Elliott et al v. Mission Trust Services, LLC et al

Filing 49

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 4/7/2015:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SCOTT A. ELLIOT, et al.,
Plaintiff,
v.
MISSION TRUST SERVICES, LLC,
CHRISTOPHER C. FINLAY, THE
CORPORATION TRUST COMPANY,
and MICHAEL T. HOSMER,
Defendants.

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No. 14 C 9625
Judge Norgle
Magistrate Judge Cole

MEMORANDUM OPINION AND ORDER
A.
The curious case of the North Carolina apartment complex continues, far from its home in
the Tarheel State, here in the Northern District of Illinois. The current dispute arises out of
proceedings in the Western District of Texas, where Hugh Caraway resides. Mr. Caraway’s firm, IRI,
was engaged by the Mission Trust plaintiffs to perform a financial analysis of the apartment
complex. Mr. Caraway is IRI’s CEO. He didn’t perform the work, but he did sign off on it. [149625, Dkt. #1-1, at 20-21]. The Mission Trust defendants issued a subpoena from this court to Mr.
Caraway, requiring that he produce documents and appear for a deposition in San Antonio, Texas.
Mr. Caraway was served on October 7, 2014, the day before he was to leave for a family
vacation in Puerta Vallarta, Mexico.1 The subpoena demanded he produce documents on October

1

The Mission Trust Defendants claim to have served Mr. Caraway by certified mail on September 19, 2014.
But it was sent to the incorrect address for Mr. Caraway’s business [14-9265, Dkt. #13-4, at 2];
http://internacionalrealty.com/, and was signed for by someone other than him on October 6, 2014. [14-9265,
Dkt. # 13-4]. “[P]roper service requires . . . personal delivery of the subpoena.” In re Dennis, 330 F.3d 696,
(continued...)

17 and sit for a deposition on the 27th. Prior to that, Mr. Caraway hadn’t heard anything from the
Mission Trust defendants, and he hadn’t heard anything about the lawsuit. He obviously didn’t have
sufficient time to deal with the subpoena before catching an early flight with his family the next
morning. [14-9625, Dkt. #1-1, at 21-22]. He returned on October 14th, and the next day emailed
counsel for the Mission Trust defendants, informing him that he had a conflict for the deposition date
scheduled and also needed some time to engage counsel. He asked if things could be rescheduled
for early November. [14-9625, Dkt. # 1-1, at 69-70].
Apparently in no hurry, counsel for Mission Trust defendants did not respond for six days.
Finally on October 21st , he sent an email, steadfastly refusing to budge. [14-9625, Dkt. # 1-1, at 69].
Here is his response in its entirety: “We are in receipt of your e-mail below. We understand that your
e-mail related to the subpoena for production of documents. Please confirm that we will be
proceeding with your testimonial deposition on Monday, October 27, in San Antonio pursuant to the
subpoena served on you.” Id. An hour later, Mr. Caraway responded, saying: “ I meant both dates.
I should have counsel engaged today or tomorrow and they will be getting in contact with you.” Id.
Three days later, on October 24, 2014, Mr. Caraway’s newly retained counsel went to federal
court in San Antonio seeking an order quashing the subpoenas for: (1) failure to provide a witness
fee under 28 USC §1821; (2) failure to allow a reasonable time to comply under Fed.R.Civ.P.
45(d)(3); and (3) undue burden. The judge in the Western District of Texas referred the matter to
a magistrate judge. The Mission Trust defendants – who had been in such a hurry they could not put
Mr. Caraway’s compliance off a week or ten days – were no longer so pressed for time, for in

1

(...continued)
704 (5th Cir. 2003)(emphasis supplied).

