Clay et al v. Midwest Farms, LLC et al

Filing 51

ORDER granting in part and denying in part 40 Defendants' Motion toQuash Plaintiffs' Subpoena to Verizon Wireless, by Magistrate Judge Michael E. Hegarty on 10/20/2017. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00085-PAB-MEH
GERALD STUARD CLAY,
GERALD PAUL CLAY, and
JEFFREY CLAY,
Plaintiffs,
v.
RICHARD GENE LAMBERT,
MALISSA HELOISE HILL, and
MIDWEST TRANSPORT, LLC,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Defendants seek to quash a subpoena Plaintiffs served on Verizon Wireless—Defendants’
cell phone carrier. The subpoena requests Defendants’ phone records for the day before and the day
of the accident underlying this case. According to Defendants, the subpoena is overbroad and seeks
information over which they have a legitimate privacy interest. The Court quashes the subpoena to
the extent it seeks the specific phone numbers to which Defendants made calls or sent messages and
the substance of communications Defendants had while using their cell phones. However, Plaintiffs
are entitled to information Verizon maintains about the cell towers Defendants’ phones accessed.
Accordingly, the Court modifies the subpoena so as to request only permissible information.
BACKGROUND
Plaintiffs filed the operative Amended Complaint against Defendants on February 24, 2017.
ECF No. 21. Plaintiffs assert they were injured in an automobile collision on December 23, 2014.

Id. ¶¶ 14–16. According to Plaintiffs, at the time of the accident Defendants Richard Lambert and
Malissa Hill were operating a semi-truck owned by Defendant Midwest Transport, LLC. Id. ¶ 10.
The truck jack-knifed on the freeway and blocked all lanes of traffic. Id. ¶ 11. Plaintiffs, who were
traveling behind Defendants, collided with the side of the truck. Id. ¶ 12.
Plaintiffs assert causes of action for negligence and recklessness against all Defendants and
vicarious liability and negligence in hiring against Midwest Transport only. Id. ¶¶ 18–27. The
Court issued a Scheduling Order on April 25, 2017, ECF No. 38, and the parties proceeded with
discovery.
On August 3, 2017, Plaintiffs served a subpoena on Verizon Wireless seeking Defendants
Lambert’s and Hill’s cell phone records from December 22, 2014 at 12:00 a.m. through December
23, 2014 at 12:00 p.m. Subpoena Duces Tecum 2, ECF No. 40-1. Defendants moved to quash the
subpoena on August 17, 2017. Mot. to Quash Subpoena, ECF No. 40. Defendants argue the
subpoena is overbroad and seeks irrelevant information over which they have a legitimate privacy
interest. Id. at 2. Plaintiffs respond that the data indicating what cell towers Defendants’ phones
accessed will show Defendants’ travel route leading up to the accident. Resp. to Mot. to Quash
Subpoena 6, ECF No. 47. Plaintiffs intend to use this information to demonstrate that Defendants
failed to take sufficient rest stops and were fatigued at the time of the accident. Id. at 7.
Furthermore, Plaintiffs contend Lambert and Hill do not have a legitimate privacy interest in their
location while driving for Midwest Transport. Id. at 8–9. Defendants filed their reply brief on
September 21, 2017. Reply in Supp. of Mot. to Quash Subpoena, ECF No. 49. Defendants assert
that although Plaintiffs may be entitled to the cell tower records, the subpoena is not narrowly
tailored to request only this data. Id. at 3. Because the subpoena also seeks confidential and

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irrelevant information, Defendants urge the Court to quash the subpoena in its entirety. Id. at 3–4.
Furthermore, Defendants advise the Court that they served an identical subpoena on Verizon and
will provide Plaintiffs with any relevant information Verizon produces in response. Id.
LEGAL STANDARDS
I.

Rule 26(b)(1)
“[T]he scope of discovery under the federal rules is broad.” Gomez v. Martin Marietta

Corp., 50 F.3d 1511, 1520 (10th Cir. 1995). Federal Rule of Civil Procedure 26(b)(1) permits
discovery regarding any nonpriviliged matter that is relevant to a party’s claim or defense and
proportional to the needs of the case. Federal Rule of Evidence 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence.” In
considering whether the discovery is proportional to the needs of the case, Rule 26(b)(1) instructs
courts to analyze “the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The party objecting to discovery must
establish that the requested information does not fall under the scope of discovery as defined in Fed.
R. Civ. P 26(b)(1). Simpson v. University of Colo., 220 F.R.D. 354, 359 (D. Colo 2004).
II.

Rule 45
A subpoena served on a third party pursuant to Rule 45 of the Federal Rules of Civil

Procedure is subject to the same standards that govern discovery between the parties—it must seek
relevant information and be proportional to the needs of the case. Segura v. Allstate Fire & Cas.

