Boston Restoration Resources sought to quash a document subpoena served on non-party United Housing Management, arguing the subpoena was overbroad, burdensome, and sought documents relevant only to a damages theory the plaintiff had abandoned. The court denied the motion, holding that a party lacks standing to challenge a subpoena directed to a non-party unless the party asserts a personal legal right or privilege in the requested information.
Under Massachusetts Rule of Civil Procedure 45(f)(3), only the person subject to a subpoena may move for a protective order or invoke previously granted discovery protections. Here, the plaintiff could not satisfy this requirement because it did not claim the subpoena invaded any legal privilege or privacy right the plaintiff itself possessed. Objections based on overbreadth, burden, or marginal relevance to pending claims belong to the non-party recipient, not to other parties in the litigation.
The full text of the opinion follows below. Slip opinions are subject to formal revision; the official version is published in the official reports.
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT
- 17-1142-C
BOSTON RESTORATION RESOURCES, INC.
v.
LORENZO PITTS, INCORPORATED, WILLETTA
PITTS-GIVENS, REBECCA MAUTNER, LESLIE
BOS, and JAMAICA PLAIN NEIGHBORHOOD
DEVELOPMENT CORPORATION
MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF’S MOTION TO QUASH DEPOSITION
SUBPOENA TO KEEPER OF RECORDS OF
UNITED HOUSING MANAGEMENT, LLC
Plaintiff Boston Restoration Resources, Inc. (“BRI”) has brought a Rule 45(d) motion to quash a document subpoena served on non-party United Housing Management, LLC. The thrust of BRI’s motion is that the subpoena is unreasonably over-broad and burdensome, and seeks documents relevant only to a previously asserted theory of damages it has since abandoned. United Housing Management has to date defied the subpoena served upon it, but has not joined this motion.
Mass. R. Civ. P. 45(f)(3) provides that “[a]ny person subject to a subpoena under this rule may move the court (A) for a protective order under rule 26(c) or (B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.” Inasmuch as BRI is not “the person subject to subpoena” under Rule 45, and does not maintain that production of the documents sought thereby would invade any legal right or privilege it has in the same, it lacks standing to assert objections on behalf of United Housing Management. See In re Stone & Webster Securities Litigation, 2006 WL 2818489, at *2-3 (D. Mass. 2006) (a party has no standing to object to a subpoena directed to a non-party); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena addressed to a non-party witness.”). See generally P. Lauriat et al., Discovery, 49A Mass. Practice _ 8:23, at 289 and n.21 (3d ed. 2017) (“In general a party has no standing to assert objections to a subpoena on behalf of a non-party.”).
It is true, as BRI points out, that “[a] party has standing to quash a subpoena served on a non-party if he or she has a personal right or privilege with respect to the requested information.” Enargy Power (Shenzhen) Co. Ltd. v. Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014). See also P. Lauriat, supra, 49A Mass. Practice _ 8:23, at 289 (“A party may assert objections as to a subpoena served on a non-party … where the objections relate to rights of that party rather than the non-party.”). This is not the case in BRI’s present motion. BRI does not contend that the subpoena served upon United Housing Management invades any cognizable privacy right or legal privilege it has in the requested documents, but instead insists that the subpoena burdensomely seeks the production of records having only marginal relevance to the claims in litigation. BRI lacks standing to assert such objections. See Collins v. Does 1-38, 941 F. Supp. 2d 153, 159-60 (D. Mass. 2013) (“As a general rule, a party lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege attached to the information sought or unless it implicates a party’s privacy interests.”)(quotations omitted).
Accordingly, plaintiff BRI’s Motion to Quash Deposition Subpoena shall be, and hereby
is, DENIED.
SO ORDERED.
_______________________
Robert B. Gordon
Justice of the Superior Court
Dated: March 16, 2018