Parno v. Kane et al

Filing 51

ORDER Granting pltf's mtn to compel 43 . Mr. Shapiro and the OAG shall produce the documents, information, and/or objects demanded by the subpoena, within the date range of 3/1/14 through 8/24/16, to Pltf within (60) days of the date of this order under penalty of contempt.Signed by Honorable Sylvia H. Rambo on 5/8/18. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
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Plaintiff,
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v.
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KATHLEEN KANE, RENEE
MARTIN, DAVID PEIFER, BRADEN :
:
COOK, and WILLIAM NEMETZ
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Defendants.
GLENN A. PARNO,

Civil No. 1:16-cv-1949

Judge Sylvia H. Rambo

ORDER
The background of this order is as follows: Plaintiff asserts a claim, via an
amended complaint (Doc. 14), against, inter alia, Defendant Kathleen Kane
(“Kane), the former Attorney General for the Commonwealth of Pennsylvania, for
violation of Plaintiff’s constitutional right to equal protection of the laws pursuant
to 42 U.S.C. § 1983.1 According to the amended complaint, in 2014, Kane publicly
released Plaintiff’s name in connection with inappropriate emails that were found
in Plaintiff’s email account while he was employed at the Office of the Attorney
General (“OAG”) of the Commonwealth of Pennsylvania. The crux of Plaintiff’s
claim is that hundreds of similarly situated individuals also received or sent the
same emails, many of whom, unlike Plaintiff, were considered high-volume

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On November 9, 2017, the court granted Defendants’ motion to dismiss Plaintiff’s procedural
due process claim (Count II), but denied the motion as to Plaintiff’s equal protection claim
(Count I). (Doc. 34.)

senders of inappropriate emails, and yet Kane chose not to publicly release the
identity of those other individuals. Kane was subsequently charged, tried, and
convicted in the Pennsylvania Court of Common Pleas of Montgomery County of
perjury, false swearing, abuse of office/official oppression, and obstructing the
administration of law or other governmental function based on her corrupt conduct
while Attorney General.
Presently before the court is Plaintiff’s motion to compel compliance with a
subpoena duces tecum (Doc. 43) directed to Pennsylvania Attorney General Josh
Shapiro (“Shapiro”), seeking disclosure of various OAG documents. Shapiro
objects to the subpoena on the grounds that 1) Plaintiff has failed to follow Middle
District Local Rules and this court’s policy of addressing discovery disputes
informally via a conference call before filing discovery motions, and 2) that the
subpoena should be quashed pursuant to Federal Rule of Civil Procedure 45
because it is unduly burdensome on the OAG. (See Doc. 46.) As an initial matter,
the court recognizes that Plaintiff’s submission of a motion to compel without first
seeking the court’s assistance is a violation of both Local Rule 26.3, requiring a
certification that a good faith effort to resolve the discovery dispute was made and
an explanation as to why a resolution could not be reached, as well as the court’s
directive that “counsel not file discovery motions unless conflicts cannot be
resolved by telephone conference.” See Judge’s Info, Judge Sylvia H. Rambo,
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http://www.pamd.uscourts.gov/content/judge-sylvia-h-rambo. The present motion
is Plaintiff’s second motion to compel, and the court directs counsel that should
any further discovery disputes arise, the failure to abide by the Local Rules and the
court’s directives shall result in a denial of any subsequent motions to compel.
Nonetheless, the court will resolve the present motion on its merits.
A.

