Parno v. Kane et al

Filing 80

MEMORANDUM re. Letter/Motion to compel (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 10/23/19. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER CARUSONE,
AND GLENN PARNO,

: Civil Nos. 1:16-cv-1944,
: 1:16-cv-1949
:
:
Plaintiffs,
:
:
v.
:
:
KATHLEEN KANE, RENEE
MARTIN, DAVID PEIFER, BRADEN :
:
COOK, and WILLIAM NEMETZ
:
Defendants.
: Judge Sylvia H. Rambo
MEMORANDUM
Before the court is the letter/ motion to compel filed by Plaintiffs Christopher
Carusone and Glenn Parno (“Plaintiffs”). For the reasons outlined below, the court
shall grant the motion.
I.

Background
This is a civil dispute arising from the former Pennsylvania Attorney General,

Kathleen Kane (“Kane”), allegedly publishing evidence she discovered during an
investigation in politically-targeted and self-serving ways. Following the court’s
previous order on Plaintiffs’ first subpoena, Plaintiffs submitted two additional
subpoenas that the Pennsylvania Office of Attorney General (“OAG”) has refused,
in part, to comply with. The second subpoena includes, inter alia, seven requests
for information previously approved by the court, but including new OAG
employees and custodians whose email inboxes need be searched to comply with the

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subpoena.1

In its third subpoena, Plaintiffs also requested access to Kane’s

Blackberry cell phone.
In their motion, Plaintiffs: (1) provide several pieces of evidence supporting
their requests for the custodians at issue; (2) argue OAG has waived all objections
to the third subpoena by failing to respond with timely objections; and (3) request
forensic access to Kane’s Blackberry.2 In response (“Resp.”), OAG objects that the
requests are not proportional to the needs of the case because: (1) the additional
custodians lack much of the requested information; (2) searching the additional
inboxes would be unduly burdensome; and (3) OAG has already tried to access
Kane’s Blackberry and failed. OAG also alleges Plaintiffs were deficient in their
obligations to confer. On reply (“Reply”), Plaintiffs point out OAG has submitted
no evidence in support of its response and argue they conferred a significant amount
regarding the discovery issues in this case. Having been fully briefed, the issue is
now ripe for the court to resolve.

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A few issues appear to have already been resolved by the parties. For example: Plaintiffs
have narrowed their requested custodians down to twelve; OAG has agreed to now comply with
Request 8 in the second subpoena; and OAG has agreed to provide email-by-email review of all
emails involving a select group of people during the timeframe of September 15, 2014 through
October 5, 2014. The court trusts OAG will comply with the representations it has made to the
court.
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Plaintiffs have submitted no affidavit or declaration authenticating any of their
attachments. See FED. R. EV. 901. Because OAG has not objected, the court shall consider them
as accurate representations of what Plaintiffs refer to them as. United States v. Ntreh, 142 F. App’x
106, 108 n.4 (3d Cir. 2005) (finding the court did not err in admitting inauthenticated documents
where “no objection on this ground was stated at trial”).
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II.

Discussion
Under amended Federal Rule of Civil Procedure 26(b)(1), parties are

generally allowed to seek discovery regarding relevant information as long as the
request is “proportional to the needs of the case.” In conducting a proportionality
analysis, the court should begin by examining the significance of the controversy at
issue, the parties’ resources and access to information, and whether the burden or
expense of complying with the discovery outweighs its benefit. Id. Here, the
controversy at issue is significant to the public—as it concerns potential public
corruption and abuse of authority3—and potentially involves a significant amount in
controversy. And OAG is a “government entity with significant resources at its
disposal.” Consumer Fin. Prot. Bureau v. Navient Corp., No. 3:17-CV-101, 2018
WL 2088760, at *2 (M.D. Pa. May 4, 2018). Thus, the court here “is not inclined to
sustain a proportionality objection without a showing that the sought after material
is unimportant to the issues in this case and the burden or expense of producing such
material is excessive in comparison to the size of this litigation.” Id. The court
begins by analyzing OAG’s relevance objections.
OAG claims that much of the information sought is not relevant because the
additional custodians were not materially involved in the transmission of the emails

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The court’s belief that the controversy is significant is not a statement regarding the court’s
opinion regarding the merits of either party’s claims or defenses.
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at issue and did not aid in the political targeting of Plaintiffs. There are two problems
with this objection. First, OAG makes several factual claims without presenting any
evidence supporting them.

