Copeland et al v. C.A.A.I.R. et al

Filing 158

OPINION AND ORDER by Magistrate Judge Jodi F Jayne Motion to Quash (ECF No. 128) is denied. Limits imposed on subpoenas under Courts inherent authority ; denying 128 Motion to Quash (sdc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ARTHUR COPELAND, individually and on
behalf of all others similarly situated; et al.,
Plaintiffs,
v.
C.A.A.I.R., INC., a domestic not for profit
corporation; et al.,
Defendants.

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Case No. 17-CV-564-TCK-JFJ

OPINION AND ORDER
Before the Court is Defendant C.A.A.I.R, Inc. (“CAAIR”), Janet Wilkerson, and Don
Wilkerson’s (collectively, “Moving Defendants”) Motion to Quash or Modify Plaintiffs’ ThirdParty Document Subpoenas (“Motion to Quash”) (ECF No. 128).
I.

Procedural Background1
In the Second Amended Complaint, forty-seven individual Plaintiffs assert claims against

several Defendants for violations of the Fair Labor Standards Act (“FLSA”); the wage laws of
Oklahoma, Missouri, and Arkansas; the federal Racketeer Influenced and Corrupt Organizations
Act (“RICO”); the federal Trafficking Victims Protection Reauthorization Act (“TVPRA”); and
other laws. Plaintiffs assert all claims on behalf of themselves and other similarly situated.
Plaintiffs seek to certify an FLSA opt-in class, and further seek to certify seven classes under
Federal Rule of Civil Procedure 23.

1

The Opinion and Order of United States District Judge Terence Kern sets forth Plaintiffs’ factual
allegations and claims. See Copeland v. C.A.A.I.R., Inc., No. 17-CV-564-TCK-JFJ, 2019 WL
4307125, at *2 (N.D. Okla. Sept. 11, 2019). This Order assumes familiarity with that Opinion and
Order.

In October of 2018, the Court permitted the parties to conduct discovery pending resolution
of a motion to dismiss, over Plaintiffs’ objection. See ECF Nos. 88 (hearing minutes), 97 (order).
The parties have since been exchanging written discovery.2 In July of 2019, the Court granted
motions to compel filed by Defendants, but the Court declined to recommend any dismissal
sanctions or issue warnings regarding Plaintiffs’ non-compliance with discovery. ECF Nos. 113
(hearing minutes), 114 (order).
In September of 2019, the district judge denied the pending motion to dismiss, permitting
nearly all claims to proceed, and referred scheduling issues to the undersigned. After denying
Plaintiffs’ motion to modify certain discovery obligations, see ECF No. 147, the Court conducted
a scheduling conference, conducted a hearing on the pending Motion to Quash, and took all issues
under advisement. The Court is currently delaying entry of a schedule, pending resolution of issues
raised by Plaintiffs during the hearing regarding what Plaintiffs and claims will remain in the case.
See ECF No. 154. This Opinion and Order addresses only the Motion to Quash, which is
unaffected by the pending scheduling issues.
II.

Challenged Subpoenas
On September 27, 2019, Plaintiffs issued third party subpoenas duces tecum to the

following individuals and entities pursuant to Federal Rule of Civil Procedure 45: (1) individuals
and companies that contracted with CAAIR to provide counseling or educational services to
CAAIR (“Counselors”); (2) Doug Cox (“Cox”), a CAAIR board member; (3) the bank where

2

The parties exchanged written discovery on both class certification and merits issues, and neither
party requested to limit this initial written discovery to class certification issues.
2

Moving Defendants currently hold bank accounts (“Bank”);3 and (4) the accounting firm used by
Moving Defendants (“Accountant”) (collectively, “Subpoenaed Parties”).
Plaintiffs requested the following from all Subpoenaed Parties: all documents4 in your
possession, custody, or control that “refer or relate to” a long list of individuals and entities,
including: BJR, WD-4,5 Defendant CAAIR, Defendant Janet Wilkerson, Defendant Don
Wilkerson, Defendant Louise Dunnam, Defendant Rodney Dunnam, Doug Cox, Blake Evans, and
Defendant Simmons Foods, without time limitation.6 Plaintiffs requested the following additional
items from Counselors and Cox: all documents in your possession, custody, or control that refer
or relate in any way to the Oklahoma Department of Mental Health and Substance Abuse Services
(“ODMHSAS”), without time limitation; and all state and federal tax returns for the years you
provided services to CAAIR or served as a board member for CAAIR. Plaintiffs requested the
following additional items from Counselors only: all documents in your possession, custody, or
control that refer or relate to any certifications held by you at any time; and all documents in your
possession, custody, or control that refer or relate in any way to your licensure, including but not

