Betz v. Fed.l Home Loan Bank of Des Moines
Betz v. Fed.l Home Loan Bank of Des Moines
2022 WL 18777439 (S.D. Iowa 2022)
September 16, 2022
Jackson Jr., Stephen B., United States Magistrate Judge
Summary
Plaintiff Linda Betz has filed a Motion to Compel or for In Camera Review of Text Messages of Rebecca Mathisen, an employee of defendant Federal Home Loan Bank. Judge Stephen H. Locher determined that messages discussing health issues, Crosthwaite's divorce, or other personal issues are not discoverable unless such a message also discusses Plaintiff, this lawsuit, or FHLB, in which case production is required. Mathisen must produce any text messages between Mathisen and Paul Crosthwaite that mention or relate to Plaintiff, defendant FHLB or the underlying facts, claims and defenses of this lawsuit.
Linda BETZ, Plaintiff,
v.
FEDERAL HOME LOAN BANK OF DES MOINES, Zeeshan Kazmi, Sunil Mohandas and Mike Wilson, Defendants
v.
FEDERAL HOME LOAN BANK OF DES MOINES, Zeeshan Kazmi, Sunil Mohandas and Mike Wilson, Defendants
Civil No. 4:21-cv-00022-RP-SBJ
United States District Court, S.D. Iowa, Central Division
Signed September 16, 2022
Counsel
Megan C. Flynn, Michael J. Carroll, Coppola Carroll Hockenberg, P.C., West Des Moines, IA, for Plaintiff.Haley Hermanson, Katie Lynn Graham, Nyemaster Goode PC, Des Moines, IA, for Defendants.
Jackson Jr., Stephen B., United States Magistrate Judge
ORDER
*1 Before the Court is a Motion to Compel or for In Camera Review of Text Messages of Rebecca Mathisen (Dkt. 100) filed by Plaintiff Linda Betz. Counsel for Plaintiff issued a Subpoena to Produce Documents (Dkt. 111-1) to Rebecca Mathisen commanding production of emails and text messages exchanged between Mathisen and Paul Crosthwaite, neither of whom are named parties in this case. In response, an attorney for Mathisen produced two emails but indicated Mathisen did not have any text messages on her cell phone older than May 27, 2022, and any text messages Mathisen had did not relate to this case and would not be produced. Dkt. 100 ¶ 3; Dkt. 111-2. Plaintiff asks this Court to compel Mathisen to produce any text messages between Mathisen and Crosthwaite. Dkt. 100 ¶ 4. In a supporting Brief (Dkt. 105), Plaintiff questions why Mathisen did not preserve her text messages.
Mathisen filed a Resistance (Dkt. 111) with a Brief (Dkt. 111-3) in support. She complains the subpoena demands production of “[a]ny and all” emails and text messages exchanged between herself and Crosthwaite from her personal cell phone with “no limitation as to time and little limitation as to subject matter.” Dkt. 111 ¶¶ 1, 3. She asserts the “subpoena is invasive, overly broad, and unduly burdensome.” Id. ¶ 7.
Mathisen is an employee of defendant Federal Home Loan Bank (“FHLB”) but not a named party in this litigation, and has already been deposed by Plaintiff's counsel. Id. ¶ 2. She refers to herself as “a whistleblower in an investigation of misconduct by [Plaintiff] at the bank.” Dkt. 111-3 p. 1. In her view, the “subpoena seems retaliatory”:
Serving a subpoena on a non-party whistleblower, seeking information from a personal cell phone, with no limitation on time or subject matter, bespeaks retaliation.
Dkt. 111 ¶ 8. Mathisen notes she did not make the decision to terminate Plaintiff. Id. ¶ 9. Instead, Plaintiff was Mathisen's superior to whom she reported when Plaintiff worked at the bank. Id. According to Mathisen, she possesses no text messages with Crosthwaite that refer to Plaintiff or are related to Plaintiff's employment at FHLB. Id. ¶ 5; Dkt. 111-3 p. 2. As stated in a letter by Mathisen's attorney, “[i]f any such messages existed, they were deleted before the service of [the] subpoena.” Dkt. 111-2.
In Reply (Dkt. 121), Plaintiff again questions the deletion of text messages from Mathisen's cell phone and complains she “has not been told why or when text messages” were deleted. Id. ¶ 5. Plaintiff contends defendant FHLB “was obligated to collect and preserve such materials” pursuant to a retention letter sent by Plaintiff's counsel to FHLB before this litigation was initiated. Id. Plaintiff therefore seeks discovery of text messages possessed by Mathisen and leave to take a half-hour deposition of “Mathisen as to the efforts that were made by the Bank to preserve and collect discovery materials from her including both e-mails and text messages and as to her best recollection of the deletion of such material including dates and methods of destruction and of the types of documents and content which has now been deleted.” Id. ¶ 13.
