Shefts v. Petrakis

Filing 145

ORDER Entered by Judge Joe Billy McDade on 5/11/11. 130 Motion to Modify Subpoena Issued to Access2Go re 127 Subpoena filed by John Petrakis, Heidi Huffman, Kevin Morgan is GRANTED in part and DENIED in part. It is GRANTED in all respects discussed in this order. It is DENIED in all other respects. This matter is REFERRED to Magistrate Judge Cudmore for further pre-trial proceedings, including a Rule 16 Scheduling Conference. IT IS SO ORDERED. (SM, ilcd)

E-FILED

Wednesday, 11 May, 2011 03:42:47 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JAMISON J. SHEFTS, an individual

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Plaintiff,
v.
JOHN PETRAKIS, an individual,
KEVIN MORGAN, an individual,
and HEIDI HUFFMAN, an individual,
Defendants.

Case No. 10-cv-1104

ORDER & OPINION
Before the Court is Defendants’ Motion to Modify Subpoena Issued to
Access2Go (Doc. 130). Plaintiff has filed a timely Response in Opposition (Doc.
143). For the following reasons, Defendants’ Motion is GRANTED in part and
DENIED in part. It is GRANTED in all respects discussed in the following
order. It is DENIED in all other respects.
DISCUSSION
On May 6, 2010, Judge Mihm entered an Agreed Order for Preliminary
Injunction in this matter. (Doc. 37). Paragraph 9 of the Preliminary Injunction
provides that “[b]oth parties may immediately issue subpoenas to any person
and/or entity regarding this case.” (Doc. 37 at 4). Pursuant to that provision and
Federal Rule of Civil Procedure 45, on April 6, 2011, Plaintiff issued a Subpoena
to Produce Documents to Access2Go, Inc. (“Access2Go”), a non-party business
entity owned and controlled by Defendants.

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Although it is not a party,

Access2Go is central to this case, as it is the business entity of which Defendants
and Plaintiff were co-workers at the time of the relevant events.1
In the Access2Go Subpoena, Plaintiff requests twenty-two categories of
documents.

(Doc. 127 at 6-7).

Defendants have objected to eleven of these

requests pursuant to Federal Rule 45(c)(3)(A) as requiring the disclosure of
privileged material and subjecting Access2Go to an undue burden. (Doc. 130 at
5-10).

As several of Plaintiff’s requests encompass similar-type documents,

Defendants have made six objections, which the Court will analyze in turn.
I.

Request Numbers One and Two
Request numbers one and two seek the production of any and all

documents sent between Plaintiff and any person other than Defendants,
between January 1, 2006 and the present, which have been intercepted, read,
accessed, or reviewed by any officer or employee of Access2Go.

Defendants

object to these requests, stating that they “are overly broad because they request
the production of confidential documents that should be protected from
[Plaintiff].” (Doc. 130 at 6-7). Specifically, Defendants claim that Plaintiff sent
himself an email to which he attached 175 documents containing Access2Go’s
confidential business information, and that other of his email communications
will contain confidential and proprietary business and customer information.
(Doc. 130 at 7).

In addition to being co-workers, Plaintiff and Defendants Morgan and Petrakis
were also co-owners of Access2Go at the time all events relevant to this lawsuit
took place.
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2

The Court disagrees. This lawsuit arises out of Plaintiff’s allegations that
the Defendants intercepted, accessed, and read, his electronic communications.
Accordingly, these requests go to the core of the case. Moreover, because all
documents contained in these requests are those that were either sent to or sent
by the Plaintiff, Plaintiff already has access to them, and Defendants argument
that confidential business information will be disclosed via discovery is
misplaced.
Still, in order to protect against any fears Defendants may have that such
information will be disclosed, the Court believes there are two options which it
may follow to alleviate such concerns. Because the relevancy of the information
sought by the Subpoena is not the actual content of the communications, but the
fact that they were intercepted or otherwise accessed or read by officers or
employees of Access2Go, Access2Go need not disclose the contents of any such
communications which they believe are confidential in nature.

Instead,

Access2Go may elect to either create a document log indicating the sender,
recipient, date, and subject of each communication, or they may redact the
communications to exclude any information within them that Access2Go deems
to be confidential business information.2
II.

Request Numbers Three, Four, and Five
Request numbers three, four, and five seek the production of all

documents sent amongst the Defendants between January 1, 2006 and the
This is the case for all of the document production requests discussed in this
Order and Opinion, not only Requests One and Two.
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present, regarding Plaintiff. (Doc. 127 at 6). Defendants object to these requests
as overly broad, unduly burdensome, and not relevant to any party’s claim or
defense. (Doc. 130 at 7). The Court agrees that in their present form, these
requests seek information not relevant to the lawsuit, especially in light of the
fact that the Defendants and Plaintiff were co-workers for the past four years.
Accordingly, the requests shall be modified to state:
“Any and all documents sent [amongst Defendants]3 between January 1,
2006 and the present which relate to access, review, and/or interception of
Plaintiff’s communications with third parties, including all emails, text
messages, and any other form of electronic communication.”
With this modification in place, the Court does not believe that the
requests are unduly broad or burdensome, especially in light of the fact that the
lawsuit is about the Defendants interception and review of Plaintiff’s
communications with third parties.
III.

