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Hunters Run Gun Club, LLC v. Baker

United States District Court, M.D. Louisiana

February 7, 2019




         Before the Court[1] is a Motion to Compel Production from Keith Morris and Bridgeview Gun Club, LLC (the “Motion”), [2] filed by Plaintiffs Hunters Run Gun Club, LLC (“Hunters Run”) and The Great International Land Company, LLC (collectively, “Plaintiffs”). The Motion is opposed[3] by Defendants Keith Morris (“Morris”) and Bridgeview Gun Club, LLC (“Bridgeview”) (collectively, “Defendants”). Plaintiffs have filed a reply.[4]

         On January 25, 2019, the parties participated in a telephone status conference with the undersigned to discuss the Motion. At that time, the parties advised that they had not resolved the issues raised in the Motion. During the conference, the parties presented arguments and the Court took the Motion under advisement.[5] For the reasons that follow, the Motion is GRANTED IN PART.

         I. Background

         This litigation involves allegations that Defendants conspired with the Law Enforcement District of the Parish of West Baton Rouge (the “LED”) by terminating the lease previously belonging to a Hunters Run affiliate for a shooting facility and gun club run by Hunter's Run and leasing the facility to Hunter's Run's competitor, Bridgeview, which is owned and controlled by Morris.[6] Plaintiffs specifically allege that the LED notified Hunter's Run that it would not renew its lease with Hunter's Run as operator of the gun club shortly after Hunter's Run terminated the employment of its former manager, Defendant Eddie Baker (“Baker”), in August 2016. About three months after Baker's termination, in November 2016, Plaintiffs contend that the LED, a public entity, tried to lease the gun club to Morris, notwithstanding that Morris did not submit the highest bid to the LED for the lease. Plaintiffs successfully obtained injunctive relief against the LED in state court for the LED's failure to comply with Louisiana's bid law. Thereafter, the LED published a bid request, which resulted in lease of the gun club to Bridgeview. Plaintiffs allege that this conspiracy between Morris, Baker, Bridgeview and the LED resulted in damages to Plaintiffs.[7]

         Plaintiffs' Motion

         In the course of discovery, Plaintiffs sought to obtain information in support of their conspiracy claims from Morris and Baker, including text messages and other communications between Morris and Baker “regarding any matter asserted in this litigation.”[8] Plaintiffs served Baker with discovery requests, [9] but served a subpoena duces tecum (“subpoena”) with an attached list of requests for production on Morris.[10] The request at issue in the Motion states: “3. Please produce any and all correspondence, including but not limited to emails, text messages, facsimiles, voice mail message, and other communications, including correspondence referencing communications, by and/or between you and Eddie Baker from January 2015 through present, regarding any matter asserted in the instant litigation….)”[11]

         Defendants denied having possession of any responsive documents.[12] However, Plaintiffs received Baker's AT&T cell phone records from January 2016 to February 2017, [13] during the period of time encompassing Baker's termination through the LED's award of the lease to Bridgeview. Plaintiffs aver that these records, which identify participants to phone calls[14] and text messages and the dates and times thereof but do not disclose the substance of text messages, show that Baker and Morris communicated immediately after Baker's termination. Plaintiffs contend that the records show that Baker also communicated with James Edgmon (“Edgmon”), the owner of R&R Trap Sales, a gun equipment vendor, just after Baker's termination, which is significant because Morris ordered equipment from Edgmon after the first LED lease was awarded to Bridgeview in December 2016. Plaintiffs further contend that the records show that Baker communicated with Morris and Edgmon earlier in 2016 while Baker was still employed by Plaintiffs.[15] Thus, Plaintiffs contend that these phone records (and deposition testimony) establish that Defendants have responsive text messages that have not been produced.[16]

         On September 18, 2018, Plaintiffs filed the instant Motion, seeking to compel Defendants to produce the referenced communications because the information sought is relevant and supports Plaintiffs' conspiracy theory. Plaintiffs aver that they addressed Defendants' failure to produce with Defense counsel, but Plaintiffs have not received a substantive response from Defendants. Further, Plaintiffs contend that they suggested that Morris could authorize AT&T to release the contents of his text messages to Plaintiffs, rather than produce them himself. However, Morris has refused to provide the authorization.[17] Plaintiffs argue that Morris' refusal to authorize the release shows that the requested information is damaging to Morris' case.[18] Plaintiffs seek an order compelling Defendants to produce all responsive communications, including but not limited to the text messages shown on the AT&T records received by Plaintiffs, or in the alternative, compelling Defendants to produce them to the Court for an in camera review of their discoverability.[19]

         Defendants' Opposition

         Defendants aver that they have communicated to Plaintiffs, on multiple occasions and in their discovery responses, [20] that they are not in possession of the requested information.[21]Defendants contend that Bridgeview does not own or maintain a cell phone and therefore cannot produce any records. With respect to Morris, Defendants contend that Morris disclosed to Plaintiffs that: Morris initially had service through AT&T until the August 2016 flood that occurred in East Baton Rouge Parish, Louisiana; since the flood, Morris has had service through Verizon; and, Morris no longer has the pre-flood phone or Verizon or AT&T billing records. Morris contends that he does not oppose Plaintiffs' subpoena to AT&T for the records, and Plaintiffs have not subpoenaed Verizon for records.[22]

