Flagg v. Detroit, City of et al

Filing 54

Flagg v. Detroit, City of et al

Doc. 54

UNITED STATES OF AMERICA IN THE DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
ERNST FLAGG, as Next Friend of JONATHAN BOND, a minor,
Plaintiff,
-vs-

Case No.: 05-CV-74253 Hon. Gerald Rosen

CITY OF DETROIT, a municipal corporation; DETROIT POLICE CHIEF ELLA BULLY-CUMMINGS; 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;
u

MAYORKWAMM. KILPATRICK, CHRSTIN BEATTY, jointly and severally
Defendants.

~ 'I' ~ ¡. ;:

u o '" '" ..
ol

/

Norman Yatooma & Associates, P.c.
By: Norman A. Yatooma (P54746) By: Robert S. Zawideh (P43787) Attorneys for Plaintiffs 219 Elm Street Birmingham, Michigan 48009 [phone]

~

o ¡.

~ ~ ~

Morganroth & Morganroth, PLLC By: Mayer Morganroth (PI 7966) By: Jeffrey B. Morganroth (P41670) Attorneys for Defendants City of Detroit,

Mayor Kwame M. Kilpatrick, Detroit
Police Chief

Ella Bully-Cummings, Comm. Craig Schwartz and Christine Beatty. 3000 Town Center, Ste. 1500 Southfield, Michigan 48075 [phone]

City of Detroit Law Department
By: John A. Schapka (P3673 1)

Co-Counsel for Defendants City of Detroit,

Mayor Kwame M. Kilpatrick, Detroit
Police Chief

Ella Bully-Cummings, Comm. Craig Schwartz and Christine Beatty. 1650 First National Building Detroit, Michigan 48226 [phone]

/ PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO QUASH THE FEBRUARY 1. 2008 SUBPOENA TO BELL INDUSTRIES. INC. AND FOR A PROTECTIVE ORDER.

1

Dockets.Justia.com

NOW COMES THE Plaintiff Jonathan Bond, by and through his Next Friend, Ernest

Flagg, and through their counsel of record Norman Yatooma & Associates, P.C. and for his
Opposition to Defendants City of Detroit, Kwame M. Kilpatrick, Ella Bully-Cummings, Craig
Schwartz and Christine Beatty's Motion to Quash and for a Protective Order, state:
1.

Admitted. Admitted. Admitted. Admitted. Admitted. Admitted.

2.
3.

4.
5.

u

6.

~ "," ~ ¡. ;:

7. Neither admitted nor denied as the subpoena speaks for itself.

u o '" '" ..
ol

8. Denied for the reason that the allegation is untrue.

~

o ¡.

9. Denied for the reason that the allegation is untrue.
10. Denied for the reason that the allegation is untrue.
11. No response to this paragraph is necessary.

~ ~ ~

WHREFORE, Plaintiff respectfully requests that this Court deny Defendants' request for a
protective Order and to Quash the February 1, 2008 Subpoena to Bell Industries, Inc.
Respectfully Submitted,

Dated: February 22,2008

Isl Robert S. Zawideh

Norman Yatooma & Associates, P.c.
By: Norman A. Yatooma (P54746) By: Robert S. Zawideh (P43787) Attorneys for Plaintiffs 219 Elm Street Birmingham, Michigan 48009 [phone]

2

MEMORANDUM IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' REQUEST FOR AN ORDER QUASHING THE FEBRUARY 1. 2008 SUBPOENA TO BELL INDUSTRIES. INC. AND FOR A PROTECTIVE ORDER.
STATEMENT OF ISSUES PRESENTED

i. HAVE DEFENDANTS CHOSEN THE CORRCT FORUM FOR THEIR MOTION TO

QUASH WHN THE ISSUING COURT OF THE SUBJECT SUBPOENA WAS THE
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI AN NOT THE
DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN?

II. DO DEFENDANTS HAVE STANING TO OBJECT TO A SUBPOENA SERVED ON A NON-P ARTY WHERE DEFENDANTS FAILED TO ALLEGE THE EXISTENCE OF A PERSONAL RIGHT OR PRIVILEGE IN THE REQUESTED MATERIALS?

III. WHTHER THE FEBRUARY 1, 2008 SUBPOENA TO BELL INUSTRIES, INC. IS PREMATUR BECAUSE IT WAS SERVED BEFORE THE PARTIES CONDUCTED A RULE 26(f) CONFERENCE BUT AFTER THE COURT ORDERED THE PARTIES TO
u

CONDUCT 'SUBSTANTIAL DISCOVERY?'

~ "," ~ ¡. ;:

IV. WHTHER THE FEBRUARY 1, 2008 SUBPOENA TO BELL INUSTRIES, INC. IS

u o '" '" ..
ol

OVERBROAD, UNULY BURENSOME, EXPENSIVE, IRRLEVANT AN
HARASSING WHRE THE SUBPOENA REQUESTS THE DISCLOSUR OF PUBLIC DOCUMNTS WITHIN THE SCOPE OF ALLOW ABLE DISCOVERY UNER FEDERAL RULE OF CIVIL PROCEDUR 26(b)(I) AN FEDERA RULE OF EVIDENCE 401?
V. WHTHER DEFENDANTS' PENDING DISPOSITIVE MOTION UNER RULE 12(b)(6) SHOULD OPERATE TO STAY PLAITIFF'S ATTEMPT TO CONDUCT DISCOVERY WHN THE COURT PREVIOUSLY ORDERED THE PARTIES TO BEGIN CONDUCTING

~

o ¡.

