Lureen v. Holl et al
ORDER granting in part and denying in part 85 Motion to Quash; denying 96 Motion for Leave to File Surreply. Signed by US Magistrate Judge Veronica L. Duffy on 9/20/2017. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
KERRI LUREEN, as Guardian Ad Litem
of S.L., a Minor,
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO QUASH
Docket No. 85
DOCTOR’S ASSOCIATES, INC.;
SUBWAY IP, INC.; FRANCHISE WORLD
HEADQUARTERS, LLC.; METRO
INITIATIVES, LLC, all d/b/a “Subway;”
CHRISTOPHER JOHN HOLL, in his
personal capacity and as owner; and
JOHN CLARK, in his personal capacity
and as owner;
DENYING DEFENDANTS' MOTION TO
FILE A SURREPLY
Docket No. 96
This matter is before the court on plaintiff Kerri Lureen's amended
complaint alleging sex discrimination, hostile work environment, constructive
discharge, negligence, and assault and battery. See Docket No. 56.
Jurisdiction is founded on the presence of a federal question, diversity of
citizenship of the parties, and the court's supplemental jurisdiction. See
28 U.S.C. §§ 1331, 1332, and 1367. Plaintiff has filed a motion to quash a
subpoena duces tecum issued by defendants to a non-party. See Docket No.
85. Defendants resist the motion and seek permission to file a surreply. See
Docket Nos. 92 & 96. The Honorable Lawrence L. Piersol, United States
District Court Judge, referred plaintiff's motion to this magistrate judge for
decision pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 89.
Background and Parties
Plaintiff is the mother and guardian of S.L., a minor. S.L. worked for a
Subway restaurant on East Arrow Avenue NE in Watertown, South Dakota, for
approximately 9 months, from August, 2015, to March 16, 2016. S.L. was 15
years old at the time she went to work for Subway. S.L.'s claims center around
sexual contact perpetrated by her direct manager at Subway, Kiley Ramstorf, a
man 14 years older than she. The Watertown Subway was owned at the time
by Metro Initiatives, LLC ("Metro"), a business entity owned by defendants
Christopher John Holl and John Clark, together with Ramstorf. Metro owned
five separate Subway restaurants. Neither party has informed the court of the
locations of these restaurants or the dates during which Metro owned the
After the sexual contact between S.L. and Ramstorf came to light,
Ramstorf was charged criminally, convicted, and sentenced to two years'
imprisonment for the crime of sexual exploitation of a minor. Ramstorf had
been investigated in 2013 and 2014 for suspected sexual contact with minors,
apparently without any criminal charges ever being asserted.
Plaintiff alleges that defendants Doctor's Associates, Inc. ("DIA");
Franchise World Headquarters, LLC ("FWH"); and Subway IP (plaintiff
collectively characterizes these parties as "Subway"), provided franchise
training and ongoing managerial training of Ramstorf both online, regionally,
and at its corporate office in Connecticut. Plaintiff alleges these defendants
had substantial control over day-to-day activities of its franchisees, and
specifically, over Metro. Plaintiff asserts that the Subway defendants and
Metro should be considered a single employer, joint employers, or as principal
Plaintiff alleges that defendants Holl, Clark, and Metro had prior
knowledge of at least one of Ramstorf's prior criminal investigations for sexual
contact with minors. Plaintiff alleges all defendants had been made aware of
multiple complaints about Ramstorf's inappropriate behavior toward female
employees at the Subway store where S.L. worked and that these complaints
were brought to defendants' attention prior to the time Ramstorf victimized S.L.
Despite this foreknowledge, plaintiff asserts none of the defendants took any
appropriate action to address Ramstorf's behavior toward female employees.
Subject of the Motion to Quash
Previously, defendants had served plaintiff with discovery requests
seeking information about both plaintiff's and S.L.'s cellular telephone service.
Plaintiff refused to produce the requested information aside from telling
defendants, over objection, what S.L.'s phone number was and the identity of
her cell phone service provider. Discussions ensued in which the parties
debated the relevance and scope of the discovery requests. Defendants
indicated plaintiff had promised to produce certain information and then did
not follow through. Defendants then served S.L. and plaintiff's cell phone
service provider with a subpoena duces tecum. See Docket No. 87-2.
The subpoena, served on TracFone Wireless, Inc., d/b/a Straight Talk
(hereinafter "TracFone"), directed TracFone to produce two categories of
documents with regard to both S.L.'s and plaintiff's cell phones:
1. Documents or records within [TracFone's] possession and control,
showing all subscriber information, including: the date, time, originating
and receiving phone numbers, and duration for all incoming and
outgoing calls from May 2015 to the present.
