Whiting v. Trew
Whiting v. Trew
2020 WL 13755251 (E.D. Tenn. 2020)
June 22, 2020

Poplin, Debra C.,  United States Magistrate Judge

Third Party Subpoena
Initial Disclosures
Audio
Failure to Produce
Possession Custody Control
Text Messages
Mobile Device
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Summary
The Court granted the Defendants' request to inspect Plaintiff Whiting's cell phone to determine if the Recordings could be retrieved. The Court also granted Randy Whiting's Motion to Quash, finding that the subpoena was procedurally deficient. Electronically stored information is important in this case because the Recordings may be able to be retrieved from the cell phone, which is in the possession and control of Plaintiff Whiting. Forensic examination may be necessary to retrieve the Recordings.
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 June 22, 2020

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 a Motion to Quash [Doc. 14], filed by non-party Randy Whiting, and Defendants' Motion to Compel [Doc. 25]. The parties appeared before the Court via videoconferencing on June 18, 2020, for a motion hearing on Defendants' Motion to Compel. Attorney Van Irion appeared on behalf of Plaintiffs. Attorney Dan Pilkington appeared on behalf of Defendants. Plaintiff Glenn Whiting also appeared at the hearing and offered testimony. Accordingly, the Court GRANTS the Motion to Quash [Doc. 14] and GRANTS IN PART the Motion to Compel [Doc. 25].
I. BACKGROUND
By way of background, the Complaint in this case arises out of allegations involving the First Amendment to the United States Constitution. [Doc. 1]. Specifically, Plaintiffs allege that Defendants, and other Athens City officials, have taken official action and have threatened to take further actions against Plaintiff Whiting for expressing his political views, including his views expressed during public meetings and via a display on the exterior wall of a building. [Id. at ¶ 9]. Relevant to the instant matter, in Plaintiffs' Complaint, they allege that Plaintiff Whiting met with Defendant Trew, the City Attorney for the City of Athens, about Plaintiff Whiting's intention to paint a message on the side of a building. [Id. at ¶ 38]. Plaintiffs allege that Plaintiff Whiting recorded his conversation with Defendant Trew. [Id.].
In Plaintiffs' Initial Disclosures submitted on April 17, 2020, they listed the following items in their possession: (1) a recording of Gene McConkey (“McConkey”), the Building Inspector for the City of Athens, (2) a recording of Defendant Seth Sumner (“Sumner”), the City Manager for the City of Athens, (3) the recording of Defendant Trew, (collectively, “Recordings”) and (4) a text message between McConkey and Plaintiff Whiting. [Doc. 25-1 at 6]. On March 27, 2020, Defendants served their First Set of Interrogatories and Requests for Production of Documents. Defendants' Interrogatory No. 14 requests communications with employees or the City Council of the City of Athens with whom Plaintiff has communicated with about the issues and claims in the Complaint. [Doc. 25-2 at 10]. In response, Plaintiffs listed the Recordings and the text message from McConkey to Plaintiff Whiting. [Id.]. Plaintiffs further stated, “Recordings are currently not within the control of the Plaintiffs, but are in control of Randy Whiting, Orlando, FL, and will be disclosed as soon as retrieved.” [Id.]. Defendants also requested these items in their Requests for Production of Documents, and Plaintiffs provided a similar response. [Id. at 18].
On May 20, 2020, Randy Whiting, Plaintiff's brother, filed a Motion to Quash [Doc. 14], requesting that the Court quash the subpoena that Defendants served to obtain the Recordings. The following day, on May 21, 2020, the parties participated in an informal discovery dispute conference with the undersigned because Plaintiffs had subpoenaed Defendant Trew's deposition for June 3, 2020, and Defendants argued that the recording between Plaintiff and Defendant Trew should be produced prior to any depositions taking place. See [Doc. 15].[1] During the telephonic hearing, Plaintiffs stated that Plaintiff Whiting gave the recording of Defendant Trew to his brother who lives in Florida and that Plaintiff Whiting's cell phone, which he used to make the recording of Defendant Trew, crashed. Plaintiffs stated that Plaintiff Whiting's brother could not locate the recording of Defendant Trew. The Court ordered Plaintiffs' counsel to confer with Plaintiff Whiting with respect to the whereabouts of the Recordings and to make every effort to obtain the recording of Defendant Trew and listen to it prior to the next status conference. [Doc. 15].
