Anderson, et al v. Old National Bancorp

Filing 231

MEMORANDUM OPINION & ORDER denying 217 Motion to Compel Telephone Conference set for 10/14/2011 at 10:00 AM before Chief Judge Thomas B. Russell. Signed by Chief Judge Thomas B. Russell on 9/27/2011. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:02-CV-00324-R

LORI ANDERSON, et al.

PLAINTIFFS

v.
OLD NATIONAL BANCORP &
OLD NATIONAL TRUST COMPANY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendants Old National Bankcorp and Old
National Trust Company’s (collectively “ONB” or “Defendants”) motion to compel nonparty
Bank of Oklahoma (“BOK”) to comply with a subpoena duces tecum (DN 217). BOK has
responded (DN 218), ONB has replied (DN 223), and BOK as submitted a surreply (DN 226).
Plaintiffs in this matter have also submitted a response (DN 219). This motion is now ripe for
adjudication. For the reasons that follow, this motion is GRANTED.
BACKGROUND
This matter originally arose out of a dispute concerning a breach of a lease (“Lease”).
Plaintiffs in this case are beneficiaries of the Charles R. Jones, Sr. Trust (“C.R. Trust”) and the
Eula Kathleen Jones Trust (“Eula Trust”) (collectively “Jones Family Trusts”). The subject of
the Lease is the Jones Family Trusts’ primary asset, the Three Rivers Quarry (“Quarry”). The
original dispute involved the lessee quarry operator, Martin Marietta Materials, Inc. (“MM”),
and the Jones Family Trusts. In November 1997, MM removed and marketed approximately
2,000 cubic yards of soil from the property. This action became the basis of a lawsuit brought by
the trustees of the Jones Family Trusts. The trustees argued the removal and marketing of the

soil constituted a breach of the Lease. The beneficiaries hoped that if the Lease terminated, they
would be able to negotiate a new lease with more favorable terms.
In this prior lawsuit, the Court found that MM breached the Lease by marketing the
surface soil. First Nat’l Bank & Trust Co. v. Martin Marietta Materials, Inc., No. 5:95-cv-289
(W.D. Ky. Feb. 8, 2000). However, the Court held the trustees had waived their right to
terminate the Lease because they accepted Lease payments after and with knowledge of Martin
Marietta’s breach. Id. The Sixth Circuit affirmed the Court’s decision. First Nat’l Bank &
Trust Co. v. Martin Marietta Materials, Inc., 22 F. App’x 546 (6th Cir. 2001). Plaintiffs then
brought action against ONB, who where the trustees of the C.R. Trust and managed the Eula
Trust during the removal of the soil. In the instant lawsuit, among other claims, Plaintiffs allege
that ONB breached its fiduciary duties to Plaintiffs by accepting Lease payments that resulted in
a waiver of MM’s breach of the Lease.
Nonparty BOK is the current trustee of the Jones Family Trusts, succeeding ONB to that
post in 2005. BOK has been drawn into its own litigation surrounding MM’s operation of the
Quarry, currently pending in the circuit court of McCracken County, Kentucky. The matter
again pits the Jones Family Trust’s beneficiaries against its trustee, BOK (“State Action”). In
BOK’s first amended complaint in the State Action, it alleges that Cotton & Allen P.S.C., an
accounting firm it retained to audit the rock shipments from the Quarry, referred to certain
unresolved issues surrounding 45 ton adjustments on a number of MM’s barge tickets. DN 2173 at 8. Citing these irregularities, a number of beneficiaries of the Jones Family Trusts have
urged BOK to refuse acceptance of royalty payments from MM, while still others insist it
continue accepting payments until the current issues are resolved. Id. at 10, 12. To confront this

