Marchionda v. Embassy Suites Franchise, LLC
Marchionda v. Embassy Suites Franchise, LLC
2018 WL 8458792 (S.D. Iowa 2018)
July 10, 2018
Jackson, Jr., Stephen B., United States Magistrate Judge
Summary
The court granted in part and denied in part the motion to quash subpoenas to non-party current and former hotel employees. The court quashed portions of the subpoenas that were overly broad and imposed an undue burden, but allowed plaintiff to issue subpoenas requesting the production of true and correct copies of any and all ESI related to the incident.
Additional Decisions
CHERI MARCHIONDA, Plaintiff,
v.
EMBASSY SUITES FRANCHISE, LLC, individually and by and through its successor in interest, HILTON FRANCHISE HOLDING, LLC; HILTON WORLDWIDE, INC.; HILTON WORLDWIDE HOLDINGS, INC.; JOHN Q. HAMMONS HOTELS MANAGEMENT, LLC; ATRIUM TRS III, LP; and JOHN DOE CORPORATIONS 1-10; Defendants
v.
EMBASSY SUITES FRANCHISE, LLC, individually and by and through its successor in interest, HILTON FRANCHISE HOLDING, LLC; HILTON WORLDWIDE, INC.; HILTON WORLDWIDE HOLDINGS, INC.; JOHN Q. HAMMONS HOTELS MANAGEMENT, LLC; ATRIUM TRS III, LP; and JOHN DOE CORPORATIONS 1-10; Defendants
CIVIL NO. 4:15-cv-00479-JEG-SBJ
United States District Court, S.D. Iowa, Central Division
Filed July 10, 2018
Jackson, Jr., Stephen B., United States Magistrate Judge
ORDER
I. INTRODUCTION
*1 Before the Court is a Motion to Quash Subpoenas to Non-Party Current and Former Hotel Employees (Dkt. 252) filed on May 10, 2018. The motion was filed on behalf of Scott Barry, Skip Hammerman, Justin Bisom, Libby Hennings, Christy Long, Riann Hornbuckle, Amy Nicholson, and Carol LeMay (collectively “movants”), all of whom are not parties to, but have been deposed in, this action. The movants request an order from the Court quashing subpoenas issued, and other subpoenas to be issued, by counsel for plaintiff Cheri Marchionda. The subpoenas seek the production and forensic examination of the movants' personal cell phones and any data backup storage devices, as well as copies of electronic communications and materials related to the incident underlying plaintiff's claims in this case. The movants contend the subpoenas are duplicative, invasive, overly broad and impose an undue burden.
Plaintiff filed a Brief in Opposition (Dkt. 271) on May 31, 2018, insisting the subpoenas are legally proper and should not be quashed. The movants submitted a Reply Brief (Dkt. 280) on June 14, 2018, standing firm on their request for the subpoenas to be quashed.
The Court considers the motion fully submitted and finds oral argument by counsel is unnecessary. L.R. 7(c). For the reasons which follow, the motion will be granted in part and denied in part.
II. BACKGROUND
In this case, plaintiff Cheri Marchionda is seeking damages arising from a sexual assault which occurred in April of 2014, in a guest room at the Embassy Suites in Des Moines, Iowa, while she was traveling on business from New Jersey. Plaintiff initiated the action by filing a Complaint (Dkt. 1) on June 15, 2015, in the United States District Court for the District of New Jersey against nine named corporate entities and ten unnamed corporations. Plaintiff claims, inter alia, she “was attacked, assaulted, terrorized and raped in her hotel room due to the careless, grossly negligent, reckless, willful, wanton and/or outrageous conduct of Defendants.” Id. ¶ 4. The parties filed a joint motion to transfer the action to this Court in the Southern District of Iowa which was granted on December 29, 2015. Dkt. 31.
