ALERDING CASTOR HEWITT LLP v. FLETCHER et al

Filing 87

ORDER granting Non-Parties' Wayne R. Golomb and Graceia Golomb #61 Motion to Quash. See Order. Copy to Carole Wockner and Paul Fletcher via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 12/5/2017. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALERDING CASTOR HEWITT LLP,

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Plaintiff,
v.
PAUL FLETCHER,
CAROLE WOCKNER,
Defendants.

CAROLE WOCKNER,
PAUL FLETCHER,
Counter Claimants,
v.
ALERDING CASTOR HEWITT LLP,
Counter Defendant.

WAYNE GOLOMB,
GRACEIA GOLOMB,
Miscellaneous.

No. 1:16-cv-02453-RLY-MJD

ORDER ON MOTION TO QUASH
This matter comes before the Court on a Motion to Quash, filed by non-parties Wayne R.
Golomb and Graceia Golomb (collectively “the Golombs”). [Dkt. 61.] The Defendants and
Counter-Plaintiffs in this case issued a subpoena to National Financial Services, LLC d/b/a
Fidelity Investments (“Fidelity Investments”) seeking financial documents relating to the
Golombs. The Golombs request the Court to quash the subpoena because the subpoena is

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procedurally improper and seeks information patently irrelevant to either Plaintiff’s or
Defendants’ claims and defenses in the instant lawsuit. For the reasons set forth below, the
Court GRANTS the Golombs’ Motion.
I.

Background

This is a breach of contract and unjust enrichment action brought by Alerding Castor
Hewitt, LLP (“ACH”) against its former clients, Paul Fletcher and Carole Wockner. ACH alleges
Defendants failed to remit payment for the legal services that ACH provided Defendants in
Defendants’ lawsuit against Mark Zupan (the “Zupan lawsuit”). [Dkt. 1] Defendants
counterclaim that ACH failed to provide adequate legal services to Defendants during its
representation which led to Defendants’ loss in the Zupan lawsuit. [Dkt. 14.]
On July 27, 2017, Defendants issued a subpoena to Fidelity Investments seeking:
1. All Symphony Log records for customer/client Wayne Golomb between
January 1, 1997, and March 31, 2016.
2. All records of deposits and transfers into any and all accounts at National
Financial Services, LLC and/or Fidelity Investments held by Wayne R.
Golomb and/or Garceia M. Voyles, and/or to the benefit of Wayne R. Golomb
and/or Graceia M. Voyles, including, but not limited to, wired or electronic
transactions or otherwise routed through UMB routing no. 101205681
between January 2004 and December 2009.
[Dkt. 61-2 at 4 (emphasis in original).] Defendants argue the subpoenaed documents are
necessary to show that ACH neglected opportunities to obtain meaningful discovery in their
forgery case against Mark Zupan and also neglected to both pursue and follow-up with new
discovery from Wayne Golomb’s deposition in a related lawsuit against Defendants’ former
counsel and Wayne Golomb (the “Golomb lawsuit”).
The Golombs argue the subpoena is procedurally improper and seeks information
patently irrelevant to either ACH or Defendants’ claims and defenses in the instant lawsuit. In
response, Defendants argue that the Golombs filed their motion to quash in the wrong court
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because this Court does not have the power to quash the production of documents that would
occur in the Central District of California. Defendants also contend that the subpoenaed
documents are proportionately relevant to Defendants’ claims in the instant matter and are
Fidelity Investments’ business records over which the Golombs have no standing to object.
II.