3

Plaintiffs issued one subpoena to Grand Savings Bank and another to Grand Savings Bank on
behalf of Decatur State Bank, which was a predecessor of Grand Savings Bank. The two
subpoenas request identical items.
“Documents” is defined in the Subpoenas with a list of specific items, and includes attachments
to documents, all responses elicited by such documents, and all communications reflecting,
referring to, or relating to those documents.
4

BJR, LLC was an entity formed by the Wilkersons and an individual named Blake Evans, who
was involved in the initial plans to create the CAAIR program. According to CAAIR, the BJR
entity was abandoned when Evans disassociated from CAAIR and the Wilkersons. WD-4 is a
partnership that operated for a short time and preceded the formation of CAAIR as a non-profit
entity.

5

6

The requests for documents that refer or relate to Blake Evans and Simmons Foods contained the
following additional language: “to the extent such documents refer or relate in any way whatsoever
to WD-4, CAAIR, BJR, Janet Wilkerson, Don Wilkerson, Louise Dunnam, and/or Rodney
Dunnam.”
3

limited to correspondence, applications, approvals, denials, reviews, renewals, suspensions, and
revocations.
III.

Legal Standards
A.

Rule 45/Rule 26 Limits on Document Subpoenas

Rule 45 subpoenas are considered discovery within the meaning of the Federal Rules of
Civil Procedure. Rice v. United States, 164 F.R.D. 556, 556-57 (N.D. Okla. 1995). A subpoena
is therefore subject to Rule 26(b)(1)’s requirements and must seek information that is relevant to
a party’s claims or defenses and proportional to the needs of the case. See Spraggins v. Reg’l Med.
Ctr., 2010 WL 5137439, at *1 (D. Kan. Dec. 10, 2010) (“A subpoena must be within the proper
scope of discovery . . . .); Kona Spring Water Distrib., Ltd. v. World Triathlon Corp., No. 8:05CV-119-T-23TBM, 2006 WL 905517, at *2 (M.D. Fla. Apr. 7, 2006) (“[A] court must examine
whether a request contained in a subpoena duces tecum is overly broad or seeks irrelevant
information under the same standards set forth in Rule 26(b) and as applied to Rule 34 requests
for production.”).
A subpoena must also avoid subjecting a third party to undue burden. Fed. R. Civ. P.
45(d)(3)(A)(iv). In determining whether undue burden exists, the Court balances the need for
discovery against the burden imposed on the person ordered to produce the documents; the status
of a person as a non-party is a factor that weighs against disclosure. Speed-Trac Tech. v. Estes
Exp. Lines, Inc., 2008 WL 2309011, at *2 (D. Kan. June 3, 2008) (internal quotation omitted).
The Court considers the relevance of the documents, the requesting party’s need for the documents,
the breadth of the request, the time period covered, the particularity of the request, and the burden
imposed. Id.

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B.

Standing to Challenge Third-Party Subpoenas

“Absent a claim of privilege, or personal or proprietary interest, a party lacks standing to
challenge a subpoena served on a third party.” Clark v. Johnson, No. 14-CV-582-JED-PJC, 2015
WL 4694045, at *1 (N.D. Okla. Aug. 6, 2015); Pub. Serv. Co. of Okla. v. A Plus, Inc., No. CIV10-651-D, 2011 WL 691204, at *4 (W.D. Okla. Feb. 16, 2011) (explaining standing principles and
applying to specific document requests). Generally, “an individual has a personal interest in
certain records – e.g., bank records, mental health or medical records, employment records –
sufficient to provide standing to challenge a subpoena for their disclosure, even where that
information is maintained by a third party.” Clark, 2115 WL 4694045, at *1. However, “[e]ven
if a party has standing to challenge a subpoena directed to a third party on privilege grounds, he
may not challenge that subpoena on the grounds that the information imposes an undue burden on
the subpoenaed party.” Pub. Serv. Co. of Okla., 2011 WL 691204, at *4.
C.

