Marsh USA Inc. v. Machua Millett
- Jesse Furman
- 1:22-cv-06656
- U.S. District Court · Southern District of New York
- 4
Marsh USA v. Millett: Judge Furman granted Millett’s motion to quash a subpoena but denied his request for attorney’s fees.
Marsh USA, Inc. may not use information or documents obtained through the untimely subpoena to Southeast Series of Lockton Companies, Inc. Michael Machua Millett did not receive attorney’s fees as a sanction.
What happened
In Marsh USA, Inc. v. Michael Machua Millett, Marsh served a subpoena on nonparty Southeast Series of Lockton Companies, Inc. after fact discovery had closed and before the scheduled jury-waived trial. Marsh said it sought information for impeachment and cross-examination.
The court ruled that the subpoena’s broad requests for all documents about certain client work and testimony were an improper attempt to gather new evidence rather than a limited trial subpoena. It granted Millett’s motion to quash and barred Marsh from using any information or documents received through the subpoena. The court denied Millett’s request for attorney’s fees, finding that Marsh had not violated a discovery order and had not acted in bad faith.
Judge Jesse M. Furman issued the August 22, 2023 memorandum opinion and order.
The detailed version
- Marsh USA Inc. v. Machua Millett · No. 1:22-cv-06656
- Jesse Furman
- Aug. 22, 2023
Background
The case was scheduled for a non-jury trial beginning October 3, 2023. After the parties submitted pretrial materials and fact discovery had closed, Marsh USA, Inc. served a subpoena on nonparty Southeast Series of Lockton Companies, Inc. The subpoena sought all documents related to Lockton Southeast’s work for two clients and all documents reflecting or substantiating certain statements in the direct-testimony affidavit of Fernando Silva.
Michael Machua Millett moved to quash the subpoena because it was served after the discovery deadline. Marsh argued that the subpoena was proper because it sought information for impeachment and cross-examination at trial.
Subpoena ruling
The court explained that a trial subpoena may be used in limited circumstances, including to obtain an original document previously disclosed during discovery, refresh a witness’s memory, prepare for trial, or obtain material for cross-examination and impeachment. It may not be used to conduct additional discovery after the discovery deadline.
The court found that Marsh’s subpoena was too broad and was intended to gather evidence, not merely to support cross-examination or impeachment. The court emphasized that the subpoena requested documents not previously produced or identified and that the broad requests would effectively reopen fact discovery after the parties had reviewed the opposing side’s direct testimony.
The court therefore granted Millett’s motion to quash the subpoena served on Lockton Southeast. It also barred Marsh from using, in any fashion, any information or documents it might receive through the untimely subpoena.
Attorney’s-fee request
Millett also sought attorney’s fees as a sanction under Federal Rules of Civil Procedure 16(f)(2) and 37(b)(2)(C). The court denied the request under Rule 37 because Marsh had not violated a clearly stated court order requiring specified discovery. The court also found that monetary sanctions under Rule 16(f)(2) were not appropriate. Although Marsh’s attempt to obtain new documents was untimely and lacked merit, the court found that its position was not entirely unreasonable and that it had not acted in bad faith.
The court therefore denied Millett’s request for attorney’s fees and directed the Clerk to terminate the motion at ECF No. 94.
Judge
Judge Jesse M. Furman issued the memorandum opinion and order.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.