Breuder v. Bd. of Tr. of Cmty. Coll. Dist. No. 502
Breuder v. Bd. of Tr. of Cmty. Coll. Dist. No. 502
2020 WL 11192780 (N.D. Ill. 2020)
August 14, 2020
Cummings, Jeffrey I., United States Magistrate Judge
Summary
The Court granted the motion to quash a subpoena issued by the Board seeking all communications and phone records from June 16-17. The Court found that the subpoena did not meet the standard set forth in Federal Rule of Civil Procedure 45 and that the evidence provided by Atkinson's affidavit and Breuder's counsel's statement rendered the subpoena unnecessary and cumulative.
Additional Decisions
ROBERT BREUDER, Plaintiff,
v.
BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, et al. Defendants
v.
BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, et al. Defendants
No. 15 CV 9323
United States District Court, N.D. Illinois, Eastern Division
Filed August 14, 2020
Counsel
Martin A. Dolan, Dolan Law Offices, P.C., Mattison Enloe, James R. Figliulo, Peter A. Silverman, Rebecca Rejeanne Kaiser, Figliulo & Silverman, PC, Chicago, IL, Melissa Nicole Eubanks, Theodora Oringher PC, Los Angeles, CA, Patrick L. Provenzale, Terry A. Ekl, Tracy L. Stanker, Ekl, Williams & Provenzale LLC, Lisle, IL, for Plaintiff.Andrew C. Porter, Kathleen Anne Hill, Suzanne Brindise Notton, Salvatore Prescott Porter & Porter PLLC, Evanston, IL, Carrie Elizabeth Delange, Faegre Drinker Biddle & Reath LLP, Chicago, IL, for Defendant Board of Trustees of Community College District No. 502, DuPage County, Illinois.
Aldo Ezra Botti, Jean M. Lasics-Wessels, John Ettore Botti, Michael R. Botti, Botti Law Firm, P.C., Oak Brook, IL, Andrew C. Porter, Salvatore Prescott Porter & Porter, Evanston, IL, Carrie Elizabeth Delange, Faegre Drinker Biddle & Reath LLP, Chicago, IL, for Defendant Kathy Hamilton.
Jody A. Boquist, Lavanga Vusitha Wijekoon, Littler Mendelson, P.C., Chicago, IL, for Defendant Deanne Mazzochi.
Kathleen Anne Hill, Andrew C. Porter, Suzanne Brindise Notton, Salvatore Prescott Porter & Porter PLLC, Evanston, IL, Carrie Elizabeth Delange, Faegre Drinker Biddle & Reath LLP, Chicago, IL, for Defendants Frank Napolitano, Charles Bernstein.
Jeffrey Morris Jacobson, Wheaton, IL, for Defendants David Carlin, Kim Savage, Kim McGuire, Nancy Svoboda, Mark Nowak, Allison O'Donnell.
Cummings, Jeffrey I., United States Magistrate Judge
ORDER
*1 For the reasons set forth below, and discussed on the record at the 7/23/20 motion hearing, non-party subpoena respondent Kory Atkinson's motion to quash subpoena and for a protective order (Dkt. 329) is granted. The duplicate motion to quash (Dkt. 325) is terminated.
STATEMENT
Background[1]
On June 16, 2020, defendant Hamilton inadvertently filed a public version of her reply brief in support of her motion for protective order. Upon learning of the mistake the following day, the Court quickly ordered the Clerk's Office to remove the public brief (Dkt. 316) pursuant to a prior order allowing the briefs related to the audio recordings to be filed under seal (Dkt. 296). Unfortunately, during the short period the brief was unsealed, the press got wind of the filing and the Daily Herald released an article discussing its contents.
Shortly thereafter, on June 25, 2020, the Board issued a subpoena to non-party Atkinson – a former Trustee of the Board and attorney who has counseled Breuder in other legal matters – seeking all communications between Atkinson and any other person regarding Breuder, the College, Hamilton, or her court filings between June 16 and the present and all personal and business phone records from June 16 through June 17.[2] (Dkt. 325 - Mot. to Quash at Ex. 1.) It is undisputed that the purpose of this subpoena was to determine whether Atkinson and/or Breuder contacted the press regarding Hamilton's public filing and to use such evidence of a bad act to impeach and show bias under Federal Rules of Evidence 608 and 404.
Atkinson quickly moved to quash the subpoena arguing that it “seeks the production of documents and records that have no relevance to the claims, are not calculated to lead to discoverable material, and seek privileged documents.” (Mot. to Quash at 3.) This Court held a hearing on July 23, 2020, after which the Court gave Breuder the opportunity to file a brief opposing the subpoena. The Court also gave Atkinson the opportunity – if he wished – to file an affidavit responding to the Board's inquiry whether he “reached out to or otherwise communicated with the Daily Herald about Ms. Hamilton's brief, which was mistakenly not filed under seal.” (Dkt. 338.)