2. Documents or records within [TracFone's] possession and control,
showing all subscriber information, including: the date, time, and
originating and receiving phone numbers for all incoming and outgoing
text messages from May 2015 to the present.
See Docket No. 87-2 at p. 4 (emphasis added).
As can be seen, the subpoena does not seek content of any phone calls or
text messages. Instead, it seeks a log of all phone calls made and received
(including duration), and all text messages sent and received, for the stated
time period. The subpoena also seeks subscriber information for both
Plaintiff objects to the subpoena and seeks the court's order quashing it.
See Docket No. 85. Plaintiff argues the information is not relevant and that the
time frame is unduly broad. Further, plaintiff argues that the information
sought is confidential.
Provisions of Rule 45
Rule 45 of the Federal Rules of Civil Procedure allows a party to serve a
subpoena for the production of documents on a nonparty, with notice to the
other parties in the litigation. See FED. R. CIV. P. 45(a). The nonparty on whom
the subpoena is served must be protected from undue burden or expense. Id.
at subsection (d)(1).1
A subpoena must be quashed or modified if it requires the disclosure of
privileged or other protected matter if there is no exception or waiver
applicable, or if the subpoena subjects a person to undue burden. Id. at
subsection (d)(3)(A). A subpoena may be quashed or modified to protect a
person affected by a subpoena if the subpoena requires disclosure of a trade
secret or other confidential research, development, or commercial information.
Id. at subsection (d)(3)(B).
"Ordinarily a party has no standing to seek to quash a subpoena issued
to someone who is not a party to the action, unless the objecting party claims
some personal right or privilege with regard to the documents sought." Charles
A. Wright, Arthur R. Miller, Mary K. Kane, Richard L. Marcus, A. Benjamin
Plaintiff cites Precourt v. Fairbank Reconstruction Corp., 280 F.R.D. 462
(D.S.D. 2011), for a six-part test regarding undue burden asserted by a
nonparty who was the recipient of a subpoena. However, that test is inapposite
here. Undue burden is a concern of the party producing the documents and on
whom the subpoena is served. Here, that is TracFone, and TracFone is not
moving to quash the subpoena.
Spencer, and Adam Steinman, 9A Fed. Prac. & Proc. Civ. § 2459 (3d ed. April,
2017) (hereinafter "Fed. Prac. & Proc. Civ."). As with other discovery, the
relevancy issue at the time a subpoena is served is broad—the court does not
evaluate whether the evidence sought is admissible, but rather whether the
information is relevant to a claim or defense and is nonprivileged. Id. The
court also considers whether the information is likely to lead to the discovery of
admissible evidence. Id. The party seeking to quash a subpoena bears the
burden of demonstrating grounds for quashing it. Id.
Plaintiff states in her final reply brief that she has now herself requested
the records. However, plaintiff makes no assurances she will turn those
records over to defendants. Instead, plaintiff states she will "review and
disclose all records [sic] are discoverable." See Docket No. 95. In the same
pleading, plaintiff posits that the records are not discoverable at all because
they are not relevant, they are too broad, and they represent a "fishing
expedition." Accordingly, plaintiff's promise to turn over any documents
plaintiff deems to be discoverable is illusory. Plaintiff establishes in the same
pleading that she does not view any of the documents to be discoverable.
Therefore, plaintiff's independent efforts to obtain the documents in question
from TracFone does not moot defendants' subpoena duces tecum.
Whether the Subpoena Should be Quashed or Modified
Generally, a party to a lawsuit does not have standing to seek to quash a
subpoena directed to a non-party—that power lies with the non-party. See
Smith v. Frac Tech Servs., Ltd., 2010 WL 3522395 at *1 (E.D. Ark. Sept. 1,
2010); Herff Jones, Inc. v. Oklahoma Graduate Servs., Inc., 2007 WL 2344705
at *3 n.4 (W.D. Ok. Aug. 15, 2007). However, when the party seeking to
challenge the subpoena has a personal right or privilege in the subpoena, an
exception has been made. Smith, 2010 WL 3522395 at *1; Herff Jones, Inc.,
2007 WL 2344705 at *3 n.4. Here, plaintiff clearly has a personal right in the
information sought. Herf Jones, Inc., 2007 WL 2344705 at *3 n.4.
Accordingly, the court concludes she has standing to challenge the subpoena.