~ ~ ~

'SUBSTANTIAL DISCOVERY' IN ITS ORDERS OF DECEMBER 5, 2007 AN
DECEMBER 19, 2007?

VI. WHTHER DEFENDANTS HAVE SUFFERED PREJUICE AS A RESULT OF RECEIVING THE FEBRUARY 1, 2008 SUBPOENA IN A MANR TECHNICALLY INCONSISTENT WITH RULE 45(b)(I) BUT WHRE DEFENDANTS HAVE HAD SUFFICIENT OPPORTUNITY TO MOVE TO QUASH THE SUBPOENA AN THE

SUBJECT OF THE SUBPOENA HAS REFRAID FROM PRODUCING THE
SUBPOENAED RECORDS UNTIL THE COURT RULES ON DEFENDANTS' MOTION?

T ABLE OF CONTENTS
ST ATEMENT OF ISSUES PRESENTED................................................................................... i

TABLE OF CONTENTS............................................................................................................ii
T ABLE OF AUTHORTIES.......................................................................................................iii
i. INTRODUCTION.............................................................................................................. 1

II. ARGUMNT...................................................................................................................... 2
a. Defendants have fied their Motion in the wrong forum under Rule 45(c)(3)(A), which

mandates that only the Court that issued the subpoena has the power to quash or modify the subj ect subpoena. .................................................................................................................... 2

b. The Defendants herein lack standing to object to the Rule 45 subpoena directed to a nonparty to this action, Bell Industries, Inc., because they lack a personal right or privilege with respect to the subj ect matter of the subpoena. .......................................................................... 3
u
~ "," ~ ¡. ;:

c. The subpoena to Bell Industries, Inc. is not premature under FRCP 26( d) because this
Court issued an Order prior to the January 4, 2008 scheduling conference directing the parties
to conduct 'substantial discovery.' ........................................................................................... 4

u o '" '" ..
ol

d. The subpoena to Bell Industries, Inc. requests the surrender of relevant, non-privileged
and otherwise discoverable materials from a non-party to this action. ......................................5
e. The fact that Defendants fied a dispositive motion to Plaintiff s Second Amended

~

o ¡.

~ ~ ~

Complaint is no reason to deny or suspend discovery in this matter, where Defendants offer no

reason other than bare assertions that further discovery would be burdensome if discovery were to proceed. ...................................................................................................................... 9
f. Simply because Defendants did not receive the subpoena until February 1, 2008 does not

necessarily entail that it is proper for this Court to enter an Order quashing the subpoena to Bell Industries. ...................................................................................................................... 10

III. CONCLUSION............................................................................................................. 13

II

TABLE OF AUTHORTIES
Federal Cases

Barrington v. Mortgage It, Inc., 2007 US. Dist. LEXIS 90555 (S.D. Fl. 2007) ........................... 8

Continental Illnois Natl Bank & Trust Co. v. Caton, 130 F.RD. 145 (D. Kan. 1990) ..............12
Cromer v. Braman, 2007 US. Dist. LEXIS 82744 (W.D. Mich. 2007)......................................11 Dean v. Anderson, 2002 US. Dist. LEXIS 11536 (D. Kan. 2002) ...........................................7, 8
Howse v. Atkinson, 2005 US. Dist. LEXIS 7511 (D. Kan.)................................................. 11,12

In Re Application of Apollo Advisors, L.P., 1993 US. Dist. LEXIS 7927 (S.D.N.Y. 1993) .........7
In Re Digital Equip. Corp., 949 F.2d 228 (8th Cir. 1991)............................................................3

In Re Johnson & Johnson, 59, F.RD. 174 (D. De. 1973) ..........................................................13
u
~ "," ~ ¡. ;:

Irons v. Karcesksi, 74 F.3d 1262 (D.C. Cir. 1975).......................................................................4

u o '" '" ..
ol

Laethem Equip. Co. v. Deere & Co., 2007 US. Dist. LEXIS 70740 (E.D. Mich. 2007)...............5

Langfordv. Chrysler Motors Corp., 513 F.2d 1121 (5th Cir. 1975).............................................4
McClendon v. TelOhio Credit Union, Inc., 2006 US. Dist. LEXIS 57222 (W.D. Mich. 2006)..14

~

o ¡.

