Raap v. Brier & Thorn, Inc.
Filing
3
OPINION: The Motion to Quash 1 is GRANTED. The subpoena served on Bank of Springfield by Plaintiff Matthew Raap is QUASHED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 06/07/2017. (SKN, ilcd)
E-FILED
Wednesday, 07 June, 2017 10:53:35 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MATTHEW RAAP,
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Plaintiff,
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v.
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BRIER & THORN, INC., )
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Defendant.
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No. 17-MC-3001
Underlying Case No. 16-cv-1690
pending in the United States
District Court for the Eastern
District of Wisconsin (the
Underlying Action)
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Bank of Springfield’s Motion
to Quash Subpoena Pursuant to Federal Rule of Civil Procedure 45
(d/e 1). Because the subpoena compels compliance at a location
more than 100 miles from where Bank of Springfield is located or
regularly transacts business and is unduly burdensome, the
Motion is GRANTED.
I. BACKGROUND
On or about May 3, 2017, Matthew Raap, the plaintiff in the
above-captioned matter in Wisconsin (the Underlying Litigation),
served a subpoena to produce documents on the Bank of
Springfield. The subpoena was directed to Tom Marantz, Bank of
Springfield’s Chief Executive Officer, in Springfield, Illinois. The
subpoena commanded the production of the following:
All documents reflecting your relationship with Brier &
Thorn including, but not limited to, all emails, texts,
messaging, memos, notes, letters, proposals, invoices,
bills, payment records, purchase orders,
correspondence, summaries, evaluations, assessments,
reviews, accou[n]ting records, and all other
communications or documents reflecting your
involvement with Brier & Thorn and/or the work it
performed for your company.
Mot., Ex. 1 (d/e 1) (the subpoena was issued by the United States
District Court for the Eastern District of Wisconsin). The
subpoena directed Bank of Springfield to produce the documents
on or before May 19, 2017 at 3:00 p.m. to Krystal Williams-Oby at
1402 Pankratz Street, Suite 103, Madison Wisconsin 53704.
The above-captioned matter involves a suit by a former
employee of Brier & Thorn, Inc. (Brier & Thorn), an IT risk
management firm. See Raap v. Brier & Thorn, Inc., United States
District Court, Eastern District of Wisconsin, Case No. 2:16-cv01690-JPS, Compl. (d/e 1) (alleging a Title VII claim and pendent
state law claims for quantum meruit and unjust enrichment).
Plaintiff alleges that Brier & Thorn terminated him because of his
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Christian faith, for sharing his Christian faith with others on his
personal Facebook page, and for openly discussing his faith with
business associates. A motion for a protective order barring nonparty subpoenas filed by Brier & Thorn is pending in the
Underlying Litigation. See id., Mot. (d/e 13) (filed May 17, 2017).
On May 17, 2017, Bank of Springfield filed the Motion to
Quash at issue herein. Plaintiff has not filed a response.
Therefore, the Court presumes Plaintiff has no objection to the
motion. CDIL-LR 7.1(B)(2) (“If no response is timely filed, the
presiding judge will presume there is no opposition to the motion
and may rule without further notice to the parties.”).
II. THE MOTION TO QUASH
The Motion to Quash contains the following allegations,
supported by the affidavit of Lynn P. Bandy, the Senior Vice
President and Chief Operations Officer of Bank of Springfield. See
Motion, Bandy Aff., Ex. 2 (d/e 1).
Bank of Springfield is an Illinois banking institution with its
principal place of business in Springfield, Illinois. Bandy Aff. ¶ 2.
Bank of Springfield does not regularly transact business within
100 miles of Milwaukee, Wisconsin, where the Underlying
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Litigation is pending, or within 100 miles of Madison, Wisconsin,
where compliance is commanded by the subpoena. Id. ¶ 3. Bank
of Springfield’s branch location closest to Wisconsin is in
Springfield, Illinois. Id. ¶ 2.
Bank of Springfield contracted with the defendant in the
Underlying Lawsuit, Brier & Thorn, a San Diego, California, based
company. Id. ¶ 4. Under the contract, Brier & Thorn provided
annual penetration testing of Bank of Springfield’s externallyfacing internet servers and internal network to identify
vulnerabilities in the environment that could be exploited by
threats from the Internet and from inside the network. Id. ¶ 4.
Bank of Springfield contends that the broad nature of the
documents sought by the subpoena includes certain protected
matter, including the confidential results of the testing and other
protected bank information, as well as the correspondence related
to said testing and results. Id. ¶ 5.
Bank of Springfield requests that the Court quash the
subpoena because it requires disclosure of documents more than
100 miles from where Bank of Springfield is located and regularly
transacts business. Bank of Springfield further requests that the
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Court quash the subpoena because the subpoena is unduly
burdensome. Bank of Springfield points out that the dispute
between Plaintiff and Defendant is based on an employment
dispute, such that the results of Bank of Springfield’s testing and
the documents related to such testing are likely not relevant to
Plaintiff’s cause of action.