As the case proceeded, the movants, who are current and former employees of the hotel, were deposed: Amy Nicholson on June 13, 2017; Carol LeMay on June 14, 2017; Scott Barry on June 14, 2017; Skip Hammerman on June 15, 2017 and March 14, 2018; Justin Bisom on August 25, 2017; Libby Hennings on August 24, 2017; Christy Long on August 28, 2017; and Riann Hornbuckle on August 28, 2017. The notices for those depositions requested the deponents to produce the following:
Any and all documents, things and electronically stored information in the witness's possession, custody or control in any way regarding, constituting, describing and/or discussing her[/his] knowledge of or interactions with plaintiff or Christopher LaPointe at any time; any of the events at the subject Embassy Suites Hotel on April 9, 10 or 11, 2014 as they relate to plaintiff or Mr. LaPointe; her[/his] interview and/or questioning by hotel personnel about Mr. LaPointe, Ms. Marchionda and/or the subject incident at the hotel; her[/his] conversations, messages and discussions with any person regarding the subject incident, Mr. LaPointe and/or Ms. Marchionda; her[/his] employment and/or work with any defendant in the case and/or at the subject hotel; her[/his] training and/or education regarding the duties and responsibilities of her[/his] employment and/or work with any defendant in the case and/or at the subject hotel.
*2 Dkt. 252-6.
Plaintiff also served written discovery requests on defendants requesting similar materials including the following request to which defendants responded on November 14, 2017:
40. All cell phone text messages, cell phone instant messages, online messages, social network messages and similar electronic messages or communications (including via any company-based intranet sites or message systems used by Defendant) sent or received by Skip Hammerman, Libby Hennings, Riann Hornbuckle, Amy Nicholson, Jill Julius, Christy Long, Carol LeMay, Scott Barry, Justin Bisom, Kent Foster and/or Mark Wasiak that refer or relate to the allegations set forth in Plaintiff's Amended Complaint; the termination of Ms. Hennings' employment or work at the subject hotel; the termination of Anthony Caliguiri's employment or work at the subject hotel; the termination of Ms. Nicholson's employment or work at the subject hotel; the disciplining in 2012 and/or 2014 of Carol LeMay regarding her employment, work or job performance at the subject hotel; and/or the termination of Ms. LeMay's employment or work at the subject hotel.
RESPONSE: Defendants object to this Request as irrelevant, immaterial, overly broad, unduly burdensome, and harassing in nature. Defendants further object to the extent this Request ask for any information protected by the attorney-client privilege and/or work-product privilege. Skip Hammerman, Libby Hennings, Riann Hornbuckle, Amy Nicholson, Jill Julius, Christy Long, Carol LeMay, Scott Barry, Justin Bisom, Kent Foster and/or Mark Wasiak are not parties to this lawsuit, and their cell phone text messages, cell phone instant messages, online messages, social network messages and similar electronic messages or communications are outside of the scope of their employment with JQH, and are irrelevant to this case. Defendants further object to this request because the documentation sought is not maintained in the course of the employees' employment and is not within the possession, custody, or control of the Defendants. Subject to these objections, all relevant, non-privileged documents in Defendants' possession have been produced.
Dkt. 271-9 pp. 32-33.
Several months later, on April 20, 2018, plaintiff's counsel emailed defendants' counsel notices of intent to serve subpoenas on six of the movants: Barry, Hammerman, Bisom, Hennings, Long and Hornbuckle. Dkt. 252-3. Those subpoenas were subsequently sent out for service on each individual on April 28, 2018. Dkt. 252-2. On April 30, 2018, plaintiff's counsel emailed defendants' counsel notices of intent to serve subpoenas on the other two movants: Nicholson and LeMay. Dkt. 252-4. Plaintiff's counsel agreed to hold off on serving those subpoenas pending the outcome of the movants' motion. Dkt. 252-5. The subpoenas demand production of the following materials:
*3 1. The cell phone(s) and other information described in the attached Forensic Examination Protocol Regarding Cell Phones, pursuant to the Protocol....
2. True and correct copies of any and all text messages, instant messages, Facebook and other social media messages, email, notes and correspondence created, sent or received by you at any time regarding Cheri Marchionda; Christopher LaPointe; this lawsuit; any aspect of the incidents that are the subject of this lawsuit, which occurred at the Embassy Suites Hotel in Des Moines on or about April 9, 10 or 11, 2014; the investigation of the incidents; your or someone else's interactions or communications with any claimed witnesses to the incidents or the damages suffered; your employment or work at the Embassy Suites Hotel in Des Moines; the ending or termination of your employment or work at that hotel; recommendations or suggestions about possible future employment or work at any other hotel after April 11, 2014; and/or your potential or actual job application, interview and/or employment with any other hotel after April 11, 2014.