Atkinson chose to file an affidavit (Dkt. 339 – Atkinson Aff.), in which he acknowledged that after receiving the CM/ECF notification of Hamilton's public reply brief on June 16, 2020, he did have communications with the Daily Herald regarding that brief on June 16 and June 17. According to Atkinson, “at no time prior to contacting the Daily Herald did [he] contact Dr. Robert Breuder or any attorney representing him in this matter regarding [Hamilton's brief] or [his] communication with the Daily Herald.” (Atkinson Aff. at ¶ 7.) Only after the Daily Herald published the article on June 18, 2020 did Atkinson forward the article to Breuder via e-mail with no accompanying message. (Id. at ¶¶ 9-10.) Atkinson confirmed that when communicating with the Daily Herald, he acted in his personal capacity, and not on behalf of any party in this lawsuit. (Id. at ¶ 11.)
*2 For his part, Breuder argues that his counsel already communicated to the Board's counsel that “neither Breuder nor his wife communicated with any person, including any reporter for the Daily Herald or any other media outlet, regarding Ms. Hamilton's filing.” (Dkt. 340 – Breuder's Reply at 2; Dkt. 336 – Breuder's Resp. at Ex C.) Breuder's counsel further confirmed that “Breuder and his wife did not even know about Ms. Hamilton's filing until...after the Daily Herald's article was published.” (Id.) As such, Breuder objects to the subpoena arguing it seeks information that is not probative of any matter at-issue in this case and, absent Breuder's knowledge of or involvement in the disclosure, that there is no evidence to be discovered that would be admissible to impeach his character.
Standard Under Federal Rule of Civil Procedure 45
Federal Rule of Civil Procedure 45 permits a party to issue a subpoena directing a non-party to “produce designated documents, electronically stored information, or tangible things in that person's possession.” Fed.R.Civ.P. 45(a)(1)(A)(iii). The ability to use subpoenas to obtain information from non-parties is not unlimited, however; Rule 45 provides that the issuer of “a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed.R.Civ.P. 45(d)(1). Furthermore, a court may limit discovery pursuant to Rule 26(b)(2)(c) if it determines that the requested documents can be obtained from a more convenient or less burdensome source, the requesting party had an opportunity to obtain the information through the normal discovery process, or the information sought is cumulative or duplicative of other discovery. Little v. JB Pritzker for Governor, No. 18 C 6954, 2020 WL 1939358, at *2 (N.D.Ill. Apr. 22, 2020) (citing Earthy, LLC v. BB&HC, LLC, No. 16 C 4934, 2017 WL 4512761, at *3 (N.D.Ill. Oct. 10, 2017)).
Analysis
In light of Atkinson's affidavit, the Board's subpoena does not satisfy the above standard. By its own admission, the purpose of the Board's subpoena was to uncover Breuder and/or Atkinson's potential bad act of contacting the press and to use that bad act to impeach or show bias at trial. But Atkinson has now admitted that he contacted the press, and he has sworn under penalty of perjury that he had no contact with Breuder until after the article was published.[3] Breuder's counsel has also confirmed in writing that neither Breuder nor his wife were aware of Hamilton's public filing until after the article was published. The Court sees no reason to doubt Atkinson's sworn statement or the statement of Breuder's counsel. These attorneys are officers of the court with a duty to respect the system of justice and to set forth an accurate presentation of the facts. See, e.g., Fuery v. City of Chicago, 900 F.3d 450, 454 (7th Cir. 2018); Stafford v. Mesnik, 63 F.3d 1445, 1449 (7th Cir. 1995) (judges are entitled to rely “on the statement of an officer of the court”). Atkinson's admission leaves the Board's subpoena seeking unnecessarily cumulative information. Indeed, the Board strongly suggests that it never would have served the subpoena in the first place if Atkinson had provided this information in response to its inquiry. (Dckt. 336 at 1-4).
*3 Furthermore, if questions remain regarding Atkinson's leak to the press or Breuder and Atkinson's relationship, the Board is free to question Breuder and Atkinson further at their inevitable depositions in this matter. The Board may then rely on that evidence in this litigation however it sees fit in accordance with the Federal Rules of Evidence.
For these reasons, Atkinson's motion to quash is granted. The Board's June 25, 2020 subpoena to Atkinson is quashed and Atkinson need not respond to it.
Footnotes
The Court presumes familiarity with the facts of this case and includes only those facts that are relevant to the very specific motion before the Court.
The Board previously issued a subpoena to Atkinson seeking a wide range of documents and communications directly related to the claims at issue in this case. Atkinson objected to the scope of the subpoena, but the Court directed Atkinson to respond to certain requests. (Dkt. 248 – 12/5/19 Order). As a result, Atkinson has since produced thousands of documents responsive to the Board's prior subpoena.
The Court appreciates Mr. Atkinson's candor with the Court and makes no finding as to whether his conduct in disclosing an inadvertently public filing to the press was improper. Notably, however, Mr. Atkinson is not a party or attorney of record for Breuder in this matter. Nor is he subject to the protective order, and it is unclear whether he was aware of the Court's order permitting all briefs related to the audio recordings to be filed under seal. In any event, as the Court opined at the motion hearing, this is “not the same thing” as if an attorney was “bound by the protective order and the sealing order of the court and he, nonetheless goes out and provides a sealed pleading to someone.” (Dkt. 342 – 7/23/20 Hr'g Tr. at 46.)