*1 This case is before the Court on the following motions: (1) Motion to Quash and/or for Protective Order [324], filed by Quinton Dickerson; (2) Motion to Quash or Modify Subpoenas Regarding In-Person Depositions [342], filed by Donald Clark, Jr. and Amanda Barbour; (3) Motion to Compel Plaintiffs' Discovery Responses [344], filed by the City of Madison (“City”); (4) Motion to Compel the City of Madison's Responses to Plaintiffs' Second Set of Interrogatories and Requests for Production [377], filed by the Estate of Mark Stevens Mayfield (“Estate”); (5) Motion for Leave to Take Deposition Out of Time [389], filed by Plaintiffs; and (6) Unopposed Motion to Strike [392], filed by the Mayfield Limited Family Partnership. Having considered the relevant filings, the Court finds that motions [324], [342], and [344] should be granted in part and denied in part, motion [377] should be denied, and the remaining motions [389] and [392] should be granted as set forth below.

(1) Motion to Quash and/or for Protective Order [324]

Quinton Dickerson, a non-party to this action, filed a motion [324] to quash and/or for protective order in relation to a subpoena served on him by Plaintiffs. The subpoena commanded his appearance to testify at a deposition and his production of documents. See [324-1].

As to the subpoena's requirement that he appear for a deposition, Dickerson contends that it would impose on him an “undue expense” under Fed. R. Civ. P. 45(d)(1). [324] at 8. However, Dickerson has failed to show any such “undue expense.” Accordingly, the Court finds that Dickerson's request that the Court quash the subpoena's requirement that he appear to testify at a deposition should be denied.

Although he objected to the subpoena duces tecum on several grounds, Dickerson also stated in his motion that the types of communication requested in the subpoena, presumably emails, “pertain to events that occurred more than six years ago” and “no longer exist.” [324] at 3-4. He explained that “[d]ue to space limitations on his business's server, all electronically stored information, including emails, is deleted after two (2) years.” Id. at 4. He further stated that “all of the written communications by him would have been sent from or received through servers that either no longer exist or such emails were subsequently deleted per standard business practice.” Id. In their response, Plaintiffs contended that Dickerson should be required to conduct a good faith search for the requested documents. [350] at 5.

After Plaintiffs filed their response, Dickerson filed an affidavit. See [356]. In his affidavit, Dickerson testified that he “ha[d] since performed a good faith search in an effort to produce documents responsive to the [s]ubpoena.” [356] at 1. He further testified that “[a]fter a thorough search of all of the files, servers, phones, text messages, social media accounts, personal email, and all other means of communication to which [he] ha[s] authority to access and are in [his] possession, custody, or control,” he had found responsive documents and had produced them to Plaintiffs. Id. Dickerson testified that those produced documents “are the only responsive documents in [his] possession, custody, or control.” Id. at 2.

*2 To the extent Dickerson has already complied with the subpoena duces tecum, Dickerson's motion to quash should be denied as moot. To the extent Plaintiffs seek to impose any further duty on him via the subpoena duces tecum, Dickerson's motion for a protective order should be granted.

(2) Motion to Quash or Modify Subpoenas Regarding In-Person Depositions [342]

Non-parties Donald Clark, Jr.[1] and Amanda Barbour filed a motion [342] to quash or modify subpoenas [330-1], [330-2] issued by Plaintiffs[2] for their deposition testimony and production of documents. Specifically, Clark and Barbour request that: (a) the subpoenas be modified to require that their depositions be taken by remote means, due to the coronavirus pandemic; and (b) the subpoenas duces tecum be quashed on the grounds that they are “unreasonably cumulative or duplicative” under Fed. R. Civ. P. 26(b)(2)(C) and impose an “undue burden” under Fed. R. Civ. P. 45(d)(3)(A)(iv).

The subject subpoenas demand that Clark and Barbour appear in-person at the office of Plaintiffs' counsel for their respective depositions. Citing health concerns due to the coronavirus pandemic, Clark and Barbour request that their depositions be taken remotely.