Dkt. 252-2. The attached Protocol states in part:
a. You will provide the cell phone used by you from April 2014 through December 2014, as well as its access code/password, and any computers, storage devices, or locations used to back up your cell phone data, to Cornerstone Discovery [located in Pennsylvania] via overnight mail (FedEx or UPS) with associated shipment tracking identification and the package and shipping label marked as “signature required” (or similar entry) to confirm receipt by Cornerstone Discovery.
b. In addition to the physical hardware, you will also provide the account, username and passcode or similar credential for all relevant/related devices or cloud service accounts to which your past and current cell phone data was, is or may have been synched or backed up.
In the present motion (Dkt. 252) filed May 10, 2018, the movants seek to quash the subpoenas pursuant to Federal Rule of Civil Procedure 45. The motion was filed on their behalf by counsel who also represent the defendants in this action.
After several extensions for a variety of reasons during the course of the litigation, including a bankruptcy stay, the deadline for the completion of discovery expired on May 11, 2018. Dkt. 191. Trial is scheduled to begin on September 10, 2018.
III. RULES GOVERNING SUBPOENAS AND DISCOVERY
Federal Rule of Civil Procedure 45(d) provides protections for persons subject to subpoenas. First, there is a duty upon the parties and their counsel to avoid undue burden and expense which courts are required to enforce:
A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction ... on a party or attorney who fails to comply.
Fed. R. Civ. P. 45(d)(1) (emphasis added). In addition, the Rule mandates subpoenas be quashed or modified under certain circumstances:
On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:
*4 (i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A) (emphasis added).
In addition to Rule 45, which addresses subpoenas directly, Rule 26(b) governs the proper scope and limits of permissible discovery in general. Pursuant to Rule 26(b)(1), and unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Subsection 26(b)(2)(B) provides for specific limitations on electronically stored information:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
Fed. R. Civ. P. 26(b)(2)(B). Subsection 26(b)(2)(C) provides that the court “must limit” the extent of discovery if it determines:
(i) 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;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C). As with all rules governing the procedure in civil actions, they “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.
IV. MOTION TO QUASH SUBPOENAS
As an initial point, the movants contend the subpoenas issued by plaintiff violate Rule 45(c)(2)(A) which provides that a subpoena may command “production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(2)(A). Movants argue the subpoenas are defective for requiring the production of their cell phones and data storage devices to a forensic examiner in Pennsylvania, “over 1,000 miles from their homes.” Dkt. 252-1 p. 4. They emphasize that under Rule 45(d), the court “must quash or modify a subpoena that ... requires a person to comply beyond the geographical limits specified in Rule 45(c).” Fed. R. Civ. P. 45(d)(3)(A)(ii).
*5 The movants also contend the subpoenas request information and materials already sought from and explored with them in their depositions and through written discovery with defendants. Dkt. 252 ¶ 1. In their view, “[t]he subpoenas are duplicative, invasive, and overly broad, and they impose an undue burden” and therefore should be quashed. Id. Within their supporting brief, the movants emphasize they are non-parties and suggest, as such, they are entitled to “special consideration.” Dkt. 252-1 pp. 3-5 (citing Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 927 (8th Cir. 1999) (“concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs”); Nachurs Alpine Sols., Corp. v. Nutra-Flo Co., 2017 WL 1380460, at *2 (N.D. Iowa 2017) (quoting Miscellaneous Docket Matter No. 1); Am. Broad. Companies, Inc. v. Aereo, Inc., 2013 WL 5276124, at *6 (N.D. Iowa 2013) (same)).
