Piercy v. Wilhelmi et al

Filing 6

OPINION AND ORDER Entered by Judge Joe Billy McDade on 5/27/16: For the foregoing reasons, the Motion to Quash Subpoenas 1 is DENIED. The Supplement to Motion to Quash 5 is GRANTED only to the extent that those latter subpoenas issued to entities residing in the Central District of Illinois are within the purview of this Opinion and Order. The Clerk may terminate this miscellaneous action without a judgment. SO ORDERED. (TK, ilcd)

E-FILED

Friday, 27 May, 2016 02:49:26 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
AARON PIERCY, as Administrator of the )
Estates of Dale Piercy,
)
)
Plaintiff,
)
)
v.
)
)
KELLY WILHELMI, individually and in )
his capacity as Sheriff of Whiteside
)
County, et. al.,
)
)
Defendants.
)

Case No. 16-mc-1008

OPINION & ORDER
Before the Court is the Motion to Quash Subpoenas (Doc. 1) brought by
several defendants in a civil rights action now pending in the Northern District of
Illinois and a “Supplement To Motion To Quash Subpoenas” (Doc. 5) that purports
to be a motion. For the reasons stated below the motion to quash is denied and the
motion to supplement is granted in part and denied in part.
FACTUAL BACKGROUND
Dale Piercy (“Mr. Piercy”) died while in the custody of the Illinois
Department of Corrections (“IDOC”). Before being transferred to IDOC, he was
detained in Whiteside County Jail. Allegedly, Mr. Piercy demonstrated he was in
need of medical attention throughout his detention in Whiteside County Jail but
was denied it. This denial of medical attention contributed to Mr. Piercy’s later
death. His son, as administrator of his estate, brought an action against everyone
who had custody and control of Mr. Piercy or who took part in the determination to

deny Mr. Piercy medical attention during the relevant times. Among those
defendants are Julie Warkins, Dan Williams, and Advanced Correctional
Healthcare, Inc. (“ACH”), the movants in this action. Plaintiff contends ACH has a
pattern or practice of denying detainees/prisoners access to necessary medical care.
The underlying civil action, No. 14-cv-7398, has been ongoing since 2014 in
the Northern District of Illinois. Pursuant to that action, Plaintiff sought and
received several subpoenas, of which the recipient entities reside in the Central
District of Illinois. These subpoenas seek information that purportedly relates to
Plaintiff’s pattern or practice claim against ACH. The three Defendants mentioned
above, who are not the recipients of any of the subpoenas in question, now move to
quash the subpoenas on the grounds that they are beyond the reasonable scope of
discovery and disproportionate to the needs of the case. Alternatively, they request
this Court to transfer the action to the Northern District of Illinois for the presiding
court in the underlying matter to decide the motion. Defendants do not argue that
there is any technical deficiency in the subpoenas. Plaintiff opposes the motion to
quash as well as the alternative request to transfer.
LEGAL STANDARDS
Rule 45 of the Federal Rules of Civil Procedure sets out the general
requirements for issuing and challenging subpoenas. The rule provides that the
court for the district where compliance is required (this Court) must quash or
modify a subpoena that fails to allow a reasonable time to comply; requires a person
to comply beyond the certain geographical limits; requires disclosure of privileged or
other protected matter, if no exception or waiver applies; or subjects a person to