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Ins. Co., No. 16-cv-00047-NYW, 2016 WL 8737864, at *5 (D. Colo. Oct. 11, 2016) (citing Rice v.
United States, 164 F.R.D. 556, 556–57 (N.D. Okla. 1995)). Rule 45 requires courts to quash or
modify a subpoena that “(i) fails to allow a reasonable time to comply, (ii) requires a person to
comply beyond the geographical limits specified in Rule 45(c), (iii) requires disclosure of privileged
or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue
burden.” Fed. R. Civ. P. 45(d)(3)(A). Additionally, a court may quash a subpoena if it requires
disclosure of a trade secret or other confidential information. Fed. R. Civ. P. 45(d)(3)(B).
ANALYSIS
In relevant part, Plaintiffs’ subpoena requests:
Any and all records from 12:00 a.m. (MST) on December 22, 2014 through 12:00
p.m. (MST) on December 23, 2014, for the following cell phone numbers:
719-350-0805

719-350-0543

assigned to Richard Lambert, including, without limitation, a complete list of all
incoming and outgoing calls and text messages along with the times of said calls and
text messages.
Subpoena Duces Tecum 2, ECF No. 40-1. Defendants ask the Court to quash the subpoena, because
it is overbroad, and it seeks information over which they have a privacy interest. Mot. to Quash
Subpoena ¶¶ 8–9.
“Discovery in federal court is governed by the Federal Rules of Civil Procedure, regardless
of whether jurisdiction is based on a federal question or diversity of citizenship.” Zander v. Craig
Hosp., 267 F.R.D. 653, 658 (D. Colo. 2010). However, if a state doctrine regarding privacy and
confidentiality does not conflict with federal interests, federal courts may apply it when determining
whether information is discoverable. See, e.g., Gottlieb v. Wiles, 143 F.R.D. 235, 237 (D. Colo.
1992).
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Here, the parties agree that the Court should apply the privacy test the Colorado Supreme
Court articulated in In re District Court, City & Cty. of Denver, 256 P.3d 687 (Colo. 2011). Mot.
to Quash Subpoena ¶¶ 5–6; Resp. to Mot. to Quash Subpoena 5. Under this test:
The party requesting the information must always first prove that the information
requested is relevant to the subject of the action. Next, the party opposing the
discovery request must show that it has a legitimate expectation that the requested
materials or information is confidential and will not be disclosed. If the trial court
determines that there is a legitimate expectation of privacy in the materials or
information, the requesting party must prove either that disclosure is required to
serve a compelling state interest or that there is a compelling need for the
information. If the requesting party is successful in proving one of these two
elements, it must then also show that the information is not available from other
sources. Lastly, if the information is available from other sources, the requesting
party must prove that it is using the least intrusive means to obtain the information.
In re District Court, 256 P.3d at 691–92. The Court will follow the decisions of many courts within
this District and apply this test in determining whether the subpoena at issue seeks discoverable
information. See Gordon v. Rice, No. 13-cv-00514-RBJ-MEH, 2014 WL 903205, at *6–7 (D. Colo.
Mar. 7, 2014) (applying the test in determining whether tax records are discoverable); Bennett v.
SSC Palisade Operating Co., LLC, No. 14-cv-00923-WJM-KLM, 2014 WL 3809768, at *2–3 (D.
Colo. Aug. 1, 2014) (applying the test to discovery of personnel files).
The Court finds that the subpoena seeks discoverable and non-discoverable information. As
such, the Court will modify the subpoena so that it requests only permissible information.1 See Fed.
R. Civ. P. 45(d)(3)(A) (permitting courts to modify a subpoena that requires disclosure of protected

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Defendants request that instead of modifying the subpoena, the Court quash the subpoena
in its entirety and permit them to request the information from Verizon and disclose only what is
relevant. Reply in Supp. of Mot. to Quash Subpoena ¶ 4, ECF No. 49. However, allowing
Defendants to be the decisionmakers with regard to discoverable information would likely result in
additional motions practice regarding Defendants’ production of the subpoenaed information. The
Court finds that the interests of the parties and the efficient resolution of this matter will be served
by modifying the subpoena to request only permissible information.
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matter or subjects a party to undue burden); Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir.
1994) (“[M]odification of an overbroad subpoena might be preferable to quashing . . . .”); Clark v.
Johnson, No. 14-CV-582-JED-PJC, 2015 WL 4694045, at *3 (N.D. Okla. Aug. 6, 2015) (narrowing
a subpoena to request only relevant information).
First, the parties agree, and the Court finds, that Plaintiffs may receive cell tower data from
Verizon.2 Reply in Supp. of Mot. to Quash Subpoena ¶ 4, ECF No. 49 (“Plaintiffs may be entitled
to the cell phone tower data they claim is the only information they are seeking.”); Resp. to Mot. to
Quash Subpoena 7, ECF No. 47 (stating that Plaintiffs “are seeking information on which cell towers
were accessed”). Data showing the cell towers that Defendants’ phones accessed when they made
calls and sent messages is relevant, because it will allow Plaintiffs to determine Defendants’ trip
itinerary leading up to the accident. See Resp. to Mot. to Quash Subpoena 6 (“Plaintiffs can then
hire an expert to review the data and pinpoint, likely within a few miles, where Defendants Lambert
and Hill were during the subject trip.”). Plaintiffs can potentially use the itinerary to demonstrate
that Defendants were fatigued, as they had been driving for significant time without rest.
Proceeding to the next step of the In re District Court analysis, Defendants do not have a
legitimate expectation of privacy in the cell tower data. See Rehberg v. Paulk, 611 F.3d 828, 843
(11th Cir. 2010) (“[A] person does not have a legitimate expectation of privacy in numerical
information he conveys to a telephone company in the ordinary course of business.”); see also
Coleman v. Reed, No. CIV-15-1014-M, 2016 WL 4523915, at *2 (W.D. Okla. Aug. 22, 2016)