2

addition to filing a response to Mr. Caraway’s motion to quash, they filed a motion to transfer the
subpoena matter here, claiming there were “exceptional circumstances” under Fed.R.Civ.P. 45(f).
[Dkt. #14].2
According to the Mission Trust defendants, the “exceptional circumstances” were: (1) “a
pattern of gamesmanship to delay discovery that ha[d] been orchestrated by [the Mission Trust]
Plaintiffs” that had resulted in sanctions – which had nothing to do with the merit of Mr. Caraway’s
motion to quash – and (2) the Northern District of Illinois was “very familiar” with the facts and
background of the case – a circumstance that is almost invariably true in every case. [14-9625, Dkt.
# 14, at 6].
The magistrate judge recommended that the district court transfer the matter here, and the
district court accepted the recommendation. The subpoena matter was transferred to the Northern
District of Illinois on December 2, 2014. 3 It did not come to me until March 9. See infra at 5. In the
interim, the Mission Trust defendants did nothing to obtain a ruling on so that they could take the
deposition they insisted had to proceed in less than 14 days from the original issuance of the

2

The transfer motion was certainly inconsistent with the Mission Trust defendants’ insistence on the need
for an immediate compliance with the dates in the subpoena. Obviously, a transfer to the Northern District
of Illinois would entail, in all likelihood, a referral to a magistrate judge who would have to issue a report
and recommendation, to be followed by the filing of objections that would have to be reviewed by the district
court de novo. In short, the motion to transfer was clearly not the act of a party for whom time was of the
essence.

3

Ironically, the District Court for the Western District of Texas is in the singular position of at least having
a connection with Mr. Caraway, who resides in the District. None of the parties in this case, the property at
issue, nor the trust that was the impetus of these proceedings have any connection whatsoever with the state
of Illinois. [13-7770, Dkt. # 1]. Venue hinges flimsily on a forum selection clause in the trust document.
But, the Mission Trust Defendants dissolved the trust on February 25, 2014, five months after the plaintiffs
filed suit to force them to comply with their obligations under it.

3

subpoena in November 2014.4
B.
Under Fed.R.Civ.P 45(f), an enforcing court may transfer a motion to quash a subpoena to
the issuing court if the enforcing court finds there are “exceptional circumstances.” The Advisory
Committee notes explain that, in determining whether exceptional circumstances are at play, 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. In some circumstances, however, transfer 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.

Thus, the second reason offered by Mission Trust defendants, familiarity with the case is, at
least in the circumstances of this case, essentially irrelevant since Mr. Caraway’s objections – fees,
time for compliance, burden – could have been resolved without any familiarity with the core
proceedings. It is also clear that the court in Texas was gulled by the first reason the Mission Trust
defendants offered: the Mission Trust plaintiffs engaging in gamesmanship and having been
sanctioned. At the time of the transfer in early December 2014, the Texas court had no way of
knowing that it was the Mission Trust defendants who had engaged in overarching gamesmanship
by concealing from Judge Norgle that they had dissolved the trust, and thus he was proceeding

4

On April 2, 2015 the Mission Trust defendants, pursuant to Local Rule 78.5, filed a motion requesting a
"decision" on the motion to quash. As the motion conceded, courtesy copies of the motions and briefs were
not provided to me as required by Local Rule 5.2(f) until March 31, 2015, and only after a request by me.
See infra at 5, Section C for the chronology of events leading up to that motion.

4

without jurisdiction over the plaintiff’s claims. See Elliott v. Mission Trust Services, _F.Supp.2d_,
2015 WL 1138265 (N.D.Ill. March 11, 2015).5 Beyond this, it is difficult to see what the claim of
gamesmanship and noncompliance with discovery by the plaintiff had to do with the merit of Mr.
Caraways’s motion to quash.
The desideratum of Fed.R.Civ.P. 45(f) is the protection of non-parties from undue burdens.
And under Fed.R.Civ.P. 45(c), Mr. Caraway was assured he would not have to travel more than 100
miles from his home or business in order to comply with a subpoena. Yet, now, as a consequence
of the Mission defendants’ Motion to Transfer, not only has compliance with the subpoena been
substantially delayed beyond dates that could have been reasonably agreed upon back in the Fall of
2014, but Mr. Caraway is now required to be litigating in a court over 1000 miles away from his
place of business and residence. Of course, he won’t have to travel here himself, but the point is that
the transfer accomplished by the Mission Trust defendants makes a mockery of the rules.
C.
Be that as it may, when the subpoena dispute arrived here in early December, it was assigned
a new case number (14-9625) and was assigned to Judge Wood. At Judge Norgle’s request, the
Executive Committee reassigned it to him on January 5, 2015, as it was clearly associated with the
core case, 13-7770. [See 14-9625, Dkt. #31]. Judge Norgle terminated the subpoena case, 14-9625,
on March 3, 2015. [14-9625, Dkt. # 34]. He then referred the motion to quash to me on March 9,
2015. [14-9625, Dkt. #39]. And so the referral appeared to be on a closed case. As a result of that
docketing confusion, I was not made aware of this matter until I received a call on March 31, 2015,