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undue burden. Fed. R. Civ. Pro. 45(d)(3)(A). Such a court may quash or modify a
subpoena if the subpoena requests trade secrets or other confidential research,
development, or commercial information; or unretained expert’s opinion or
information that does not describe specific occurrences in dispute and results from
the expert’s study that was not requested by a party.
When the court where compliance is required did not issue the subpoena, it
may transfer a motion under this rule to the issuing court if the person subject to
the subpoena consents or if the court finds exceptional circumstances. The Advisory
Committee notes to Rule 45 explain that when a court is determining whether
exceptional circumstances are at issue, the court’s
prime concern should be avoiding burdens on local nonparties subject
to subpoenas, and it should not be assumed that the issuing court is in
a superior position to resolve subpoena-related motions. . . . [T]ransfer
may be warranted in order to avoid disrupting the issuing court’s
management of the underlying litigation, as when the court has
already ruled on issues presented by the motion or the same issues are
likely to rise in discovery in many districts. Transfer is appropriate
only if such interests outweigh the interests of the nonparty served
with the subpoena in obtaining local resolution of the motion.
Elliot v. Mission Trust Servs., LLC, No. 14 C 9625, 2015 WL 1567901, at *2 (N.D.
Ill. Apr. 7, 2015).
DISCUSSION
I.

There is No Need to Transfer This Motion.
The Advisory Committee notes make clear that a court should consider the

burden on the recipient of the subpoena and whether the court’s rulings on the
motion to quash would disrupt the underlying proceeding when determining
whether to transfer a motion to quash. The Court does not see any reason to

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transfer this motion based on those two considerations. First, the Court is unaware
of any potential burden placed upon the local nonparty subjects of the subpoenas
because 1) they are not challenging these subpoenas themselves and 2) the
Defendants have not provided any material from which the Court can glean
whether these nonparties have expressed that they are burdened by the subpoenas
in question. Second, this Court’s ruling on the motion to quash will not disrupt the
underlying proceeding because this Court will not reach the merits of the motion.
As will be discussed in more detail below, the Court finds that the Defendants lack
standing to oppose the challenged subpoenas.
II.

Defendants Lack Standing to Challenge the Subpoenas.
Defendants do not address standing at all in their original motion to quash.

As recognized by other courts in this judicial district, generally, a litigant lacks
standing to move to quash a subpoena directed at a third party unless the litigant
has a claim of privilege attached to the information sought or unless the production
of the information sought implicates a litigant’s privacy interests. Jump v.
Montgomery Cty., No. 13-CV-3084, 2015 WL 4999673, at *1 (C.D. Ill. Aug. 21, 2015),
appeal denied, No. 13-3084, 2015 WL 6558851 (C.D. Ill. Oct. 29, 2015). Defendants
do not claim in their motion to quash that any purported claim of their privilege or
privacy interests are at issue.
The subpoenas request the following documents:
1. All marketing, advertising, or promotional materials, including but
not limited to pamphlets, brochures, and power point presentations,
provided or sent to the Knox County Sheriff’s Office, Knox County Jail,
or any employee of the Knox County Sheriff’s Office by Advanced
Correctional Healthcare (“ACH”).

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2. A copy of any contract between the County, Jail, or Sheriff, and
ACR.
3. Documents sufficient to show the names and any offers, bids, or
marketing materials provided by competing medical care providers at
or around the time the County elected to contract with ACH.
4. A copy of the minutes of any County Board Meeting at which any
contract with ACH was discussed.
The Court cannot conclude from the quoted language above that the Plaintiff is
seeking information infringing upon Defendants’ privacy or privilege concerns.
Moreover, as one should be able to glean from the heading of Rule 45(d)—
“Protecting a Person Subject to a Subpoena; Enforcement.”—the underlying theme
of the entire provision is that one can challenge a subpoena if one is concerned with
protecting the person subject to the subpoena from some harm or undue burden.
Defendants do not discuss any harm or undue burden thrust upon the persons
subject to the subpoenas in question.
Instead, Defendants generally assert that they are being harmed by being
forced to litigate extraneous issues brought on by these subpoenas. They specifically
complain about the cost of expansive discovery but do not explain how their costs
are affected by Plaintiff gathering documents from non-parties. If the discovery
sought by the subpoenas was truly irrelevant and beyond the scope of the litigation,
then the Defendants would not likely care what such discovery revealed. Again,
they are not the persons subject to the subpoenas, so they are not the parties
burdened with the production of documents or otherwise responding to the
subpoenas. In short, the Court fails to see how they are being harmed in any
concrete fashion by these non-party subpoenas.

