Anthony et al v. O'Fallon Township High School District 203 Board of Education et al

Filing 67

ORDER: 62 Motion to Quash Subpoenas or in the Alternative for Protective Order, and Sanctions filed by Plaintiff Niesha Anthony is GRANTED in part and DENIED in part. Signed by Judge Stephen P. McGlynn on 8/28/2024. (trf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NIESHA ANTHONY, individually
and as parent and next friends of
ZARIAH ANTHONY, a minor,
Plaintiff,
v.

Case No. 23-CV-00967-SPM

O’FALLON TOWNSHIP HIGH
SCHOOL DISTRICT 203 BOARD OF
EDUCATION, et al.,
Defendants.

MEMORANDUM AND ORDER
McGLYNN, District Judge:
This matter comes before the Court for consideration of a Motion to Quash
Subpoenas or in the Alternative for Protective Order, and Sanctions (Doc. 62) filed by
Plaintiff Niesha Anthony on behalf of her herself and her minor daughter Zariah
Anthony. Defendants O’Fallon Township High School (“OTHS”) District 203 Board of
Education, Twana Dollison, Richard Bickel, and Dr. Darcy Benway (collectively the
“OTHS Defendants”) filed a Response. (See Docs. 63, 66). Having been fully informed
of the issues presented, Plaintiff Anthony’s Motion to Quash is GRANTED in part
and DENIED in part.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
This case arises from incidents of alleged discrimination and retaliation
against Niesha Anthony and her minor daughter Zariah Anthony by the OTHS

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Defendants while Zariah was enrolled at OTHS during the 2021–22 (Ninth Grade)
and 2022–23 (Tenth Grade) school years. (See Doc. 47).
Anthony initially filed a Complaint in state court in St. Clair County, Illinois
on February 23, 2023. (See Doc. 1, Ex. A). The OTHS Defendants removed the case to
federal court on March 24, 2023 (Doc. 1) and filed a Motion to Dismiss (Doc. 18) on
May 3, 2023. This Court granted Anthony leave to file an amended complaint (Doc.
24), which was filed on July 31, 2023. (Doc. 26). Another Motion to Dismiss (Doc. 32)
was filed on September 19, 2023, with Anthony responding on October 3, 2023. (Doc.
34). The Court held argument on November 29, 2023. (See Doc. 37). The Court
granted the OTHS Defendants’ Motion to Dismiss in part and denied it in part on
January 23, 2024. (See Doc. 38). The Court entered a Scheduling Order on February
20, 2024. (Doc. 46). Anthony filed a Second Amended Complaint on February 21,
2024. (Doc. 47). Anthony filed the instant Motion contesting the issuance of fourteen
subpoenas to various entities1 on July 23, 2024. (Doc. 62). The OTHS Defendants
responded on August 6, 2024. (Docs. 63, 66).
APPLICABLE LAW AND LEGAL STANDARDS
Rule 26(b)(1) of the Federal Rules of Civil Procedure permits a party to obtain
discovery “regarding any nonprivileged matter that is relevant to any party’s claim
or defense.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need

The subpoenas in dispute were issued to: Swansea Fire, Swansea Police, Ameren (the Plaintiff’s
electric and gas utility), Illinois American Water (the Plaintiff’s water utility), Village of Swansea (the
Plaintiff’s sewage utility), Spectrum Cable & Wireless (the Plaintiff’s internet and cable provider),
Verizon (a mobile phone provider), AT&T (a mobile phone provider), Hoyleton Youth and Family
Services, One Hope United, Christone Enterprises, Urban Air, Freddy’s Frozen Custard, and Claire’s.
(See Doc. 62, pp. 2–4).
1