The movants insist “[t]he proposed complete forensic examination of their cell phones, passcodes, passwords, computers, storage devices, and cloud service accounts is particularly invasive, overly broad, not reasonably tailored to lead to the discovery of relevant (let alone admissible) evidence, and unduly burdensome.” Id. p. 5. From their perspective, “[t]he subpoenas do not even attempt to narrowly tailor the information to be examined from [their] electronic devices.” Id. They point out that “[r]elinquishing control of the sought-after physical hardware and account information would expose the personal data of dozens of non-parties (not only the targets of the subpoenas themselves, but also their various family members, friends, and other people with whom they have communicated).” Id. They argue “such an invasion into [their] personal communications and activities is completely unwarranted here, where the subpoenas are directed at non-parties who (unlike Plaintiff) are not seeking damages in this action or alleging that due to a party's negligence they have been injured.” Id. p. 6.
In regard to the demand for copies of electronic communications and materials, the movants argue plaintiff is seeking information “which she has had multiple opportunities to seek – and in fact has sought and obtained – from not only the targeted individuals themselves, but also from Defendants.” Id. p. 7. As described by the movants, “[t]he information sought in the second paragraph of the subject subpoenas has been explored ad nauseum throughout the deposition and written discovery process.” Id. For example, the movants note Amy Nicholson discussed at length during her deposition certain Facebook messages between her and Libby Hennings regarding the incident. Id. p. 8.
The movants further note plaintiff has already had an opportunity to question each of them about their employment. Id. In addition, the movants contend the subpoenas are not reasonably tailored to the discovery of relevant evidence and they have no obligation to disclose potential or actual employment with other non-parties from April of 2014 to the present. Id. In the words of movants' counsel, “[p]laintiff should not be permitted to harass the targeted non-parties with subpoenas that amount to a fishing expedition for information with little to no potential relevance or impact on the case.” Id.pp. 8-9.
Beginning with paragraph 1 of the subpoenas, which demands the production of the movants' cell phones and data storage devices, the Court finds the movants' argument to be convincing. The subpoenas' command upon movants to send their personal phones and devices for a forensic examination in Pennsylvania is unreasonable and beyond the parameters of a permissible subpoena under Rule 45. Primarily, in the Court's opinion, requiring the production and examination of phones and devices as sought by plaintiff will subject each movant to undue burden. See Fed. R. Civ. P. 45(d)(3)(A)(iv). In today's society, the absence of movants' personal phones and devices will likely have a significant negative impact on their daily lives. Moreover, a potential vast amount of irrelevant personal information of not only the movants, but also their friends and families, will be unnecessarily exposed outside the control of movants.
*6 In that regard, plaintiff had ample opportunity to inquire as to information which may be contained within the phones and devices, and relevant to this litigation, during each movant's deposition. See Fed. R. Civ. P. 26(b)(2)(C)(ii). As noted by movants, such was the case during the depositions of Amy Nicholson and Libby Hennings. See Dkt. 252-7, 271-1. The production and examination of the phones and devices as now demanded by the subpoenas would be unreasonably cumulative or duplicative and likely lead to discovery and exposure of personal and irrelevant information well-outside the scope permitted by Rule 26(b)(1).
Plaintiff's opposition to the motion on this particular issue is unpersuasive. She emphasizes that defendants sought and were given access to her cell phone during this litigation. Dkt. 271 p. 1. She further notes the subpoenas at issue “are virtually identical to the one Defendants served regarding [her] cell phone” and suggests her subpoenas “are much more limited.” Id. p. 2. But the discovery process related to the data on plaintiff's phone has been the subject of both agreements and disputes between counsel, followed by discussions and motions before the Court, and involves distinguishable circumstances, including but not limited to the movants being non-parties in this case. Thus, the discovery related to plaintiff's phone and data, which remains ongoing, does not provide a valid, comparable basis for either allowing or prohibiting the production and forensic examination of the movants' phones and devices. Consequently, paragraph 1 of the subpoenas must be quashed.
Turning to paragraph 2, however, the Court finds plaintiff is entitled to the production of electronically stored communications and information related to the incident underlying her claims which are in the possession, custody or control of the movants, including on their cell phones or data storage devices, and have not yet been provided to plaintiff. Such discovery, in the Court's opinion, is relevant to the claims and defenses in this case and within the permissible scope of Rule 26(b)(1). In that regard, movants have not sufficiently shown they will be subject to an undue burden by producing such information (Rule 45(d)(3)(A)(iv)), or that the discovery is disproportional to the needs of the case (Rule 26(b)(1)).