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Therefore, the Court finds the Defendants have not demonstrated how their
interests—other than perhaps their litigation strategy—are sufficiently impacted by
the non-party subpoenas to find they have standing to challenge the subpoenas
under Rule 45; especially in light of the fact that the non-party recipients of the
subpoenas have expressed no qualms to the Court in responding to the subpoenas.
III.

Defendants’ “Supplement to Motion to Quash” is not well taken.
Defendants’ Supplement to Motion to Quash is much more like a reply brief

prohibited by CDIL LR 7.1(B)(3) than a mere supplement. Defendants have not
requested leave of court to file their Supplement. On these grounds alone, the Court
would be well within its discretion to strike the Supplement outright. However, the
Court will consider the arguments raised within the Supplement.
First, Defendants claim the general rule—that a litigant lacks standing to
move to quash a subpoena directed at a non-party unless the litigant has a claim of
privilege attached to the information sought or unless the production of the
information sought implicates a litigant’s privacy interests—is too broad to possibly
hold true. Defendants provide no authority for this proposition, let alone case law in
which courts have cast doubt upon the legitimacy of general rule or recited a
narrower rule. Therefore, this argument does not sway the Court.
Second, Defendants claim that “courts always have inherent authority to
limit the scope of discovery as well as authority for protective orders granted by
Fed.R.Civ.P. 26 and 37.” That is correct, but that statement was made by a court
exercising its authority over a case it was presiding over, not an ancillary matter
such as this. This Court has no interest in delving into whether Plaintiff is abusing

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the discovery process in its Northern District of Illinois case, except to the extent
provided for by Rule 45 itself, which is to ensure that local non-party recipients of
the subpoenas are not being harmed. On that point, Defendants have still not
presented anything.
Lastly, Defendants complain that Plaintiff has acted in a manner to try to
circumvent their ability to meaningfully contest the subpoenas. They state “Plaintiff
has also been contacting some of the jails and asking the jails to respond to the
subpoena prior to the response date in a crass attempt to moot the Motion to Quash
Subpoenas and avoid the impact of a ruling from the Court.” They characterize
these actions as misconduct and analogize them to the failure to give notice of a
subpoena. The Court disagrees with the Defendants’ contentions.
In the Seventh Circuit case cited by Defendants, Judson Atkinson Candies,
Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir. 2008), the court
held that plaintiff’s failure to comply with subparagraph (a)(4) (as now amended) of
Rule 45, serving prior notice before commanded the production of documents, was
sanctionable. The court found that plaintiff did not provide defense counsel with
copies of the subpoenas nor with copies of the documents it received via the
subpoenas. 529 F.3d at 387. That is simply not the case here. Serving opposing
counsel prior notice before commanding the production of documents is a clear
requirement of Rule 45. Defendants do not allege that Plaintiff has violated any of
Rule 45’s requirements. Instead they contend that Plaintiff has violated the spirit of
the notice requirement.

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Plaintiff’s counsel requested certain subpoena recipients if they would be
interested in emailing or faxing responsive documents by June 13, 2016 instead of
physically turning them over in person as originally contemplated in the subpoenas.
Defendants take issue with these side letters. Yet nothing within the requirements
of Rule 45 demonstrates this behavior is a circumvention of the rules regarding
notice or otherwise constitutes sanctionable behavior. Moreover, clearly Defendants
have not been left without recourse to oppose the subpoenas as they are currently
doing exactly that in this action.
CONCLUSION
For the foregoing reasons, the Motion to Quash Subpoenas (Doc. 1) is
DENIED. The Supplement to Motion to Quash (Doc. 5) is GRANTED only to the
extent that those latter subpoenas issued to entities residing in the Central District
of Illinois are within the purview of this Opinion and Order. The Clerk may
terminate this miscellaneous action without a judgment.
SO ORDERED.
Entered this 27th day of May, 2016.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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