IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MC TRILOGY TEXAS, LLC, §

§

Plaintiff, §

§

VS. § Civil Action No. 3:22-CV-2154-D

§

CITY OF HEATH, TEXAS, §

§

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this action challenging a municipality’s land use decisions, plaintiff MC Trilogy

Texas, LLC (“MC Trilogy”) moves under Fed. R. Civ. P. 45(d)(3)(A)(iv) to quash or modify

and for a protective order regarding subpoenas duces tecum served by defendant the City of

Heath, Texas (“Heath”) on three non-parties. For the reasons explained, the court denies the

motions.

I

This discovery dispute involves non-party subpoenas duces tecum served by Heath

on three MC Trilogy service providers: Republic Title of Texas, Inc. (“Republic Title”), MC

Trilogy’s title insurance company; First United Bank and Trust Company (“First United”),

MC Trilogy’s lender; and Beaird Commercial Realty, Inc. (“Beaird”), the real estate agency

that represented the seller of real property referred to as the Trilogy Development.1

 The

1

The court assumes the parties’ familiarity with its prior memorandum opinions and

orders. See MC Trilogy Tex., LLC v. City of Heath, ___ F.Supp.3d ___, 2023 WL 2544308,

at *1 (N.D. Tex. Mar. 16, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023

Case 3:22-cv-02154-D Document 172 Filed 10/24/23 Page 1 of 12 PageID 3924
requests for production (“RFP”) primarily seek financial information about the sale of the

Trilogy Development to determine the property’s fair market value, which Heath maintains

is relevant to MC Trilogy’s takings claim and just compensation damages. Republic Title

timely objected to the subpoena served on it, but First United and Beaird did not make

objections. Republic Title and Heath filed on October 6, 2023 an agreed stipulation

regarding the subpoena’s scope, which is subject to the court’s ruling on MC Trilogy’s

motion to quash. The court is deciding MC Trilogy’s motions on the briefs.

II

Rule 26(b)(1) provides that a party may obtain discovery of “any nonprivileged matter

that is relevant to any party’s claim or defense and proportional to the needs of the case.” 

Rule 26(b)(1). “Relevancy is broadly construed, and a request for discovery should be

considered relevant if there is ‘any possibility’ that the information sought may be relevant

to the claim or defense of any party.” Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470

(N.D. Tex. 2005) (Ramirez, J.) (quoting Sheldon v. Vermonty, 204 F.R.D. 679, 689 (D. Kan.

2001)).

Rule 45 governs subpoenas to obtain discovery from non-parties. The party issuing

the subpoena “must take reasonable steps to avoid imposing undue burden or expense on a

person subject to the subpoena.” Rule 45(d)(1). Rule 45(d)(3)(A)(iv) requires that, on timely

WL 3635639, at *1 (N.D. Tex. May 24, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City

of Heath, 2023 WL 5918925, at *1 (N.D. Tex. Sept. 11, 2023) (Fitzwater, J.); MC Trilogy

Tex., LLC v. City of Heath, 2023 WL 6333115, at *1 (N.D. Tex. Sept. 28, 2023) (Fitzwater,

J.). 

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motion, the court must quash or modify a subpoena if it “subjects a person to undue burden.” 

Rule 45(d)(3)(A)(iv). The movant has the burden of proof, see id.; Wiwa v. Royal Dutch

Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (citing Williams v. City of Dallas, 178

F.R.D. 103, 109 (N.D. Tex. 1998) (Fitzwater, J.)), and must meet “the heavy burden of

establishing that compliance with the subpoena would be ‘unreasonable and oppressive.’” 

Williams, 178 F.R.D. at 109. 

A party’s standing to quash subpoenas served on non-parties pursuant to Rule 45 is

limited. The movant must be in possession or control of the requested material; be the person

to whom the subpoena is issued; or have a personal right or privilege in the subject matter

of the subpoena. See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979). In this context,

a party may establish a “personal right” to subpoenaed materials in limited circumstances,

including when a subpoena seeks to discover personal bank or employment records, social

networking accounts, or email inboxes. See Crispin v. Christian Audigier, Inc., 717

F.Supp.2d 965, 974 (C.D. Cal. 2010) (citing cases). “Privilege” refers to protections afforded

by the rules of evidence, including attorney-client privilege and work product protection. See

Mobilitie Mgmt., LLC v. Harkness, 2018 WL 11364084, at *1 (N.D. Ga. Mar. 12, 2018). “A

party challenging a subpoena issued to a non-party may not object on the grounds that it

‘violates another person’s privacy rights . . . , that the subpoena is overly broad, or that the

subpoena seeks information that is irrelevant because only the responding third party can

object and seek to quash a Rule 45 subpoena on those grounds.” Deitz v. Performance Food

Grp., Inc., 2021 WL 2715974, at *1 (W.D. Tex. Apr. 21, 2021) (citing River House Partners,

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LLC v. Grandbridge Real Est. Cap. LLC, 2016 WL 3747613, at *3 (M.D. La. July 11,

2016)). Nonetheless, a party may have standing to move for a protective order under Rule

26(c) . . . even if the party does not have standing under Rule 45. See, e.g., Field v.

