United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Camoco, LLC's
"Emergency Motion to Extend Discovery Deadline and
Compel Deposition of Non-Party Witness"
("Motion") (ECF No. 79) filed on October 28, 2019.
Therein, Plaintiff asks the Court to extend the discovery
deadline for 30 days from the date of the Scheduling
Order-November 1, 2019, see Scheduling Order (ECF
No. 55) and compel the deposition of Ms. Carla Moreno
("Ms. Moreno"), a represented non-party witness,
during the requested extended discovery period. Mot. at
For the reasons that follow, the Court GRANTS IN PART
and DENIES IN PART Plaintiffs Motion.
13, 2018 Plaintiff filed this action against Defendant Carlos
Leyva a/k/a/ AJ&I Construction Clean Up
("Defendant") under the Florida Deceptive and
Unfair Trade Practices Act ("FDUTPA"), Fla. Stat.
§ 501.204(1), alleging that Defendant breached an
employment agreement with Plaintiff when he opened a side
business during his employment, operated that business in
competition with Plaintiff, and used Plaintiffs employees,
business assets, and resources to operate that business. Mot.
at 2; see also Compl. at 2, ECF No. 2. Plaintiff
claims to have lost more than $100, 000 in business revenue
and customer contracts since Defendant started his side
business competing with it. See Compl. at 2.
seeks to depose Ms. Moreno, who worked for Plaintiff during
the same time Plaintiff employed Defendant and again after
Defendant stopped working for Plaintiff. Mot. at 2. Plaintiff
asserts that Ms. Moreno is a non-party witness with knowledge
of relevant facts in this case because Defendant claims that
Plaintiffs business losses "were caused in part by
Moreno's poor work performance." Id.
Moreover, Plaintiff asserts that "Defendant and Moreno
are romantically involved and, [based] on information and
belief, now work together in business in competition with
Ms. Moreno is not a party to this case, Plaintiff states that
she has filed a complaint against it with the Equal
Employment Opportunity Commission ("EEOC"), in
which she is represented by attorneys Enrique Chavez and
Michael Anderson. Id. at 2-3. On October 18, 2019,
Plaintiff served Ms. Moreno a subpoena for her testimony at a
deposition on October 25 regarding the above-captioned case.
See Notice, ECF No. 78. On October 23, Plaintiffs
attorney in the EEOC matter, Nathan Pearman, emailed Ms.
Moreno's attorneys to inform them that "he would
telephonically attend the deposition" of their client.
Mot. at 3. But the next day, Ms. Moreno's attorneys
responded to Pearman's email, stating that they would not
attend the deposition and that:
Our firm does not represent Carla Moreno in the case of
Camoco, LLC v. Carlos Leyva. We do not intend to
make an appearance in that case. Ms. Moreno is not a party in
We do not consent to any questioning of Ms. Moreno, at the
deposition for the Leyva matter [sic], in any way concerning
Ms. Moreno's EEOC charges or claims at the deposition for
the unrelated Leyva matter, any questions to Ms. Moreno
regarding her EEOC charges are prohibited by the Rules of
Id., Ex. A at 2, ECF No. 79-1.
Ms. Moreno's deposition began on October 25, 2019,
Plaintiffs attorney in the instant case spoke with one of Ms.
Moreno's attorneys by phone. Id. at 3. Ms.
Moreno's attorney told Plaintiffs attorney that "he
did not object to Moreno being deposed, but [that] he would
not attend the deposition and objected that any questioning
of Moreno about her past or present employment would violate
the Rules of Disciplinary Conduct." Id. at 3-4.
Out of an abundance of caution, Plaintiffs counsel limited
his questioning of Ms. Moreno during the October 25
deposition. Id. at 4. Plaintiffs counsel then
suspended the deposition pending the outcome of the instant
motion to compel. Id.
Scope of Discovery
Rule 26(b), "[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party's
claim or defense." Fed.R.Civ.P. 26(b)(1). "Relevant
information encompasses 'any matter that bears on, or
that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.'"
Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470
(N.D. Tex. 2005) (quoting Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978)). "Relevancy is
broadly construed, and a request for discovery should be
considered relevant if there is 'any possibility'
that the information sought may be relevant to the claim or
defense of any party." Sheldon v. Vermonty, 204
F.R.D. 679, 689 (D. Kan. 2001) (quoting Scott v.
Leavenworth Unified School Dist. No. 453, 190 F.R.D.
583, 585 (D. Kan. 1999)). "The party seeking discovery
bears the initial burden of showing that the materials and
information sought are relevant to the action or will lead to
the discovery of admissible evidence." Reynolds
v. Cactus Drilling Co., LLC, No.
MO15CV00101DAEDC, 2015 WL 12660110, at *2 (W.D. Tex. Dec. 21,
2015). However, "[o]nce the party seeking discovery
establishes that the materials requested are within the scope
of permissible discovery, the burden shifts to the party
resisting discovery to show why the discovery is irrelevant,
overly broad, unduly burdensome or oppressive, and thus
should not be permitted." Id.
scope of discovery is within the sound discretion of the
trial judge, see Freeman v. United States, 556 F.3d
326, 341 (5th Cir. 2009), who may "tailor discovery
narrowly and ... dictate the sequence of discovery,"
Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
However, the Court must limit discovery, if it determines, on
motion or on its own, that "the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive" or "the proposed
discovery is outside the scope permitted by Rule
26(b)(1)." Fed.R.Civ.P. 26(b)(2)(C). Rule 26(b),
although broad, may not be used "as a license to engage
in an unwieldy, burdensome, and speculative fishing
expedition." Murphy v. Deloitte & Touche Grp.
Ins. Plan, 619 F.3d 1151, 1163 (5th Cir. 2010).
Subpoenas and Motion to Quash or Modify Subpoenas
Rule of Civil Procedure 30(a)(1) provides that a party may
depose any party or non-party and compel their attendance to
the deposition by a subpoena under Rule 45. Fed.R.Civ.P.
30(a)(1). Rule 45 governs discovery from non-parties through
the issuance of subpoenas. See Fed. R. Civ. P. 45
advisory committee's notes to 2013 amendment (In Rule 45,
'"person' is substituted for 'party'
because the subpoena may be directed to a nonparty.").
As with any other forms of discovery, the scope of discovery
through a Rule 45 subpoena is governed by Rule 26(b). See
Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437
CFD, 2007 WL 2786421, at *1 (D. Conn. Sept. 25, 2007)
(citing, inter alia, Fed. R. Civ. P. 45 advisory
committee's notes to 1970 amendment (stating "the
scope of discovery through a subpoena is the same as that
applicable to Rule 34 and the other discovery rules"));
Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 236 (D.
Minn. 2013) ("[S]ubpoenas issued under Rule 45 are
subject to the same constraints that apply to all of the
other methods of formal discovery." (internal quotation
marks and citation omitted)).
Motions to Compel Discovery
Federal Rule of Civil Procedure 37(a)(3)(B)(i), a party
seeking discovery may move for an order compelling an answer,
designation, production, or inspection when "a deponent
fails to answer a question asked under Rule 30 or 31."
Fed.R.Civ.P. 37 (a)(3)(B). The party resisting discovery must
show how each discovery request is not relevant or otherwise
objectionable. See McLeod, Alexander, Powel & Apffel,
P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).
Extension of Deadline While Plaintiffs instant motion
was pending, the parties filed on November 1, 2019, a
"Stipulation Regarding Extension of Discovery
Deadline" (ECF No. 82), in which the parties extended
the Scheduling Order discovery deadline from November 1,
2019, see Scheduling Order (ECF No. 55), to December
1, 2019. ...