Whiting v. Trew
Whiting v. Trew
2021 WL 11474539 (E.D. Tenn. 2021)
October 13, 2021

Poplin, Debra C.,  United States Magistrate Judge

Third Party Subpoena
Protective Order
Proportionality
Privacy
In Camera Review
Download PDF
To Cite List
Summary
The Court denied both Motions for Protective Order for In-Camera Review and ordered Marie Gasser to produce copies of any and all balance sheets, income or cash flow statements, or statements of investment equity which show the balance of her Schwab account from September 1, 2019, through September 30, 2019. The Court also ordered that all account and routing numbers may be redacted.
Additional Decisions
GLENN WHITING and ARD PROPERTIES, Plaintiffs,
v.
CHRIS TREW, et al., Defendants
No. 3:20-CV-54-TRM-DCP
United States District Court, E.D. Tennessee, Northern Division
Filed October 13, 2021

Counsel

Van R. Irion, Law Office of Van R. Irion, PLLC, Knoxville, TN, for Plaintiffs.
Dan R. Pilkington, Emily C. Taylor, Watson, Roach, Batson, Rowell & Lauderback PLC, Knoxville, TN, for Defendants.
Poplin, Debra C., United States Magistrate Judge

MEMORANDUM AND ORDER

*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
Now before the Court is Marie Gasser's Motion for Protective Order for In-Camera Review (“Motion for a Protective Order”) [Doc. 130] and Defendants' Motion to Compel and Memorandum in Support (“Motion to Compel”) [Doc. 138]. The Motions are ripe for adjudication. Accordingly, for the reasons set forth below, the Court DENIES both Motions [Docs. 130, 138].
I. ANALYSIS
By way of background, the instant discovery disputes arise from an earlier discovery dispute relating to Plaintiff ARD Properties' financial information. Defendants served discovery requesting such information, which prompted motion practice. Defendants argued that Plaintiff ARD Properties' financial information is relevant because Plaintiffs claim as damages the deterioration of the Pope Avenue Building. Defendants argued that they were entitled to challenge whether Plaintiffs were financially able to make said repairs. See [Doc. 112 at 27-28]. Plaintiffs claimed that such information was not relevant because Plaintiff Whiting's sister, Marie Gasser (“Gasser”), was willing to provide the funds to Plaintiffs to make the repairs. [Id. at 28]. Relevant to the instant matter, Gasser filed a Declaration stating as follows:
3. I am Glenn Whiting's sister.
4. I am, and have been aware of the situation regarding the Pope Avenue building in Athens, TN.
5. My financial advisor, Glenn Zimmerman, of Kenneth Frenke & Co., manages a Schwab investment account for me.
6. In September 2019[,] said Schwab account had in excess of $100,000 which was immediately available for withdrawal at that time.
7. In September 2019, and thereafter, I was willing and able to provide funds to ARD Properties sufficient to perform the repairs required on the Pope Avenue building at that time.
8. If required, I am willing and able to provide documentation reflecting the above facts.
[Doc. 77-3 at ¶¶ 3-8]. In addition, Plaintiffs filed a Declaration of Glenn Zimmerman (“Zimmerman”), a certified financial planner with Kenneth Frenke & Co. and Gasser's financial advisor. [Doc. 77-4 at ¶ 5]. Zimmerman states, “In September 2019, said Schwab account had in excess of $100,000 which was immediately available for withdrawal at that time. [Id. at ¶ 6]. Zimmerman states, “If required, my firm is willing and able to provide documentation reflecting the above facts.” [Id. at ¶ 7].
Not surprisingly, Defendants served subpoenas on Gasser and Zimmerman requesting the financial information referenced in their Declarations. Specifically, the subpoena served on Gasser requests the following:
Produce copies of any and all balance sheets, income or cash flow statements, or statements of investment equity which show the balance of Marie Gasser's Schwab account, as identified and referenced in the Declaration of Glenn Zimmerman (attached hereto as Exhibit 1) and the Declaration of Marie Gasser (attached hereto has Exhibit 2) from September 1, 2019, through September 30, 2019. Please Note: All account and routing numbers may be redacted.
*2 [Doc. 130-2]. Defendants served a similar subpoena on Kenneth Frenke & Co. [Doc. 130-3].
In the instant matter, Gasser moves for a protective order [Doc. 130], requesting that the Court review her financial documents in-camera and enter a judicial finding that she had or did not have over $100,000 available in her account in September 2019. Gasser asserts that she is a non-party and has a privacy interest in her financial information. Gasser claims that Defendants are attempting to intimidate Plaintiffs by requesting such information and that this narrow issue can be resolved without disclosing her actual financial balances.
Defendants object, stating that Gasser and Zimmerman both filed Declarations with this Court stating that they would provide such information if required. Defendants argue that by filing the above Declarations, Plaintiffs and Gasser made the Schwab account relevant, thereby waiving any privacy concerns. In addition, Defendants state that in response to its discovery request seeking Plaintiff ARD Properties' financial information, Plaintiffs responded that “ARD had no bank, savings, or other financial account during the period specified,” but that Plaintiff ARD Properties had readily available monies through the Whiting, Ammerman, and Gasser families and that Gasser had funds over $100,000. [Doc. 133-3 at 2-3].[1] Defendants assert that Gasser has not met her burden in establishing the need for a protective order.
Further, Defendants argue that, to the extent Gasser has legitimate privacy concerns, such concerns can be addressed through less restrictive means, such as redacting personal account information or entering a protective order limiting the use of the financial information. Defendants state that the subpoena allows redactions of personal account information. In addition, Defendants submit that any privacy concerns can be addressed by a protective order limiting the use of the financial information, similar to the Protective Order [Doc. 126] entered by the Court governing the use of Plaintiff ARD Properties' financial information. Defendants further argue federal law does not prohibit the records from being produced.