~

Richardson v. Florida, 137 F.RD. 401 (M.D. Fla. 1991) ..........................................................14
~ ~

Seewald v. lIS Intellgence Info. Sys., 1996 US. Dist. LEXIS 22479 (E.D.N.Y. 1996) ..............14
Short v. Oaks. Corr. Facility, 129 Fed. Appx. 278 (6th Cir. 2005) (unpublished) ...................... 12

Spartanburg Reg'l Healthcare Sys. v. Hilenbrand Indus., 2005 US. Dist. LEXIS 32861 (N.D.
Ohio 2005) .............................................................................................................................. 7

United States v. Wells, 2006 US. Dist. LEXIS 83124 (E.D. Mich. 2006) ....................................4
Wolfv. United States, 157 F.RD. 494 (D. Kan. 1994)...............................................................11

Rules
FED. R Cry. P. 26(b )(1)........................................................................................................... 7, 8

FED. R Cry. P. 26(d) ............................................................................................................. 6, 11
FED. R Cry. P. 45(b )(1)............................................................................................................. 13

III

FED. R Cry. P. 45( c)(3)(A).......................................................................................................... 3

FED. R EYID. 401.................................................................................................................... 8, 9

Treatises
9-45 MOORE'S FEDERA PRACTICE §45.50( 4) (2007)................................................................... 3

u

~ "," ~ ¡. ;:

u o '" '" ..
ol

~

o ¡.

~ ~ ~

IV

i. INTRODUCTION

This action was instituted on November 7, 2005 against the City of Detroit, Mayor
Kwame M. Kilpatrick and other individuals. On January 14, 2008 Plaintiff, through his new
counsel, fied via leave of this court, his Second Amended Complaint. Plaintiff alleges that the
Defendants actively concealed and deliberately obstructed investigation of the April 30, 2003,
murder of his decedent mother, Ms. Tamara Greene. A related investigation concerning an

alleged assault some six months earlier on Tamara Greene by Defendant Kilpatrick's wife,

Carlita Kilpatrick was likewise terminated with firing days later of former Deputy Chief Gary
Brown, head of Professional Accountability Bureau, the agency that was investigating these and
u
other allegations of misconduct. i Thereafter, the homicide investigators were transferred to

~ "," ~ ¡. ;:

another precinct and demoted for "asking too many questions" about this case, and had their hard

u o '" '" ..
ol

drives erased and back up zip drives stolen. Then, despite an active ("hot") investigation, this
case was designated a "cold case" and transferred to the Cold Case Squad after only one year, in
violation of departmental policies or practices which did not allow for such a transfer for at least
two years. This obstruction of justice actively terminated Plaintiff s ability to obtain meaningful

~

o ¡.

~ ~ ~

relief from the courts, thus giving rise to the instant constitutional claim of denial of access to the
courts.

On December 5, 2007 and December 19, 2007 this Court ordered that the parties appear

before it for a Rule 16(b) scheduling conference. (Ex. 1, December 5, 2007 Order; Ex. 2,
December 19, 2007 Order). In both Orders, the court stated that "counsel are instructed to
According to the text messages that were obtained by The Detroit Free Press, which are the subject of the instant subpoena, Defendants Kilpatrck and Beatty apparently lied under oath durng the whistleblower trials of Deputy Chief Brown and Lt. Harold Neltlope about their decision to fire Deputy Chief Brown. Just days before Brown's firing and days afer Greene's murder, Defendant Beatty asked former Detroit Chief of Police Jerry A. Oliver about his deparment's investigation of the Manoogian Mansion par. See relevant pages of Jerry Oliver's
deposition transcript attached here as Exhbit 5. Indeed, of

misconduct alleged by Harold Nelthrope, the universe of it appears that the investigation of the par, and the ruors swirling around Defendant Kilpatrick and his wife
Carlita's actions at this par, was the only investigation in which Beatty was interested. ¡d.

1

commence significant discovery prior to the conference." Id. In response, and after Plaintiff s

Second Amended Complaint was fied, Plaintiff delivered a subpoena under Rule 45 to Bell

Industries, Inc. f/k/a Skytel, Inc., which is in possession of certain text message and other
relevant evidence to prove Plaintiff s claims that the Defendants actively frustrated and

concealed evidence relating to the murder of Plaintiff s mother. The subpoena, executed on
February 1, 2008 was delivered to Defendants that same day. While the subpoena commanded
the production of

the requested material on February 1, 2007 it was not served until February 14,

2008. (Ex. 3, 2/1/2008 Subpoena with Proof of Service). While Defendants are correct to state
that the subpoena was delivered to Bell Industries commensurate with delivery of the subpoena
u

on them, facsimile delivery is not a suffcient method of service of process under Rule 45(b )(1)?
On February 8, 2008 Defendants fied the instant Motion to Quash the Bell Industries, Inc.

~ "," ~ ¡. ;:

u o '" '" ..
ol

subpoena on grounds that it was improperly served upon them pursuant to Rule 45(b )(1), that it

~

o ¡.

was premature and that it sought the discovery of irrelevant and burdensome evidence. For the
reasons stated herein, Defendants' relief should be denied and, per this Court's December 5 and
December 19, 2008 Orders, the parties should be allowed to continue to conduct 'substantial
discovery' regardless of

~ ~ ~

the pending dispositive motion.

II. ARGUMNT
a. Defendants have fied their Motion in the wrong forum under Rule 45(c)(3)(A), which mandates that only the Court that issued the subpoena has the power to quash or modify the subject subpoena.