Federal Rule of Civil Procedure 45

A nonparty to litigation can request that the court quash a subpoena pursuant
to Federal Rule of Civil Procedure 45(d)(3) where the subpoena, inter alia, places
an undue burden on the recipient. In response to such a request, “the court
considers issues such as relevance, the requesting party’s need, the breadth of the
request, and the burden imposed.” CedarCrestone, Inc. v. Affiliated Comput. Servs.
LLC, 14-mc-0298, 2014 WL 3055355, *2 (M.D. Pa. July 3, 2014) (citing Grider v.
Keystone Health Plan Cent., Inc., Civ. No. 05-mc-0040, 2005 WL 2030456, *7
(M.D. Pa. July 28, 2005)). “The party seeking to quash the subpoena bears the
heavy burden of demonstrating that the requirements of Rule 45 are satisfied.” Id.
at *3 (citations omitted).
Here, the OAG argues that the subpoena served upon it by Plaintiff is overly
broad, seeks information both irrelevant and disproportionate to Plaintiff’s lone
remaining claim, and should therefore be quashed because it places an undue
burden on the OAG. Plaintiff contends that the documents it requests are relevant,
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appropriately narrowly tailored, and are not overly burdensome to produce.
Plaintiff’s lone remaining claim is an equal protection claim resting on a “class-ofone” theory, which is based on the public release of Plaintiff’s identity in
connection with inappropriate emails on September 25, 2014 and October 2, 2014.
To prevail on his claim, Plaintiff must show that: 1) Defendants knew that
similarly situated individuals sent or received similar emails through the OAG’s
system; 2) Defendants did not disclose the identities of those similarly situated
individuals; and 3) the decision to reveal Plaintiff’s identity but not similarly
situated individuals was irrational. See Hill v. Borough of Kutztown, 455 F.3d 225,
239 (3d Cir. 2006).
Plaintiff’s first hurdle is to find other OAG employees whose identities were
not publicly disclosed on September 25, 2014 and October 2, 2014. The court
rejects Defendants’ attempt to distinguish between Chief Deputy Attorneys
General and Deputy Attorneys General I, II, III and IV, and finds that, for purposes
of discovery, Plaintiff is similarly situated to all Pennsylvania attorneys general, as
well as special agents and OAG executive officers, who sent or received
inappropriate emails during the relevant timeframe. The rationality, or lack thereof,
in the difference in treatment between other ranking OAG employees and Plaintiff
is both relevant and proportionate to his claim.

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Although Plaintiff seeks documents from January 15, 2013 to January 16,
2017, the amended complaint provides a smaller time period. As alleged in the
amended complaint, Defendant Kane became angry after the Philadelphia Inquirer
published an article on March 16, 2014 about her decision to shut down a sting
operation into corrupt Pennsylvania politicians. Defendant Kane allegedly blamed
then-Chief Deputy Attorney General Frank Fina (“Fina”) for the story, and decided
to wage “war” against Fina and those closely associated with him. (See Doc. 17,
¶¶ 20-22.) This war included threats to release the emails in August 2014, followed
by the actual release of emails from Fina and his “friends” on September 25, 2014
and October 2, 2014, as well as Defendant Kane’s November 19, 2014 appearance
on CNN wherein she discussed the inappropriate emails. (Id. at ¶¶ 34, 36, 37, 39,
60.)
On December 1, 2015, Defendant Kane appointed former Maryland
Attorney General Douglas Gansler (“Gansler”) as a Special Deputy Attorney
General to investigate the use of state equipment to exchange inappropriate emails.
(Id. at ¶ 68.) On August 24, 2016, Gansler’s attorney notified Plaintiff and other
senders and receivers of inappropriate emails on state computers that their names
would be listed in a report on the findings of Gansler’s investigation (the “Gansler
Report”) as either high-volume or low-volume senders. (Id. at ¶ 73.) Gansler’s
investigation and the Gansler Report are very likely to include identifying
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information as to individuals similarly situated to Plaintiff, and the court therefore
finds that information to be relevant to Plaintiff’s claim. The court also finds that
the relevant timeline as to all document requests is therefore March 1, 2014 – just
before the new report that allegedly began Defendant Kane’s retaliatory behavior –
and August 24, 2016 – the day on which Gansler announced the Gansler Report
and its upcoming release.
Accordingly, for the reasons stated herein, IT IS HEREBY ORDERED
that Plaintiff’s motion to compel compliance with a subpoena duces tecum directed
to Attorney General Josh Shapiro (Doc. 43) is GRANTED. Mr. Shapiro and the
OAG shall produce the documents, information, and/or objects demanded by the
subpoena, within the date range of March 1, 2014 through August 24, 2016, to
Plaintiff within sixty (60) days of the date of this order under penalty of contempt.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: May 8, 2018

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