*1 On August 23, 2018, United States District Judge J. Leon Holmes entered an Order of Referral of a discovery dispute in the above-captioned case. Doc. 24. The dispute arises from Plaintiffs' Responses to Defendants' First Set of Interrogatories and Requests for Production of Documents.

On August 22, 2018, Defendants' counsel provided Judge Holmes with a letter explaining the alleged deficiencies in Plaintiffs' discovery responses:

On August 24, 2018, Plaintiffs' counsel provided me with a letter responding to Defendants' counsel's August 22, 2018 letter. On August 29, 2018, Defendants' counsel provided me with a letter in reply to Plaintiffs' counsel's August 24, 2018 letter.

After reviewing all of the pleadings, the parties' relevant discovery papers, and their letters explaining and narrowing the matters that still remain in dispute, the Court rules as follows:

I. Request for Production Nos. 2, 4, 5, 7, 10, 11, 13, and 14 and Interrogatory Nos. 4 and 5.

It appears to me that Plaintiffs have provided Defendants with all documents and information, “within the possession, custody, or control” of TPUSA-ASU and Ashlyn Hoggard that are responsive to the above numbered requests for production of documents and interrogatories. If I am incorrect and all of those documents have not been provided to Defendants, Plaintiffs must do so within seven (7) days of today's date, September 4, 2018.

Plaintiffs object to producing documents within the possession, custody, and control of TPUSA-National because they have no “right, authority, or practical ability to obtain the documents from a nonparty to the action.” New Alliance Bean and Grain Co. v. Anderson Commodities, Inc., No. 8:12CV197, 2013 WL 1869832, at *3 (D. Neb. May 2, 2013) (quoting In re Hallmark Capital Corp., 534 F.Supp.2d 981, 982 (D. Minn. 2008)).

*2 According to Defendants, Plaintiffs' attempt to distinguish between TPUSA-National and TPUSA-ASU only began after discovery commenced. In support of their position, Defendants point to paragraphs 16 and 17 of Plaintiffs' Complaint:

After reading the entire Complaint, in the context of the parties' discovery papers and other pleadings, I conclude that, while paragraphs 16 and 17 are inartfully pled, those two paragraphs cannot be fairly construed to mean that TPUSA-ASU and TPUSA-National are one and the same entity. In paragraphs 6, 16, and 21 of the Complaint, Plaintiffs make it clear that Plaintiff Ashlyn Hoggard: (1) “began the process of forming Plaintiff [TPUSA-ASU] as a student group at ASU;” (2) TPUSA-ASU is “an unincorporated expressive association comprised of ASU students;” and (3) “Ashlyn is the founding member of TPUSA student club at ASU.”

Based on Plaintiffs' counsel's pro hac vice motion, and Defendants' counsel's August 22, 2018 letter, TPUSA-National appears to be a 501(c)(3) non-profit corporation.[1] In contrast, TPUSA-ASU is, at best, a student group or organization with a loose affiliation or ties to TPUSA-National.[2] Importantly, TPUSA-ASU is a party to this lawsuit and TPUSA-National is not. While TPUSA-National may or may not exert some control or influence over Plaintiff TPUSA-ASU, nothing currently before me suggests that TPUSA-ASU has any control over or practical ability to obtain documents from TPUSA-National.

*3 In Defendants' August 29, 2018 letter, they urge me to evaluate the eleven factors cited by Judge Brooks, in Murphy v. Gospel for Asia, Inc., 2018 WL 2676681 (June 4, 2018), to determine whether TPUSA-ASU can be compelled to produce documents in the possession, custody, and control of a nonparty like TPUSA-National.[3] After evaluating these factors, in the context of the scant facts now in the record, I conclude that TPUSA-ASU does not have the requisite “effective control” over TPUSA-National to compel TPUSA-ASU to produce those documents:

While TPUSA-ASU seems to make use of the TPUSA trademark, and Ms. Parry, a TPUSA-National employee, was present during the incident giving rise to this lawsuit, these facts fall far short of demonstrating any practical ability on the part of Plaintiff TPUSA-ASU to obtain and produce any documents that are within the custody and control of TPUSA-National.

Accordingly, Defendants' request to compel Plaintiffs to produce documents or information that are in the possession, custody, and control of TPUSA-National is denied. However, because the documents and information sought in those Requests for Production and Interrogatories are relevant or may lead to the discovery of other relevant documents and information, Defendants may properly serve TPUSA-National with a subpoena duces tecum, pursuant to Rule 45 of the Federal Rules of Civil Procedure, and consider a Rule 30(b)(6) deposition of TPUSA-National.

