Lazy S Ranch Properties, LLC v. Valero Terminaling and Distribution et al.

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LAZY S RANCH PROPERTIES, LLC, 	)
An Oklahoma Limited Liability 	)
Company, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-19-425-RAW
)
VALERO ENERGY CORPORATION; 	)
et al, 	)
)
Defendants. 	)
O R D E R
This 	matter 	comes 	before 	the 	Court 	on 	Plaintiff’s 	Motion 	to
Compel Compliance with Subpoena Duces Tecum to Non-Party Rosen USA
(Docket Entry #83). 	United States District Judge Ronald A. White
who presides over this case referred this Motion to the undersigned
for 	final 	determination. 	Expedited 	briefing 	was 	ordered 	and 	the
response 	and 	reply 	were 	filed. 	Plaintiff 	brings 	this 	action
against 	Defendants 	in 	a 	multi-count 	Complaint 	stemming 	from 	an
alleged 	leak 	in 	a 	pipeline 	transporting 	petroleum 	products
operated 	by 	Defendants 	that 	traverses 	through 	Plaintiff’s
property.
On 	April 	21, 	2021, 	a 	Second 	Amended 	Scheduling 	Order 	was
entered in this case establishing a jury trial date of February 1,
2022. 	In 	accordance 	with 	Fed. 	R. 	Civ. 	P. 	26(a)(2)(D)(i) 	and 	the
Scheduling Order, Plaintiff’s expert reports must be filed within
90 days before the scheduled trial or November 2, 2021.
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On 	September 	10, 	2021, 	non-party 	Rosen 	USA 	(“Rosen”) 	was
served 	with 	a 	subpoena 	duces 	tecum 	by 	Plaintiff. 	The 	subpoena
directed the production of
All documents, including but not limited to photographs,
invoices, reports, report drafts, notes, and emails and
communications 	with 	employees, 	contractors 	or 	Velaro
(sic) Energy Corp. et al., relating to any testing, work,
or repairs performed on the Velaro Pipeline running from
Ardmore OK to Wynnewood OK.
The subpoena directed production in 20 days or September 30,
2021 at 5:00 a.m. 	On September 13, 2021, legal counsel for Rosen
e-mailed 	Plaintiff’s 	counsel 	requesting 	a 	30-day 	extension 	for
compliance 	with 	the 	subpoena 	or 	until 	October 	29, 	2021. 	Counsel
stated 	that 	Rosen 	was 	“unable 	to 	logistically 	respond 	to 	the
subpoena” 	within 	the 	time 	allowed. 	Counsel 	stated 	that 	it 	would
take more time to determine the pipeline at issue, recover archived
files 	and 	communications, 	determine 	which 	Rosen 	personnel 	were
involved, 	perform 	electronic 	searches 	of 	Rosen’s 	e-mail 	server,
and review the documents for production. 	Plaintiff’s counsel would
not agree to the extension because of the impending date for expert
reports 	of 	November 	2, 	2021 	which 	he 	contended 	would 	leave
insufficient 	time 	between 	production 	and 	the 	due 	date 	for 	the
report for Plaintiff’s expert to review the documents.
Because 	of 	the 	lack 	of 	agreement, 	Rosen 	objected 	to 	the
subpoena as overly broad, vague, ambiguous, and failing to describe
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the 	documents 	sought 	with 	particularity, 	failing 	to 	provide 	a
reasonable time for compliance, failing to provide for a reasonable
place 	for 	compliance, 	and 	the 	burden 	and 	expense 	of 	production.
Acrimony 	followed. 	Plaintiff’s 	counsel 	continued 	to 	seek
production on the date provided in the subpoena offering skepticism
in 	response 	to 	the 	bases 	for 	the 	objections. 	Telephonic
communications did not resolve the parties’ differences, resulting
in the subject Motion. 	Through the pending Motion, Plaintiff seeks
to 	compel 	non-party 	Rosen 	to 	immediately 	comply 	with 	a 	subpoena
for documents, seeking expedited briefing and an expedited ruling.
This 	Court 	begins 	from 	the 	premise 	that 	“nonparties 	enjoy
considerable 	protection 	from 	discovery 	requests.” 	Simon 	v.
Taylor, 2014 WL 6633917, at *21 (D.N.M. November 18, 2014). 	Rosen
should 	not 	be 	held 	to 	the 	same 	time 	demands 	as 	the 	litigants 	to
the case as it is not a party to the scheduling orders entered in
the 	case. 	Additionally, 	in 	this 	particular 	case, 	Plaintiff 	did
not 	comply 	with 	the 	mandates 	of 	Fed. 	R. 	Civ. 	P. 	34(b)(2)(A) 	by
allowing Rosen only 20 days to respond to the subpoena rather than
the 30 days provided by Rule 34.
Most 	importantly, 	this 	is 	a 	crisis 	of 	timing 	entirely 	of
Plaintiff’s 	own 	making. 	Plaintiff 	was 	aware 	on 	April 	21, 	2021
that expert reports were due on November 2, 2021. 	Yet, Plaintiff
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waited 	until 	September 	10, 	2021 	to 	serve 	its 	subpoena 	upon 	Rosen
for documents it deems necessary for review by its expert. 	Rosen
cannot 	be 	expected 	to 	bear 	the 	weight 	of 	expedited 	production
which, 	by 	all 	representations, 	consists 	of 	no 	small 	number 	of
documents 	because 	of 	Plaintiff’s 	lack 	of 	diligence. 	Rosen’s
request for a 30-day extension in light of these considerations is
not unreasonable. 	Rosen will be required to produce the responsive
documents 	by 	October 	29, 	2021. 	Plaintiff 	can 	determine 	the
necessary steps to accommodate production by this date.
IT 	IS 	THEREFORE 	ORDERRED 	that 	Plaintiff’s 	Motion 	to 	Compel
Compliance with Subpoena Duces Tecum to Non-Party Rosen USA (Docket
Entry #83) DENIED.
IT IS SO ORDERED this 21 st day of October, 2021.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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