United States District Court, S.D. New York
November 2, 2005.
In the matter of the Application of FB FOODS, INC. For an order pursuant to Rule 26(c) and/or 45 of the Federal Rules of Civil Procedure limiting the scope and time period of the documents responsive to a subpoena duces tecum issued by this Court and served by Plaintiff McMahan Securities Co., L.P., upon Third-Party Witness, American Express Travel Related Services Company, Inc. in a matter entitled McMAHAN SECURITIES CO., L.P.
FB FOODS, INC. f/k/a FUNNY BAGEL FOOD COMPANY, INC. pending in the United States District Court for the Middle District of Florida Tampa Division, Case No. 8:04-CV-1791-T-24TGW.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION and ORDER
This action is currently pending in the United States District
Court for the Middle District of Florida. Pursuant to
Fed.R.Civ. 26(c) and 45, Defendant FB Foods, Inc. ("FBF") moves by
Order to Show Cause for an order limiting the scope and time
period of the documents responsive to the subpoena duces tecum
issued by this Court and served by Plaintiff McMahan Securities
Co., L.P. ("MSC") on non-party American Express Travel Related
Services Company, Inc. ("AMEX") to credit card statements and
back up documents no earlier than September 1, 2003; or, in the
alternative, remitting jurisdiction over the instant motion and
subpoena to the Middle District of Florida. The motion was fully
briefed, and the Court heard oral argument earlier today. For the
following reasons, the motion is denied. Absent a showing of privilege or privacy, a party ordinarily
lacks standing to challenge a non-party subpoena with a motion
for a protective order or to quash. See, e.g., Nova Products,
Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 241 (S.D.N.Y. 2004);
9A Wright & Miller, Federal Practice & Procedure § 2459 (2d ed.
1995). Even if FBF has standing, the subpoenaed documents are
relevant to the disputed issue of FBF's financial condition prior
to its involvement with MSC. Furthermore, there is little support
for FBF's argument that Magistrate Judge Wilson of the Middle
District of Florida, in a July 29, 2005 Order, intended to limit
all discovery to post-September 2003 materials. This Order merely
refers to certain requests for production by MSC that happen to
involve financial statements. It is worth noting that in a nearly
contemporaneous Order dated July 15, 2005, Judge Wilson declined
to impose a time-restriction on a subpoena to FBF's bank seeking
documents back to January 2001.
FBF objects to production of the AMEX documents on the grounds
of privilege or confidentiality but cites no authority to support
its argument. See Fed.R.Civ.P. 45(c) (3) (A) (iii). The
Court finds no privilege attaching to the AMEX documents, nor
would production of the reveal information of the sensitive
nature explicitly specified in Rule 45(c) (3) (B). See Sierra
Rutile Ltd. v. Katz, No. 90 Civ. 4913 (JFK), 1994 WL 185751 at
*2 (S.D.N.Y. May 11, 1994). Even if there is a privacy interest, the AMEX documents are protected by a confidentiality agreement
approved by Judge Wilson in his July 15, 2005 Order.
Finally, FBF moves for remittance of the motion and subpoena to
the Middle District of Florida under Rule 26(c). The Court,
following the reasoning of the Court of Appeals for the District
of Columbia Circuit in In re Sealed Case, 141 F.3d 337 (D.C.
Cir. 1998), declines to remit the motion to Florida because AMEX
has not objected to the subpoena or applied for a remittance.
See id. at 342. Pactel Personal Communications v. JMB
Reality Corp., 133 F.R.D. 137 (E.D. Mo. 1990), cited by FBF as
authority for remittance, is inapposite because there the
subpoenaed non-parties themselves moved to quash the subpoena.
For the foregoing reasons, FBF's motion concerning the AMEX
subpoena duces tecum is denied in its entirety.
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