See also Winter v. Bisso Marine Co., Inc., 2014 WL 3778833 at **1-2 (E.D. La.
July 29, 2014).
Plaintiff argues that her phone records and those of S.L.'s are not
relevant. Defendants argue the phone records are relevant for at least two
purposes. First, they may tend to show whether S.L. welcomed Ramstorf's
advances. Second, they may show witnesses to whom S.L. made
communications about her work environment with defendants.
Plaintiff argues that whether S.L. welcomed Ramstorf's advances is not
relevant. Since S.L. was under the age of majority under South Dakota law,
the law presumes she was incapable of consent.
Defendants counter that S.L. testified she destroyed her cell phone after
Ramstorf was arrested in March, 2016. However, Ramstorf himself told
defendants that S.L. texted him in April, 2016, and another witness testified
she and S.L. text each other nearly on a daily basis.
Despite recent changes to the rules of civil procedure, courts agree the
scope of discovery under the Federal Rules of Civil Procedure is extremely
broad. See 8 Fed. Prac. & Proc. Civ. § 2007. The reason for the broad scope of
discovery is that "[m]utual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either party may compel
the other to disgorge whatever facts he has in his possession." Hickman v.
Taylor, 329 U.S. 495, 507-08 (1947). Therefore, the rules of evidence assume
the task of keeping out incompetent, unreliable, or prejudicial evidence at trial.
See FED. R. EVID. 401-404. These considerations are not inherent barriers to
discovery, however. See FED. R. CIV. P. 26(b). The scope of discovery under
Rule 45 is the same as the scope of discovery under Rule 26. 9A Fed. Prac. &
Proc. Civ. § 2452.
Plaintiff's assertion about S.L.'s "consent" is accurate. South Dakota law
presumes S.L. could not consent at the age of 15. But plaintiff has asserted
sexual harassment, hostile work environment, and constructive discharge
claims against defendants, not Ramstorf, under Title VII. See Docket No. 56 at
pp. 6-9. In those claims, plaintiff alleges Ramstorf's actions were unwelcome
and unsolicited and created an intolerable working environment. Id. at ¶¶ 45,
53, 55, & 56. Plaintiff further asserts in her complaint that Ramstorf's actions
caused her pain, suffering, mental anguish, loss of enjoyment of life, loss of
earned wages, and medical costs. Id. at ¶¶ 58-59. Whether S.L. found
Ramstorf's actions unwelcome or unsolicited is certainly relevant to her Title
VII claims. See Henthorn v. Capitol Communications, Inc., 359 F.3d 1021,
1026 (8th Cir. 2004) (hostile work environment claim requires proof that
plaintiff was subjected to unwelcome sexual harassment).
S.L's attitude toward Ramstorf's advances is also relevant to her
damages. Doe v. Oberweis Dairy, 456 F.3d 704, 714-15 (7th Cir. 2006).
Plaintiff's complaint places S.L.'s mental and emotional state in issue, seeking
damages for pain and suffering and emotional distress. Plaintiff cannot now
shield from discovery evidence that may tend to reflect S.L.'s mental and
emotional state. Anderson v. Clawson, 2014 WL 3725856 * 2 (N.D. Ca.
July 25, 2014).
Finally, the records requested are also relevant to S.L.'s credibility. S.L.
testified she destroyed her phone after Ramstorf was arrested. Yet there is
apparently indication from another witness and Ramstorf himself that S.L.
texted them after Ramstorf's arrest. Whether TracFone has records of texts
and phone calls on S.L.'s phone number after the date of Ramstorf's arrest is
relevant to S.L.'s credibility. See Syposs v. United States, 181 F.R.D. 224, 22829 (W.D.N.Y. 1998).
Having concluded that S.L.'s phone calls and texts may be relevant to
her claims, damages, and credibility, the court nevertheless points out that, at
this point, defendants' subpoena does not seek content of either the calls or the
texts. Instead, defendants seek only a list of calls and texts made.
Defendants have filed a motion seeking permission to file a surreply for
the purpose of demonstrating that S.L. was 16 years of age, the age of consent
under South Dakota law, for a portion of the time she and Ramstorf were
intimately involved. See Docket No. 96. Because the court finds the issue of
S.L.'s age to be beside the point regarding the relevancy issues plaintiff raises,
the court denies the motion to file a surreply brief.