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not be admissible in evidence to be discoverable.” Id. In addition to being relevant,
the discovery sought must be proportional to the needs of the case, “considering the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefits.” Motorola Sols., Inc. v. Hytera Commc’ns
Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill. 2019) (citing Fed. R. Civ. P. 26(b)(1)).
“A subpoena issued pursuant to Rule 45 is subject to the general relevancy
standard for discovery described in Rule 26(b)(1).” Hazlitt v. Apple Inc., No. 3:20-CV421-NJR, 2021 WL 2457987, at *2 (S.D. Ill. June 16, 2021) (citing Northwestern Mem’l
Hosp. v. Ashcroft, 362 F.3d 923, 930 (7th Cir. 2004) (applying Rule 26(b)(1) to a
subpoena for hospital records)). “A court must quash or modify a subpoena, however,
if it would subject a person to undue burden, and a court may quash or modify a
subpoena if it would require disclosure of confidential information or sensitive
commercial material.” Id. (citing Fed. R. Civ. P. 45(d)(3)). “The party moving to quash
bears the burden of persuasion and must show how the information requested is
sensitive or creates an undue burden.” Id. (citing Malibu Media, LLC v. John Does 114, 287 F.R.D. 513, 516 (N.D. Ind. 2012) (collecting cases)).
ANALYSIS
Anthony argues that “[t]he fourteen (14) Subpoenas request information and
documentation that have no bearing on the merits of this lawsuit.” (Doc. 62, p. 4). She
argues that, “[i]n seeking records related to both Plaintiffs’ current and previous
employment, their residence, and an unlimited review of their phone records, the
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Defendants are engaging in a blatant fishing expedition searching for non-existent
District violations and propensity evidence which are not admissible under Fed. R.
Evid. 404(a).” (Id. (footnote omitted)). Anthony argues that the OTHS Defendants’
request for phone records and text messages also violates attorney-client privilege.
(Id., p. 9). Anthony also seeks sanctions in the form of “an award of attorneys’ fees for
filing this motion after Defendants failed to provide Plaintiffs with sufficient notice
of the subpoenas as required under Rule 45.” (Id., p. 10). Anthony argues that “while
Defendants provided ‘notice’ of the subpoenas on July 9, 2024, Defendants proceeded
to serve them on the non-parties within twenty-four (24) hours thereafter” and that
“[s]uch a practice clearly violates Rule 45 in that the Defendants did not allow
Plaintiffs sufficient time to object and have a good faith effort to resolve disputes over
the requests in the subpoenas.” (Id., p. 11).
In their Response, the OTHS Defendants argue that Niesha and Zariah’s
testimony during their respective depositions indicated that “plaintiffs deliberately
made false statements about their residence in order for Zariah to wrongfully obtain
the benefits and services from the District.” (Doc. 63, p. 2). The OTHS Defendants
argue that because Anthony’s “own complaint alleges that she has been deprived of
and continues to be deprived of access to educational benefits of the District, the
District is entitled to discovery on the issue of whether she actually resided in the
District during relevant time periods and thus is entitled to such educational
benefits.” (Id., p. 3). Regarding Anthony’s request for sanctions, the OTHS
Defendants argue that “[t]here is nothing in [Federal Rule of Civil Procedure 45] that
requires a party to hold off on issuing the subpoena for any period of time after giving
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notice to other parties.” (Id., p. 9). They also argue that “plaintiffs’ actions, or rather
inactions, after they received notice belie any claim that they were prejudiced by not
being given at least 24 hours [sic] notice prior to service of the subpoenas” because
“Defendants notified plaintiffs of the subpoenas on July 9, 2024 [and] Plaintiffs did
not present defendants with objections until July 15, 2024, six days after receiving
notice.” (Id.). The OTHS Defendants argue that because “the phone companies are
not able to supply the substance of any phone calls or text messages,” instead only
providing “a log of calls and text [sic] made and received and the length of the call,”
that “[n]o attorney-client privilege issues are at stake here.” (Id., p. 10). They argue
that “Niesha Anthony not only misrepresented their living situation to the District
in her residency affidavit, she continued her misrepresentations to Dr. Benway
during the residency interview” as indicated by the fact that “Zariah testified under
oath that she and mother have been living in Swansea for four years.” (Id.). They
argue that “[t]he evidence set forth in this response demonstrates that plaintiffs have
made untruthful statements to the District before and during this litigation, that the
information sought by the subpoenas are relevant to the plaintiffs[‘] damages claim,
. . . and that sanctions are unwarranted.” (Id., p. 11).
Because Anthony has specifically alleged deprivation of education benefits in
her lawsuit, it is clear that the matter of her and her daughter’s domicile is highly
relevant to this case. Because of this, the Court holds that the subpoenas to Ameren,
Illinois American Water, the Village of Swansea, Spectrum Cable & Wireless, and
Christone Enterprises are relevant and likely to lead to the discovery of admissible
evidence. The same is true for employment applications and dates of employment.
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However, the Court does not agree that Niesha and Zariah’s disciplinary records from
their employers are relevant in this case. The OTHS Defendants have not met their
burden to demonstrate how Niesha and Zariah Anthony’s potential disciplinary
infractions at their respective employers are relevant to the issues at stake in this
suit. Therefore, the subpoenas issued to Hoyleton Youth and Family Services, One
Hope United, Urban Air, Freddy’s Frozen Custard, and Claire’s must be limited to
Niesha and Zariah Anthony’s applications for employment and dates of employment
only.
Plaintiff’s counsel has raised the issue of text messages that may contain
material protected by the attorney-client privilege. (Doc. 62, p. 9). The OTHS
Defendants insist that “the phone companies are not able to supply the substance of
any phone calls or text messages” and that “[t]hey only produce a log of calls and text
[sic] made and received and the length of the call.” (Doc. 63, p. 10). Although the
OTHS Defendants have indicated that they do not seek the contents of text messages
sent and received from Niesha and Zariah Anthony’s phones, out of an abundance of
caution, the subpoenas issued to Verizon and AT&T shall be limited to outgoing and
incoming phone call records and shall exclude the content of text messages. Finally,
the Court is not convinced that the subpoenas issued to Swansea Fire and Police
requesting incident report records are relevant. While it could be argued that records
of use of emergency services could indicate whether or not the Anthonys resided at
their Swansea residence, the OTHS Defendants have not met their burden to indicate
why these particular subpoenas are relevant, especially with the twelve other
subpoenas issued to determine the exact same issue (the Anthonys’ domicile). With
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these modifications and with the HIPAA Qualified Protective Order (Doc. 52) and
Confidentiality Order (Doc. 53) entered in this case, the Court holds that an
additional protective order is not required.
Regarding Anthony’s request for sanctions, the Court holds that the OTHS
Defendants followed the appropriate procedures in accordance with Federal Rule of
Civil Procedure 45—they are not required to wait to issue subpoenas until after
Anthony responds with objections, as Rule 45(a)(4) states “[i]f the subpoena
commands the production of documents, electronically stored information, or tangible
things or the inspection of premises before trial, then before it is served on the person
to whom it is directed, a notice and a copy of the subpoena must be served on each
party.” Anthony does not cite any Seventh Circuit caselaw to justify her argument
that the Defendants’ actions in issuing the subpoenas in question violated Federal
Rule of Civil Procedure 45(a)(4); instead, they cite an out-of-circuit district court case
from the Eastern District of Michigan. (See Doc. 62, p. 11 (citing Bronson v. Henry
Ford Health Sys., No. 2:15-CV-10111, 2016 WL 3197555, at *2 (E.D. Mich. June 9,
2016))). Therefore, the Court holds that the OTHS Defendants have not committed
sanctionable conduct and this portion of Anthony’s Motion does not survive scrutiny.
The Court notes that the deed for the Anthonys’ Swansea property may be
evidence that the Anthonys resided outside the O’Fallon School District while at the
same time representing to this Court that they were living within the boundaries of
the O’Fallon School District. (See Doc. 63, pp. 7–8). If the Anthonys fraudulently used
O’Fallon’s resources in the first place, this may prove fatal to their claims.

