Lee v. Elkhart City of et al

Filing 43

OPINION AND ORDER granting 26 Motion to Quash Subpoena of Frankling Breckenridge; granting 21 Motion to Quash filed by Truth Publishing Company; and denying Motions for Order to Show Cause 36 , 38 . Signed by Magistrate Judge Andrew P Rodovich on 4/22/2013. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WILLIAM A. LEE, SR.
Plaintiff,
v.
CITY OF ELKHART, et al.,
Defendants.

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2:12-CV-25-TLS-APR

OPINION AND ORDER
This matter is before the court on the Defendants’ Motion to Quash Subpoena of Franklin
Breckenridge [DE 21] filed on March 11, 2013, the Motion to Quash [DE 26] filed by non-party
Truth Publishing Company on March 19, 2013, and the motions for Rule to Show Cause Order
[DE 36 & 38]. For the following reasons, the Defendants’ Motion to Quash Subpoena of
Franklin Breckenridge [DE 21] is GRANTED, the Motion to Quash [DE 26] filed by Truth
Publishing Company is GRANTED, and the motions for Rule to Show Cause Order [DE 36 &
38] are DENIED.

Background
The plaintiff, William Lee, was employed by the Elkhart Police Department. During his
employment, he faced allegations that he had sex, while on-duty, with a woman who was the
subject of an arrest warrant. The Elkhart Board of Public Safety held two hearings in February
2011 concerning Lee’s discipline and proposed discharge. A reporter from non-party Truth
Publishing Company, Emily Monacelli, covered the hearing. The Truth published three stores
about the hearings.
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On January 17, 2012, Lee filed a complaint against the Elkhart Police Department,
alleging that he was discriminated against based on his race and disability, that the Elkhart
Police Department violated his rights under the Family Medical Leave Act, and that the Chief of
Police, Dale Pflibsen, and Richard Hubbard, a psychologist contracted by the City of Elkhart to
provide professional services to the city’s police officers, conspired to deny his FMLA rights and
to cause the Board of Public Safety to terminate his employment. During the course of
discovery, Lee sent a subpoena to the Truth, asking it to produce statements, notes, tape
recordings, records, reports, files, correspondence, CD’s, summaries, dates, telephone records,
and transcripts of disclosed sources, pertaining to the three articles it published relating to him.
Lee separately sent the Truth a notice of deposition. The Truth now moves to quash the
subpoena, arguing that there were both procedural and substantive errors.
Lee also sought to take the deposition of Franklin Breckenridge, a member of the City of
Elkhart Board of Public Safety. Lee did not serve the notice until six weeks before the discovery
period ended. Breckenridge was unavailable on the dates Lee’s counsel proposed for the
deposition. Lee states that Breckenridge’s counsel never offered a new date, although
Breckenridge’s counsel asserts that she recommended a new date but that Lee’s counsel would
not return her correspondence. Breckenridge now moves to modify the subpoena so it can be
scheduled on a mutually convenient date.

Discussion
Federal Rule of Civil Procedure 37(a)(1) requires that a motion for an order compelling
disclosure or discovery “must include a certification that the movant has in good faith conferred
or attempted to confer with the person failing to make disclosure or discovery in an effort to
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obtain it without court action.” Local Rule 37.1 requires that such certification reciting the date,
time, and place of the conference or attempted conference and the names of all persons
participating “shall be made in a separate document filed contemporaneously with the motion.”
L.R. 37.1(c).
The motions to quash did not include the requisite certificate of good faith efforts to
resolve the dispute without court intervention. However, both parties attached copies of their
correspondence and have demonstrated to the court that such conferences occurred. What is not
clear is whether all parties consulted in good faith. The defendants never intended to deny Lee
the opportunity to conduct Breckenridge’s deposition. Although it appears there was some
difficulty scheduling a mutually convenient date, the record reflects that Lee waited until the end
of discovery before attempting to coordinate the first date. Defense counsel sent numerous emails to Lee’s counsel that went unanswered. Although Lee’s counsel criticizes defense counsel
for failing to provide exact dates, Lee’s counsel likewise did not propose alternative dates and
did not return correspondence. Such a failure to return at least four e-mails that defense counsel
sent attempting to coordinate a new date hardly reflects a good faith effort to resolve the dispute.
Moreover, defense counsel represents that she proposed at least one date, March 18, 2013, when
Breckenridge was available. Because the court finds that Lee’s counsel did not act in good faith
to coordinate a mutually agreeable time for the deposition, the court GRANTS the defendants’
request to continue the deposition. The parties are directed to confer in good faith and to find a
mutually agreeable time. To allow the parties time to conduct this deposition, the court
EXTENDS the discovery deadline until May 31, 2013. Lee’s motion for order to show cause
against Breckenridge for failing to attend the deposition is DENIED.

