Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Whitlow v. Martin

October 15, 2009

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 Objections to Subpoena for Production of Documents (d/e 254) filed by non-party Gary Hannig, the current Secretary for the Illinois Department of Transportation (IDOT). Plaintiffs are former IDOT employees. Defendants are IDOT officials. Plaintiffs allege that Defendants terminated Plaintiffs' employment as part of a state-wide scheme with the Office of former 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 Blagojevich's political supporters. As part of discovery, Plaintiffs served Hannig with a Subpoena to Produce Documents in a Civil Action with a return date of August 18, 2009. See Respondent Gary Hannig's Reply to Plaintiffs' Response to Objections to subpoena for Production of Documents (d/e 259), Ex. 2, Subpoena. Hannig then filed the pending Objections. As set forth below, Hannig's Objections are sustained, in part, and overruled, in part.

Background

Plaintiffs' Complaint (d/e 1) alleges that a common scheme existed among Defendants, Governor Blagojevich, and other staff of the Office of the Governor to terminate the employment of State employees perceived to be political opponents of the Blagojevich administration and to create employment opportunities for Blagojevich's political supporters. Complaint, ¶ 18. Plaintiffs assert that their employment was terminated in furtherance of this scheme under the pretense of an agency material reorganization. Id., ¶ 19.

The Subpoena at issue here seeks "[a]ll documents relating to the name, job description, job number, salary and sponsor (if any) of all new employees, including part-time employees, added to the IDOT payroll" in specific months from September 2003 through September 2004. Subpoena, p. 4-5. Additionally, it seeks documents relating to any salary increase or promotion given to any previously-identified new employee through September 1, 2005, including the date of salary increase and promotion. Id., p. 5. Finally, Plaintiffs request "[d]ocuments relating to the name, description of services rendered, and payments due pursuant to contract for all contractual employees and personal services contract [sic] issued by IDOT for each month" from September 2003 through September 2004. Id.

After Plaintiffs served Hannig with the Subpoena, Attorney Stephen Kaufmann entered his appearance on behalf of Hannig and filed the Objections, which challenge all of the Subpoena requests. Kaufmann is also attorney of record for Defendants. In a text order, dated August 19, 2009, this Court directed Plaintiffs to respond to the Objections and to also address the issue of Attorney Kaufmann's representation of the Defendants and Hannig. Plaintiffs filed their Response to Objections to Subpoena for Production of Documents (d/e 256) (Response), and Hannig filed a court-ordered Reply to Plaintiffs' Response to Objections to Subpoena for Production of Documents (d/e 259) (Reply). Hannig has also filed two corrected exhibits to his Reply, which the Court will consider, as well as a court-allowed supplement. Notice of Filing Corrected Affidavit for Mark Kinkade re 259 Reply (d/e 260); Notice of Filing of Executed Affidavit of Ken Martin re 259 Reply (d/e 262); Motion to Supplement Hannig's Reply to Plaintiffs' Response to Objections to Subpoena (d/e 263), Attachment 1 & Exs. A & B. The matter is fully briefed and ripe for determination.

Analysis

A. Multiple Representation

After Attorney Kaufmann entered his appearance on behalf of Hannig, the Court sua sponte requested briefing on the issue of the propriety of Attorney Kaufmann's representation of the Defendants and third-party Hannig.*fn1 The briefing has been completed and the Court is satisfied that the multiple representation is not improper. The record contains nothing to indicate that any actual conflict exists relating to Kaufmann's simultaneous representation of Hannig and the Defendants. Additionally, Kaufmann has presented the Court with signed waivers from Martin, Stout, Doubet, and Hannig, which demonstrate that Kaufmann has advised his clients of the multiple representation. Reply, Attachment 1. Each man has waived any potential conflict of interest. Id.

B. Hannig's Objections

A party has a general right to subpoena any person to appear at a deposition or to produce documents for inspection and copying. Fed. R. Civ. P. 45. This right is not limitless, however. First, courts have recognized an implicit requirement that a subpoena seek relevant information. See, e.g., Borom v. Town of Merrillville, 2009 WL 1617085, at *1 (N.D. Ind. June 08, 2009). Furthermore, Fed. R. Civ. P. 45(c) provides several express protections for individuals subject to subpoena. Under Fed. R. Civ. P. 45(c)(3)(A)(I) and (iv), upon timely motion, the issuing Court must quash or modify a subpoena that "fails to allow a reasonable time to comply" or "subjects a person to undue burden." 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). With these principles in mind, the Court turns its attention to Hannig's Objections.

1. Timeliness of the Subpoena

In his Reply, Hannig argues that the Subpoena was untimely under the applicable scheduling orders in the instant case. In an Opinion (d/e 201), dated October 28, 2008, this Court extended fact discovery to December 29, 2008, but prohibited Plaintiffs from propounding new written discovery during this period without leave of Court. See id., p. 5. Hannig argues that the Court never subsequently lifted this restriction and, thus, only limited discovery was on-going after October 28, 2008. According to Hannig, the Subpoena, issued without leave of Court, is, therefore, untimely. Hannig, however, failed to raise this argument in his Objections; he raised it for the first time in his Reply, which was filed September 11, 2009. Under Fed. R. Civ. P. 45(c)(2)(B), objections "must be served before ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.