United States District Court, D. Nebraska
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation; and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
SUPERVALU INC., a Delaware corporation; Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff,
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants, Counterclaimants, and Third-Party Defendants,
TREVOR BOROWIAK, Third-Party Defendant.
Michael D. Nelson, United States Magistrate Judge.
matter is before the Court on the Motion to Quash and/or
Protective Order and For Expedited Relief (Filing No.
152) filed in the Lead Case by Plaintiff, Borowiak IGA
Foodliner, Inc. (“Borowiak”) and non-party Mark
19, 2018, AFM/AWG issued a subpoena to third-party Franklin
to testify on July 10, 2018, in Minneapolis, MN. (Filing
No. 152 at p. 6). The subpoena requests that Franklin
bring several documents with him to the deposition, including
documents regarding proposals or agreements between
Supervalu, Borowiak, and AFM/AWG and Borowiak's financial
condition. (Filing No. 152 at pp. 6-9). AFM/AWG did
not consult with counsel for Borowiak prior to serving the
subpoena, nor did AFM/AWG provide counsel for Borowiak with a
copy of the subpoena after it was served. (Filing No.
153-1 at p. 2). On June 27, 2018, Franklin contacted
counsel for Borowiak because he is unavailable to attend the
deposition on July 10, 2018, and asked that it be rescheduled
in August because he will be traveling extensively in July.
28, 2018, counsel for Borowiak contacted counsel for AFM/AWG
to inform them that both Franklin and Borowiak's counsel
were unavailable on July 10, 2018, and sought proposed dates
in August to reschedule. (Filing No. 153-2;
Filing No. 153-4). Counsel for AFM/AWG refused to
reschedule. (Filing No. 153-3). Franklin thereafter
engaged counsel for Borowiak to represent him in connection
with filing the instant motion.
considered the matter, the Court will quash the subpoena.
First, because the subpoena commands Franklin to bring with
him several documents for inspection, copying, testing, or
sampling, (Filing No. 153 at p. 6), AFM/AWG was
required to provide notice to opposing counsel before serving
the subpoena. See Fed.R.Civ.P. 45(a)(4)(“If the
subpoena commands the production of documents, electronically
stored information, or tangible things . . . then before it
is served on the person to whom it is directed, a notice and
a copy of the subpoena must be served on each party.”);
NECivR 45.1(a)(“No subpoenas for production or
inspection may be issued for service on a nonparty without
giving the adverse party notice[.]”). The Eighth
Circuit has found a district court may quash a subpoena duces
tecum to a non-party which was served without providing prior
notice to opposing counsel. See Firefighter's Inst.
for Racial Equal. ex rel. Anderson v. City of St. Louis,
220 F.3d 898, 903 (8th Cir. 2000).
AFM/AWG was required to “give reasonable written notice
to every other party” regarding the deposition.
Fed.R.Civ.P. 30(b)(1)(“A party who wants to depose a
person by oral questions must give reasonable written notice
to every other party.”). Neither Borowiak nor Franklin
have taken the position that Franklin's deposition cannot
be taken, nor have they unnecessarily sought a lengthy delay
for any unreasonable purpose. Rather, they simply request
that Franklin's deposition be rescheduled sometime next
month because both Borowiak's counsel and Franklin are
not available for a deposition in Minnesota on July 10. Had
counsel for AFM/AWG contacted Borowiak's counsel prior to
serving the subpoena, this issue would not have needed to
come before the Court. See, e.g., Schmidt et al v.
Bellevue Medical Center L.L.C., No. 8:13CV143, ECF No.
143 (March 3, 2015)(Gossett, J.)(quashing defendant's
noticed depositions of non-party witnesses because the
depositions were noticed without consulting plaintiffs'
counsel to determine his availability); E.E.O.C. v. Danka
Indus., Inc., 990 F.Supp. 1138, 1141 (E.D. Mo.
1997)(“Plaintiffs do not object to the testimony of
[non-party individuals] but only object to the scheduling of
their depositions when plaintiffs' counsel are
unavailable. Plaintiffs' counsel are entitled to be
present at any deposition taken by defendants, including that
of [the non-party individuals]. The attorneys in this
case are expected to cooperate with each other in scheduling
depositions so that it will be unnecessary for any party to
present such a dispute for resolution by the
Court.”)(emphasis in original).
a subpoena may be quashed or modified if it subjects a person
to undue burden. Fed.R.Civ.P. 45(d)(3)(A)(iv). Unilaterally
scheduling a deposition on a date that both opposing counsel
and the deponent are out of town and unavailable presents an
undue burden. Accordingly, the Court will grant the motion to
quash the deposition of Mark Franklin scheduled for July 10,
2018. AFM/AWG may re-notice the deposition after counsel meet
and confer to determine a date convenient for the parties and
consideration, IT IS ORDERED:
Motion to Quash and/or Protective Order and For Expedited
Relief (Filing No. 152 in the Lead Case; Filing No.
158 in the Member Case) is granted.
Counsel are to meet and confer to expeditiously reschedule
Mark Franklin's deposition for a ...