Subpoenas to non-parties result in sanctions

Where a party served multiple subpoenas on a non-party that were overbroad, unduly burdensome, or which sought irrelevant or privileged information, the subpoenas were quashed and the non-parties were awarded their fees.

Background

On May 20, 2021, a putative class of consumer plaintiffs sued Vital Farms Inc., an egg producer alleging that Vital engages in deceptive trade practices in violation of several states’ unfair competition or trade practices laws. Vital then issued subpoenas to People for the Ethical Treatment of Animals Inc., or PETA, and the Foundation to Support Animal Protection separately, seeking production of documents. The Foundation has “represented PETA in many legal actions and lawsuits,” and its lawyers are also co-counsel for the plaintiffs in the underlying suit.

PETA and the Foundation each moved to quash their respective subpoenas and to recover their attorney’s fees. The court granted those motions to quash on April 3, 2023, but deferred ruling on the requests for sanctions.

In January 2023, while the earlier motions to quash were pending before the court, Vital served on PETA an additional subpoena, this time for testimony. Although only served on PETA, that subpoena defines “PETA” to include the Foundation. After PETA expressed concern about the breadth of the topics designated by the subpoena, Vital sent PETA a letter that furnished a list of “11 clarified deposition topics.”

PETA and the Foundation jointly moved to quash the January subpoena. Also, like with their earlier motions to quash, PETA and the Foundation seek sanctions.

Analysis

As with its earlier subpoenas to PETA and the Foundation, Vital fails to demonstrate the relevancy of the matters it has designated for examination with its January 17 subpoena or that it is entitled to that information from PETA or the Foundation. This is true whether considering those matters designated in the January 17 subpoena or the 11 reconfigured topics that Vital articulated in its February 7 letter.

For several of the topics, Vidal already has comparable information. If it does not, it has not explained why it needs PETA and the Foundation to furnish this information instead of conducting its own research. For other topics, Vital has not demonstrated need and, furthermore, has not persuasively articulated relevance.

Topic 11 demands testimony on “any dealings that PETA (or the Foundation) has had with the named plaintiffs in the litigation, outside the context of the litigation.” After briefing on three motions to quash, Vital has offered only unsupported conjecture about PETA being involved with the litigation or the plaintiffs. Vital’s theory that deposing PETA might reveal issues with the plaintiffs and their attorneys’ adequacy to represent the proposed class is unsubstantiated.

Vital fails to demonstrate relevancy or a need to depose PETA or the Foundation for any of its designated topics. The court need not address PETA and the Foundation’s remaining arguments about overbreadth, proportionality and privilege. Nevertheless, Vital’s January 17 subpoena implicates all those issues. Furthermore, because the subpoena demands testimony from a corporate designee of the Foundation concerning the Foundation’s knowledge of topics directly related to the underlying lawsuit, that testimony would plainly implicate matters covered by work-product or other privileges.

Even if Vital had managed to show relevance and need for some topics it designated for testimony, which it has not, its subpoena would be quashed in whole or substantial part for being overbroad and not proportional to the needs of the case, creating an undue burden on PETA and the Foundation, and demanding testimony on privileged matters.

Fees

Vital served on PETA and the Foundation, who are both nonparties, three overbroad and unduly burdensome subpoenas. Vital’s January 17 subpoena alone would impose a substantial burden on PETA and the Foundation. And problematically, despite the undue burden that the subpoenas would place on PETA and the Foundation, Vital failed to articulate need and relevance for any of the documents or testimony it demanded in any of the three subpoenas.

In several instances, Vital did not attempt to explain relevance or need for the documents or testimony it demanded, and it never addressed obvious alternative sources. Furthermore, Vital’s subpoenas to the Foundation, whose lawyers are co-counsel to the plaintiffs in the underlying suit, demanded documents and communications directly related to the lawsuit. This created obvious privilege issues.

In sum, Vital forced PETA and the Foundation “to incur substantial expenses . . . including outside counsel fees,” defending against overly broad and burdensome subpoenas, for which Vital failed to establish relevance or need. Vital has imposed significant undue and unnecessary expense on PETA and the Foundation.

PETA and the Foundation’s motion to quash granted. PETA and the Foundation’s requests for fees granted.

People for the Ethical Treatment of Animals Inc. v. Vital Farms Inc., Case No. 2:22-mc-24, April 13, 2023. EDVA at Norfolk (Krask). VLW 023-3-203. 20 pp.