Williams v. Franklin County Municipal Court et al
Filing
47
ORDER granting 40 Motion to Quash. Signed by Magistrate Judge Norah McCann King on 12/22/2011. (nmk0)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRENDA WILLIAMS,
Plaintiff,
vs.
Civil Action 2:10-CV-1155
Judge Marbley
Magistrate Judge King
FRANKLIN COUNTY MUNICIPAL
COURT, et al.,
Defendants.
OPINION AND ORDER
This is a civil rights action in which plaintiff, formerly
employed by the Franklin County Municipal Court, alleges
that defendants, the Franklin County Municipal Court and the State of
Ohio, failed to correct a hostile work environment to which
plaintiff had been subjected by Harland Hale, a Judge of the Municipal
Court, and retaliated against plaintiff. Plaintiff alleges, inter
alia, that other judges of the court “instituted a practice intended
to conceal the known proclivities of their colleague. . . .”
Amended Complaint, Doc. No. 30, ¶17.
Second
It is also alleged that
defendants determined that plaintiff “should be made to appear to have
fabricated the allegations against Hale . . . by, among other actions,
threatening Plaintiff, facilitating rumor and innuendo circulating in
the Court regarding Plaintiff’s alleged mental imbalance and lack of
trustworthiness, ignoring or demeaning Plaintiff’s complaints of
hostile work environment. . . .”
Id. ¶ 18.
Plaintiff asserts claims
of hostile work environment and retaliation in violation of Title VII,
42 U.S.C. §2000e et seq. Plaintiff also asserts a claim under COBRA,
29 U.S.C. §1132(c) for failure to provide required notification upon
the termination of plaintiff’s employment.
This matter is now before
the Court on the motion to quash a subpoena issued by plaintiff to
Jennifer L. Brunner. Motion to Quash, Doc. No. 40.
The Court
conferred with counsel for defendant and the movant on December 22,
2011.
Movant, the former Ohio Secretary of State and currently an
attorney representing Judge Harland Hale, was subpoenaed for
deposition by plaintiff.
Exhibit A, attached to Motion to Quash.
She
moves to quash the subpoena pursuant to Fed. R. Civ. P.
45(c)(3)(C)(iv), taking the position that the deposition would subject
her to undue burden.
Plaintiff represents that the deposition is not intended to
inquire into matters rendered privileged by virtue of the deponent’s
current representation of Judge Hale; rather, plaintiff intends to
depose Ms. Brunner only about a telephone call allegedly made by Ms.
Brunner in December 2007, while she was Secretary of State, to
plaintiff’s former attorney.
According to plaintiff, 1 a proposed
complaint alleging a hostile work environment had been provided to
Judge Hale, and others, in advance of a mediation of plaintiff’s
claims against him.
Prior to that mediation, however, Ms. Brunner –
who was not formally involved in that matter – allegedly telephoned
the former attorney and characterized plaintiff’s allegations as
frivolous.
Plaintiff asserts that her former attorney understood the
call as “strongly implying that [he] should not follow through with
filing the Complaint.”
See Exhibit G attached to Motion to Quash.
1
Plaintiff refers in this regard to an unexecuted declaration
purportedly recounting the recollection of that former attorney. Declaration
of Michael Moses, Esq., attached to Exhibit G to Motion to Quash.
2
Movant specifically argues that the subpoena seeks information
not reasonably calculated to lead to the discovery of admissible
evidence, that she has no knowledge or recollection of the alleged
telephone call, see Affidavit of Jennifer L. Brunner, attached to
Exhibit E to Motion to Quash, and that the deposition will risk
intrusion into areas of privileged information.
Movant also contends
that plaintiff could obtain equivalent, or better, information on the
topic by deposing plaintiff’s former attorney. 2
In response, plaintiff takes the position that the proposed
deposition falls within the ambit of proper discovery under Fed. R.
Civ. P. 26(b): if the deponent made the telephone call at the behest
of Judge Hale, the call could be perceived as either an admission by
Judge Hale of the truth of plaintiff’s allegations or as evidence of
the retaliation alleged by her in the Second Amended Complaint.
She
also argues that she is entitled to attempt to refresh Ms. Brunner’s
recollection on deposition, notwithstanding her sworn failure of
recollection and that the testimony of her former attorney is not the
equivalent of Ms. Brunner’s testimony, because the former attorney
cannot testify to the source of Ms. Brunner’s knowledge of plaintiff’s
allegations against Judge Hale.
A subpoena issued under Fed. R. Civ. P. 45 is also subject to the
general relevancy standard of Rule 26(b).
Whether a burden on a
proposed deponent is undue requires weighing “the likely relevance of
the requested [information] . . . against the burden . . . of
2
Movant also complains that the subpoena was not accompanied by the
witness fee required by Fed. R. Civ. P. 45(b)(1). Plaintiff concedes as much
but suggests that the default was a function of a misunderstanding on her
counsel’s part and represents that she stands ready to tender the required
fee. Memorandum of Plaintiff in Opposition to Motion of Non-Party Jennifer L.
Brunner to Quash Subpoena, Doc. No. 42, pp. 5-6.
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producing the [information.]”
EEOC v Ford Motor Credit Co., 26 F.3d
44, 47 (6th Cir. 1994). Relevance for discovery purposes is extremely
broad.
Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th
Cir. 1998). “The scope of examination permitted under Rule 26(b) is
broader than that permitted at trial.
The test is whether the line of
interrogation is reasonably calculated to lead to the discovery of
admissible evidence.”
500-01 (6th Cir. 1970).
Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499,
However, a court “must limit the frequency or
extent of discovery otherwise allowed by these rules” if the discovery
sought is “unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or
less expensive” or if “the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the
amount in controversy, the parties’ resources, the importance of the
issues at stake in the action, and the importance of the discovery in
resolving the issues.”
Rule 26(b)(2)(C)(i)-(iii).
Determining the
proper scope of discovery falls within the broad discretion of the
trial court.
Lewis, 135 F.3d at 402. “Although [parties] should not
be denied access to information necessary to establish [their
defenses], neither may a [party] be permitted ‘to go fishing and a
trial court retains discretion to determine that a discovery request
is too broad and oppressive.’” Surles v. Greyhound Lines, Inc., 474
F.3d 288, 305 (6th Cir. 2007), quoting Marshall v. Westinghouse Elec.
Corp., 576 F.2d 588, 592 (5th Cir. 1978).
This Court concludes that the proposed deposition does not fall
within the ambit of discoverable information.
26(b)(1).
See Fed. R. Civ. P.
At a minimum, the information sought by the proposed
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deposition is so tangential to the resolution of the issues involved
in this case that the burden of subjecting the deponent to even a
short deposition outweighs its likely benefit.
As an initial matter,
the Court rejects plaintiff’s assumption that the characterization of
claims as frivolous by a person who is not a party to or counsel in
the litigation and who has no supervisory authority over either the
plaintiff or her counsel – even if made at the behest of one of the
parties – is evidence of the merits of those claims.
Moreover, even
assuming that plaintiff’s former counsel subjectively perceived
himself to have been threatened during the course of the alleged
telephone conversation, that fact is simply irrelevant to plaintiff’s
claims that she was subjected to a hostile work environment and was
retaliated against in her employment.
The Court therefore concludes that the Motion to Quash, Doc. No.
40, is meritorious and it is therefore GRANTED.
S/ Norah McCann King
Norah McCann King
United States Magistrate Judge
December 22, 2011
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