*2 The Court considers the motion fully submitted. Oral argument is not necessary. L.R. 7(c). For the reasons which follow, Plaintiff's request for relief will be granted in part and denied in part.
Earlier in the case, Judge Stephen H. Locher, who was previously the Magistrate Judge assigned to this case, entered an order addressing a similar motion by Plaintiff for production of text messages from Crosthwaite. Dkt. 113 pp. 2-4. Judge Locher's decision and reasoning warrants repeating in full:
Plaintiff first moves to compel production or for in camera review of text messages between Becky Mathisen, whose allegations apparently led to Plaintiff's termination from FHLB, and a former FHLB independent contractor, Paul Crosthwaite. (ECF 71.) Plaintiff deposed Crosthwaite pursuant to a subpoena that also sought several categories of documents, including, inter alia, the following: “All documents of any kind (including any communications) related in any way to the work You performed for [FHLB]” and “Any and all text messages You sent, received, or were copied on that were between or among any employee(s), independent contractor(s), former employee(s), or former independent contractor(s) of [FHLB], or that relate to [FHLB] or its employees, former employees, independent contractors, or former independent contractors.” (ECF 71-3, p. 5.)
Crosthwaite was represented by FHLB counsel for the limited purpose of the deposition. ((ECF 71-1, p. 3-5.) He did not bring any responsive documents with him but testified that he had exchanged text messages with Mathisen and emails with FHLB in-house counsel JJ Severson. (Id.) Following the deposition, Plaintiff's counsel followed up with Crosthwaite via email to obtain the text messages and emails. (ECF 71-5, p. 4.) This led to an exchange of emails between Plaintiff's counsel and FHLB's counsel, with the latter asserting that Crosthwaite's text messages with Mathisen “have no relevance to this case.” (Id., p. 2.) Crosthwaite, for his part, indicated that he intended to retain separate counsel and later did so. (Id., p. 3.) Once retained, Crosthwaite's counsel reiterated in an email to Plaintiff's counsel that the text messages were not discoverable or relevant. (ECF 71-5, p. 12.) Later, however, Crosthwaite's counsel produced some text messages while withholding others. (ECF 71-5, p. 13.)
The Court cannot tell from the parties' filings whether Crosthwaite's counsel reviewed all the text messages between Crosthwaite and Mathisen and made an independent decision as to which ones to produce, or if Crosthwaite himself made that determination in the first instance and his counsel simply passed along what she received. Counsel's email transmitting some of the text messages merely states that “some communications” between Crosthwaite and Mathisen were being made available but that Crosthwaite “will not produce his communications with his friend regarding his divorce.” (ECF 71-5, p. 13.) In Crosthwaite's resistance to Plaintiff's motion to compel and/or for in camera review, counsel goes a little further by asserting that she “released the only messages ... that may have some modicum of relevance to the pending litigation.” (ECF 83, p. 2.) The resistance does not, however, explicitly say that counsel reviewed all the text messages and made the relevancy determination herself.
*3 The Court has reviewed the text messages that were eventually produced. (ECF 74.) They are unmistakably discoverable. The messages literally discuss, in Crosthwaite's words, “what happened” in connection with Plaintiff's termination from FHLB (id., p. 3) and go into some level of detail describing Plaintiff, her allegations, and other facts from the time of her employment with FHLB (id., pp. 5-9). Whether the messages are admissible is, of course, a different question and not within the scope of this Order. But they are clearly discoverable.
The Court will give counsel for FHLB and Crosthwaite the benefit of the doubt and assume they had not yet reviewed the text messages at the time of their original email assertions to Plaintiff's counsel that the messages were not relevant or discoverable. The fact that these assertions were made, however, informs the Court in its handling of Plaintiff's motion to compel and/or for in camera review. Clearly, someone (presumably Crosthwaite) misunderstands the scope of permissible discovery. The Court therefore will GRANT IN PART the motion to compel and require Crosthwaite's counsel to do the following within ten calendar days of the date of this Order: (a) personally review all text messages between Crosthwaite and Mathisen (to the extent counsel has not already done so), and not merely those self-selected by Crosthwaite as being potentially discoverable; (b) identify any additional discoverable messages consistent with the guidance provided by this Order; (c) produce those additional messages; and (d) provide a certification to Plaintiff's counsel that requirements (a) through (c) have been satisfied. In the interest of clarity, the Court notes that it considers any text messages that mention (implicitly or explicitly) Plaintiff, this lawsuit, or FHLB to be discoverable. Crosthwaite should err on the side of over-production, keeping in mind that the parties' protective order will help protect the confidentiality of any messages that are produced.
The Court will not go so far as to compel production of all text messages between Crosthwaite and Mathisen because the Court agrees that messages discussing health issues, Crosthwaite's divorce, or other personal issues are not discoverable (unless such a message also discusses Plaintiff, this lawsuit, or FHLB, in which case production is required as set forth in the preceding paragraph). Similarly, the Court will not order in camera review because it considers Crosthwaite's counsel's decision to produce some text messages as evidence that she is acting in good faith in determining relevance. The motion to compel is therefore DENIED IN PART as to these requests for relief.
