United States District Court, N.D. Alabama, Southern Division
STEVEN B. BARGER, Plaintiff,
FIRST DATA CORPORATION, et al., Defendants.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
movie Groundhog Day, weatherman Phil Connors finds
himself stuck in a time loop in Punxsutawney, Pennsylvania.
Each day, he wakes up to the same song, reports on the same
news story, and relives the same 24 hours. Likewise, each day
since Defendants filed their motion to compel Grant
Barger's deposition, this court feels as if it has
relived the same 24 hours as Mr. Barger continues to file
motions and notices repeating the same arguments. Today, the
court ends that time loop.
late Judge Acker said it best: “Before the court are
oceans of motions, motions to compel, motions to quash, and
motions for protection.” E.A. Renfroe & Co. v.
Rigsby, No. 06-AR-1752-S, 2008 WL 11376585, at *1 (N.D.
Ala. June 24, 2008). This matter comes before the court on
“Defendants' Motion to Compel Third Parties Phillip
Morgan, Grant Barger and Barger Consulting Group to Comply
with Deposition Subpoena and Memorandum in Support of Law
Thereof.” (Doc. 1). The underlying case, Barger v.
First Data Corp. (1:17-CV-04869-FB-LB), is pending in
the U.S. District Court for the Eastern District of New York.
Defendants First Data Corporation, Frank Bisignano, Dan
Charron, Anthony Marino, Karen Whalen, and Rhonda Johnson
served third-party subpoenas on Phillip Morgan, Grant Barger,
and Barger Consulting Group, seeking both depositions and
documents. Phillip Morgan, Grant Barger, and Barger
Consulting Group all reside in Alabama. Defendants filed
their motion to compel in this court on September 24, 2018.
September 26, Mr. Barger, acting pro se, filed his
“Motion to Strike, Deny or Consolidate” in
response. (Doc. 2). On October 5, Mr. Barger filed his
“Response to Motion to Compel & Motion to Quash
& for Protective Order.” (Doc. 5). On October 15,
Defendants filed “Movants' Reply to Opposition to
Motion to Compel and Opposition to Motion to Quash and for
Protective Order.” (Doc. 9). Mr. Morgan never responded
to Defendants' motion. The motion to compel is now ripe
case originated as a wrongful termination action in the U.S.
District Court for the Eastern District of New York.
Plaintiff Steven Barger, a business consultant, filed a
complaint against his former employer, First Data
Corporation, and several executives. Plaintiff Steven Barger
alleges that Defendants wrongfully terminated him in
violation of the Family Medical Leave Act and the Americans
with Disabilities Act, failed to reasonably accommodate his
disability, discriminated against him based on disability,
and retaliated against him. See (Docs. 1 & 34 in
seek testimony and document production from Phillip Morgan,
Grant Barger, and Grant Barger's consulting business. Mr.
Morgan is Plaintiff Steven Barger's accountant, and Mr.
Barger is Plaintiff Steven Barger's son. (Doc. 1 at 2).
In his deposition, Plaintiff Steven Barger claimed that prior
to working at First Data in 2014, he had a “lucrative
consulting” business working for his son's
consulting business. (Id.). But Plaintiff Steven
Barger's tax returns from 2012 and 2013 indicate a
significantly lower income than he claimed in the deposition.
Plaintiff Steven Barger claimed that the money that he earned
as a consultant at his son's business, but did not report
on his taxes, was “left in Mr. Barger's
Steven Barger first began working for First Data as an
independent consultant, and then later became an employee of
First Data. While Plaintiff Steven Barger was an independent
consultant with First Data, his son's business, Barger
Consulting Group, sent invoices to First Data for his
services. During the three and a half months he worked for
First Data as an independent consultant, Plaintiff Steven
Barger stated that he charged First Data a monthly fee of
$30, 000. First Data explained that, given Plaintiff Steven
Barger's monthly fee, Barger Consulting Group should have
billed the company for $105, 000 for Plaintiff Steven
Barger's services. Instead, Barger Consulting Group
billed First Data for $170, 000. When questioned in his
deposition about his income and tax return discrepancies,
Plaintiff Steven Barger told Defendants to ask his
accountant, Mr. Morgan, and his son, Mr. Barger.
continue to investigate the discrepancies in Plaintiff Steven
Barger's tax returns and income to support their
after-acquired evidence defense. The U.S. District Court for
the Eastern District of New York issued third-party subpoenas
to compel testimony and document production by Phillip Morgan
and Grant Barger, who work and reside in the Northern
District of Alabama, and Barger Consulting Group, Mr.