         Defendants aver that Plaintiffs have no basis to accuse Morris of withholding information originating from Baker, when two digital forensic analysts retained by Plaintiffs analyzed Baker's personal computer and the Hunter's Run computers to which Baker had access at the time of his employment and failed to find anything of interest and/or worthy enough to be presented in an expert report.[23] Defendants contend that they have devoted a substantial amount of time to responding to Plaintiffs' lengthy discovery requests and have fully responded that they are not in possession of the information requested.[24]

         Plaintiffs' Reply

         Plaintiffs argue that even though Morris no longer has the AT&T phone and did not retain the records, he still has the ability to obtain the records, because, as set forth in this Court's Southern Filter Media, LLC v. Halter[25] decision, “[d]ocuments are under the control of a party if the party ‘has the legal right to obtain the documents on demand or has the practical ability to obtain the documents from a non-party to the action.'”[26] Thus, according to Plaintiffs, Morris has control over his cell phone records, including the contents of the text messages, for the purposes of production under Fed.R.Civ.P. 34(a) since he can request that his service providers give him a copy of the records or produce the records to Plaintiffs.

         Plaintiffs assert that there is additional evidence to show that Defendants have improperly withheld the requested information, in the form of a supplemental document production Plaintiffs received from the LED's counsel Christopher Whittington (“Whittington”) on October 15, 2018.[27]Whittington initially listed two documents (among others) on his privilege log in lieu of production, but ultimately withdrew the assertion of privilege as to two of the documents and produced them to Plaintiffs following the filing of Plaintiffs' Motion to Compel Production from Whittington.[28] Plaintiffs aver that one of the documents contains “detailed technical discussions regarding the equipment and plans for operating the gun club [that] must have taken place between Eddie Baker and Morris in order for Morris' counsel or Morris (or Baker) to prepare [it]”[29] and that both of the documents concern “negotiations between the LED and Keith Morris regarding the terms of the lease over a month before the bid process was even begun.”[30] Moreover and importantly, according to Plaintiffs, those two documents are still on the privilege log submitted by Matthew Green (“Green”), counsel for Defendants, in Green's responses to Plaintiffs' subpoena to Green.[31] Plaintiffs argue that Green's objection to production of those documents, which is based on privilege pursuant to La. Code of Evidence art. 408, [32] is inapplicable because this matter, and the two documents, are all unrelated to any potential settlement between the LED and Morris.[33] Thus, Plaintiffs argue that Defendants have wrongly withheld production of these documents because they do not have a valid claim of privilege.

         January 25, 2019 Telephone Conference

         During the parties' January 25, 2019 telephone conference with the Court, the parties presented argument as to whether, under Fed.R.Civ.P. 34, Morris has possession, custody, or control of the cell phone records containing the contents of the text messages. Plaintiffs argued that, per Southern Filter Media, the text message records are in Morris' control because he has the right to obtain them, but he refuses to give his consent. Morris argued that Plaintiffs have obtained the records they sought from AT&T and Morris has no other responsive information in his control. Morris further argued that Southern Filter Media does not support Plaintiffs' position, and Morris is not aware of any cases that obligate him to either give his consent to release the records or to obtain the records from his provider(s).

         II. Law and Analysis

         A. Legal Standards and the Scope of the Motion

         Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense[34] 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.[35] The Court must additionally limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).”[36]

         Further, Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents and tangible things:

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things…(emphasis added)

“Once a party moving to compel discovery establishes that the materials and information it seeks are relevant or will lead to the discovery of admissible evidence, the burden rests upon the party resisting discovery to substantiate its objections.”[37] “A party objecting to discovery ‘must state with specificity the objection and how it relates to the particular request being opposed, and not merely that it is ‘overly broad and burdensome' or ‘oppressive' or ‘vexatious' or ‘not reasonably calculated to lead to the discovery of admissible evidence.'”[38]

         The Court finds that Fed.R.Civ.P. 34 is applicable to Plaintiffs' claims herein, as the parties' arguments on the Motion, in brief and during the conference, were specifically premised upon the applicability of Fed.R.Civ.P. 34, and because Plaintiffs seek production of information from Morris, who was named Defendant in Plaintiff's First Amended Complaint about ten months ago.[39]

         Regarding the scope of the Motion, the Court has already granted Plaintiffs' Motion to Compel Production from Green and ordered Green to produce the documents responsive to Plaintiffs' subpoena previously withheld based on privilege.[40] Therefore, to the extent the instant Motion raises production of those documents in Plaintiffs' Reply brief, [41] that request is now moot. Plaintiffs otherwise seek production of the contents of text messages exchanged between Morris and Baker from January 1, 2015 through August 31, 2017, regarding “any matter asserted in the instant litigation, ”[42] in order to support their conspiracy claims. The Court notes that Plaintiffs do not provide evidence of any other responsive information that is allegedly being withheld, and Plaintiffs' arguments are focused on the contents of text messages. Therefore, the Court considers the issue presented by the Motion to be limited a request for an order compelling production of Morris' cell phone records as described above.

