LOBSTER 207 LLC v. PETTEGROW et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LOBSTER 207, LLC, )
)
Plaintiff )
)
v. ) 1:19-cv-00552-LEW
)
WARREN B. PETTEGROW, et al., )
)
Defendants )
ORDER ON MOTION TO QUASH
Plaintiff moves to quash six subpoenas served on third parties by Defendants
Anthony D. Pettegrow, Josette G. Pettegrow, Trenton Bridge Lobster Pond, Inc., Warren
B. Pettegrow, and Poseidon Charters, Inc. (Defendants Pettegrow). (Motion, ECF No.
270.) Defendants Pettegrow oppose the motion. Following review of the record and after
consideration of the parties’ arguments, the Court denies the motion.
DISCUSSION
The Court previously ordered Plaintiff to produce “pricing records, purchasing
records, and federal/state landings (SAFIS or Trip Ticket)” through March 24, 2021.
(Discovery Order at 2, ECF No. 176.) The Court explained that, “given that Plaintiff seeks
to recover the amount by which it overpaid for lobsters” due to the alleged
misrepresentations of some of the defendants,
Plaintiff’s pricing and profitability are relevant…. That is, whether
Plaintiff’s pricing and its margins are comparable to the prices represented
by the defendants is information that is probative of Plaintiff’s
misrepresentation and damages claims.
(Id. at 1.)
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Following Plaintiff’s production of documents and the production of documents by
a third party, Black Pearl Seafood, LLC, Defendants Pettegrow served subpoenas duces
tecum, in accordance with Federal Rule of Civil Procedure 45, on five individual
fishermen1 and Damon Family Lobster Company, Inc. (Subpoenas, ECF Nos. 270-1, 270-
2.) The subpoenas directed to the individuals request documents relating to lobsters landed
by them and sold to Plaintiff through Black Pearl Seafood, LLC, between April 4, 2019
and March 24, 2021. (Subpoena, ECF No. 270-1.) The subpoena to Damon Family
Lobster Company, Inc. requests documents relating to smack boat and/or other services the
company provided to Plaintiff within the same time. (Subpoena, ECF No. 270-2.)
Plaintiff argues the Court should quash the subpoenas because they: (1) request
records “pertaining to lobsters landed … after [Defendant] Warren [Pettegrow]’s
termination,” which Plaintiff contends are irrelevant to the present action; (2) request
information Plaintiff has already produced in the form of pricing records and
documentation of Plaintiff’s financial condition during the relevant time; (3) would require
production of the recipients’ confidential and proprietary commercial information
regarding the pricing of lobsters, as well as their sources, volumes and grades; (4) are
unduly burdensome; and (5) constitute retaliation against Plaintiff and those who do
business with it. (Motion at 5-10.)
1 The individuals are Shane Carter, Wyatt Beal, Thomas Grindle, Ron Musetti, and Eric Rodick. (ECF No.
207-1.)
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Plaintiff lacks standing to prosecute the challenges it asserts. “ʻThe general rule is
that a party has no standing to quash a subpoena served upon a third party, except as to
claims of privilege relating to the documents being sought.’”2 U.S. Bank Nat’l Ass’n v.
James, No. 09-84-P-JHR, 264 F.R.D. 17, 18-19 (D. Me. 2010) (quoting Windsor v.
Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997)); see also Jacobs v. Connecticut Cmty.
Tech. Colls., 258 F.R.D. 192, 194-95 (D. Conn. 2009) (“Ordinarily, a party does not have
standing to move to quash a subpoena served on a third party. Rather, only the person or
entity to whom a subpoena is directed has standing to file a motion to quash.”) In other
words, a party “has standing to move to quash a non-party subpoena if the information
sought by the subpoena implicates a personal right or privilege of the party.” Ponder v.
Ocwen Loan Servicing, LLC, Civil Action No. 19-mc-91215-ADB, 2019 WL 2249675, at
*2 (D. Mass. May 24, 2019).