*2 Subsequently, on May 22, 2020, Plaintiffs filed their Amended Initial Disclosures [Doc. 16-1], striking through the Recordings as information that Plaintiffs possess. The text from McConkey to Plaintiff Whiting is still included in Plaintiffs' Amended Initial Disclosures. [Id.]. During the next status conference on May 28, 2020, Plaintiffs stated that Plaintiff Whiting recorded the conversation that he had with Defendant Trew on his cell phone and that he had made two flash drives of that recording. Plaintiff Whiting sent both flash drives to his brother, Randy Whiting, in Florida, for safekeeping. Plaintiffs state that Randy Whiting could not locate the flash drives. In addition, Plaintiffs stated that Plaintiff Whiting no longer has the Recording on his cell phone because his cell phone crashed. During the telephone conference, the parties agreed to postpone depositions until the last week of June. Given that the issue with the recording of Defendant Trew could not be resolved informally, the Court allowed Defendants to file an appropriate motion. Defendants' Motion to Compel [Doc. 25] followed.
II. TESTIMONY
As previously mentioned, the Court addressed Defendants' Motion to Compel [Doc. 25] at the June 18 hearing. Plaintiff Whiting testified with respect to the Recordings. Specifically, Plaintiff Whiting testified that he made three recordings: (1) one recording of his meeting with Defendant Trew, (2) one recording of his meeting with Defendant Sumner, and (3) one recording of his meeting with McConkey. These recordings were made on Plaintiff Whiting's cell phone. Plaintiff Whiting testified that he made three separate flash drives, one for each recording, and mailed them to his brother, Randy Whiting, who lives in Florida, for safekeeping, approximately three or four days after the meetings. Plaintiff Whiting testified that he never expected to need the Recordings.
Plaintiff Whiting testified that in early February 2020, the cell phone he used to make the Recordings crashed. He stated that he was able to retrieve several photographs from his old cell phone, but he lost all recordings, including the Recordings at issue. He stated that he still has his cell phone that crashed.
Further, Plaintiff Whiting stated that he has asked his brother for the Recordings, but his brother is unable to locate them. Plaintiff Whiting said that according to his brother, the Recordings are in the house (Randy Whiting's house) but cannot be located. Plaintiff Whiting acknowledged that the Recordings were his property.
III. ANALYSIS
The subject of both pending Motions [Doc. 14] and [Doc. 25] is the Recordings. The Court will first address Defendants' Motion [Doc. 25] and then turn to Randy Whiting's Motion [Doc. 14].
A. Defendants' Motion to Compel [Doc. 25]
In the instant Motion, Defendants request the following: (1) an in-person hearing be scheduled before June 22, the date of Defendant Trew's deposition, with testimony from Plaintiff Whiting, (2) an order compelling the production of the Recordings, (3) an order compelling Plaintiffs to fully and completely respond to Defendants' discovery requests, (4) an order granting Defendants' request for an inspection of Plaintiff Whiting's cell phone, (5) a stay of all depositions until the Recordings are produced, (6) attorney's fees and costs incurred for preparing and filing the Motion to Compel and with the prior attempts to obtain the Recordings, and (7) that the Motion be heard on an expedited basis.[2]
Plaintiffs filed a Response [Doc. 27] to the Motion, arguing that Defendant Trew's refusal to participate in his deposition prior to the production of the Recordings violates Federal Rule of Civil Procedure 26(d)(3). Plaintiffs argue that the relative importance of the Recordings at issue will not be established until Defendant Trew's deposition. Plaintiffs maintain that Randy Whiting has searched for the Recordings but cannot locate them. Plaintiff Whiting denies that he has the legal right to obtain the Recordings on demand. Plaintiffs argue that if Defendant Trew admits the facts as he did on the recording of the conversation between him and Plaintiff Whiting, the importance of the Recordings to this litigation becomes minimal.
*3 During the June 18 hearing, Defendants argued that the Recordings are relevant to the issues in this case and that Defendants have been prejudiced by Plaintiffs' delay in producing them. Defendants argued that Plaintiff Whiting has the legal right to obtain the Recordings on demand. Plaintiffs disagreed, arguing that the relevancy of the Recordings depends on Defendant Trew's deposition.
Federal Rule of Civil Procedure 26(b) governs discovery. Specifically, Rule 26(b) provides, “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 ...” Fed. R. Civ. P. 26(b)(1). Courts have explained that the “scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998)).