Court’s Inherent Authority to Limit Discovery and Quash/Modify Subpoenas

In cases where a moving party lacks standing to challenge a third-party subpoena, a court
may exercise its inherent authority to limit irrelevant or non-proportional discovery requests
pursuant to Federal Rule of Civil Procedure 26(b)(2)(C). See Fed. R Civ. P. 26(b)(2)(C)(iii)
(explaining that court “must limit the frequency or extent of discovery” if court determines that
proposed discovery is outside the scope permitted by Rule 26(b)(1)); Gov’t Employees Ins. Co. v.
Trnovski, No. CV 16-4662 (CCC), 2018 WL 5281424, at *3 (D.N.J. Oct. 23, 2018) (“Although
the Court finds that defendants lack standing to quash the Subpoenas, the Court will nevertheless
address whether the information that Plaintiffs seek is relevant under Rule 26.”). A court may also
exercise its inherent authority to quash or modify an unduly burdensome subpoena. See Griggs v.
Vanguard Grp., Inc., No. CIV-17-1187-SLP, 2019 WL 3058982, at *1 (W.D. Okla. May 7, 2019)

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(“The Court can (and, here, does) issue a protective order to guard the [] nonparties from
unnecessarily burdensome discovery regardless of whether Plaintiff, herself, has standing to assert
specific objections to the subpoenas issued by Defendants.”) (collecting cases); 9A Wright &
Miller, Federal Practice and Procedure § 2463.1 (3d ed.) (explaining that “[f]ederal courts always
have had the inherent power to protect persons subject to subpoena from undue burden” but that
Rule 45(d)(3)(A) requires a court to quash a subpoena imposing an undue burden upon a timely
motion).
IV.

Analysis
A.

Moving Defendants’ Standing

Plaintiffs argue that Moving Defendants lack standing to challenge the majority of requests
in the subpoenas. Although Moving Defendants likely have standing to challenge certain aspects
of the subpoenas to Bank and Accountant for Moving Defendants’ financial records, they lack
standing to challenge certain requests to Counselors and Cox for those individuals’ certifications,
licenses, and tax records. As to requests from all Subpoenaed Parties for all documents that “refer
or relate to” CAAIR, its predecessors, its principals, its founders, and ODMHSAS, Moving
Defendants argue that these requests necessarily sweep in Moving Defendants’ private records, as
well as CAAIR participants’ private mental health records, providing Moving Defendants standing
to object.
In this case, the Court will not parse through the requests and analyze Moving Defendants’
standing as to each. As explained below, the vast majority of these requests suffer from facial
overbreadth, lack of relevance, and lack of particularity, and they subject third parties to undue
burden. Further, Cox and Counselors have authorized counsel for Moving Defendants to object
to the subpoenas on their behalf. If the Court denies the Motion to Quash for lack of standing,

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Cox and Counselors intend to object and force Plaintiffs to file a motion to compel raising the
substantive issues already addressed in the current briefing and during the hearing. In the interest
of efficient resolution of these issues and avoiding further motion practice, the Court exercises its
inherent authority under Rule 26 and Rule 45 to issue a protective order and/or modify the
subpoenas for the reasons explained below. See Griggs, 2019 WL 3058982, at *3 (finding
subpoenas facially overbroad and unduly burdensome and issuing protective order to extent
subpoenas exceeded allowable scope of discovery).
B.

Relevance/Facial Overbreadth/Undue Burden

Plaintiffs contend the requests to third parties are primarily relevant to their RICO claims,
which include an inquiry of whether Defendants committed predicate federal violations of the
TVPRA. Plaintiffs argue their requests are not facially overbroad, because any documents these
third parties possess that refer or relate to the listed individuals/entities are necessarily relevant to
their claims.
To establish liability under RICO, Plaintiffs must show that Defendants (1) participated in
the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Copeland v.
C.A.A.I.R., Inc., No. 17-CV-564-TCK-JFJ, 2019 WL 4307125, at *10 (N.D. Okla. Sept. 11, 2019)
(citing Tal v. Hogan, 453 F.3d 1244, 1269-70 (10th Cir. 2006)). “‘Racketeering activity’ is
defined, in pertinent part, as any ‘act which is indictable’ under federal law and specifically
includes violations of the TVPRA.” Id. (citing 18 U.S.C. § 1961(1)(B); Tal, 453 F.3d at 1261-62).
To satisfy the “enterprise” element, “Plaintiffs must show that the group has (1) a purpose, (2)
relationships among those associated with the enterprise, and (3) longevity sufficient to permit
these associates to pursue the enterprise’s purpose. The group must have a common purpose to
engage in a course of conduct, but that purpose need not exist beyond or independent of this

