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C.H. v. Sch. Bd. of Okaloos Cnty., Fla.

2020 WL 6572430 (N.D. Fla. 2020)

November 4, 2020

Cannon, Hope T., United States Magistrate Judge

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Summary

The court granted the motion for protective order and to quash a subpoena issued by the Plaintiffs to non-party Verizon for records relating to Defendant Mary Beth Jackson's personal cell phone. The court found that requests 4, 7, and 9 were overly broad and included largely irrelevant information, and thus granted the motion.

C.H., a minor, by Russell Hilligoss and Tammy Hilligoss, his natural guardians, Plaintiff,
v.
The School Board of Okaloosa County Florida, et al., Defendants

N.R., a minor, by Jason Ragan and Amy Ragan, his natural guardians, Plaintiff,
v.
The School Board of Okaloosa County Florida, et al., Defendants

N.P., a minor, by Eddie Perillo, his natural guardian, Plaintiff,
v.
The School Board of Okaloosa County Florida, et al. Defendants

Steven Van Etten, by Laraine Van Etten, his plenary guardian, Plaintiff,
v.
The School Board of Okaloosa County Florida, et al., Defendants

K.R., a minor, by Tiffany Marshall, Plaintiff,
v.
The School Board of Okaloosa County Florida, et al. Defendants

Case No. 3:18-cv-2128-MCR-HTC, Case No. 3:18-cv-2208-MCR-HTC, Case No. 3:18-cv-453-MCR-HTC, Case No. 3:19-cv-82-MCR-HTC, Case No. 3:19-cv-3639-MCR-HTC

United States District Court, N.D. Florida

Signed November 04, 2020

Counsel

Dean Robert Leboeuf, John M. Leace, Ryan Philip Molaghan, Talley Lee Kaleko, Ryan Blake Hobbs, Brooks Leboeuf Foster Etc PA, Tallahassee, FL, for Plaintiff.
Lisa Barclay Fountain, Michael Patrick Spellman, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, Kayla Elizabeth Platt Rady, Linda Bond Edwards, Rumberger Kirk & Caldwell PA, Tallahassee, FL, Eric Alexander Krebs, Timothy M. Warner, Warner Law Firm, Panama City, FL, Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, Dixon Ross McCloy, Jr., William Platt, IV, Hand Arendall Harrison Sale LLC, Panama City Beach, FL, David McKinnon Delaney, Natasha Samria Mickens, Dell Salter, Gainesville, FL, for Defendants.
Lisa Barclay Fountain, Michael Patrick Spellman, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, Chase Ellis Hattaway, Kayla Elizabeth Platt Rady, Linda Bond Edwards, Rumberger Kirk & Caldwell PA, Tallahassee, FL, Eric Alexander Krebs, Timothy M. Warner, Warner Law Firm, Panama City, FL, Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, Jeannette Marie Andrews, Joe Longfellow, III, Ramsey Dana Revell, Andrews Crabtree Knox Etc, Tallahassee, FL, Kayla Elizabeth Platt Rady, Rumberger Kirk & Caldwell PA, Tallahassee, FL, Matthew Joseph Carson, Sniffen & Spellman PA, Tallahassee, FL, Joseph L Hammons, Hammons Law Firm, Pensacola, FL, for Defendants.
Lisa Barclay Fountain, Michael Patrick Spellman, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, Kayla Elizabeth Platt Rady, Linda Bond Edwards, Rumberger Kirk & Caldwell PA, Tallahassee, FL, Alicia D. Carothers, William G. Warner, Warner Law Firm, Panama City, FL, Eric Alexander Krebs, Timothy M. Warner, Warner Law Firm, Panama City, FL, Dixon Ross Mccloy, Jr., William Platt, IV, Hand Arendall Harrison Sale LLC, Panama City Beach, FL, Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, David Mckinnon Delaney, Natasha Samria Mickens, Dell Salter, Gainesville, FL, for Defendants.
Lisa Barclay Fountain, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, Jeannette Marie Andrews, Joe Longfellow, III, Ramsey Dana Revell, Andrews Crabtree Knox Etc, Tallahassee, FL, Kayla Elizabeth Platt Rady, Linda Bond Edwards, Rumberger Kirk & Caldwell PA, Tallahassee, FL, Eric Alexander Krebs, Timothy M. Warner, Warner Law Firm, Panama City, FL, Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, for Defendants.