Gasser filed a reply brief accusing Defendants of having ulterior motives for obtaining Plaintiff Whiting's families' financial information. Gasser asserts that Defendants have made material misrepresentations in their response. Gasser argues that she only waived her privacy rights to a very limited and specific degree. Gasser states that she has met her burden for a protective order because Defendants only seek such information to intimidate the Whiting family. In support of Gasser's allegations of intimidation, she states the following: (1) Defendants previously requested Plaintiffs' overbroad and unnecessary financial information, (2) Plaintiffs sent Defendants a proposed protective order for this case, and Defendants would not agree to such an order, (3) Defendants fail to explain why they need all the information in the subpoena when the only relevant question is whether Gasser had access to $100,000, (4) Athens Chief of Police testified at a public meeting that Defendant Sumner had intimidated others, including Dr. Pelly, and (5) Defendants sent an ex parte letter to Zimmerman in an attempt to intimidate him into disclosing Gasser's financial documents. The reply requests that Defendants pay “[P]laintiffs' attorney's fees and costs for preparation and prosecution of the instant motion and reply.” [Doc. 136 at 7].
*3 Pursuant to Federal Rule of Civil Procedure 26(c)(1), a court may “for good cause,” issue a protective order to “[a] party or any person from whom discovery is sought,” to prevent “annoyance, embarrassment, oppression, or undue burden or expense.” The movant has the burden to show good cause for a protective order. In re Ohio Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016). “Good cause exists if ‘specific prejudice or harm will result’ from the absence of a protective order.” Id. (quoting Father M. v. Various Tort Claimants (In re Roman Catholic Archbishop), 661 F.3d 417, 424 (9th Cir. 2011)). Further, good cause cannot be shown by “stereotypical and conclusory statements.” Id.
Here, Gasser requests that the subpoenaed documents be sent to the Court for an in-camera review. In addition, Gasser requests that the Court then answer whether she had access to at least $100,000 in September 2019 by checking “yes,” “no,” or “The answer to said question cannot be definitely determined based upon the documents provided.” [Doc. 130-1]. The Court declines Gasser's request to review her document production. Gasser made these documents relevant when she, Plaintiff Whiting, and Zimmerman filed Declarations claiming that Gasser was willing and able to provide $100,000 to repair the Pope Avenue Building. Zimmerman and Gasser both stated in their Declarations that they would provide documentation reflecting that the Schwab account had at least $100,000 in September 2019 and that it was immediately available for withdrawal. Defendants have now requested that documentation, and the Court finds Defendants' discovery requests appropriate under Rule 26(b)(2).
The Court has also considered Gasser's concerns regarding her financial information, but the Court finds that her concerns do not warrant the Court's review of the documents. First, Defendants' request is narrowly tailored in that it only requests one month of records. Second, the Court finds Gasser's concerns can be alleviated by protecting disclosure and dissemination of her financial records similar to the previous Protective Order the Court entered with respect to Plaintiff ARD Properties' financial information. See [Doc. 126].
With respect to Defendants' Motion to Compel [Doc. 138], they request a court order directing Plaintiff ARD Properties to respond to their Fifth Set of Request for Production of Documents. Specifically, Defendants take issue with Plaintiff ARD Properties' response to Request No. 2 as follows:
Request 2: Any documents in your possession, custody, and/control, including documents that are readily available to you by online retrieval, reflecting, referencing, and/or identifying ARD Properties' bank or other financial statements for August 2019 through October of 2019, or any other savings or readily available monies or funds.
Response: To the best of plaintiffs' knowledge, ARD had no bank, savings, or other financial account during the period specified.
ARD did have “readily available monies or funds” through members of the Whiting, Ammerman, and Gasser families. Funds were available to ARD from Ms. Marie Gasser, exceeding $100,000, during the specific period. Documents reflecting this fact are currently subject to a subpoena and a pending motion for protective order requesting in-camera review. See R.130 and R130-1. Therefore, said documents are being withheld pending further order of the Court on said motion.
[Doc. 138-3]. Defendants incorporate their response to Gasser's Motion for a Protective Order and move the Court for an order compelling Plaintiff ARD Properties to respond fully and completely to Request for Production No. 2 and produce the documents the Plaintiff ARD Properties admits that it is withholding. Accordingly, in light of the Court's ruling above, the Court DENIES Defendants' request.
II. CONCLUSION
*4 Accordingly, for the reasons stated above, the Court DENIES Marie Gasser's Motion for Protective Order for In-Camera Review [Doc. 130] and DENIES Defendants' Motion to Compel and Memorandum in Support [Doc. 138]. Marie Gasser SHALL respond to the subpoena within fourteen (14) days of the instant Memorandum and Order, and any documents produced SHALL be subject to the same protections as provided in [Doc. 126].
IT IS SO ORDERED.
ENTER:

Footnotes

Plaintiff ARD Properties' response is the subject of Defendants' Motion to Compel.