UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CITY OF WHITING, INDIANA, )

 Plaintiff, )

 )

 v. ) CAUSE NO.: 2:14-CV-440-JTM-PRC

)

WHITNEY, BAILEY, COX & )

MAGNANI, LLC, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Motion of Movant/Non-Party, Superior Construction Co.,

Inc., to Quash or Modify Subpoena [DE 48], filed by Superior Construction Co., Inc. (“Superior”) on May

10, 2017. No response has been filed, and the deadline to do so has passed.

As an initial matter, there is a pending Motion for Leave to File Third Amended Complaint. That

motion, if granted, would add Superior as a defendant to this lawsuit. Because that motion has not yet been

ruled on, the Court rules on the instant motion as to Superior in its current status as a non-party to the

lawsuit. This Opinion and Order should not be interpreted as governing discovery requests to Superior in

the event that Superior becomes a party to this lawsuit.

Plaintiff City of Whiting, Indiana (“Whiting”), served a subpoena on Superior on or about April 21,

2017. In that subpoena, Whiting requested the production of documents from Superior by May 10, 2017.

Superior argues that the subpoena should be quashed or modified. Superior represents that it is

unable to produce the documents requested by the deadline stated in the subpoena because of the volume

of records that fall under the requests, the location of the records, and the possible damage to those

documents due to flooding. Superior also argues that the requests are objectionable because they are overly
broad, largely duplicative of records that Whiting already possesses, present an undue burden, and are not

proportional.

The subpoena asks for five categories of records:

1. All documents and communications between Superior and Structurepoint relating

to the Project.

2. All documents and communications between Superior and WBCM relating to the

Project.

3. All documents and communications between Superior and the City [of Whiting]

relating to the Project.

4. All surveys, both on land and in the water, performed by Superior or any other

engineer or surveyor in conjunction with the Project.

5. Superior’s complete project file for the Project.

(Subpoena at 6, ECF No. 49-1).

Regarding categories 2 and 3, Whiting should obtain this information from the existing parties in the

litigation—either itself or Defendant Whitney, Bailey, Cox & Magnani (WBCM). “A party’s ability to

obtain documents from a source with which it is litigating is a good reason to forbid it from burdening a nonparty with production of those same documents.” Countryman v. Cmty. Link Fed. Credit Union, No.

1:11-cv-136, 2012 WL 1143572, at *5 (N.D. Ind. Apr. 3, 2012) (quoting Arthrex, Inc. v. Parcus Med.,

LLC, No. 1:11-mc-107, 2011 WL 6415540, at *6 (S.D. Ind. Dec. 21, 2011)); see Fed. R. Civ. P.

26(b)(2)(C) (“the court must limit the frequency or extent of discovery . . . if it determines that (i) the

discovery sought . . . can be obtained from some other source that is more convenient[ or] less

burdensome.”). Whiting has not indicated that it is unable to obtain this information from the existing parties

in the lawsuit. Because Superior is currently a non-party to this litigation, the Motion to Quash is granted

as to categories 2 and 3.

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Regarding the remaining three categories, Superior argues that compliance with the subpoena will

require Superior to spend thousands of dollars in employee wages and will likely cause Superior to incur

the expense of hiring an outside vendor to search Superior’s computer network. Superior also argues that

the documents it has in its possession have likely already been produced in discovery between the parties

or are documents that Whiting already possesses, as Superior’s role in the project that gives rise to this

litigation was as a contract party with Whiting. Whiting, having failed to file a response, does not rebut any

of Superior’s arguments. Accordingly, the Court finds that the burden of time and expense placed on

Superior by the subpoena is undue in light of Superior’s status as a non-party to this lawsuit and that given

the likelihood of many of the requested documents already being in Whiting’s possession, the requests are

not proportional to the needs of the case. Thus, these categories of requests are outside the scope of

discovery. See Fed. R. Civ. P. 26(b). The Motion to Quash is granted as to categories 1, 4, and 5.

Accordingly, the Court hereby GRANTS the Motion of Movant/Non-Party, Superior

Construction Co., Inc., to Quash or Modify Subpoena [DE 48] and QUASHES the Subpoena served on

Superior by Whiting on or about Friday, April 21, 2017.

SO ORDERED this 25th day of May, 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: Robert F. Parker, counsel for Superior Construction Co., Inc.

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