Fed. R. Civ. P. 45(d)(3)(A)(iv) requires the court to “quash or modify a subpoena that ... subjects a person to undue burden.” Fed. R. Civ. P. 26(c) provides that for good cause, the court may issue an order to protect a person from undue burden by, among other things, specifying the place for the discovery. Fed. R. Civ. P. 26(c)(1)(B). And Fed. R. Civ. P. 30(b)(4) authorizes this Court to order “that a deposition be taken by ... remote means.”

In support of their motion, Clark and Barbour each submitted an affidavit. In his affidavit, Clark testified that he is 71 years old and although he had most recently tested negative, he had previously tested positive for the coronavirus. [342-6] at 1. Clark testified that his treating physician has counseled that due to his age and health history, he is at higher risk for severe illness from the coronavirus. Id. And he testified that because of his weakened physical condition, his treating physician has advised that he should continue to take precautions to avoid becoming seriously ill. Id. In her affidavit, Barbour testified that she is the mother of three children (ages 8, 14, and 16) and has relatives, including in-laws, who are older or have underlying health conditions. [342-7] at 1. Barbour testified that she has curtailed participation in activities with those outside her family, particularly indoor activities involving groups of people, to avoid exposing herself and her family to the virus. Id. She also testified that two of her attorneys, who would be defending her deposition, are over 65 years old. Id. at 2. The Court also notes that on November 24, 2020, Chief District Judge Daniel P. Jordan III entered Special Order # 11, which acknowledges that “[s]ince late October, Mississippi has seen a dramatic spike in the number of positive tests along with increases in hospitalizations, patients in ICUs, patients on ventilators, and deaths.” In re: Administrative Orders of the U. S. District Court, Case No. 3:40-mc-0011, Special Order # 11, at 1. Chief Judge Jordan's order further states that “the numbers now approach those experienced during the height of the pandemic and are rapidly trending in the wrong direction.” Id. Accordingly, Chief Judge Jordan ordered that “[e]ffective immediately, all civil matters and all non-essential criminal matters set for trial through January 11, 2021, are hereby stayed.” Id. at 2. For all these reasons, the Court finds good cause to order that the depositions of Clark and Barbour be taken by remote means. The Court also finds good cause to order that the court reporter(s) for the Clark and Barbour depositions appear remotely from a separate location than the deponent. See, e.g., SAPS, LLC v. EZCare Clinic, Inc., No. CV 19-11229, 2020 WL 1923146, at *2 (E.D. La. Apr. 21, 2020)(due to coronavirus pandemic, ordering depositions to be taken with the court reporter and deponent appearing remotely from separate locations and citing COVID-19 Emergency Individual Practices in Civil and Criminal Cases (S.D.N.Y. Apr. 9, 2020)).

*3 Clark and Barbour are, and were at all relevant times, both attorneys in the law firm of Butler Snow LLP (“Butler Snow”). The document requests in the subject subpoenas duces tecum served on Clark and Barbour are identical. Compare [330-1] and [330-2].

In July 2019, Plaintiffs served a subpoena duces tecum on Clark (“2019 Clark subpoena”), which demanded production of the same documents. Compare [330-1] to [161].[3] In response to the subpoena, Clark produced to Plaintiffs responsive documents[4] and a privilege log, identifying documents withheld from production under claims of attorney-client privilege and work product. Clark, through counsel, also advised Plaintiffs' counsel that the document search, production, privilege log, and objections were done “on his own behalf and on behalf of Butler Snow LLP.”[5] [342-8], [342-9]. Plaintiffs never filed a motion contesting the document production, privilege log, or objections in response to the 2019 Clark subpoena.

In December 2019, Plaintiffs served a subpoena duces tecum on Butler Snow (“2019 Butler Snow subpoena”), essentially demanding production of the same documents.[6] [201-1], [205]. Butler Snow, through the same counsel as before, responded to the subpoena by letter to Plaintiffs' counsel. The letter stated, in part:

[342-11] at 1. Plaintiffs never filed a motion contesting Butler Snow's response to the subpoena.

A year after Plaintiffs served the 2019 Clark subpoena and seven months after serving the 2019 Butler Snow subpoena, Plaintiffs issued the subject subpoenas to Clark and Barbour. Clark and Barbour request that these subpoenas duces tecum be quashed.