On this particular issue, plaintiff's points are persuasive. She notes none of the movants brought the materials requested in the notices for their depositions. Dkt. 271 p. 5. Nor was the requested information produced by defendants in discovery responses. Id. p. 6. As for the electronic messages discussed during Nicholson's and Hennings' depositions, plaintiff explains those messages were obtained by subpoena from a detective's criminal investigation into the sexual assault. Id. pp. 6-7. According to plaintiff, no current or former employee of defendants have produced any messages or electronic data despite testifying that such messages exist. Id. p. 7. Plaintiff insists she “is not required to rest on the deposition testimony of the witnesses or their failed recollections.” Id. p. 6. Instead, in her view, she “is entitled to compare that testimony to other statements made by the witnesses, such as would appear in text messages, Facebook messages and other electronic data.” Id.
The Court tends to agree with plaintiff. However, the Court is concerned as to the timing of the subpoenas nearly a year after the movants' depositions and less than a month before the expiration of the discovery deadline. Further, the record before the Court does not reflect with certainty the existence of electronic messages being sought by plaintiff, and relevant to this litigation. On the other hand, movants have not sufficiently explained, or shown a valid basis, for failing to produce any relevant materials at the time of their depositions as requested within the notices. One deponent, Skip Hammerman, acknowledged he did not even search for any documents requested within the deposition notice. Dkt. 271-4 p. 3. Thus, adopting the language utilized in the subpoenas, the Court finds plaintiff is entitled to demand production of the following materials from the movants to the extent such materials exist and are within movants' possession, custody or control:
*7 True and correct copies of any and all text messages, instant messages, Facebook and other social media messages, email, notes and correspondence created, sent or received by you at any time regarding Cheri Marchionda; Christopher LaPointe; this lawsuit; any aspect of the incidents that are the subject of this lawsuit, which occurred at the Embassy Suites Hotel in Des Moines on or about April 9, 10 or 11, 2014; the investigation of the incidents; [and] your or someone else's interactions or communications with any claimed witnesses to the incidents or the damages suffered.
In the Court's opinion, and under the present record, this discovery is sufficiently tailored for plaintiff to obtain relevant information without placing an undue burden upon movants.
Finally, as for the portions of paragraph 2 seeking information related to the movants' employment in general, whether at the Embassy Suites or elsewhere, and unrelated to the specific incident involving plaintiff, the Court finds such discovery is neither relevant to the claims and defenses asserted by the parties nor proportional to the needs of the case under Rule 26(b)(1). In addition, the Court believes such discovery, as propounded in the subpoenas, is overly broad and will subject the movants to an unreasonable and undue burden under Rule 45(d)(3)(A)(iv). Further, plaintiff had ample opportunity to inquire as to any relevant employment matters during each movant's deposition. See Fed. R. Civ. P. 26(b)(2)(C)(ii). Consequently, those portions of paragraph 2 of the subpoenas must be quashed.
V. CONCLUSION AND ORDER
For those reasons, and pursuant to Federal Rule of Civil Procedure 45(d), the Motion to Quash Subpoenas to Non-Party Current and Former Hotel Employees (Dkt. 252) shall be granted in part and denied in part. The subpoenas as previously issued by plaintiff must be, and are hereby, quashed. Plaintiff shall be permitted to issue subpoenas requesting the production of the following materials from the movants:
True and correct copies of any and all text messages, instant messages, Facebook and other social media messages, email, notes and correspondence created, sent or received by you at any time regarding Cheri Marchionda; Christopher LaPointe; this lawsuit; any aspect of the incidents that are the subject of this lawsuit, which occurred at the Embassy Suites Hotel in Des Moines on or about April 9, 10 or 11, 2014; the investigation of the incidents; [and] your or someone else's interactions or communications with any claimed witnesses to the incidents or the damages suffered.
Given the expiration of the discovery deadline, and approaching trial date, the subpoenas must be issued within 7 days of the date of this order. The completion of this discovery will not be viewed by the Court as a valid basis for continuation or extension of any remaining deadlines.
IT IS SO ORDERED.