In re: Jonathan E. Fortman

Filing 5

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the Motion to Quash or, in the Alternative, Modify Subpoena (ECF No. 1 ) is DENIED. Movant Fortman shall produce the requested documents, along with a privilege log (if necessary), or provide a declaration under oath listing the information sought in the document requests. Signed by District Judge Ronnie L. White on 07/27/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

IN RE: JONATHAN E. FORTMAN,

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)
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Plaintiff,

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No. 4:16-MC-421 RLW

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MEMORANDUM AND ORDER

This matter is before the court on the Motion to Quash or, in the Alternative, Modify
Subpoena (ECF No. 1).
BACKGROUND

Movant Jonathan E. Fortman ("Fortman") is an attorney, licensed in the State of
Missouri. (ECF No. 1,

~1).

Fortman represents Kelly Kress, an absent class member who has

objected to the proposed class action settlement and award of attorneys' fees in Chambers v.
Whirlpool Corp., Case No. 8:11cv1733 (C.D. Ca.). On May 27, 2016, Ms. Kress filed her

Objections to the parties' joint motion for final approval of the class action settlement in
Chambers.

(ECF No. 3 at 2). Her counsel of record were John Kress, Steve Miller, and

Johnathan Fortman. (ECF No. 3 at 2). On June 18, 2016, Fortman was served with subpoenas
ad testificandum and duces tecum from Chambers class counsel. The subpoenas commended

Fortman to appear for a deposition on August 1, 2016. In this motion, Fortman moves to quash
those subpoenas.
DISCUSSION

Federal Rule of Civil Procedure 26 provides "parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party." Fed.R.Civ.P.
26(b)(1 ). Relevant information "need not be admissible at the trial if the discovery appears

reasonably calculated to lead to the discovery of admissible evidence." Id. "The rule vests the
district court with discretion to limit discovery if it determines, inter alia, the burden or expense
of the proposed discovery outweighs its likely benefit." Roberts v. Shawnee Mission Ford, Inc. ,
352 F.3d 358, 361 (8th Cir. 2003)(citing Fed.R.Civ.P. 26(b)(l)); see also Fed.R.Civ.P. 45(c)
(authorizing the court to ensure a party responsible for the issuance and service of a subpoena
takes reasonable steps to avoid imposing "undue burden or expense" on a person subject to a
subpoena).
Fortman moves to quash the subpoenas directed to him. Fortman claims that class
counsel's attempt to depose Fortman, litigation counsel on behalf of Ms. Kress, is "improper"
because it "seeks documents and testimony protected by attorney-client and work-product
privilege and seeks documents and testimony which is irrelevant to the issue of whether the
proposed class action settlement and request for attorneys' fees in the underlying case are fair,
reasonable, and adequate." (ECF No. 1, ~5).
In response, class counsel argues that they have a right to depose Fortman. Class counsel
identify Fortman, Ms. Kress, and their "cohorts" as a "serial objectors." (ECF No. 3 at 3); see
also In re Law Office ofJonathan E. Fortman, LLC, No. 4:13MC00042 AGF, 2013 WL 414476,

at *1 (E.D. Mo. Feb. 1, 2013) (identifying Fortman as a "professional objector attorney"). Class
counsel has offered for Fortman, and his co-counsel, Mr. Kress and Mr. Miller, to provide
declarations instead of testimony. The declarations were to comprise of information related to
objections filed in other class actions, including: a list of all objections, identification of any
payments for dismissals with an accounting to whom such payments were distributed, whether
there was any notice to the Court of such payments, and whether there were any corresponding
benefits to the class for the payments. (ECF No. 3 at 3, n.1 ).

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A Court in this district has already held that the discovery requested here is "relevant to
assessing the merits of the objection to the class action settlement." In re Law Office of Jonathan

E. Fortman, LLC, No. 4:13MC00042 AGF, 2013 WL 414476, at *2 (E.D. Mo. Feb. 1,
2013)(citing In re Checking Account OverdraftLitig. , 830 F.Supp.2d 1330, 1361 n. 30 (S.D. Fla.
2011); In re Kentucky Grilled Chicken Coupon Marketing & Sales Practices Litig. , 280 F.R .D.
364, 383 (N.D. Ill. 2011)). Fortman attempts to distinguish that prior litigation because the
subpoena in that case was not addressed to Fortman in his capacity as an attorney for the absent
class member and because the Order did not address what materials were considered workproduct and/or privileged. (ECF No. 2 at 7-8; see also In re Law Office of Jonathan E. Fortman,

LLC, 2013 WL 414476, at *2 ("Movant's other arguments are also unpersuasive. Respondent has
agreed to limit the request to matters that are not work product or privileged. Any remaining
confidentiality concerns of Movant can be addressed by an appropriate protective order, and the
parties are directed to attempt to come to an agreement on the terms of such an order.").
However, as noted by class counsel in this case, any confidentiality concerns are irrelevant
because there is a protective order in place that applies to non-party discovery. The Court does
not find that the discovery requested by class counsel, particularly information regarding
payments made to objectors, raises any privilege concerns that cannot be addressed through a
protective order. Accordingly, the Court agrees with the reasoning of the District Court in In re

Law Office of Jonathan E. Fortman, LLC, 2013 WL 414476 and denies the Motion to Quash the
subpoena.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Quash or, in the Alternative, Modify
Subpoena (ECF No. 1) is DENIED. Movant Fortman shall produce the requested documents,

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along with a privilege log (if necessary), or provide a declaration under oath listing the
information sought in the document requests.

Dated

thi~y of July, 2016.

~L~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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