Pursuant to Federal Rule of Civil Procedure 45(a)(3)(B), Plaintiffs caused the Bell

Industries, Inc. subpoena to be issued from the District Court for the Southern District of
2 Moreover, Bell Industries, Inc. has informed Plaintiffs counsel that it intends to not respond to the Februar i,
2008 subpoena pending resolution of

the instat Motion. (Ex. 4, 2/8/2008 email from Stephen M. Oshinsky to Matt

Dyar, paralegal.)

2

Mississippi, which has personal jurisdiction over the deponent. As required by the subpoena
itself, notation was made that the subpoena related to a case pending in the Eastern District of
Michigan, Southern Division and stated the case number of the pending action. (Ex. 4)

However, when Defendants moved to Quash the subject subpoena, they did so in the Eastern
District of Michigan - not the Southern District of Mississippi, which was the 'issuing court' of
the February 1, 2008 subpoena. Because Defendants have chosen the wrong forum, their

requested relief must be denied.

Rule 45(c)(3)(A) states:

u

~ "," ~ ¡. ;:

(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's offcer to travel

u o '" '" ..
ol

more than 100 miles from where that person resides, is employed, or regularly transacts business in person--except that, subject to Rule

45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;

~

o ¡.

(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.
FED. R CiV. P. 45(c)(3)(A) (emphasis added).

~ ~ ~

"If a subpoena is issued by a district court other than the one in which the case is
pending... the proper court in which to fie the motion to quash or modify the subpoena is the
issuing court, not the court in which the action is pending." 9-45 MOORE'S FEDERA PRACTICE

§45.50(4) (2007), citing In Re Digital Equip. Corp., 949 F.2d 228,231 (8th Cir. 1991) (stating
that the court in which the action was pending could not hear or decide objections to subpoena
for deposition, because court issuing subpoena had exclusive jurisdiction.)3 Clearly, Defendants

have chosen the wrong forum to lodge their complaints regarding the February 1, 2008 Bell
3 The Advisory Committee notes are consistent with this conclusion. The Advisory Committee Note of 1991 to

Rule 45 states "motion to quash such a (deposition) subpoena if it overbears the limits of the subpoena power
must.. be presented to the court for the district in which the deposition was to occur.")

3

Industries subpoena. Because the District Court for the Southern District of Mississippi is the
only court with the appropriate power to limit or quash the subject subpoena, Defendants'

requested relief must be denied.

b. The Defendants herein lack standing to object to the Rule 45 subpoena directed to a

non-party to this action, Bell Industries, Inc., because they lack a personal right or
privilege with respect to the subject matter of

the subpoena.

The subpoena at issue was directed to a non-party to this action, Bell Industries, Inc.
("Bell"). Defendants, therefore, standing to assert the various objections to the February 1, 2008

subpoena ("the subpoena") to a non-party to this action because they cannot (nor have they
attempted to) demonstrate a personal right or privilege in the materials requested to be produced
u

by the deponent. This is a fatal flaw in Defendants' position and for this very reason alone their
requested relief should be denied.

~ "," ~ ¡. ;:

u o '" '" ..
ol

Generally speaking, "(t)he party seeking to quash a subpoena bears a heavy burden of
proof." United States v. Wells, 2006 US. Dist. LEXIS 83124, *5 (E.D. Mich. 2006), citing

~

o ¡.

~ ~ ~

Irons v. Karcesksi, 74 F.3d 1262, 1264 (D.C. Cir. 1975). "Further, as a general rule, a party has

no standing to seek to quash a subpoena directed to a non-party." Wells, US. Dist. LEXIS at
83124 at * 5 (E.D. Mich. 2006), citing Langford v. Chrysler Motors Corp., 513 F.2d 11 2 1, 11 26

(5th Cir. 1975). Another court has stated that "(t)he person subject to the subpoena 'is the only
one entitled to challenge the subpoena under Fed(eral) R(ule ofJ Civ(il) P(rocedure) 45(c)(3),

unless a showing is made that (another person obj ecting) has a personal right to be protected or

that the documents are subject to privilege.'" Laethem Equip. Co. v. Deere & Co., 2007 US.
Dist. LEXIS 70740, *48 (E.D. Mich. 2007) (other authorities cited).

Not only have Defendants failed to meet their burden in establishing the existence of a

personal right or privilege in the requested materials, they have completely failed to even

4

mention the relevant legal principals applicable to a party's objections to a duces tecum subpoena

to a non-party. Defendants only mention the hypothetical extrapolation that the "request covers
61 months, and would thus yield 213,500 text messages just from Beatty alone during that time

period.,,4 (Brief in Support of Motion to Quash at p.9). How Defendants know that the instant subpoena would cause an undue burden on the deponents is freely offered to neither the Court
nor Plaintiff s counseL. However, the mere fact that Bell may suffer such a hardship, however, is

not suffcient for the Defendants herein to challenge the subpoena to BelL. Because Defendants

have failed to mention, let alone substantiate, a claim of privilege or personal right in the
materials requested in the subpoena to Bell, their Motion to Quash and other requested relief
u
should be denied.