Cannon, Hope T., United States Magistrate Judge

ORDER

*1 This matter is before the Court on Defendant Mary Beth Jackson's motion for protective order and to quash subpoena filed in these consolidated cases. ECF Doc. 191 (3:18-cv-2128); ECF Doc. 157 (3:18-cv-2208); ECF Doc. 133 (3:19-cv-82); ECF Doc. 83 (3:19-cv-3639); ECF Doc. 227 (3:18-cv-453). The subpoena at issue is one issued by the Plaintiffs to non-party Verizon for records relating to Jackson's personal cell phone. Upon consideration and for the reasons set forth below, the motion will be GRANTED.

I. THE REQUESTS IN DISPUTE

Although the subpoena contains nine (9) requests, only the following three (3) are at issue:

Request No. 4, seeking “All Authorized users on the associated account”; Request No. 7, seeking “All customer service and account notes”; and

Request No. 9, seeking “All records associated with the identified mobile number, to include all numbers that communicate with this listed number relating to all delivered and undelivered inbound and outbound calls, and text messages (including but not limited to SMS or MMS) to or from any of the above listed numbers, all voice mail, and all data communications from July 1, 2014 EST through August 1, 2019 EST, and to include: date, time, direction, duration, number called or text to and/or received from, whether or not the call was connected, or the text read, as well as Call to Destination/Dialed Digits search for all numbers listed above.”[1]

Jackson objects to requests 4, 7, and 9, on the grounds that they include the disclosure of information that is not relevant. She argues, for example, that request number 9 includes calls and text messages wholly unrelated to the facts and claims in this case, such as calls between Jackson and her friends and Jackson and her attorneys. Thus, Jackson suggests, particularly, as to request 9, the following compromise:

1. That the information be sent to Jackson, who will “identify any data/communications that relate to communications between Ms. Jackson and School Board personnel, the Okaloosa County Sheriff's office, and the State Attorney (if any).”

2. Jackson will compile a list of all Okaloosa County School Board employee phone numbers and provide that list to Plaintiffs and against the information provided by Verizon.

3. Jackson will sit for a second, limited deposition, after Plaintiffs have had an opportunity to ask Jackson to identify every person with whom she communicated using her cell phone and after she has produced Verizon data related to those individuals.

Plaintiffs, however, did not agree to that compromise. Instead, they sought to have the information sent directly to them or to a neutral third party. Thus, Jackson filed the instant motion.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 26 provides the following:

*2 [U]nless otherwise limited by court order ... [p]arties 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.

Al-Rayes v. Willingham, 2016 WL 9527957, at *4 (M.D. Fla. June 22, 2016) (quoting Fed. R. Civ. P. 26).

Thus, Rule 26 allows a party to obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Nat'l Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246, 250 (11th Cir. 1982). Although Rule 26 allows for very broad discovery, it is not an unlimited license for a fishing expedition. See Dellacasa, LLC v. John Moriarty & Assoc. of Fla., Inc., 2007 WL 4117261, at *2 (S.D. Fla. Nov. 16, 2007) (quoting Collens v. City of N.Y., 222 F.R.D. 249, 253 (S.D.N.Y. 2004) (“ ‘While Rule 26(b)(1) still provides for broad discovery, courts should not grant discovery requests based on pure speculation that amount to nothing more than a ‘fishing expedition’ into actions or past wrongdoing not related to the alleged claims or defenses.”).

