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Elwell v. First Baptist Church of Hammond Inc.

United States District Court, N.D. Indiana, Hammond Division

November 9, 2016

JOSEPH ELWELL, CRYSTAL ELWELL, DEBORAH BALDWIN, Individually and as custodian for her Minor children WM and AM, ROBERT BALDWIN, Plaintiffs,
v.
FIRST BAPTIST CHURCH OF HAMMOND, INDIANA, INC., Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich, United States Magistrate Judge.

         This matter is before the court on the Motion to Quash the Document Subpoena Issued to Attorney David Gibbs [DE 29] filed by the defendant, First Baptist Church of Hammond, Inc., on September 28, 2016. For the following reasons set forth below, the motion is DENIED.

         Background

         The plaintiffs, Joseph Elwell, Crystal Elwell, Deborah Baldwin, Individually and as custodian for her minor children WM and AM, and Robert Baldwin filed a complaint against the defendant, First Baptist Church of Hammond, Inc., on May 5, 2016. The complaint alleged fraud, constructive fraud and, in the alternative, negligent retention by the defendant. The plaintiffs' claims are based on the defendant's purported knowledge of the alleged conduct of non-parties, Thomas Kimmel and Jack Schaap, regarding an investment product developed and sold by Sure Line Acceptance Corporation.

         On September 14, 2016, plaintiffs' counsel served a subpoena on attorney David Gibbs, III. It is alleged that attorney Gibbs acted as the defendant's attorney previously by counseling and representing the defendant in various matters throughout the relevant time period. The subpoena requested the production of documents from attorney Gibbs relating to Thomas Kimmel, Faith Stewards, Inc., and Sure Line Acceptance Corporation. The subpoena included five requests:

1. Any and all documents, written or electronic, to or from you, your employees, agents, or persons acting on your behalf; Defendant First Baptist Church of Hammond, Indiana, Inc. (hereinafter "Defendant" or "First Baptist"); or Pastor Jack Schaap (hereinafter "Schapp") that were written or created after January 1, 2006, and that relate to Thomas TJ Kimmel (hereinafter "Kimmel"); Faithful Stewards, Inc.; or Sure Line Acceptance Corporation, including but not limited to any and all engagement letters, invoices, and correspondence.
2. Any and all documents that were written or created after January 1, 2006, whether written or electronic, that related to Faithful Stewards, Inc. or Sure Line Acceptance Corporation, including but not limited to any correspondence discussing the propriety of investing in Sure Line Acceptance Corporation's collateralized notes.
3. Any and all documents and other materials written or created after January 1, 2006, whether written or electronic, that relate to Kimmel's debt counseling classes and seminars, including but not limited to any video or audio records, surveys, teaching materials and correspondence, as well as any documents or materials distributed by Faithful Stewards, Inc.
4. Any and all documents written or created after January 1, 2006, whether written or electronic, that relate to Schaap's or Defendant's relationship with Sure Line Acceptance Corporation, including but not limited to payments from Kimmel and/or Sure Line Acceptance Corporation to Schaap and/or Defendant.
5. Any and all documents relating to complaints made to you by persons that invested money with Kimmel, Faithful Stewards, Schapp, or Sure Line Acceptance Corporation, including but not limited to your responses to these complaints.

         Plaintiffs' counsel contacted attorney Gibbs and informed him that the plaintiffs intended to serve him with a subpoena. Attorney Gibbs waived formal service of the subpoena and indicated to the plaintiffs that he would cooperate fully. Plaintiffs' counsel sent notice as required under Federal Rule of Civil Procedure 45(a)(4) to defendant's counsel.

         On September 27, 2016, the parties' counsels discussed via telephone that an attorney-client relationship existed between attorney Gibbs and the defendant. Also, defendant's counsel indicated a possibility that the documents that attorney Gibbs would produce responsive to the subpoena may be privileged. The defendant's counsel requested that the plaintiffs allow attorney Gibbs to produce the documents to defendant's counsel for review and redaction. After review, the redacted versions would be sent to the plaintiffs. The plaintiffs objected to the request based on their belief that none of the documents were privileged.

         On September 28, 2016, the defendant filed a Motion to Quash the Document Subpoena Issued to Attorney David Gibbs [DE 29]. The defendant has argued that the documents and/or correspondence may be attorney-client privileged and/or may include work product pertaining to the defendant. Pursuant to N.D. Ind. L.R. 37-1, the defendant filed a certification of good faith in ...


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