~ "," ~ ¡. ;:

c. The subpoena to Bell Industries, Inc. is not premature under FRCP 26( d) because this
Court issued an Order prior to the January 4, 2008 scheduling conference directing the parties to conduct' substantial discovery.'

u o '" '" ..
ol

~

o ¡.

Defendants argue that the subpoena is premature because it was issued by a party to this

~ ~ ~

action before the parties conducted their Rule 26(f) conference. (Brief in Support of Motion to
Quash at p.5). For support, Defendants turn to Rule 26(d), which states:

(a) party may not seek discovery from any source before the parties have
conferred as required by Rule 26(f), except in a proceeding exempted from initial

disclosure under Rule 26(a)(I)(B), or when authorized by these rules, by
stipulation, or by court order.
FED. R CiV. P. 26(d) (emphasis added).

The rule upon which Defendants rely for support of their argument that the subpoena was
premature supports the contrary argument. On December 5, 2007 this Court delivered notice via

CM/CF that the parties were to appear on January 3, 2008 for a scheduling conference. (Ex. 1,

4 Surprisingly, Bell Industres does not appear to share Defendants' concern, as the Februar 8, 2008 email appears

to indicate that Bell Industries is ready and able to comply with the request pending the outcome of this Motion.
(Ex. 4, email)

5

12/5/2007 Notice to Appear). Subsequently, on December 19, 2007 the Court amended its
December 5, 2007 Order requiring that the parties' appear on January 4, 2008 - one day later

than the previous notice - for the same purpose. (Ex. 2, 12/19/2007). There were no material

changes between the December 5, 2007 Order and the December 19, 2007 Order - they both

mandated that "counsel are instructed to commence signifcant discovery prior to the
conference."s (Exs. 1,2) (emphasis added).

The Court clearly obviated the usually applicable principles governing the timing of
discovery in this matter by issuing not one, but two, Orders mandating that the parties conduct
signifcant discovery prior to the 1 6(b) conference. Thus, while no 26( f) conference has

u

occurred, it is of no concern because there was a standing Order mandating that the parties
conduct discovery - a situation specifically contemplated by Rule 26(d).6 Therefore, the January
25,2008 subpoena to Bell was not untimely on these grounds.

~ "," ~ ¡. ;:

u o '" '" ..
ol

~

o ¡.

d. The subpoena to Bell Industries, Inc. requests the surrender of relevant, nonprivileged and otherwise discoverable materials from a non-party to this action.

~ ~ ~

Leaving aside for the moment the fact that Defendants cannot establish standing to object
to the duces tecum subpoena and that the Court has already ordered that the parties commence

discovery, Defendants cannot rely on conclusory, unfounded allegations that the subpoena
requests irrelevant materials or that it is overly broad as a basis for quashing the February 1,
2008 subpoena to Bell Industries.

Federal Rule of Civil Procedure 26(b)( 1) states the general rule governing the scope of
discovery:

5 The Notice to Appear states at paragraph 5 that the paries wil discuss '(d)iscovery progressr,)' indicating that

6 It should be noted, and as admitted by Defendants' in their moving papers, that tls action was originally filed on
November 7, 2005. While Defendants' curent counsel may be new to this action, the action was previously
defended by the City of

Court expected the pares to have already begun the discovery process. (Exs. I, 2).

Detroit Law Deparent - who remains on the caption to tls day.

6

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
FED. R CiV. P. 26(b)(I).

While Rule 45, upon which Defendants rely for support for their Motion to Quash and for

a Protective Order, "does not address relevancy objections, such obligations must be considered

in light of Rules 26 and 34." Spartanburg Reg'l Healthcare Sys. v. Hilenbrand Indus., 2005
US. Dist. LEXIS 32861, *7 (N.D. Ohio 2005), citing In Re Application of Apollo Advisors, L.P.,

1993 US. Dist. LEXIS 7927, *6 (S.D.N.Y. 1993). Thus, a "court must examine whether a
u

request contained in a subpoena duces tecum is overly broad or seeks irrelevant information

~ "," ~ ¡. ;:

under the same standards set forth in Rule 26 and as applied to Rule 34 requests for the
production of documents." Id citing Dean v. Anderson, 2002 US. Dist. LEXIS 11536, *8 (D.

u o '" '" ..
ol

~

o ¡.

Kan. 2002). "Relevancy is broadly construed, and a request for discovery should be considered
if

~ ~ ~

there is 'any possibility' that the information sought may be relevant to the claim or defense of

any party."? Id. Other courts have stated that:
(w)hen discovery appears relevant on its face, the party resisting the discovery has

the burden to establish facts justifying its objections by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined
under Fed. R Civ. P. 26(b)(I) or (2) is of such marginal relevance that the

potential harm occasioned by discovery would outweigh the ordinary presumption
in favor of

broad disclosure.

Barrington v. Mortgage It, Inc., 2007 US. Dist. LEXIS 90555, *10 (S.D. Fl.
2007).

"However, when relevancy is not apparent, the burden is on the party seeking discovery
to show the relevancy of the discovery request." Barrington, 2007 US. Dist. LEXIS at * 10- 1 1
7 FRE 401 defines 'relevant evidence' to mean "evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would be without the
evidence." FED. R. EVID. 401.

