Schloss v. Orrill et al

Filing 107

ORDER entered by U.S. Magistrate Judge Tom Schanzle-Haskins. The Court has reviewed all pending motions. Motion to Quash Plaintiff's November 6, 2012 Subpoena 86 DENIED; Motion to Withdraw Consent to the Exercise of Jurisdiction by a United S tates Magistrate Judge 87 DENIED as moot; Defendant's Motion for Extension of time to Comply with the Court's September 13, 2013 Order 89 ALLOWED; Defendant's Second Motion for Extension of Time to Comply with the Court's Sept ember 13, 2013 Order 91 ALLOWED; Combined Motion to Reset the Dispositive Motion Deadline and for Leave to Conduct a Deposition of Plaintiff Beyond the Discovery Deadline 94 ALLOWED; Motion to Compel Compliance of Court's September 13, 2013 Order 95 DENIED; Motion for Relief of In Camera Review 96 ALLOWED; Motion for Leave to Supplement Discovery 97 DENIED; Defendants' Combined Motion for Leave to File Documents Under Seal for an In Camera Review and a Protective Order 100 ALLOWED; Motion to Take Judicial Notice 102 DENIED; and Defendants' Motion to Strike Document 102 104 DENIED as moot. DEADLINES RESET AS FOLLOWS: Discovery deadline extended to 9/27/2014; Dispositive Motions deadline extended to 10/27/2014. SEE WRITTEN ORDER. (LB, ilcd)

E-FILED

Tuesday, 29 July, 2014 09:54:34 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JEREMY L. SCHLOSS,

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) No.: 12-3061-SEM-TSH
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Plaintiff,
v.

SHON ORRILL, et al.,

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Defendants.

ORDER
TOM SCHANZLE-HASKINS, U.S. Magistrate Judge:
This cause is before the Court for consideration of the pending motions that the Court
will address seriatim.
QUASH SUBPOENA
The Illinois Department of Human Services and Lynne Shelton (“the Movants”) have
filed a motion to quash a subpoena served upon them by Plaintiff pursuant to Federal Rule of
Civil Procedure 45. In its September 13, 2013 Order, the Court ordered Movants to either
comply with Plaintiff’s subpoena or file a motion to quash.
In the instant motion to quash, the Movants argue that the Court should relieve them from
their obligation to comply with Plaintiff’s subpoena because Plaintiff has failed to accompany
his subpoena with the $180.43 requested fee for complying with the subpoena. The Movants
argue that the Court should require Plaintiff to pay this fee because: (1) as non-parties, they
should not be required to fund Plaintiff’s litigation; (2) retrieving and redacting the documents

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would place an undue burden upon them; and (3) allowing the subpoena to stand without the
payment of the requested fee would establish a bad precedent for other litigation.
Federal Rule of Civil procedure 45(c)(3) requires a court to quash a subpoena where “(1)
it fails to allow a reasonable time for compliance, (2) requires a non-party to travel more than
100 miles (with some exceptions), (3) requires disclosure of privileged or protected information,
or (4) subjects a person to undue burden.” Ameritox Ltd. v. Millennium Labs., Inc., 2012 WL
6568226, * 2 (N.D. Ill. Dec. 14, 2012). “The party seeking to quash a subpoena bears the burden
of establishing the subpoena falls within the Rule 45 criteria.” Malibu Media, LLC v. Doe, 2013
WL 5177076, * 1 (S.D. Ind. Sept. 12, 2013). Whether to grant a motion to quash lies within the
sound discretion of the district court.” United States v. Ashman, 979 F.2d 469, 495 7th Cir. 1992).
“Courts are particularly sensitive to limiting costs imposed on third parties and may require a
party serving a subpoena on a third party to pay the reasonable costs of responding to the
subpoena.” JZ Buckingham Invest., LLC v. United States, 78 Fed. Cl. 15, 26 (Ct. Cl. 2007);
Mycogen Plant Science, Inc. v. Monsanto Co., 164 F.R.D. 623, 628 n. 10 (E.D. Pa.
1996)(quoting the Advisory Committee Notes to the 1991 Amendments: “A non-party required
to produce documents or materials is protected against significant expense resulting from
involuntary assistance to the court.”).
In the instant case, the first two considerations are inapposite to the Court’s inquiry.
Likewise, the Court will not require the disclosure of any privileged or protected information but
will allow redaction by the Movants.

