Flagg v. Detroit, City of et al

Filing 112

Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ERNEST FLAGG, as Next Friend of JONATHAN BOND, a Minor, Plaintiffs, v. CITY OF DETROIT, a municipal corporation; DETROIT POLICE CHIEF ELLA BULLYCUMMINGS; DEPUTY DETROIT POLICE CHIEF CARA BEST; JOHN DOE POLICE OFFICERS 1-20; ASST. DEPUTY POLICE CHIEF HAROLD CURETON; COMMANDER CRAIG SCHWARTZ; POLICE LT. BILLY JACKSON; MAYOR KWAME M. KILPATRICK, CHRISTINE BEATTY, Jointly and Severally, Defendants. Norman A. Yatooma (P54746) Robert S. Zawideh (P43787) Norman Yatooma & Associates, P.C. Attorneys for Plaintiffs 219 Elm Street Birmingham, Michigan 48009 [phone] [e-mail] Krystal A. Crittendon (P49981) John A. Schapka (P36731) City of Detroit Law Department Attorneys for Defendants City of Detroit, Hariold Cureton and Craig Schwartz 1650 First National Building Detroit, Michigan 48226 [phone] [e-mail] Mayer Morganroth (P17966) Jeffrey B. Morganroth (P41670) Morganroth & Morganroth, PLLC Attorneys for Defendant Christine Beatty 3000 Town Center, Suite 1500 Southfield, Michigan 48075 [phone] [e-mail] James C. Thomas (P23801) James C. Thomas, P.C. Plunkett & Cooney, P.C. Attorneys for Defendant Mayor Kwame M. Kilpatrick 535 Griswold, Suite 2632 Detroit, Michigan 48226 [phone] [e-mail] Case No. 05-CV-74253 Hon. Gerald Rosen Magistrate Judge R. Steven Whalen

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

Kenneth L. Lewis (P24071) Said A. Taleb (P66030) Randal M. Brown (P70031) Plunkett & Cooney, P.C. Attorneys for Defendant Ella Bully-Cummings 535 Griswold, Suite 2400 Detroit, Michigan 48226 [phone] [e-mail]

Herschel P. Fink (P13427) Honigman Miller Schwartz and Cohn Attorneys for Intervenor Detroit Free Press 660 Woodward Avenue, Suite 2290 Detroit, Michigan 48226-3583 [phone] [e-mail] Thomas G. Plunkett (P18957) David E. Plunkett (P66696) Williams, Williams, Rattner & Plunkett, P.C. Attorneys for Non-Party Bell Industries, Inc. d/b/a SkyTel 380 N. Old Woodward Avenue, Suite 300 Birmingham, Michigan 48009 [phone] [e-mail]

MOTION TO QUASH BY NON-PARTY BELL INDUSTRIES, INC. D/B/A SKYTEL Non-Party Bell Industries, Inc., d/b/a SkyTel ("SkyTel"), by its attorneys, hereby moves to quash certain subpoenas issued in this matter pursuant to Fed. R. Civ. P. 45. In support of its motion, SkyTel states as follows: 1. Plaintiff served subpoenas duces tecum on SkyTel on or about February 1 and

February 11, 2008. 2. The February 1 and 11, 2008 subpoenas to SkyTel were the subject of motions to

quash filed by certain Defendants on February 8 and 20, 2008. 3. The Court issued an Order on March 20, 2008, granting in part and denying in

part Defendants' motions to quash. 4. Plaintiff sent a third subpoena duces tecum to SkyTel on or about April 21, 2008,

but Plaintiff's counsel informed SkyTel by e-mail on April 25, 2008 that SkyTel should

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

disregard the April 21 subpoena until service of same is effected on SkyTel. (Ex. B to Brief in Support.) Plaintiff has not served the April 21 subpoena on SkyTel. 5. On April 25, 2008, Defendant Christine Beatty filed a Motion to Preclude