7

(S.D. Fl. 2007), citing Dean v. Anderson, 2002 US. Dist. LEXIS 11536, *2 (D. Kan. 2002)
(emphasis in original).

Defendants essentially offer only two reasons why the subpoena to Bell Industries should

be quashed on relevancy grounds: (1) that their pending dispositive motion will conclusively
establish that dismissal in Defendants' favor is warranted; and (2) because Tamara Greene was killed on April 20, 2003 that Plaintiff s request for information prior to that date is "necessarily
unrelated to the instant claim inasmuch as the basis of the instant claim is that Defendants

allegedly concealed information about Tamara Greene's murder..." (Motion to Quash at p.8).

As to the former, granting Defendants' requested relief because a dispositive motion is
u

pending is not supported either in the case law or the federal rules. As to the latter, in light of the

~ "," ~ ¡. ;:

facts alleged in Plaintiffs Second Amended Complaint and the broad definition of 'relevancy'
applied by federal courts, Defendants requested relief must be denied. FRE 401 defines 'relevant

u o '" '" ..
ol

~

o ¡.

evidence' as "evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence." FED. R EVID. 401 (emphasis added). Plaintiff alleged the existence of a

~ ~ ~

party at the Manoogian Mansion (the traditional residence of the Mayor of the City of Detroit
and his family) which was attended by Ms. Tamara Greene, the maternal parent of the Plaintiff
herein, Jonathan Bond. (Complaint at i¡12). On information and belief Mrs. Carlita Kilpatrick,

Defendant Mayor Kwame M. Kilpatrick's wife, unexpectedly showed up at the alleged

Manoogian Mansion party and assaulted an exotic dancer who was also in attendance.
(Complaint at i¡13). Plaintiff thereafter described a series of events, from Defendant Kilpatrick's

Executive Protection Unit transporting an injured dancer from the party to the hospital

(Complaint at i¡14) to a subsequent investigation by the Detroit Police Department into the

8

allegation that Mrs. Kilpatrick indeed assaulted an exotic dancer (Complain at iJ19) to the
ultimate death of

Ms. Greene.

If the alleged party at the Manoogian Mansion did in fact occur, and if it is true that the
alleged party was attended by certain exotic dancers, including Ms. Greene, and if it is true that

Ms. Kilpatrick arrived unexpectedly at the alleged Manoogian Mansion party and assaulted an

exotic dancer, and if the allegations in Offcer Brown's offcial police investigation report
regarding his investigation into the party are true (Complaint at iJiJl8, 19) then information from

before the date Ms. Greene was killed may make the allegation of a cover up of her murder more
probable or less probable - and hence the request is squarely within the definition of relevant
u
evidence under Federal Rule of Evidence 401 and Federal Rule of

Civil Procedure 26(b)(I). A

~ "," ~ ¡. ;:

homicide investigation would have required an interview, at the very least, of all persons who
assaulted, or even allegedly assaulted the victim in the last several months before their murder.

u o '" '" ..
ol

~

o ¡.

It was rumored that Mrs. Kilpatrick assaulted Tammy Greene. Both investigations would have
led to interviews by Mrs. Kilpatrick with law enforcement. Both investigations were wrongfully
terminated, interfered with, or otherwise obstructed.
Contrary to Defendants' apparent arguments, it is not necessary that the evidence

~ ~ ~

contained in the subpoena fails to conclusively establish Plaintiff s allegations, as Defendants
argue. Rather the proper inquiry is whether the requested information has the potential to render

Plaintiff s claims more or less probable. This is a significantly lower standard. In light of the

fact that Defendants conveniently gloss over allegations in the Second Amended Complaint
regarding two separate (but interrelated) investigations, which straddled the time period

surrounding the death of Plaintiff s mother, Defendants failed to carry their burden of
demonstrating how the requested information does not fit within the 'relevancy' definition of

9

either the Federal Rules of Civil Procedure or the Federal Rules of Evidence. Rather than make

such an argument, Defendants incredibly argue, without logic or authority, that the events in a
murder victim's life leading up to her murder are not relevant to the investigation of her murder.

Not only is this argument without merit, it is borderline specious. Defendants cannot rely on this
argument to oppose the February 1, 2008 subpoena to Bell Industries.
e. The fact that Defendants fied a dispositive motion to Plaintiff s Second Amended

Complaint is no reason to deny or suspend discovery in this matter, where Defendants offer no reason other than bare assertions that further discovery would be burdensome if
discovery were to proceed.8

While Defendants do not ascribe an explicit heading to the argument, they expressly
argue that because certain Defendants fied a Dispositive Motion under FRCP 12, that this Court
u
~ "," ~ ¡. ;:

should quash the subpoena or otherwise suspend discovery pending the outcome of the Motion.

u o '" '" ..
ol

(Motion to Quash at p.5, stating "permitting discovery to go forward before the first responsive

pleading to the Second Amended Complaint has been fied would not be fair or prudent and
would be premature.")

~

o ¡.

~ ~ ~

However, the mere fact that a dispositive motion is pending or threatened is insuffcient
justification for stay of discovery. FRCP 26( d) states that

(u )nless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by
deposition or otherwise, does not operate to delay any other party's discovery.
FED. R CiV. P. 26(d) (emphasis added).

