. Following an order from the state court judge holding that proceeding in abeyance, the stay in this case was vacated on April 18, 2014 (doc. #149).
On May 1, 2014, prior to Trackwell filing a response to the TAC, the Clerk of Court, upon request of Trackwell, issued a series of subpoenas to various nonparties for production of documents. These nonparties include Chenoweth Law Group P.C., D. Zachary Hostetter, Christian L. Brann, Caitlin Rice Hostetter, Charlene F. Wikstrom, Charles A. Wikstrom, Darrell A. Brann, Farm Services Agency, and Title One/Premier Title. Production was to take place in various locations by June 13, 2014. Chenoweth Law Group P.C. and the Hamptons timely moved to quash the subpoenas on the grounds they were improperly served, seek documents that are not relevant, and subject them to undue burden and expense.
I. Scope of Permissible Discovery
Federal Rule of Civil Procedure 26(b) provides for the scope of discovery as follows: "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense... and appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). "All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)." Id. Under Rule 26(b)(2)(C) the court, on motion or on its own, must limit the frequency or extent of discovery if it determines any of the following: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed.R.Civ.P. 26(b)(2)(C).
Federal Rule of Civil Procedure 45 authorizes the issuance of a subpoena to command a nonparty to produce designated documents, electronically stored information, or tangible things in its possession, custody or control. Fed.R.Civ.P. 45(a)(1)(A)(iii). The court, on timely motion, must 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). "[T]he scope of discovery through subpoena is the same as that applicable to Rule 34 and other discovery rules." Fed.R.Civ.P. 45 Advisory Committee Notes, 1970 Amendment; see also Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005) ("Although irrelevance is not among the litany of enumerated reasons for quashing a subpoena found in Rule 45, courts have incorporated relevance as a factor when determining motions to quash a subpoena.")
A party responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Fed.R.Civ.P. 45(d)(1). "The court for the district where compliance is required must enforce this duty and impose an appropriate sanction-which may include lost earnings and reasonable attorney's fees-on a party or attorney who fails to comply." Id. District courts have broad discretion to determine whether a subpoena is unduly burdensome. Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774, 779 (9th Cir. 1994). A subpoena is unduly burdensome where it seeks to compel production of documents regarding topics unrelated to or beyond the scope of litigation. See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813-14 (9th Cir. 2003) (district court did not abuse its discretion by quashing overbroad subpoena "served for the purpose of annoying and harassment and not really for the purpose of getting information.").
I. Chenoweth Law Group, P.C.
Nonparty Chenoweth Law Group, P.C. ("CLG") objects to a subpoena served on them by Trackwell and requests this court quash it. CLG Objection to Subpoena (doc. #169) at 1-2. CLG represented nonparty Martin S. Burck Associates, Inc. in protracted litigation relating to an unpaid service contract with nonparty Judith Trackwell, the mother of defendant Trackwell. Id. at 2.
In their objection, CLG states they attached a copy of Trackwell's subpoena as "Exhibit 1." Id. at 1. However, their objection contains no such attachment. Nonetheless, CLG states they received a subpoena from Trackwell in this case in 2012 with an identical document request attached, which they objected to on November 9, 2012. Id. at 1 (citing CLG Objection to Subpoena (doc. #76, Ex. 1)). As such, the court will consider Trackwell's document request in CLG's previous objection along with their present objection.
CLG first objects to Trackwell's subpoena on technical grounds. CLG argues the subpoena was served on them by Trackwell, who is a party to the case, in violation of Rule 45(b)(1). Id. at 2. Further, CLG asserts Trackwell failed to serve notice of the subpoena on each party in this case prior to serving it to CLG, in violation of Rule 45(a)(4). Id. Because CLG failed to provide a copy of the current subpoena Trackwell served on them, the court is unable to quash the subpoena on technical grounds and declines to do so. See Moon, 232 F.R.D. at 637 (the party who moves to quash a subpoena has the burden of persuasion).
