Sanders, et al v. City of Pembroke, et al
Filing
154
MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Lanny King on 7/23/2021 finding as moot 149 Motion for Protective Order. Plaintiff's subpoena to Verizon is hereby QUASHED subject to City of Pembroke's agreement discussed herein. cc: Counsel(MNM)
Case 5:19-cv-00023-TBR-LLK Document 154 Filed 07/23/21 Page 1 of 4 PageID #: 1875
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:19‐cv‐00023‐TBR‐LLK
LEONIA N. SANDERS,
individually and as parent and guardian of Ronald D. Sanders
v.
CITY OF PEMBROKE, et al.
PLAINTIFF
DEFENDANTS
MEMORANDUM OPINION AND ORDER
In March 2021, Plaintiff filed a notice, pursuant to Fed. R. Civ. P. 45(a)(4), of issuance of a
subpoena to a third party (Verizon Wireless) in which Plaintiff seeks information associated with a certain
workplace cellphone number used by City of Pembroke’s Chief of Police and by private citizens of
Pembroke to communicate with the police department. [Docket Number (“DN”) 148]. This matter is
before the Court on Defendant City of Pembroke’s “Objection to Plaintiff’s Notice of Issuance of Subpoena
and Motion for Protective Order,” to which Plaintiff responded in opposition, and Defendant replied. [DN
149, 150, 151]. The Court referred the matter to the undersigned Magistrate Judge for ruling. [DN 141].
To succeed on a claim pursuant to 28 U.S.C. § 1983 against a local government, “the plaintiff must
prove the injury of which he complains was caused by an unconstitutional government policy or custom.”
[DN 129 at 23 quoting Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978)]. Plaintiff’s Amended
Complaint alleges that City of Pembroke employed an explicit policy, observed custom, and deliberate
practice of targeting, unlawfully arresting, or otherwise preying on Mr. Sanders for the purpose of
violating his constitutional rights. Id. referencing DN 51. In June 2020, in light of newly discovered
evidence, the Court reinstated Plaintiff’s Monell claim against City of Pembroke. Id. at 24‐25.
On July 19, 2021, the undersigned held a telephonic status conference. Christopher J. Hoerter
and William A. Kemper represented Plaintiff. Sarah E. Noble represented City of Pembroke. Harold M.
Johns represented the individual Defendants remaining following Judge Russell’s rulings on dispositive
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motions, [DN 108, 129, 132]. The individual Defendants were described as Christian County officials:
Deputy Eddie Frye, Deputy Rick Burgess, Lincoln Foster, and Maureen Leamy.
The City stated it filed the present motion for a protective order, [DN 149], both to defend against
Plaintiff’s Monell claim and to protect the privacy of the citizen communications with the police
department. Plaintiff argued that the information sought from Verizon (to which Verizon has not yet
objected) is relevant to her claim that Defendants conspired to target Mr. Sanders for multiple arrests in
violation of his constitutional rights. According to Plaintiff, the information might reveal whether or not
there were contemporaneous citizen complaints providing probable cause for legitimate arrests.
City of Pembroke agreed to make good faith efforts to obtain from Verizon the same information
sought by Plaintiff, and, once obtained, to produce to Plaintiff (assuming there is no objection based on
privilege or relevance) any text message or other communication concerning Mr. Sanders (specifically).
For the reasons below, with the exception of the information contemplated by the above
agreement, the additional information sought from Verizon is not relevant to any claim. Additionally, the
information must not be disclosed to avoid “annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(c)(1).
Therefore, this Order will QUASH Plaintiff’s subpoena to Verizon subject to City of Pembroke’s
agreement discussed above and will DENY Plaintiff’s motion at DN 149 as moot.
City of Pembroke has standing to file the present motion for a protective order.
The parties dispute whether the City of Pembroke has standing to file the present motion for a
protective order. [DN 148, 149, 150]. “Ordinarily a party has no standing to seek to quash a subpoena
issued to someone who is not a party to the action, unless the objecting party claims some personal right
or privilege with regard to the documents sought.” Gard v. Grand River Rubber & Plastics Co., No.