While this court appears not to have considered whether it is appropriate to stay
discovery pending the resolution of a dispositive motion not grounded on a claim of qualified

8 As of the date Defendants' Motion to Quash was filed, the dispositive motion was merely threatened. However,

Defendants did file the tleatened dispositive motion on February 8, 2008 - before Plaintiffs Response to the
Motion to Quash was due.

10

immunity,9 the Tenth Circuit has stated that "(t)he general policy of this district is not to stay

discovery even though dispositive motions are pending" Howse v. Atkinson, 2005 US. Dist.
LEXIS 7511, *3 (D. Kan.), citing Wolfv. United States, 157 F.RD. 494, 495 (D. Kan. 1994).
The Howse court did, however, expound on the circumstances that would support suspending
discovery in light of pending dispositive motions: "a court may appropriately stay discovery until

a pending motion is decided where the case is likely to be finally concluded as a result of the
ruling thereon; where the facts sought through uncompleted discovery would not affect the

resolution of the motion; or where discovery on all issues of the broad complaint would be
wasteful and burdensome."lo Id. (internal citations omitted).
u

Defendants' motion states no justifiable reason to stay discovery in this matter other than

~ "," ~ ¡. ;:

the conclusory and self-serving allegation that they are likely to succeed on their dispositive
motion.11 (Motion at p.5) "(B)are assertions that discovery will be unduly burdensome or that it
should be stayed because pending dispositive motions will probably be sustained, are insuffcient

u o '" '" ..
ol

~

o ¡.

~ ~ ~

to justify the entry of an order staying discovery generally." Continental Illnois Natl Bank &
Trust Co. v. Caton, 130 F.RD. 145, 149 (D. Kan. 1990). Moreover, it appears that this issue can

only be resolved by deciding the dispositive motion - merely reiterating conclusory snippets of
the motion are wholly insuffcient to stay discovery, especially in light of an explicit order of

this

court to the contrary. Therefore, Defendants' allegations are insuffcient at this stage to justify

9 It appears that the Western District has considered this issue in Cromer v. Braman, 2007 U.S. Dist. LEXIS 82744
(W.The Howse court also listed a claim of qualified immunty as a potential basis for staying discovery. See also 10 D. Mich. 2007).

Short v. Oaks. Carr. Facility, 129 Fed. Appx. 278 (6th Cir. 2005) (unpublished). 11 Defendants also argue that allowing the subpoena to issue to Bell Industries to proceed would be neither fair nor

prudent (Motion at p.6) without stating how either prudence or fairness would be impugned with allowing the subpoena to stand. As stated above, Defendants lack standing to assert the rights of a non-par to this action.

11

quashing the subpoena to Bell Industries, let alone staying discovery in toto, as Defendants
request at page 5 of their Brief in Support. I2

f. Simply because Defendants did not receive the subpoena until February 1, 2008 does

not necessarily entail that it is proper for this Court to enter an Order quashing the
subpoena to Bell Industries.

Defendants argue, relying on Rule 45(b )(1), that because they were not provided with

prior notice of the subpoena to Bell Industries that they are entitled to an Order quashing the
subpoena. (Brief in Support of Motion to Quash at pA). Defendants' chronology of events,

however, is incorrect. The subpoena was executed on February 1, 2008 - it was not served on

that date.13 In fact, the subpoena was not served upon the deponent until February 14, 2008.
u

(Ex. 3, proof of service) The subpoena was thereafter served on Defendants' counsel on the very
day it was executed, February 1, 2008 and seven days before the commanded production was

~ "," ~ ¡. ;:

u o '" '" ..
ol

due. In response, Defendants fied their Motion to Quash and for a Protective Order on February

~

o ¡.

8, 2008 - seven days after the subpoena was executed and six days before it was successfully
served on the deponent. To date, however, the deponent has not responded in any way to the

~ ~ ~

February 1, 2008 subpoena and does not intend to do so until the resolution of the instant
Motion. (Ex. 4, 2/8/2008 email).

As stated by the Defendants, "(i)f the subpoena commands the production of documents,

electronically stored information, or tangible things or the inspection of premises before trial,
then before it is served, a notice must be served on each party." FED. R CiV. P. 45(b)(I). While

the fact that Defendants filed their dispositive motion on Februar 8,2008 tls Court should not stay discovery until it allows briefing and oral argument on Defendants' dispositive motion and therefore wil be in possession of all evidence bearing on the instat Motion to Quash. 13 While the subpoena was faxed to Bell Industres on Februar i, 2008, service of a subpoena via facsimile is not

12 Alternatively, and in light of

effective service of process under the federal rules. Therefore Bell Industries had no duty to respond to the
subpoena unless and until it was properly served upon them. See In Re Johnson & Johnson, 59, F.R.D. 174, 177 (D.

De. 1973), (stating "(i)t is a proper defense to a petition for a contempt order for failing to obey a subpoena to establish that the requirements of Rule 45(,) which govern the validity of a subpoena were not met." (citations
omitted)).