As stated above, Fed. R. Civ. P. 45(d)(3)(A)(iv) requires the court to “quash or modify a subpoena that ... subjects a person to undue burden.” And Fed. R. Civ. P. 26(b)(2)(C)(i) requires the court to prohibit discovery that is “unreasonably cumulative or duplicative.”

Clearly, the subject subpoena duces tecum served on Clark is unreasonably duplicative. Accordingly, it should be quashed.

The subject subpoena duces tecum served on Barbour is also duplicative, at least in part. The document search, production, privilege log, and objections in response to the 2019 Clark subpoena were done on behalf of Butler Snow, the law firm of which she is a member. In fact, in response to the 2019 Clark subpoena, Butler Snow's attorney specifically addresses “Amanda Barbour's handwritten notes” in a letter to Plaintiffs' counsel. [342-8] at 2. And the privilege log identifies numerous documents in reference to Barbour, including emails to and from her. See [342-10] at 1-5. Barbour should not be required to respond to the subpoena with regard to the same documents previously addressed in response to the 2019 Clark and Butler Snow subpoenas, as that would be unreasonably duplicative. But Barbour should comply with the subpoena to the extent that it seeks documents in her own personal possession, custody, or control and not in the possession, custody, or control of Butler Snow. Accordingly, the subject subpoena duces tecum served on Barbour should be modified to require only that she produce all non-privileged, responsive documents in her own personal possession, custody, or control and not in the possession, custody, or control of Butler Snow.

(3) Motion to Compel Plaintiffs' Discovery Responses [344]

The City's motion [344] contests Plaintiffs' objections and the sufficiency of their responses to certain discovery propounded by the City. After the City filed the instant motion, the individual plaintiffs, Robin Mayfield, Owen Mayfield, and William Mayfield (“Individual Plaintiffs”), served supplemental discovery responses.[7] Based on the City's reply [360], it appears that after receiving the supplemental discovery responses, the City reduced the discovery at issue from that addressed in its initial motion to only Interrogatory Nos. 3-7 and 9.[8] With respect to those interrogatories, the Court orders as follows.

*5 Interrogatory No. 3: The City's motion is granted in part and denied in part as to this interrogatory. The Court orders that the Estate and each Individual Plaintiff supplement their respective responses to provide a “yes” or “no” answer to this interrogatory; and if the answer is “yes,” set forth the principal and material facts supporting the contention, including identifying the official City policy or plan, the form of the City policy or plan, the relevant date(s), and the name(s) of the individual official(s) involved in formulating the City policy or plan. The motion is otherwise denied as to this interrogatory.

Interrogatory No. 4: The City's motion is granted in part and denied in part as to this interrogatory. The Court orders that the Estate and each Individual Plaintiff supplement their respective responses to this interrogatory and set forth, to the extent not already provided, the principal and material facts as to how the official municipal policy or plan of the City of Madison was applied against Mark Mayfield prior to May 22, 2014, and the date(s) of such application of the policy or plan. The motion is otherwise denied as to this interrogatory.

Interrogatory No. 5: The City's motion is denied as to this interrogatory.

Interrogatory No. 6: The City's motion is granted in part and denied in part as to this interrogatory. The Court orders that the Estate and each Individual Plaintiff supplement their respective responses and set forth the principal and material facts and dates responsive to this interrogatory. The motion is otherwise denied as to this interrogatory.

Interrogatory No. 7: The City's motion is denied as to this interrogatory.

Interrogatory No. 9 (to individual plaintiffs); Interrogatory 8 (to the Estate): The City's motion is granted in part and denied in part as to this interrogatory. The Court orders that the Estate and each Individual Plaintiff supplement their respective responses to provide the requested name(s) and title(s) and the principal and material facts requested in this interrogatory. The motion is otherwise denied as to this interrogatory.

(4) Motion to Compel the City of Madison's Responses to Plaintiffs' Second Set of Interrogatories[9] and Requests for Production [377]

Plaintiff Estate's motion [377] seeks an order compelling the production of documents in response to Request for Production Nos. 1 and 2, which the Estate propounded to the City in a second set of interrogatories and requests for production. The Estate propounded these requests to the City on January 14, 2020, and on February 13, 2020, the City served its responses. In response to Request for Production Nos. 1 and 2, the City produced no documents, objecting on the grounds that these requests were inter alia “impermissibly vague.” [377-2] at 13, 15. On June 25, 2020, the City served supplemental responses, and as to Request for Production Nos. 1 and 2, the City again produced no documents, reasserted all but one of its previous objections, and stated further that “based upon the Request as written, the City cannot determine what documents could be considered responsive.” [377-3] at 14, 19.

