Rittgers v. Hale et al

Filing 65

MEMORANDUM AND ORDER granting in part 48 Motion to Compel; granting in part and denying in part 59 Motion to Quash. Signed by Magistrate Judge Kenneth G. Gale on 1/9/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEBRA RITTGERS,

)
)
Plaintiff,
)
)
v.
)
)
MELVIN HALE,
)
)
Defendant.
)
______________________________ )

Case No. 17-4019-SAC-KGG

MEMORANDUM & ORDER ON MOTION TO COMPEL AND
MOTION RELATING TO THIRD-PARTY SUBPOENAS
Now before the Court is the “Motion to Quash or Modify Defendant Melvin
Hale’s Subpoenas to Produce Documents, Information, or Objections” filed by
third-parties Emporia State University (“ESU”) and ESU President Allison Garrett
regarding three of Defendant’s subpoenas. (Doc. 59.) Also pending is the “Motion
to Compel Compliance with Subpoena” filed by Defendant. (Doc. 48.) This
motion relates to the first of the three subpoenas addressed in the third-party
Motion to Quash. Having reviewed the submissions of the parties, the Court is
prepared to rule.
FACTS
Plaintiff filed the present action in the District Court of Lyon County,
Kansas, alleging Defendant defamed her by accusing her of writing racial slur on a

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student’s notebook on the ESU campus. The case was removed to federal court by
Defendant, who represents himself pro se and also filed a Motion to Proceed
Without Prepayment of Fees (IFP Application, Doc. 3, sealed), which was granted
by the Court (Doc. 6).
Rittgers previously brought the same claim as a
counterclaim in an action filed by Melvin Hale as a
plaintiff in this court in Case No. 15-4947. That case was
filed on October 14, 2015. Rittgers was first named as a
defendant in that case in an amended complaint filed on
November 4, 2015. She filed the counterclaim, but not as
part of an answer, on April 5, 2016. Case No. 15-4947,
Doc. No. 33. The court dismissed the counterclaim
without prejudice on June 15, 2016[,] because the
counterclaim was not asserted in an answer to the
controlling complaint; it was simply filed as a separate
pleading titled “COUNTERCLAIM BY DEFENDANT
DEBRA RITTGERS.” In the same order, the court
dismissed defendant Rittgers from the case, pursuant to a
motion to dismiss filed on behalf of Rittgers and other
defendants. So, as explained in an order denying
Rittgers’ motion to alter or amend judgment, Rittgers was
not able to reassert the counterclaim in Case No.
15-4947, because she was dismissed as a party in the
case. See Case No. 15-4947, Doc. No. 66.
(See Doc. 11, at 1-2.)
Defendant filed a Motion to Dismiss (Doc. 4), arguing that he did not
knowingly make a false statement, that the lawsuit was barred by the statute of
limitations, and that it was an “affront to free speech.” (See generally Doc. 5.)
The District Court subsequently denied the dispositive motion. (Doc. 11.)

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The present motion is brought by non-parties ESU and its president Allison
Garrett (hereinafter “Movants”). (Doc. 59.) Movants seek to quash or modify
three subpoenas Defendant has addressed to them, each discussed more
specifically infra.
ANALYSIS
A.

Legal Standards.
Fed.R.Civ.P. 26(b) states that
[p]arties 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, considering the
importance of the issues at state 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
benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.

As such, the requested information must be nonprivileged, relevant, and
proportional to the needs of the case to be discoverable. “Federal Rule of Civil
Procedure 26(c) confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection is required.” Layne
Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010) (quoting
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).

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Fed.R.Civ.P. 45 governs subpoenas, with section (d) of that Rule relating to
“protecting a person subject to a subpoena” as well as “enforcement.” Subsection
(d)(1) of the Rule states that
[a] party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is
required must enforce this duty and impose an
appropriate sanction – which may include lost earnings
and reasonable attorney's fees – on a party or attorney
who fails to comply.
Subsection (d)(2)(B) relates to objections to subpoenas and states that
[a] person commanded to produce documents or tangible
things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing, or sampling any or all of the
materials or to inspecting the premises – or to producing
electronically stored information in the form or forms
requested. The objection must be served before the
earlier of the time specified for compliance or 14 days
after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded
person, the serving party may move the court for
the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in
the order, and the order must protect a person who
is neither a party nor a party’s officer from
significant expense resulting from compliance.

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Subsection (d)(3)(A) requires the District Court to quash or modify a subpoena
that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply
beyond the geographical limits specified in Rule 45(c); (ii) requires disclosure of
privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden. Thus, the Court must balance Plaintiffs’
needs for the information with the potential for undue burden or expense imposed
on the third party respondent. The Court will address each subpoena in turn.
B.

