Armstrong v. Shirvell
Filing
141
ORDER GRANTING in part and DENYING in part 108 Motion for Further Review.. Signed by Magistrate Judge Paul J. Komives. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER ARMSTRONG
CASE NO. 2:11-CV-11921
JUDGE ARTHUR J. TARNOW
MAGISTRATE JUDGE PAUL J. KOMIVES
Plaintiff,
v.
ANDREW SHIRVELL,
Defendant,
/
ORDER GRANTING IN PART PLAINTIFF ARMSTRONG’S FEBRUARY 17, 2012
MOTION FOR FURTHER REVIEW (Doc. Ent. 108)
A.
My January 12, 2012 order
On September 30, 2011, defendant Shirvell filed a motion to compel (Doc. Ent. 36)
regarding certain July 14, 2011 discovery requests (Doc. Ent. 36-3, Doc. Ent. 36-6). By my
January 12, 2012 order (Doc. Ent. 88), defendant Shirvell’s motion was granted in part and
denied in part.
Among other provisions, my January 12, 2012 order permitted defendant Shirvell to
serve certain amended requests. For example, with respect to Request for Production of
Documents No. 4 concerning communications (Doc. Ent. 88 at 13-16), I provided that
“defendant may serve an amended request which is appropriately limited in scope.” Doc. Ent.
88 at 16. In so doing, I noted defendant Shirvell’s willingness “to limit the scope of this request
to the period from 2007 ([Armstrong]’s enrollment at the University of Michigan) to the filing of
the instant complaint (April 1, 2011).” Doc. Ent. 88 at 15.
With respect to Request for Production of Documents No. 5 (Doc. Ent. 88 at 16-17),
1
which also concerned communications, I provided that “defendant may serve an amended
request for production of documents, taking into account the discussion on the record (i.e.,
limiting the time period - for example, from the beginning of the blog (April 2010) to the filing
of the instant complaint (April 2011) and limiting the individuals listed - for example, sampling
five (5) to ten (10) names, etc.).” Doc. Ent. 88 at 17.
Additionally, with regard to plaintiff’s August 25, 2011 deposition, I provided that
“defendant Shirvell may propound a set of no more than ten (10) interrogatories regarding the
August 25, 2011 deposition inquiries he claims were not answered or regarding which plaintiff’s
counsel instructed plaintiff not to answer.” Doc. Ent. 88 at 19.
On January 26, 2012, Armstrong filed an appeal (Doc. Ent. 95) and Shirvell filed an
objection (Doc. Ent. 97) regarding my January 12, 2012 decision (Doc. Ent. 88). On March 2,
2012, Judge Tarnow entered an order (Doc. Ent. 112) sustaining plaintiff’s objection (Doc. Ent.
95)1 to my order (Doc. Ent. 88) and denying defendant Armstrong’s September 30, 2011 motion
to compel (Doc. Ent. 36). That same day, Judge Tarnow entered another order (Doc. Ent. 113)
overruling defendant’s objection (Doc. Ent. 97)2 to my order (Doc. Ent. 88).
B.
Plaintiff Armstrong’s February 17, 2012 motion for further review
Plaintiff Armstrong’s February 17, 2012 motion for further review (Doc. Ent. 108) boils
down to the propriety of Shirvell’s January 19, 2012 partially-amended first requests for
1
Armstrong’s January 26, 2012 objections to my order concerned its requirement that
Armstrong “answer Request to Admit 2 and Interrogatories 1 and 3.” Doc. Ent. 95 at 12.
2
Shirvell’s January 26, 2012 objection to my order concerned its ruling on sanctions
(Doc. Ent. 97 at 7-9) and Request to Produce No. 18, regarding e-mail archives on Order of
Angell (Doc. Ent. 97 at 9-11).
2
production of documents to Armstrong (Doc. Ent. 108-1). There were two such requests:
Shirvell’s January 19, 2012 Amended Request No. 4 seeks “[a]
complete copy of all e-mail communications between you and the following
individuals, from August 2007 through April 1, 2011: Ron Ketelhut, John Oltean,
Jason Raymond, Kolby Roberts. Such e-mail communications include those
stored in your self-described “e-mail archives.” All e-mail communications must
be turned-over to [defendant Shirvell] in their original, unaltered form.”
Armstrong’s February 22, 2012 response: “Plaintiff objects to this
Request as overbroad and beyond the scope of discovery in that it includes
absolutely no limitations as to subject matters contemplated by the claims and
defenses in this case. Plaintiff further objects to this Request as oppressive and
burdensome.” After citing portions of the Court’s January 12, 2012 order (Doc.
Ent. 88), Armstrong asserted that “[t]he amended Request 4 is not appropriately
limited, although it does limit the number of individuals and the time frame. The
subject matter remains overbroad and is not tailored to areas relevant. In [its]
Order, the Court [refers] to plaintiff’s agreement to produce emails relevant to the
defense of claims set forth in Paragraphs 25, 32, 33, 35 and 64 of the . . .