5

The Mission Trust defendants have not objected to that Opinion, and the 14 days they had in which to do
so have passed. Fed.R.Civ.P. 72(a).

5

not from the Mission Trust defendants, but from Mr. Caraway’s counsel, Lauren Valkenaar. At my
request, and pursuant to Local Rule 5.2(f), she sent me the relevant and quite extensive filings on
the subpoena matter the next day. While it was Mr. Caraway’s motion, the Mission Trust defendants
did nothing following the transfer here to obtain a ruling on the motion, even though they had been
adamant that Mr. Caraway’s subpoena had to be complied within less than 14 days from the date of
its issuance in 2014.
As already noted, Mr. Caraway’s basic objections to the subpoena are straightforward and
their resolution requires little, if any, familiarity with the case before Judge Norgle. They are to be
resolved with due regard for the protections afforded persons subjected to subpoenas, especially nonparties, under Fed.R.Civ.P. 45. See, e.g., Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st
Cir.1998); Exxon Shipping Co. v. United States Dept. of Interior, 34 F.3d 774, 779 (9th Cir.1994);
United States v. Amerigroup Illinois, Inc., 2005 WL 3111972, *4 (N.D.Ill. 2005).
The determination of what constitutes a reasonable time for compliance with a subpoena
directed to a non-party is committed to the sound discretion of the district court and will, of course,
vary with the circumstances Matter of Grand Jury Subpoena, 739 F.2d 1354, 1359 (8th Cir.1984).
So, too, is the decision to quash a subpoena. Ott v. City of Milwaukee, 682 F.3d 552, 556 (7th Cir.
2012). Discretion denotes the absence of a hard and fast rule. Langnes v. Green, 282 U.S. 531, 541
(1931); Rogers v. Loether, 467 F.2d 1110, 1111–12 (7th Cir. 1972)(Stevens, J.).
It requires that a court act “with regard to what is right and equitable under the circumstances
and the law, and directed by the reason and conscience of the judge to a just result.” Langnes, 282
U.S. at 541. An abuse of discretion occurs when no reasonable person could agree with the district
court's decision. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th Cir. 2014); Cincinnati Life
6

Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013). See also CSC Holdings, Inc. v. Redisi, 309
F.3d 988, 993 (7th Cir.2002)(court will overturn a discretionary decision relating to subpoena “only
if: ‘(1) the record contains no evidence upon which the court could have rationally based its decision;
(2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly
erroneous factual findings; or (4) the decision clearly appears arbitrary.’”).
That is a difficult showing to make. Indeed, on a virtually identical set of facts, two decision
makers can arrive at opposite conclusions, both of which can constitute appropriate exercises of
discretion and both be affirmed on appeal. Mejia v. Cook County, Ill., 650 F.3d 631, 635 (7th Cir.
2011); United States v. Banks, 546 F.3d 507, 508 (7th Cir. 2008). Cf. United States v. Bullion, 466
F.3d 574, 577 (7th Cir. 2006)(Posner, J.) (“The striking of a balance of uncertainties can rarely be
deemed unreasonable....”).
1.
First, there is the matter of a witness fee. The Mission Trust defendants attached a $98.36
check to their subpoenas, which they say represents the necessary witness fee for two days ($40 per
day for two days) and $18.36 for transportation ($0.56 per mile for two separate round trips of 16.4
miles each). See 28 USC §1821. But Mr. Caraway lives in LaVernia, Texas [14-9265, Dkt. #1-1,
at 20], which is 35 miles from the site given for compliance with the subpoena. So, that is two
separate round trips of 70 miles each, for a total mileage fee of $78.40, or more than 4 times what
the Mission Trust defendants provided. The Mission Trust defendants explain that they calculated
the mileage, not from Mr. Caraway’s home, but from his office, which they claim is “the only
address known to [them].” [14-9265, Dkt. # 13, at 8]. They claim that this represents a reasonable
effort to comply with the rules. [14-9265, Dkt. # 13, at 8].
7

