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Whitlow v. Martin

June 12, 2008

STEVE WHITLOW, ET AL., PLAINTIFFS,
v.
TIMOTHY MARTIN, MICHAEL R. STOUT, AND SCOTT DOUBET, DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

OPINION

This matter comes before the Court on Plaintiffs' Fourth Motion to Compel Compliance with Subpoena Issued to Office of the Governor (d/e 158). Plaintiffs are former employees of the Illinois Department of Transportation (IDOT). Defendants are IDOT officials. Plaintiffs allege that Defendants terminated Plaintiffs' employment as part of a state-wide scheme with the Office of Illinois Governor Rod Blagojevich to terminate employees who were perceived to be political opponents of the Blagojevich administration and to create patronage employment opportunities for supporters of the new administration. As a part of discovery, Plaintiffs served the Office of the Governor with a third-party subpoena in April 2006 and a revised third-party subpoena in August 2007. In the Fourth Motion to Compel, Plaintiffs seek an order compelling full compliance with the subpoenas and, additionally, ask that the Court set the matter for hearing on the question of sanctions. As set forth below, the Fourth Motion to Compel is allowed, in part, and denied, in part. Plaintiffs' request for a hearing on the issue of sanctions is denied.

The status of the Governor's Office's compliance with the instant subpoenas has been a recurring issue before this Court. Because the remaining contested issues relate to the requests in the revised subpoena, the Court focuses its attention on the facts surrounding it. During a telephone conference on August 9, 2007, the undersigned directed Plaintiffs to re-serve the subpoenas on the Governor's Office by August 17, 2007. Minute Entry, dated August 9, 2007. The Court ordered the Governor's Office to respond to the subpoenas by September 17, 2007, although that date was later extended to October 1, 2007. Text Order, dated September 18, 2007. On October 1, 2007, Counsel for the Governor's Office filed a motion for extension of time to file a reply to the Plaintiffs' Third Motion to Compel (d/e 99). Motion for Extension of Time (d/e 112). The motion for an extension did not seek to extend the Court- ordered date for response to the subpoena, although it did note that only "some documents" had been produced in response to the subpoena. The Court allowed the request for an extension until October 10, 2007. Minute Entry, dated October 2, 2007.

On October 10, 2007, the Governor's Office filed a response to the Third Motion to Compel. Response to Motion to Compel (d/e 117). According to the Governor's Office, Plaintiffs' counsel Carl Draper e-mailed to Assistant Attorney General Corrigan a revised subpoena on or about August 21, 2007, but Draper "did not forward this revised subpoena" to the Office of the Governor until September 17, 2007. Id., p. 1-2. The Court notes that Attorney Corrigan had appeared in the case on behalf of the Governor's Office prior to August 2007. See, e.g., Motion for Extension of Time (d/e 86). In an October 10, 2007 filing, the Governor's Office indicated that it intended "to appropriately object to the revised subpoena in short order." Response to Motion to Compel (d/e 117), p. 1, n.1.

The Court set the Third Motion to Compel for evidentiary hearing on November 13, 2007. Notice of Hearing, dated October 25, 2007. The Court noted that Plaintiffs carried the burden of persuasion and directed Plaintiffs to meet and confer with a representative of the Governor's Office well before the hearing to attempt to resolve the outstanding issues. Id. On November 5 and 6, 2007, attorneys Haarlow and Marinello entered appearances on behalf of the Governor's Office and sought to continue the evidentiary hearing. In a November 8, 2007 telephone conference, the Court cancelled the November 13th hearing and established various deadlines for disclosures by the Governor's Office. Minute Entry, dated November 8, 2007. On November 19, 2007, the Governor's Office served Plaintiffs with a document titled Non-Party Office of the Governor of the State of Illinois' Revised Responses and Objection to the "Revised" Subpoena for Production of Documents, as an exhibit to a Court-ordered status report. The Office of the Governor of the State of Illinois' Additional Status Report on Production of Documents (d/e 133), Attachment 3. The Court set an evidentiary hearing for the Third Motion to Compel on December 11, 2007, again noting that Plaintiffs carried the burden of persuasion on the motion. Notice of Hearing, dated November 26, 2007.

Following the December 11, 2007 hearing, Plaintiffs' counsel and counsel for the Governor's Office were directed, among other things, to meet and confer regarding the status of compliance on each component part of the subpoena; Attorney Draper was directed to identify any types of documents that he believes may be responsive that had not been disclosed; and the parties were directed to meet with the technician who performed the electronic searches to discuss the process employed. At the hearing, a question was raised as to whether the Court believed that the scope of the instant subpoenas properly extended to information relating to state agencies other than IDOT. The parties were directed to meet and confer regarding any type of progressive discovery system that could be put into place to allow discovery to extend to documents relating to State agencies other than IDOT. Counsel for the Governor's Office stated that the information that was being produced was limited to IDOT and general employment policies of the Governor's Office. The Court directed that status reports be filed on these issues by January 11, 2008. Minute Entry, dated December 11, 2007.

