Young et al v. Pepe Tools et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JONATHAN MCKAY YOUNG, an
individual; and CALEB HUDSON YOUNG,
an individual,
Petitioners,
v.
PEPE TOOLS, INC., an Oklahoma
corporation, d/b/a PEPETOOLS, INC.,
Respondent.
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
QUASH SUBPOENAS
(DOC. NO. 2)
Case No. 2:25-mc-00887
District Judge Dale A. Kimball
Magistrate Judge Daphne A. Oberg
This subpoena dispute arises from a lawsuit Pepe Tools, Inc., filed against
Sunstone Engineering, LLC, in the United States District Court for the Western District
of Oklahoma.1 Petitioners Jonathan “McKay” Young and Caleb Young, nonparties to
that Oklahoma action, move to quash subpoenas by Pepe Tools seeking their
depositions.2 Pepe Tools opposes the motion.3 Because the subpoenas are
proportional to the needs of the case, do not impose an undue burden, and seek
1 Pepe Tools, Inc., v. Sunstone Eng., LLC, No. 5:23-cv-907 (Okla. Dkt.) (W.D. Okla. filed
Oct. 5, 2023).
2 (Mot. to Quash Subpoenas (Mot.), Doc. No. 2.) This order refers to Petitioners
individually by their first names for clarity, as this dispute relates to their father,
Jonathan Young, Sunstone’s CEO.
3 (Opp’n to Mot. (Opp’n), Doc. No. 5.)
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information within the scope of permissible discovery, the motion to quash is denied.
Pepe Tools must re-serve the subpoenas with the required witness and mileage fees.
BACKGROUND
In the underlying Oklahoma action, Pepe Tools asserts, among others, claims for
breach of contract and violation of Oklahoma’s Deceptive Trade Practices Act (DTPA)4
against Sunstone.5 Specifically, Pepe Tools alleges it conducted business with
Sunstone for years through “a purchase-order process”—a contractual relationship
Sunstone allegedly breached in May 2023 by failing to fulfill purchase orders it had
“accepted” and “entered into its system.”6 In addition, Pepe Tools claims Sunstone
violated the DTPA by knowingly disparaging its “goods, services, and businesses.”
Namely, Pepe Tools alleges Jonathan Young, Sunstone’s CEO, made disparaging
posts in 2023 in a “Permanent Jewelry Community on Facebook” suggesting Pepe
Tools was an unethical business.7
4 Okla. Stat. tit. 23, §§ 51, 53.
5 (Compl. ¶¶ 50–62, Okla. Dkt. No. 1).) Sunstone brought counterclaims against Pepe
Tools for trademark misappropriation, unfair competition, deceptive trade practices, and
cybersquatting in this district, see Sunstone Eng., LLC, v. Pepe Tools, Inc., No. 2:24-cv-
00334 (D. Utah), but they were transferred to and consolidated with the Oklahoma
action in May 2025. (See Counterclaims ¶¶ 88–99, 112–24, 131–36, 145–52, 159–69,
Okla. Dkt. No. 24.)
6 (Compl. ¶¶ 16–18, 50–52, Okla. Dkt. No. 1.)
7 (Id. ¶¶ 32–33, 58.)
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McKay and Caleb are Sunstone employees and sons of Jonathan Young, the
company’s CEO.8 McKay has worked as an accountant since May 2024, and worked
before that as a part-time entry-level bookkeeper since January 2021.9 He has never
held a management or supervisory position or worked as an account manager.10 And
he attests he never interacted with Pepe Tools, except regarding payments on Pepe
Tools’ account.11 According to McKay, he has no personal knowledge of events at
issue or the course of dealing between Sunstone and Pepe Tools, as they occurred
either before he worked there or while he was an entry-level bookkeeper.12 Emails,
however, indicate McKay was involved in the purchase order process between Pepe
Tools and Sunstone. He communicated with Pepe Tools directly about purchase orders
for a year until late April 2023 and was listed as a point of contact in early May 2023.13
Caleb worked for Sunstone as a microwelding consultant (or permanent jewelry
specialist) since September 2024, before taking a sales representative position in
August 2025.14 Previously, he was an entry-level production technician beginning in
8 (Ex. 1 to Mot., Decl. of Jonathan McKay Young (McKay Decl.) ¶¶ 2–4, Doc. No. 2-1;
Ex. 2 to Mot., Decl. of Caleb Young (Caleb Decl.) ¶¶ 2–4, Doc. No. 2-2.)
