United States District Court, E.D. Michigan, Southern Division
VICTORIA A. ROBERTS DISTRICT JUDGE.
OPINION AND ORDER
STEVEN WHALEN United States Magistrate Judge.
matter is before the Court on Plaintiff Seattle Times
Company's (“Times”) September 8, 2016
Motion to Enforce August 15, 2016 Order [Docket #7]
pertaining to the Honorable Victoria A. Roberts' order
requiring Respondent Hoyt Corporation (“Hoyt”) to
comply with the Times' Subpoena. See Docket #6.
The case has been referred for hearing and determination
under 28 U.S.C. § 636(b)(1)(A). The undersigned held a
hearing on October 13, 2016 and the motion was taken under
advisement. For the reasons set forth below, the motion is
GRANTED IN PART and DENIED IN PART.
current motion pertains to the underlying environmental cost
recovery action in the Western District of Washington.
Seattle Times Co. v. LeatherCare, Inc., Case. No.
2:15-cv-01901-TSZ (W.D. Wash.).
10, 2016, the Times subpoenaed documents from Hoyt, a former
manufacturer of dry cleaning equipment sold to Defendant
LeatherCare, Inc. (“LeatherCare”). Docket
#1. On August 4, 2016, the Times filed a motion for
order compelling production or inspection of documents
pursuant to subpoena duces tecum served on Hoyt under Federal
Rule of Civil Procedure 45(d)(2)(B)(I). On August 15, 2016,
Judge Roberts ordered that the 127 bankers boxes (identified
by Hoyt as containing possibly relevant material) be reviewed
by Hoyt for “relevant, non-privileged documents”
and that such documents be provided to the Times on a
“rolling basis.” Docket #6 at 2. The
District Court noted that Hoyt proposed that it pay 40
percent of the cost for the document review and that the
Times pay 60 percent. Id. The District Court ordered
parties to reach an agreement on the allotment of cost.
Id. In the event that parties were unable to agree,
the Court noted that the issue “may require
October 11, 2016, the parties submitted a pre-hearing joint
statement of unresolved issues pertaining to the motion to
enforce. First, the Times argues that it is entitled to the
portion of Hoyt's “old business records” in
the possession of Hoyt's attorneys, Foley, Baron, Metzer
& Juip (“FMBJ”). Docket #13 at 2.
The Times faults Hoyt's attorneys for not even looking
for responsive documents in their possession. Id. In
response, Hoyt states even non-privileged documents in the
possession of FMBJ are not within the scope of the subpoena
to Hoyt. Id. at 3.
the issue of control, it is ‘well-settled that a party
need not have actual possession of the documents to be deemed
in control of them;' rather, the ‘test is whether
the party has a legal right to obtain them.'”
DeGeer v. Gillis, 755 F.Supp.2d 909, 924 (N.D.Ill.
2010)(citing Dexia Credit Local v. Rogan, 231 F.R.D.
538, 542 (N.D.Ill.2004)). While the Rule 45 respondent's
law firm had “possession and custody of the database,
” the respondent “[did] not contend that it
lack[ed] a legal right to obtain its documents.”
Id. Likewise here, Hoyt is required to produce
responsive, non-privileged documents in the possession of
FMBJ subject to any agreement between the the Times and Hoyt
to narrow the scope of the subpoena.
the Hoyt and the Times dispute whether Hoyt must produce all
responsive, non-privileged documents in its possession,
custody or control, or only those generated by Hoyt.
Docket #13 at 4. The Times argues that the District
Court's order does not distinguish between documents
actually authored by Hoyt and all responsive documents its
possession or control. Id. at 4-5. In response, Hoyt
notes that the Times abandoned its request for certain
categories of documents. Id. at 5-6.
Times' subpoena is not limited to documents generated by
Hoyt. Further, all responsive non-privileged documents in the
possession of FMBJ that Hoyt is entitled to (subject to any
limitations agreed to by the Times and Hoyt) are
discoverable. DeGeer, supra.
the parties disagree on whether Hoyt has produced all
“responsive non-privileged” historical business
records. Docket #13 at 6. According to the Times,
Hoyt's claim that it is not required to produce documents
it did not author suggests that it is also withholding
historical records in its possession but authored by others.
Id. The Times argues that it is therefore entitled
to review Hoyt's files for responsive documents.
Id. In response, Hoyt states that it has made a
diligent search of all historical records in its possession
for responsive documents. Id. at 7-8. While the
Times faults Hoyt for the tardy production of certain
documents, Hoyt states that the late production of the
material was attributable to the fact that the documents
“had been segregated from the bulk of Hoyt's
originals many years ago.” Id. at 7.
Times has failed to show that it is entitled to peruse
Hoyt's records for “potentially responsive
documents . . .” The District Court's August 15,
2016 order states that the Times would be permitted to review
the material after “Hoyt clears it for relevancy and
non-privilege.” Docket #6, ¶ 3. As
discussed above, the Times is entitled to additional
responsive, non-privileged documents, regardless of whether
they were generated by Hoyt. However, the facts of this
dispute do not suggest that the Times is entitled to rifle
through Hoyt's documents before they is reviewed for
relevancy or privilege.
parties disagree on the allocation of fees and costs for the
Rule 45 subpoena. The Times argues that Hoyt's failure to
“search for and produce all required documents”
violates the subpoena and the Court's August 15 Order.
Id. at 8. The Times contends that “Hoyt has
interfered with the . . . prosecution of what even Hoyt
concedes is a case critical to the Times' future as the
only daily general circulation newspaper in a city of two
million people.” Id. As a sanction for
Hoyt's “bad-faith conduct, ” the Times argues