*1 This case is before the Court on the following motions: (1) Motion to Quash and/or for Protective Order [211], filed by Jordan Russell; (2) Motion for Order to Compel Compliance with Subpoena Duces Tecum [215], filed by Plaintiffs regarding the subpoena issued to Janet Danks; (3) Motion to Quash Deposition [227], filed by Mayor Mary Hawkins-Butler; and (4) Motion for Protective Order [232],[1] filed by Dale Danks, Jr. Having considered the relevant filings, the Court finds that the motion [211] to quash should be granted; the motion [215] to compel should be denied; the motion [227] to quash should be granted; and the motion [232] for protective order should be granted in part and denied in part.

This case arises from the arrest of Mark Mayfield and criminal charge against him for conspiracy to commit exploitation of a vulnerable adult. The charge arose from the photographing and posting online a photograph of Rose Cochran, wife of former United States Senator Thad Cochran, who was running for re-election at the time.

Plaintiffs' complaint named several defendants, against whom Plaintiffs asserted various federal and state law claims. By previous orders, this Court dismissed most of Plaintiffs' claims and named defendants. See [115], [139]. The only remaining claims and defendants are: (1) a Lozman[2] claim under 42 U.S.C. § 1983 against the City and Mayor Mary Hawkins-Butler in her official capacity; and (2) a § 1983 claim against Officer Vickie Currie in relation to her application for Mark Mayfield's arrest. Id.

(1) Motion to Quash and/or for Protective Order [211]

Jordan Russell was a member of Thad Cochran's 2014 Re-election Campaign. Plaintiffs subpoenaed Russell for production of documents related to the entire Amended Complaint [6] and all communications “to, from, or among” over 50 separate individuals and governmental and private entities, as well as their employees and representatives. Russell's motion [211] to quash alleges that the subpoena defies applicable geographic limitations, is overly broad and unduly burdensome, and seeks information irrelevant to the remaining claims in this case.

Rule 45 of the Federal Rules of Civil Procedure includes a geographic limitation: 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). According to Fed. R. Civ. P. 45(d)(3)(A)(ii), whenever a subpoena requires compliance beyond the 100-mile limit specified in Rule 45(c), the court “must quash or modify” the subpoena.

Russell asserts—and Plaintiffs have not disputed—that he lives, works, and regularly transacts business in Oxford, Mississippi. The parties do not dispute that Oxford is located in the Northern District of Mississippi, outside the jurisdiction of this Court, and over 100 miles away from Jackson, Mississippi, the site designated in the subpoena for production. Accordingly, Plaintiffs' subpoena violates Fed. R. Civ. P. 45(c)(2)(A).

*2 Further, the subpoena's only limitation on the time and scope of the requested communications is “the time period and subject matter referenced in [Plaintiffs'] Amended Complaint.” [211-1] at 4. Plaintiff's Amended Complaint is 42 pages long, contains 289 numbered paragraphs, and covers a wide range of subject matter related to numerous claims (most of which have been dismissed) against several defendants (most of whom have been dismissed). In addition, the subpoena requests all communications “to, from, or among” over 50 separate individuals and governmental and private entities, as well as their employees and representatives, regarding all such subject matter. Id.

The subpoena is facially overbroad and lacks the requisite “reasonable particularity” and specificity. See Fed. R. Civ. P. 34(b)(1)(A) (stating that document requests “must describe with reasonable particularity” the documents to be produced); Orix USA Corp. v. Armentrout, No. 3:16-mc-63-N-BN, 2016 WL 3926507, at *2 (N.D. Tex. July 21, 2016) (“Rule 34(b)(1)'s reasonable particularity requirement should apply with no less force to a subpoena's document requests to a non-party.”); Gondola v. USMD PPM, LLC, 223 F.Supp.3d 575, 586 (N.D. Tex. 2016) (holding that document request for “all documents ... relat[ing] to the allegations of [the] Complaint” was overly broad and lacked “reasonable particularity”); Lopez v. Don Herring Ltd., 327 F.R.D. 567, 576 (N.D. Tex. 2018) (acknowledging that such document requests lack “reasonable particularity”). And considering that most claims and defendants in Plaintiffs' Amended Complaint have been dismissed, the request also exceeds what is relevant to the claims and defenses remaining in this case.

