Swoope v. Gary Community School Corporation et al

Filing 75

OPINION AND ORDER, DENYING 60 MOTION to Quash filed by Dr Cordia Moore, Gary Community School Corporation, Dr Myrtle Campbell. Thedefendants are ORDERED to produce the subpoenaed documents within 14 days of this Order. Signed by Magistrate Judge Andrew P Rodovich on 6/7/12. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DR. DAVID L. SWOOPE, JR.,
Plaintiff
v.
GARY COMMUNITY SCHOOL
CORPORATION; DR. MYRTLE
CAMPBELL, DR. CORDIA MOORE, in
their official and individual
capacities,
Defendants

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CIVIL NO. 2:10 cv 423

OPINION AND ORDER
This matter is before the court on the Motion to Quash
Subpoena [DE 60] filed by the defendants, Gary Community School
Corporation, Dr. Myrtle Campbell, and Dr. Cordia Moore, on
February 17, 2012.

For the reasons set forth below, the motion

is DENIED.
Background
On August 15, 2011, the plaintiff, Dr. David L. Swoope, Jr.,
filed a motion for default judgment against each defendant.

The

district court entered a default on January 23, 2012, and set a
hearing on March 6, 2012, to determine the amount of damages.
the Order setting the hearing, the district court granted the
plaintiff leave to conduct any necessary discovery before the
hearing.

The plaintiff issued a subpoena on February 2, 2012,

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requesting the employment records of Dr. Myrtle Campbell, Dr.
Cordia Moore, and Dr. Vernon Smith, among other things.

The

subpoena called for production by February 17, 2012, at 10:00
A.M.

The subpoenas were served directly on the defendants, as

counsel for the defendants did not enter an appearance until
February 9, 2012, after the subpoenas were issued.

The plaintiff

went to pick up the subpoenaed documents on February 17, 2012,
but the defendant, Dr. Myrtle Campbell, refused to provide the
information.

The plaintiff’s counsel then went to Corporation

Counsel’s office and was provided with a folder containing the
Motion to Quash Subpoena, Defendants’ Response to Plaintiff’s
First Request for Production of Documents Directed to defendant
Gary Community School Corporation, a document entitled System
Note Pad Personnel, and a corporation copy of the plaintiff’s
employment contract.

The defendants filed their Motion to Quash

that same day.
Discussion
Federal Rule of Civil Procedure 45(c)(3)(A)(iii)-(iv) provides that "[o]n timely motion, the court by which a subpoena was
issued must quash or modify the subpoena if it . . . requires
disclosure of privileged or other protected material and no
exception or waiver applies; or . . . subjects a person to undue
burden." Further, "the party seeking to quash a subpoena under

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Rule 45(c)(3)(A) has the burden of demonstrating that the information sought is privileged or subjects a person to an undue
burden."

Hodgdon v. Northwestern University, 245 F.R.D. 337, 341

(N.D. Ill. 2007). However, implicit in the rule is the requirement that a subpoena seeks relevant information. See Stock v.

Integrated Health Plan, Inc., 241 F.R.D. 618, 621–22 (S.D. Ill.
2007); Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y.
1998) ("The reach of a subpoena issued pursuant to Fed.R.Civ.P.
45 is subject to the general relevancy standard applicable to
discovery under Fed.R.Civ.P. 26(b)(1)."). Relevancy under this
rule is construed broadly to encompass "any matter that bears on,
or that reasonably could lead to other matter[s] that could bear
on, any issue that is or may be in the case." Chavez v. Daimler–

Chrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct.
2380, 2389, 57 L.Ed.2d 253 (1978)). Even when information is not
directly related to the claims or defenses identified in the
pleadings, the information still may be relevant to the broader
subject matter at hand and meet the rule's good cause standard.

Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D.
496, 502 (S.D. Ind. 2003).1
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The court notes that the plaintiff included this standard verbatim from the court’s

previous Opinion and Orders without proper citation.
(9

th

See Black’s Law Dictionary 1267

ed. 2009) (Plagiarism "The deliberate and knowing presentation of another person's

original ideas or creative expressions as one's own.").

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The defendants' motion fails on several accounts.

To begin,

Local Rule 37.1 states:
A party filing any discovery motion must file
a separate certification that the party has
conferred in good faith or attempted to confer with other affected parties in an effort
to resolve the matter raised in the motion
without court action. The certification must
include:
(1)

the date, time, and place of
any conference or attempted
conference; and

(2)

the names of the parties participating in the conference.

The defendants did not attach a certificate stating that
they attempted to resolve the dispute in good faith before
seeking relief from the court as required by Local Rule 37.1.
The court may deny any motion for this reason.
37.1(b)

Local Rule

Nor does the record reflect that the defendants made any

attempt to resolve the dispute.

The defendants do not represent

that they attempted to engage in any discussion with the plaintiff concerning this matter.

Rather, the defendants provided the

plaintiff with a copy of their motion to quash when the plaintiff
arrived to pick up the subpoenaed documents.
Next, the defendants bear the burden of proof to establish
that the information sought is privileged.

The defendants’

motion includes one conclusory statement that the information
sought is privileged without citing to any specific privilege.
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Without more, the defendants have failed to meet their burden to
establish that any privilege is applicable and precludes production.
The defendants also complain that the subpoena was untimely
and did not provide adequate time to respond as required by
Federal Rule of Civil Procedure 34.

Rule 34 states that the

person served with the subpoena must respond within 30 days
unless the parties stipulate to a shorter or longer time or the
party is ordered by the court to respond by a different date.
However, the amount of time provided either by agreement or court
order must be "reasonable."

Rule 45 ("[T]he issuing court must

quash or modify a subpoena that: (1) fails to allow reasonable
time to comply").
Here, the district court ordered discovery to be completed
before the March 6, 2012 hearing.

The plaintiff served the

subpoena in a timely manner following the order permitting
additional discovery and afforded the defendants 15 days to
respond.

The court finds that this was a reasonable amount of

time in light of the scheduled hearing date.

The defendants did

not seek additional time from the court and did not seek to
modify the subpoena. Instead, the defendants filed their own
untimely objections.

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Rule 45 states that an objection must be made "the earlier
of the time specified for compliance or 14 days after the subpoena is served."

The plaintiff served the subpoena on February

2, 2012, rendering the objections due by February 16, 2012.

GCSC

did not serve written objections to the production and inspection
of documents and the other defendants served their objections on
February 17, 2012.
The defendants’ motion fails both procedurally and substantively.

The defendants did not comply with Rule 37 and provide a

certificate explaining their attempts to resolve the dispute in
good faith, nor did the defendants cite a privilege or explain
why the information sought is not subject to discovery.

For

these reasons, the Motion to Quash Subpoena [DE 60] filed by the
defendants, Gary Community School Corporation, Dr. Myrtle Campbell, and Dr. Cordia Moore, on February 17, 2012, is DENIED.

The

defendants are ORDERED to produce the subpoenaed documents within
14 days of this Order.
ENTERED this 7th day of June, 2012

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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