Pursuant to Rule 26(c), a court may enter a protective order upon motion of a party “for good cause shown.” Fed. R. Civ. P. 26. Federal Rule of Civil Procedure 26(c)(1)(A) provides that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery ....” Additionally, Federal Rule of Civil Procedure 26(b)(2)(C)(iii) provides: “On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: ... the proposed discovery is outside the scope permitted by Rule 26(b)(1).”

A motion to quash a subpoena is governed by Rule 45 of the Federal Rules of Civil Procedure. Under Rule 45, a subpoena must be quashed or modified if it “requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(c)(3)(A)(iii). Additionally, as Jackson points out, the scope of discovery under Rule 45 is the same as it is under Rule 26. See Hemenway v. Bertoletta, 2012 WL 12914663, at *2 (M.D. Fla. Apr. 3, 2012).

III. DISCUSSION

As set forth above, the threshold for any discovery dispute is relevance. With regard to request 9, Plaintiffs argue the information sought is relevant because Jackson frequently communicated via cell phone (call/text) with individuals outside of the Board, the Sheriff's Office, and the State Attorney during the period identified in the subpoena. Plaintiffs argue that during that period of time, Jackson knew or should have known of Stillions' mistreatment of students. Plaintiffs contend that the Department of Children and Families were involved in dozens of student-abuse related incidents within the Okaloosa County School District during this time period and that Jackson has identified at least four employees of the Department as having knowledge of an investigation into Stillions' conduct. Thus, according to Plaintiffs, they should not be limited to discovering communications only between Jackson and the Board, Sheriff's Office, and State Attorney.

*3 While the Court agrees that Plaintiffs' discovery of Jackson's communications should not be limited to the Board, Sheriff's Office, and State Attorney, the Court also finds that Plaintiffs should not have unfettered access, regardless of whether the content is produced, to the phone numbers of all persons that Jackson has called or texted over a period of 5+ years. As the district court stated in Smith v. Pefanis, “[W]hile the defendants may be able to establish the relevance of some of plaintiff's phone records, they have not shown any reason that they should be granted unrestricted access to plaintiff's entire personal cell phone records during the time period specified in the subpoena.” Smith v. Pefanis, 2008 WL 11333335 at *3 (N.D. Ga. Oct. 30, 2008).

As stated above, discovery is not meant to be a fishing expedition, and Jackson has a personal interest in the privacy of her cell phone records. See Winter v. Bisso Marine Co., Inc., No. 13-5191, 2014 WL 3778833, at *2 (E.D. La. July 29, 2014) (Wilkinson, M.J.) (“[Plaintiff] has standing to object to the subpoena because it implicates his personal interest in the privacy of his cell phone records.”).[2] Moreover, the information sought by Plaintiffs, namely, the identity of all persons with whom Jackson may have spoken regarding Stillions can be obtained through less intrusive means. Howard v. Seadrill Americas, Inc., No. CV 15-2441, 2016 WL 7012275, at *4 (E.D. La. Dec. 1, 2016) (“[T]he Court may also limit discovery where the discovery ‘can be obtained from some other source that is more convenient, less burdensome, or less expensive.’ ”). For example, Plaintiffs can ask Jackson for this information at a deposition or through written discovery. Plaintiffs can also ask for Jackson to provide them with the phone numbers for these individuals, and then with that information, seek a more narrowed request to Verizon for transactional data related to those numbers.

Simply put, Plaintiffs have failed to articulate the relevance of every call and text Jackson made or received from 2014 to 2019. See Keim v. ADF Midatlantic, LLC, 2016 WL 720967, at *2 (S.D. Fla. Feb. 22, 2016) (“[T]he Court finds that Defendants are not entitled to Plaintiff's and Ms. Worsena's entire telephone records since May 27, 2008, because Defendants have not made a showing that they are all relevant to the issues in this case, which are whether Defendants violated the TCPA and whether Plaintiff gave prior express consent to receive text messages from Defendants. For instance, telephone records of calls or text messages between Plaintiff and his mother are irrelevant to the issues in this case.”); Al-Rayes v. Willingham, 2016 WL 9527957, at *5 (M.D. Fla. June 22, 2016) (“Even assuming Defendant used these phone numbers, this subpoena is overbroad, seeks largely irrelevant information, and is not proportional to the needs of this case because it seeks to discover all activity regarding the two phone numbers, without limitation, for a period of over 22 years. This would encompass a great deal of irrelevant calls, text messages, and/or data usage that is entirely unrelated to any claim or defense in this case. Thus, a protective order is appropriate.”).