The Court finds that the Estate's motion is untimely. L.U.Civ.R. 7(b)(2)(C) states:

*6 L.U.Civ.R. 7(b)(2)(C). The Estate filed the instant motion on October 3, 2020; the discovery deadline expired on October 16, 2020. The City's response to the instant motion was not due until October 19, 2020, three days after the discovery deadline. Pursuant to L.U.Civ.R. 7(b)(2)(C), the Estate's motion should be denied as untimely.[10]

Even if the instant motion had been filed timely, it still should be denied. Request for Production Nos. 1 and 2 are vague, facially overbroad, and lack the “reasonable particularity” required by Fed. R. Civ. P. 34(b)(1)(A).

(5) Motion for Leave to Take Deposition Out of Time [389]

Plaintiffs' motion [389] to depose Richard Wilbourn, III, outside of the discovery deadline, is unopposed and, therefore, should be granted.

(6) Unopposed Motion to Strike [392]

The motion [392] to strike, filed by the Mayfield Family Limited Partnership, is also unopposed and, therefore, should be granted.

For the reasons stated above, it is hereby ordered:

1. The Motion to Quash and/or for Protective Order [324], filed by Quinton Dickerson, is granted in part and denied in part, as follows:

2. The Motion to Quash or Modify Subpoenas Regarding In-Person Depositions [342], filed by Donald Clark, Jr. and Amanda Barbour, is granted in part and denied in part, as follows:

3. The Motion to Compel Plaintiffs' Discovery Responses [344], filed by the City of Madison, is granted in part and denied in part as set forth above. The City's request for sanctions is denied. The Estate and each Individual Plaintiffs must serve supplemental responses in compliance with this Order by December 31, 2020.

4. The Motion to Compel the City of Madison's Responses to Plaintiffs' Second Set of Interrogatories and Requests for Production [377], filed by the Estate, is denied.

5. The Motion for Leave to Take Deposition Out of Time [389], filed by Plaintiffs regarding the deposition of Richard Wilbourn, III, is granted as unopposed. Any deposition of Wilbourn must be completed by January 15, 2021.

6. The Unopposed Motion to Strike [392], filed by the Mayfield Limited Family Partnership, is granted as unopposed. Court Reporter Julie Brown is hereby instructed to strike Exhibit 15 from the transcript of the deposition of Hal Green, CPA, as well as the questions and testimony recorded on the following pages and lines of the deposition transcript: 107:14-112:18; 117:25-120:8; and 121:3-18. All those in possession of a copy of the Hal Green deposition that contains Exhibit 15 and the above-referenced page and line designations are hereby instructed to destroy any and all such copies. After striking Exhibit 15 and the portions of the deposition transcript identified above, Ms. Brown must circulate copies of the revised transcript to all those who previously received the deposition, along with a copy of this order, by December 23, 2020. The Mayfield Limited Family Partnership must provide a privilege log to the City by December 31, 2020.

SO ORDERED on the 9th day of December, 2020.

Donald Clark, Jr. and Butler Snow LLP, the law firm of which Clark is a member, were initially party defendants in this case. See [1], [6]. The Court dismissed them on September 18, 2018. [115].

Although the docket shows that Plaintiffs filed a Notice of Intent [330] to serve the subject subpoenas on Clark and Barbour, the docket bears no Proof of Service for either subpoena. In response to the instant motion, Plaintiffs essentially admit serving Barbour, but deny serving Clark. [354] at 1. In rebuttal, Clark states that Plaintiffs served him on August 4, 2020. [357] at 10.