Subpoena No. 1.
Subpoena No. 1 seeks “[t]he complete document that ESU described on

September 9, 2015[,] as a 350-page investigation into the allegations of a hate
crime reported by Dr. Melvin Hale and Angelica Hale, and all the documents
produced by the independent reviewers that were hired by ESU.” (Doc. 59-1.)
Movants argue that this subpoena, served on August 9, 2017, is facially deficient
and seeks privileged material. (See Doc. 59, at 3-7.) Defendant has also moved to
compel compliance with the subpoena. (Doc. 48.)
1.

Alleged facial deficiencies.

As to facial deficiencies, Movants argue the subpoena should be quashed
because Defendant failed to “set out the text of Rule 45(d) and (e)” pursuant to
Fed.R.Civ.P. 45(a)(1)(iv). (Id., at 4 (internal citations omitted).) Movants have
not cited – and the Court is unaware of – any Tenth Circuit authority quashing a

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subpoena in its entirety based on this highly technical rule. The Court finds it
unlikely that movants, who are represented by counsel, were unable to comply with
the subpoena because it failed to regurgitate certain language contained in Federal
Rule 45. Although the rule has a valid purpose and obviously remains in effect,
the Court is unwilling, in this particular instance, to grant such drastic relief as
quashing the subpoena in its entirety for this technical oversight.1
Movants also contend that no notice of intent to serve the subpoena was filed
in violation of Fed.R.Civ.P. 45(a)(4). That Rule controls “Notice to Other Parties
Before Service” of a subpoena and states that “[i]f the subpoena commands the
production of documents, electronically stored information, or tangible things . . .
then before it is served on the person to whom it is directed, a notice and copy of
the subpoena must be served on each party.” (Emphasis added.) The Advisory
Committee notes to the 2007 Amendment to Rule 45 states that “[c]ourts have
agreed that notice must be given ‘prior’ to the return date, and have tended to
converge on an interpretation that requires notice to the parties before the subpoena
is served on the person commanded to produce or permit inspection.”
It is clear from the language of the Rule that it is intended to require notice
to parties to the lawsuit for subpoenas served on third parties, not notice to
third party recipients of a subpoena. In the present situation, Plaintiff has not
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The Court notes that the party issuing the subpoena is representing himself pro
se while Plaintiff and the non-party Movants are represented by counsel.
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objected to the lack of notice.2 Movants, as third-party recipients of the subpoenas
at issue, do not have standing to raise this objection.3 As such, the Court finds that
there was no violation of Rule 45(a)(4). Movants’ objection regarding notice is
overruled.
Movants continue that the “place of production constitutes an undue burden”
because it “specifies that production of the requested documents was to take place
at the U.S. District Court in Wichita, Kansas . . . .” (Doc. 59, at 4.) Movants argue
that because the subpoena is “solely regarding production of documents” and does
not also command an appearance for deposition, hearing, or trial, they would be
required to send an individual to the Wichita courthouse “and . . . wander the halls
until Defendant Hale is located.” (Id.) In the Court’s experience, it is not out of
the ordinary for document subpoenas to specify production at a courthouse or other
similar location. Further, Movants would not be required to have an individual
deliver and babysit the documents while “wandering the halls” waiting for
Defendant to retrieve them. This objection is overruled.
2.

Allegedly privileged information.

2

It appears from language in Defendant’s Motion to Compel that he provided
notice to Plaintiff as to this subpoena. (Doc. 48, at 1.)
3

