Lavender v. Driveline Retail Merchandising Inc

Filing 81

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins on 10/14/2020. Plaintiff Lynn McGlenn's Objection to Defendant's Notice of Issuance of Subpoena in a Civil Case 79 is DENIED for lack of standing. See written order. (LB, ilcd)

2:18-cv-02097-SEM-TSH # 81

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E-FILED

Wednesday, 14 October, 2020 04:35:49 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS, URBANA DIVISION
LYNN McGLENN,
Plaintiff,
v.
DRIVELINE RETAIL
MERCHANDISING, INC.,
Defendant.

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Case No. 18-cv-2097

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Lynn McGlenn’s
Objection to Defendant’s Notice of Issuance of Subpoena in a Civil Case
(d/e 79) (Objection). For the reasons set forth below, the Objection is
DENIED for lack of standing.
BACKGROUND
McGlenn alleges claims against Defendant Driveline Retail
Merchandising, Inc. (Driveline), arising from an incident in which a
successful phishing email resulted in the disclosure of personally identifying
information of Driveline’s employees, including McGlenn. See Amended
Complaint (d/e 44), ¶¶ 14.

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McGlenn disclosed Kevin Mitnick as her expert witness. Mitnick is
the Chief Hacking Officer of a company called KnowBe4. KnowBe4
provides security awareness training services to companies to train
employees to identify and foil hacking efforts such as phishing emails.
Driveline issued a subpoena (Subpoena) to KnowBe4 directing it to
produce the following documents:
Produce all Documents or records that show studies,
assessments, training impact or other measuring data that
reflect on the effectiveness or success or failure rate of the
Kevin Mitnick Security Awareness Training advertised at:
https://www.knowbe4.com/products/kevin-mitnick-securityawareness-training/.
By way of example, this subpoena seeks all the underlying data
collected to create the chart published at:
https://www.knowbe4.com/visible-proof-the-knowbe4-systemworks/
and the underlying data collected to create your Phishing by
Industry Benchmarking Report advertised at:
https://info.knowbe4.com/phishing-by-industry-benchmarkingreport
***
For purposes of this subpoena, the word "Documents" includes,
but is not limited to, any kind of written, recorded or graphic
matter, whether produced, reproduced or stored on paper,
cards, tapes, film, electronic facsimile, computer storage
device, or any other media, of any kind or description, whether
sent or received or neither, including, without limitation:
originals, copies (with and without notes or changes therein)
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and drafts including, without limitation: papers, books, letters,
photographs, objects, tangible things, correspondence,
correspondence between defendants, telegrams, cables, telex
messages, mailgrams, memoranda (interoffice and otherwise),
notes, notations, work papers, policy statements, transcripts,
minutes, reports and recordings of telephone or other
conversations, or of interviews, conferences, or other meetings,
affidavits, statements, summaries, opinions, reports, studies,
analyses, data, evaluations, contracts, agreements, journals,
statistical records, desk calendars, appointment books, diaries,
lists, tabulations, summaries, sound recordings, computer
printouts, data processing input and output, microfilms, all other
records kept by electronic, photographic or mechanical means,
and things similar to the foregoing however denominated.
Notice of Issuance of Subpoena in a Civil Case [77], Exhibit 1, Subpoena
Appendix A. McGlenn objects to the Subpoena on the following grounds:
As grounds for her objection, Plaintiff states that Defendant’s
request for the data underlying the marketing and promotional
materials on KnowBe4’s website is overly broad, unduly
burdensome, harassing, and not reasonably calculated to lead
to discovery of admissible evidence.
Objection, at 2.
ANALYSIS
McGlenn lacks standing to raise her objections to the Subpoena. To
have standing, McGlenn must have a personal right or privilege that would
be affected by the disclosure of the material subjected to the Subpoena.
See Parker v. Four Seasons Hotels, Ltd., 291 F.R.D. 181, 187 (N.D. Ill.
2013); Coleman v. City of Peoria, 2016 WL 3974005, at *3 (C.D. Ill. July 22,
2016). McGlenn must show that the material sought is protected by
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attorney work product or attorney-client privilege, would interfere with her
business relationships, or was personal information about McGlenn. See
Parker, 291 F.R.D. at 187; see also Terry v. Woller, 2010 WL 1158011, at
*1 C.D. Ill. May 6, 2010). McGlenn asserts none of these grounds as a
basis for her Objection. She therefore lacks standing.
The subpoenaed party KnowBe4 must raise the objections that
McGlenn seeks to raise, that the Subpoena is overly broad, unduly
burdensome, harassing, and not reasonably calculated to lead to discovery
of admissible evidence. Id. In addition, KnowBe4 must raise such
objections by motion in the District where compliance is required. Fed. R.
Civ. P. 45(d)(3)(a).
Driveline states that KnowBe4 has done so and put the Subpoena at
issue in the Middle District of Florida District Court in Florida where
compliance is required. Defendant’s Response to Plaintiffs’ Objection to
Defendant’s Notice of Issuance of Subpoena in a Civil Case (d/e 80), at 4.
That Court currently has jurisdiction to resolve issues regarding the
Subpoena. See Fed. R. Civ. P. 45(d)(3), and 45(g). This Court, therefore,
will not comment on those matters.

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THEREFORE, IT IS ORDERED that Plaintiff Lynn McGlenn’s
Objection to Defendant’s Notice of Issuance of Subpoena in a Civil Case
(d/e 79) is DENIED for lack of standing.
ENTER: October 14, 2020
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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