It’s not apparent how. The Mission Trust defendants reveal no efforts they made, if any, in
determining Mr. Caraway’s home address. “[W]hen the subpoenaing party makes no attempt to
calculate and tender at least a reasonably estimated mileage allowance, he plainly violates rule
45(b)(1) and leaves us with no factual basis from which to review the court's decision.” In re Dennis,
330 F.3d 696, 705 (5th Cir. 2003). We have nothing from the Mission Trust defendants to show they
made any such attempt, not even the minimal effort of conducting an internet search.6 This is reason
enough to grant Mr. Caraway’s motion to quash. In re Dennis, 330 F.3d 696, 705 (5th Cir. 2003); CF
& I Steel Corp. v. Mitsui & Co. (U.S.A.), Inc., 713 F.2d 494, 496 (9th Cir. 1983).7
Next is the timing of the subpoena and the burden imposed on Mr. Caraway. A district court
may quash or modify a subpoena if it fails to allow a reasonable time for compliance or subjects the
deponent to an undue burden. Fed.R.Civ.P. 45(d); CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993
(7th Cir. 2002). The determination as to what constitutes a reasonable time in any particular case must
be arrived at by a consideration of all its elements which affect that question. Twin-Lick Oil Co. v.
Marbury, 91 U.S. 587, 1875 WL 17954, 1 (1875). Mr. Caraway is, as already noted, a non-party to
this case – a significant circumstance – and presumably had no knowledge of the proceedings prior
to the subpoenas. At least the record contains no proof that he did. The subpoenas were served on

6

The Mission Trust defendants advance no argument that the disjunctive phrasing of Fed.R.Civ.P. 45(c)(1),
which sets the limits of subpoena power at “within 100 miles of where the person resides, is employed, or
regularly transacts business in person,” permitted them to calculate mileage either from Mr. Caraway’s home
or office. Accordingly, any such argument is waived. United States v. Baines, 777 F.3d 959, 963 (7th Cir.
2015); Kmart Corp. v. Footstar, Inc., 777 F.3d 923, 929-30 (7th Cir. 2015). Moreover, that section does not
deal with calculation of mileage but rather with the limits of the subpoena power.

7

It should not go unnoticed that in the time since Mr. Caraway pointed out the Mission Trust defendants’
error in calculation, there is nothing to suggest they have made any attempt or offer to correct it. Cf.
WhitServe LLC v. Computer Packasges, Inc., 2013 WL 6169280, 3 (D.Conn. 2013)(court did not quash
subpoena for inadequate fee where issuing party took prompt action to cure deficiency).