Complaint. Based on the forgoing, plaintiff will produce all emails for the
individuals and dates requested [relevant] to Paragraphs 25, 32, 33, 35 and 64: 25none; 32-none; 33-none; 35-Plaintiff has never ‘engaged [in a] [clandestine]
sexual relationship with another member of the [‘]MSA’. However, Plaintiff is
producing emails of a personal or quasi personal nature.”[3]
Shirvell’s January 19, 2012 Amended Request No. 5 seeks, “[a]
complete copy of all communications between you and the following individuals,
from April 1, 2010 through April 1, 2011, regarding [defendant Shirvell] and
“Chris Armstrong Watch” - whether it be on Facebook, in a blog, via e-mail, text
message, voicemail, letter, facsimile, or anywhere else: Alex Serwer, Brad
Bergeron, Howard Bragman, Mical DeGraaff, Mike Ondejko, Ross Jones, Steve
Armstrong, Anika Awai-Williams, Evan Nichols, Kyle Summers, Michael
Dunleavy. E-mail communications include those stored in your self-described “email archives.” All e-mail communications must be turned-over to [defendant
Shrivell] in their original, unaltered form.”
Armstrong’s February 22, 2012 response: Plaintiff objects to this
Request as oppressive and burdensome as to communications between Plaintiff
and his father. Plaintiff’s father was counse[l]ing him with expectations of
3
Paragraphs 25, 32, 33, 35 and 64 are the same five (5) paragraphs plaintiff referenced in
his December 13, 2011 amended response (Doc. Ent. 73) to defendant’s September 30, 2011
discovery motion (Doc. Ent. 36). Doc. Ent. 73 at 5-6; see also Doc. Ent. 88 at 15.
3
privacy, and these communications should be deemed protected. Plaintiff’s father
is a practicing attorney and Plaintiff understood his communications with his
father to be private and protected form disclosure. Plaintiff will produce
responsive communications with regard to the other individuals.”
Doc. Ent. 108-1, Doc. Ent. 114-2 at 2-3.
C.
Discussion
1.
Parties’ Arguments
Plaintiff Armstrong’s February 17, 2012 motion for further review (Doc. Ent. 108) was
filed after the parties’ January 26, 2012 appeal and objection (Doc. Entries 95, 97) regarding my
January 12, 2012 order (Doc. Ent. 88) but before Armstrong’s February 22, 2012 responses
(Doc. Ent. 114-2) or Judge Tarnow’s March 2, 2012 orders (Doc. Entries 112, 113).
On March 5, 2012 - three (3) days after Judge Tarnow ruled upon the parties’ objections,
Shirvell responded to Armstrong’s motion for further review, taking issue with Armstrong’s
February 22, 2012 responses (Doc. Ent. 114-2). Doc. Ent. 114. Specifically, Shirvell contends:
The response was several days late. Plaintiff Armstrong did not include a
privilege log,[4] as specifically requested in the definitions and instructions of
Defendant Shirvell’s Amended Requests to Produce. See DK #108-1, Pg Id 1752
(instruction No. 7). Plaintiff Armstrong did not produce any documents
referencing Steve Armstrong. In addition, as to the documents that Plaintiff
Armstrong did produce in response to Amended Requests to Produce No. 4 and
No. 5, they were heavily soiled by black magic marker in an attempt to block out
e-mail addresses[] – contrary to Defendant Shirvell’s instructions (i.e., “All
e-mail communications must be turned-over to Defendant/Counter Claimant in
their original, unaltered form”).
Doc. Ent. 114 ¶ 8. After setting forth several proposals (Doc. Ent. 114 ¶¶ 10-12), Shirvell asks
that the Court “order Armstrong to turn-over forthwith all items responsive to Amended
4
See Fed. R. Civ. P. 26(b)(5) (“Claiming Privilege or Protecting Trial-Preparation
Materials.”)
4
Requests to Produce No. 4 and No. 5.” Doc. Ent. 114 at 5 ¶ 18.
Then, on April 17, 2012, Judge Tarnow entered an order (Doc. Ent. 137) granting
plaintiff’s February 24, 2012 motion for summary judgment (Doc. Ent. 110), granting in part and
denying in part defendant’s February 24, 2012 motion for summary judgment (Doc. Ent. 111),
and dismissing the abuse of process claim. As a result, the remaining claims in this case are
Armstrong's claims of defamation (Count I); intentional infliction of emotional distress (Count
II); invasion of privacy: false light (Count III); and stalking, Mich. Comp. Laws § 600.2954
(Count VI).
On April 19, 2012, Judge Tarnow conducted a status conference and set the joint final
pretrial order deadline for July 24, 2012, the final pretrial conference for July 31, 2012, and the
trial for August 6, 2012.
