Timothy v. Oneida County et al

Filing 35

MEMORANDUM DECISION AND ORDER. IT IS THEREFORE ORDERED that Defendants' Motion to Quash Subpoena and Motion for Protective Order (Dkt. 27 ) is GRANTED in part and DENIED in part. Defendants request to stay all discovery is denied, but the Defendants' request to quash Mr Castleton's subpoena is granted. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

HEATHER S. TIMOTHY, an individual,

Plaintiff,

Case No. 4:14-cv-00362-BLW
MEMORANDUM DECISION AND
ORDER

v.

ONEIDA COUNTY, a political
subdivision of the state of Idaho;
DUSTIN W. SMITH, individually and
in his capacity as Prosecuting Attorney
for Oneida County, Idaho; SHELLEE
DANIELS, DALE F. TUBBS and MAX
C. FIRTH, individually and in their
capacities as Oneida County
Commissioners,
Defendants.

Before the Court is Defendants’ Motion to Quash Subpoena and Motion for
Protective Order (Dkt. 27). Pursuant to the Court’s discovery dispute procedure outlined
in the Case Management Order, the parties contacted Court staff in attempt to mediate a
pending discovery dispute. Unable to resolve the issues, Defendants move to stay
discovery and quash several subpoenas. For the reasons set forth below, the Court will
grant Defendant’s motion in part and deny it in part.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiff Heather Timothy was fired from her position as legal secretary to Oneida
County Prosecutor Dustin Smith after she reported Smith for allegedly misappropriating
public funds. In August 2014, Timothy filed this lawsuit. The original amended
complaint named Oneida County, Smith, and County Commissioners Shellee Daniels,
Dale Tubbs, and Max Firth as defendants and asserted claims for (1) injunctive and
declaratory relief for First and Fourteenth Amendment violations, (2) retaliatory
discharge in violation of the First Amendment, (3) denial of due process in violation of
42 U.S.C. § 1983, (4) wrongful termination in violation of state law, (5) negligent
infliction of emotional distress, (6) termination of private employment in violation of
public policy, (7) intention infliction of emotional distress, and (8) conspiracy claims
against the Commissioner defendants tied to the First Amendment claim and the
Fourteenth Amendment due process claim.
Defendants moved to dismiss the amended complaint, which the Court partially
granted. Specifically, the Court dismissed, with leave to amend, (1) the First Amendment
claim as to the Commissioner defendants (Count II), (2) the property-interest claim
alleged within the due process claim (Count III) as to the Commissioner defendants, (3)
the claim for negligent infliction of emotional distress as to the Commission defendants
(Count V), (4) the claim for intentional infliction of emotional distress, alleged against
Smith only (Count VII), and (5) the conspiracy claims associated with First Amendment
and the Fourteenth Amendment property-interest claims. The Court dismissed, without
MEMORANDUM DECISION AND ORDER - 2

leave to amend, the liberty-interest claim encompassed within the due process claim
(Count III), and the accompanying conspiracy claim.
Timothy has filed a Second Amended Complaint (Dkt. 25), re-alleging all those
claims dismissed with leave to amend. In addition, Timothy has filed a motion to
reconsider the Court’s decision denying Timothy the opportunity to amend her libertyinterest and accompanying conspiracy claim. Defendants have moved to dismiss the
Second Amended Complaint and have opposed the motion to reconsider.
This discovery dispute arose when Timothy notified defense counsel, Bruce
Castleton, that she intended to serve third party subpoenas directed to: (1) Lt. Kyle
Fullmer, Idaho State Police; (2) private attorney Mark L. Heideman, who served as a
special prosecutor in connection with an investigation into Defendant Smith; (3) Sheriff
Jeffery Semrad, Oneida County Sheriff's Office; and (4) Bruce J. Castleton. Each
subpoena directs the recipient to appear for a deposition and requests production of
documentation related to various communications and the appointment of a special
prosecutor in connection with the investigation of Dustin Smith. Castleton Decl. ¶ 2, Exs.
A-D.
Mr. Castleton contacted Mr. Hearn and objected to the subpoenas on the grounds
that “most if not all of what they seek is moot in light of the Court’s recent order partially
dismissing the claims against Defendants, including relevant here the liberty-interest and
conspiracy claims against Defendants….” Defs’ Opening Br., p. 2, Dkt. 27-1. Mr.
Castleton also objected to the subpoena served against him on the grounds that his
MEMORANDUM DECISION AND ORDER - 3

deposition would raise attorney-client privilege issues. Mr. Hearn, in response, indicated
that his client, Timothy, would be proceeding with the subpoenas and would not agree to
a stay of discovery.
Unable to informally resolve these issues, Defendants now file a motion to quash
the subpoenas and a motion for protective order staying all discovery pending resolution
of Timothy’s motion to reconsider and Defendants’ recently-filed motion to dismiss the
Second Amended Complaint.
ANALYSIS
1. Motion for Protective Order to Stay Discovery
Federal Rule of Civil Procedure 26(c) governs the granting of a protective order. A
party seeking such an order must show “good cause.” Gray v. First Winthrop Corp., 133
F.R.D. 39, 40 (N.D.Ca. 1990). A party seeking to stay discovery carries an even heavier
burden and must make a “strong showing” for why discovery should be denied. Id.
(citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). “The moving
party must show a particular and specific need for the protective order, as opposed to
making stereotyped or conclusory statements.” Id. (citing Wright & Miller, Federal
Practice and Procedure, § 2035).
In this case, Defendants have not made a “strong showing” justifying a stay of all
discovery; rather, Defendant merely urge that discovery should be stayed pending Court’s
ruling on its motion to dismiss. Defendants have done no more than to argue in
conclusory fashion that its motion to dismiss will succeed. This “[i]dle speculation does
MEMORANDUM DECISION AND ORDER - 4