12

case law is not uniform as to what duration of

notice is proper under FRCP 45(b)(I), this Court's

Western District has stated that fourteen days is presumptively proper when the subpoena is
simultaneously served on the deponent and all other parties to the action:

(0 )rdinarily, if the subpoenas are promptly served on opposing counsel the same day they are issued or served on the non-parties, and if the subpoenas also permit a reasonable time for response (presumptively 14 days), there will be no problem
because the fourteen days will also give opposing parties ample opportunity to

register their objections or otherwise participate in the process.

McClendon v. TelOhio Credit Union, Inc., 2006 US. Dist. LEXIS 57222, *5-6
(W.D. Mich. 2006) (referring to FED. R CiV. P. 45(c)(2)(B).)
In McClendon, the Court noted that while the issuing party may have technically violated

Rule 45(b )(1) served copies of subpoenas for the production of documents on non-parties six
u
~ "," ~ ¡. ;:

days before the documents were required to be produced, the objecting parties were not

u o '" '" ..
ol

prejudiced in light of an agreement by counsel that the requested documents would not be
viewed until the objecting party's motion to quash was decided. McClendon, 2006 US. Dist.

~

o ¡.

~ ~ ~

LEXIS at *6-7 (W.D. Mich. 2006); see also Seewald v. lIS Intellgence Info. Sys., 1996 US.
Dist. LEXIS 22479 (E.D.N.Y. 1996) (refusing to quash subpoena issued without suffcient notice
pursuant to Rule 45(b)(I) where the non-requesting party learned of

the document request before

the production of the documents and hence were unable to show prejudice); Richardson v.

Florida, 137 F.RD. 401, 404 (M.D. Fla. 1991) (refusing to grant remedy of exclusion of
evidence received as a result of subpoena served without suffcient notice pursuant to FRCP
45(b )(1) where the opposing party failed to allege any prejudice from the ex parte document

discovery.)

For reasons similar to McClendon, Defendants cannot establish any prejudice as a result

of receiving a copy of the subpoena a full two weeks before it was even served on the deponent

and where the deponent has yet to comply with the subpoena and indicates its refusal to do so

13

pending the resolution of Defendants' Motion to Quash. I4 Defendants quite obviously had
suffcient time to draft and fie their Motion to Quash and for a Protective Order and, because the

subpoena wasn't served until February 14, 2007 no documents have been secured from the

deponent. Therefore, because Defendants have properly objected to the subpoena and the

deponent has yet to produce any information in response thereto, the fact that the service
instructions required by the federal rules were not strictly adhered to should not necessitate

quashing the subpoena to Bell Industries.

III. CONCLUSION

For the reasons stated herein Plaintiff Jonathan Bond respectfully requests that this Court
u

deny Defendants' requested relief and grant him his reasonable costs and fees incurred in
responding to the motion.
Respectfully Submitted,

~ "," ~ ¡. ;:

u o '" '" ..
ol

~

o ¡.

~ ~ ~

Dated: February 22,2008

Isl Robert S. Zawideh

Norman Yatooma & Associates, P.c.
By: Norman A. Yatooma (P54746) By: Robert S. Zawideh (P43787) Attorneys for Plaintiffs 219 Elm Street Birmingham, Michigan 48009 [phone]

14 Defendants wil also find it impossible to establish any form of prejudice when many of t the documents that are
the subject of

the subpoena were recently ordered by Wayne County Circuit Court Judge Colombo to be released to

the public on Februar 8, 2007, a decision recently affirmed by the Michigan Court of Appeals.

14

CERTIFICA TE OF SERVICE

I hereby certify that on February 22, 2008 I electronically fied the foregoing papers with the Clerk of the Court using the CM/CF system:

PLAITIFF'S RESPONSE TO DEFENDANTS' MOTION TO QUASH THE FEBRUARY 1, 2008 SUBPOENA TO BELL INUSTRIES, INC. AN FOR A PROTECTIVE ORDER, MEMORANUM IN SUPPORT OF PLAITIFF'S RESPONSE, INEX OF EXHIBITS AN
EXHIBITS.
On the following:

Morganroth & Morganroth, PLLC By: Mayer Morganroth (PI 7966) By: Jeffrey B. Morganroth (P41670)

City of Detroit Law Department
By: John A. Schapka (P3673 1)

Co-Counsel for Defendants City of Detroit,

Attorneys for Defendants City of Detroit, Mayor Kwame M. Kilpatrick, Detroit Police Mayor Kwame M. Kilpatrick, Detroit Police Chief Ella Bully-Cummings, Commander
Chief Ella Bully-Cummings, Commander
u
~ "," ~ ¡. ;:

u o '" '" ..
ol

Craig Schwartz and Christine Beatty. 3000 Town Center, Ste. 1500 Southfield, Michigan 48075 [phone]
February 22,2008

Craig Schwartz and Christine Beatty. 1650 First National Building Detroit, Michigan 48226 [phone]

~

o ¡.

~ ~ ~

Isl Ryan D. Bobel

Norman Yatooma & Associates, Poc. Attorneys for Plaintiff 219 Elm Street Birmingham, Michigan 48009
[phone]
bobel~normanyatooma. com

15