Discussion

As an initial matter, the Court notes that the instant motion is not properly designated as a
motion to quash the subpoena because the subpoena in question is not directed at the Golombs.
[See Dkt. 61-2.] As a general rule, only the person subject to a subpoena has standing to move to
quash or modify a subpoena pursuant to Federal Rule of Civil Procedure 45. See Uppal v.
Rosalind Franklin Univ. of Med. & Sci., 124 F. Supp. 3d 811, 815 (N.D. Ill. 2015). Here, the
person subject to the subpoena is Fidelity Investments. [Dkt. 61-2.] Thus, only Fidelity
Investments has standing to bring a motion to quash the subpoena.
However, “[d]istrict courts have found that a [person] who lacks standing under Rule 45
to challenge a subpoena may ‘achieve a similar end under Rule 26’ by requesting a protective
order relating to document requests served on a [non-party].” Allstate Ins. Co. v. Electrolux
Home Prods., Inc., No. 16–CV–4161, 2017 WL 5478297, at *3 (N.D. Ill. Nov. 15, 2017)
(quoting Mfr. Direct, LLC v. Directbuy, Inc., No. 2:05 CV 451, 2007 WL 496382, at *3 (N.D.
Ind. Feb. 12, 2017)); see also Fed. R. Civ. Pro. 26(c). Here, the subpoena seeks documents
containing the Golombs’ personal financial information. [Dkt. 61-2 at 4.] Thus, although the
Golombs lack standing to quash the subpoena, the Golombs have standing to move for a
protective order pursuant to Rule 26. Accordingly, in the interest of judicial economy, the Court
will treat this motion to quash as a motion for a protective order and will proceed to consider the
merits of the Golombs’ motion.

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The scope of material obtainable by a Rule 45 subpoena generally is measured by the
same broad relevancy standard applicable to party discovery under Rule 26(b)(1). Arthrex, Inc. v.
Parcus Med., LLC, 2011 WL 6415540, at *3 (S.D. Ind. Dec. 21, 2011); Graham v. Casey’s Gen.
Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002). Rule 26(b)(1) provides that a party “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. Pro. 26(b)(1). The party seeking the
discovery bears the burden to prove that the requested documents are both relevant and
proportional to the needs of the case. Id.
Here, Defendants counterclaim that ACH committed legal malpractice during its
representation of Defendants in the Zupan lawsuit. [Dkt. 14.] Defendants argue that the
Golombs’ financial records would be necessary to prove their legal malpractice claim against
ACH because the records show that ACH failed to pursue and follow-up with new discovery
from Mr. Golomb’s deposition on March 23, 2016 where Mr. Golomb testified he received
$30,000 from Mr. Taylor’s non-probate assets. [Dkt. 75 at 3.]
In analyzing whether the subpoenaed documents are relevant to Defendants’ legal
malpractice claim against ACH, the Court will apply Indiana law because neither Defendants nor
ACH include a choice of law analysis in their briefs. See Price Waicukauski & Riley, LLC v.
Murray, 47 F. Supp. 3d 810, 818 (S.D. Ind. 2014) (citing ECHO v. Whitson Co., 52 F.3d 702,
707 (7th Cir. 1995) (noting that the court should apply the forum state’s law in the absence of any
argument to the contrary)). In Indiana, to prove a legal malpractice claim, a party must establish:
(1) employment of the attorney (duty); (2) failure of the attorney to exercise ordinary skill and
knowledge (breach); (3) proximate cause (causation); and (4) loss to the party (damages).
Waicukauski & Riley, LLC, 47 F. Supp. 3d at 819. Causation is an essential element that must be