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DISPOSITION
In accordance with the foregoing, Plaintiff Anthony’s Motion to Quash
Subpoenas or in the Alternative for Protective Order, and Sanctions is GRANTED
in part and DENIED in part. Anthony’s Motion to Quash is DENIED with respect
to the subpoenas issued to Ameren, Illinois American Water, the Village of Swansea,
Spectrum Cable & Wireless, and Christone Enterprises. Anthony’s Motion to Quash
is GRANTED in part with respect to the subpoenas issued to Hoyleton Youth and
Family Services, One Hope United, Urban Air, Freddy’s Frozen Custard, and
Claire’s—the subpoenas shall be restricted to the “Application for employment; and
Dates of employment.” Regarding the subpoenas issued to Verizon and AT&T,
Anthony’s Motion to Quash is GRANTED in part— the subpoena for Verizon shall
be restricted to “Any and all records pertaining to mobile services provided for the
below-listed cell phone number, including but not limited to an itemization of all
outgoing and incoming phone calls, call details, MUDs, and tolls for the date of
August 2021 to November 2022 for the VERIZON phones 618-305-9797 and 618-3534411” and the subpoena for AT&T shall be restricted to “Any and all records
pertaining to mobile services provided for the below-listed cell phone number,
including but not limited to an itemization of all outgoing and incoming phone calls,
call details, MUDs, and tolls for the date of August 2021 to November 2022 for the
ATT phone [phone].” Finally, Anthony’s Motion to Quash is GRANTED with
respect to the subpoenas issued to Swansea Fire and Swansea Police—those
subpoenas are hereby QUASHED.

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This Court further ORDERS that any responses to the subpoenas that have
been received from Hoyleton Youth and Family Services, One Hope United, Urban
Air, Freddy’s Frozen Custard, Claire’s, Verizon, AT&T, Swansea Fire, or Swansea
Police as a result of the subpoenas that the Court has ordered either quashed or are
outside of the Court’s restrictions are barred from use in this litigation to the extent
that they include restricted records. Should the records be in transit, they shall be
submitted to the Court for in camera review.
IT IS SO ORDERED.
DATED: August 28, 2024
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge

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