Discovery must be “relevant” and “not privileged.” Fed. R. Civ. P. 26(b)(1) (“Partiesmay obtain discovery regarding any matter, not privileged, that is relevant to the claim ordefense of any party. . . .”); Fed. R. Civ. P. 45(c)(3)(A);
Watts v. SEC
, 482 F.3d 501, 507-09(D.C. Cir. 2007) (permissible scope of discovery prohibits inquiry into non-relevant andprivileged matters).Rule 45 provides special protections for non-parties that are subpoenaed, as is the casehere.
Fed. R. Civ. P. 45(c), (d);
, 482 F.3d at 508. Rule 45’s “undue burden” standard“requires district courts supervising discovery to be generally sensitive to the costs imposed onthird parties.”
, 482 F.3d at 509. In particular, Rule 45 imposes on district courts the“responsibility to analyze privilege or undue burden assertions” and “requires that district courtsquash subpoenas that call for privileged matter or would cause an undue burden.”
at 508;Fed. R. Civ. P. 45(c)(3)(A).
Ms. Spencer Has Failed to Establish that the Documents She Seeks AreRelevant to this Litigation
The burden is on Ms. Spencer to establish that the documents she seeks are relevant to avalid claim or defense.
Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 45(c)(3)(A);
, 482 F.3dat 507-09. She has failed to do so. She claims to need this information because it is relevant toshow “FHFA’s knowledge” of Fannie Mae’s accounting. However, Ms. Spencer’s subpoenaseeks, in her own words:[A] report prepared for FHFA by an outside investigative firmcalled Kroll regarding
Freddie Mac’s accounting
of derivative instruments under FAS 133. The reportand related documents could bear directly on the nature of, and
of, similar transactions undertaken by FannieMae that are at issue in this litigation. (emphasis added).
Case 1:04-cv-01639-RJL Document 792 Filed 10/02/09 Page 3 of 11