The 2019 Clark subpoena and the subject subpoena served on Clark seek the same three categories of documents: (1) “All documents related to [Clayton Thomas Kelly's] 2014 photographing of Rose Cochran[,] ... [his] publishing photographs of [her], or [his] planning to photograph [her]”; (2) “All documents related to the 2014 arrests, prosecutions, and searches of the properties of Clayton Thomas Kelly, John Beachman Mary [ ], Mark Stevens Mayfield, Richard Allen Sager, and Elaine Vechorik on charges stemming from Clayton Thomas Kelly's photographing Rose Cochran”; and (3) “All documents related to topic 1 and/or 2 above and further related to” any person or entity, or communications with any person, identified in a list of over 50 people and entities. [161], [330-1]. Although the list of people and entities in the 2019 Clark subpoena varies slightly from the list in the subject subpoena to Clark, category (3) simply requests the same documents demanded in categories (1) and (2) and then further limits the request to documents related to the listed people and entities. Therefore, both subpoenas request the same documents.

In response to the instant motion, Plaintiffs contended that documents were missing from the 2019 production, which Clark and Barbour dispute. See [354] at 1, [357] at 9. This issue appears to be moot, based on evidence submitted that the subject documents have been transmitted to Plaintiffs via a SafeShare link. [357] at 9, [357-3].

Letters from Clark's attorney to Plaintiffs' counsel explicitly advised that the response to the 2019 subpoena was “on [Clark's] own behalf and on behalf of Butler Snow LLP.” [342-8]; [342-11]. And the privilege log shows that Clark's response to the subpoena was not limited only to his documents but included responsive documents of the Butler Snow law firm. See [342-10] at 1-5 (describing numerous documents with no reference to Clark, but instead referencing other Butler Snow personnel).

Although not worded the same, the document request in the 2019 Butler Snow subpoena encompassed the same documents demanded in the 2019 Clark subpoena. The 2019 Butler Snow subpoena listed virtually the same people and entities listed in the 2019 Clark subpoena and commanded production of “[a]ll documents related to, or evidencing communications to, from, or among” them regarding the “subject matter referenced in [Plaintiffs'] Amended Complaint,” which includes topics 1 and 2 in the 2019 Clark subpoena. [201-1] at 4, 7-48.

The Individual Plaintiffs' supplemental responses are substantively identical. Compare [360-1] at 1-14, [360-1] at 15-28, and [360-1] at 29-42.

The City's initial motion also contested Plaintiffs' responses to Interrogatory Nos. 1, 2, and 12 and Requests for Production No. 1, B and C. [353] at 4, 5, 11, and 12. However, the City's reply states that it “sets forth below each Interrogatory at issue,” and then proceeds to address only Interrogatory Nos. 3-7 and 9. [360] at 3-13. And the conclusion of the City's reply “requests this Court to compel Plaintiffs to ... fully respond to the Discovery Requests as detailed above” and to “enter an order compelling Plaintiffs to ... provide full and complete responses to the Discovery Requests as provided in this Reply.” Id. at 14. Further, although the City mentions that the Estate never served any supplemental responses, id. at 2, the City does not request any specific relief on that issue. Therefore, the Court will not address Interrogatory Nos. 1, 2, and 12, Requests for Production No. 1, B and C, or the Estate's failure to serve supplemental responses.

Although the title of the motion [377] references interrogatories as well as requests for production, the Estate's motion addresses only two requests for production.

On July 16, 2020, the Estate's counsel sent a letter to the City's counsel seeking documents in response to the subject requests, based on deposition testimony from Madison Police Officer Kevin Newman. [377-4]. The next day, the City's counsel responded by letter, stating that the City “stands by [its] objections.” [377-5] at 1. As to the untimeliness of its motion, the Estate represents in its reply that “it became necessary ... to await the transcription of Officer Newman's deposition by the court reporter” and that “after having obtained a transcript of [his] deposition,” the Estate's counsel sent another letter to the City's counsel on September 15, 2020, again requesting the documents. [396] at 6. However, the Estate fails to show when a transcript of Newman's July 7 deposition was actually requested or received. And regardless, the undisputed evidence shows that as early as February 2020, the City had not produced documents and had asserted its objections in response to the subject requests, and as late as July 2020, the City was standing on its objections. Not surprisingly, the City's counsel responded to the September 15 letter by simply stating - again - that “[t]he City stands on its objection to the” subject requests. [377-7]. The Estate has failed to show sufficient justification for the untimeliness of its motion.