1

 As a general rule, “a party has no standing to seek to quash a subpoena directed to a

non-party.” United States v. Wells, No. 06-10589, 2006 U.S. Dist. LEXIS 83124, at *5 (E.D.

Mich. Nov. 3, 2006). Because Plaintiff has not alleged a personal right or privilege, he lacks

standing to challenge the subpoenas directed at Movants. See, e.g., Brown v. Braddick, 595 F.2d

961, 967 (5th Cir. 1979); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir.

1975). Therefore, the Court considers this petition as originating solely from Movants.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN P. CHARTERS,

Plaintiff,

v. CASE NO. 09-50157

HON. LAWRENCE P. ZATKOFF

JOHN HANCOCK LIFE INSURANCE CO.,

Defendant.

_________________________________________/

ORDER

AT A SESSION of said Court, held in the United States Courthouse,

in the City of Port Huron, State of Michigan, on March 26, 2009

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

 UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter comes before the Court on a petition by nonparties to the underlying action,

Linda S. Charters and Michael A. Heck, to quash subpoenas [dkt 1]. Charters and Heck are wife

and brother-in-law, respectively, to Plaintiff, who joins in this petition “for the purpose of asserting

that the proposed depositions of his wife and brother-in-law are irrelevant to any claim or defense

in the underlying litigation and is [sic] not reasonably calculated to lead to the discovery of

admissible evidence.”1

 The parties have fully briefed the petition. The Court finds that the briefs

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submitted adequately set forth the relevant law and facts such that oral argument would not aid in

the disposition of the instant petition. E.D. Mich. L.R. 7.1(e)(2). Accordingly, the Court ORDERS

that the petition be decided on the briefs submitted. For the reasons set forth below, the petition is

DENIED. 

Also before the Court is Defendant’s Application for Relief Pursuant to Local Rule 83.20(f)

in which Defendant “seeks relief from the requirement that an attorney appearing as attorney of

record . . . specify on the record a member of the bar of the Eastern District of Michigan having an

office within the district upon whom service of all papers may be made.” Defendant represents that

Plaintiff consents to the relief sought. Accordingly, the Court GRANTS Defendant’s Application

and relieves Defendant of the obligation to specify local counsel.

II. BACKGROUND

Defendant sells variable annuities to 401(k) plans and receives fees for its services in

conjunction with the maintenance of such plans. Plaintiff brought suit against Defendant in the

United States District Court for the District of Massachusetts under the Employee Retirement

Income Security Act of 1974, alleging that Defendant breached its fiduciary duties. Specifically,

Plaintiff alleges that one component of Defendant’s fee structure is excessive in relation to the

services provided. 

Movants in this matter work at Plaintiff’s law firm. Although they are not fiduciaries of the

401(k) plan that ultimately gives rise to the underlying suit, they attended a proposal meeting at

which Defendant allegedly explained its contract proposal, including total fees for the contract.

Plaintiff was not present at the proposal meeting, but Movants allegedly reported what they learned

at the proposal meeting to him. In his deposition, however, Plaintiff could not recall what

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information Movants conveyed to him. Therefore, Defendant seeks to obtain such information from

Movants who now seek to quash the subpoenas commanding them to appear for depositions. 

III. ANALYSIS AND OPINION

The scope of discovery is broad, entitling parties to “obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).

When contemplating restricting discovery, “the court should consider the totality of the

circumstances, weighing the value of the material sought against the burden of providing it, and

taking into account society’s interest in furthering the truthseeking function in the particular case

before the court.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (quotation

omitted). 

Rule 45(c) of the Federal Rules of Civil Procedure permits a party to a suit to seek discovery

through a subpoena to a nonparty. Upon a timely motion, the Court must quash a subpoena that: “(i)

fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party’s

officer to travel more than 100 miles from where that person resides . . . (iii) requires disclosure of

privileged or other protected matter . . . or (iv) subjects a person to undue burden.” Fed. R. Civ. P.

45(c)(3)(A). Whether a burden is undue requires weighing “the likely relevance of the requested

material . . . against the burden . . . of producing the material.” EEOC v. Ford Motor Credit Co., 26

F.3d 44, 47 (6th Cir. 1994). Courts also consider one’s status as a nonparty to be a significant factor

in the undue-burden analysis. See, e.g., N.C. Right to Life, Inc. v. Leake, 231 F.R.D. 49, 51 (D.D.C.

2005). A nonparty seeking to quash a subpoena bears the burden of demonstrating that the

discovery sought should not be permitted. See Concord Boat Corp. v. Brunswick Corp., 169 F.R.D.

44, 48 (S.D.N.Y. 1996); see also Irons v. Karceski, 74 F.3d 1262, 1264 (D.C. Cir. 1995).

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In this matter, Movants contend that the subpoenas subject them to undue burdens by forcing

them to miss work. Movants further argue that the information sought from their depositions is

irrelevant to the underlying case. Finally, Movants state that even if the information is relevant, it

is readily available from another source because Plaintiff has offered to stipulate “to the facts sought

by [Defendant] from these two deponents” or, more specifically, “that he reviewed (or if [Defendant]

prefers), that he did not review, all notices that [Defendant] made available to the plans.” According

to Movants, such a stipulation would obviate the need for their depositions. 

Defendant responds that “a critical gap in the factual record in this case is what Plaintiff

knew about [Defendant’s] fees generally, . . . at the time he entered the Contract.” Therefore,

Defendant seeks the depositions of Movants to close the “critical gap.” Defendant responds that

Movants, as participants in the proposal meeting, possess information that “is highly relevant to

whether . . . [Defendant] can be liable.” Defendant argues that an “insurance company cannot be

held liable for breach of a fiduciary duty for receiving agreed upon fees.” Accordingly, Defendant

maintains that the depositions it seeks are relevant to not only its defense, but also to its affirmative

defenses of waiver, estoppel, and consent to risk. Defendant further observes that it tried to obtain

this information in its deposition of Plaintiff, but Plaintiff could not recall any details pertaining to

the proposal meeting. Defendant represents that Plaintiff’s proposed stipulation would not provide

information “as to what questions his delegates asked at the Proposal Meeting, what questions

Plaintiff asked them about the meeting, and what information, if any, they conveyed to Plaintiff.”

In light of the foregoing, Defendant argues that Movants have not satisfied their burden of

establishing that their depositions would be unduly burdensome. 

The Court finds that the burden imposed on Movants is not undue. Defendant believes that

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the depositions of Movants will yield relevant information to its defense. The court overseeing the

underlying proceedings agrees, indicating “a particular interest in knowing if there are genuine

issues of material fact” as to “whether [Plaintiff] knew of and approved all of the fees [Defendant]

charged to the Plan.” Movants have not convinced the Court that their depositions are irrelevant to

the underlying proceedings. The Court also finds Plaintiff’s offer to stipulate unpersuasive. Plaintiff

has offered to stipulate that he “reviewed” all materials pertaining to fees, but Defendant seeks a

more concrete assessment of whether Plaintiff consented to the fees. Finally, Movants’ argument

that they face undue burdens in the form of taking time from work to attend the depositions fails.

Although Movants are nonparties, they played active roles in the adoption of Defendant’s proposal

by attending the proposal meeting in place of Plaintiff. Under these circumstances, the Court finds

that the depositions sought do not create an undue burden on Movants.

IV. CONCLUSION

IT IS ORDERED that Movants’ petition to quash subpoenas is DENIED.

IT IS SO ORDERED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: March 27, 2009

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on March 27, 2009.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

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