Movants’ reliance on Beach v. City of Olathe, Kansas, No. 99-2210-GTV, 2001
WL 1098032 (D. Kan. Sept. 17, 2001) (granting motion to quash subpoenas for failure to
provide notice under Rule 45) is misplaced because the objection regarding notice was
made by a party to the lawsuit, not by third-party recipients of the subpoena.
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As mentioned above, Movants also argue that the subpoena, which seeks the
complete 350-page investigation into the underlying hate crime allegations,
encompasses documents protected by the attorney-client privilege and work
product doctrine. (See Doc. 59, at 5.) Pursuant to Fed.R.Civ.P. 26(b)(1),
discovery is limited to “nonprivileged matters.” As to the application of the
attorney-client privilege, federal common law requires the following essential
elements:
(1) where legal advice of any kind is sought (2) from a
professional legal advisor in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or
by the legal advisor, (8) except if the protection is
waived. Although this description suggests that the
privilege only operates to protect the client’s
communications to a lawyer, the Tenth Circuit recognizes
that a lawyer's communication to a client is also protected
if it is ‘related to the rendition of legal services and
advice.’
In re Syngenta Ag Mir 162 Corn Litigation, No. 14-2591-JWL, 2017 WL 386835,
at *4 (D. Kan. Jan. 27, 2017) (internal citations omitted).
The work product-doctrine protects “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative.” Fed.R.Civ.P. 26(b)(3)(A). The doctrine “shelters the mental
processes of the attorney, providing a privileged area within which he can analyze
and prepare his client’s case.” In re Qwest Commc’ns Int’l, Inc., 450 F.3d 1179,
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1186 (10th Cir.2006) (citing U.S. v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45
L.Ed.2d 141 (1975)).
It is well-established that a party seeking to assert the work product doctrine
or attorney-client privilege “as a bar to discovery has the burden of establishing
that it applies.” Watchous Enterprises, LLC v. Pacific National Capital, No. 161432-JTM-JPO, 2017 WL 4310231, at *3 (D. Kan. Sept. 28, 2017) (citing Harlow
v. Sprint Nextel Corp., No. 08-2222, 2012 WL 646003, at *5 (D. Kan. Feb. 28,
2012) (internal citation omitted), 748 F.2d 540, 542 (10th Cir. 1984)) and Johnson
v. Gmeinder, 191 F.R.D. 638, 642 (D. Kan. 2000) (applying Kansas law)). The
Court notes that, in this particular case, Movants
[have] not produced a privilege log or otherwise provided
a detailed description of the documents. The court,
therefore, does not possess sufficient information to
enable it to determine whether each element of attorneyclient privilege is satisfied with respect to each
communication. ‘A ‘blanket claim’ as to the
applicability of a privilege does not satisfy the burden of
proof.’
Watchous Enterprises, LLC, 2017 WL 4310231, at *4 (internal citation omitted).
The Court overrules Movants’ blanket claim of attorney-client privilege and
work product protection as to the documents responsive to this subpoena. The
Court also GRANTS, in part, Defendant’s Motion to Compel (Doc. 48). Movants
are instructed to produce all non-privileged information responsive to this
subpoena within thirty (30) days of the date of this Order. Movants are further
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instructed to supply Defendant with a compliant privilege log encompassing any
and all documents withheld on the basis of the attorney-client privilege and/or
work product doctrine.
Movants are reminded that the law of this District is unequivocal that the
attorney-client privilege “‘protects disclosure of substantive communication
between attorney and client, ‘it does not protect disclosure of the underlying
facts....’’ within that communication.” Progressive Northwestern Ins. Co. v.
Gant, No. 15-9267-JAR-KGG, 2017 WL 3530843, at *4 (D. Kan. Aug. 16, 2017)
(emphasis added). The same is true for the work product doctrine. Resolution
Trust Corp. v. Dabney, 73 F .3d 262, 266 (10th Cir.1995) (“Because the work
product doctrine is intended only to guard against divulging the attorney's
strategies and legal impressions, it does not protect facts concerning the creation of
work product or facts contained within work product.”). As such, although an
investigation may have occurred at the direction of counsel and/or in anticipation
of litigation, any facts compiled during of that investigation are not protected by
the attorney-client privilege and/or work product doctrine.
The privilege log shall include “a detailed description” of any and all
documents withheld “that would allow the court and parties to determine whether
every element of the privilege has been meet.” Watchous Enterprises, LLC, 2017
WL 4310231, at *5. Such description must contain the following:

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1.

A description of the document explaining whether
the document is a memorandum, letter, e-mail,
etc.;

2.

The date upon which the document was prepared;

3.

The date of the document (if different from # 2);

4.

The identity of the person(s) who prepared the
document;

5.

The identity of the person(s) for whom the
document was prepared, as well as the identities of
those to whom the document and copies of the
document were directed;

6.

The purpose of preparing the document, including
an evidentiary showing, based on competent
evidence, ‘supporting any assertion that the
document was prepared in the course of adversarial
litigation or in anticipation of a threat of
adversarial litigation that was real and imminent;’
a similar evidentiary showing that the subject of
communications within the document relates to
seeking or giving legal advice; and a showing,
again based on competent evidence, ‘that the
documents do not contain or incorporate
non-privileged underlying facts;’

7.

The number of pages of the document;

8.

The party’s basis for withholding discovery of the
document (i.e., the specific privilege or protection
being asserted); and

9.

Any other pertinent information necessary to
establish the elements of each asserted privilege.