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proven in a legal malpractice case. Id. To show causation, the claimants must prove, by a
preponderance of the evidence, that, but for the attorney’s alleged negligence, the claimants
would have prevailed on their claims in the Zupan lawsuit. Id. at 823.
Here, Defendants argue that but for ACH’s failure to obtain meaningful evidence, in this
instance the subpoenaed documents in issue, Defendants would have prevailed in the Zupan
lawsuit. [Dkt. 75.] This argument is without merit. When ACH began its representation of
Defendants in the Zupan lawsuit in October 2012, discovery was already closed and a deadline
for a response to Zupan’s motion for summary judgment was approaching. [Dkt. 14 at 24.] See
also Fletcher v. Nat’l Fin. Servs., 4 N.E.3d 1225 (Table), 2014 WL 458298, at *7–8 (Ind. Ct.
App. Feb. 4, 2014) (noting that the trial court in the Zupan lawsuit closed discovery on
September 10, 2012); Lake County Indiana, Fletcher v. Fid. Invs. et al,
https://www.lakecountyin.org/portal/user/anon/page/online-docket-welcome (insert "45D110902-PL-00024" into "Case Number" search field and press "Search"; click on "Dockets" tab;
click on "Next" and proceed to see the entries dated "2012-10-02" ) (demonstrating that Michael
Alerding and other counsel from ACH did not appear in the Zupan lawsuit until October 2, 2012,
when they filed their appearances with the Lake County Superior Court).
ACH thereafter undertook efforts to reopen discovery, to the extent of appealing the trial
court’s refusal to reopen discovery in the case. ACH’s effort to reopen discovery failed after the
Indiana Court of Appeals affirmed the trial court’s decision to close discovery. Fletcher v. Nat’l
Fin. Servs., 4 N.E.3d 1225 (Table), 2014 WL 458298, at *7–8 (Ind. Ct. App. Feb. 4, 2014).
Specifically, the court reasoned that:
Fletcher claims that the trial court abused its discretion when it closed discovery.
Fletcher claims that the trial court should have continued discovery to allow him
to seek out-of-state discovery. We disagree …. Fletcher had over three years, and
four separate counsel, to conduct his discovery. That the trial court decided to
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finally close discovery after this amount of time was not an abuse of the trial
court’s considerable discretion in such matters.
Id.
Defendants maintain that the trial court in the Zupan lawsuit “did allow additional
evidence that [Defendants] gained in early July 2016 through [their] legal malpractice case to be
admitted as evidence in [their] underlying case to be presented at trial by [ACH] on July 18,
2016.” [Dkt. 75 at 5 (emphasis in original).] However, Defendants did not cite any court order to
support their position. Furthermore, even if the trial court allowed discovery obtained in a
separate malpractice case to be used at the trial of the underlying matter, there is no evidence that
ACH had any involvement in that separate malpractice action. If the discovery sought by the
instant subpoena had been obtained in the separate malpractice action, then the discovery sought
by the subpoena would already be in Defendants’ hands and would therefore be cumulative; if
not, Defendants have demonstrated no way ACH could have obtained the evidence for use in the
Zupan lawsuit.
Because discovery was closed when ACH started representing Defendants in the Zupan
lawsuit, ACH would not have been able to obtain the Golombs’ financial records as evidence to
be presented at trial in that case. As a result, the Golombs’ financial records are not relevant to
Defendants’ legal malpractice claim against ACH and thus are not discoverable. Accordingly,
the Court GRANTS the Golombs a protective order preventing the production of the subpoenaed
documents.
III.

Conclusion

For the foregoing reasons, the Court hereby GRANTS Non-parties Wayne R. Golomb
and Graceia Golomb’s Motion to Quash. [Dkt. 61.]

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In addition, the Golombs request that the Court order Defendants to pay all of the
Golombs’ undue expenses and attorneys’ fees related to the Defendants’ subpoena. Federal Rule
of Civil Procedure 37(a)(5) provides that if a motion for protective order is granted, “the court
must, after giving an opportunity to be heard, require the party or deponent whose conduct
necessitated the motion … to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.” Here, the Court grants the Golombs a protective order. Thus,
the Golombs are entitled to reasonable expenses and fees related to the Defendants’ subpoena.
Accordingly, the Golombs shall file a brief to show their expenses and fees related to the
Defendants’ subpoena within twenty-one (21) days from the date of this Order. Defendants shall
have twenty-one (21) days after service of the motion to respond. The Golombs shall have
fourteen (14) days thereafter to file any reply.
SO ORDERED.

Dated: 5 DEC 2017

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Distribution:

CAROLE WOCKNER
1203 E. Cota Street
Santa Barbara, CA 93103
PAUL FLETCHER
1203 E. Cota Street
Santa Barbara, CA 93103
Michael J. Alerding
ALERDING CASTOR LLP
[e-mail]
Michael E. Brown
KIGHTLINGER & GRAY LLP
[e-mail]
George M. Plews
PLEWS SHADLEY RACHER & BRAUN LLP
[e-mail]
Anthony Roach
ALERDING CASTOR HEWITT LLP
[e-mail]
Joanne Rouse Sommers
PLEWS SHADLEY RACHER & BRAUN LLP
[e-mail]

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