A party generally cannot object to a subpoena based on relevancy “because only the
responding third party can object and seek to quash a Rule 45 subpoena” on that ground.
Frazier v. Radioshack Corp., Civil Action No. 10-855-BAJ-CN, 2012 WL 832285, at *1
(M.D. La. Mar. 12, 2012). Unless Plaintiff identifies a “personal right or privilege”
implicated by the request, Plaintiff cannot prosecute a relevancy objection to a subpoena
served on a third party. Ponder, 2019 WL 2249675, at *2. Plaintiff has not identified the
requisite right or privilege. In addition, the fact that Plaintiff might have produced some
2 “These decisions are grounded in the principle that the person served with process is the proper party to
allege error,” except where “the movant can demonstrate that the information being sought is privileged.”
In re Mitchell, Bankruptcy Case No. 18-40736-JMM, 2019 WL 1054715, at *2 (D. Idaho Mar. 5, 2019).
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or all the requested records provides no basis for Plaintiff to assert an objection on behalf
of a third party.
Furthermore, a “plaintiff cannot challenge a … subpoena directed to a third party
on the basis that it violates another person’s privacy rights ….” Frazier, 2012 WL 832285,
at *1. “Even if the subpoena[s] implicate[] [the recipients’] own privacy interests such that
[they] could assert those interests as … third part[ies],” Plaintiff “lack[s] standing to assert
that privacy interest on [their] behalf.” Katz v. Liberty Power Corp., LLC, No. 18-cv-
10506-ADB, 2020 WL 3492469, at *8 (D. Mass. June 26, 2020). Plaintiff, therefore,
cannot assert any trade secret or proprietary information privileges the recipients might
have.3
Finally, “[a] party does not have standing to quash a subpoena on the basis that the
non-party recipient of the subpoena would be subjected to undue burden when the non-
party has failed to object.” Finley v. Pulcrano, No. 08-cv-00248, 2008 WL 4500862, at *1
(N.D. Cal. Oct. 6, 2008); see also Coalview Centralia, LLC v. Transalta Centralia Mining
LLC, Case No. 3:18-CV-05639-RBL, 2019 WL 2563851, at *1 (W.D. Wash. Mar. 21,
2019) (“[A] party lacks standing to object to a subpoena issued to a non-party on grounds
that the subpoena seeks irrelevant information or would impose an undue burden,
3 While Rule 45(d)(3)(B) “specifically allows for a subpoena to be quashed by someone ‘affected by’ it in
the event the subpoena requires: 1) ‘disclosing a trade secret or other confidential research, development,
or commercial information,’ or 2) ‘disclosing an unretained expert’s opinion or information that does not
describe specific occurrences in dispute and results from the expert’s study that was not requested by a
party,’” In re Mitchell, 2019 WL 1054715, at *2 (quoting Fed. R. Civ. P. 45(d)(3)(B)), Plaintiff does not
argue that its own trade secrets or commercial information is implicated beyond the discovery previously
permitted by the Court. Rule 45(d)(3)(B), therefore, does not confer standing on Plaintiff in this case.
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‘especially where the non-party, itself, has not objected.’” (quoting First Am. Title Ins. Co.
v. Commerce Assocs., LLC, Case No. 2:15-cv-832-RFB-VCF, 2017 WL 53704, at *1 (D.
Nev. Jan. 3, 2017)).
CONCLUSION
Based on the foregoing analysis, the Court denies Plaintiff’s motion to quash. Given
the issues generated by the parties’ filings and their presentations during the telephonic
hearing on the motion, the Court believes a conference with counsel to discuss issues
related to the subpoenas and the future course of the case is warranted. The Court will
convene a videoconference with counsel on February 24, 2022, at 10:00 a.m. Prior to the
conference, counsel shall confer by videoconference regarding the specific discovery that
each party believes is necessary before discovery will be complete.
NOTICE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 9th day of February, 2022.
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