Henderson-Burkhalter et al v. National Union Fire Insurance Company

Filing 101

ORDER AND REASONS DENYING 95 Motion to Quash Subpoena Duces Tecum for Production of Cell Phone Records. Signed by Magistrate Judge Michael North on 1/18/19. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DEMETRA HENDERSON-BURKHALTER, ET AL.
VERSUS

NATIONAL UNION FIRE INSURANCE
COMPANY, ET AL.

CIVIL ACTION

NUMBER: 18-0928
SECTION: "J"(5)

ORDER AND REASONS

Before the Court is a motion styled “Motion to Quash Subpoena Duces Tecum for

Production of Cell Phone Records,” ostensibly filed on behalf of non-party, Cornelius

Garrison, by attorney, Vanessa Motta. (Rec. doc. 95). This is the same Vanessa Motta who

on January 9, 2019 appeared before this Court to unsuccessfully argue an identical motion

filed by her on behalf her clients and the actual Plaintiffs in this case, Demetra HendersonBurkhalter, Gregory Offray, and Jacqueline Thompson (who counsel insist on referring to
throughout their briefing by the colorful sobriquet, “Crash Victims,” but who the Court will
simply refer to as “Plaintiffs”). (Rec doc. 74).

The present motion has not yet been opposed and it need not be, as it is frivolous and

can be dispensed with summarily.

As noted, the motion papers filed first on behalf of Plaintiffs and then on behalf

Cornelius Garrison (“Garrison”) are virtually identical and ask for the same relief, albeit on
behalf of different persons. This second motion is no doubt precipitated by this Court’s

ruling denying the first motion on the basis that Plaintiffs lacked standing to challenge the

subject subpoena for non-party Garrison’s records from non-party, Sprint PCS Wireless.
(Rec. doc. 93).

Counsel apparently believes the remedy for this defect is to refile the same motion,

claiming it is being filed on behalf of Garrison and ignoring entirely the previous round of
motion practice and this Court’s ruling. Alas, counsel is quite seriously mistaken.

As a threshold matter, it is not unimportant that the subpoena to Sprint PCS that

counsel 1 seeks to quash bore no fruit as having been mistakenly sent to the wrong provider

(transcript at p. 5), yet it is the only subpoena identified by counsel and attached to her
previous motion. (Rec. docs. 95, p. 1; 74-4). The only outstanding subpoena is one served

upon T-Mobile with a future return date, but the Court has yet to see a copy because even in

taking a second bite at this apple, counsel for Plaintiffs has not filed the subpoena in the

record.

Aside from this procedural defect and moving to the “substance” of the argument,

counsel fares no better. Counsel’s first argument out of the box is that, in serving the subject
subpoena, Defendants seek “… nothing more than to delay the trial set for January 7, 2019.”
(Rec. doc. 95-1 at p. 1)(emphasis added). This argument, it should be noted, is set forth on

the first page of a motion filed eight days after January 7, 2019. That is because the trial date
was recently continued to September 9, 2019, a fact expressly pointed out to counsel by this

Court on the record at the January 9, 2019 hearing on the previous motion. (Rec. docs. 81,

The Court will focus on the activities of counsel here because it is altogether unclear from day-to-day and
page-to-page on whose behalf she is acting. The first motion was filed on behalf of the Plaintiffs, yet at the
hearing on that motion Ms. Motta insisted it was filed on behalf of Garrison. (Transcript at p. 5). Here, she
states she is filing on behalf of Garrison but in multiple places she states, “Plaintiff moves this Honorable Court
to quash the subpoena. . . ,” “Plaintiff prays that this Honorable Court issue an order quashing the Subpoena
Duces Tecum. . .,” and “[f]or the foregoing reasons, Plaintiff respectfully requests that this Court grant Plaintiff’s
Motion to Quash Subpoena Duces Tecum.” (Rec. docs. 95, p. 2; 95-2, p. 9). She also strangely refers to Garrison
throughout the briefing as “NON-MOVING PARTY.” (Rec. doc. 95-1, pp. 1, 4, 5, 7, 8, 9). Actually, if he is the
movant he is a “MOVING NON-PARTY.” This confusing verbiage is attributable no doubt to the cut-and-paste
approach employed in “writing” this brief. Adding to this confusion is the befuddling “Request for Oral
Argument” on the present motion, which is said to be filed on behalf of “Non-party Motta Law, LLC, through its
sole member and undersigned counsel, Vanessa Motta, Esq.” (Rec doc. 96). It is all too much for the Court to
unwind so it will stick to addressing the conduct and activities of counsel, Ms. Motta.
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99, transcript at p. 4). The Court cannot understand how this argument still made it into
counsel’s brief, but it merits no further attention in any event.

Next come citations to a handful of cases in which various judges in this district

quashed subpoenas for phone records primarily on relevance grounds. This Court has
already stated repeatedly that the requested records in this case are relevant, given the

established and undisputed fact (based on the phone records of Plaintiffs themselves) that

Garrison – a former client of Ms. Motta’s in a similar motor vehicle accident and a relative of
Plaintiff, Henderson-Burkhalter – was in cell-phone contact with Henderson-Burkhalter “…
in the days leading up to the subject incident, the date thereof, and in the early morning hours
the day after the incident…” (Rec. doc. 83 at p. 2).
Counsel argues that:

It should not matter if Mr. Garrison calls his attorney, his
mother, father, brother or the President of the United States. His
records and whom he calls and when is not a matter of discovery
in a case to which he did not witness the accident and cannot offer
any facts or evidence concerning the accident.
(Rec. doc. 95-1, pp. 3-4)
(emphasis added).

This argument misses the point entirely. Evidence of these calls is relevant both to

Defendants’ defenses and their counter-claim alleging that the subject accident was “staged.”

The inquiry at the heart of Defendants’ discovery efforts is the question whether Garrison

can, in fact, “offer any facts or evidence concerning the accident,” considering his
communications with Henderson-Burkhalter immediately before and after that accident.

Finally, counsel argues at some length about the violation of Garrison’s Fourth

Amendment rights, citing the recent decision of the United States Supreme Court in U.S. v.
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Carpenter 2 as support for her argument that the Defendants’ subpoena seeks to “trample”

Garrison’s Fourth Amendment rights. Suffice it to say the Court is wholly unconvinced by
this argument or the citation to Carpenter to support it.

The Carpenter case concerned the Government’s Fourth Amendment search of a

criminal target’s historic cell-site location information in a criminal investigation. The facts

of the case, the statutes involved in the Supreme Court’s analysis, and the rationale behind
the Court’s decision have nothing whatsoever to do with the issues before this Court and

citation to the case by counsel is frivolous. The Fourth Amendment proscribes only
governmental action. United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998).

The present motion – regardless of who brought it – is denied, and counsel is

cautioned against the filing of any similar frivolous motions. In the present motion, counsel
laments that “[t]his ‘war’ of cell phone records requests could go on endlessly but
needlessly.” (Rec. doc. 95-1 at p. 5). Let there be no doubt – that “war” is at an end.
New Orleans, Louisiana, this 18th day of

January

, 2019.

MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE

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___ U.S., ___, 138 S.Ct. 2206 (2018).

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