Rule 45’s Geographic Restrictions Do Not Apply To The Production Of Electronically Stored Information

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In a recent decision out of Oklahoma (Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C [W.D. Okla. June 13, 2018]), District Judge Robin J. Cauthron ruled that non-party ESI subpoenaed pursuant to Rule 45 was not subject to the 100 mile-limitation found in the Rule.  Specifically, the Court held there is “no violation of the 100-mile limitation,” as the non-party “subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents.”

Factual Background

After plaintiff was involved in two automobile collisions, Curtis’ insurance company (“Progressive”) engaged Mitchell International, Inc. (“MII”), to create valuations of total loss for its use.  Eventually, Curtis filed the instant lawsuit against Progressive, claiming breach of contract, bad faith, unjust enrichment, and fraud in connection with the valuation of Curtis’ vehicles.  During discovery, Curtis served non-party MII with a subpoena duces tecum requesting the production of documents relating to “the correspondence, purchase, and analysis of the [computer valuation system]” MII used to create valuations of total loss for Progressive (“Subpoena”).  Curtis’ attorneys served the Subpoena upon MII using MII’s Oklahoma registered agent.  MII served written objections to the Subpoena, and meet and confer sessions failed to resolve the impasse reached between MII and Curtis.  And so, Curtis filed a Motion to Compel Compliance with Subpoena (the “Motion”).

MII argued the Court lacked jurisdiction to hear the Motion because MII’s headquarters and principal place of business are located in San Diego, and the Subpoena required compliance more than 100 miles away in Shawnee, Oklahoma.

In response, Curtis argued that her subpoena was valid and enforceable because “a subpoena that commands a person to travel beyond the 100-mile boundary must be quashed however, a Court retains discretion to command compliance with a subpoena for documents which requires production beyond the 100-mile limitation.”

In granting the Motion, Judge Cauthron noted that “Federal district courts enjoy broad discretion over discovery measures” and further stated:

“Here, Plaintiff states—and Mitchell does not dispute—that the information requested can be produced electronically. Mitchell has an Oklahoma registered agent and Progressive Northern Insurance Company continues to use the valuation system licensed and provided by Mitchell in Oklahoma to conduct business. As a result, Mitchell regularly transacts business in Oklahoma. The subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents. This Court finds that there is no violation of the 100-mile limitation for electronic documents…”

This case is a good reminder that the Rule 45 geographic restrictions relates to how far a subpoena-recipient can be compelled to travel in order to comply with a subpoena (see FRCP 45[c]) and that while the geographic limitation applies equally to parties, and party officers, who cannot be commanded to appear for trial outside of the geographic restrictions set forth in the Rule (FRCP 45[c], [d][3][A][ii]), it has no applicability to the production of ESI.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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