9 (Ex. 1 to Mot., McKay Decl. ¶¶ 2–3, Doc. No. 2-1.)
10 (Id. ¶¶ 6–7.)
11 (Id. ¶¶ 8–9.)
12 (Id. ¶¶ 10–12.)
13 (Ex. 1 to Opp’n, Doc. No. 5-1 (email correspondence between McKay and Pepe Tools
about purchase orders from May 7, 2022 to May 5, 2023).)
14 (Ex. 2 to Mot., Caleb Decl. ¶ 2, Doc. No. 2-2.)
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June 2022.15 Like McKay, he has never held a management or supervisory position.16
He also has no access to Sunstone’s Facebook account and has never interacted with
Pepe Tools.17 He attests he has no personal knowledge of the relevant events or
claims between Pepe Tools and Sunstone, as they occurred before his time or while he
was an entry-level employee.18
In March 2025, however, Pepe Tools’ counsel emailed Sunstone’s counsel
regarding new comments Mr. Young (Sunstone’s CEO) and Caleb made in “Permanent
Jewelry Facebook Community.”19 Counsel explained Mr. Young had made more false
and disparaging posts about Pepe Tools in this public thread, and Caleb apparently had
as well, although his comment was later deleted.20 Counsel asserted these types of
statements bear on Pepe Tools’ existing deceptive trade practices claim and asked
Sunstone to produce Caleb’s comment.21 Sunstone did not produce the comment.22
15 (Id. ¶ 3.)
16 (Id. ¶ 5.)
17 (Id. ¶¶ 6–8.)
18 (Id. ¶ 9.)
19 (Ex. 3 to Mot., Decl. of Rich Willie (Willie Decl.) ¶¶ 5–6, Doc. No. 2-3 (referencing Ex.
2 to Willie Decl., Doc. No. 2-3 at 27–31).)
20 (Ex. 2 to Willie Decl., Doc. No. 2-3 at 28–30.)
21 (Id. at 30.)
22 Pepe Tools appears to believe Caleb’s comment has been spoliated but has not
formally requested its production. (Id. at 29; Ex. 3 to Mot., Willie Decl. ¶ 18, Doc.
No. 2-3.)
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In September 2025, Pepe Tools’ counsel notified Sunstone of its intent to depose
McKay and Caleb.23 Pepe Tools then served McKay and Caleb with deposition
subpoenas but did not tender witness or mileage fees.24 Counsel conferred the next
day, and Pepe Tools explained it sought to depose McKay regarding the parties’ course
of dealing and Caleb regarding the Facebook statement.25 Sunstone has not yet been
deposed in the underlying Oklahoma action.26 But Pepe Tools issued document
requests to Sunstone eight months ago, and Sunstone’s purported failure to sufficiently
respond to those requests is currently the subject of a motion to compel pending before
the Oklahoma district court.27
On October 3, 2025, five days before their deposition date, Petitioners filed the
present motion to quash under Rule 45(d) and Rule 26(b) of the Federal Rules of Civil
Procedure.28 Petitioners argue the subpoenas are procedurally defective for failure to
23 (Ex. 3 to Mot., Willie Decl. ¶ 14, Doc. No. 2-3.)
24 (Ex. 2 to Mot., Caleb Decl. ¶¶ 10–11, Doc. No. 2-2 (citing Ex.1 to Caleb Decl.
(subpoena for deposition on October 8, 2025, at 9:00 am)); Ex. 1 to Mot., McKay Decl.
¶¶ 13–14, Doc. No. 2-1 (citing Ex. 1 to McKay Decl. (subpoena for deposition on
October 8, 2025, at 1:00 pm)).)