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Defendants contend that “Plaintiffs’ subpoena does not specifically ask for the cell phone
tower data at all.” Reply in Supp. of Mot. to Quash Subpoena ¶ 1. Although the subpoena does not
specifically request cell tower data, it seeks “any and all records” Verizon has for Defendants’ cell
phone numbers. Subpoena Duces Tecum 2, ECF No. 40-1. The Court finds this request
encompasses cell tower information.
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(permitting disclosure of cell phone tower data in a truck accident case). Indeed, Defendants do not
contend they have a privacy interest in their location. Accordingly, the Court finds the subpoena
permissible to the extent it seeks records stating when and where Defendants’ phones accessed cell
phone towers from December 22, 2014, at 12:00 a.m. through December 23, 2014, at 12:00 p.m.3
However, the Court does not find discoverable records showing the specific phone numbers
to which Defendants sent and received calls and messages. Plaintiffs only argument for the
relevance of the requested information is that it will reveal Defendants’ location. Resp. to Mot. to
Quash Subpoena 6–8. However, the specific people Defendants communicated with will not
demonstrate their location. Additionally, even if Plaintiffs established the relevance of the
information, Defendants have a legitimate privacy interest in the cell phone numbers they contact.
See Gateway Logistics, Inc. v. Smay, 302 P.3d 235, 240 (Colo. 2013) (“Individuals also have a
personal privacy interest in the telephone numbers they dial.”). Indeed, a reasonable person would
not expect the numbers they dial on their personal cell phone to become public knowledge.
Furthermore, because Plaintiffs will be able to receive Defendants’ location from the cell tower data,
Plaintiffs have not demonstrated a compelling need for the information. As such, the Court will
modify the subpoena to exclude records listing the phone numbers to which Defendants made and
received calls and messages.
Similarly, the substance of any communications Defendants had is not discoverable. As an
initial matter, although the plain language of the subpoena certainly requests the content of
communications, it appears as though Plaintiffs no longer seek this information. Indeed, Plaintiffs

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Because the Court finds that Defendants do not have a legitimate expectation of privacy
over the cell tower data, the Court need not analyze the remaining three steps of the In re District
Court analysis.
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state in their response that “they are not seeking the content of the communications.” Resp. to Mot.
to Quash Subpoena 7. However, because Plaintiffs go on to argue that communications are regularly
discoverable in accident cases, the Court will address this issue.
The test articulated in In re District Court does not favor requiring Verizon to produce the
content of communications. Although some of the communications may contain relevant evidence
regarding Defendants’ location and who was driving, Defendants have a legitimate privacy interest
in this information. Gateway Logistics, Inc., 302 P.3d at 240 (“[I]ndividuals have a privacy interest
in their electronically stored information, including personal correspondence and records, on their
computers, smartphones, and other electronic storage devices.”); Clark, 2015 WL 4694045, at *2
(stating that the cell phone carrier “shall not produce any information regarding the substance of any
communication [the plaintiff] may have sent or received” leading up to the accident). Regarding
the third step, Plaintiffs have not shown a compelling need for the content of the communications.
Plaintiffs contend “it is likely that any communication that does get produced has a great probability
of shedding light on the location of the drivers.” Resp. to Mot. to Quash Subpoena 8. However,
Plaintiffs will be able to obtain Defendants’ location from the cell tower data and records showing
when and where text messages were made.4 Therefore, the Court will quash the subpoena to the
extent it seeks the substance of any text messages or phone calls that Verizon may possess.
CONCLUSION
In sum, the Court finds that Plaintiffs’ subpoena is overbroad in that it unnecessarily seeks
information over which Defendants have a legitimate expectation of privacy. Specifically, the Court

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Because the Court finds that Plaintiffs have not shown a substantial need for the content
of the communications, the Court need not address the remaining two steps of the In re District
Court analysis.
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quashes the subpoena to the extent it requests the specific phone numbers Defendants dialed and the
content of any text or phone conversations Defendants had leading up to the accident underlying this
lawsuit. However, records indicating when and where Defendants made communications and what
cell towers their phones accessed are relevant to Plaintiffs’ claims. Furthermore, Defendants lack
a legitimate expectation of privacy over this information. Accordingly, Defendants’ Motion to
Quash Plaintiffs’ Subpoena to Verizon Wireless [filed August 17, 2017; ECF No. 40] is granted in
part and denied in part.
Entered and dated at Denver, Colorado, this 20th day of October, 2017.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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