Discovery of Electronic Communications From SkyTel Based Upon the Federal Stored Communications Act ("Beatty's Motion to Preclude"). Beatty's Motion to Preclude seeks to quash Plaintiff's February 1, February 11 and April 21 subpoenas to SkyTel. 6. On May 2, 2008, Defendant City of Detroit filed a Motion to Quash

Subpoena/Motion to Preclude Discovery of Electronic Communications from SkyTel Based Upon the Federal Stored Communications Act ("the City's Motion to Quash"). The City's Motion to Quash relates only to the February 1 and February 11 subpoenas to SkyTel. 7. On May 6, 2008, the Court issued an Order Regarding Defendants' Motions to

Preclude Discovery of Electronic Communications. The May 6 Order denied Beatty's Motion to Preclude regarding the non-content information sought in the April 21 subpoena to SkyTel. However, Plaintiff's counsel has instructed SkyTel to disregard that subpoena. (Ex. B to Brief in Support.) 8. Certain Defendants have repeatedly challenged what person or entity can

authorize SkyTel to produce electronic communications and have claimed that SkyTel may be exposed to civil claims for such production. 9. SkyTel's interests in this Court are limited to following: (1) complying with any

orders entered by the Court regarding SkyTel's production in response to the subpoenas at issue; (2) avoiding civil claims based on such compliance; and (3) being reimbursed for its reasonable costs of compliance.

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

10.

The Court has the authority to compel SkyTel's compliance with the February 1

and February 11, 2008 subpoenas, or to quash those subpoenas. 11. The Court has the authority to compel Defendants to request from SkyTel

documents responsive to the February 1 and February 11, 2008 subpoenas. WHEREFORE, for all of the foregoing reasons and those stated in the Brief in Support of this Motion, Non-Party Bell Industries, Inc., d/b/a SkyTel respectfully requests that the Court (1) enter an Order quashing Plaintiff's February 1 and 11, 2008 subpoenas or compelling SkyTel to comply with the subpoenas or (2) enter an Order compelling Defendants to request and obtain the subpoenaed information from SkyTel. Should the Court order SkyTel to respond to the subpoenas, SkyTel should be awarded its reasonable costs of compliance. Respectfully submitted,
WILLIAMS, WILLIAMS, RATTNER & PLUNKETT, P.C.

By:

/s/ Thomas G. Plunkett Thomas G. Plunkett (P18957) David E. Plunkett (P66696) Attorneys for Non-Party Bell Industries, Inc. d/b/a SkyTel 380 N. Old Woodward Avenue, Suite 300 Birmingham, Michigan 48009 [phone]

Dated: May 13, 2008

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00384245

Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ERNEST FLAGG, as Next Friend of JONATHAN BOND, a Minor, Plaintiffs, v. CITY OF DETROIT, a municipal corporation; DETROIT POLICE CHIEF ELLA BULLYCUMMINGS; DEPUTY DETROIT POLICE CHIEF CARA BEST; JOHN DOE POLICE OFFICERS 1-20; ASST. DEPUTY POLICE CHIEF HAROLD CURETON; COMMANDER CRAIG SCHWARTZ; POLICE LT. BILLY JACKSON; MAYOR KWAME M. KILPATRICK, CHRISTINE BEATTY, Jointly and Severally, Defendants. Norman A. Yatooma (P54746) Robert S. Zawideh (P43787) Norman Yatooma & Associates, P.C. Attorneys for Plaintiffs 219 Elm Street Birmingham, Michigan 48009 [phone] [e-mail] Krystal A. Crittendon (P49981) John A. Schapka (P36731) City of Detroit Law Department Attorneys for Defendants City of Detroit, Hariold Cureton and Craig Schwartz 1650 First National Building Detroit, Michigan 48226 [phone] [e-mail] Mayer Morganroth (P17966) Jeffrey B. Morganroth (P41670) Morganroth & Morganroth, PLLC Attorneys for Defendant Christine Beatty 3000 Town Center, Suite 1500 Southfield, Michigan 48075 [phone] [e-mail] James C. Thomas (P23801) James C. Thomas, P.C. Plunkett & Cooney, P.C. Attorneys for Defendant Mayor Kwame M. Kilpatrick 535 Griswold, Suite 2632 Detroit, Michigan 48226 [phone] [e-mail] Case No. 05-CV-74253 Hon. Gerald Rosen Magistrate Judge R. Steven Whalen