25 (Ex. 3 to Mot., Willie Decl. ¶ 15, Doc. No. 2-3.) Pepe Tools also sought to depose
McKay about venue. (Id.) But in July 2024, the Oklahoma district court found venue
was proper there. (Okla. Dkt. No. 21 at 19.) Pepe Tools’ does not explain the need to
depose McKay on venue issues in light of this ruling.
26 (Ex. 3 to Mot., Willie Decl. ¶ 19, Doc. No. 2-3.)
27 (Exs. 2 & 3 to Opp’n, Doc. Nos. 5-2 & 5-3.)
28 (Mot. 1, Doc. No. 2.)
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tender the required fees and they impose an undue burden.29 Pepe Tools opposes,
arguing the subpoenas seek relevant and necessary information relating to existing
claims and the fee issue can be cured immediately.30
LEGAL STANDARDS
Rule 45 of the Federal Rules of Civil Procedure establishes the standards for
quashing subpoenas. “A party . . . responsible for issuing and serving a subpoena must
take reasonable steps to avoid imposing undue burden or expense on a person subject
to the subpoena.”31 In pertinent part, Rule 45 requires a court to quash or modify a
subpoena that “subjects a person to undue burden.”32 Additionally, Rule 26(b) governs
the scope of discovery under subpoenas.33 Under Rule 26(b), discovery must be
“relevant to any party’s claim or defense and proportional to the needs of the case,”
considering factors such as “the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
29 (Id. at 9–12.)
30 (Opp’n 1–9, Doc. No. 5.)
31 Fed. R. Civ. P. 45(d)(1).
32 Fed. R. Civ. P. 45(d)(3)(A)(iv).
33 See Consumer Fin. Prot. Bureau v. Integrity Advance, LLC, No. 21-mc-206, 2022
U.S. Dist. LEXIS 126523, at *18 (D. Kan. July 15, 2022) (unpublished) (explaining “Rule
45 does not include relevance as an enumerated reason for quashing a subpoena” but
it is “well settled that the scope of discovery under a subpoena is the same as the scope
of discovery under Rule 26(b)”).
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burden or expense of the proposed discovery outweighs its likely benefit.”34
“Information within this scope of discovery need not be admissible in evidence to be
discoverable.”35
ANALYSIS
Petitioners argue the subpoenas should be quashed for two main reasons. First,
they argue that where Rule 45 requires fees to be tendered at the time subpoenas are
served, Pepe Tools’ failure to tender witness and mileage fees means the subpoenas
must be quashed.36 Second, Petitioners argue the subpoenas impose an undue burden
because Petitioners have little to no relevant information and Pepe Tools is seeking
discovery of unpled claims about events occurring after it filed this lawsuit.37 Pepe
Tools responds to both points, arguing the subpoenas seek relevant and necessary
information relating to existing claims and the failure to tender fees is immediately
curable.38 Petitioners’ motion to quash is denied. The procedural fee defect is curable,
and the subpoenas do not impose an undue burden, where they seek information within
the scope of permissible discovery.
34 Fed. R. Civ. P. 26(b)(1).
35 Id.
36 (Mot. 9, Doc. No. 2.)
37 (Id. at 9–12.)
38 (Opp’n 1–9, Doc. No. 5.)
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First, although Pepe Tools failed to tender the required witness and mileage fees
with the subpoenas,39 this is a technical defect which can be cured by re-serving the
subpoenas with the required fees.40 Where the dispute has been fully briefed, it makes
little sense to decide the dispute based on a curable procedural defect in the first
instance, rather than addressing the substantive issues. Before deposing McKay and
Caleb, Pepe Tools must re-serve the subpoenas with the required fees in accordance
with the applicable rules. Should it fail to do so, Petitioners may challenge the
subpoenas as procedurally defective.
As for the substantive merits of the dispute, the subpoenas seek relevant
information from two current Sunstone employees, they are proportional to the needs of
the case, and they do not impose an undue burden. Rule 45 requires quashing or
39 Fed. R. Civ. P. 45(b)(1) (“Serving a subpoena requires delivering a copy to the named
person and, if the subpoena requires that person’s attendance, tendering the fees for 1
day’s attendance and the mileage allowed by law.”).