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group’s pattern of racketeering activity.” Id. (citing Crowe v. Clark, 552 F. App’x 796, 800 (10th
Cir. 2014)).
In this case, the district judge held that Plaintiffs’ factual allegations adequately stated a
RICO claim, based on the alleged association and actions of CAAIR and Simmons:
Simmons and C.A.A.I.R. had a contract, and the common purpose of C.A.A.I.R.
supplying its agricultural interests, including Simmons, with unpaid labor at belowmarket costs. While it is unclear exactly how long C.A.A.I.R. and Simmons have
been associated, Plaintiffs have further alleged that their arrangement lasted for at
least several months, which appears to be enough time for both to pursue the
enterprise’s purpose – using unpaid labor purchased at below-market costs to
increase both parties’ profits. . . . . Similarly, because Plaintiffs have alleged that
[Janet] Wilkerson was responsible for devising and implementing C.A.A.I.R.’s
policies – including their association with Simmons and threats of prison – they
have alleged her participation.
Id. at *10. The district judge further concluded that Plaintiffs adequately alleged Simmons’
participation in the RICO enterprise’s affairs. Id. at *11.
As indicated at the hearing on the Motion to Quash, the Court concludes that these
subpoenas are facially overbroad, and that Plaintiffs cast their discovery net too wide. The requests
use the phrase “refer or relate to” and then simply reference a litany of individuals or entities
associated with CAAIR, its predecessors, its principals, ODHMHSAS, or its alleged RICO
associate, Simmons Foods. The Court disagrees with Plaintiffs’ assertion that all documents in
the possession of the Subpoenaed Parties that refer or relate to these individuals and entities
associated with CAAIR are relevant to their RICO claim or any other claims in this litigation.
While these requests encompass some relevant information as to the elements of Plaintiffs’ RICO
and TVPRA claims, the requests sweep in a large amount of irrelevant information and are not
adequately particularized to permit reasonable compliance by third parties.
Following are examples of facial overbreadth (and therefore undue burden) within these
requests. A request for all documents in the possession of Counselors that refer or relate to

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CAAIR, its predecessors, or its principals encompasses any number of records, including mental
health information about individual clients who are not parties to the litigation, and irrelevant
personnel matters. A request for all documents in the possession of Counselors that refer or relate
to ODMHSAS encompasses communications from that state agency to Counselors about any
number of patients or other mental-health services unrelated to CAAIR. It also extends to mental
health records of CAAIR participants who are not named Plaintiffs in this case. In a stark example
of facial overbreadth, one Counselor is a relative of the Wilkersons, such that the request for all
documents referring or relating to the Wilkersons would extend to any number of irrelevant
personal documents. Cox is a CAAIR board member. A request for all documents in Cox’s
possession that refer or relate to CAAIR encompasses all board minutes and correspondence,
whether relevant to the litigation or not. CAAIR and the Wilkersons are long-standing customers
of Bank and Accountant. The requests to Bank and Accountant indiscriminately request all
documents “referring or relating to” CAAIR and the Wilkersons, which extends beyond financial
records to all manner of communications and other correspondence over the entire span of their
service relationship. As to requests for documents referring or relating to non-customers of Bank
and Accountant, these are a fishing expedition that imposes too great a burden on Bank and
Accountant to search all records for documents possibly referring to these other individuals and
entities.
Because the requests are overly broad, they request large amounts of irrelevant information
and are unduly burdensome on their face. See Moses v. Halstead, 236 F.R.D. 667, 672 (D. Kan.
2006) (holding that requests may be overly broad or unduly burdensome on their face if they use
an omnibus term such as “relating to” or “concerning” and apply to a general category of
documents or a broad range of information); Howard v. Segway, Inc., No. 11-CV-688-GKF-PJC,

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2013 WL 869955, at *2 (N.D. Okla. Mar. 7, 2013) (explaining that use of omnibus phrases may
“set the stage for discovery problems because the recipient does not know specifically what is
being requested” and must engage in “mental gymnastics”). The requests therefore exceed the
scope of permissible discovery under Rules 26 and 45.
C.

Protective Order to Limit Scope of Discovery/Avoid Undue Burden

Rather than quash the subpoenas or issue a blanket protective order, the Court exercises its
inherent authority to limit and modify these requests to more specific categories of documents and
for limited time periods. Although it is not the Court’s responsibility to redraft discovery requests
that are obviously overbroad, see Cartel Asset Mgmt. v. Ocwen Fin. Corp., No. 01-CV-01644REB-CBS, 2010 WL 502721, at *8 (D. Colo. Feb. 8, 2010), Plaintiffs offered clarification during
the hearing of what categories of documents they were seeking within the overbroad requests.
Based on these clarifications, the Court limits the scope of the subpoenas, as set forth below, to
more narrow requests that are relevant and not unduly burdensome to third parties.7
1.