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The Truth does not seek simply to reschedule the deposition, rather, it asks the court to
quash the subpoena and find that it does not need to attend the deposition or provide the
requested documents. Federal Rule of Civil Procedure 45(c)(3)(A)(iii)-(iv) states that “[o]n
timely motion, the Court by which a subpoena was issued shall 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 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 seek relevant information. See Stock v. Integrated Health Plan, Inc., 241 F.R.D. 618,
621-622 (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. DaimlerChrysler
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).
In setting forth the standard under which the court should determine whether to quash the
subpoena Lee issued to the Truth, the Truth argues that media sources are entitled to greater

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protection. However, “[i]n McKevitt v. Pallasch, 339 F.3d 530, 532–33 (7th Cir. 2003), the
Seventh Circuit specifically rejected the argument that the First Amendment provides journalists
special protection against subpoenas, at least with respect to information from non-confidential
sources.” Hobley v. Burge, 223 F.R.D. 499, 502 (N.D. Ill. 2004). The Seventh Circuit stated
that “it seems to us that rather than speaking of privilege, courts should simply make sure that a
subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable
in the circumstances, which is the general criterion for judicial review of subpoenas.” McKevitt,
339 F.3d at 533.
In support of its argument, the Truth first cites to Longs v. Lebo, 2009 WL 799533 (N.D.
Ind. March 24, 2009). This case specifically rejected the idea of a federal privilege to media
sources when the information sought was not from a confidential source. Longs, 2009 WL
799533 at *3. Instead, the court went on to analyze whether the subject of the subpoena was
shielded from production by an Indiana statute protecting journalists from disclosing sources of
information. Longs, 2009 WL 799533 at *3. (citing Ind. Code § 34-46-4-1). However, this
case is before the court on a federal question, and thus Indiana’s privilege law does not apply.
The Truth also refers to the court to Patterson v. Burge, 2005 WL 43240, *4 (N.D. Ill.
Jan. 6, 2005). In Patterson, the court did not state that media was subject to special protections.
Rather, the court specifically stated that it analyzed the news organizations’ motion to quash
under the traditional standards of Rule 45. The court did note that non-parties are not treated like
parties in the discovery context, and for this reason, the court should afford the subpoenaed party
greater protection. Patterson, 2005 WL 43240 at *1. The court explained that the possibility of
relevance may not be enough and proceeded to weigh the need for the material against the

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burden on the news organization. Patterson, 2005 WL 43240 at *1 & *5.
“In the context of third party discovery, courts should be especially careful in protecting
the parties from excessive or oppressive discovery.” Moore v. PlasmaCare, Inc., 2012 WL
602623, *2 (S.D.Ind. Feb.23, 2012). See also Charles v. Quality Carriers, Inc., 2010 WL
396356, *1 (S.D.Ind. Jan.28, 2010). “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.” Charles, 2010 WL 396356 at *1
(quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.1998)). When determining
whether to enforce a discovery request, the court must weigh the need for the information, the
breadth of the request, the time period the discovery covers, the particularity of the documents,
and the burden imposed. Charles, 2010 WL 396356 at *1. “[R]elevance alone may not be
enough to justify a subpoena, particularly given that the undue burden calculus is more
protective of nonparties than it is for parties.” Charles, 2010 WL 396356 at *1.
The Truth has not demonstrated that news media organizations are entitled to a privilege
or special protection. Rather, when non-confidential information is requested, the guiding
Seventh Circuit case directs the court to treat the subpoena as it would any other and to assess
whether the request is reasonable. Instead, the court will apply the standard for evaluating
subpoenas served on non-parties.
The court begins by considering the need for the information. The Truth argues that the
information is available from another source, the official records from the board’s hearing. Lee
responds the Truth also published statements made outside the hearing that are not part of the
public record, not available on the hearing transcript, and otherwise not available to him.

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However, Lee did not identify anything in the Truth’s news stories that was not available in the
public record, nor did Lee demonstrate why he needs the information and how the information
sought is relevant. Lee made broad, vague statements that The Truth “published information
from disclosed sources that is highly relevant to Plaintiff’s conspiracy claim” and that he would
benefit “[b]y seeking evidence through the deposition regarding the process that reporters for the
Truth must follow in preparing a news article . . .” It is not clear what this benefit would be or
what information the articles contained that Lee has not or cannot obtained from other sources.
Moreover, Lee alleged that Plibsen and Hubbard conspired against him to have the Board
discharge him. The articles explain what occurred at the Board’s hearings, but it is not clear
what relevance they have to Plibsen and Hubbard’s actions. Lee made no effort to explain the
potential relevance of the information he seeks. For these reasons, Lee not shown that the
information is relevant or that he has a significant need for the information.
Lee asked the Truth to produce statements, notes, tape recordings, records, reports, files,
correspondence, CD’s, summaries, dates, telephone records, and transcripts of disclosed sources,
pertaining to the three articles it published relating to him. Although the amount of information
sought may not be extravagant, the court is hesitant to place a burden on third parties without
any demonstration of the relevance or need for the information.
Additionally, a party cannot compel the presence of a nonparty at a deposition without
serving a subpoena. Bueker v. Atchison, Topeka and Santa Fe Ry. Co., 175 F.R.D. 291, 292
(N.D. Ill. 1997). Federal Rule of Civil Procedure 45(a)(1)(A)(iii) states that every subpoena must
“command each person to whom it is directed to do the following at a specified time and place:
attend and testify; produce designated documents, . . . “ The subpoena Lee served on the Truth

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only commanded the production of documents and did not command the presence of a
representative of the Truth at a deposition. For this reason, the subpoena did not comply with
the requirements of Rule 45, and the Truth cannot be compelled to submit to a deposition.
Based on the foregoing, the Defendants’ Motion to Quash Subpoena of Franklin
Breckenridge [DE 21] is GRANTED, the Motion to Quash [DE 26] filed by Truth Publishing
Company is GRANTED, and the motions for Rule to Show Cause Order [DE 36 & 38] are
DENIED.
ENTERED this 22nd day of April, 2013

/s/ Andrew P. Rodovich
United States Magistrate Judge

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