Sutton et al v. Davidson et al

Filing 152

MEMORANDUM ORDER: granting in part and denying in part 93 Motion to Compel; Plaintiff and Intervenor are directed to provide their phones to a third-party expert (not related in any way to the parties or their attorneys) for the extraction of all text messages and emails between Plaintiff and Intervenor regarding the child (including, but not limited to, communications regardingpaternity, support, visitation, and tutorship). Production of emails and messages shall be made no later than 2/27/1 5. No later than 2/20/15, Plaintiff and Intervenor are directed to file a joint motion with the state court to unseal the records (it appears only the paternity action was sealed) for the limited purpose of providing a complete copy of the records to Defendants. Granting in part and denying in part 103 Motion for Protective Order; Granting in part and denying in part 127 Motion to Quash. 127 Motion for Sanctions is denied. All other relief in connection with the pending motions is denied. Signed by Magistrate Judge Mark L Hornsby on 2/6/15. (crt,Delgado, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

SARAH SUTTON

CIVIL ACTION NO. 13-cv-0952

VERSUS

JUDGE WALTER

BRODERICK DAVIDSON, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Background
This lawsuit arises out of a trucking accident in which Plaintiff and her minor child
sustained injuries. Intervenor, the biological father of the child, has filed a claim in this court
for loss of consortium. Defendants believe that Intervenor has never really supported the
child and has showed interest in him after the accident only because of the possibility of
getting money.
The Pending Motions
Defendants have filed a Motion to Compel (Doc. 93) that asks the court to compel
Plaintiff and Intervenor to produce documents and correspondence (including emails and text
messages) between Intervenor and Plaintiff regarding the child. Defendants’ requests include
documents, pleadings, discovery, and correspondence related to two state court actions,
Rogers v. Sutton, No. 566,334, 1st JDC (under seal), and Tutorship of LAT, No. 566,135,
1st JDC. Defendants also seek production of the car seat used by the child at the time of the
accident. Plaintiff and Intervenor oppose the Motion to Compel and also filed a Motion for

Protective Order (Doc. 103) and a Motion to Quash Subpoenas and for Sanctions (Doc.
127).
Plaintiff and Intervenor’s objections to production of the requested correspondence,
including emails and text messages, are overruled. Attached to the Motion to Compel are
text messages from Plaintiff to Intervenor referring to him as a “child molester,” “monster,”
and “psycho” who has not paid child support in months. The text messages show that
Plaintiff threatened Intervenor several times with restraining orders and arrest.
Such communications, while no doubt embarrassing to Plaintiff and Intervenor in the
current context, are nonetheless highly relevant to their claims for damages, including their
consortium claims. It appears Intervenor has produced screen shots of numerous text
messages and typed versions of other messages. It does not appear that Plaintiff has
produced any of the requested text messages.
Defendant’s motion to compel is granted as follows. Plaintiff and Intervenor are
directed to provide their phones to a third-party expert (not related in any way to the parties
or their attorneys) for the extraction of all text messages and emails between Plaintiff and
Intervenor regarding the child (including, but not limited to, communications regarding
paternity, support, visitation, and tutorship). The production shall include the dates and times
of the communications, if available.

Upon production of the third-party’s invoice,

Defendants shall immediately reimburse Plaintiff and Intervenor’s attorneys for the cost of
the third-party’s extraction of the messages and emails. Time is short; production of the
emails and messages shall be made no later than February 27, 2015.
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Plaintiff and Intervenor are further directed to produce discovery and correspondence
exchanged between them (or their attorneys on their behalf) related to the two state court
cases. Excerpts of the state court pleadings show the Intervenor and Plaintiff filed extreme
and disturbing allegations against each other. Those types of allegations are relevant to
Plaintiff and Intervenor’s relationship with the child, their damages, and their fitness to assert
certain claims. Plaintiff and Intervenor’s various assertions of attorney-client privilege,
settlement privilege, and work product immunity for such matters border on frivolous. And
the fact that Plaintiff and Intervenor later convinced a state court judge to seal one of the
cases does not make the information contained therein less relevant to this case.
No later than February 20, 2015, Plaintiff and Intervenor are directed to file a joint
motion with the state court to unseal the records (it appears only the paternity action was
sealed) for the limited purpose of providing a complete copy of the records to Defendants.
Whether the records remain sealed for other purposes is left to the discretion of the state
court.
With regard to file materials in the possession of the attorneys for Intervenor and
Plaintiff, Defendants shall be provided with all discovery and correspondence exchanged
between the attorneys and parties. Plaintiff and Intervenor need not produce correspondence
sent only to them by their attorney. But they must produce correspondence, discovery, and
the like exchanged between the parties during the state court litigation. There is no privilege
or immunity applicable in that situation because the excerpts provided to this court show that

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Plaintiff and Intervenor were clearly adverse to one another – and sought to impede or
extinguish each other’s right to assert claims in this court – throughout the proceedings.
With regard to the car seat, Plaintiff is directed to obtain the car seat immediately and
make it available to Defendants for inspection. Plaintiff (or her counsel) is then directed to
maintain control of the car seat for the remainder of this litigation.
Intervenor’s Motion for Protective Order (Doc. 103) is granted in part as follows.
Intervenor need not turn over his phone to Defendants or Defendants’ expert. Such a request
is impermissibly broad given the less intrusive means available to obtain the relevant
information. To that end, and as ordered above, Intervenor is directed to turn over his phone
to a third-party expert (chosen by Intervenor) who will extract all text messages and emails
between Intervenor and Plaintiff regarding the child.
Plaintiff’s Motion to Quash and for Sanctions (Doc. 127) is granted in part and
denied in part. The subpoenas issued to the cell phone carriers are quashed. However, the
court reserves Defendants right to re-serve the subpoenas if information comes to light that
Plaintiff or Intervenor (or their third-party expert) did not make a good faith effort to extract
and produce all emails and text messages regarding the child. Plaintiff’s request for
sanctions is denied.
All other relief in connection with the pending motions is denied.

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THUS DONE AND SIGNED in Shreveport, Louisiana, this 6th day of February, 2015.

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