Therefore, the third consideration does not bar the

Movants’ compliance with the subpoena.
The salient inquiry is whether compliance with the subpoena will subject the Movants to
undue burden. The Court finds that it will not. In the scheme of federal litigation today, $180.00

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is not an exorbitant amount to spend on responding to a subpoena. Although third parties are
entitled to special protections from the Court, the Movants have not detailed any special
circumstances that would militate against enforcing the subpoena. The Movants testify that it
will take time to compile the responsive documents and make redactions as necessary, but they
do not set forth any circumstances that would constitute an undue burden. Indeed, complying
with discovery is always a burden; the Court simply cannot find that it would be an undue
burden here.
Finally, the Court will not require Plaintiff to pay the $180.00 before receiving the
subpoenaed documents. As one district court has noted, “[a] nonparty responding to a subpoena
is typically required to pay its own costs of production.” Maximum Human Performance, LLC, v.
Sigma-Tau Healthscience, LLC, 2013 WL 4537790, * 4 (D.N.J. Aug. 27, 2013)(internal
quotation omitted). Although the Court appreciates the Movants’ concern about litigation costshifting strategies to the State if the Court allows the enforcement of subpoenas without the
payment of copying costs, each subpoena and discovery request must be evaluated on its own
merits. The Court has previously found that the subpoena is relevant for purposes of Rule 26 and
Rule 45. Discovery requests in future cases may not be, and the Court may require those
litigants to pay a fee associated with responding to a subpoena. Here, however, the Court finds
no undue burden on the Movants and will not require the payment of the $180.00 associated with
copying the requested documents in order for Plaintiff to obtain the subpoenaed documents.
Accordingly, the Movants’ motion is denied.
WITHDRAW CONSENT TO MAGISTRATE JUDGE
Next, Plaintiff moves to withdraw his consent to have this case heard by a United States
Magistrate Judge rather than by a United States District Judge. Plaintiff’s motion is moot.

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Since filing his motion, the United States Magistrate Judge to whom this case was
assigned retired. Upon his retirement, the case was assigned back to United States District Judge
Sue E. Myerscough. Accordingly, in order for the undersigned to hear this case, the Parties
would need, again, to execute the required consent forms. Because the Parties have not done so
and until they do so, this case will be heard by United States District Judge Myerscough for a
determination of any dispositive motions and for trial, if necessary. Therefore, Plaintiff’s motion
is moot.
Nevertheless, this case has been referred to the undersigned for the resolution of nondispositive motions and issues. 28 U.S.C. § 636; Fed. R. Civ. Pro. 72.

Accordingly, the

undersigned possesses the authority to issue this Order and to render these rulings without the
Parties’ consent. As for a ruling on any dispositive motion and for conducting a trial, those tasks
will be performed by District Judge Myerscough unless the Parties, again, consent to having the
undersigned preside over this case.
COMPLIANCE WITH THE COURT’S SEPTEMBER 2013 ORDER
The Parties have filed several motions regarding Defendants’ compliance with the
Court’s September 2013 Order that required Defendants to disclose numerous documents and
statements to Plaintiff. As for Defendants’ two motions to extend the time to comply with the
Court’s Order, Defendants’ motions are granted without objection from Plaintiff.
Likewise, Defendants’ motion to reset the dispositive motion deadline and for leave to
depose Plaintiff are granted without objection from Plaintiff. Accordingly, Defendants should
depose Plaintiff within sixty (60) days from the date of this Order, and the Parties should file
their dispositive motions, if any, within (90) days from the date of this Order.