After reviewing Judge Locher's order and considering the submissions on the present motion, this Magistrate Judge also concludes any text messages exchanged between Mathisen and Crosthwaite within Mathisen's possession are discoverable to the extent such communications mention or relate to Plaintiff, defendant FHLB or the underlying facts, claims and defenses of this lawsuit. Pursuant to Federal Rule of Civil Procedure 26(b)(1), and unless otherwise limited by court order, the scope of discovery in general is as follows:
Parties 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
*4 Fed. R. Civ. P. 26(b)(1).
Here, as already determined by Judge Locher, text messages exchanged between Mathisen and Crosthwaite which mention or relate to Plaintiff, defendant FHLB or underlying facts, claims and defenses of this lawsuit are within the scope of discovery permitted by Rule 26(b)(1). Although not addressed by Judge Locher, this Magistrate Judge is satisfied such discovery is proportional to the particular needs of this case under the factors of Rule 26(b)(1). In that regard, Mathisen has not shown the burden of producing those text messages outweighs its likely benefit.
In that regard, Rule 26(c)(1) allows the Court, upon a showing of good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery ... [or] forbidding inquiry into certain matters.” Fed. R. Civ. P. 26(c)(1)(A),(D). Rule 45, as cited by Mathesin, provides that “[a] party or attorney responsible for issuing and serving 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). The court “must enforce this duty and impose an appropriate sanction - which may include lost earnings and reasonable attorney's fees - on a party or attorney who fails to comply.” Id. The court “must quash or modify a subpoena that ... subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).
Mathisen contends the subpoena issued by Plaintiff is unduly burdensome “on its face” because it “lacks any time limit or subject matter limitation, beyond limiting the demand for e-mails and text messages between Mathisen and Crosthwaite.” Dkt. 111-3 p. 4. Mathisen emphasizes that “ ‘concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.’ ” Id. (quoting Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 927 (8th Cir. 1999) (quoted citation omitted)). But according to the Eighth Circuit, the assertion of undue burden “must be based on more than stereotypical and conclusory statements.” Miscellaneous Docket Matter No. 1, 197 F.3d at 926; see also, e.g., Vallejo v. Amgen, Inc., 903 F.3d 733, 743 (8th Cir. 2018) (“ ‘A party claiming requests are unduly burdensome cannot make conclusory allegations, but must provide some evidence regarding the time or expense required.’ ” (quoted citation omitted)); St. Paul Reinsurance Co. v. Commercial. Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000) (“The party resisting production bears the burden of establishing lack of relevancy or undue burden.”).
Mathisen makes no more than a conclusory assertion of undue burden in producing the text messages. And contradictory to this assertion of burden, Mathisen's attorney indicates there are no text messages to produce. While this Court is mindful of improper burdens placed on nonparties by litigants and their counsel, Mathisen fails to establish undue burden or expense in responding to the subpoena at issue here.
*5 However, Mathisen's assertion that the “subpoena is invasive [and] overly broad” carries weight. As determined by Judge Locher:
The Court agrees that messages discussing health issues, Crosthwaite's divorce, or other personal issues are not discoverable (unless such a message also discusses Plaintiff, this lawsuit, or FHLB, in which case production is required ....).
Dkt. 113 p. 4. The same determination applies to text messages within Mathisen's possession.
On a final note, Plaintiff has not shown good cause or reason for granting leave to further depose Mathisen. See Fed. R. Civ. P. 30(a)(2)(A)(ii) (party must obtain leave of court to the extent consistent with Rule 26(b)(1) and (2) if the deponent has already been deposed). Such request is outside the scope of the Subpoena to Produce Documents (Dkt. 111-1) underlying Plaintiff's motion and was not made until within Plaintiff's reply. Moreover, based on Plaintiff's own representations, the issue of evidence retention relates to the obligations and actions of FHLB as the named defendant not to Mathisen personally as a nonparty.
For those reasons, Plaintiff's Motion to Compel or for In Camera Review of Text Messages of Rebecca Mathisen (Dkt. 100) is granted in part and denied in part. Rebecca Mathisen is hereby ordered to produce through her attorney any text messages exchanged with Paul Crosthwaite which mention or relate to plaintiff Linda Betz, defendant Federal Home Loan Bank or this lawsuit in any manner. Counsel for Mathisen must review all text messages Mathisen exchanged with Paul Crosthwaite to determine whether they must be produced pursuant to this order and do so accordingly by September 26, 2022. If no such text messages exist, counsel for Mathisen must provide Plaintiff's attorney with a letter stating so by the same date. The Court fully expects counsel will perform the review in good faith and therefore an in camera review by the Court is unnecessary.
IT IS SO ORDERED.