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Id. (internal citations omitted). The privilege log shall be produced in conjunction
with the documents responsive to this subpoena.
Upon receipt of the detailed privilege log from Movants, and a careful
review thereof by Defendant, Movants and Defendant shall meet and confer in an
effort to resolve any remaining disputes about the application of the attorney
privilege or work product protection. If agreement cannot be reached, Defendant
shall have thirty (30) days from the production of documents to file a supplemental
motion to compel.
For further guidance, Movants and Defendant should be aware that with few
exceptions (e.g. third-party disclosure), a communication between an attorney and
client will be privileged. However, the work-product protection is more limited. It
appears from the briefing that the facts relevant to whether the investigation
documents were created “in anticipation of litigation” may be in dispute. If the
Court must resolve this factual question, the parties must present facts by
deposition transcript or affidavit and be prepared to present live witnesses in an
evidentiary hearing on this issue if the Court determines that a hearing is necessary.
C.

Subpoena No. 2.
The second subpoena at issue was served on Movant Allison Garrett on

September 14, 2017. (Doc. 59-3.) It seeks the “[n]ames and contact information
for the two outside consultants who corroborated the results of ESU’s 2015 hate

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crimes investigation,” along with 19 categories of documents listed. (Id.)
Defendant instructs that the documents and recordings are to be produced “in
electronic format by email” to his listed yahoo.com email address. (Id.)
Movants argue that the subpoena should be quashed because it “‘requires a
person to comply beyond the geographical limits specified in Rule 45(c).’” (Doc.
59, at 7 (citing Fed.R.Civ.P. 45(d).) Movants contend that Rule 45 “contemplates”
the issuing party to “identify a physical location for compliance” with the
subpoena. (Id., at 8 (emphasis in original).) Movants continue that Defendant’s
yahoo.com email account “is technically located at Yahoo! Headquarters in
Sunnyvale, California.” (Id., at 8.) Movants concede that the advisory comments
to Rule 45 contemplate electronic compliance and that “nothing in these
amendments limit the ability of the parties to make such arrangements.” (Id.,
quoting Fed.R.Civ.P. 45 advisory committee’s note.) Movants contend that
Defendant “never initiated communication” on this issue so “[t]hose arrangements
were never made and may have proven impossible in light of the large amount of
information that Defendant Hale is seeking access to in this subpoena.” (Id.)
The Court is unpersuaded by Movant’s argument. Common sense mandates
that Defendant did not intend for documents responsive to the subpoena to be sent
to Yahoo! Headquarters in California. Further, although Defendant could – and
should – have initiated communication regarding an electronic response to the

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subpoena, Movants could just have easily initiated this communication upon
receipt of the subpoena. This would have been much easier and more efficient
than briefing the issue before the Court. While Movants contend that electronic
compliance “may have proven impossible,” they do not provide any factual basis
to support this conclusory statement. This objection is, therefore, overruled.
In addition, Movants argue that the “nineteen itemized documents, things,
and ESI” sought through the subpoena “constitute[s] an undue burden on President
Garrett.” (Doc. 59, at 9.) Movants contend that the documents sought are “far
from relevant in this case” and require ESU “to create documents that do not exist
and request documents that are readily obtainable by other means.” (Id.) Movants
failed, however, to provide any substantive discussion to support these objections.
The Court will not attempt to identify through guesswork which of the requested
categories of documents Movants consider irrelevant, which documents Movants
contend would need to be created, and which documents Movants contend are
“readily obtainable” from other sources. The unduly burdensome objection
regarding Subpoena No. 2 is, thus, overruled. Movants should, however, interpret
the subpoena not to require the creation of any document.
D.

Subpoena No. 3.
Defendant filed a Notice of Intent to Issue Subpoena on September 11, 2017.

(See Doc. 53.) The subpoena itself, however, technically has not been served. To

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the extent the subpoena is considered on substantive grounds, Movants argue that it
is cumulative of the August 9, 2017, subpoena because it requests from ESU “all
documents that pertain or relate to an investigation into an alleged hate crime that
occurred on the 8th of April 2015, including all findings of that investigation.”
(Doc. 53, at 2.) The Court agrees that the subpoena has not been served and also is
unnecessarily cumulative of the subpoena discussed in subsection B, supra. The
Motion to Quash is, therefore, GRANTED in regard to Subpoena No. 3.

IT IS THEREFORE ORDERED that the Motion to Quash filed by non-party
Movants (Doc. 59) is GRANTED in part and DENIED in part as more fully set
forth above.
IT IS FURTHER ORDERED that the Motion to Compel (Doc. 48) filed by
Defendant is GRANTED in part as more fully set forth above.
All documents responsive to Subpoenas Nos. 1 and 2 (and any
accompanying privilege log) shall be provided to Defendant within thirty (30)
days of the date of this Order.
IT IS SO ORDERED.
Dated this 9th day of January, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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