Arriola et al v. Commonwealth of Kentucky et al

Filing 140

MEMORANDUM OPINION & ORDER: 122 nonparty Keeton Corrections' Motion to Quash 122 is DENIED. Keeton Corrections must provide Plaintiffs the relevant documents in accordance with its subpoena within fourteen (14) days from the date of this Order. Signed by Judge Gregory F. VanTatenhove on 11/9/2020.(CBD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
ANTONIO ARRIOLA, et al.,

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Plaintiffs,
V.
COMMONWEALTH OF KENTUCKY,
et al.,

Civil No. 3:17-cv-00100-GFVT

MEMORANDUM OPINION
&
ORDER

Defendants.
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This matter is before the Court upon nonparty Keeton Corrections’ Motion to Quash
Subpoena. [R. 122.] In its Motion, Keeton asks the Court to quash a subpoena served upon it
requiring the production of inmate educational records. Id. Keeton argues the subpoena should
be quashed because (1) the collection of the records will cause it undue burden and (2) the
collection of the records possibly violates the Family Educational Rights and Privacy Act of
1974 (“FERPA”). [R. 122.] For the reasons set out in this Order, Keeton’s Motion is DENIED.
I
This case concerns whether Kentucky Department of Corrections’ (“KDOC”) inmates
received statutorily mandated educational good time credit earned by completing educational
courses while incarcerated. [R. 123.] To analyze whether credit was properly received, the
Court appointed multi-national accounting firm KPMG LLP to audit the KDOC by analyzing all
available educational records relevant to inmates’ entitlement to good time credit. Id. at 1. To
properly conduct the audit, “KPMG requested the production of records from 160 potential
sources of information relevant to its audit.” Id. In response to the requests, all but seventeen

facilities provided the documentation. Id. As of November 4, 2020, only four facilities
remained in non-compliance with the requests. [R. 139.] Keeton Corrections is the only facility
that filed a Motion to Quash Subpoena. 1 [R. 122.]
Federal Rule of Civil Procedure 26(b)(1) 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 . . . .” Fed. R. Civ. P. 26(b)(1). Federal courts construe this
language broadly to include “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.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). Although federal courts are given broad discretion to
determine what information or documents may be obtained based on their relevancy, a Court
“must limit discovery that is unreasonably cumulative or duplicative; that can be obtained from
another ‘more convenient, less burdensome, or less expensive’ source; that the seeking party has
had ample opportunity to obtain; or that is outside the scope permitted by Fed. R. Civ. P.
26(b)(1). B.L. Schuhmann, 2020 U.S. Dist. LEXIS 103641 (W.D.Ky 2020).
Additionally, Fed. R. Civ. P. 45 permits parties to command a nonparty to appear at a
certain time and place to testify or produce documents. Fed. R. Civ. P. 45(a)(1)(A)(iii). While
irrelevance or overbreadth are not specifically listed under Rule 45 as a basis for quashing a
subpoena, courts “have held that the scope of discovery under a subpoena is the same as the
scope of discovery under Rule 26.” Schuhmann, at *8 (quoting Hendricks v. Total Quality
Logistics, 275 F.R.D. 251, 253 (S.D. Ohio 2011)). A Court must quash any subpoena that
imposes an undue burden or expense on the person subject to the subpoena, fails to allow

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Unlike Keeton, the remaining facilities in non-compliance with the Court’s subpoena waived their ability to
dispute the subpoena by failing to file a Motion to Quash. [R. 122.] Plaintiffs’ Motion to Compel Compliance with
Subpoena was granted on September 25, 2020. [R. 127.]

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reasonable time to comply, requires compliance beyond the geographic limits of Rule 45, or
requires disclosure of “privileged or other protected matter, if no exception or waiver applies.”
Fed. R. Civ. P. 45(d)(1), (d)(3)(A)(i)-(iv). The “undue burden category encompasses situations
where the subpoena seeks information irrelevant to the case. Moreover, [a] subpoena imposes an
undue burden on a party when [it] is overbroad.” Jackson v. Gogel, 2015 U.S. Dist. LEXIS
70373 (E.D.Ky. 2015). Finally, other than the showing required by Fed. R. Civ. P. 45(d)(3)(C),
the “party seeking to quash a subpoena bears the ultimate burden of proof.” Schuhmann, at *8
(quoting Hendricks v. Total Quality Logistics, 275 F.R.D. 251, 253 (S.D. Ohio 2011)).
II
A
Because Keeton has moved to quash the Plaintiffs’ subpoena, it has the burden of
persuasion. Id. Here, Keeton first argues that compliance with the subpoena will cause it undue
burden, therefore Rule 45 requires its quashing. The subpoena served upon Keeton commands
the following:
Keeton [must] produce all certificates, diplomas, transcripts, and other
documentation (electronic and paper) that identifies completion of a class, course,
or program, for individuals housed at, supervised by, or enrolled at Keeton and all
attendance records (electronic and paper) for individuals housed at, supervised by,
or enrolled at Keeton. Both requests include records from January 1, 2007 to
December 31, 2019, a twelve (12) year span. [R. 122 at 1.]
In its Motion, Keeton states it would be subjected to an undue burden if compliance is imposed
because “there are more than 4,000 and perhaps as many as 6,000 individual inmates whose
records would have to be examined.” [R. 122 at 2.] Keeton estimates it would require “4,000
man hours to accomplish this task.” Id. at 3. Additionally, Keeton states that this task would
require an examination of twelve years of records to extract the requested information from each
record and that this process would cost up to $100,000. Id. at 3. At a status conference held by
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videoconference on November 4, 2020, Keeton argued that it is a private entity with a staff of
only three people. [R. 139.] Additionally, Keeton argued that it is unsure if any records it has in
its possession are relevant to the audit 2 and that the task presents an “insurmountable task.” Id.
In its Motion in Response, Plaintiffs first refer to Brown v. Tax Ease Lien Servicing, LLC,
2017 U.S. Dist. LEXIS 215979 (W.D. Ky. Aug. 21, 2017). In Brown, the Western District of
Kentucky stated “to successfully claim undue burden as a ground to quash under Rule
45(d)(3)(A)(iv) [a party] ordinarily must establish that the challenged subpoena is overbroad and
seeks information irrelevant, or only marginally relevant given the burden of production, to the
case at hand.” Brown at *2. Plaintiffs argue this language in Brown requires a moving party to
show that a subpoena’s requested documents are both overbroad and irrelevant to quash. [R. 3 at
3.] Plaintiffs state that, because Keeton only claims the subpoena is overbroad and not that its
documents are irrelevant, its Motion to Quash must be denied. Id. The Court is unpersuaded by
this argument and declines to interpret Brown as requiring a showing that a subpoena is both
overbroad and irrelevant to present a successful argument to quash. 3
Furthermore, the Court need not decide whether Keeton’s Motion to Quash relies on the
semantics of non-binding case law because Keeton’s Motion fails to establish undue burden as
required under the clear text of Rule 45. Although Keeton argues that undue burden exists due to
the cost, time needed to collect the requested records, and limited number of employees at its
facility, this evidence fails to overcome the Plaintiffs’ interests in the matter. [R. 122 at 2-3; R.