Anadarko Petroleum Corp., 2020 WL 4937122, at *2 (S.D. Tex. Aug. 24, 2020) (quoting

Bounds v. Cap. Area Fam. Violence Intervention Ctr., Inc., 314 F.R.D. 214, 218 (M.D. La.

2016)). 

Rule 26(c) provides, in pertinent part: “The court may, for good cause, issue an order

to protect a party or person from annoyance, embarrassment, oppression, or undue burden

or expense[.]” Rule 26(c). The burden is on the movant to show that good cause exists,

“which contemplates a particular and specific demonstration of fact as distinguished from

stereotyped and conclusory statements.” In re Terra Int’l, Inc., 134 F.3d 302, 306 (5th Cir.

1998) (per curiam) (internal quotation marks omitted) (quoting United States v. Garrett, 571

F.2d 1323, 1326 n.3 (5th Cir. 1978)). The movant “must show how the requested discovery

is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering

evidence revealing the nature of the burden.” Samsung Elecs. Am. Inc. v. Yang Kun

“Michael” Chung, 325 F.R.D. 578, 590 (N.D. Tex. 2017) (Horan, J.) (first citing Merrill,

227 F.R.D. at 477; and then citing SEC v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006)

(Ramirez, J.)).

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III

The court turns first to MC Trilogy’s motion to quash or modify.

A

The court begins by considering whether MC Trilogy has standing to move to quash

or modify the non-party subpoenas served on Republic Title, First United, and Beaird. MC

Trilogy is not the person on whom the subpoenas were served and does not possess or control

the requested material or assert a privilege afforded by the rules of evidence.2

 MC Trilogy

asserts standing based on a personal right because MC Trilogy owns the property and

information relating to it, which includes “confidential financial and tax information, as well

as valuable and proprietary business and property information and related communications.” 

P. Br. (ECF No. 86) at 6.

Judges of this court have repeatedly held that parties have a personal right in private

financial information. See SEC v. Reynolds, 2016 WL 9306255, at *2 (N.D. Tex. Apr. 29,

2016) (Toliver, J.) (accounting records and other sensitive financial information pertaining

to defendant’s business); Turnbow v. Life Partners, Inc., 2013 WL 1632795, at *1 (N.D. Tex.

Apr. 16, 2013) (Stickney, J.) (same); Canyon Partners, L.P. v. Devs. Diversified Realty

Corp., 2005 WL 5653121, at *1 (N.D. Tex. Nov. 4, 2005) (Kaplan, J.) (tax documents). By

the very terms of the subpoenas served on Republic Title, First United, and Beaird, Heath

seeks sensitive financial information and communications pertaining to MC Trilogy’s

2

Heath’s response brief addresses attorney-client privilege and work product

protection regarding MC Trilogy’s engineers, but not the service providers.

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business relationship with each service provider.3

 The court finds—and Heath does not

dispute—that MC Trilogy has a personal right in such information and therefore has standing

to move to quash or modify the subpoenas on this limited basis. 

B

Having determined that MC Trilogy has standing under Rule 45, the court now

considers the motion’s merits. MC Trilogy maintains that the subpoenas should be quashed

or modified because the RFPs are overly broad, unduly burdensome, irrelevant, harassing,

and seek confidential information. But the non-party served with the subpoena must make

objections like undue burden, inconvenience, and the like because the non-party is better

positioned to object properly to the subpoena’s burden. See Quilling v. Erwin & Johnson,

LLP, 2009 WL 10704320, at *3 (N.D. Tex. Dec. 15, 2009) (Solis, J.).4

 Thus even when a

party has standing pursuant to a personal right or privilege, the party cannot challenge a

subpoena issued to a non-party on the basis that the subpoena is unduly burdensome or

3

For example, RFP No. 3 in the subpoena served on First United requests “all

underwriting documents . . . , including but not limited to: purchase agreement and any

extension(s), proof of collateral, proof of funding, financial records, bank statements,

development plans, appraisal(s), survey(s), title insurance, borrower tax documents, borrower

business balance sheets and income statements, business operating statements, environmental

site assessments, company business models, financial projects, permits or business licenses,

resolutions to borrower/grant collateral, resolutions to guaranty/grant collateral, and source

of repayment.” P. App. (ECF No. 87) at 18. RFP No. 5 in the subpoena served on Republic

Title and RFP Nos. 1, 4, 5, 8, and 12 in the subpoena served on Beaird seek similar private

financial information. 