8

Mr. Caraway on October 7, 2014, and compliance – document production and deposition – was
demanded for October 17, 2014, and October 27, 2014, respectively. Mr. Caraway was leaving for
a family vacation in Puerta Vallarta, Mexico, on an early flight the next morning. Even if he had not
been leaving, Fed.R.Civ.P. 45(d)(2)(B) suggests that 14 days is the benchmark for time for
compliance;8 and courts have found that fourteen days from the date of service is presumptively
reasonable. See Tri Investments, Inc. v. Aiken Cost Consultants, Inc., 2011 WL 5330295, 1
(W.D.N.C.2011).9 Mr. Caraway would have had just 10 days. In this case, that’s inadequate. See
e.g., AngioScore, Inc. v. TriReme Medical, Inc., 2014 WL 6706898, 1 (N.D.Cal. 2014)(9 days
inadequate); Dixon v. Greyhound Lines, Inc., 2014 WL 6474355, 4 (M.D.La. 2014)(9 days including
3-day holiday weekend inadequate); Thomas v. IEM, Inc., 2008 WL 695230, at *3 & n. 10 (M.D.La.
2008) (15 days was inadequate, especially considering the Christmas holiday fell within those 15
days); Hernandez v. City of Corpus Christi, 2011 WL 2194254, at *1 (S.D. Tex. 2011) (quashing
subpoena duces tecum that gave 10 days for compliance); In re Sulfuric Acid Antitrust Litigation,
231 F.R.D. 320, 327 (N.D. Ill. 2005)(ten business days deposition notice unreasonable in complex
litigation); Mann v. Univ. of Cincinnati, 824 F.Supp. 1190, 1202 (S.D.Ohio), aff'd, 152 F.R.D. 119

8

The Rule allows objections to a subpoena to be filed “before the earlier of the time specified for compliance
or 14 days after the subpoena is served.” Fed.R.Civ.P. 45(d)(2)(B). As such, a 14-day period for compliance
might be regarded as the “default” time period. See Anderson v. Dobson, 2006 WL 3390631, at *3 (W.D.N.C.
Nov. 22, 2006)(holding that 10 days was not an adequate time for compliance and noting that “the usual and
customary 14 day objection period for the witness to move to quash the subpoena would to have even run
by the time of the proposed depositions.”).

9

The rule allows objections to a subpoena to be filed “before the earlier of the time specified for compliance
or 14 days after the subpoena is served.” Fed.R.Civ.P. 45(d)(2)(B). As such, a 14-day period for compliance
might be regarded as the “default” time period. See Anderson v. Dobson, 2006 WL 3390631, at *3
(W.D.N.C. Nov. 22, 2006) (holding that 10 days was not an adequate time for compliance and noting that
“the usual and customary 14 day objection period for the witness to move to quash the subpoena would not
have even run by the time of the proposed depositions”).

9

(S.D.Ohio 1993), aff'd, 1997 WL 280188, 5, n.5 (6th Cir. 1997)(requiring compliance with subpoena
in less than fourteen days deemed unreasonable). The short time for compliance in this case is made
more onerous by the Mission Trust defendants’ refusal to be flexible as to rescheduling.
When Mr. Caraway suggested postponing things a week or so until early November, counsel
for the Mission Trust defendants refused by essentially ignoring the request. Significantly, in their
motion to transfer, the Mission Trust defendants inaccurately informed the court in the Southern
District of Texas that Mr. Caraway didn’t offer them any alternate dates [14-9265, Dkt. # 14, at 9],
even though he clearly asked the Mission Trust defendants to “give [him] some dates in early
November to re-schedule.” [14-9265, Dkt. # 1-1, at 70].
Counsel for Mr. Caraway entered the picture and immediately attempted to reach some
understanding with counsel for the Mission Trust defendants. But as of October 23, 2014, no
agreement could be reached. [14-9625, Dkt. # 1-1, at 2]. Along the way, counsel for Mr. Caraway
asked about dates between November 11-14, but counsel for the Mission Trust defendants refused
and demanded compliance with the October 27th date in the subpoena. [14-9625, Dkt. # 15-6, at 12]. Mr. Caraway’s counsel then filed the motion to quash, emailing a copying to counsel for the
Mission Trust defendants. [14-9625, Dkt. # 15-2, at 1]. Immediately thereafter, counsel for the
Mission Trust defendants called Mr. Caraway’s attorney and left this voice message:
Yeah, uh, Lauren...Uh, we do not agree that you can simply not show up at a
deposition. But setting that aside, we are going to take the deposition of Hugh
Caraway on the offered day of November 10th, it’s the only day we can possibly
make work, its very busy inconvenience [sic] to us and our schedule uh that we think
is unnecessary but we are gonna do it and we are confirming this with you and my
local counsel in Illinois with this day. You’ve offered Hugh Caraway on November
10. We are taking that offer and we are for that reason not coming out on Monday.
We will have a confirmation to you. My cell is... if you have any questions about this.
Thanks for your cooperation.
10