While Plaintiffs insist that the Recordings are not relevant until after Defendant Trew's deposition, the Court wholly disagrees. The relevancy of the Recordings is not dependent on Defendant Trew's testimony. Plaintiffs have specifically alleged in their Complaint that Plaintiff Whiting recorded a conversation between himself and Defendant Trew concerning Plaintiff Whiting's intention to paint the building. [Doc. 1 at ¶ 38]. As previously mentioned, when Defendants requested communications with employees or City Council Members of the City of Athens about the incidents and claims alleged in the lawsuit, Plaintiffs identified Plaintiff Whiting's conversations with McConkey, Defendant Sumner, and Defendant Trew, all of whom Plaintiff Whiting recorded. [Doc. 25-2 at 10]. The Court finds the Recordings highly relevant in this case. Accordingly, the Court will now turn to whether Plaintiffs must produce the Recordings.
Defendants have requested the Recordings in their discovery requests, and Plaintiffs have failed to produce them. Rule 34(a)(1) states that a party may serve a request for production of documents, electronically stored information, and tangible things that is in the responding party's possession, custody, or control. “The Sixth Circuit and other courts have held that documents are deemed to be within the ‘control’ of a party if it ‘has the legal right to obtain the documents on demand.’ ” Flagg v. City of Detroit, 252 F.R.D. 346, 353 (E.D. Mich. 2008) (quoting In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)). One court has stated that “control” means “the legal right or ability to obtain the documents from another source upon demand ...” Libertarian Party of Ohio v. Husted, No. 2:13-CV-953, 2014 WL 3928293, at *1 (S.D. Ohio Aug. 12, 2014) (quoting Mercy Catholic Medical Center v. Thompson, 380 F.3d 142, 160 (3d Cir. 2004)).
Some “[c]ourts have also ‘interpreted Rule 34 to require production if the party has the practical ability to obtain the documents from another, irrespective of his legal entitlement.” Id. (quoting In re NASDAQ Market–Makers Antitrust Litigation,169 F.R.D. 493, 530 (S.D.N.Y. 1996)). “The ability of a party to exercise control over property depends upon the relationship between the parties.” Maurer v. Jones, No. 518CV00003TBRLLK, 2019 WL 3890924, at *3 (W.D. Ky. Aug. 19, 2019). “Ownership does not serve as the determining factor.” Id. In New York ex rel. Boardman v. Nat'l R.R. Passenger Corp., the court articulated the following factors in determining whether a party is in possession of documents or items:
*4 (1) the use or purpose to which the materials were employed; (2) whether the materials were generated, acquired, or maintained with the party's assets; (3) whether the party actually generated, acquired, or maintained the materials' use, location, possession, or access; (4) who actually had access to and use of the materials; (5) the extent to which the materials serve the party's interests; (6) any formal or informal evidence of a transfer of ownership or title; (7) the ability of the party to the action to obtain the documents when it wants them; (8) whether and to what degree the nonparty will receive the benefits of any award in the case; and (9) the nonparty's connection to the transaction at issue.
233 F.R.D. 259, 268 (N.D. N.Y. 2006), (citing 7 Moore's Federal Practice §§ 34.14[2][b] & [c][2]).
The Court has considered the parties' positions, along with Plaintiff Whiting's testimony at the June 18 hearing, and the Court finds that Plaintiff Whiting has the practical ability and/or legal right to obtain the Recordings from his brother. First, Plaintiff Whiting acknowledges that he made the Recordings from his cell phone. He then saved the Recordings to three separate flash drives and mailed the Recordings to his brother for safekeeping. Although Plaintiff Whiting's brother physically possesses the Recordings, Plaintiff Whiting stated at the hearing that the Recordings were his (Plaintiff Whiting's) property. Accordingly, the Court ORDERS Plaintiff Whiting to produce the Recordings within (14) days of the instant Memorandum and Order. If the Recordings cannot be found after a diligent search, Plaintiff Whiting SHALL supplement his response to Defendants' discovery requests outlining in detail the efforts he took to locate the Recordings. With respect to Defendant Trew's June 22 deposition, the parties agreed during the June 18 hearing that the deposition needed to be postponed until July 7 or July 9 given defense counsel's inability to attend due to a family health matter. See also Fed. R. Civ. P. 26(d)(3)(B) (explaining that discovery by one party does not require any other party to delay its discovery unless the court orders otherwise) (emphasis added).
