United States District Court, W.D. Arkansas, Hot Springs Division
SHELBY LUMAN, et al. PLAINTIFFS
FCA U.S. LLC, et al. DEFENDANT
KIMBRO STEPHENS RESPONDENT
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE
now before the Court is Defendant FCA U.S. LLC's
(“FCA”) Motion to Compel Discovery Directed
Against Non-Party (ECF No. 21) and Respondent, Kimbro
Stephens' (“Stephens”) Motion to Quash and
for Protective Order. ECF No. 23. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable
Susan O. Hickey referred these Motions to this Court. After
considering this Motion and arguments of counsel, the Court
finds as follow:
lawsuit involves a fire loss to several homes in Hot Springs,
Arkansas. ECF No. 4. During the course of the litigation,
Defendant FCA became aware of a video recording of the scene
at the time of the fire occurrence which was in the
possession of Respondent Stephens. ECF No. 22. Apparently
Stephens was a neighbor to the homes involved in this matter
and he had a surveillance camera which recorded the scene at
the time of the occurrence which is the subject of this
about June 24, 2019, FCA served a subpoena duces tecum upon
Stephens to obtain a copy of the video for use in this
matter. ECF No. 21-1. The subpoena directed production of the
video surveillance footage by July 10, 2019. Id.
Stephens did not object to the subpoena or seek to quash the
subpoena prior to the return date of the subpoena.
19, 2019, Stephens sent an email to counsel for FCA stating
he would release the video footage, but would only do so if
FCA agreed to a non-exclusive license and a fee of $2500.00
be paid by FCA. ECF No. 21-2. Stephens further requested that
if he were called as a witness or required to give his
opinion or testimony on the matter, he would be paid a fee of
$300.00 per hour. Id.
22, 2019, FCA filed their Motion to Compel seeking production
of the surveillance video. ECF No. 21. On July 29, 2019,
Stephens responded to this Motion and filed a Motion for
Protective Order claiming the video in his possession was
copyrighted and his objections to the subpoena were timely.
ECF Nos. 23, 25.
their Motion to Compel, FCA argues Stephens has waived any
objections to production of the video in question based on
his failure to object. ECF No. 21. Rule 45 of the Federal
Rules of Civil Procedure governs the issuance and service of
subpoenas and the protection of persons subject to subpoenas.
Pursuant to Rule 45(d)(2)(B) of the Federal Rules of Civil
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the
party or attorney designated in the subpoena a written
objection to inspecting, copying, testing, or sampling any or
all of the materials or to inspecting the premises--or to
producing electronically stored information in the form or
forms requested. The objection must be served before the
earlier of the time specified for compliance or 14 days after
the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the
serving party may move the court for the district where
compliance is required for an order compelling production or
(ii) These acts may be required only as directed in the
order, and the order must protect a person who is neither a
party nor a party's officer from significant expense
resulting from compliance. There is no argument that Stephens
did not serve written objections to the production of the
requested video within 14 days after the subpoena was served.
non-party's second option, under Rule 45(d)(3), is to
file a motion to modify or quash the subpoena as a means of
asserting its objections to the subpoena. Unlike serving Rule
45(d)(2)(B) written objections, a motion to quash is not
subject to the 14 day requirement. Instead, the rule provides
simply that the motion to quash must be “timely.”
‘timely' is not defined in the rule nor elaborated
upon in the advisory committees notes, courts have read
‘timely' to mean within the time set in the
subpoena for compliance. U.S. ex rel. Pogue v. Diabetes
Treatment Centers of America, Inc., 238 F.Supp.2d 270,
278 (D.D.C. 2002); see also Estate of Ungar v.
Palestinian Authority, 451 F.Supp.2d 607, 610 (S.D.N.Y.
2006) (“It is well ...