Barger's business. (Doc. 1 at 1). The subpoena for Mr.
Morgan seeks various documents and communications with Barger
Consulting Group and Plaintiff Steven Barger regarding their
tax returns and deductions, in addition to various documents
regarding how Barger Consulting Group billed its clients.
(Doc. 1-1 at 52- 55). The subpoenas seek the same categories
of documents from Mr. Barger and Barger Consulting Group:
personnel file and tax documents relating to Plaintiff Steven
Barger; documents regarding Barger Group LLC's contracts,
invoices, financial statements, retainer fees, billing rates,
tax returns, information used in preparation of filing tax
return, and profits and losses records, all for the years
2010 through 2017; and communications with Plaintiff Steven
Barger, Mr. Morgan, and Shawn Shearer and his law firm
concerning the underlying case. (Doc. 1-1 at 66-67, 73-74).
subpoenas were served on Mr. Morgan on August 28, 2018, and
on Mr. Barger, individually and on behalf of Barger
Consulting Group, on September 8, 2018. (Doc. 1-1 at 57, 78).
Defendants scheduled both Mr. Morgan's and Mr.
Barger's depositions on September 17, 2018, in
counsel followed up the subpoenas with emails to Mr. Morgan
and Mr. Barger to discuss the subpoenas and document
requests. Defense counsel exchanged several emails with Mr.
Morgan and Mr. Barger, but neither third party consented to
Barger then filed a motion to quash the subpoena on September
13, 2018, in a different action before this court.
See (Doc. 1 in No. 2:18-mc-01491-KOB). This court
denied the motion to quash. See (Doc. 4 in No.
2:18-mc-01491-KOB). Mr. Barger subsequently supplemented the
motion to quash, indicating to the court that defense counsel
canceled the deposition at issue. See (Doc. 6 in No.
2:18-mc-01491-KOB). On September 19, 2018, the court vacated
its earlier Order and found the motion to quash as moot,
closing the case, because the deposition was seemingly
canceled. See (Doc. 7 in No. 2:18-mc-01491-KOB).
then filed the motion to compel at issue in this case on
September 24, 2018. (Doc. 1). Defendants seek to compel third
parties Mr. Morgan, Mr. Barger, and Barger Consulting Group
to comply with the deposition subpoenas duces tecum. On
September 26, 2018, Mr. Barger filed his “Motion to
Strike, Deny or Consolidate.” (Doc. 2). He subsequently
filed his “Response to Motion to Compel & Motions
to Quash & for Protective Orders” on October 5.
(Doc. 5). Defendants filed “Movants' Reply to
Opposition to Motion to Compel and Opposition to Motion to
Quash and for Protective Order” on October 15. (Doc.
point, the filings spun out of control. On October 18,
Defendants filed “Supplement to Movants' Reply to
Opposition to Motion to Compel and Opposition to Motion to
Quash and for Protective Order” in response to
allegations by Mr. Barger via email that Defendants had not
fulfilled their duty to meet and confer. (Doc. 10).
Barger then filed his “Reply to Opposition to Motions
to Quash & for Protective Orders” on October 19.
(Doc. 11). Among other things, Mr. Barger notified Defendants
that Barger Consulting Group, the company they had
subpoenaed, was not the name of his company. In an attempt to
fix the naming mistake, Defendants filed their “Notice
of Correction” on October 19. (Doc. 12).
Barger then filed two motions for Rule 11 sanctions against
Defendants and defense counsel. (Docs. 13 & 14). On
October 24, Defendants filed “Defendants'
Opposition to Grant Barger's (1) Motion for Sanctions
(ECF No. 13) and (2) Objection to Notice of Correction and
Motions for Sanctions (ECF No. 14).” (Doc. 15). Barger
concluded by filing his “Reply in Support of Grant
Barger's Motion for Rule 11 Sanctions (Docket No. 13) and
Objection to Notice of Correction and Motions for Sanctions
(Docket No. 14)” on October 29. (Doc. 16).
seek the deposition of Mr. Morgan and Mr. Barger in addition
to documents produced by Mr. Morgan, Mr. Barger, and Barger
Consulting Group. The court will address the motion in
reference to each third party in turn.
seek the testimony of Phillip Morgan in support of its
after-acquired evidence defense to Plaintiff Steven
Barger's wrongful termination claims. Rule 45 of the
Federal Rules of Civil Procedure provides several instances
in which the court may quash a subpoena. But all of those
instances require a timely motion by the person or entity
subject to the subpoena. See Fed. R. Civ. P.
