467 F.Supp.3d 586
N.D. Ill.2020Background
- Plaintiff (Kevin Rossman), a former oil-and-gas project consultant/inspector, sued EN Engineering under the FLSA alleging unpaid overtime; he seeks class treatment.
- EN placed project consultants with third parties (e.g., Ameren); plaintiff served document requests on EN (Nov. 12, 2019) seeking contracts, invoices, locations, and related materials.
- Plaintiff then served a broad non-party subpoena on Ameren (served Jan. 3, 2020) seeking roughly a dozen categories of documents—many overlapping with requests to EN.
- Counsel exchanged emails about production; Ameren told plaintiff it would authorize EN to produce invoices/purchase orders but did not itself complete production; plaintiff pressed for direct compliance by Ameren and filed a motion to compel.
- The magistrate judge denied the motion (June 16, 2020), holding the subpoena improper because plaintiff had not exhausted party discovery, the requests were duplicative/burdensome to a non-party, and plaintiff failed to satisfy Rule 45 and Local Rule 37.2 obligations; the court did not decide waiver.
Issues
| Issue | Plaintiff's Argument | Defendant / Non‑party's Argument | Held |
|---|---|---|---|
| Validity of non‑party subpoena when identical documents requested from defendant | Subpoenaed Ameren after serving RFPs on EN; says Ameren should produce because it controls documents and authorized EN to produce some items | Documents sought are primarily EN's and should be produced by EN; subpoenaing non‑party is unnecessary and burdensome | Denied — subpoena improper where requests duplicated discovery owed from defendant and plaintiff failed to exhaust party discovery |
| Duty to avoid undue burden under Rule 45(d) | Counsel claims they conferred and tried to minimize burden over months | Non‑party status gives special weight to burden; plaintiff did not take reasonable steps before subpoenaing Ameren | Denied — court emphasizes special protection for non‑parties and that plaintiff must avoid imposing undue burden |
| Whether Ameren waived objections by authorizing EN to produce some documents and communicating with plaintiff | Plaintiff contends Ameren authorized EN and therefore waived objections to the subpoena | Ameren asserted it authorized EN to produce invoices and purchase orders and was not obliged to produce directly; dispute over production timing and scope | Not reached — court found subpoena improper on other grounds and declined to resolve waiver claim |
| Adequacy of meet‑and‑confer under Local Rule 37.2 | Plaintiff relies on email exchanges over ~3 months as conferring | Court says Local Rule 37.2 requires meaningful telephonic or in‑person conferral; mere emails and ultimatums are insufficient | Denied — email exchanges here did not satisfy Local Rule 37.2 or show good‑faith resolution efforts |
Key Cases Cited
- Jaffee v. Redmond, 518 U.S. 1 (1996) (recognizing limits on compelled disclosure and protections for certain non‑party interests)
- Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) (non‑party status increases weight of undue‑burden considerations)
- United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504 (7th Cir. 2010) (unsupportive conclusory objections are insufficient)
- Rickels v. City of South Bend, IN, 33 F.3d 785 (7th Cir. 1994) (courts should not allow parties to ignore legitimate discovery obligations)
- Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605 (7th Cir. 2008) (court should not act as counsel for a party in parsing or drafting discovery)
- Parker v. Four Seasons Hotels, Ltd., 291 F.R.D. 181 (N.D. Ill. 2013) (quashing non‑party subpoena when requests are duplicative of party discovery or overly burdensome)