United States District Court, D. New Jersey, Camden Vicinage
December 2, 2005.
KEYBANK NATIONAL ASSOCIATION, Plaintiff,
TRACEY HEUN BRENNAN & CO., Defendant.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter comes before the Court on motion by Plaintiff
KeyBank National Association ("KeyBank") to compel Defendant
Tracey Heun Brennan & Company ("Tracey Heun") to comply with a
subpoena duces tecum issued July 18, 2005, and for sanctions.
For the reasons set forth below, Keybank's motion will be granted
in part and denied in part.
The sole issue pending before this Court is KeyBank's motion to
compel Tracey Heun to comply with a subpoena issued by this Court
for the purposes of litigation pending in the United States
District Court, Northern District of Ohio ("Ohio
Litigation").*fn1 Tracey Heun is a New Jersey company and a
third party to the pending suit in Ohio.
The relevant details of the Ohio litigation are as follows:
KeyBank is a corporate co-trustee of the Ruth Berry Marital Trust
and sole trustee of the Ruth Heston Trust, established for the
benefit of Ruth H. Berry ("Berry"). Berry and the Marital Trust's
co-trustees filed suit against KeyBank on December 10, 2003, on
the basis that KeyBank failed to diversify the trust assets in
breach of its fiduciary duty. KeyBank countersued the plaintiff
One of these countersued co-trustees is Douglas Heun ("Heun"),
Berry's financial advisory since approximately 1985, and a
co-plaintiff to the Ohio litigation. Heun is an accountant and
principal of Tracey Heun, defendant to the motion to compel
presently before this court. Because Tracey Heun is a New Jersey
company and not a party to the Ohio litigation, KeyBank served a
subpoena issued by the United States District Court, District of
New Jersey, pursuant to Federal Rule of Civil Procedure 45,
requesting that Tracey Heun comply with the following:
1. Produce all documents related to this Lawsuit.
2. Produce all documents relating to the services
and/or representation provided by Douglas Heun and/or
Tracey Heun Brennan & Company to Ruth Berry with
respect to the Ruth Heston Trust, the Marital Trust,
or any other trust of which Ruth Berry is/was the
beneficiary and for which KeyBank serves and/or
served as co-trustee.
3. Produce all of your notes relating to Douglas
Heun's and/or Tracey Heun Brennan & Company's services for and/or representation of Ruth Berry
and/or the Trusts.
4. Produce all billing documents relating to Douglas
Heun's and/or Tracey Heun Brennan & Company's
services for and/or representation of Ruth Berry
and/or the Trusts.
5. Produce all trusts established or created by Ruth
Berry, as grantor.
6. For each trust produced pursuant to request Number
5, produce all documents relating to such trusts,
including, but not limited to, billing records and
investments in each such trust.
Tracey Heun filed objections to the subpoena with the District
Court in Ohio on July 27, 2005. KeyBank then filed the present
motion to compel and for sanctions with this Court on September
Federal Rule of Civil Procedure ("Rule") 45(a)(2) authorizes
"the court for the district in which the production or inspection
is to be made" to issue a subpoena commanding production. The
issuing court alone has authority to quash or enforce the
subpoena. Fed.R.Civ.P. 45(c) & (e); Highland Tank & Mfg. Co.
v. PS Intern., Inc., 227 F.R.D. 374, 380 (W.D.Pa. 2005) ("[A]ny
controversies regarding the production of documents from nonparty
witnesses shall be decided in the court which issued the
subpoena."); Anderson v. Government of Virgin Islands,
180 F.R.D. 284, 289 (D.V.I. 1998). Accordingly, KeyBank's motion to
compel compliance with the subpoena issued by the District of New
Jersey is properly filed in this Court.
Tracey Heun objects to the subpoena on the basis that it
requests privileged information, and that it is vague, overbroad,
and unduly burdensome.
However, the party asserting objections to a request for
discovery bears the burden of demonstrating specifically how the
request is vague or overly broad. See e.g., Coregis Ins. Co.
v. Baratta & Fenerty, Ltd., 187 F.R.D. 528, 530 (E.D. Pa. 1999);
Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa.
1980). Here, Tracey Heun's arguments that the requests are
insufficiently clear, specific, or narrowly tailored are not
compelling, and Tracey Heun has not adequately explained how the
requests could be reasonably construed as vague, overbroad, or
Furthermore, although Tracey Heun argues that the requested
material is privileged, Rule 45(d)(2) requires objectors to
support claims of privilege with "a description of the nature of
the documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim."
Fed.R.Civ.P. 45(d)(2). Tracey Heun has not done so, and it
remains unclear what documents it considers privileged and its
reasons for so believing.
Tracey Heun further objects to the subpoena on the basis that
it requests information irrelevant to the underlying litigation. Specifically, Tracey Heun points to the fact that, in
addition to documents related to the two trusts at issue in the
Ohio litigation, KeyBank requests all documents related to any
trusts or financial services provided to Berry by Tracey Heun.
Tracey Heun argues that this information exceeds the scope of
It is well established that "[p]arties may obtain discovery
regarding any matter, not privileged, that is relevant to the
claim or defense of any party" and that "[f]or good cause, the
court may order discovery of any matter relevant to the subject
matter involved in the action." Fed.R.Civ.P. 26(b)(1). Rule 26
construes relevancy broadly, as any information "reasonably
calculated to lead to the discovery of admissible evidence."
Id. The contemplated breadth of permissible discovery thus
extends well beyond the more confined universe of evidence
admissible at trial. Hickman v. Taylor, 329 U.S. 495, 507-08
Douglas Heun is a plaintiff to the Ohio litigation and Berry's
primary financial advisor. KeyBank argues that the documents
possessed by Douglas Heun's company, Tracey Heun, are therefore
relevant both to ascertain any self interest or ulterior motive
on the part of Douglas Heun, and to gain a more comprehensive
understanding of Berry's "overall investment strategy."
Provisions of Ohio's Prudent Investor Act establish that information regarding the beneficiary's "overall investment
strategy" and "the context of the trust portfolio as a whole" may
be necessary to determine whether a trustee has breached a
fiduciary duty, such as an obligation to diversify. O.R.C.
1339.53. Consequently, information relating to Tracey Heun's
services for Berry is relevant to KeyBank's duties as trustee, as
well as to Douglas Heun's role in the circumstances underlying
the Ohio litigation. The documents requested by the subpoena are
therefore relevant and discoverable.
Accordingly, KeyBank's motion to compel is granted. However,
because this Court finds that Tracey Heun's objections were
properly served and that Tracey Heun did not fail to obey
"without adequate excuse," Fed.R.Civ.P. 45(e), KeyBank's
motion for sanctions is denied.
The accompanying Order shall issue today.
© 1992-2005 VersusLaw Inc.