Counsel for Plaintiffs and the Governor's Office filed a Joint Status Report on Production of Documents (d/e 146) on January 11, 2008. The parties represented that the following tasks were complete: tender by Governor's Office of five boxes of documents (redacted) with electronic copy; tender by Governor's Office of any remaining documents responsive to the subpoenas, subject to objections; and conference call with technology representative concerning process employed in searching P Drives. The joint status report further stated that Plaintiffs' counsel had begun identifying documents or categories of documents that might be missing from production. Finally, the parties informed the Court that they had begun negotiations regarding the status of compliance and any progressive discovery system that could be put into place to allow discovery to extend to agencies beyond IDOT. The parties recommended that the Court order a supplemental status report by February 8, 2008, which the Court did. See Text Order, dated January 14, 2008.

Counsel for Plaintiffs and the Governor's Office filed a Joint Status Report Concerning Subpoena (d/e 155) on February 8, 2008. The parties represented that discussions continued as to the following: (1) documents relating to employment decisions at agencies other than IDOT, including the significant majority of documents in the five boxes that had only the word "REDACTED" on them; (2) computer spreadsheets bearing a title "recommended candidates that were hired" or "recommended candidates;" and (3) network data files. The parties informed the Court that their discussions had been productive and that neither side believed that it was necessary for the Court to continue monitoring the efforts.

Plaintiffs filed the instant Motion to Compel in April 2008. Counsel for the Governor's Office asserts that Plaintiffs filed the motion in violation of their representations in the February 8th status report and the meet and confer obligations of Fed. R. Civ. P. 37. To the extent meet and confer obligations extend to a motion to compel arising out of a non-party's alleged failure to comply with a Rule 45 subpoena, the Court finds that Plaintiffs have engaged in a good faith effort to secure compliance without court action. The Fourth Motion to Compel certifies that Plaintiffs have exhausted all reasonable efforts to resolve the issues without court action and details discussions and correspondence between the parties following the December 11, 2007 hearing. The Court is keenly aware of the history of the instant subpoenas, and the record evidence supports a finding that the meet and confer requirement has been met. Thus, the Court turns its attention first to the applicable legal standards and then to the individual unresolved subpoena issues identified in the Fourth Motion to Compel.

Standard for Motion to Compel

The Court has broad discretion when reviewing a discovery dispute and "should independently determine the proper course of discovery based upon the arguments of the parties." Gile v. United Airlines Inc., 95 F.3d 492, 496 (7th Cir. 1996). Unless limited by court order, the scope of discovery extends to "any non-privileged matter that is relevant to any party's claim or defense . . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The Court is cognizant that the Governor's Office is not a party to the underlying litigation. Discovery in the hands of a non-party is subject to discovery under the Federal Rules. See Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 45; Seattle Times Co. v. Rhinehart, 467 U.S. 20, 25 (1984). The scope of discovery under Rule 26 governs the proper scope of requests under Rule 45. The rules, however, protect individuals subject to subpoenas from undue burden or expense. Fed. R. Civ. P. 45(c)(1); see also Guy Chemical Co., Inc. v. Romaco AG, 243 F.R.D. 310, 313 (N.D. Ind. 2007). Non-party status is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue. United States v. Amerigroup Ill., Inc., 2005 WL 3111972 at *4 (N. D. Ill. Oct. 21, 2005). To determine whether a Rule 45 subpoena is unduly burdensome, a court may weigh a number of factors including "relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are requested, and the burden imposed." Morrow v. Air Ride Technologies, Inc., 2006 WL 559288 at *2 (S.D. Ind. Mar. 6, 2006).

Rule 45(c)(2)(B) permits an individual who is subject to a subpoena to object to production. The burden then shifts to the party who seeks the documents to move for an order compelling production. Fed. R. Civ. P. 45(c)(2)(B)(I); Price v. Scruggs, 2007 WL 2471860 at *1 (S.D. Ill. Aug. 30, 2007). As the Court has previously noted, Plaintiffs bear the burden of persuasion on their motion to compel. Because the subpoenas provide the only basis for requiring disclosure by the Governor's Office, the Court limits its analysis to information requested in the subpoenas.

At the outset, Plaintiffs assert that the objections served by the Governor's Office on November 19, 2007 are untimely and, thus, waived. Under Fed. R. Civ. P. 45(c)(2)(B), objections "must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served." Plaintiffs, however, fail to identify record evidence to support a finding that these objections were untimely and fail to establish the date on which the August 2007 revised subpoena was actually served in compliance with Rule 45(b)(1). Thus, the Court will address the parties' arguments on the merits.

Counsel for Plaintiffs and the Governor's Office dispute the scope of relevance in the instant case, a threshold issue in the Court's analysis of the motion to compel. The Governor's Office has consistently insisted that the scope of discovery should be limited to information relating to the reorganization of IDOT, while Plaintiffs seek information relating to employment at all state agencies. The Court addressed this issue in ruling on the Plaintiffs' Motion to Compel Testimony of Mary Lee Leahy. Opinion (d/e 97), dated October 20, 2006. Based on Plaintiffs' allegations that Defendants participated in an illegal, state-wide scheme to fire supporters of the prior Republican administration, the Court allowed Plaintiffs to inquire into Ms. Leahy's dealings with all state agencies and declined Defendants' request to limit the scope of her deposition to IDOT. The same reasoning applies to the scope of the instant subpoenas. Information held by the Governor's Office relating to employment ...


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