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

Kenneth L. Lewis (P24071) Said A. Taleb (P66030) Randal M. Brown (P70031) Plunkett & Cooney, P.C. Attorneys for Defendant Ella Bully-Cummings 535 Griswold, Suite 2400 Detroit, Michigan 48226 [phone] [e-mail]

Herschel P. Fink (P13427) Honigman Miller Schwartz and Cohn Attorneys for Intervenor Detroit Free Press 660 Woodward Avenue, Suite 2290 Detroit, Michigan 48226-3583 [phone] [e-mail] Thomas G. Plunkett (P18957) David E. Plunkett (P66696) Williams, Williams, Rattner & Plunkett, P.C. Attorneys for Non-Party Bell Industries, Inc. d/b/a SkyTel 380 N. Old Woodward Avenue, Suite 300 Birmingham, Michigan 48009 [phone] [e-mail]

BRIEF IN SUPPORT OF MOTION TO QUASH BY NON-PARTY BELL INDUSTRIES, INC. D/B/A SKYTEL Non-Party Bell Industries, Inc., d/b/a SkyTel ("SkyTel"), files this Brief in Support of its Motion to Quash. Introduction SkyTel's intention in filing its Motion to Quash is to protect it from being sued for complying with this Court's orders. Some Defendants mistakenly believe that the Stored

Communications Act, 18 U.S.C. §§ 2701 et seq. ("SCA"), prohibits SkyTel from producing any information in response to a civil subpoena. The SCA distinguishes between content and non-content information. This Court

previously ruled that defendants' objections to the disclosure of non-content information have no

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

basis under the SCA,1 but the issue of whether content information can be released in response to a civil subpoena remains. SkyTel has been threatened with litigation if it provides information in response to a civil subpoena.2 Several parties with divergent interests in this and other cases are seeking

information from SkyTel without regard to the consequences to SkyTel. In short, to the extent this Court finds that SkyTel should produce information in response to a subpoena, it should do so in a way that protects Sky Tel from facing civil claims for doing what the Court orders. This Court can do so by ordering SkyTel to produce the requested information. Alternatively, the Court can avoid ruling upon the propriety of civil subpoenas under the SCA by ordering Defendants to request and obtain the requested information from SkyTel. Finally, if the Court orders SkyTel to respond to the subpoenas at issue, SkyTel should be awarded its reasonable costs of compliance. Factual and Procedural Background 1. The Subpoenas Plaintiff served a subpoena duces tecum on SkyTel on or about February 1, 2008, which seeks, in summary: (1) all contracts between SkyTel and the City of Detroit from 2002 to the present and (2) all text messages, e-mails, telephone calls and instant messages to or from thirtyfour (34) individuals. Plaintiff served a second subpoena duces tecum on SkyTel on or about February 11, 2008, which seeks, in summary: (1) all text messages, e-mails and instant messages to or from all City of Detroit employees between 1:30 a.m. and 5:30 a.m. on the morning of April 30, 2003

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Jessup-Morgan v. America Online, Inc., 20 F. Supp. 2d 1105, 1108 (E.D. Mich. 1998) (explaining that the SCA generally permits disclosure of non-content information). 2 Ex. A, March 12, 2008 Letter from Dan Webb to Wendy Mullins.