For the reasons stated above, Plaintiffs' subpoena to Russell should be quashed.

(2) Motion for Order to Compel Compliance with Subpoena Duces Tecum [215]

Plaintiffs also served Janet Danks with a subpoena demanding all documents related to the entire Amended Complaint [6] and all communications “to, from, or among” over 50 separate individuals and governmental and private entities, as well as their employees and representatives. Janet Danks filed an objection [210] to the subpoena, contending inter alia that the subpoena is overly broad, unduly burdensome, and disproportional to the needs of the “remaining Lozman claim.” In response, Plaintiffs filed the instant motion to compel [215].

Like the Russell subpoena, the subpoena served on Janet Danks is facially overbroad, lacks reasonable particularity, and exceeds what is relevant to the remaining claims and defenses in this case. Accordingly, Plaintiffs' motion [215] should be denied.

(3) Motion to Quash Deposition [227]

Mayor Mary Hawkins-Butler argues that her deposition in this case should be quashed because Plaintiffs have already deposed her on the same issues in a separate bill of discovery proceeding in Mississippi state court. Her prior deposition was taken on September 12, 2016, and resulted in a 174-page transcript. She argues that a deposition in this case would be duplicative of her 2016 deposition.

In a prior discovery order [202], this Court addressed the effect of Plaintiffs' state court bill of discovery actions on discovery in this case:

*3 [202] at 7-8.

Regarding one of Plaintiffs' state court bill of discovery actions, the Mississippi Court of Appeals observed:

Butler Snow LLP v. Estate of Mayfield, 281 So. 3d 1214, 1217. The Court went on to note that under Mississippi law, “ ‘[t]he bill of discovery is a viable equitable action and remedy in chancery court’ but cannot be used in certain situations, such as a precursor to a personal injury suit where the discovery could be obtained in the suit itself.” Id. at 1219 (emphasis added) (quoting Kuljis v. Winn-Dixie Montgomery LLC, 214 So. 3d 283, 285 (¶ 4) (Miss. 2017)).

Under these circumstances, the Court finds that Plaintiffs are not entitled to conduct a full-scale, second deposition of Mayor Hawkins-Butler. Plaintiffs chose to file and conduct discovery for this case in a separate, ex parte state court proceeding. It would be improper to allow Plaintiffs to proceed with wide latitude in re-deposing her in this case, after having already conducted an extensive deposition of her in the state court proceeding. Therefore, Hawkins-Butler's motion [227] to quash her deposition is granted.

The Court may, however, allow a limited, second deposition of Hawkins-Butler. In order to depose her again, Plaintiffs must first file a motion showing good cause for re-deposing her and listing specific, proposed areas of inquiry for the Court's consideration.

(4) Motion for Protective Order [232]

Dale Danks, Jr., former Municipal Court Judge for the City of Madison, issued the arrest and search warrants and presided over the arraignment and bond hearing for Mark Mayfield. [232] at 1. After serving as Madison Municipal Court Judge, Danks served as City Attorney for the City of Madison. He also served as counsel of record in this case for Defendant City of Madison from September 6, 2017, until he withdrew as counsel, effectively on August 14, 2019. Plaintiffs noticed Danks's deposition, and Danks filed the instant motion [232] requesting that the Court “defin[e] the permissible scope of the Plaintiffs' deposition inquiry.” [232] at 1.

Under Fed. R. Civ. P. 26 (c), “[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 ... (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(D). Fed. R. Civ. P. 45(d)(3)(A)(iii), which applies to deposition subpoenas, provides that a subpoena must be quashed or modified if it “requires disclosure of privileged or other protected matter.”

*4 As former Madison Municipal Court Judge, Danks asserts the mental processes privilege and seeks a protective order forbidding any inquiry “relating to [his] mental processes ... for his actions taken as Municipal Judge during the issuance of arrest and search warrants, setting of bond, and arraignment of Mark Stevens Mayfield and all other ... criminal defendants.” [232] at 2. In response, Plaintiffs argue inter alia[3] that Danks had “communications with other employees of the City, including the chief of police and the mayor” and that these communications were not part of Danks's mental processes in his judicial decision-making. [258] at 3.