40 See Nelson v. Hardacre, 312 F.R.D. 609, 614 (D. Kan. 2016) (quashing subpoena on
substantive grounds but declining to do so on fee technicality); see also KOS Bldg.
Grp., LLC v. R.S. Granoff Architects, P.C., No. 19-cv-2918, 2020 U.S. Dist. LEXIS
73465, at *10 (S.D.N.Y. Apr. 24, 2020) (unpublished) (declining to quash subpoenas on
fee technicality because even if the subpoena was invalid, “Defendants could readily
correct this defect by promptly re-serving the subpoena along with the witness fee”);
Stiles v. Walmart Inc., No. 1:20-mc-002, 2020 U.S. Dist. LEXIS 72475, at *9–10 (S.D.
Ohio Apr. 24, 2020) (unpublished) (explaining “there is no merit in quashing a
subpoena” on technical grounds because a subsequent subpoena cured the procedural
defect “and substantive issues have been fully briefed”); PHE, Inc. v. Dep’t of Just., 139
F.R.D. 249, 255 (D.D.C. 1991) (finding, “to the extent that the failure to accompany the
Rule 45 subpoena . . . with a check rendered the subpoenas technically defective, the
subsequent tender of the check corrected any deficiency”); cf. Pappas v. Frank Azar &
Assocs., P.C., No. 06-cv-01024, 2007 U.S. Dist. LEXIS 66368, at *48 (D. Colo. Sept. 7,
2007) (unpublished) (quashing subpoena for failure to tender fees where defect was not
cured).
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modifying a subpoena that “subjects a person to undue burden.”41 And Rule 26(b),
which governs the scope of discovery,42 provides that discovery must be “relevant to
any party’s claim or defense and proportional to the needs of the case.”43 As the
subpoenas fall within this scope, they do not impose an undue burden.44
Relevance. First, both subpoenas seek relevant information. McKay’s
testimony is relevant to Pepe Tools’ breach of contract claim. Pepe Tools alleges the
parties conducted business for years through “a purchase-order process,” a contractual
relationship Sunstone breached by failing to fulfill purchase orders in May 2023.45 And
although McKay asserts he has no personal knowledge of the parties’ course of dealing,
emails indicate he was directly involved in the purchase order process between Pepe
41 Fed. R. Civ. P. 45(d)(3)(A)(iv).
42 See Integrity Advance, 2022 U.S. Dist. LEXIS 126523, at *18.
43 Fed. R. C. P. 26(b)(1).
44 See Thomas v. Ackermann, No. 1:23-cv-00721, 2024 U.S. Dist. LEXIS 97499, at
*13–20 (D. Colo. May 31, 2024) (unpublished) (determining if Rule 45 subpoena for
documents creates an undue burden by considering relevance of the information
requested and proportionality of the request); Mun. of Mariana, 713 F. Supp. 3d 1125,
1132 (D.N.M. 2024) (“According to [Rule 45(d)(3)(A)(iv)], a federal court must modify or
quash a subpoena that subjects a person to an undue burden, which depends on
factors such as relevance and the burden imposed.”); Wopsock v. Dalton, No. 2:12-cv-
0570, 2018 U.S. Dist. LEXIS 54605, at *12–16 (D. Utah Mar. 29, 2018) (unpublished)
(concluding the petitioner failed to show deposition subpoenas imposed an undue
burden, where they sought relevant information that was proportional to the needs of
the case); see also Nguyen v. Fraunhofer-Gesellschaft Zur Forderung der Angewandten
Forschung E.V., No. 21-0014, 2021 U.S. Dist. LEXIS 234195, at *9–11 (D.D.C. Dec. 7,
2021) (unpublished) (concluding that, where petitioner had relevant information, her
mere attendance at one-day deposition did not constitute an “undue burden” to quash a
Rule 45 deposition subpoena).
45 (Compl. ¶¶ 16–18, 51–52, Okla. Dkt. No. 1.)
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Tools and Sunstone. He communicated with Pepe Tools about purchase orders for a
year, until late April 2023, just before Sunstone failed to fulfill the purchase orders—and
he was listed as the point of contact.46 Because McKay was directly involved in the
purchase-order communications, he has knowledge relevant to the breach of contract
claim.