III. ANALYSIS
A party can subpoena a third party to produce materials
pursuant to Federal Rule of Civil Procedure 45. The subpoena
must issue from the court where the action is pending. Fed. R.
Civ. P. 45(a)(2). Rule 45(c)(2) provides that the place of compliance
for the production of documents must be “at a place within 100
miles of where the person resides, is employed, or regularly
transacts business in person[.]” Fed. R. Civ. P. 45(c)(2).
On timely motion,1 the court in the district where compliance
is required must quash or modify a subpoena under several
Although Rule 45 does not define when a motion is “timely,” courts have held
that the motion must be filed at or before the time of compliance. See
Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 WL 2118799, at *4
(N.D. Ill. May 21, 2014). The subpoena demanded compliance on May 19,
2017 at 3:00 p.m. The Motion was physically file-stamped on May 17, 2017
and docketed May 19, 2017 at 10:26 a.m. See Mot. at 1 (d/e 1). Under either
date, the Motion was timely.
1
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circumstances, including where the subpoena (1) requires a person
to comply beyond the geographical limits specified in Rule 45(c) or
(2) otherwise subjects a person to undue burden. Fed. R. Civ. P.
45(d)(3)(A)(ii),(iv). The party seeking to quash a subpoena bears
the burden of demonstrating that the requirements of Rule 45(d)(3)
are met. Malibu Media, LLC v. John Does 1-6, 291 F.R.D. 191,
196 (N.D. Ill. 2013). Whether to quash a subpoena is within the
court’s discretion. Citizens for Appropriate Rural Rds. v. Foxx, 815
F.3d 1068, 1081 (7th Cir. 2016) (finding the district court did not
abuse its discretion when the court determined that the subpoenas
imposed an undue burden and quashed the subpoenas).
The court with jurisdiction to modify or quash a subpoena is
the court for the district “where compliance is required.” Agincourt
Gaming, LLC v. Zynga, Inc., No. 2:14-cv-0708-RFB-NJK, 2014 WL
4079555, at *3 (D. Nev. Aug. 15, 2014) (a court lacks jurisdiction
to resolve a motion to quash if the court is not the court for the
district “where compliance is required”). The definition of the
phrase “where compliance is required” is unclear. See Ello v.
Brinton, No. 2:14-CV-299-TLS-JEM, 2017 WL 56316, at *5 (N.D.
Ind. Jan. 5, 2017) (“The authority defining the place of compliance
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is mixed.”). Some courts hold that the place where compliance is
required is the location identified on the subpoena. See Semex
Alliance v. Elite Dairy Genomics, LLC, No. 3:14-cv-87, 2014 WL
1576917, at *1 (S.D. Ohio, Apr. 17, 2014) (finding the subpoena
commanded compliance in Chicago, Illinois, and that the U.S.
District Court for the Northern District of Illinois was the court for
the district where compliance was required); U.S. Risk Ins. Grp.,
Inc. v. U.S. Risk Mgmt., LLC, No. 3:11-cv-2843-M-BN, 2014 WL
4055372, at *1 (N.D. Tex. Aug. 15, 2014) (finding that the
subpoena commanded the witness to produce documents in
Dallas, Texas, and, therefore, the motion to compel was properly
filed in the Texas district court). Other courts have held that the
place where compliance is required depends on where the recipient
resides or works. See Agincourt, 2014 WL 4079555, at *4 (“Rule
45 makes clear that the place of compliance is tethered to the
location of the subpoenaed person” but involving a situation where
the individuals lived and were employed in the same district where
the subpoena commanded production); XTO Energy, Inc. v. ATD,
LLC, No. 14-1021 JB/SCY, 2016 WL 1730171, at *20 (D.N.M. Apr.
1, 2016) (noting that “revised rule 45(d)(3) provides that motions to
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quash or enforce a subpoena can be brought in the district where
compliance is required—i.e., the district in which the subpoena’s
recipient resides or works”).
In light of the purposes behind Rule 45, the Court finds that
the better approach is to tie the place of compliance to the location
of the subpoenaed person or entity. The Advisory Committee Notes
for the 2013 amendments suggest that part of the reason for the
amendments was to protect nonparties:
To protect local nonparties, local resolution of disputes
about subpoenas is assured by the limitations of Rule
45(c) and the requirements in Rules 45(d) and (e) that
the motions be made in the court in which compliance is
required under Rule 45(c).
Fed. R. Civ. P. 45, Advisory Committee Notes, 2013 Amendment
(pertaining to subdivision (f), the transfer of a subpoena-related
motion). The purpose of protecting nonparties is defeated if a
party could demand compliance in a location more than 100 miles
from where the nonparty resides, is employed, or regularly
transacts business in person and still require the nonparty to
adjudicate a dispute over that subpoena in a distant forum. And
the phrase, “the court in which compliance is required under Rule
45(c)” contained in the Advisory Committee Notes also supports
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this interpretation. Rule 45(c) requires that the subpoena
command production within 100 miles of where the person
resides, is employed, or regularly transacts business in person.
