Court Rules that Defendant’s Failure to Timely Object to Subpoena Waives Objections Now: eDiscovery Case Law

Last week, we lost power overnight because of storms.  Yesterday, we lost internet connectivity until AT&T comes this morning to fix it (between 8 and 12, of course).  What’s next – locusts?!?  😉  Yet, the blog marches on – somehow.

In Whatley v. World Fuel Servs. Corp., No. 20-20993-MC-SCOLA/TORRES (S.D. Fla. May 22, 2020), Florida Magistrate Judge Edwin G. Torres granted Canadian Pacific Railway Company’s and Soo Line Railroad Company’s (“CP”) motion to compel the defendant to comply with a subpoena issued in the United States District Court for the District of North Dakota to produce certain documents in response to CP’s discovery requests related to a train derailment in Québec Canada.

Case Background


So, why does a Florida judge rule on a North Dakota subpoena about a train derailment in Canada?  Well, in 2013, a Montreal, Maine & Atlantic Railway (“MMA”) train with 72 carloads of crude oil derailed in Lac-Mégantic, Québec. That derailment set off several massive explosions, destroyed most of downtown Lac-Mégantic, and killed 47 people. A large quantity of oil was released into the environment, necessitating an extensive cleanup effort. As a result of the derailment and the related injuries, deaths, and property damage, lawsuits were filed against MMA in both the United States and Canada. 

A month later, MMA filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code.  The trustee for the bankruptcy engaged in settlement negotiations with parties identified as potentially liable for damages arising from the derailment, including this defendant who served as the shipper of the crude oil.  After the trustee filed a lawsuit against the defendant, they reached a settlement in 2015, where the defendant agreed to contribute $110 million to a settlement fund in exchange for a release of all claims arising out of the derailment, including any third-party claims.

After the Bankruptcy Court entered an order to confirm the trustee’s liquidation plan, he assigned to the Plaintiff (a trustee of a wrongful death trust) the defendant’s rights to bring any possible claims under the Carmack Amendment.  After the plaintiff acquired these rights, he filed a lawsuit in the United States District Court for the District of North Dakota and CP then sought to compel the defendant to produce documents relevant to that litigation.

CP argued that the information requested would show that the defendant “understood the nature of the Derailment train’s cargo (crude oil) and classification of crude oil, as well as communications with MMA, and documents relating to the damages Plaintiff suffered[.]”  CP also contended that, after it served the subpoena, the defendant failed to object to it or otherwise respond, so the defendant waived its objections and that the motion to compel should be granted.  The defendant, in claiming that CP’s request was too broad, estimated that it would cost $50,000 to restore its database where responsive documents are located and that there would be significant costs for the defendant’s lawyers to review these documents for responsiveness and privilege.


Judge’s Ruling

Noting that “[t]he objecting party must demonstrate with specificity how the objected-to request is unreasonable or otherwise unduly burdensome”, Judge Torres stated:

“Here, Defendant takes issue with CP’s subpoena because it seeks documents in response to 22 requests for production. The problem with Defendant’s response is that never disputes the fact that – when CP served its subpoena on March 3, 2020 – Defendant failed to object or otherwise respond as required under Rule 45. And the failure to serve any objections in the time provided constitutes a waiver of any objections…Defendant’s opposition is also unpersuasive because it claims that the document requests constitute an undue burden but then fails to put forth any specifics in support of that position. Making matters worse, Defendant claims that compliance with the subpoena will cost approximately $50,000, yet fails to provide an affidavit or declaration in support of that amount. This means that, if compliance with the subpoena is somehow onerous, Defendant has fallen far short of meeting that burden because (1) it failed to respond to the CP’s subpoena, (2) it failed to present any specifics in its opposition to CP’s motion, and (3) it failed to provide any evidence of its financial costs.”

As a result, Judge Torres granted the plaintiff’s motion and ordered the defendant to “produce the documents requested within thirty days from the date of this Order”.

So, what do you think?  What is an appropriate level of specifics in objecting to a discovery request as burdensome?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

One comment

  1. Very appropriate! Furthermore, I doubt any real effort was made to obtain the requested documents, which is why they could not object with specificity. I also imagine that there was some back-and-forth between Counsel regarding these requests. This is yet another example of the lack of collegiality in litigation. At some point it is absurd.

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