Caleb’s testimony is relevant to Pepe Tools’ deceptive trade practices claim.
Pepe Tools claims Sunstone violated Oklahoma’s DTPA because it “knowingly
disparaged the goods, services, and businesses” of Pepe Tools “by false or misleading
fact.”47 The complaint alleges Mr. Young, Sunstone’s CEO, made disparaging posts in
a “Permanent Jewelry Community on Facebook” in 2023, suggesting Pepe Tools was
an unethical business.48 And recently, Pepe Tools discovered Mr. Young made
additional, similar disparaging statements about Pepe Tools’ business in the same
Facebook community in March 2025.49 Caleb, a current employee, made a comment
(which has been deleted) in that same online conversation.50 Based on the responses
to Caleb’s comment, Pepe Tools has reason to believe it was similarly disparaging.
Although Mr. Young and Caleb made these comments in 2025, they are relevant
to Pepe Tools’ existing deceptive trade practices claim. Evidence that Sunstone’s CEO
46 (Ex. 1 to Opp’n, Doc. No. 5-1.)
47 (Compl. ¶ 58, Okla. Dkt. No. 1.)
48 (Id. ¶ 32–33.)
49 (Ex. 2 to Willie Decl., Doc. No. 2-3 at 28–31.)
50 (Id. at 29–30.)
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and a current employee are continuing to disparage Pepe Tools by making false or
misleading statements provides additional support for the existing claim that Sunstone
violated Oklahoma’s DTPA by knowingly disparaging Pepe Tools’ goods, services, and
businesses by false or misleading fact.51 No doubt, Caleb has relevant information
regarding the comment he made in that Facebook forum. Indeed, because his
comment was deleted, he is potentially the only source of this information. And Pepe
Tools tried unsuccessfully to obtain a copy of the deleted comment from Sunstone.
Petitioners argue Caleb’s statements cannot be attributed to Sunstone, because
he used a personal account and was only an entry-level employee.52 But whether
Caleb’s comments may be attributed to Sunstone is not an issue before the court on
this motion. The issue here is whether his comment falls within the scope of
discovery—not whether Sunstone ultimately may be held liable for it. Regardless of
whether Caleb was using his personal account, he was an employee who made an
allegedly disparaging comment about Pepe Tools in the same thread as comments
made by Sunstone’s CEO. Pepe Tools is entitled to seek discovery about these
51 For this reason, the cases Petitioners rely on are distinguishable. See, e.g., Lifeguard
Licensing Corp. v. Kozak, 15 Civ 8459, 2016 U.S. Dist. LEXIS 68724, *6 (S.D.N.Y. May
23, 2016) (unpublished) (denying a motion to compel discovery responses insofar as
they sought information about specific defenses, e.g., functional use, that had not been
pled); Travelers Ins. Co. v. Broadway W. St. Assocs., 164 F.R.D. 154, 158 (S.D.N.Y.
Dec. 5, 1995) (discussing the magistrate judge’s discovery decision and explaining the
court had refused to allow “unlimited discovery concerning unpled allegations” and had
allowed the party to plead the “additional defenses or counterclaims relating to the
issues for which discovery was sought,” but the party never did).
52 (Mot. 10–11, Doc. No. 2.)
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comments where they are relevant to the existing deceptive trade practices claim. In
short, Pepe Tools has shown Caleb has relevant knowledge regarding whether
Sunstone, through its employees, is continuing to engage in conduct that violates
Oklahoma’s deceptive trade practices statute.
Proportionality. Second, the subpoenas seek information proportional to the
needs of the underlying case. Both McKay and Caleb have information relating to the
breach of contract and deceptive trade practices claims. They are current employees of
a party to the Oklahoma action, and they have relevant knowledge. Accordingly,
deposing them is proportional to the needs of the case.
