BERRYMAN-DAGES v. CITY OF GAINESVILLE FLORIDA

Filing 60

ORDER: 39 MOTION to Quash is GRANTED IN PART and DENIED IN PART. 52 MOTION to Amend 20 Scheduling Order is GRANTED. (Discovery due by 8/19/2011., Motions due by 10/3/2011.). Signed by SENIOR JUDGE MAURICE M PAUL on 7/20/2011. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
KIM BERRYMAN-DAGES,
Plaintiff,
v.

CASE NO. 1:10-cv-00177-MP-GRJ

CITY OF GAINESVILLE FLORIDA,
Defendant.
_____________________________/
ORDER
This matter is before the Court on Doc. 39, Motion to Quash Subpoenas by Nancy
Thayer, and Doc. 52, Motion to Amend the Scheduling Order by City of Gainesville, Florida.
Ms. Thayer is not a party to this case; however, both parties have responded to her motion to
quash. Docs. 46 and 47. For the reasons given below the motion to quash is denied, but the
Court orders modification of the subpoenas under Fed. R. Civ. P. 45(c)(3)(A).
This case involves a claim that plaintiff was adversely treated and eventually demoted
within the Gainesville Fire Rescue service based on gender and sexual orientation discrimination
and in retaliation for her reporting unlawful employment practices. During discovery, defendant
subpoenaed the computer of a non-party, Nancy Thayer, because Ms. Thayer had claimed to
have written an anonymous letter sent to Plaintiff in which Plaintiff’s conduct and character were
criticized and reference was made to Plaintiff’s gender and sexual orientation. Later, Ms. Thayer
denied writing the letter and instead ascribed it to her ex-husband, who was the Gainesville Fire
Rescue Chief at the time of her demotion.
The subpoena asked for the following:

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Any and all computers, laptops, hard drives, or any other similar devices used by
NANCY THAYER (f/k/a NANCY NORTHCUTT) during the time period of
January 1,2008, to January 1,2009, while residing with and married to WILLIAM
K. NORTHCUTT at 5531 NW 34th Street. Gainesville, Florida. The drives of
such devices will be imaged for the purposes of inspection and/or copying of the
electronic document attached hereto as Exhibit A, which Ms. Thayer admitted to
sending to KIM BERRYMAN-DAGES in September of 2008, whether it exists
on such devices or not, any metadata associated therewith, and any electronic
information that was created, accessed, modified or deleted within one hour of the
creation, access, modification. or deletion dates for the electronic document
attached hereto as Exhibit A.
(Doc. 39, p. 5). Exhibit A is the anonymous letter described above.
Ms. Thayer is willing to allow the computer to be examined, but asks that an impartial
computer forensics expert, not employed by the City of Gainesville, search the electronic
information on her personal computer; that any person investigating the personal computer be
punished for divulging any information outside the purview of this case; that Ms. Thayer be
allowed to sit down with said computer and impartial third party computer forensics expert
during the inspection; that the expert’s sole purpose be to extract the single piece of information
in question; that the expert be directed by the Court to keep confidential any and all information
outside the purview of this case; and that no information on said computer be altered, deleted or
copied.
Under Fed. R. Civ. P. 45(c)(3)(A)(iii) and (iv), a Court must quash or modify a subpoena
which "requires disclosure of privileged or other protected matter" or "subjects a person to undue
burden." As an initial matter, the Court agrees with defendant that the letter and associated data
and metadata on the computer are materials that are reasonably calculated to lead to admissible
evidence. Thus, defendant should be entitled to discover these materials. Additionally, the
Court agrees that a forensic examiner must be permitted to image the hard drive to allow for a
search for the letter in the hard drive’s unallocated space in the event that the letter has been
Case No: 1:10-cv-00177-MP-GRJ

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deleted. Also, the Court agrees that the City need not incur the expense of retaining an impartial
third party forensic examiner. The mere fact that the City employs police officers and the
attorneys in this case is insufficient to justify this expense.
However, the Court agrees with Ms. Thayer that allowing this image of the hard drive to
be turned over to the defendant or any other party, or even allowing the review of the hard drive
by defendant, risks disclosure of protected matter without good reason. Additionally, allowing
the City to possess the computer for an extended period of days would be unduly burdensome.
Thus, the subpoena must be modified under Fed. R. Civ. P. 45(c)(3)(A)(iii) and (iv). On review
of this order, if Ms. Thayer continues to have privacy or confidentiality concerns, she is directed
to address those concerns to the Court.
In addition, the City of Gainesville moves the Court to amend the scheduling order. Both
parties have expressed a need to conduct additional discovery past the current June 30, 2011
deadline. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The motion to quash, Doc. 39, is granted in part and denied in part. Ms. Thayer
must comply with the subpoena, but with the following modifications:
•

A computer forensics expert, employed by the City of Gainesville Police
Department, shall be permitted to image the hard drive of the computer in
order to facilitate a search for the letter in question, and any related
metadata, including in the unallocated free space of the hard drive;

•

Only this police forensics expert will be allowed search or review the
electronic information on her personal computer, and the police computer
forensics expert’s sole purpose shall be to extract information relating to
the letter referred to in the subpoena;

•

Ms. Thayer shall be allowed to sit down with said computer and
Gainesville Police Department computer forensics expert during the
inspection, and may retain at her own expense, and have present during
the examination, her own computer forensics expert;

Case No: 1:10-cv-00177-MP-GRJ

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•

•

2.

The expert is directed to keep confidential any and all information other
than the information listed above; and
No information on said computer shall be altered, deleted or copied,
except the information listed above. The forensic examiner shall destroy
the image of the hard drive after completing the examination.

The motion to amend the scheduling order, Doc. 52, is GRANTED. The deadline
for completing discovery is extended until August 19, 2011 and the deadline for
filing motions for summary judgment is extended until October 3, 2011.

DONE AND ORDERED this

20th day of July, 2011

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:10-cv-00177-MP-GRJ