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IN THE MATTER OF FB FOODS

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.
v.
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.

  SO ORDERED.

20051102

© 1992-2005 VersusLaw Inc.



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