The opinion of the court was delivered by: Robert H. Cleland United States District Judge
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THIRD-PARTY WITNESSES' MOTION TO QUASH AND GRANTING PLAINTIFF'S MOTION
TO FILE THE LISS DEPOSITION UNDER SEAL
Before the court are two motions: third-party witnesses Arthur Liss and Liss, Seder & Andrews, PC's ("the Liss Firm") motion to quash two subpoenas issued by Plaintiff and Plaintiff's motion to file Arthur Liss's deposition transcript under seal.*fn1 For the following reasons, the court will order Plaintiff to submit a proposed order to modify the subpoenas, and thus will grant in part and deny in part the motion to quash. The court will grant Plaintiff's motion to file the Liss deposition under seal.
In what has become a myriad of discovery orders, the court has discussed the background and history of this case, and so only recounts here the facts most apposite to the pending motions.
Plaintiff sued Defendant on January 25, 2008, alleging that Defendant defrauded Plaintiff of hundreds of thousands of dollars using falsified insurance claims, most of which related to attendant care benefits ("AC Benefits"). Plaintiff asserts that Defendant claimed AC Benefits that were not provided by Defendant to Fecchia Hawkins, Defendant's niece and Plaintiff's insured. The court entered a "Preliminary Scheduling Order" on June 19, 2008, after a scheduling conference, setting a deadline for filing dispositive motions. On September 11, 2008, the court issued a scheduling order, which set a January 12, 2009 deadline for discovery, and a February 12, 2009 deadline for dispositive motions, among other deadlines. The court granted Plaintiff's motion to extend discovery by 90 days on December 23, 2009, and entered an amended scheduling order on January 6, 2009, setting a deadline for completion of discovery on April 13, 2009.
On March 25, 2009, the court stayed and administratively closed the case because Defendant filed for bankruptcy in the Eastern District of Texas. The stay was lifted on October 15, 2009, after the bankruptcy court had lifted the automatic stay in the case. In that order, the court stated: "A status conference will . . . be necessary to determine what changes, if any, should be made to the current scheduling order and to address how to proceed regarding the motions that were outstanding when the stay was imposed." The court held a telephone conference on November 9, 2009. In a November 10, 2009 order, the court set a schedule for renewing motions after the case resumed. In the months that followed, the court entertained a variety of discovery-related motions.
The subpoenas at issue in Defendant's motion seek: "(1) All documents relating to Fecchia Hawkins; and (2) All documents relating to Deanna Hawkins' (a) attendant care claims, (b) guardianship and conservatorship for Fecchia Hawkins; and (c) bankruptcy proceedings." One subpoena ("Liss Subpoena") directs Arthur Liss to produce the above documents, and the other ("Firm Subpoena") directs the Liss Firm to produce those documents.
Liss and the Liss Firm seek to quash the subpoenas as unreasonable on three grounds: 1) they were issued after the April 13, 2009 discovery deadline; 2) they are overbroad; and 3) compliance would place an undue burden on Liss and the Liss Firm. Plaintiff responds that 1) the subpoenas are reasonably calculated to lead to the discovery of relevant evidence; 2) any claimed attorney-client privilege is eviscerated by the crime-fraud exception; 3) there is no undue burden; and 4) discovery has not closed.
The court held a hearing on the motion to quash on September 1, 2010. For the reasons that follow, the court will grant the motion in part and deny it in part, and will order Plaintiff to submit to the court a proposed order trimming the subpoenas in a manner not inconsistent with this opinion. The court will grant Plaintiff's motion to file the Liss deposition transcript under seal.
A. Review of Scope of a Subpoena
The Federal Rules of Civil Procedure permit discovery regarding any non-privileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). Evidence is admissible for relevance purposes if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." Fed. R. Evid. 401. A court that issues a subpoena in discovery must quash or modify it where the subpoena "requires disclosure of privileged or other protected matter, if no exception or waiver applies; or . . . subjects a person to undue burden." Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv).
B. Attorney-Client Privilege
In this diversity action, the district court applies federal procedural law and state substantive law. See Legg v. Chopra, 286 F.3d 286, 289 (6th Cir. 2002) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). The Federal Rules of Evidence are procedural for the purposes of that distinction, id., but the Rules themselves "direct federal courts sitting in diversity to apply state evidentiary laws in three narrow contexts," Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 296 n.1 (6th Cir. 2007); see Fed. R. Evid. 302 (presumptions); Fed. R. Evid. 501 (privileges); Fed. R. Evid. 601 (witness competency). "[I]n civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." Fed. R. Evid. 501.
The attorney-client privilege in Michigan attaches to communications made by a client to his or her attorney acting as a legal adviser and made for the purpose of obtaining legal advice on some right or obligation. The purpose of the privilege is to allow a client to confide in his or her attorney secure in the knowledge that the communication ...