Counselors and Cox

With respect to Counselors and Cox, the Court will permit particularized discovery aimed
at determining the scope of work performed by Counselors; whether CAAIR and Simmons were
engaged in illegal acts; the formation of the alleged RICO enterprise; and requests for Counselors’
licenses and certifications, which are aimed at determining whether and to what extent Counselors
were qualified to provide services to CAAIR. For some requests, the Court limits the time frame
to four years prior to the Second Amended Complaint, which is the statute of limitations for civil

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Plaintiffs are not precluded from issuing further subpoenas to these third parties but may not
duplicate requests allowed by this Order.
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RICO damages claims. See Robert L. Kroenlein Tr. ex rel. Alden v. Kirchhefer, 764 F.3d 1268,
1274 (10th Cir. 2014).
Counselors are ordered to produce:8
1.

Documents showing or discussing the scope and nature of services you perform for

CAAIR.
2.

Documents showing or discussing the formation of BJR, WD-4, or CAAIR.

3.

Documents showing or discussing the nature of the business relationship between

CAAIR and Simmons, from 2013 to the present.
4.

Documents showing or discussing any investigation of CAAIR by ODMHSA, from

2013 to the present.
5.

Certifications held by you while providing services for CAAIR.

6.

Licenses held by you while providing services for CAAIR, including any

suspensions or revocations.
Cox is ordered to produce:
1.

Documents explaining or showing the formation of BJR, WD-4, or CAAIR.

2.

Documents explaining or showing the nature of the business relationship between
CAAIR and Simmons, from 2013 to the present.

3.

Documents showing or discussing any investigation of CAAIR by ODMHSAS,
from 2013 to the present.

With respect to Plaintiffs’ request for Cox’s and Counselors’ tax returns for years they
provided services or served on CAAIR’s board, the Court issues a protective order for those
requests at this time. As discussed during the hearing, Plaintiffs have not issued any discovery

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The terms used below by the Court have the definitions used in Plaintiffs’ subpoenas.
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requests to CAAIR or Simmons in the first instance to determine what documents the parties
possess that would reveal methods, amounts, and sources of payment to Counselors and/or Cox.
The parties are a more convenient source, and a request to parties is necessarily more targeted to
relevant information. See Fed. R. Civ. P. 26(b)(2)(C)(i) (permitting protective order where
information may be obtained from more convenient source). Plaintiffs may re-issue subpoenas for
tax returns or other financial information from third parties after first discovering relevant
information from the parties and determining whether a remaining need exists.
2.

Bank and Accountant

The Court will permit discovery aimed at determining whether CAAIR and Simmons were
engaged in a RICO association-in-fact, the flow of money between the two entities, and other
financial dealings between the two entities. See Brown v. Tax Ease Lien Servicing, LLC, No. 3:15CV-208-CRS, 2016 WL 10788070, at *10 (W.D. Ky. Oct. 11, 2016) (explaining that discovery of
“tax returns, general ledgers and bank records” are routinely permitted as discovery in RICO
actions). Although RICO has a four-year statute of limitations, the Court finds that document
requests to Bank and Accountant have a higher degree of relevance to the alleged RICO violations
than requests to other third parties. Therefore, the Court permits a broader time frame for the
financial information requested from these entities.
Bank is ordered to produce:9
1.

Financial records of customers Janet Wilkerson, Joe Wilkerson, and CAAIR from

2009 to the present.

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During the hearing, Plaintiffs’ counsel stated that he had a phone conversation with Bank
regarding the requests. The documents permitted by this Order are consistent with Plaintiffs’
explanations of the categories of documents discussed.
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2.

Loans obtained by CAAIR and/or Simmons from 2009 to the present, including

applications and supporting documentation.
Accountant is ordered to produce:10
1.

Documents explaining or showing the formation of BJR, WD-4, or CAAIR.

2.

Documents explaining or showing the nature of the business relationship between

CAAIR and Simmons.
3.

Tax returns and supporting documentation for WD-4, CAAIR, Janet Wilkerson,

and Joe Wilkerson from 2009 to the present.
V.

Conclusion
Because Moving Defendants lack standing to object to certain aspects of the third-party

subpoenas, Moving Defendants’ Motion to Quash (ECF No. 128) is denied.
However, acting pursuant to its inherent authority to issue protective orders and/or modify
subpoenas, the Court limits and modifies the subpoenas as set forth in this Opinion and Order.
Third parties need only respond to the requests as limited in this Opinion and Order, and need not
respond to any other requests in the subpoenas. Third parties may produce any confidential
documents under the terms of the Stipulated Protective Order entered on November 7, 2018.
SO ORDERED this 28th day of February, 2020.

J D F J Y E MA IT A EJ D E
O I .A N , G S R T U G
U IE S A E D S R C C U T
N T D T T S IT I T O R

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According to Moving Defendants, Accountant is the tax and accounting firm utilized by Joe and
Janet Wilkerson and CAAIR. ECF No. 128 at 18. It does not appear that Accountant performs
services for other individual Defendants.
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