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impasse, BOK filed the State Action, seeking both declaratory relief that it did not breach its
fiduciary duties and instructions from the state court as to whether it should continue accepting
royalty payments from MM. According to the record before the Court, the documents in the
State Action are not under seal, and thus available to ONB and the public.
Regarding the case at bar, on September 20, 2010, in the United States District Court for
the Northern District of Oklahoma, ONB issued a subpoena on BOK (“September Subpoena”).
Although it was served on BOK in Oklahoma, it requested that the petitioned-for documents be
produced in Evansville, Indiana. Contained within were the following requests:
Request No. 1: All documents, correspondence, photographs, video, and reports,
including but not limited to electronically stored information in the possession of the
[BOK] as trustee (the “Trustee”) of the [Jones Family Trust] in any way related to,
resulting from or referring to the Cotton & Allen, P.S.C. “Review of Procedures”
concerning practices of Martin Marietta at the [Quarry] for the Jones Family Trust.
...
Request No. 5: All documents, correspondence, photographs, video, reports, mine
plans, records of payment, royalty remittance advices/letters, including but not
limited to those electronically transmitted, which the Trustee, or any person or entity
acting at the request of the Trustee, transmitted to Kenvirons, Inc., William F. Rapier
& Associates, and/or Mid-America Energy & Mining Services, Inc. at any time from
January 1, 2004 to the present.
Request No. 6: All documents, correspondence, photographs, video, reports, or other
information related in any way to the Quarry including but not limited to information
electronically transmitted, by or at the direction or request of Kenvirons, Inc.,
William F. Rapier & Associates, and/or Mid-America Energy & Mining Services,
Inc. to the Trustee or to any beneficiary of the Jones Family Trust at any time from
January 1, 2004 to the present.
Request No. 7: All non-privileged documents, correspondence, pleadings,
photographs, reports, or other information related in any way to the Quarry including
but not limited to information electronically transmitted by the Trustee, relating to
or in connection with the [State Action] filed on or about June 4, 2010.
DN 218-4 at 2-4. Following the transmission of the September Subpoena, BOK served written

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objections on ONB, citing a number of procedural and substantive defects. In response, ONB
issued another subpoena on October 7, 2010, from the Western District of Kentucky (“October
Subpoena”). DN 218-6 at 1. While the above-stated requests remained unchanged, the
subpoena commanded that the materials be produced in Paducah, Kentucky. Id. It is the
October Subpoena and BOK’s resistence to it that has given rise to the instant motion.
In its motion to compel, ONB sets out that the information covered in requests 1, 5, 6,
and 7 are important to the current matter and constitute discoverable information. Even though
most of these materials revolve around the State Action, ONB says that the information is vital
to its damages calculations. Specifically, this motion declares whether MM breached its lease
with the Jones Family Trust could substantially reduce ONB’s damages “pursuant to the ‘one
satisfaction rule.’” DN 217-1 at 4. ONB further alleges that its efforts to review the unsealed
record at the McCracken County Courthouse have been stymied by local officials and opposing
counsel. DN 223 at 2-5. Since they have been unable to examine these “public” records and
insist that BOK is required to disclose them, ONB asks the Court to compel production, force
BOK to pay the attorneys’ fees incurred by ONB in its pursuit of these documents, and hold
BOK in contempt if necessary. Id. at 2. BOK responds that the October Subpoena is improper
on a number of different bases and should therefore be quashed.
STANDARD
Federal Rule of Procedure 45 governs nonparty discovery and the subpoena power of the
litigants in compelling production of materials from those parties. Fed. R. Civ. P. 45. A proper
Rule 45 subpoena may command a nonparty to both testify in a deposition and turn over
documents. Id. at (a)(1)(A). The “scope of discovery through a subpoena is the same as that

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applicable to Rule 34 and other discovery rules”, Fed. R. Civ. P. 45 (advisory committee note
(1970)), and therefore “subject to the general relevancy standard applicable to discovery under
[Rule 26(b)(1)]” Griffiths v. Ohio Farmers Ins. Co., No. 1:09-CV-1011, 2010 WL 2639913, at *
1 (N.D. Ohio June 29, 2010) (quoting Laethem Equip. Co. v. Deere and Co., No. 05-CV-10113,
2007 WL 2873981, at *4 (E.D. Mich. Sept. 24, 2007)).
DISCUSSION
BOK claims requests 1, 5, 6, and 7 (collectively “Requests”) are improper for a variety of
reasons.1 Initially however, the Court must address whether the October Subpoena is
procedurally flawed.
Rule 45 sets out that with regards to a nonparty, a “subpoena must issue . . . for
production or inspection . . . from the court for the district where the production or inspection is
to be made.” Fed. R. Civ. P. 45(a)(2)(C). “[The rule] applies to production of documents not
requiring a non-party deposition.” Brinkley v. Houk, No. 4:06-CV-0110, 2008 WL 4560777, at
*1 (N.D. Ohio Oct. 8, 2008) (citing Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404,
412 (3rd Cir. 2004)). The rule also requires that the subpoena may be served in any of the
following places:
(A) within the district of the issuing court; (B) outside the district but within 100
miles of the place specified for the deposition, hearing, trial, production, or
inspection; (C) within the state of the issuing court if a state statute or court rule
allows service at that place of a subpoena issued by a state court of general
jurisdiction sitting in the places specified for the deposition, hearing, trial,
production, or inspection; or (D) that the court authorizes on motion and for good
cause, if a federal statute so provides.