CLG also argues Trackwell's subpoena should be quashed based on more substantive grounds. Specifically, CLG argues Trackwell's subpoena request is both irrelevant and unduly burdensome. CLG Objection to Subpoena (doc. #169) at 2. Exhibit A to Trackwell's prior subpoena requests production of the following documents:
1. All non-privileged communications by you from any source relating in any way to Lloyd Trackwell, Judith Trackwell, Mary Wickenkamp or any person believed to be associated with Lloyd Trackwell. Such communications should not be considered to include pleadings in any legal action involving Martin Burck and Judith Trackwell. Such communications include, but are not limited to, any and all communications from the following persons:
2. All non-privileged communications sent by you to anyone the subject of which relates in any way to Lloyd Trackwell, Judith Trackwell or Mary Wickenkamp, except for legal pleadings filed in any legal action involving Martin Burck and Judith Trackwell.
CLG Objection to Subpoena (doc. #76) Ex. 1 at 2.
The court finds Trackwell's subpoena is both irrelevant and unduly burdensome. Defendant Trackwell is also referred to as Lloyd Trackwell Jr. His father, Lloyd Trackwell Sr., is not a party to this case. See TAC ¶ 8. The subpoena is not clear as to whether Trackwell seeks communications related to himself, his father, or both. Furthermore, Trackwell seeks communications between CLG and Judith Trackwell and Mary Wickenkamp, neither whom are parties in this case. As noted above, Judith Trackwell is the mother of defendant Trackwell and according to the TAC, Mary Wickenkamp served as her attorney in a land purchase referred to as the Imnaha Ranch, which resulted in litigation. Id. ¶¶ 7-9. CLG represented an opposing party in litigation with Judith Trackwell wholly unrelated to the instant case. CLG Objection to Subpoena (doc.#169). As a result, the court fails to see the relevance of any communications between CLG and Trackwell, Lloyd Trackwell Sr., Judith Trackwell, and Mary Wickenkamp.
Furthermore, in Request 1, Bruce Hampton is the only party in the instant case on the list of communications Trackwell seeks. D. Zachary Hostetter and Rebecca Knapp are counsel for the Hamptons. The court is not aware who the other listed persons are nor are they mentioned in the TAC. While communications between Bruce Hampton and Trackwell may be relevant, a request for any and all communications from CLG is unduly burdensome and may be obtained through discovery between the parties. Similarly, communications between Zachary Hostetter and Trackwell may be relevant, but also unduly burdensome for CLG to produce. Taken as a whole, Trackwell's subpoena served on CLG on its face is irrelevant and unduly burdensome, and appears to have been served to harass and annoy opposing counsel in a different case, and not for the purpose of obtaining information in this case. See Mattel, 353 F.3d at 813-14. As such, CLG's motion to quash (doc. #169) is GRANTED.
II. Hamptons' Motions to Quash
The Hamptons move to quash eight subpoenas served by Trackwell on nonparties D. Zachary Hostetter (doc. #173), Christian L. Brann (doc. #174), Caitlin Rice Hostetter (doc. #175), Charlene F. Wikstrom (doc. #176), Charles A. Wikstrom (doc. #177), Darrell A. Brann (doc. #178), Farm Services Agency (doc. #179), and Title One/Premier Title (doc. #180). Similar to the subpoena served on CLG, the Hamptons argue that service was defective as Trackwell served the subpoenas himself in violation of Rule 45(b)(1), and that Trackwell failed to serve advance notice of the subpoenas on each party, in violation of Rule 45(a)(4). Furthermore, the Hamptons assert the information sought by Trackwell in the subpoenas is not relevant under Rule 26(b)(1).
As a preliminary matter, the court must first consider whether the Hamptons have standing to bring a motion to quash a subpoena served on a nonparty. In general, a party lacks standing to quash a subpoena issued to a nonparty, unless the party making the challenge claims a personal right or privilege in the material sought. Webster v. Nw. Cancer Specialists, P.C., 2012 WL 2861664, *1 (D. Or. July 7, 2012) (citations omitted).
Here the Hamptons do not have standing as they do not claim any form of personal right or privilege in the documents request by Trackwell. Nonetheless, under Rule 45(d)(1) the district court must ensure that a party issuing and serving a subpoena take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena. Fed.R.Civ.P. 45(d)(1). This rule imposes an obligation on the court even if a party has no standing to move to quash. Mount Hope Church v. Bash Back!, 705 F.3d 418, 425 (9th Cir. 2012); see also Chevron Corp. v. Donziger, 2013 WL 4536808, * ...