*4 Unlike the request for production at issue in Inventiv Health Consulting, Inc. v. French, 2020 WL 728148 (E.D.N.C. Feb. 12, 2020), cited by Plaintiffs, which was limited to communications concerning “the facts and circumstances raised by the pleadings,” request 9 of the subpoena is not limited by scope. The Court is not inclined to grant Plaintiffs permission to “rifle through private, irrelevant” communications. See Hunting v. Am. Family Mut. Ins. Co., 2020 WL 6044509, at *4 (W.D. Wash. Oct. 13, 2020) (“American Family's claim for unfettered access to Thomas' cell phone and all his communications with anyone over the past two years—more than a year past his involvement in Hunting's claim—is patently overbroad, and it cites no authority for it.”). Thus, the motion will be granted as to request 9.

Likewise, the Court finds Plaintiffs' relevancy argument for requests 4 and 7 to be unavailing. As to request 4, Plaintiffs seek the identity of all authorized users on the account. There is no dispute, however, that Jackson uses the cell phone at issue. Additionally, the existence of authorized users for the cell phone number at issue is not necessarily determinative of whether Jackson or someone else may have made a call on the phone.

As for request 7, Plaintiffs explain that they have discovered Jackson failed to produce responsive text messages between her and another Defendant, which the other Defendant produced. Plaintiffs, thus, want to inquire whether Jackson may have inquired with Verizon's customer service regarding Verizon's data retention policies and believes, if she did, that those communications may be in the customer service notes.

Even assuming such communications are relevant, Plaintiffs have not limited the scope of their request. Instead, Plaintiffs request “all customer service and account notes” from 2014 to 2019. The Court finds the request to be overly broad and as including largely irrelevant information. Jackson, for example, could have had communications with customer service regarding her bills, adding a line, adding a phone, or a number of other matters that have nothing to do with record retention. Moreover, even if Jackson had a conversation with Verizon regarding its retention policy, the Court does not see how such conversation is relevant to the issues in this case. There are no allegations, for example, that Jackson intentionally destroyed any evidence or has intentionally withheld any evidence. Indeed, Plaintiffs state in their response that Verizon's data retention policies do not include the content of any phone calls, messages, or text messages for the time period in question.

Accordingly, it is ORDERED that Defendant's Motion for Protective Order and to Quash Subpoena filed in the consolidated cases, ECF Doc. 191 (3:18-cv-2128); ECF Doc. 157 (3:18-cv-2208); ECF Doc. 133 (3:19-cv-82); ECF Doc. 83 (3:19-cv-3639); and ECF Doc. 227 (3:18-cv-453), is GRANTED.

DONE AND ORDERED this 4th day of November, 2020.

Footnotes

[1]

Although Request No. 9 appears to include the content of messages, according to Plaintiffs, such information is not retained by Verizon and thus only “transactional” data would be provided in response to Request No. 9. ECF Doc. 134 at 6 (3:19-cv-82).

[2]

Although Defendant Jackson is not the person to whom the subpoena was served, she has a sufficient personal interest in the information to have standing to challenge the subpoena. See Clark v. Johnson, No. 14-cv-582, 2015 WL 4694045, at *2 (N.D. Okla. Aug. 6, 2015) (“Courts have held that an individual has a personal interest sufficient to give him standing to challenge a subpoena for discovery of personal information in the custody of a third party. This includes cell phone information.”).