Plaintiff argues that, because defendants' subpoena asks for a log of
every call and text made during the time period set forth in the subpoena, it is
overbroad. Plaintiff also asserts the time period requested under the subpoena
is overbroad. Plaintiff characterizes the defendants' subpoena as a "fishing
In PHE, Inc. v. Does 1-27, 2013 WL 3225811 at *1 (E.D. Mo. June 25,
2013), a plaintiff filed suit alleging certain John/Jane Does had violated
plaintiff's copyrights by downloading plaintiff's movie using an internet-based
application known at Bit Torrent. The only identifying information plaintiff had
about the Does was their Internet Protocol ("IP") addresses. Id. Plaintiff served
a subpoena on the internet service providers for the IP addresses seeking the
subscription information for each of the IP addresses. Id. The Does moved to
quash the subpoena, asserting, among other things, that the IP addresses
might not correspond to the person who downloaded the movie. Id. at *3. The
Does argued that the responsible person might be a visitor, a neighbor, or
someone using the wireless signal from a car parked on the street. Id. The
Does also argued their reputations would be damaged by having their names
released to plaintiff. Id.
The court rejected these concerns, noting that the information sought
need not be admissible in court as long as it was reasonably likely to lead to
the discovery of admissible evidence. Id. By finding out the identity of the
owner of the IP addresses, plaintiff could begin to track down the actual users
who downloaded plaintiff's movie. Id. As to the embarrassment factor, the
court concluded that was unfortunate, but that was a fact faced by "countless
litigants in our legal system." Id. The court denied the motions to quash. Id.
Similarly, here, the documents requested by defendants' subpoena may
include some phone calls or texts not directly related to the claims and
defenses in this lawsuit. But they have great potential to lead to the discovery
of admissible evidence, i.e. persons with whom S.L. did discuss the facts of this
lawsuit. And it may be potentially embarrassing to S.L. to have these contacts
explored or to be revealed to have misrepresented the continuing validity of her
phone number after Ramstorf's arrest. Such are the vagaries of litigation.
They are unavoidable.
As to the time frame set forth in the subpoena, the court finds it is not
overbroad. Defendants seek information for three months predating S.L.'s
employment with defendants for the purpose of finding out what S.L. knew
about working for defendants or about Ramstorf in particular prior to
embarking on employment there. The subpoena ends with "the present," thus
covering a period of time slightly longer than two years. That is not an
unreasonable period of time given the nature of the claims made, damages
demanded, and facts of the case.
There is a split of authority as to the privacy of information requested by
defendants' subpoena—remembering, again, that the subpoena is not seeking
content of communications, but merely the subscription information for the
cell phone account and a log of each call and text made or received. Some
courts, following the lead of the criminal law, have held that a person sending
information over a cellular phone, whether through a call or text, has no
legitimate expectation of privacy in that information. See, generally, Smith v.
Maryland, 442 U.S. 735 (1979) (no reasonable expectation of privacy in phone
numbers dialed out or received). That is because the person, when dialing or
texting, knows he or she is sending the recipient's phone number to the cell
service provider in order to effectuate the communication. By the very nature
of cell phones, then, (really of any telephone, cell or land line), the user gives
up their right of privacy when they voluntarily disclose the dialed number to
the phone company or cell service provider.
Other courts have drawn a distinction between the criminal law's inquiry
into privacy expectations under the Fourth Amendment and confidentiality
concerns under the rules of civil discovery. See Syposs v. United States, 181
F.R.D. 224, 227 (W.D.N.Y. 1998) (holding that confidentiality concerns may
serve as a basis for a protective order or limiting discovery even though such
concerns might not rise to the level of a legitimate expectation of privacy under
the Fourth Amendment). The rules of civil procedure may be exercised to
protect confidential or sensitive information that would not be protected under
the Fourth Amendment.
The defendant in Kamalu v. Walmart Stores, Inc., 2013 WL 4403903 *1
(E.D. Ca. Aug. 15, 2013), served a cell phone service provider with a subpoena
seeking identical information to the subpoena defendants served on TracFone
in this case. Plaintiff sought to quash the subpoena. Id. The court first held
that the subpoena sought relevant information; plaintiff claimed she was fired
for discriminatory reasons while defendant alleged it fired plaintiff for excessive
cell phone use at work. Id. at *2. As to privacy concerns, the court held these
were informed by state law. Id. at *3.