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At the status conference held on November 4, 2020, Keeton represented itself as a “halfway house” and
stated that it is unsure whether it has relevant educational records in its possession. Plaintiffs argue that
the purpose of the audit is to analyze these records and establish certainty in the matter. See [R. 139.]
3
In the following paragraph of Brown, the Western District of Kentucky cites additional case law which
states that the scope of discovery under a subpoena is the same as under Rule 26(b) and Rule 34. See
Brown at *5 (“the court must examine whether a request contained in a subepoena duces tecum is overly
broad or seeking irrelevant information . . . ) (emphasis added) (quoting Transcor, Inc. v. Furney
Charters, Inc., 212 F.R.D. 588, 591 (D. Kan. 2003)).

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139.] At issue in this case is the liberty interests of previously and currently incarcerated
Kentucky inmates. [R. 139.] In fact, at the November 4, 2020 status conference, Plaintiffs stated
that the records of over 1200 Kentucky inmates have been corrected since this audit began and
that these records now accurately reflect appropriate sentence lengths 4. Id. Additionally, Keeton
fails to convince the Court that it should be exempted from the production of records in this
matter when over 150 other Kentucky facilities have complied without issue. [R. 123; R. 139.]
While the Court understands that Keeton is a private facility, other private facilities have
complied with the subpoena and have not required its quashing. 5 The liberty interest of inmates
potentially subjected to imprisonment beyond that which justice requires simply outweighs
Keeton’s alleged financial and logistical barriers to compliance.
B
Next, Keeton suggests that FERPA might forbid its compliance with the subpoena. [R.
122 at 3.] Under FERPA, educational institutions’ ability to release student educational records
is limited by statute. See 20 U.S.C. § 1232(g)(b). Keeton states that, although it is likely not an
educational institution directly contemplated by FERPA, the subpoena requests the release of
educational records which, by implication, creates concern about the legality of compliance. Id.
Keeton alleges that no exception under FERPA permits the release of any educational records it
may possess and thus it is precluded from compliance. Id. In response, Plaintiffs argue that
Keeton is not an “educational institution” and is not bound by FERPA. [R. 123 at. 4.] Plaintiffs

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At the status conference, the General Counsel for the Kentucky Cabinet for Justice and Public Safety
clarified that not all 1200 inmates’ records were corrected as a result of proven recordkeeping errors.
Instead, some records were adjusted due to compromise between the parties. Nonetheless, the liberty
interests of these inmates were still affected as a result of the records attained for the ongoing audit. [R.
139.]
5
Most recently, Aramark and The Salvation Army, both private facilities, complied with the subpoena.
[R. 139.]

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also argue that, even if FERPA applies, all class members waive their rights to protection. Id;
see 20 U.S.C. § 1232(e) (granting students over the age of eighteen all rights to grant consent to
the release of educational records). Finally, Plaintiffs argue that multiple exceptions under
FERPA permit the release of these records. [R. 4-5.] The Court agrees with Plaintiffs.
Ultimately, it is not necessary to determine whether any exceptions under FERPA apply or
whether the students here have properly granted consent for the release of their educational
records because the Sixth Circuit has made clear that Keeton is not bound by FERPA. In
Desmone v. Adams, an imprisoned father sued the Michigan Department of Corrections’ Ionia
Temporary Facility (“ITF”) when ITF would not provide him with unredacted copies of his
child’s educational records. The Sixth Circuit ruled that his claim must fail because “FERPA by
its terms applies only to educational agencies,” and, “[b]ecause the defendants are not an
educational institution, [plaintiff] has no cause of action against them under FERPA.” LEXIS
24030 at *4 (6th Cir. 1998). Desmone indicates that Keeton’s argument is meritless.
III
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
that nonparty Keeton Corrections’ Motion to Quash [R. 122] is DENIED. Keeton Corrections
must provide Plaintiffs the relevant documents in accordance with its subpoena within fourteen
(14) days from the date of this Order.

This the 9th day of November, 2020.

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