Hatfield v. Tony Pirani, et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JASON M. HATFIELD, P.A. 	PLAINTIFF
v. 	No. 5:22-cv-5110
CESAR ORNELAS, et al. 	DEFENDANTS
OPINION AND ORDER
Before the Court is Defendants Michael McCoy, Nunez & Associates, and Cesar Ornelas’
(“Nunez Defendants”) motion (Doc. 145) for a protective order to stay enforcement of Plaintiff’s
subpoenas duces tecum, as well as their memorandum brief (Doc. 146) in support. Plaintiff Jason
M. Hatfield, P.A. (“Hatfield”) has filed a response in opposition. 	(Doc. 147). 	For the reasons
stated below, the motion for a protective order will be GRANTED IN PART AND DENIED IN
PART.
On May 18, 2023, Hatfield issued nine subpoenas to nonparties. (Doc. 145, p. 2). Those
subpoenas were directed to Ornelas’ ex-wife and CPA as well as various law firms with which the
Nunez Defendants did business. 	Id. at 2–3. 	The Nunez Defendants argue that the subpoena of
Ms. 	Ornelas 	is 	overbroad, 	unduly 	burdensome, 	and 	violates 	the 	confidential 	marital
communications privilege; that the subpoena of the CPA violates the Court’s previous ruling as to
tax records and calls for irrelevant material; and that the subpoenas to the law firms are overbroad,
cumulative, and violate the attorney-client privilege. 	They also argue that the time period for
production was too short.
As to the claims of overbreadth, relevance, cumulativeness, undue burden, and insufficient
time for production, the Court finds that the Nunez Defendants lack standing for the entry of a
protective order. 	There is a split of authority as to when a party can object to a third-party
subpoena. 	See 9A C HARLES A. WRIGHT & ARTHUR R. M ILLER , FEDERAL P RACTICE AND
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P ROCEDURE § 2463.1 n.7 (3d ed. April 2023) (collecting cases). The majority rule is that motions
to quash or modify subpoenas, or for protective orders governing subpoenas, must be made by the
person subpoenaed unless the objecting party has a personal right or privilege regarding the
subpoena’s subject matter. Id. Other district courts in this Circuit have adopted this general rule.
See Colonial Funding Network, Inc. v. Genuine Builders, Inc., 326 F.R.D. 206, 212 (D.S.D. 2018);
Shukh v. Seagate Tech., 295 F.R.D. 228, 235 (D. Minn. 2013);0F
1 Gatewood v. Stone Container
Corp., 170 F.R.D. 455, 460 (S.D. Iowa 1996). This Court follows the majority and holds that the
Nunez Defendants have standing to request a protective order only insofar as the subject matter
implicates their personal rights and privileges.
The Nunez Defendants have stated three objections which bear on their rights or privileges:
spousal privilege, the privacy interest in tax records, and attorney-client privilege. 	Regarding
attorney-client privilege, the Nunez Defendants have the burden to demonstrate that Hatfield’s
document requests “necessarily entail the disclosure of privileged information.” 	Stock v.
Integrated Health Plan, Inc., 241 F.R.D. 618, 622 (S.D. Ill. 2007) (citing Matter of Walsh, 623
F.2d 489, 493 (7th Cir. 1980)). 	However, the Nunez Defendants have not made this showing.
Besides attorney employment contracts, which this Court has previously held are presumptively
nonprivileged, 	subpoenas 	to 	the 	law 	firms 	specifically 	request 	only 	“nonprivileged”
communications and documents. 	(Docs. 145-3–145-9 (emphasis in originals)).1F
2 	Therefore,
1 Shukh holds that there is a distinction between a motion to quash and a motion for a
protective order in this context, such that a party has standing to bring a protective order even if
the general rule forbids them from moving to quash or modify the subpoena. Shukh, 295 F.R.D.
at 236. 	However, the Court does not find this distinction persuasive in this case, where the
requested protective order applies only to the subpoenas and effectively substitutes for a motion
to quash or modify them.
2 The Court trusts that the subpoenaed law firms possess the necessary knowledge of
privilege rules to identify and withhold any privileged documents without the Nunez Defendants’
aid.
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because the requests as worded do not necessarily entail the disclosure of privileged information,
the Nunez Defendants’ objection on this ground fails.
Similarly, to invoke spousal privilege, Ornelas must show “that the communications must
have been made in confidence.” Jimenez v. Amgen Mfg. Ltd., 692 F. Supp. 2d 219, 222 (D.P.R.
2010) (citing Pereira v. United States, 347 U.S. 1, 6 (1954)). 	However, the Nunez Defendants
have not made this showing, either. The subpoena to Ms. Ornelas asks for “Documents and
Communications to, with, from, or relating to” various individuals and entities, including Ornelas.
(Doc. 145-1, pp. 4–5). However, the Nunez Defendants have not shown that any of the requested
discovery must have been confidential communications between the Ornelases. Perhaps Ornelas
was a private person who did not confide in his wife, or perhaps all confidential talks between the
couple were purely verbal. 	Therefore, because there is no showing that any of the documents
requested are communications which “must have been made in confidence,” this objection must
also fail.
As to the tax documents, Hatfield states that the CPA has already responded to the
subpoena. (Doc. 147, p. 8). Accordingly, the motion to stay is moot as to these documents.
If any documents produced invade the Nunez Defendants’ privilege, the Nunez Defendants
have recourse under Federal Rule of Civil Procedure 45(e)(1)(B), which allows for the return,
sequestration, or destruction of privileged material produced in response to a subpoena. Because
the Court has ruled that the Nunez Defendants’ tax returns are confidential, the Court will order
that the parties use the procedures of Rule 45(e)(1)(B) to assert and determine the confidential
nature of any tax returns or related documents which were produced.2F
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3 While Rule 45(e)(1)(B) by its terms does not apply to confidential or private information
which is not privileged, the Court finds that the procedure detailed in that Rule is the most
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IT IS THEREFORE ORDERED that the motion to stay the subpoenas is DENIED. The
motion for a protective order is DENIED as to all documents except for tax returns and documents
involved in their preparation, whose use may be challenged under the procedures of Federal Rule
of Civil Procedure 45(e)(1)(B).
IT IS SO ORDERED this 7 th day of June, 2023.
/s/P. K. Holmes , III
P.K. HOLMES, III
U.S. DISTRICT JUDGE
appropriate means of addressing any private documents which have already been produced
pursuant to this subpoena.
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