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BOK states the October Subpoena (1) violates the federal rules of procedure, (2) seeks
irrelevant materials, (3) contains requests that are overly broad, (4) is unduly burdensome, and
(5) petitions for materials covered by the attorney-client privilege.
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Id. § 45(b)(2)(A)-(D). “Because a court may not compel production of documents over which a
non-party witness does not have control, even if that court has personal jurisdiction over the
non-party witness, production of documents will be assured if the subpoena requires the
production in the district court where the non-party resides or where the headquarters of the
witness are located.” Brinkley, 2008 WL 4560777, at *1 (citations omitted).
In its reading of Rule 45, BOK says that since the subpoena was issued from the Western
District of Kentucky but served in Oklahoma, it violates the rule’s clear provisions, in particular
sections (a)(2)(C) and (b)(2). ONB argues this is a mischaracterization of Rule 45's language. It
also states that as most of the relevant documents reside with BOK’s local counsel in Louisville,
Kentucky, this objection is without merit.
The Sixth Circuit has yet to confront the limits of Rule 45(a)(2)(C) and whether a trial
court may order the production of documents when they are located far from the district’s
boundaries in which the court is located. See Brinkley, 2008 WL 4560777, at *1. In Brinkley v.
Houk, litigants in the Northern District of Ohio tried to enforce a subpoena issued from that
district on the Ohio Public Defenders Office, located in Columbus, Ohio. Id. The subpoena
sought the production of documents to be delivered in Cleveland, Ohio, which was in a different
judicial district and over a hundred miles away from Columbus. Id. Relying upon the “plain
language” of Rule 45 and its 100-mile limitation, the Brinkley court quashed the subpoena and
required the litigants to issue it anew in the Southern District of Ohio. Id. at *2-3. Overall, the
decision appears to be premised on the strict interpretation of Rule 45 and the desire to let the
court of appeals speak for the Sixth Circuit rather than a district court.
Not only is Brinkley a prudent and well-reasoned decision, but it tracks the rulings of

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other courts outside this circuit. In Highland Tank & Mfg. Co. v. PS Intern., Inc., 227 F.R.D.
374 (W.D. Pa. 2005), Judge Gibson consolidated a number of decisions from around the country
to interpret Rule 45 and the process whereby a nonparty may be subjected to a subpoena.
Describing the breadth of the rule, Judge Gibson defined the geographic limitations where a
nonparty could be forced to turn over documents: “usually no more than 100 miles from the
nonparty’s location.” Id. at 380-81 (quoting Anderson v. Gov’t of V.I., 180 F.R.D. 284, 289-90
(D.V.I. 1998). Such a requirement comports with the overall purpose of Rule 45, weighing the
need for the information with the convenience of the nonparty. Id. at 381 n. 10 (citing United
States v. Star Scientific, Inc., 205 F. Supp. 2d 482, 484-85 (D. Md. 2002)). This logic has been
directly employed or mimicked on several occasions by a variety of district courts. See e.g.,
Managed Care Solutions, Inc. v. Essent Healthcare, Inc., No. 09-60351, 2010 WL 3419420, at
*2 (S.D. Fla. Aug. 27, 2010) (as documents were located in Southern District of Alabama, and
the subpoena was issued from the district, it was not defective); Hallamore Corp. v. Capco Steel
Corp., 259 F.R.D. 76, 79 (D. Del. 2009) (“Typically, a subpoena for production of documents
must issue from the district where the documents are located.” (citations omitted)); City of St.
Petersburg v. Total Containment, Inc., No. 06-20953, 2008 WL 1995298, at *3 (E.D. Pa. May 5,
2008) (“Rule 45(a)(2)(C) requires that a subpoena duces tecum issue from a court where the
documents to be produced or inspected are located.” (citations omitted)). As Brinkley, Highland,
and these analogous decisions represent the present legal tide, the Court will accept their analysis
in deciding this matter.
Though the Court is persuaded by Brinkley’s ruling, the facts in it and the instant matter
are distinguishable. In that case, the parties both agreed the discoverable documents resided in