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

and (2) any information on the geographical location of the senders and recipients at the time of such messages. Plaintiff sent a third subpoena duces tecum to SkyTel on or about April 21, 2008, which seeks: (1) a list of all PIN numbers for SkyTel pagers issued to the City of Detroit from August 1, 2002 to September 1, 2007; (2) the names associated with each PIN number and (3) the dates of use for all persons and/or PIN numbers identified in (1) and (2). The April 21 subpoena has a return date of May 19, 2008. However, Plaintiff's counsel informed SkyTel by e-mail on April 25, 2008 that the April 21 subpoena was sent to SkyTel only as a courtesy copy, and that SkyTel should disregard the subpoena until service of same is effected on SkyTel.3 As of the filing of this motion, Plaintiff has not served the April 21 subpoena on SkyTel. 2. The Motions to Quash The February 1 and 11, 2008 subpoenas to SkyTel were the subject of the motions to quash filed by defendants on February 8 and 20, 2008. The Court issued an Order on March 20, 2008 granting in part and denying in part Defendants' motions to quash. The Court's March 20 Order limited the time period at issue in Plaintiff's February 1, 2008 subpoena and ordered Plaintiff to reduce the number of individuals whose communications are subject to that subpoena. The Court also issued a separate Order on March 20, 2008 establishing a procedure for production of documents by SkyTel in response to the February 1 and 11 subpoenas (the "Order Establishing Protocol"). On April 30, 2008, Magistrate Judge Whalen issued a Notice of a May 14, 2008 Status Conference, at which the parties are to discuss the procedure relating to SkyTel's production pursuant to the February 1 and 11 subpoenas.

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Ex. B.

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

On April 25, 2008, Defendant Christine Beatty filed a Motion to Preclude Discovery of Electronic Communications From SkyTel Based Upon the Federal Stored Communications Act ("Beatty's Motion to Preclude"). Beatty's Motion to Preclude seeks to quash Plaintiff's

February 1, February 11 and April 21 subpoenas to SkyTel. According to Defendant Beatty, most of the other Defendants have concurred in her Motion to Preclude. Defendant Mayor Kilpatrick filed a separate concurrence with Defendant Beatty's Motion to Preclude on April 30, 2008. On May 2, 2008, Defendant City of Detroit filed a Motion to Quash Subpoena/Motion to Preclude Discovery of Electronic Communications from SkyTel Based Upon the Federal Stored Communications Act ("the City's Motion to Quash"). In addition to arguing that the SCA precludes disclosure of the subpoenaed electronic communications, the City's Motion to Quash argues that the electronic communications at issue are protected by the executive, deliberative process and/or evaluative process privileges. The City's Motion to Quash relates only to the February 1 and February 11 subpoenas to SkyTel. On May 6, 2008, the Court issued an Order Regarding Defendants' Motions to Preclude Discovery of Electronic Communications. The May 6 Order denied Beatty's Motion to Preclude regarding the non-content information sought in the April 21 subpoena to SkyTel. In the May 6 Order, the Court did not rule on Defendants' arguments regarding the February 1 and February 11 subpoenas. The May 6 Order states in footnote 4: "In light of this ruling, there is no apparent barrier to SkyTel's compliance with Plaintiff's April 21, 2008 subpoena." As noted above, however, Plaintiff has not served the April 21 subpoena on SkyTel, and Plaintiff's counsel has instructed SkyTel to disregard that subpoena.