4

Republic Title is the only non-party to have timely objected to the subpoena duces

tecum served by Heath, and it and Heath have entered into a stipulation regarding the scope

of the subpoena. 

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irrelevant. See, e.g., Steel Dust Recycling, LLC v. Robinson, 2023 WL 4946533, at *4 (S.D.

Tex. Mar. 30, 2023). To the extent that the subpoenas require production of confidential or

proprietary information, the stipulated protective order (ECF No. 66)—which the court

entered on July 27, 2023 and has not modified—protects confidential development

information. Accordingly, the court denies MC Trilogy’s motion to quash or modify because

it has failed to meet its heavy burden to quash or modify the subpoenas duces tecum served

on Republic Title, First United, and Beaird on the limited grounds for which it has standing

under Rule 45.

IV

The court next considers MC Trilogy’s motion for a protective order. 

A

MC Trilogy posits that Heath’s RFPs relating to the Trilogy Development as a whole

are too broad because this case focuses on Heath’s land use decisions that apply only to the

Heath Portion.5

 Determining whether a zoning regulation unreasonably interferes with a

landowner’s right to use and enjoy its property requires courts first to determine the relevant

parcel of land. See, e.g., Murr v. Wisconsin, 582 U.S. 383, 405-06 (2017). For example,

courts consider a regulation’s economic impact when resolving a federal takings claim,

comparing the value that has been taken from the property with the value that remains. See

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935-36 (Tex. 1998). Courts cannot

5

According to MC Trilogy, the Heath Portion (or Heath Parcel) consists of about 139

acres of the roughly 890-acre tract of land that it purchased in December 2021.

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determine whether value remains in the property without first establishing what parcel and

property rights are at issue.

Although a regulatory takings claim cannot be resolved without defining the relevant

parcel, the court declines at this time to make a substantive ruling on this issue in the context

of MC Trilogy’s present discovery motions.6

 As the case now stands, the court has not

considered the merits of the parties’ legal arguments concerning how the relevant parcel

should be defined. Moreover, the rules of discovery are necessarily broad to effect their

purpose of adequately informing the litigants in civil trials. See, e.g., United States v. Holley,

942 F.2d 916, 924 (5th Cir. 1991). Considering the context of this discovery motion and the

principles justifying the discovery rules, the court concludes that Heath’s RFPs are not overly

broad merely because they refer to the Trilogy Development as a whole rather than just the

Heath Portion.7

6

Substantive decisions are often better made when addressing motions to dismiss for

failure to state a claim, for judgment on the pleadings, for summary judgment, or, at trial, for

judgment as a matter of law, which are governed by more precise substantive standards than

those that control decisions about discovery. 

7

Like all Federal Rules of Civil Procedure, the discovery provisions “are subject to

the injunction of Rule 1 that they be construed to secure the just, speedy, and inexpensive

determination of every action.” Herbert v. Lando, 441 U.S. 153, 177 (1979) (internal

quotation marks omitted). To that end, the court will not “hesitate to exercise appropriate

control over the discovery process,” applying Rule 26(b)(1) to require that material sought

in discovery be “relevant,” and Rule 26(c) to confer protection on a party or person from

annoyance, embarrassment, oppression, or undue burden or expense. Id. 

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B

MC Trilogy contends that Heath’s RFPs are unduly burdensome because they are

“unlimited by time or persons involved, or even the transaction and ownership” disputed in

this case. P. Br. (ECF No. 86) at 8. Heath acknowledges that its “requests might be facially

overbroad if it were requesting information related to different developments” but the RFPs

are “plainly limited to the Trilogy Lakes development, and MC Trilogy should fully

comprehend what that does and does not entail.” D. Resp. (ECF No. 116) at 11. Heath also

maintains that the time frame is not “difficult to understand” because “MC Trilogy knows

when it submitted plats to Heath and it knows when it submitted similar items to

[McLendon].” Id. at 11-12.