The Court finds good cause for a protective order forbidding inquiry into Danks's mental processes as a municipal court judge in relation to the issuance of arrest and search warrants, setting bond, and arraignment for Mark Mayfield and any other criminal defendants. Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir. 1982) (“It is a firmly established rule in our jurisprudence that a judge may not be asked to testify about his mental processes in reaching a judicial decision.”). However, the mental processes privilege would not apply to communications outside of the judicial process. Therefore, to the extent Danks's motion seeks a protective order forbidding inquiry into Danks's communications outside of the judicial process, Danks's motion should be denied.

As former City Attorney for the City of Madison, Danks asserts the attorney-client privilege and requests a protective order forbidding any inquiry “about [his] actions, responsibilities, and communications relating to his tenure as City Attorney[,]” including “any questions relating to his resignation as Municipal Judge and his hiring as City Attorney.” [232] at 2. Plaintiffs respond that they have “no need or intention to inquire into communications that are protected by the attorney-client privilege[,]” but that “not every communication by an attorney is privileged” and the “broad, sweeping prohibition” requested by Danks is improper. [258] at 4-5.

“Determining the applicability of the [attorney-client] privilege is a ‘highly fact-specific’ inquiry, and the party asserting the privilege bears the burden of proof.” EEOC v. BDO, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (quoting Stoffels v. SBC Commc'ns, Inc., 263 F.R.D. 406, 411 (W.D. Tex. 209)). To meet that burden of proof,

BDO, L.L.P., 876 F.3d at 696 (quoting United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)).

In his motion, Danks identifies no specific communication that he claims to be protected by the attorney-client privilege. Instead, he simply states that he served as City Attorney and requests a broad protective order prohibiting any inquiry in the areas quoted above. Danks has not met the applicable burden of proof, and therefore, this portion of Danks's motion should be denied.

As former counsel for Defendant City of Madison in this case, Danks also asserts the general prohibition against deposing opposing counsel and requests a protective order forbidding “any questions relating to his actions, responsibilities, and communications as counsel for Defendant, City of Madison[,]” including his “entry as counsel of record ... or his Motion to Withdraw.” [232] at 3. Other than the arguments mentioned above, Plaintiffs do not provide an additional response specific to this request.

*5 “Courts in the Fifth Circuit generally disfavor deposing opposing counsel.” Issaquena and Warren Counties Land Co., LLC v. Warren Cnty., Bd. of Sup'rs, Civil Action No. 5:07-cv-106-DCB-JMR, 2011 WL 6092450 at *4 (S.D. Miss. Dec. 7, 2011). “As a result, depositions of opposing counsel are permitted in only the most limited of circumstances.” Id. When determining whether to allow a deposition of opposing counsel, courts often apply the Eighth Circuit's Shelton factors which require proof that: “(1) no other means exist to obtain the information, (2) the information sought is relevant and non-privileged, and (3) the information is crucial to the preparation of the case.” Nguyen v. Excel Corp., 197 F.3d 200, 208 (5th Cir. 1999) (citing Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986) and stating that “[b]ecause depositions of opposing counsel are disfavored generally and should be permitted in only limited circumstances, one would suspect that a request to depose opposing counsel generally would provide a district court with good cause to issue a protective order.”).

Based on their response to Danks's motion, it does not appear that Plaintiffs intend to depose Danks on matters related to his representation of Defendant City of Madison in this case. And although Danks raised the Shelton factors in his motion, Plaintiffs provide no argument or evidence in an attempt to meet those factors. Accordingly, the Court finds good cause for a protective order forbidding any questions relating to Danks's actions, responsibilities, and communications as counsel for Defendant City of Madison, including his entry as counsel of record or his motion to withdraw, in this case.

For the reasons stated above, it is hereby ordered:

SO ORDERED on the 8th day of October, 2020.

Although the docket indicates that this motion [232] was filed by the City of Madison, the motion states that it is filed by Dale Danks, Jr. regarding Plaintiffs' intent to depose him.

See Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945 (2018).

Plaintiffs also argue that Danks, in his capacity as Madison Municipal Court Judge, is not entitled to the mental processes privilege, citing Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). Plaintiffs failed to make a showing that would justify setting aside the mental processes privilege afforded Danks in performing judicial functions.