         B. The Requested Records are Responsive and Relevant

         Plaintiffs argue that the requested text messages are responsive to Plaintiffs' request for production to Morris, [43] and are relevant to Plaintiffs' conspiracy claims, particularly considering the timing of the texts and the participants thereto. Defendants offer no argument to the effect that the requested text messages are not responsive to Plaintiffs' document request or that they are irrelevant to Plaintiffs' claims herein. The Court finds that the contents of the text messages are responsive and relevant. First, they are within the scope of Plaintiffs' document request, as they constitute “…text messages…by and/or between [Morris] and Eddie Baker from January 2015 through present, regarding any matter asserted in the instant litigation….”[44] Second, a discovery request is relevant when the request “seek[s] admissible evidence or ‘is reasonably calculated to lead to the discovery of admissible evidence.'”[45] Considering the participants to, and the timing of, these text messages, the Court finds that they could have bearing on Plaintiffs' claims herein, which is that Baker, Morris, and Bridgeview all allegedly conspired with the LED, during and after Baker's termination, to damage Plaintiffs' business and have Plaintiffs' lease canceled by the LED so that the lease could be awarded to Defendants.[46]

         C. The Requested Information is Within the Control of Morris

         Plaintiffs contend that, per Southern Filter Media, LLC v. Halter, the requested text messages are within Morris' control because he has the ability to request that they be produced to him or be released to Plaintiffs by signing the release of the records required by his service provider(s).[47] However, Morris contends that, while he has not opposed Plaintiffs' subpoena to AT&T, he has no obligation to execute a release, and the records are not in his “possession, custody, or control” as contemplated by Fed.R.Civ.P. 34.

         The Court finds that Southern Filter Media is not controlling because it is factually distinguishable. In that case, the defendant requesting the documents sought to compel the plaintiff (SFM) to obtain information from two other non-party companies (Sun Minerals and Kinder Sand) that had the same management and ownership as the plaintiff. The Court granted the plaintiff's motion for a protective order on the basis that the defendant failed to show that the three companies were sibling companies, that they shared a parent company, that the plaintiff had any ownership interest in the other companies, that the companies exchanged any documents in the course of business, or that the plaintiff had any control over documents solely in the possession of the other two companies. Further, it was not enough that the three companies shared the same four owners because the owners were not parties to the case.[48] In contrast, this case does not involve a request to a party-company to produce records in the possession of a related non-party company under common ownership. Rather, Plaintiffs herein seek to compel Morris to execute a release so that they can obtain records of his text messages from his cell phone service providers and/or to compel Morris to obtain the records himself and produce them to Plaintiffs.

         The Court's research reveals several cases on point, none of which were cited by the parties. It is clear that the courts in this circuit (and nationwide) have different views on whether they are empowered under Fed.R.Civ.P. 34(a) to order a party to sign an authorization or release that permits the requesting party to obtain documents such as cell phone records from non-parties. Vasquez v. Conquest Completion Services, LLC, [49] is factually similar in that it involves a request for a release of cell phone records and cogently addresses the circuit split.[50] In Vasquez, the plaintiff claimed that the accident in which the plaintiff was injured may have been caused by the negligence of the defendant in using his cell phone. The Vasquez plaintiff thus sought an order compelling the driver defendant to execute an authorization to release his cell phone records upon his refusal to execute one.[51] After finding that the cell phone records were relevant to the plaintiff's claims, [52] the Vasquez court recognized that some courts in this circuit have held that they are not empowered by the Federal Rules of Civil Procedure to compel parties to sign authorizations so that the requesting party can obtain documents from a non-party. See, e.g., Cheshire v. Air Methods Corp, (denying request for order compelling execution of a release for employment records and noting that other courts have held that Fed.R.Civ.P. 34 itself does not give courts the power to order a party to sign a release.)[53]

         The Vasquez court also noted, however, that other courts in this Circuit have reached the opposite conclusion. See Mir v. L-3 Communications Integrated Systems, L.P., [54] (ordering execution of a release of Social Security records on the basis that Fed.R.Civ.P. 34 and 37 empower the court to compel parties to sign written releases or authorization forms consenting to the production of various documents, and holding):

The Court agrees with other courts' observations that a party can seek documents such as Social Security or health records directly from a non-party custodian through a Rule 45(a) subpoena-in response to which the non-party may or may not refuse to release records without the written authorization of the individual to whom such records pertain-and that a party can, using Rule 34(a), request the records directly from the other party and thereby require that party to collect them from non-party ...

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