1:20CV125, 2021 WL 75655, at *5 (N.D. Ohio Jan. 8, 2021) (quoting 9A Charles Alan Wright and Arthur R.
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Miller, et al., Federal Practice and Procedure § 2549 (3d ed.)). As indicated above, City of Pembroke (the
objecting party) has a right or privilege with regard to citizen communications with the police department.
In any event, even “where a party's standing may fall short to quash a subpoena under Rule 45,
Rule 26(c) affords parties the ability to move for a protective order on a third party's behalf.” Id.; see also
Diamond Resorts Int'l, Inc. v. Phillips, 2018 WL 4328257 at *2 (M.D. Tenn. July 16, 2018) (“[W]here a party's
standing may fall short to quash a subpoena under Rule 45, Rule 26(c) affords parties the ability to move
for a protective order on a third party's behalf.”). City of Pembroke was entitled to file the motion for a
protective order on behalf of the citizens of Pembroke.
Plaintiff has not shown that the information she seeks is relevant to any claim.
Generally, information is discoverable only if it is “relevant to any party's claim or defense.” Fed.
R. Civ. P. 26(b)(1). Plaintiff has not shown that the information she seeks from Verizon, which goes well
beyond the text of communications directly involving Mr. Sanders, is relevant to any claim. It is unclear
why Plaintiff believes she needs to know that certain calls were made at certain times, with no information
regarding the substance of those calls.
In In re Verizon Wireless, the Maryland District Court recently granted a motion for a protective
order similar to City of Pembroke’s. In re Verizon Wireless, No. CV TDC‐19‐1744, 2019 WL 4415538 (D.
Md. Sept. 16, 2019). In Verizon, Plaintiff filed a Section 1983 action alleging a custom or policy of racial
discrimination by the Prince George’s County Police Department. Like Plaintiff in the present action, the
Plaintiff in Verizon hoped to utilize work cellphone numbers to “draw connections between known and
unknown phone numbers used by Petitioners, linked by dates and times, to make inferential leaps to
support the claims of conspiratorial acts.” Id. at *6. The District Court ruled that the subpoena did not lie
within the scope of information contemplated by Fed. R. Civ. P. 26(c)(1) and that “more than three years
of call histories for each phone number is not remotely helpful in resolving the issues in this case.” Id. In
this case, Plaintiff makes no plausible showing that nineteen months of incoming and outgoing call
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information associated with the work cellphone of the City of Pembroke Chief of Police are relevant to
her claims.
The information Plaintiff seeks is entitled to protection under Fed. R. Civ. P. 26(c)(1).
Generally, protective orders are available to protect a “party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The information
Plaintiff seeks from Verizon is broad enough to contemplate communications between private citizens of
Pembroke and the police department. There is undue risk that discovery of this information would result
in annoyance, embarrassment, or oppression.
City of Pembroke persuasively argues that that it would be unduly burdensome to allow
production in light of the privacy interests at stake:
The information encompassed by the subpoena duces tecum is overly broad, unduly burdensome,
oppressive, and irrelevant to the present matter. Additionally, the information requested relates
to protected and confidential information regarding the citizens of Pembroke and its police
department. The disclosure of such confidential information is inappropriate and would work to
harass and embarrass individuals who are not and never will be involved in this litigation. … The
information requested by subpoena is not sufficiently narrowed by timeframe or recipient/caller
and, instead, requests broad communications from and to an unrestricted class of individuals for
a nineteen‐month period of time, which is overly expansive and not sufficiently tailored to lead
to discoverable information. … In the present matter, justice requires that any information
obtained by Plaintiff regarding the cellular telephone number at issue be narrowly tailored and
specific in time. Otherwise, confidential information pertaining to police and City communications
that are entirely unrelated to the present matter could come to light, causing potential
embarrassment and unwarranted injury to residents of the City not party to or involved in this
lawsuit.
[DN 149 at 3, 5].
Order
Therefore, Plaintiff’s subpoena to Verizon is hereby QUASHED subject to City of Pembroke’s
agreement discussed herein. Plaintiff’s motion at DN 149 is hereby DENIED as moot.
July 23, 2021
c:
counsel
p:
0/22
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