[14-9625, Dkt. #15-4, at 1]. Significantly, there is no evidence at all that the November 10th date was
ever on the table. All that Mr. Caraway had offered was an early November date. While Mr.
Caraway’s submissions on this matter are supported with sworn statements and email chains, the
Mission Trust defendants’ submission offers nothing but the unsupported statements in its brief. But
that is not evidence. See, INS v. Phinpathya, 464 U.S. 183, 188–89 n. 6 (1984); United States v.
Chapman, 694 F.3d 908, 914 (7th Cir.2012); United States v. Diaz, 533 F.3d 574, 578 (7th
Cir.2008); Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir.2002).
Given what we’ve learned, Mr. Caraway’s motion to quash was well-taken. The time for
compliance was inadequate given his travel plans and the fact that he had to engage counsel who
then had to acquaint themselves with a case to which their client was not a party. The subpoena was
couched in terms that necessitated the recipient familiarize himself with the core case – it referred
repeatedly to the “subject matter of the Complaint and Counterclaim.” [14-9625, Dkt. # 1-1, at 4752; 60-64]. The Mission Trust defendants rejected out of hand Mr. Caraway’s initial offer of early
November dates. They rejected a subsequent offer of November 11-14 dates. They were recalcitrant,
strident, and overbearing. Only under the pressure of the motion to quash in Texas did they offer
November 10th – which they claimed was “the only day we can possibly make work.....” 10
The fact that they reference their busy schedules and inconvenience is unpersuasive. [See
13-7770, Dkt. # 190]. It is the Mission Trust defendants’ subpoena and it is their Counterclaim. Mr.
Caraway is not a party. The Mission Trust defendants are the kind of subpoenaing party that the
First Circuit must have had in mind in Cusumano:
Although discovery is by definition invasive, parties to a law suit must accept its
10

They claim Mr. Caraway offered the date – that wasn’t true.

11

travails as a natural concomitant of modern civil litigation. Non-parties have a
different set of expectations. Accordingly, concern for the unwanted burden thrust
upon non-parties is a factor entitled to special weight in evaluating the balance of
competing needs.
162 F.3d at 717.
The Mission Trust defendants made absolutely no legitimate effort to accommodate Mr.
Caraway’s schedule. Apparently, foremost in their minds was the convenience of their attorneys.
This is not a factor that enters into the Fed.R.Civ.P. 45 calculus, which concerns itself with
protecting the recipient of a subpoena not the issuer from undue burdens. See, e.g., Alexander v.
Jesuits of Missouri Province, 175 F.R.D. 556, 559 (D.Kan. 1997). Generally speaking, convenience
of counsel ought never to trump convenience of an individual, especially a non-party individual.
Hannah v. Wal-Mart Stores, Inc., 2014 WL 110950, 4 (D.Conn. 2014)(“. . . convenience of counsel
is less compelling than any hardship to the witnesses.”); Devlin v. Transportation Communications
Intern. Union, 2000 WL 28173, 4 (S.D.N.Y. 2000)(same). In any event rescheduling a deposition
is not an “undue” burden on the issuing lawyers – at least not on this record.
2.
Mr. Caraway is also entitled to an award of attorneys’ fees. Rule 45(d)(1) allows for the
imposition of sanctions, including reasonable attorney fees, on the party issuing the subpoena when
that party who failed to take reasonable steps to ensure the subpoena would not result in an undue
burden. Fed.R.Civ.P. 45(d)(1); American Soc. of Media Photographers, Inc. v. Google, Inc., 2013
WL 1883204, 6 (N.D.Ill. 2013); Jallali v. Nova Southeastern University, 2012 WL 2368322, 2
(N.D.Ill. 2012); Mick Haig Productions, e.K. v. Does, 2011 WL 5104095, 4 (N.D.Tex. 2011). Good
faith in issuing a subpoena is not sufficient to avoid sanctions under Rule 45(c)(1) if a party has