45(d)(3). Mr. Morgan has not filed any response in this
Barger has included Mr. Morgan in several of his responses
and motions. But because Mr. Barger is pro se and not an
attorney, Mr. Barger cannot represent Mr. Morgan. Mr. Barger
clarifies in his second responsive filing that he seeks to
prevent Mr. Morgan from “be[ing] required [to] testify
or turnover [sic] documents about me and my business and my
documents for the same reasons I argued in my Motion to
Quash.” (Doc. 5 at 2 n.1).
a subpoena is directed to a nonparty, any motion to quash . .
. generally must be brought by the nonparty.” E.A.
Renfroe & Co., 2008 WL 11376585, at *3-4 (quoting 9
Moore's Federal Practice § 45.50 (3d ed.
2008)). The court recognizes that parties may have standing
to challenge a non-party subpoena based on the party's
personal right or privilege over the information subpoenaed.
See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir.
1979) (holding that defendants lacked standing to challenge a
non-party subpoena when they were not in possession of the
materials and did not allege a personal right or privilege);
Shepherd v. Castle, 20 F.R.D. 184, 188 (W.D. Mo.
1957) (“Unless a party to an action can make claim to
some personal right or privilege in respect to the subject
matter of a subpoena duces tecum directed to a non-party
witness, the party to the action has no right to relief . . .
.”); see also Auto-Owners Ins. v. Southeast
Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla.
2005) (finding that defendants failed to show an expectation
of privacy in their business transactions, and therefore
could not establish a personal right as to those records). At
least one court has held that non-parties also may have
standing when challenging subpoenas against other non-parties
to obtain information to which the challenging non-party has
a personal right or claim of privilege. See Estate of
Ungar v. Palestinian Authority, 332 Fed.Appx. 643, 645
(2d Cir. 2009) (holding that a non-party had standing to
challenge a subpoena over records maintained by its law firm,
a different non-party).
Barger simply requests that “[Mr.] Morgan not be
required [to] testify or turnover [sic] document[s] about me
and my business and my documents for the same reasons I
argued in my Motion to Quash.” (Doc. 5 at 2 n.1). But
nowhere does Mr. Barger allege that he has a personal right
or claim of privilege over any of these documents. Without
any evidence proving that he has such a right or privilege,
the court cannot find that he has standing to challenge Mr.
Mr. Morgan has not responded to the motion to compel or
offered any argument why he should not be required to comply
with the subpoena, the court will GRANT the motion to compel
with respect to Mr. Morgan.
Barger offers several reasons why the court should quash the
subpoena seeking his deposition and production of documents.
He contends that (1) Defendants lied to this court and the
U.S. District Court for the Eastern District of New York; (2)
no outstanding subpoena exists; (3) Defendants failed to meet
and confer with him prior to filing their motions compelling
his compliance with the subpoena; (4) the subpoena requests
privileged information; (5) the information sought is
duplicative; (6) Defendants are solely requesting certain
documents to build a case against Mr. Barger, not for use in
the underlying matter; (7) the information requested contains
trade secrets; (8) he does not possess some of the documents
requested; and (9) the subpoenas are overbroad and
irrelevant. This court will discuss each argument raised.
Rule 45(d)(3) of the Federal Rules of Civil Procedure, the
court must quash or modify a subpoena on timely motion if the
subpoena (1) “fails to allow a reasonable time to
comply, ” (2) “requires a person to comply beyond
the geographical limits specified in Rule 45(c), ” (3)
“requires disclosure of privileged or other protected
matter, ” or (4) “subjects a person to undue
burden.” The court may quash or modify the subpoena on
timely motion if the subpoena requires “disclosing a
trade secret or other confidential research, development, or
commercial information.” Fed.R.Civ.P. 45(d)(3)(B).
begin, Mr. Barger notes that “I did not have an
opportunity to object to the subpoenas because they were
determined to be moot. If I had the opportunity to do so, I
would say the following . . . .” (Doc. 5 at 15). As the
court will later explain, the court never found the
subpoenas to be moot. The court only found that the
motion to quash the subpoena was moot. The subpoenas
are not moot.
Barger's objections would have been untimely under Rule
45. Under Rule 45, an objection must be served “before
the earlier of the time specified for compliance or 14 days
after the subpoena is served.” Fed.R.Civ.P.
45(d)(2)(B). Because he filed his objections on October 5,
2018, twenty-seven days after the subpoena was served, Mr.
Barger's objections were untimely. Because Mr. Barger is
pro se and clearly was confused regarding the status of the