United States District Court, D. Nevada
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants State of Nevada ex
rel. Board of Regents of the Nevada System of Higher
Education on behalf of the University of Nevada, Las Vegas,
Neal Smatresk, Donald Snyder, Stowe Shoemaker, Curtis Love,
Sarah Tanford, Phillip Burns, Kristin Malek, Lisa Cain, Debra
Pieruschka, and Elda Sidhu's Motion for Protective Order
(ECF No. 232), filed on March 23, 2018. Also before the Court
is Defendants' Motion to Quash Subpoenas Duces Tecum (ECF
No. 324), filed on March 23, 2018. Plaintiff filed his
Opposition (ECF No. 330) and his Counter-Motion to Extend
Discovery (ECF No. 331) on April 2, 2018. Defendants filed
their Reply (ECF No. 334) and Opposition to Plaintiff's
Counter-motion (ECF No. 335) on April 9, 2018.
request an order protecting them from responding to
Plaintiff's requests for written discovery because they
were served in violation of this court's order denying
Plaintiff's request to re-open discovery and to quash his
subpoenas duces tecum. Defendants further argue that the
discovery requests are overbroad on their face. Plaintiff
argues that his subpoenas duces tecum relate to depositions
of two non-party individuals that the Court permitted
Plaintiff to conduct and that Defendants lack standing to
object to third-party subpoenas. Plaintiff requests
additional time to conduct the depositions.
26(b)(1) of the Federal Rules of Civil Procedure provides
that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
and the importance of the discovery in resolving the issues,
and whether the burden and expense of the proposed discovery
outweighs its likely benefit. Information within the scope of
discovery need not be admissible in evidence to be
party moves for a protective order, the court “may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c)(1). “Rule 26(c)
confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection
is required.” Youngevity Int'l, Inc. v.
Smith, 2017 WL 2692928, at *3 (S.D. Cal. June 22, 2017).
“The burden is upon the party seeking the [protective]
order to ‘show good cause' by demonstrating harm or
prejudice that will result from the discovery.”
Rivera v. Nibco, Inc., 364 F.3d 1057, 1063 (9th Cir.
2004). This burden may be met by showing that the discovery
requested is irrelevant, overly broad, burdensome, or
oppressive. Youngevity Int'l, Inc., 2017 WL
2692928, at *3. When a request is overly broad on its face or
when relevancy is not readily apparent, however, the party
seeking discovery has the burden to show the relevancy of the
request. Desert Valley Painting & Drywall, Inv. v.
United States, 2012 WL 4792913, at *2 (D.Nev. Oct. 9,
2012) (citing Marook v. State Farm Mut. Auto. Ins.
Co. 259 F.R.D. 388, 394-95 (N.D. Iowa 2009)). If the
court finds that a protective order is appropriate, it may
forbid the disclosure, forbid inquiry into certain matters,
specify the terms for discovery, or limit the scope of
discovery. Fed.R.Civ.P. 26(c)(1).
generally has no standing to move to quash or modify a
subpoena duces tecum issued to a third person unless the
party claims some personal right or privilege with regard to
the documents sought. Hawaii Regional Council of
Carpenters v. Yoshimura, 2017 WL 738554, at *2 (D.Haw.
Feb. 17, 2017) (quoting 9A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §
2459 (2d ed 2007) and California Sportfishing Prot. All.
v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 643
(E.D.Cal. 2014)). “A party's objection that the
subpoena issued to the non-party seeks irrelevant information
or imposes an undue burden on the non-party are not grounds
on which a party has standing to move to quash a subpoenas
issued to a non-party, especially where the non-party,
itself, has not objected.” Proficio Mortg.
Ventures, LLC v. Fed. Sav. Bank, 2016 WL 1465333, at *2
(D. Nev. Apr. 14, 2016) (citing G.K. Las Vegas Ltd.
Partnership v. Simon Property Group, Inc., 2007 WL
119148 at* 4 (D. Nev. Jan. 9, 2007)). “A party can,
however, move for a protective order in regard to a subpoena
issued to a non-party if it believes its own interest is
jeopardized by discovery sought from a third party and has
standing under Rule 26(c) to seek a protective order
regarding subpoenas issues to non-parties which seek
irrelevant information.” Id.
February 27, 2018, the Court granted, in part, and, denied in
part, Plaintiff's motion to amend scheduling order.
See ECF No. 317. The Court ordered that Plaintiff is
permitted to take a total of eleven depositions and granted a
forty-five day extension of discovery until April 13, 2018 to
allow Plaintiff to conduct his remaining two of the total
eleven depositions. The Court denied Plaintiff's request
to re-open the expert witness disclosure deadline and did not
find excusable neglect or good cause to extend discovery to
allow Plaintiff to obtain further supplemental written
discovery. The Court will permit Plaintiff's requests for
documents at issue as they relate to his final two
depositions to the extent that the requests are reasonable,
relevant, and proportionate to the needs of the case.
Defendants argue that the requests are overbroad and
irrelevant and the Court may issue a protective order against
the production of documents on that basis.
served a subpoena duces tecum on Dr. Christina Bergman that
requests “anything to do with the 2013 Q-Exam
including, but not limited to, any written or oral
communication you had with any Ph.D. students, faculty,
staff, or administration before or after regarding the 2013
Q-Exam, Plaintiff, or this lawsuit, including any
correspondence with any defendants or witnesses,
defendant's current or former counsel, &/or any
investigators since April 2013.” See
Defendants' Motion (ECF No. 323), Exhibit
A. The subpoena is overbroad as it requests any
communications relating to the Q-Exam, Plaintiff, or his
lawsuit. Plaintiff's causes of action are based on
alleged false accusations of intending to cheat on the
Q-exam. Therefore, the Court limits the requests to
communications that relate to Plaintiff cheating on the
Q-Exam or accusations of Plaintiff cheating on the Q-Exam.
served a subpoena duces tecum on Dr. Kara Wada that requests
“anything to do with the 2016 separation of Darren
Heyman from UNLV, including, but not limited to evidence of
any written or oral communication you had regarding this
separation, and any communication with any faculty, staff, or
administration before or after regarding Plaintiff or this
suit, including any correspondence with plaintiff, any
defendants, defendants' current or former counsel.”
See Defendants' Motion (ECF No. 323), Exhibit A.
Plaintiff alleges that he was improperly terminated from the
Ph.D. program for failing to return from his leave of
absence. Therefore, the request is limited to communications
regarding Plaintiff's separation from the Ph.D. program.
February 27, 2018, the Court granted Plaintiff until April
13, 2018 to conduct his final two depositions. On March 26,
2018, he Court stayed the subpoena response deadline and the
taking of depositions until a ruling on Defendants'
motion to quash and motion for protective order. See
ECF No. 326. The Court will extend discovery an additional
thirty days from the issuance of this order to allow
Plaintiff to conduct his remaining depositions. Therefore,
discovery is set to close on May 21, 2018.
Dispositive motions are due on or before June 20,
2018 and the joint pretrial order deadline is
July 20, 2018. Accordingly, IT IS
HEREBY ORDERED that Defendants' Motion for
Protective Order (ECF No. 323) is granted,
in part, and denied, in part in accordance
with the foregoing provisions in this order.
IS FURTHER ORDERED that Defendants' Motion to
Quash Subpoenas Duces Tecum (ECF No. 324) is
IS FURTHER ORDERED that Plaintiff's
Counter-Motion to Extend Discovery (ECF No. 331) is
granted. The discovery and other ...