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As for Plaintiff’s motion for leave to supplement discovery, that motion is denied. In that
motion, Plaintiff attempts to place certain documents into the Court’s record. In other words,
Plaintiff’s motion is not one asking Defendants to supplement their discovery production, nor is
it one seeking more discovery responses. Indeed, Plaintiff represents that he has obtained the
documents at issue on his own. Because Plaintiff is in possession of the documents, there is no
need to supplement discovery. To the extent that Plaintiff simply wants these newly discovered
documents to be a part of the record, a motion to supplement discovery is not a proper procedural
mechanism to accomplish that task. Accordingly, his motion is denied.
The Parties have also filed cross-motions asking for an in-camera review of certain
documents. Plaintiff asks the Court to compel Defendants to produce un-redacted copies of the
documents after the Court conducts its in camera review; Defendants ask the Court to enter a
protective order precluding them from producing un-redacted copies. Defendants have filed the
disputed documents under seal with the Court.
The Court will grant the Parties’ motion for an in camera review.

The Court has

reviewed the documents filed with the Court as docket entry 101. Based upon its review, the
Court finds that redacted copies of the documents are sufficient to provide to Plaintiff.
Defendants obtained redacted copies of certain requested documents from the Illinois
Department of Human Services, and Defendants are not required to produce documents in a form
other than as they received them from DHS.
Moreover, the Court is persuaded by Defendants’ security concerns that redaction is
necessary. Accordingly, Defendants’ motion for leave to file documents under seal is granted,
Plaintiff’s motion to compel is denied, and Defendants’ motion for a protective order allowing
them to produce only redacted copies of the documents at issue is granted.

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JUDICIAL NOTICE
Finally, Plaintiff asks the Court to take judicial notice of certain retaliatory acts taken
against him since he filed this lawsuit. Plaintiff details actions taken against him by certain
employees at Rushville, asks the Court to take judicial notice of the facts as he alleges them to
be, and asks the Court for unspecified relief.
Federal Rule of Evidence 201(b) authorizes district courts to take judicial notice of a
“fact that is not subject to reasonable dispute because it: (1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Id. Plaintiff’s allegations of retaliation fail to
satisfy either prong necessary for the Court to take judicial notice of the alleged retaliation. C.f.
LaSalle Nat’l Bank v. First Connecticut Holding Group, LLC, 287 F.3d 279, 290 (3d 2002)
(“There is absolutely no way that the contents of Rosen’s disputed conversations with the judge’s
law clerk even remotely satisfies the requirements for judicial notice in Rule 201(b).”).
Accordingly, Plaintiff’s motion is denied.
IT IS, THEREFORE, ORDERED:
1.

The Illinois Department of Human Services and Lynne Shelton’s motion to quash

subpoena [86] is DENIED, and the Movants are ORDERED to produce the subpoenaed
documents to Plaintiff, with redactions if necessary, within thirty (30) days of the date of this
Order.
2.

Plaintiff’s motion to withdraw his consent to the United States Magistrate Judge

[87] is DENIED as moot, and this case will be tried, if necessary, by United States District Judge
Sue E. Myerscough unless and until the Parties consent again to having the undersigned preside
over this case.

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3.

Defendants’ motions to extend time to comply with the Court’s September 2013

Order [89 & 91] are GRANTED.
4.

Defendants’ motion to reset dispositive motion deadline and for leave to depose

Plaintiff [94] is GRANTED. Accordingly, Defendants must depose Plaintiff within sixty (60)
days of the date of this Order, and the Parties must file their dispositive motions, if any, within
ninety (90) days of the date of this Order.
5.

Plaintiff’s motion for in camera review [96] and Defendants’ motion for leave to

file under seal and for in camera review [100] are GRANTED. The Court will allow the
documents that Defendants filed under seal (i.e., docket entry 101) to remain under seal, and the
Court has conducted an in camera review of those documents. After conducting this review, the
Court finds that a protective order allowing Defendants to produce the documents at issue in a
redacted form is necessary, and it denies Plaintiff’s motion to compel [95] Defendants’ to
produce the documents in an un-redacted form.
6.

Plaintiff’s motion for leave to supplement discovery [97] is DENIED.

7.

Plaintiff’s motion to take judicial notice [102] is DENIED.

Therefore,

Defendants’ Motion to Strike Document 102 [104] is DENIED as moot.

Entered this 29th day of July, 2014.

_____ /s Tom Schanzle-Haskins_______________
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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