12

issued the subpoena in violation of the duty imposed by that Rule. Google, Inc., 2013 WL 1883204,
6; Builders Ass'n of Greater Chicago v. City of Chicago, 2002 WL 1008455, 3 (N.D.Ill. 2002);
Liberty Mutual Ins. Co. v. Diamante, 194 F.R.D. 20, 23 (D.Mass.2000).
Fees are appropriate here because there is nothing that demonstrates the Mission Trust
defendants took reasonable steps to ensure the subpoena would not result in an undue burden. They
steadfastly refused to accommodate Mr. Caraway’s very reasonable request for a short postponement
that was measured in days and which would have comfortably fit within the discovery close date.
11

The reason given was that their attorneys were “very busy” and November 10th was the only

“possible” day that they could be available to take the deposition. There is nothing in this record that
would remotely support the kind of demand for expedition insisted on by the Mission Trust
defendants.
Moreover, the Mission Defendants inflexibility in dealing with Mr. Caraway and his lawyers
stands in rather stark contrast to their request for transfer following Mr. Caraway’s motion to quash
in Texas. [14-9625, Dkt. #14]. That strategy was certain to result in potentially lengthy delays, while
a reasonable continuance of the subpoena to a date in November as Mr. Caraway requested or early
December would have resulted in the deposition going forward promptly.12 Second, they never
called chambers to inquire as to the progress of this proceeding, despite the fact that, as a result of
the transfer in early December, 2014, and some subsequent docketing confusion, more than five
months had elapsed since the date they insisted on deposing Mr. Caraway in late October. By this
11

While discovery was closing on December 29, 2014 [13-7770, Dkt. #89], there was ample time to meet
that deadline by taking the deposition in November or early December.

12

However rapid the judicial resolution of the subpoena issue might have been, common sense dictated that
it would have taken far more time than simply granting Mr. Caraway time to prepare with his counsel for the
deposition.

13

time, the December 29, 2014 discovery cutoff set by Judge Norgle had expired.
In short, the course chosen by the Mission Trust defendants was infinitely less preferable than
making the reasonable accommodation Mr. Caraway initially sought for his deposition. It has
resulted in needless expense to everyone, and delayed the resolution of the deposition dispute long
after it could have been resolved amicably and to everyone’s satisfaction in November or early
December of 2014 had the Mission Trust defendants acted reasonably and responsibly.13
CONCLUSION
Mr. Caraway’s motion to quash the subpoena [Dkt. #1] is GRANTED. Mr. Caraway may
file an appropriately supported petition for fees, with the proviso that the parties must comply with
Local Rule 54.3.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 4/7/15

13

Judge Shadur has attributed “the decline in the quality of legal life” to the “sharp increase in the number
and proportion of hard-ball litigators...who make it a point not to be accommodating,” and “who tend to be
intransigent even though it would cost them or their clients little or nothing to act differently.” Milton
Shadur, Hardball Litigators, 20 LITIGATION 21 (1993). Unfortunately, the problem is not new. See, e.g.,
John Grady, Trial Lawyers, Litigators and Clients’ Costs, 4 LITIGATION 5 (Spring 1978); Wayne Brazil,
The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand.L.Rev. 129596, 1304, 1310 (1987);William W. Schwarzer, The Federal Rules, the Adversary Process, and Discovery
Reform, 50 U.Pitt.L.Rev. 703, 704, 705, 715 (1989); Learned Hand, The Deficiencies Of Trials to Reach
the Heart of the Matter, 105 ( Lectures on Legal Topics (The MacMillan Co.1926)(quoted in Jackson v.
N'Genuity Enterprises Co., 2010 WL 4928912, 1 (N.D.Ill. 2010).

14