Additionally, Defendants' August 20, 2018 letter states Plaintiffs' counsel represented to Defendants, in Initial Disclosures, that Ms. Parry could only be contacted through him. However, on August 10, 2018, he advised Defendants' counsel that, because Ms. Parry was no longer employed by TPUSA-National, he no longer represented her. Plaintiffs' counsel must, within seven days of the entry of this Order, provide Defendants' counsel with all of Ms. Parry's contact information, including her telephone number, physical address, email address, and where she is currently employed.[4]

II. Request for Production No. 12

*4 Defendants have also asked the Court to order Plaintiffs to turn over “all documents, recordings, and other materials” related to a speech or presentation given by their attorney in late 2017 at a TPUSA-National event in Florida entitled “Suing Your School 101.” Plaintiffs' counsel objects on the grounds that the request for production is irrelevant, and appears calculated to harass him by seeking the notes, personal documents, and course materials he generated or used during his presentation at the TPUSA-National event. Additionally, he states that neither Plaintiff TPUSA-ASU nor Plaintiff Hoggard have any documents responsive to Request for Production No. 12.

In their August 29, 2018 Reply, Defendants argue that they are only seeking “handouts, flyers, posters, PowerPoint presentations and the like” regarding a public presentation at a TPUSA-National sponsored event in West Palm Beach, Florida. Defendants claim it is possible that ASU students attended the presentation because Ms. Parry is overheard, during her visit to the ASU campus on October 11, 2017, inviting ASU students to attend the upcoming event in Florida.

The record is unclear on whether Ms. Hoggard or anyone else affiliated with TPUSA-ASU attended the TPUSA-National event in Florida. However, Plaintiffs' counsel has unequivocally stated that Plaintiffs' do not have any documents responsive to Request for Production No. 12. I am unaware of any law supporting Defendants' position that Rule 34 is an appropriate discovery vehicle to compel Plaintiffs' counsel to produce his own personal documents, all of which he created before he entered into an attorney-client relationship with Plaintiffs.

III. Interrogatory No. 1

Defendants have requested information regarding past and present members of TPUSA-ASU:

Plaintiffs' response to Interrogatory No. 1 is ambiguous, nonresponsive, and creates at least the impression that TPUSA-ASU may have no members, apart from Ms. Hoggard. Instead of providing Defendants with the names of “members” of TPUSA-ASU, Plaintiffs have provided Defendants with the names of “individuals” who “expressed interest in becoming a member of TPUSA-ASU.”

In their letter to the Court, Plaintiffs explained that they are working diligently to provide the information regarding TPUSA-ASU membership, but “[d]etermining ‘membership’ in an association of students during summer months is a complicated matter.” Of course, this explanation fails to address how it is possible that Plaintiffs can easily provide the names of individuals who have “expressed interest in becoming a member of TPUSA-ASU” but not, just as easily, provide the names of the actual members, past and present, of that organization. I flatly reject Plaintiffs' dissembling assertion that they have not yet provided the names of past and present members of TPUSA-ASU because it is “complicated.” Finally, as noted earlier, Plaintiffs' failure, to date, to provide the contact information and names of past and present TPUSA-ASU member underscores my concerns about whether TPUSA-ASU actually existed at the time of the alleged First Amendment violations, and whether it is a proper party in the lawsuit.

*5 Within seven (7) days of September 4, 2018, Plaintiffs are ordered to provide the names, telephone numbers, physical addresses, email addresses, and his/her dates of membership for each “current and former members of TPUSA at Arkansas State University, including but not limited to, the members on October 10, 2017.”

IV. Privilege Log

Finally, Plaintiffs' counsel has objected to providing Defendants with any documents or information protected by the attorney-client privilege and work product doctrine. Defendants have requested that Plaintiffs provide a privilege log of all such document being withheld on those grounds. Plaintiffs' counsel has represented that Plaintiffs “intend to produce” a privilege log within seven days of its August 24, 2018 letter to the court, which sets a due date August 31, 2018. In his August 29, 2018 letter, Defendants' counsel states that the date proposed date of August 31, 2018, is acceptable. Because I am confident that Plaintiffs' counsel has complied with his own self-imposed August 31, 2018 deadline, this issue should now be moot.

IT IS SO ORDERED, this 4th day of September, 2018.