Therefore, the court in which compliance is required under Rule
45(c) is the court in the district within 100 miles of where the
subpoenaed person resides, is employed, or regularly transacts
business in person.
In this case, the place of compliance as required by Rule 45(c)
is a location within 100 miles of where Bank of Springfield is
located or regularly transacts business. Bank of Springfield
asserts—and Plaintiff has not disputed—that it is located and
regularly transacts business in Springfield, Illinois, and is not
located within and does not regularly transact business within 100
miles of Madison, Wisconsin. The Court notes that Bank of
Springfield also has branches in Jacksonville, Illinois; Chatham,
Illinois; Quincy, Illinois; Swansea, Illinois; Shiloh, Illinois;
Staunton, Illinois; Glen Carbon, Illinois; and St. Louis, Missouri,2
but none of these locations is within 100 miles of Madison,
All of these cites, with the exception of Quincy, Illinois, are within 100 miles
of Springfield, Illinois. Quincy, Illinois, is approximately 111 miles from
Springfield and approximately 319 miles from Madison, Wisconsin.
2
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Wisconsin. See https://www.bankwithbos.com/locations.php (last
visited June 6, 2017); see also Westmore Equities, LLC v. Vill. of
Coulterville, No. 3:15-cv-241-MJR-DGW, 2016 WL 695896, at *2
(S.D. Ill. Feb. 22, 2016) (considering all of the bank’s branches and
determining that the bank regularly transacted business within
100 miles of Springfield, Illinois, and, therefore, the subpoena
demanding production in Springfield was valid).
Bank of Springfield has shown that it is located in and
regularly transacts business in Springfield, Illinois. Therefore, this
Court is the court for the district in which compliance is required
under Rule 45(c)(2)(A). Consequently, this Court has jurisdiction
to rule on the Motion to Quash. Because the subpoena compels
compliance in a location that is not within 100 miles of where
Bank of Springfield is located or transacts business, the subpoena
must be quashed or modified.
The Court finds that quashing, as opposed to modifying, the
subpoena is appropriate here because the subpoena also imposes
an undue burden. When determining whether a subpoena
subjects a person to an undue burden, the Court balances the
burden of compliance against the benefits of the requested
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production. See Elliott v. Superior Pool Prods., LLC, No. 15-cv1126, 2015 WL 5853189, at *2 (C.D. Ill. Oct. 7, 2015). Relevant
factors include whether the recipient of the subpoena is a
nonparty, the relevance of the discovery sought, the subpoenaing
party’s need for the discovery, the breadth of the request, and the
burden on the subpoenaed party. See Uppal v. Rosalind Franklin
Univ. of Medicine & Science, 124 F. Supp. 3d 811, 813 (N.D. Ill.
2015); Thayer v. Chiczewski, 257 F.R.D. 466, 469 (N.D. Ill. 2009).
Bank of Springfield has the burden of demonstrating undue
burden. Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 WL
870618, at *5 (N.D. Ill. Mar. 7, 2013).
Bank of Springfield has met its burden here. Bank of
Springfield is a non-party. The subpoena requests every document
relating to Bank of Springfield’s relationship with Brier & Thorn
without any limitation on time or scope and without any reference
to the subject matter of Plaintiff’s lawsuit. In addition, as Bank of
Springfield indicates, the subpoena request would require the
production of purportedly confidential information relating to Brier
& Thorn’s testing of Bank of Springfield’s servers and network,
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including the results of such testing and the identification of any
security concerns or threats found.
The dispute between Plaintiff and Brier & Thorn is based on
an employment dispute. Plaintiff asserts that Brier & Thorn
terminated Plaintiff because of his Christian beliefs. As Plaintiff
has not responded to the Motion, the Court has no information on
which to find that the documents Plaintiff seeks from Bank of
Springfield have any relevance to Plaintiff’s lawsuit. The current
subpoena requests sensitive and possibly confidential information
without any limitation on time or scope, making such request
overly broad and burdensome to Bank of Springfield. The Court
must quash or modify a subpoena that subjects a person to undue
burden. See Fed. R. Civ. P. 45(d)(3)(A)(iv) (providing that the court
where compliance is required must quash or modify a subpoena
that subjects a person to undue burden). The Court finds
quashing the subpoena appropriate here, particularly in light of
the fact that Plaintiff failed to respond to the Motion and is deemed
to have no opposition to the Motion.
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IV. CONCLUSION
For the reasons stated, the Motion to Quash (d/e 1) is
GRANTED. The subpoena served on Bank of Springfield by Plaintiff
Matthew Raap is QUASHED.
ENTER: June 7, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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