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United States v. eRate Program, LLC

United States District Court, E.D. Missouri, Eastern Division

November 3, 2017

STEVE FUTRELL, et al., Plaintiffs,
v.
eRATE PROGRAM, LLC, Defendant.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motions to Quash Third Party Subpoenas and Deposition of Custodian of Records [70, 71].

         I. BACKGROUND

         Plaintiffs Steve Futrell and David Gornstein have filed this action against Defendant eRate Program, LLC, alleging Defendant violated the False Claims Act, 31 U.S.C § 3729, when applying for federal funding on behalf of various school districts and libraries. Plaintiffs, former employees of Defendant, allege Defendant did not comply with competitive bidding requirements, falsely certified it had complied with the competitive bidding process, and failed to retain documents showing compliance with the competitive bidding process. Prior to working for eRate, Program, LLC, Futrell worked for the Special School District of St. Louis County, and Gornstein worked for Solix, Inc., a company involved with the administration of the eRate Program.

         In connection with this lawsuit, Defendant has issued subpoenas to the Special School District of St. Louis County and Solix, Inc. The subpoenas request identical information with respect to each plaintiff. This includes:

1. Any and all documents regarding [plaintiff's] employment application, including, but not limited to, his resume, cover letter, and references.
2. Any and all communications between [former employer] and [plaintiff] regarding his employment application, interviews, and the interview process.
3. [Plaintiff's] personnel and/or employment file, including, but not limited to, all employment records, employment contracts, separation agreements, performance evaluations, payroll records, benefits and any other documents constituting [Plaintiff's] personnel or employment file.
4. Any and all communications regarding [Plaintiff's] personnel or employment file, his job performance and his termination and/or resignation.

         Plaintiffs have filed a Motion to Quash Third Party Subpoena to Special School District of St. Louis County and Deposition of Custodian of Records [70] and a Motion to Quash Third Party Subpoena to Solix, Inc., and Deposition of Custodian of Records [71], arguing “there is currently no reason for these confidential records to be released and the deposition should be quashed.”[1] Plaintiffs alternatively request the employers first produce any documents associated with the subpoenas to Plaintiffs' attorney so Plaintiffs may review the documents and determine whether any confidential information should be withheld prior to handing the documents over to Defendant's attorney.

         In response, Defendant claims the subpoenas are relevant because Plaintiffs have “put their qualifications squarely in controversy by relying on their employment history, both in their Complaint as well as their non-retained expert witness disclosure.” Defendant further argues Plaintiffs have offered no authority to indicate these documents are privileged and therefore not subject to discovery.

         II. DISCUSSION

         Courts have wide latitude in deciding motions to quash civil non-party subpoenas. Enterprise Holdings, Inc., v. McKinnon, 4:14MC00516 AGF, 2014 WL 5421224, at *1 (E.D. Mo. Oct. 23, 2014). Federal Rule of Civil Procedure 26(b)(1) provides in relevant part:

Parties 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, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its ...

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