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another district. In the instant matter, the parties dispute exactly where the petitioned-for items
are located. ONB claims most of the responsive documents are either in McCracken County or
in Louisville with BOK legal counsel; BOK assures the Court that most of the materials targeted
by the October Subpoena are in its home offices in Oklahoma. Neither party has offered, nor has
this Court encountered, instructive precedent on where to file a subpoena when there is a dispute
over the location of documents.
In choosing to accept the statements contained within BOK’s briefs as true and accurate
statements, the Court notes the managing director of BOK’s trust department has filed an
affidavit affirming that “[a]ll documents relating to the Jones Trusts in the possession of [BOK]
are maintained in Oklahoma.” DN 218-1 at 4. Considering that BOK is in the best position to
know the location of its own internal documents, the Court rejects ONB’s unsupported
declarations that the “majority” of the responsive materials are located in the Western District of
Kentucky. What is more, even accepting ONB’s allegation that some of the documents it seeks
are located within the district, all of the documents subject to the October Subpoena are in
Oklahoma. Thus, ONB will ultimately be required to issue another subpoena in Oklahoma to
gather the entirety of the items it requests. This strikes the Court as a duplicative and
unnecessary process considering that a single subpoena issued from the appropriate venue in
Oklahoma will confront the entirety of the materials ONB seeks.
In light of the plain language of Rule 45, to avoid a piecemeal review of this matter in
two separate judicial districts, and when considering ONB’s unpersuasive arguments to the
contrary,2 the Court chooses to quash the October Subpoena. ONB may reissue it to BOK on
2

In its reply brief, ONB cited a number of cases standing for the proposition that a Rule
45 subpoena may be served on a nonparty and petition for disclosure of documents more than
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behalf of the United States District Court for the Northern District of Oklahoma. If that district
court feels that ceratin aspects of this matter could be best resolved by this Court, it may remit
them for resolution. Cf. Brinkley, 2008 WL 4560777, at *3.
Finally, both BOK and ONB move that the other pay their respective expenses in
addressing this motion. See Fed. R. Civ. P. 45(c)(1). Considering the confusion over the exact
location of the documents and the lack of guidance from the Sixth Circuit, the imposition of
sanctions would be inappropriate.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants Old National
Bankcorp and Old National Trust Company’s Motion to Compel Production is DENIED.
Defendants may proceed, consistent with this opinion’s findings, in gathering the requested
information.
IT IS FURTHER ORDERED that a telephonic conference is scheduled for 10:00 a.m.
CST on October 14, 2011. The Court shall initiate the call. Before the call, the parties shall
confer about an updated schedule for this matter.

September 27, 2011

100 miles from the place where production is requested. See U.S. Bank Nat. Ass'n v. James, 264
F.R.D. 17, 19-20 (D. Me. 2010); Walker v. Center for Food Safety, 667 F. Supp. 2d 133, 137-38
(D.D.C. 2009); Premier Election Solutions, Inc. v. Systest Labs Inc., No. 09-cv-018220, 2009
WL 3075597 *3 (D. Colo. Sept. 22, 2009). These cases, however, concern the specifics of Rule
45 under subsection (c)(2)(A) while BOK’s contention that the October Subpoena is
procedurally flawed it arises out of subsection (a)(2)(C). These cases are therefore inapposite to
the matter at hand. In addition, the Court finds the reasoning on these decisions both
unpersuasive and in contravention of the policy behind Rule 45.
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