Further, during the hearing, Defendants requested that Plaintiffs provide the text message between McConkey and Plaintiff Whiting and the identities of several of the officials who are referenced in the Complaint but not identified. Plaintiffs stated that the text message was on Plaintiff Whiting's old cell phone that crashed, but counsel will confirm whether the text message can be retrieved. Plaintiffs also stated that they do not know the identities of some of the officials. Plaintiffs agreed, however, to provide supplemental responses to these discovery requests. The Court ORDERS Plaintiffs to supplement their responses within fourteen (14) days of the instant Memorandum and Order.
Defendants also requested that they be permitted to inspect Plaintiff Whiting's cell phone that crashed in order to determine whether the Recordings can be retrieved. Plaintiffs' counsel stated that he did not think Plaintiff Whiting would be opposed to such a request. Accordingly, if Plaintiff Whiting is unable to produce the Recordings, the parties SHALL meet and confer to discuss a forensic inspection of Plaintiff Whiting's old cell phone.
Finally, the Court has considered Defendants' request for attorney's fees. The Court declines to award fees at this time given that there was a genuine issue as to whether Plaintiff Whiting had control over the Recordings. See Fed. R. Civ. P. 37(a)(5)(A)(ii). Accordingly, Defendants' Motion to Compel [Doc. 25] is GRANTED IN PART AND DENIED IN PART.
B. Motion to Quash [Doc. 14]
*5 The Motion to Quash, filed by Randy Whiting, seeks to quash Defendants' subpoena (“Subpoena”), which requests, “Any audio and/or video provided by Glenn Whiting and/or containing footage of Glenn Whiting and any agents or employees of the City of Athens, Tennessee.” [Doc. 19-1]. Randy Whiting was directed to produce the requested material at a post office box in Tennessee by May 30, 2020. [Id.]. According to the Affidavit of Service [Doc. 23], Randy Whiting was served on May 26, 2020.
For grounds, Randy Whiting states that the Court lacks personal jurisdiction over him because he resides and works in Florida, Randy Whiting has not been served with the Subpoena,[3] and that even if he was served, he would not have sufficient time to comply. Further, Randy Whiting states that the Subpoena requires him to travel more than 100 miles. Defendants responded [Doc. 19] in opposition to the Motion.
As an initial matter, the Court notes that it has already compelled Plaintiff Whiting to produce the Recordings. See Fed. R. Civ. P. 26(b)(2) (noting that the court may on its own limit discovery if the discovery is duplicative). While Plaintiff Whiting's brother currently may have possession of the Recordings, Plaintiff Whiting has acknowledged that he retains control of them. Further, through forensic examination, the Recordings may be able to be retrieved from the cell phone, which is in the possession and control of Plaintiff Whiting. Therefore, the Court finds that the Recordings demanded in the subpoena can be efficiently provided by Plaintiff Whiting himself. In addition, the subpoena is procedurally deficient in light of it being served on Randy Whiting four days prior to production. See Fed. R. Civ. P. 45(d)(3)(A)(i) (subpoenas must give a reasonable time to comply).[4] Because the Court has determined that, at this time, the subpoena seeks duplicative information that can be provided by Plaintiff Whiting, and that the subpoena suffers from a procedural deficiency, the Court declines to address the remaining arguments raised in the Motion to Quash.[5]
IV. CONCLUSION
Accordingly, for the reasons stated above, the Court GRANTS Randy Whiting's Motion to Quash [Doc. 14] and GRANTS IN PART AND DENIES IN PART Defendants' Motion to Compel [Doc. 25].
IT IS SO ORDERED.
ENTER:

Footnotes

The Court notes that the informal discovery dispute conferences on May 21 and May 28 were primarily in relation to the recording taken by Plaintiff of Defendant Trew.
The Court entered an order on June 12, 2020, setting the hearing for June 18 and requiring that Plaintiff Whiting attend the hearing. [Doc. 26].
Randy Whiting filed the Motion to Quash on May 20, 2020 [Doc. 14], prior to service being made on May 26, 2020. See [Doc. 23].
Defendants state that they are agreeable to an extension by an additional ten (10) days, but it is not clear if they reissued the subpoena.
If Defendants reissue the subpoena, and the matter comes before the Court again, the parties should be prepared to address the “place of compliance” as stated in Rule 45(d)(3)(A)(i). See CCS, Inc. v. Herrington, 354 F. Supp. 2d 702, 709 (N.D. Tex. 2017) (finding that the district of compliance is determined by the location or place of compliance identified on the subpoena) and Rapp v. Brier & Thorn, Inc., No. 17-MC-3001, 2017 WL 2462823, at *3 (C.D. Ill. July 7, 2017) (concluding that the place of compliance depends on where the subpoenaed entity resides or works).