KEATON v. HANNUM et al

Filing 141

ORDER denying Pltf's 88 Second Motion to Compel; denying Deft Zook's 96 Second Motion for Protective Order. The Court ORDERS Zook to produce in camera Documents 3-7 on her privilege log, as specified supra, within seven (7) days of the date of this order (see Order for additional information) c/m. Signed by Magistrate Judge Mark J. Dinsmore on 4/29/2013. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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MARK KEATON,
Plaintiff,
vs.
DAVE HANNUM,
LESLIE SLONE,
CHRISTINE ZOOK,
REBA GARDNER,
JACKIE DAKICH,
Defendants.

No. 1:12-cv-00641-SEB-MJD

ORDER ON PLAINTIFF’S SECOND MOTION TO COMPEL [DKT. 88] AND
DEFENDANT ZOOK’S SECOND MOTION FOR PROTECTIVE ORDER [DKT. 96]
On February 7, 2013, Plaintiff Mark Keaton filed a Second Motion to Compel. [Dkt. 88.]
Defendant Christine Zook’s responded to the Second Motion to Compel on February 22, 2013
[Dkt. 95]. The Motion was heard March 5, 2013.
On February 25, 2013, Zook filed a second Motion for Protective Order [Dkt. 96].
Keaton responded thereto on March 15, 2013 [Dkt. 108]. Zook filed a reply on March 21, 2013
[Dkt. 118]. Because this Second Motion for Protective Order was not fully-briefed at the time of
the March 5, 2013 hearing, it was not heard at that time.1

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Keaton objects to Zook’s filing of a second Motion for Protective Order after Keaton field a Second Motion to
Compel on the same subject. Keaton requests that the Court “strike Zook’s untimely motion for protective order.”
[Dkt. 108 at 2.] The Court notes that it is unnecessary for the parties to file duplicative motions when the subject of
the motion is already before the Court; however, the Court does not find that Zook’s Second Motion for Protective
Order was “untimely” or that it should be stricken from the record. The Court does caution Zook to be more
judicious with the parties’ and the Court’s resources when filing a motion that is duplicative of an already-pending
motion; however, if Zook (or any party) seeks relief from the Court she must do so with a motion. [See S.D. Ind.
L.R. 7-1.]

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I.

Background.
Keaton’s Second Motion to Compel and Zook’s Second Motion for Protective Order deal

with the same documents – eleven emails that Zook produced in Gmail “conversation mode” (or
with “auto redaction” as described by Keaton). Zook produced selected emails in a string or
thread so that only the email that related to Keaton was produced. Zook argues that the prior
communications were not produced because they did not directly relate to Keaton. Keaton
argues that he is entitled to the prior communications to understand the basis for the
communication that does relate to Keaton. Because both motions deal with the same issue, the
Court will address them together.
At issue in both motions are eleven emails attached to Keaton’s Second Motion to
Compel (Exs. A – L). Zook provided a privilege log with her Reply in Support of Zook’s
Second Motion for Protective Order [Dkt. 118] that describes all of the emails in the thread
associated with Exhibits A through L.
After reviewing Zook’s privilege log, it appears that Zook has produced the
communications that would constitute the “[Quoted text hidden]” for Exhibits G-L. The Court
finds that, based on Zook’s representation in the privilege log [Dkt. 118-1], no dispute remains
with respect to Exhibits G-L.

Additionally, at the hearing on March 5, 2013, the parties

indicated that there was no longer an issue with respect to Exhibit A, the July 10, 2009 emails
between Zook and Sauer. As a result, the only exhibits for which the quoted text (or previous
email communications in the same email conversation) is at issue are Exhibits B-F.2

2

It appears that Zook included Exhibit A twice in her privilege log as document 1 and document 2. The log for
document 2 contains all of the same entries by date and time as document 1 with the exception of the first document
dated 7/10/09 from Sauer to Zook.

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II.

The Requested, Yet Withheld, Communications Are Separate Communications.
Keaton’s Second Motion to Compel appears to be based, in part, on confusion related to

the method of producing emails by Zook. As can be seen in Exhibits B-F, those emails were
produced with the annotation “[Quoted text hidden]” at the end of the email communication. As
a result, it understandably appeared to Keaton that Zook had redacted the produced
correspondence without providing a privilege log.3
As is explained by Zook and detailed in her privilege log, the “[Quoted text hidden]” is
nothing more than previous email communications in the same string of emails or during the
same “conversation” in “thread form.” Had Zook produced these emails with conversation mode
turned off – i.e., not in a thread form where Gmail notes that there are prior email
communications in the same “string” of emails – then the notation “[Quoted text hidden]” would
not have appeared. The Court understands that it was Zook’s intention to only produce the email
that related to Keaton and not the prior email communications that she contends are irrelevant.
Keaton’s argument for production of the prior email communications in the same thread
relates to the Rule of Completeness or Fed. R. Evid. 106, which provides:
If a party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other part – or any other
writing or recorded statement – that in fairness ought to be considered at the same
time.
Fed. R. Evid. 106. Zook’s method of production makes it appear that the email communications
are incomplete and were redacted. Had Zook produced the emails in an non-threaded manner,
this concern may never have manifested itself.

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The Court understands that Zook did not produce a privilege log because the Request for Production of Documents
at issue, number 5, requested only correspondence “relating in any way to plaintiff” and the email communications
in the same thread that did not relate to Keaton were not responsive to Keaton’s request and thus, not produced.

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Zook has produced a privilege log indicating that the prior communications are irrelevant
to Keaton and the subject of this dispute. Based on the representations of Zook and her counsel,
the Court is inclined to believe that these prior communications between Zook and third parties
are irrelevant to this matter. However, to alleviate any concerns that Keaton may have related to
the Rule of Completeness and/or relevancy, the Court ORDERS Zook to produce the following
documents identified on her privilege log [Dkt. 118-1] for an in camera review:
Document 3 (including 3-1 through 3-5)
Document 4 (including 4-1 and 4-2)
Document 5 (including 5-1 through 5-12)
Document 6 (including 6-1 through 6-6)
Document 7 (including 7-1 through 7-8)
The Court will review Documents 3-7 in camera and to the extent that any of the foregoing
documents are relevant to this dispute or must necessarily be produced to satisfy Fed. R. Evid.
106 and the Rule of Completeness, the Court will order them produced.
III.

Conclusion
The Court DENIES Plaintiff’s Second Motion to Compel and DENIES Defendant

Zook’s Second Motion for Protective Order. The Court ORDERS Zook to produce in camera
Documents 3-7 on her privilege log, as specified supra, within seven (7) days of the date of this
order.

Date:

04/29/2013
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

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Distribution:
MARK KEATON
PO BOX 11208
Ft. Wayne, IN 46856

Don R. Hostetler
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

David L. Ferguson
FERGUSON & FERGUSON
[e-mail]

James R. A. Dawson
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Kate E. Shelby
INDIANA ATTORNEY GENERAL
[e-mail]

David B. Hughes
INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
[e-mail]
Daniel Mark Witte
TRAVELERS STAFF COUNSEL OFFICE
[e-mail]

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