The court held that plaintiff had no protected privacy interest in the
records requested because of the limited nature of the information sought and
the limitation in time frame. Id. at *3-4. The court held the plaintiff also had
no legitimate expectation of privacy in the records. Id. at 4-5. Finally, the
court considered whether disclosure of the records would result in a serious
invasion of a privacy interest. Id. at *5. Again, because the content of the
communications was not being sought, the court found no serious invasion of
In EEOC v. Danka Industries, Inc., 990 F. Supp. 1138, 1140 (E.D. Mo.
1997), several plaintiffs brought Title VII claims against their employer alleging
their supervisor committed verbal and physical acts of sexual abuse against
them. The defendant served subpoenas duces tecum on various non-parties
seeking employment, medical, and educational records of the plaintiffs. Id. at
1141. Plaintiffs moved to quash the subpoenas. Id. The court denied the
motions to quash in light of the fact that plaintiffs could articulate no
evidentiary privilege for the documents sought. Id.
Plaintiff argues that the Telephone Records and Privacy Protection Act of
2006 makes the information defendants seek confidential. Not true. The act
merely criminalizes obtaining telephone records through false or fraudulent
means or accessing customer accounts without prior authorization. See 18
U.S.C. § 1039; Nat'l Cable & Telecommunications Ass'n v. F.C.C., 555 F.3d
996, 999 (D.C. 2009). The act creates no free-standing right of privacy
protecting relevant information related to phones exempt from discovery.
Plaintiff also asserts that some of the phone calls and texts may be
between S.L. and her attorneys. But the fact of a conversation occurring
between S.L. and her attorneys is not privileged. S.L.'s lawyers filed suit on her
behalf. Obviously they have communicated with each other. That fact, which
is all the records being subpoenaed will reveal, is not privileged. Again, no
content of any communication will be revealed by the records defendants are
The court has the authority to either quash or modify defendants'
subpoena. See FED. R. CIV. P. 45(d)(3). This case, like the subpoena in
Kamalu, involves marginal privacy concerns. Only the phone numbers of the
calls made and received and of texts sent and received as well as the length of
phone calls will be disclosed. No content of any communication will be
disclosed. Like the plaintiffs in Danka Industries, Inc., plaintiff herein has not
articulated an evidentiary privilege. An interrogatory asking for a list of
persons S.L. had spoken to regarding the claims at issue in this case would not
only be unobjectionable, plaintiff would have had a duty to voluntarily disclose
the names of those witnesses in her Rule 26 initial disclosures.
Here, the difference is that the list of phone numbers will include
numbers belonging to persons S.L. has spoken to about the facts in this
lawsuit (probably including Ramstorf), and also persons to whom S.L. has not
made any such statements. The overinclusiveness of the subpoena is
unavoidable. Given S.L.'s statements that she destroyed her phone after
Ramstorf's arrest, and the apparent receipt of texts from S.L. by Ramstorf and
other witnesses post-arrest, the court will not rely strictly on S.L.'s
representations about what evidence exists. Defendants, having contrary
evidence, have a right to seek confirmation or refutation of those statements
from independent sources such as TracFone.
Given the privacy concerns discussed above, the court will not change or
quash the subpoena as to S.L., but the court will entertain a protective order
regarding the information which is the subject of the subpoena. See United
States v. Three Bank Accounts, 2008 WL 915199 at *8 (D.S.D. Apr. 2, 2008).
The parties are encouraged to draft a protective order the terms of which are
mutually agreeable to them. In the absence of an agreement, the court will
impose a protective order of its own fashioning.
Kerri's Phone Records
Here, plaintiff's complaint does not include any claim on behalf of Kerri
Lureen nor does Kerri seek any damages for loss of companionship or the like.
Kerri is named as a plaintiff herein merely in a representative capacity.
Defendants have not shown how Kerri's mental state or communications with
others has any bearing on S.L.'s claims asserted herein. The court agrees with
plaintiff that defendants' subpoena should be quashed as to records on Kerri's
Based on the foregoing law, facts, and analysis, it is hereby
ORDERED that plaintiff's motion to quash [Docket No. 85] is denied in
part and granted in part. Defendants' subpoena to TracFone is quashed
entirely as to any records associated with plaintiff Kerri Lureen's cellular
phone. The subpoena is left entirely intact as to records associated with S.L.'s
cellular phone, subject to a protective order to be entered subsequently. The
parties are directed to file a stipulated protective order within 15 days of the
date of this order or, in the alternative, to notify the court within the same time
period if they are unable to reach agreement on terms for a protective order.
Defendants never assert that S.L. used Kerri's cell phone to make calls or
It is further
ORDERED that defendants' motion to file a surreply [Docket No. 96] is
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
DATED September 20, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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