2.
Amended Request No. 4
Armstrong’s February 17, 2012 complaint regarding Amended Request No. 4 is that it is
“not in any way limited to the events at issue or the claims or defenses in this suit. Rather, the
request was for any communications, regardless of relevance to this suit.” Doc. Ent. 108 ¶ 4
(emphasis in original). Plaintiff Armstrong “proposes to serve the discovery requested on the
Court for in camera review.” Doc. Ent. 108 ¶ 5. It is plaintiff Armstrong’s position that “the
items sought in [Amended] Request [No.] 4 contain significant personal information, including
that of both Armstrong and third party witnesses[,]”5 and “review of the documents will quickly
5
For example, Armstrong contends, “the emails contain credit card numbers, AAA
membership numbers, third parties’ personal thoughts and feelings, information about third party
family members, third party’s actions, daily goings on, memberships in clubs, household matters
between roommates, etc.” Doc. Ent. 108 ¶ 6.
5
reveal that these are not actually discoverable.” Doc. Ent. 108 ¶¶ 6, 7. Then, in his February 22,
2012 response, plaintiff Armstrong agreed to produce “all emails for the individuals and dates
requested [relevant] to Paragraphs 25, 32, 33, 35 and 64[.]” Doc. Ent. 114-2.
To be sure, I note defendant Shirvell’s March 5, 2012 complaint about the timeliness of
Armstrong’s February 22, 2012 responses (Doc. Ent. 114-2) to Shirvell’s January 19, 2012
amended requests (Doc. Ent. 108-1); however, I decline to deny plaintiff’s motion solely on this
basis.
Also, I note defendant Shirvell’s concerns about redaction. However, I decline to order
that “obvious confidential information, such as credit card numbers,” shall be blackened out “by
utilizing a computer generated program, i.e. not with black magic marker.” Doc. Ent. 114 ¶ 11.
Nor do I find it necessary to order that Armstrong “produce all of the[] e-mails [already
produced in response to Amended Request Nos. 4 and 5] in their original, unaltered form.” Doc.
Ent. 114 ¶ 12. At this time, the Court does not have reason to question either the propriety of
plaintiff’s counsel’s redactions or the authenticity of redacted documents produced in response to
Amended Request No. 4.6
Upon consideration, plaintiff Armstrong’s February 17, 2012 motion for further review
(Doc. Ent. 108) is granted in part to the extent it “seeks further assistance of this Court in
limiting the discovery [sought by Amended Request No. 4][.]” Doc. Ent. 108 ¶ 5. Plaintiff
6
Here, I note Shirvell’s Exhibit 2, which includes redacted July 2010 emails (Doc. Ent.
114-3) that Shirvell cited in support of his argument with respect to Amended Request No. 5's
search for plaintiff Armstrong’s communications with his father, attorney Steve Armstrong.
Doc. Ent. 114 ¶ 13. If this is an example of the type of redaction with which defendant Shirvell
takes issue, the Court is satisfied that the redacted portions of this document were chosen to keep
private plaintiff Christopher Armstrong’s e-mail address.
6
Armstrong shall respond to Amended Request No. 4, but only to the extent the documents sought
concern defendant Shirvell and “Chris Armstrong Watch.”7 In lieu of conducting an in camera
review, the Court will permit plaintiff to redact personal information from responsive
documents. Furthermore, mindful of defendant Shirvell’s proposal that plaintiff Armstrong be
required “to turn-over to Shirvell a complete list of all documents or other items that Armstrong
claims are not discoverable[,]” Doc. Ent. 114 ¶ 10, plaintiff Armstrong shall produce a Rule
26(b)(5)(A) privilege log with respect to any documents responsive to Amended Request No. 4,
as amended by this order, which are withheld on the basis of privilege, etc.
3.
Amended Request No. 5
By his February 17, 2012 motion, Armstrong argued that disclosure of his
communications with his father about Shirvell would be “a significant breach of privacy for a
college-aged student who turned to his father-a lawyer-for confidential counsel in dealing with a
difficult legal situation. These communications were undertaken with an expectation of absolute
confidentiality that this Court should not invade.” Doc. Ent. 108 ¶ 9. As Armstrong’s February
22, 2012 response (Doc. Ent. 114-2) explains, Steve Armstrong was counseling plaintiff
Armstrong with expectations of privacy and plaintiff Armstrong understood these
communications to be private and protected from disclosure.
To be sure, I note Shirvell’s March 5, 2012 challenge to these assertions, such as
Shirvell’s representations that “nothing in the record even remotely suggests that Steve
7
For whatever reason, defendant Shirvell’s January 19, 2012 Amended Request No. 5
was limited to communications “regarding [defendant Shirvell] and “Chris Armstrong Watch[,]”
while Amended Request No. 4 contained no such limitation. See Doc. Ent. 108-1.