Second, these factual claims are interwoven with

Defendant Kathleen Kane’s substantive defense. The entire purpose of discovery is
to afford the opposing party the opportunity to support their claim or defense by
reviewing evidence in another party’s possession. The court would therefore be
remiss to deny Plaintiffs the opportunity to conduct discovery simply on the basis
that OAG has put forward a persuasive explanation of its substantive defense.
Moreover, the evidence presented by Plaintiffs creates at least a prima facie
impression that the additional custodians were selected because Plaintiffs have a
good-faith basis for believing they possess information that could yield relevant
material. Therefore, OAG must satisfy a high bar in its undue burden objection for
the motion to be denied. The court now begins examining OAG’s burden in
complying with the subpoenas.
In Ehrlich v. Union Pacific Railroad Company, the United States District
Court for the District of Kansas issued a well-analyzed opinion laying out the proper
method for analyzing an unduly burdensome objection:
A party asserting an unduly burdensome objection to a
discovery request has the burden to show facts justifying
its objection by demonstrating that the time or expense
involved in responding to requested discovery is unduly
burdensome. Additionally, the objecting party must show
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not only undue burden or expense, but that the burden or
expense is unreasonable in light of the benefits to be
secured from the discovery. This imposes an obligation to
provide sufficient detail in terms of time, money and
procedure required to produce the requested
documents. Any objections that discovery is unduly
burdensome must contain a factual basis for the claim, and
the objecting party must usually provide an affidavit or
other evidentiary proof of the time or expense involved in
responding to the discovery request.
302 F.R.D. 620, 625-26 (D. Kan. 2014) (internal quotations and brackets omitted).
As such, absent evidence, a party cannot defeat a motion to compel enforcement of
a subpoena on the basis that the subpoena imposes an undue burden on the party.
See, e.g., Thompson v. Glenmede Trust Co., No. CIV. A. 92-5233, 1993 WL 497952,
at *1 (E.D. Pa. Dec. 1, 1993) (“[D]efendants offer no evidence to support their bald
assertions that complying with the plaintiffs’ requests will be unduly burdensome.
Accordingly, the Court grants the plaintiffs’ motion with respect to requests nos. 1
through 10.”); N.L.R.B. v. Vista Del Sol Health Servs., Inc., 40 F. Supp. 3d 1238,
1265 (C.D. Cal. 2014) (holding non-movant’s “arguments in briefs [we]re not
competent evidence” and therefore could not serve as the evidentiary basis for an
unduly burdensome objection to a subpoena).
Here, OAG raises two unduly burdensome objections: (1) reviewing the
additional email inboxes would be generally arduous; and (2) getting access to
Kathleen Kane’s Blackberry is proving difficult. In support of these objections,
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OAG claims it attached a document to its letter outlining the burden it suffered
complying with the first subpoena. It appears, however, that OAG did not actually
attach any documents to its letter brief to the court. Plaintiffs point out the lack of
evidence in their reply brief.
The court is also reluctant to grant OAG an opportunity to fix this apparent
error because its description of the document does not appear sufficient to satisfy its
burden.