Heath fails to recognize that it served the subpoenas on three non-parties, not MC

Trilogy; however, MC Trilogy does not offer any evidence revealing the nature of the burden

on the three non-parties. Although Republic Title timely objected to the subpoena served on

it, Republic Title and Heath filed on October 6, 2023 an agreed stipulation regarding the

subpoena’s scope. And First United and Beaird have not even objected. The subpoenaed

non-parties are better positioned to understand whether a subpoena imposes an undue burden

on them. Accordingly, the court concludes that MC Trilogy has failed to demonstrate that

Heath’s RFPs impose an undue burden on the subpoenaed non-parties.

C

MC Trilogy posits that its actions “scouting, financing, underwriting, or otherwise

facilitating the Trilogy Project are not at issue in this lawsuit . . . [and] are wholly irrelevant. 

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P. Br. (ECF No. 86) at 8. Heath maintains that the financial documents and business records

are relevant to establish whether MC Trilogy had reasonable investment-backed expectations

and just compensation damages. A party’s reasonable investment-backed expectations focus

on the property’s existing and permitted uses at the time of the taking, which are determined

by the regulatory environment in place. See, e.g., Mayhew, 964 S.W.2d at 936 (first citing

Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 136 (1978); and then citing Lucas

v. S.C. Coastal Council, 505 U.S. 1003, 1017 n.7 (1992) (holding that owner’s reasonable

expectations are shaped by uses permitted by state law)). Courts consider the parties’

“knowledge of existing zoning.” Id. The parties do not address how a property’s fair market

value may be relevant to the parties’ knowledge of existing zoning. Nonetheless, fair market

value is relevant to just compensation damages. 

Under the Fifth Amendment, there can be no taking without just compensation. U.S.

Const. amend. V. When determining what constitutes “just” compensation in a particular

case, the Supreme Court has used the property’s fair market value as if it were sold to a

willing buyer from a willing seller at its highest and best use. See, e.g., Olson v. United

States, 292 U.S. 246, 255-56 (1934). Accordingly, the court concludes that the property’s

fair market value is relevant to the claims in this case.8

8

In the context of this discovery motion, the court need not decide how the parties

must calculate just compensation damages. Generally, the best fair market value proof is

evidence of comparable sales, and “comparability is largely a function of three variables:

characteristics of the properties, their geographic proximity to one another, and the time

differential.” United States v. 320.0 Acres of Land, 605 F.2d 762, 798 (5th Cir. 1979). 

Moreover, the Fifth Circuit does not distinguish between damage awards given in 42 U.S.C.

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D

MC Trilogy maintains that the Heath subpoenas constitute “invasive harassment.” P.

Br. (ECF No. 86) at 8. It contends that the requests “prob[e] every minute financial detail

of the [Trilogy Development]” even though such financial information “cannot sufficiently

inform this case.” Id. Heath posits that a fair market value analysis requires “a view of the

premises and their surroundings, a description of the physical characteristics of the

property . . . in relation to points of importance in the neighborhood, and the price at which

similar neighboring land has sold at about the time of taking.” D. Resp. (ECF No. 116) at

8 (emphasis omitted) (quoting United States v. 25.02 Acres of Land, 495 F.2d 1398, 1400

(10th Cir. 1974)). Heath does not address why it needs MC Trilogy’s personal financial and

business records to discover such information, which is either in Heath’s possession already

or is subject to an independent investigation. For example, Heath may consult the Trilogy

Development’s concept plan to gain a view of the premises or a description of the Heath

Portion in relation to the neighborhood’s important points or hire an appraiser to determine

the value of the land and comparable sales. But the court does not find that Heath’s conduct

constitutes purposeful harassment that justifies a protective order.9

 Moreover, to the extent

§ 1983 and inverse condemnation actions, with the exception of attorneys’ fees. See, e.g.,

Hernandez v. City of Lafayette, 643 F.2d 1188, 1200 (5th Cir. Unit A June 1981).

9

The court need not address MC Trilogy’s brief, passing statements that the discovery

is not proportional to the needs of the case because these statements do not establish a

complete argument. Moreover, the Federal Rules of Civil Procedure do not allow a resisting

party to “refuse discovery simply by making a boilerplate objection that [the requested

discovery] is not proportional.” Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 467

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that the subpoenas require production of confidential or proprietary information, the parties’

stipulated protective order (ECF No. 66)—which the court entered on July 27, 2023 and has

not modified—protects confidential development information. Accordingly, the court finds

that MC Trilogy has failed to establish good cause to enter a protective order, and it denies

MC Trilogy’s motion. 

* * *

For the reasons explained, the court denies MC Trilogy’s motion to quash or modify

and its motion for protective order. 

SO ORDERED.

October 24, 2023.

_________________________________

SIDNEY A. FITZWATER

SENIOR JUDGE

(N.D. Tex. 2015) (Horan, J.).

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