The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Wednesday, 11 May, 2011 03:42:47 PM
Clerk, U.S. District Court, ILCD
Before the Court is Defendants' Motion to Modify Subpoena Issued to Access2Go (Doc. 130). Plaintiff has filed a timely Response in Opposition (Doc. 143). For the following reasons, Defendants' Motion is GRANTED in part and DENIED in part. It is GRANTED in all respects discussed in the following order. It is DENIED in all other respects.
On May 6, 2010, Judge Mihm entered an Agreed Order for Preliminary Injunction in this matter. (Doc. 37). Paragraph 9 of the Preliminary Injunction provides that "[b]oth parties may immediately issue subpoenas to any person and/or entity regarding this case." (Doc. 37 at 4). Pursuant to that provision and Federal Rule of Civil Procedure 45, on April 6, 2011, Plaintiff issued a Subpoena to Produce Documents to Access2Go, Inc. ("Access2Go"), a non-party business entity owned and controlled by Defendants. Although it is not a party, Access2Go is central to this case, as it is the business entity of which Defendants and Plaintiff were co-workers at the time of the relevant events.*fn1
In the Access2Go Subpoena, Plaintiff requests twenty-two categories of documents. (Doc. 127 at 6-7). Defendants have objected to eleven of these requests pursuant to Federal Rule 45(c)(3)(A) as requiring the disclosure of privileged material and subjecting Access2Go to an undue burden. (Doc. 130 at 5-10). As several of Plaintiff's requests encompass similar-type documents, Defendants have made six objections, which the Court will analyze in turn.
I. Request Numbers One and Two
Request numbers one and two seek the production of any and all documents sent between Plaintiff and any person other than Defendants, between January 1, 2006 and the present, which have been intercepted, read, accessed, or reviewed by any officer or employee of Access2Go. Defendants object to these requests, stating that they "are overly broad because they request the production of confidential documents that should be protected from [Plaintiff]." (Doc. 130 at 6-7). Specifically, Defendants claim that Plaintiff sent himself an email to which he attached 175 documents containing Access2Go's confidential business information, and that other of his email communications will contain confidential and proprietary business and customer information. (Doc. 130 at 7).
The Court disagrees. This lawsuit arises out of Plaintiff's allegations that the Defendants intercepted, accessed, and read, his electronic communications. Accordingly, these requests go to the core of the case. Moreover, because all documents contained in these requests are those that were either sent to or sent by the Plaintiff, Plaintiff already has access to them, and Defendants argument that confidential business information will be disclosed via discovery is misplaced.
Still, in order to protect against any fears Defendants may have that such information will be disclosed, the Court believes there are two options which it may follow to alleviate such concerns. Because the relevancy of the information sought by the Subpoena is not the actual content of the communications, but the fact that they were intercepted or otherwise accessed or read by officers or employees of Access2Go, Access2Go need not disclose the contents of any such communications which they believe are confidential in nature. Instead, Access2Go may elect to either create a document log indicating the sender, recipient, date, and subject of each communication, or they may redact the communications to exclude any information within them that Access2Go deems to be confidential business information.*fn2
II. Request Numbers Three, Four, and Five
Request numbers three, four, and five seek the production of all documents sent amongst the Defendants between January 1, 2006 and the present, regarding Plaintiff. (Doc. 127 at 6). Defendants object to these requests as overly broad, unduly burdensome, and not relevant to any party's claim or defense. (Doc. 130 at 7). The Court agrees that in their present form, these requests seek information not relevant to the lawsuit, especially in light of the fact that the ...