Request Numbers Six, Seven, and Eight

Request numbers six, seven, and eight seek the production of all e-mails
and

text

messages

sent

by

the

Defendants

from

any

computers

or

communication devices owned, possessed, or controlled by Access2Go which
reference or relate to Plaintiff.

(Doc. 127 at 6).

Defendants object to these

requests as overly broad, unduly burdensome, and not relevant to any party’s
claim or defense. (Doc. 130 at 7). In addition, Defendants’ argue that these
The Court has inserted the term “amongst Defendants” in lieu of specifically
referring to each separate Defendant as Plaintiff has done in his subpoena. The
Court does not mean to suggest that the requests should be consolidated in this
manner in the Access2Go Subpoena, it has simply consolidated them in this way
for the efficiency of the Order.
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requests would call for the production of attorney-client communications in the
form of the Defendants’ communications with Access2Go’s corporate counsel.
The Court agrees that in their present form, these requests seek information not
relevant to the lawsuit. Accordingly, the requests shall be modified to state:
“Any and all e-mails and text messages sent by [the Defendants]4, between
January 1, 2006 and present, from any computers and/or “Blackberry”, or similar
communications devices, which are either owned, possessed, or controlled by
Access2Go, Inc., which relate to access, review, and/or interception of Plaintiff’s
communications with third parties.”
With this modification in place, the Court does not believe that the
requests are unduly broad or burdensome, especially in light of the fact that the
lawsuit is about the Defendants interception and review of Plaintiff’s
communications with third parties, and Defendants’ defense that all such review
was performed pursuant to Access2Go policy.

If any of the responsive

documents are claimed to be subject to the attorney-client privilege, Defendants
may withhold any such documents upon compliance with Rule 26(b)(5) of the
Federal Rules of Civil Procedure.
IV.

Request Number Nine
Request number nine seeks the production of “all documents which were

routed to any ‘dummy account’ which stored communications that were sent by
or received by [Plaintiff].” (Doc. 127 at 6). Defendants object to Request Nine for
the same reasons they objected to Requests One and Two, namely because they
allege that it is overly broad and will disclose to Plaintiff confidential business
information. (Doc. 130 at 8-9). The Court does not find the request to be overly
4

See footnote 3.
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broad, as the case is about the duration and extent of Defendant’s interception of
Plaintiff’s emails. One method by which this was accomplished was via the
“dummy account,” thus making the documents intercepted via the “dummy
account” relevant to this case.

Again, Access2Go may redact, or otherwise

furnish a log of, any information within these documents which it deems to be
confidential.

V.

Request Number Fourteen
Request number fourteen seeks the production of any and all documents

relating to the installation of “SpectorSoft” spyware on computers used by
Access2Go employees other than Plaintiff. (Doc. 127 at 7). Defendants object on
the grounds that the request is overly broad and seeks documents which are not
relevant to any party’s claim or defense. (Doc. 130 at 10). This is especially the
case, according to Defendants, because Request Thirteen (to which Defendants
do not object) already seeks documents relating the installation of the spyware
on Plaintiff’s computers, and whether or not they installed spyware on the
computers of other employees is irrelevant to Plaintiff’s claims against them.
(Doc. 130 at 10).
The Court disagrees.

Relevancy is to be “broadly construed at the

discovery stage of litigation, and a request for discovery should be considered
relevant if there is any possibility that the information sought may be relevant

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to the subject matter of the action.” In re Aircrash Disaster Near Roselawn, Ind.,
Oct. 32, 1994, 172 F.R.D. 295, 303 (N.D. Ill. 1997).

Here, Defendants have

alleged, as a justification for their interception of Plaintiff’s communications,
that they only intercepted Plaintiff’s communications to protect the company
from Plaintiff’s destructive acts.

Therefore, a showing that Defendants also

accessed other employee’s communications may be used to impact Defendants’
credibility.

Accordingly, the documents requested by Request Fourteen are

relevant, and will not be modified.
VI.

Request Number Sixteen
Finally, request number sixteen seeks the production of “all documents

accessed, intercepted, read and/or reviewed by any person claiming to be acting
as a ‘security liaison’ of or for Access2Go.” (Doc. 127 at 7). Defendants object to
the request as being overly broad, and not relevant to any party’s claim or
defense. However, under the broad definition of relevancy discussed above, the
information sought is relevant to Defendants’ affirmative defense that
Defendant Petrakis was authorized to access Plaintiff’s communications due to
his position as “security liaison” for Access2Go.
In order to ensure that third party communications other than Plaintiff’s
are not disclosed via this request, the Court will modify it to require only that
those documents sent or received by Plaintiff be produced in full (with redactions
or document logs as necessary to protect confidential business information), and

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that third party documents that were reviewed by the “security liaison” be
provided in list form.
CONCLUSION
For the foregoing reasons, is Defendants’ Motion to Modify Subpoena
Issued to Access2Go (Doc. 130) is GRANTED in part and DENIED in part. It is
GRANTED in all respects discussed in this order. It is DENIED in all other
respects. This matter is REFERRED to Magistrate Judge Cudmore for further
pre-trial proceedings, including a Rule 16 Scheduling Conference.

IT IS SO

ORDERED.

Entered this 11th day of May, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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