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Carusone v. Kane

United States District Court, M.D. Pennsylvania

October 22, 2019




         Before the court is the letter/ motion to compel filed by Plaintiffs Christopher Carusone and Glenn Parno (“Plaintiffs”). For the reasons outlined below, the court shall grant the motion.

         I. Background

         This is a civil dispute arising from the former Pennsylvania Attorney General, Kathleen Kane (“Kane”), allegedly publishing evidence she discovered during an investigation in politically-targeted and self-serving ways. Following the court's previous order on Plaintiffs' first subpoena, Plaintiffs submitted two additional subpoenas that the Pennsylvania Office of Attorney General (“OAG”) has refused, in part, to comply with. The second subpoena includes, inter alia, seven requests for information previously approved by the court, but including new OAG employees and custodians whose email inboxes need be searched to comply with the subpoena.[1] In its third subpoena, Plaintiffs also requested access to Kane's Blackberry cell phone.

         In their motion, Plaintiffs: (1) provide several pieces of evidence supporting their requests for the custodians at issue; (2) argue OAG has waived all objections to the third subpoena by failing to respond with timely objections; and (3) request forensic access to Kane's Blackberry.[2] In response (“Resp.”), OAG objects that the requests are not proportional to the needs of the case because: (1) the additional custodians lack much of the requested information; (2) searching the additional inboxes would be unduly burdensome; and (3) OAG has already tried to access Kane's Blackberry and failed. OAG also alleges Plaintiffs were deficient in their obligations to confer. On reply (“Reply”), Plaintiffs point out OAG has submitted no evidence in support of its response and argue they conferred a significant amount regarding the discovery issues in this case. Having been fully briefed, the issue is now ripe for the court to resolve.

         II. Discussion

         Under amended Federal Rule of Civil Procedure 26(b)(1), parties are generally allowed to seek discovery regarding relevant information as long as the request is “proportional to the needs of the case.” In conducting a proportionality analysis, the court should begin by examining the significance of the controversy at issue, the parties' resources and access to information, and whether the burden or expense of complying with the discovery outweighs its benefit. Id. Here, the controversy at issue is significant to the public-as it concerns potential public corruption and abuse of authority[3]-and potentially involves a significant amount in controversy. And OAG is a “government entity with significant resources at its disposal.” Consumer Fin. Prot. Bureau v. Navient Corp., No. 3:17-CV-101, 2018 WL 2088760, at *2 (M.D. Pa. May 4, 2018). Thus, the court here “is not inclined to sustain a proportionality objection without a showing that the sought after material is unimportant to the issues in this case and the burden or expense of producing such material is excessive in comparison to the size of this litigation.” Id. The court begins by analyzing OAG's relevance objections.

         OAG claims that much of the information sought is not relevant because the additional custodians were not materially involved in the transmission of the emails at issue and did not aid in the political targeting of Plaintiffs. There are two problems with this objection. First, OAG makes several factual claims without presenting any evidence supporting them. Second, these factual claims are interwoven with Defendant Kathleen Kane's substantive defense. The entire purpose of discovery is to afford the opposing party the opportunity to support their claim or defense by reviewing evidence in another party's possession. The court would therefore be remiss to deny Plaintiffs the opportunity to conduct discovery simply on the basis that OAG has put forward a persuasive explanation of its substantive defense. Moreover, the evidence presented by Plaintiffs creates at least a prima facie impression that the additional custodians were selected because Plaintiffs have a good-faith basis for believing they possess information that could yield relevant material. Therefore, OAG must satisfy a high bar in its undue burden objection for the motion to be denied. The court now begins examining OAG's burden in complying with the subpoenas.

         In Ehrlich v. Union Pacific Railroad Company, the United States District Court for the District of Kansas issued a well-analyzed opinion laying out the proper method for analyzing an unduly burdensome objection:

A party asserting an unduly burdensome objection to a discovery request has the burden to show facts justifying its objection by demonstrating that the time or expense involved in responding to requested discovery is unduly burdensome. Additionally, the objecting party must show not only undue burden or expense, but that the burden or expense is unreasonable in light of the benefits to be secured from the discovery. This imposes an obligation to provide sufficient detail in terms of time, money and procedure required to produce the requested documents. Any objections that discovery is unduly burdensome must contain a factual basis for the claim, and the objecting party must usually provide an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request.

302 F.R.D. 620, 625-26 (D. Kan. 2014) (internal quotations and brackets omitted). As such, absent evidence, a party cannot defeat a motion to compel enforcement of a subpoena on the basis that the subpoena imposes an undue burden on the party. See, e.g., Thompson v. Glenmede Trust Co., No. CIV. A. 92-5233, 1993 WL 497952, at *1 (E.D. Pa. Dec. 1, 1993) (“[D]efendants offer no evidence to support their bald assertions that complying with the plaintiffs' requests will be unduly burdensome. Accordingly, the Court grants the plaintiffs' motion with respect to requests nos. 1 through 10.”); N.L.R.B. v. Vista Del Sol Health Servs., Inc., 40 F.Supp.3d 1238, 1265 (C.D. Cal. 2014) (holding non-movant's “arguments in briefs [we]re not competent evidence” and therefore could not serve as the evidentiary basis for an unduly burdensome objection to a subpoena).

         Here, OAG raises two unduly burdensome objections: (1) reviewing the additional email inboxes would be generally arduous; and (2) getting access to Kathleen Kane's Blackberry is proving difficult. In support of these objections, OAG claims it attached a document to its letter outlining the burden it suffered complying with the first subpoena. It appears, however, that OAG did not actually attach any documents to its letter brief to the court. Plaintiffs point out the lack of evidence in their reply brief.

         The court is also reluctant to grant OAG an opportunity to fix this apparent error because its description of the document does not appear sufficient to satisfy its burden. OAG's description of this document suggests it does not contain information regarding what its burden would be if it was forced to comply with the second and third subpoenas in their entirety-it only explains how complying with the first subpoena, which requested many more documents, was cumbersome. The document would not provide the court with guidance as to how many emails OAG will be compelled to review, how much time it would take, and how much this would cost OAG. It also is irrelevant to OAG's complaint regarding its difficulty accessing Kathleen Kane's Blackberry. As such, the court finds no factual basis for OAG's unduly burdensome objections. The court thus overrules them.[4]

         Finally, Plaintiffs have requested the court grant them access to the Blackberry so they can forensically examine it. OAG did not respond to this proposal. This appears to be a reasonable solution to the problem, alleviating OAG's unduly burdensome objection and permitting Plaintiffs the opportunity to try ...

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