7
Armstrong had such a relationship with Plaintiff Armstrong[,]”8 Steve Armstrong “is not in
private practice and has never been licensed to practice law in the State of Michigan[,]”9 Steve
Armstrong “is a fact witness in this case[,]”10 Steve Armstrong “tried to gain access to Defendant
Shirvell’s Facebook account by posing under a fake name in late May/early June of 2010[,]”11
and Steve Armstrong’s communications with plaintiff Armstrong “are highly relevant to the
claims and defenses in this matter.” See Doc. Ent. 114 ¶¶ 13-17.
However, plaintiff Armstrong’s February 17, 2012 motion (Doc. Ent. 108) is granted to
the extent it asks the Court “to limit [Amended Request No. 5] to exclude these confidential
communications between Armstrong and his father.” Doc. Ent. 108 ¶ 10. I conclude that an
attorney-client relationship existed between plaintiff Armstrong and his father as to their
8
Among Shirvell’s support for this statement is an apparent October 25, 2010 motion and
order to dismiss action for a personal protection order, entered by Judge Nancy C. Francis of
Washtenaw County Trial Court, regarding which plaintiff Armstrong was represented by U.
Ashwin Patel (P46365) of the University of Michigan Student Legal Services. Doc. Ent. 114-4;
Doc. Ent. 114-1 (Exhibit List). Also, Shirvell attaches a copy of Steve Armstrong’s Facebook
post to “We Support Chris Armstrong,” allegedly from October 29, 2010, which states in part,
“We have issued a press release today from the law offices of Deborah L. Gordon of
[Bloomfield] Hills.” Doc. Ent. 114-5, Doc. Ent. 114-1 (Exhibit List).
9
See Steven Holm Armstrong’s Lawyer Profile on Martindale.com (Doc. Ent. 114-6).
10
Steve Armstrong is listed on Shirvell’s July 11, 2011 witness list (Doc. Ent. 24 ¶ 33),
plaintiff’s March 8, 2012 first amended witness list (Doc. Ent. 116 ¶ 54), plaintiff’s April 23,
2012 amended witness list (Doc. Ent. 138 ¶ 55), and defendant’s May 7, 2012 first amended
witness list (Doc. Ent. 139 ¶ 41).
Of course, the presence of Steve Armstrong’s name on these lists would likely have made
him subject to a deposition. See Fed. R. Civ. P. 30(a) (“When a Deposition May Be Taken.”),
Fed. R. Civ. P. 26(b) (“Discovery Scope and Limits.”).
11
Here, Shirvell cites a June 3, 2010 “Chris Armstrong Watch” blog entry (Doc. Ent. 1112 pp. 31-34) and the transcript of Christopher Harrison Armstrong’s August 25, 2011 deposition,
wherein plaintiff Armstrong is questioned about his father’s creation of a fake Facebook profile
named “Marcus Toka Shirvell” (Doc. Ent. 114-7).
8
communications from April 1, 2010 through April 1, 2011 regarding Shirvell and “Chris
Armstrong Watch.” Plaintiff Armstrong was seeking his father’s legal advice and he need not
file a further response to Amended Request No. 5.12
D.
Order
Accordingly, plaintiff Armstrong’s February 17, 2012 motion for further review (Doc.
Ent. 108) is GRANTED IN PART. Specifically, within thirty (30) days of the date of this order,
Armstrong shall respond to Shirvell’s January 19, 2012 Amended Request No. 4, as amended by
this order, and in accordance with the directions set forth above in Section C.2. Furthermore,
Armstrong need not file a further response to Shirvell’s January 19, 2012 Amended Request No.
5.
IT IS SO ORDERED.
The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of
fourteen (14) days from the date of receipt of a copy of this order within which to file objections
for consideration by the district judge under 28 U.S.C. § 636(b)(1).
Dated: May 10, 2012
s/Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE
12
The record also contains evidence of Steve Armstrong's September 2011 donation of
over $100,000 worth of IBM stock for the "Chris Armstrong Scholarship Fund" at the University
of Michigan (Doc. Ent. 115-6). Shirvell cites this document in support of his March 7, 2012
request that “the Court to overrule Plaintiff Armstrong’s meritless objection to Interrogatory No.
19.” See Doc. Ent. 115 ¶ 23.
The Court will address this request in its determination of Shirvell’s March 7, 2012
motion (Doc. Ent. 115) to overrule plaintiff’s February 22, 2012 objections (Doc. Ent. 115-3) to
Shirvell’s January 19, 2012 second interrogatories (Doc. Ent. 115-2).
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I hereby certify that a copy of the foregoing document was sent to parties of record on May 10,
2012 electronically and/or by ordinary means.
s/Michael Williams
Relief Case Manager to the
Honorable Paul J. Komives
10
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