OAG’s description of this document suggests it does not contain

information regarding what its burden would be if it was forced to comply with the
second and third subpoenas in their entirety—it only explains how complying with
the first subpoena, which requested many more documents, was cumbersome. The
document would not provide the court with guidance as to how many emails OAG
will be compelled to review, how much time it would take, and how much this would
cost OAG. It also is irrelevant to OAG’s complaint regarding its difficulty accessing
Kathleen Kane’s Blackberry. As such, the court finds no factual basis for OAG’s
unduly burdensome objections. The court thus overrules them.4
Finally, Plaintiffs have requested the court grant them access to the
Blackberry so they can forensically examine it. OAG did not respond to this

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Plaintiffs also claim OAG did not raise any timely objections to the third subpoena and
thus waived any. OAG did not rebut this, explain why their responses were late, request leave to
amend their responses, or otherwise request that the court permit their late objections. As such,
waiver is another basis upon which the court could grant Plaintiffs’ motion to compel enforcement
of the third subpoena. Shenker v. Sportelli, 83 F.R.D. 365, 266-67 (E.D. Pa. 1979).
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proposal. This appears to be a reasonable solution to the problem, alleviating OAG’s
unduly burdensome objection and permitting Plaintiffs the opportunity to try to
access any additional information on the phone.5 The court will thus grant the
request.
On a separate note, the court wants to take this opportunity to comment on a
few housekeeping matters. To begin, the court reminds the parties of paragraph two
in the Middle District Code of Professional Conduct, which states:
I will treat with civility and respect the lawyers, clients,
opposing parties, the court and all the officials with whom
I work. Professional courtesy is compatible with vigorous
advocacy and zealous representation. Even though
antagonism may be expected by my client, it is not part of
my duty to my client.
“Confrontational posturing and ‘hardball’ litigation strategies are inconsistent with
counsel’s obligations under the Federal Rules of Civil Procedure to bring litigation
to a speedy and inexpensive resolution.” Roberts v. Lyons, 131 F.R.D. 75, 83 (E.D.
Pa. 1990) (internal quotations omitted). Specifically, the court finds OAG appears
to have been repeatedly uncooperative in the discovery process, in fact conceding
they did not file timely responses to the third subpoena and providing the court with

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Because the Blackberry was Kane’s work phone, the court does not expect there to be
ample personal and private information on there. Nonetheless, the court instructs Plaintiffs’
counsel to diligently focus its review of the Blackberry on material relevant to the lawsuit and
reminds counsel and Plaintiffs that the acquisition and use of any of Kane’s personal information
on the Blackberry could expose them both to sanctions and an abuse of process claim. See
Langman v. Keyston Nat’l Bank & Trust Co., 672 F. Supp. 2d 691, 700-01 (E.D. Pa. 2009).
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no explanation as to why. Further, Plaintiffs’ reply brief is laced with toxic rhetoric,
condescendingly referring to OAG’s objections as evidence OAG is “quick to
whine,” and accusing Mr. Ellis of being “engaged in an effort to deceive this Court.”
(Pl. Reply, p. 2.) While the court holds OAG has failed to carry its burden of proof
regarding its objections, the court finds OAG’s efforts to mitigate its client’s
discovery expenses reasonable. Further, mistakes are frequently made in briefs. It
is a well-established tenet of psychology that humans suffer from fundamental
attribution error, rendering us quick to attribute another person’s failure to poor
character, while providing myriad excuses and justifications for our own. Thus,
absent a smoking gun or strong circumstantial evidence, the court views such
incendiary rhetoric as a waste of everyone’s time and energy. If the parties discover
an actual evidentiary basis for believing opposing counsel has intentionally
misrepresented a fact to the court, the proper remedy is Rule 11.
Additionally, while OAG’s counsel understandably relied on a statement from
the court concerning the filing of its brief, future briefs should be submitted in letter
form, as previously instructed by the court. Also, motions such as these need to
include proposed orders so the court can understand clearly what relief the movant
is seeking.

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III.

Conclusion

For the reasons outlined above, the court grants the motion to compel. OAG
shall review the documents held by the twelve custodians Plaintiffs insist upon in
their motion. Regarding the third subpoena, OAG shall produce the Blackberry for
forensic examination by an agreed-upon third-party who can research efforts to
access the phone. An appropriate order shall follow.
/s/ Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: October 22, 2019

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