not satisfy Rule 26(c)'s good cause requirement. Such general arguments could be said to
apply to any reasonably large civil litigation. If this court were to adopt Defendants’
reasoning, it would undercut the Federal Rules’ liberal discovery provisions. Had the
Federal Rules contemplated that a motion to dismiss under Fed.R.Civ.P. 12(b)(6) would
stay discovery, the Rules would contain a provision for that effect. In fact, such a notion
is directly at odds with the need for expeditious resolution of litigation. Gray, 133 F.R.D.
at 40.
Defendants, however, argue that the information Timothy seeks through the thirdparty subpoenas only relates to Timothy’s dismissed liberty-interest claim. Timothy has
subpoenaed Sheriff Semrad, to whom she reported Smith’s alleged misappropriation of
public funds. Timothy alleges that she was terminated, at least in part, “because she was
perceived to have been communicating negative information about Prosecutor Smith to
the Sheriff. Sec. Am. Compl. ¶ 38, Dkt. 25. Given his involvement in the events that
allegedly led to Timothy’s termination, he would appear to be a key witness, and not just
have information relating to the dismissed liberty-interest claim.
Likewise, Mark Heideman, as the special prosecutor assigned to investigate
Smith, and Lt. Kyle Fuller of the Idaho State Police, who also investigated Smith’s
alleged misappropriation of funds, could have information that might bear on the various
other claims Timothy has alleged apart from the liberty-interest claim. For example, they
might have information that might bear on Timothy’s allegations that the Commissioner
defendants conspired with Smith in denying Timothy her constitutional rights under the
MEMORANDUM DECISION AND ORDER - 5

First and Fourteenth Amendments (two claims that currently remain in the case). In
addition, after Lt. Fulmer’s investigation of Smith had concluded, on January 30, 2014,
Lt. Fulmer interviewed Timothy about criminal investigation into Smith. Sec. Am. Compl.
¶ 74, Dkt. 25. Four days later, on February 4, Timothy received a Notice of Pending
Personnel Action, which indicated she may have been involved in acts or omissions that
could subject her to discipline. Id. ¶ 75. Given the proximity between these two events, it
is possible that Lt. Fulmer may have information relating to the Smith’s decision to issue
the Notice. These are just a couple examples of relevant information that the subpoenaed
witnesses may possess.
Finally, the Court also believes that Mr. Castleton could have information relevant
to claims apart from the liberty-interest claim, but the proposed deposition of Mr.
Castleton, as counsel for the defense, raises distinct issues, which the Court will address
below.
2. Castleton Subpoena
The U.S. Supreme Court has held that discovery of facts possessed by an attorney is
proper where the facts are relevant, non-privileged, and essential to preparation of one's
case. Hickman v. Taylor, 329 U.S. 495, 511 (1947). Similarly, the Ninth Circuit has held
that blanket assertions of privilege are extremely disfavored. U.S. v. Martin, 278 F.3d
988, 1000 (9th Cir. 2002). And when a party challenges discovery of information from
counsel based on privilege, the challenging party has the burden of establishing the

MEMORANDUM DECISION AND ORDER - 6

relationship and privileged nature of the communication. U.S. v. Bauer, 132 F.3d 504,
507 (9th Cir. 1997).
But “[t]he strong presumption against a blanket assertion of privilege while normally
appropriate and necessary, must be abandoned where a party seeks to depose trial
counsel.” Melaleuca, Inc. v. Bartholomew, No. 4:12–cv–00216–BLW, 2012 WL
3544738, *2 (D. Idaho August 16, 2012) (citing Shelton v. Am. Motors Corp., 805 F.2d
1323, 1327–28 (8th Cir.1986)). Instead, because Timothy seeks to depose trial counsel,
she must establish that “the information sought (1) cannot be obtained through other
means; (2) is relevant and not covered by privilege or the work-product doctrine; and (3)
is necessary in preparing their case.” Id. (citing Shelton, 805 F.2d at 1327–28).
“It is rare for this standard to be satisfied,” Stewart Title Guar. Co. v. Credit Suisse,
No. 1:11–cv–227–BLW, 2013 WL 4763949, *1 (Sept. 4, 2013), and, at least at this
juncture, this case is no different. Indeed, this issue can be dispensed with under the first
factor. Timothy has made no effort to show that the information she seeks from Mr.
Castleton cannot be obtained through other means. Discovery has not even begun in this
case. It is not only possible, but likely, that the other individuals Timothy intends to
depose hold the information Timothy seeks from Mr. Castleton. The Court therefore finds
that Timothy has failed to establish that any information she seeks from Mr. Castleton
cannot be obtained through some other discovery.

MEMORANDUM DECISION AND ORDER - 7

Acco
ordingly, at this point, the Court will quash a subpoen issued fo Mr. Castl
w
any
na
or
leton
in conne
ection with this case. Perhaps, at some later t
P
s
time, Timot will be able to mee
thy
et
this high standard. That time, however, is not now.
h
T
h
s
ORDER
O
IT IS THER
T
REFORE OR
RDERED th Defenda
hat
ants’ Motio to Quash Subpoena and
on
h
Motion for Protecti Order (D 27) is GRANTED in part and DENIED in part.
f
ive
Dkt.
G
D
d
nts’
Defenda request to stay all discovery is denied, bu Defendan request to quash M
ants
t
i
ut
t
Mr.
Castleton’s subpoen is grante
na
ed.

DAT
TED: July 9, 2015

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D

MEMORA
ANDUM DECIS
SION AND ORDER - 8
R