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

Argument 1. If the Subpoenas Are Not Quashed, SkyTel's Compliance Should be Ordered. SkyTel anticipates that Defendants will respond to this motion by making many of the same arguments asserted in Beatty's Motion to Preclude and the City's Motion to Quash. If the Court agrees with Defendants' arguments, SkyTel will, of course, abide by an Order from the Court quashing Plaintiff's subpoenas. If the Court rejects Defendants' arguments, in whole or part, the Court should enter an Order compelling SkyTel to respond to the subpoenas as the Court deems appropriate. See Bansal v. Microsoft Hotmail, 2008 U.S. App. LEXIS 5034 at *2-3 (3rd Cir. Mar. 7, 2008) ("the SCA exempts all parties acting pursuant to a court order from liability").4 Although the SCA does not specifically address a court's authority to compel a provider of electronic communication service to comply with a civil subpoena, the defenses to liability under the SCA suggest that a court does have such authority. See 18 U.S.C. § 2707(e) ("A good faith reliance on ­ (1) a court warrant or order . . . is a complete defense to any civil or criminal action brought under this chapter [18 U.S.C. §§ 2701 et seq.] or any other law.") (emphasis added); 18 U.S.C. § 2703(e) ("No cause of action shall lie in any court against any provider of wire or electronic communication service . . . for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter [18 U.S.C. §§ 2701 et seq.].") (emphasis added)5; contra O'Grady, 139 Cal. App. 4th at 1442-47 (refusing to enforce civil subpoenas under the SCA).
Ex. C. Although Section 2703 of the SCA focuses on disclosure to governmental entities, Section 2703(e) is specifically incorporated into Section 2707, which addresses potential liability for providers of electronic communication service. See 18 U.S.C. § 2707(a) ("Except as provided in section 2703(e), [providers may incur civil liability for violating the SCA]") (emphasis added). The exception to liability in Section 2703(e) "for providing information, facilities, or assistance in accordance with the terms of a . . . subpoena" also implicitly authorizes providers to respond to civil subpoenas. See also McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006) ("Good faith
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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

2.

Alternatively, Defendants Should Communications from SkyTel.

be

Ordered

to

Obtain

the

Electronic

This Court can completely avoid the issue of the propriety of a civil subpoena under the SCA by ordering Defendants to request and obtain the information from SkyTel. The SCA expressly permits providers such as SkyTel to disclose electronic communications "with the lawful consent of the originator or an addressee or intended recipient of such communications, or the subscriber in the case of remote computing service." 18 U.S.C. § 2702(b)(3). Although it is a legal question for the Court to decide, it appears that SkyTel is a "remote computing service" within the meaning of the SCA regarding the electronic communications at issue. The SCA defines "remote computing service" as "the provision to the public of computer storage or processing services by means of an electronic communications system." 18 U.S.C. § 2711(2). The most exhaustive judicial analysis of the term "remote computing service" has further clarified its meaning: "The storage is long-term, is not incidental to the transmission of the communication itself, and is not meant for backup protection but apparently as the single place where text messages, after they have been read, are archived for a permanent recordkeeping mechanism." Quon v. Arch Wireless Operating Co., Inc., 445 F. Supp.2d 1116, 1136 (C.D. Cal. 2006) (granting summary judgment to provider and other defendants on SCA claim). This description applies squarely to the electronic communications sought by Plaintiff's subpoenas. As such, the subscriber can consent to the disclosure of the communications at issue, and the City of Detroit has admitted to this Court that it is the subscriber of the SkyTel service.6 Moreover, the remaining Defendants are "the originator or an addressee or intended

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reliance on a subpoena is a complete defense to actions brought under the ECPA and SCA."); contra O'Grady v. Superior Court of Santa Clara County, 139 Cal. App. 4th 1423, 1442-47 (6th Dist. 2006) (refusing to enforce civil subpoenas under the SCA), modified by 2006 Cal. App. LEXIS 934 (6th Dist. June 23, 2006).
6

The City's Motion to Quash, p. 2, ¶ 3 and Brief in Support, pp. 1, 3 (Docket Entry 106).

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

recipient" with respect to electronic communications sent by them or to them, and thus can consent to the disclosure of such communications under 18 U.S.C. § 2702(b)(3). Even if SkyTel were not providing a remote computing service, and even if the City were not the admitted subscriber, the remaining Defendants can consent to the disclosure of their own communications stored by SkyTel. Courts have the authority to order parties to request electronic communications from their service providers. O'Grady, 139 Cal. App. 4th at 1446 ("Where a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions."). Accordingly, if this Court finds that the

information sought by the subpoenas should be produced, it should order Defendants to request and obtain that information from SkyTel. Conclusion For all of the foregoing reasons, SkyTel respectfully requests that the Court (1) enter an Order quashing Plaintiff's February 1 and 11, 2008 subpoenas or compelling SkyTel to comply with the subpoenas or (2) enter an Order compelling Defendants to request and obtain the subpoenaed information from SkyTel. Should the Court order SkyTel to respond to the

subpoenas, SkyTel should be awarded its reasonable costs of compliance. Respectfully submitted,
WILLIAMS, WILLIAMS, RATTNER & PLUNKETT, P.C.