McKay’s testimony is proportional because it goes to the key allegation for Pepe
Tools’ breach of contract claim: the purchase order process between Pepe Tools and
Sunstone. And McKay’s knowledge spans an important timeframe—the year leading up
to Sunstone’s alleged breach of contract. Where emails suggest McKay has at least
some knowledge about the course of dealing between Pepe Tools and Sunstone, his
argument to the contrary is unpersuasive.53
Caleb’s testimony is proportional to the needs of the case because it relates to
the core of Pepe Tools’ deceptive trade practices claim. Caleb is a Sunstone employee,
has been since 2022, and was actively participating in and making comments in the
53 See Nguyen, 2021 U.S. Dist. LEXIS 234195, at *10–11 (explaining depositions,
importantly, allow a party to ask probative follow-up questions about information already
received in discovery, and a “professed lack of knowledge” is typically insufficient to
warrant quashing a deposition subpoena (quoting Alexander v. FBI, 186 F.R.D. 60, 64
(D.D.C. 1998)).
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same Facebook forum as Sunstone’s CEO. Likely, Caleb can provide unique context
about the conversation in that forum.54 This is important where Pepe Tools’ deceptive
practices claim is based on Mr. Young’s earlier comments in exactly the same forum.
Where the subpoenas target relevant and proportional information, they are neither a
fishing expedition nor geared toward harassment, as Petitioners suggest.
Undue burden. Finally, the subpoenas do not subject Petitioners to undue
burden. The thrust of Petitioners’ argument is that, because they have little to no
relevant information, preparing for and attending a deposition imposes an undue
burden.55 But, as explained, Petitioners have relevant information proportional to the
needs of the case. Merely having to prepare for and attend a deposition that seeks
such information is not an undue burden.56 And Petitioners provide no other evidence
54 See, e.g., Wopsock, 2018 U.S. Dist. LEXIS 54605, at *15–16 (concluding the
defendants were “entitled to depose other[] individuals who may have knowledge
concerning what [the plaintiff] said about the alleged assault”).
55 (Mot. 9–11, Doc. No. 2.)
56 See United States v. Amadea, No. 23 Civ. 9304, 2024 U.S. Dist. LEXIS 186711, at *7
(S.D.N.Y. 2024) (unpublished) (“When a party moves to quash a subpoena on the basis
of undue burden, he must do more than simply allege that compliance will be
inconvenient.”); Nguyen, 2021 U.S. Dist. LEXIS 234195, at *10–11 (rejecting the
petitioner’s unsupported assertion that she would be unduly burdened from one day
Zoom deposition, where she had relevant information); see also E.E.O.C. v. Citicorp
Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir. 1993) (“A court will not excuse
compliance with a subpoena for relevant information simply upon the cry of unduly
burdensome.”).
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of any burden the depositions would impose.57 Accordingly, Petitioners fail to show the
subpoenas impose an undue burden.58
CONCLUSION
The motion to quash59 is denied. The subpoenas do not impose an undue
burden. They seek relevant and proportional information from two current employees of
a party to the underlying case. The subpoenas need not be quashed based on the
failure to tender fees, a procedural defect, where the substantive issues have been fully
briefed and the defect is curable. Before Petitioners’ depositions, Pepe Tools must re-
serve the subpoenas with the required witness and mileage fees and in accordance with
the applicable rules.
DATED this 8th day of December, 2025.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
57 Apparently, each deposition will be half a day. (See Ex. 2 to Mot., Caleb Decl. ¶¶ 10–
11, Doc. No. 2-2 (citing Ex.1 to Caleb Decl. (subpoena for deposition on October 8,
2025, at 9:00 am)); Ex. 1 to Mot., McKay Decl. ¶¶ 13–14, Doc. No. 2-1 (citing Ex. 1 to
McKay Decl. (subpoena for deposition on October 8, 2025, at 1:00 pm)).)
58 Petitioners’ assertion that Pepe Tools has not taken reasonable steps to avoid undue
burden is uncompelling. (Mot. 10, Doc. No. 2.) Aside from the fact that Petitioners have
not shown the subpoenas impose any undue burden, Pepe Tools has pursued
discovery directly from Sunstone and has not, as Petitioners claim, sought discovery
only from nonparties. Moreover, Pepe Tools informally sought production of Caleb’s
deleted Facebook comment from Sunstone before seeking to depose him. (Ex. 2 to
Willie Decl., Doc. No. 2-3 at 29–30.)
59 (Doc. No. 2.)
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