United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
D. CLARKE UNITED STATES MAGISTRATE JUDGE.
case comes before the Court on the Hoyal defendants'
Motion (#206) to Quash a Subpoena to Rogue Credit Union. On
October 18, 2017 the Court held a telephone conference with
the attorneys for Plaintiff FTC and the Hoyal defendants. For
the reasons below, the motion to quash is DENIED, subject to
certain conditions to be imposed on the production of the
documents subject to the subpoena.
subpoena served on Rogue Credit Union by the FTC seeks
production of all financial records for all accounts,
business and personal, for which any of the Hoyal defendants
have or had signatory authority. The Hoyal defendants object
for three main reasons. First, they contend that the subpoena
is overbroad; indeed the scope of the information requested
would certainly include production of some documents
unrelated to the litigation. Second, the Hoyal defendants
assert that this overbroad scope exposes their private
banking records unnecessarily, particularly in light of the
number of unrepresented parties in this case who generally
would have access to any documents produced in the normal
course of discovery. Third, the Hoyal defendants raise a
concern about their banking relationship with the
institution, Rogue Credit Union. They believe that because
the bank was served a subpoena earlier this year, an
additional one at this time could jeopardize their ability to
maintain accounts with the institution in the future.
Hoyal defendants do concede that the FTC has a legitimate
claim to access certain banking information and records
related to transactions between the Hoyal defendants and a
third party, Ryan Azares, who the FTC believes is continuing
to conduct business related to the deceptive mailers at issue
in this litigation, and any entities related to Mr. Azares.
The Hoyal defendants propose a solution whereby the FTC would
withdraw the formal subpoena, and the Hoyal defendants would
obtain the documents informally from Rogue Credit Union. The
Hoyal defendants' counsel would then review and redact
any information or records relating to irrelevant personal
transactions, and produce only the relevant documents to the
FTC. The FTC contends that this solution would be reasonable
if not for the extremely tight timeline necessary for the FTC
to receive the documents and review them prior to the Hoyal
defendants' depositions, which are set to take place
within the next two weeks. The FTC contends that the Hoyal
defendants could have produced these documents by responding
to previous document requests, and yet they declined to do
so. At this late hour, a full year into the discovery
process, the FTC requests that the Court deny the motion to
Rule of Civil Procedure 26(b)(1) permits discovery of
"any nonprivileged matter that is relevant to any
party's claims or defense and proportional to the needs
of the case." Rule 26(c) authorizes the Court to limit
discovery upon motion by a party with "good cause"
shown to protect a party from "annoyance, embarrassment,
oppression, or undue burden or expense." Rule 45(d)(3)
authorizes the Court to quash a subpoena under specified
circumstances, including when the subpoena requires
disclosure of privileged or protected materials, when an
exception or waiver does not apply, or when the subpoena
subjects a person to undue burden. See also Tran v. Wells
Fargo Bank, N.A., 2017 WL 1234131, at *2 (D. Or. Jan.
while the Court is sensitive to the privacy concerns of the
Hoyal defendants, none of the documents requested are subject
to a privilege or are otherwise not discoverable. As
conceded, the records sought by the FTC are relevant to
Plaintiffs claims and requests for relief, and the Court has
determined that they are proportional to the needs of the
case. Second, while the Court is also sensitive to the Hoyal
defendants' concern regarding their banking relationship
with Rogue Credit Union, such a concern is not relevant to
the Court's analysis of "good cause shown"
because the documents sought are relevant and proportional,
and do not appear to be sought for the purpose of annoyance,
embarrassment, or oppression.
the Court has full trust in defense counsel's ability to
fairly review the banking documents and faithfully produce
the relevant records sought by the FTC. However, the late
timing prevents the Court from accepting the Hoyal
defendants' otherwise reasonable proposed solution.
Therefore, for the reasons above, the Hoyal defendants'
motion to quash (#206) is DENIED.
order to ameliorate the Hoyal defendants' concerns
regarding overbreadth and privacy. the Court orders the
following conditions to the execution of the FTC's
subpoena. First, upon receipt of the documents from Rogue
Credit Union, the FTC shall review and identify the relevant
documents sought. Second, any personal information or
documents that are not relevant to the litigation shall be
returned to the bank within 30 days. No copies of such
personal records shall be made, and none of these records
shall be produced or distributed to any of the other parties
in the litigation.
Plaintiff FTC is ordered to disregard any records or
information regarding the Hoyal defendants' payments to
their legal counsel. This information shall be considered
irrelevant under all circumstances and returned to the bank