By:

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Dated: May 13, 2008
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/s/ Thomas G. Plunkett Thomas G. Plunkett (P18957) David E. Plunkett (P66696) Attorneys for Non-Party Bell Industries, Inc. d/b/a SkyTel 380 N. Old Woodward Avenue, Suite 300 Birmingham, Michigan 48009 [phone] 8

Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ERNEST FLAGG, as Next Friend of JONATHAN BOND, a Minor, Plaintiffs, v. CITY OF DETROIT, a municipal corporation; DETROIT POLICE CHIEF ELLA BULLYCUMMINGS; DEPUTY DETROIT POLICE CHIEF CARA BEST; JOHN DOE POLICE OFFICERS 1-20; ASST. DEPUTY POLICE CHIEF HAROLD CURETON; COMMANDER CRAIG SCHWARTZ; POLICE LT. BILLY JACKSON; MAYOR KWAME M. KILPATRICK, CHRISTINE BEATTY, Jointly and Severally, Defendants. Norman A. Yatooma (P54746) Robert S. Zawideh (P43787) Norman Yatooma & Associates, P.C. Attorneys for Plaintiffs 219 Elm Street Birmingham, Michigan 48009 [phone] [e-mail] Krystal A. Crittendon (P49981) John A. Schapka (P36731) City of Detroit Law Department Attorneys for Defendants City of Detroit, Hariold Cureton and Craig Schwartz 1650 First National Building Detroit, Michigan 48226 [phone] [e-mail] Mayer Morganroth (P17966) Jeffrey B. Morganroth (P41670) Morganroth & Morganroth, PLLC Attorneys for Defendant Christine Beatty 3000 Town Center, Suite 1500 Southfield, Michigan 48075 [phone] [e-mail] James C. Thomas (P23801) James C. Thomas, P.C. Plunkett & Cooney, P.C. Attorneys for Defendant Mayor Kwame M. Kilpatrick 535 Griswold, Suite 2632 Detroit, Michigan 48226 [phone] [e-mail] Case No. 05-CV-74253 Hon. Gerald Rosen Magistrate Judge R. Steven Whalen

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Williams Williams Rattner & Plunkett, P.C. 380 North Old Woodward Avenue Suite 300 Birmingham, Michigan 48009 Tel: [phone] Fax: [phone] www.wwrplaw.com

Kenneth L. Lewis (P24071) Said A. Taleb (P66030) Randal M. Brown (P70031) Plunkett & Cooney, P.C. Attorneys for Defendant Ella Bully-Cummings 535 Griswold, Suite 2400 Detroit, Michigan 48226 [phone] [e-mail]

Herschel P. Fink (P13427) Honigman Miller Schwartz and Cohn Attorneys for Intervenor Detroit Free Press 660 Woodward Avenue, Suite 2290 Detroit, Michigan 48226-3583 [phone] [e-mail] Thomas G. Plunkett (P18957) David E. Plunkett (P66696) Williams, Williams, Rattner & Plunkett, P.C. Attorneys for Non-Party Bell Industries, Inc. d/b/a SkyTel Corp. 380 N. Old Woodward Avenue, Suite 300 Birmingham, Michigan 48009 [phone] [e-mail]

I hereby certify that on May 13, 2008, I electronically filed the foregoing Motion to Quash by Non-Party Bell Industries, Inc. d/b/a Skytel and this Certificate of Service with the Clerk of the Court using the ECF, which will send notification to the following: [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

/s/ David E. Plunkett Williams, Williams, Rattner & Plunkett, P.C. Attorneys for Intervenor Bell Industries, Inc. d/b/a SkyTel 380 N. Old Woodward, Suite 300 Birmingham, Michigan 48009 [phone] [e-mail]

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