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Castelino v. Rose-Hulman Institute of Technology

United States District Court, S.D. Indiana, Terre Haute Division

August 6, 2018

JUSTIN CASTELINO, Plaintiff,
v.
ROSE-HULMAN INSTITUTE OF TECHNOLOGY, Defendant.

          BRETT ERROL OSBORNE, HOCKER & ASSOCIATES LLC, HOLLY A REEDY, WILKINSON GOELLER MODESITT WILKINSON & DRUMMY, JOHN THRASHER, J.D.

          ORDER ON PLAINTIFF'S COUNSEL'S MOTION TO QUASH SUBPOENA DIRECTED AT KEVIN DORN [DKT. 263], PLAINTIFF'S MOTION TO ACCEPT REDACTED EXHIBITS AS TIMELY FILED [DKT. 265], AND ROSE-HULMAN'S MOTION TO AMEND [DKT. 274].

          MARK J. DINSMORE, UNITED STATES MAGISTRATE JUDGE

         This cause is before the Court on Plaintiff's Motion to Quash Subpoena Directed at Kevin Dorn [Dkt. 263], Plaintiff's Motion to Accept Redacted Exhibits as Timely Filed [Dkt. 265], and Rose-Hulman's Motion to Amend [Dkt. 274]. The Court addresses each motion in turn.

         Motion to Quash

         Plaintiff's counsel, John Thrasher, moves pursuant to Fed.R.Civ.P. 45(d)(3) to quash the subpoena directed at Kevin Dorn. The subpoena commanded Dorn to produce the following at his deposition on March 5, 2018:

1. A copy of each and every communication between yourself and John Thrasher, Justin Castelino, Marita (Tammy) Castelino, and/or any other individual acting on behalf of Justin Castelino. This request includes but is not limited to text messages, emails, Facebook messages, other social media communications, letters, or any other form of communication.
2. A copy of each and every document exchanged between yourself and John Thrasher, Justin Castelino, Marita (Tammy) Castelino, and/or any other individual acting on behalf of Justin Castelino.

[Dkt. 190-4.] Plaintiff previously filed a motion to quash the same subpoena and supplemental motion to quash subpoena. [Dkts. 189 & 190.] The Court issued an Order on Motions to Quash on June 5, 2018, denying Plaintiff's motions. [Dkt. 262.] The Court rejected Plaintiff's blanket assertion of the work-product privilege, noting that “Mr. Dorn must assert privilege objections specific to each responsive document and describe the nature of the withheld documents in a privilege log.” [Dkt. 262 at 3.]

         Thereafter, on June 14, 2018, Plaintiff's counsel filed the instant motion to quash, seeking to quash the subpoena to the extent it commands production of Dorn's text exchanges with Attorney Thrasher.

         Under Rule 45, when a motion to quash a subpoena is timely filed, the court must quash or modify the subpoena if it: (1) “fails to allow a reasonable time to comply, ” (2) “requires a person to comply beyond the geographical limits specified in Rule 45(c), ” (3) “requires disclosure of privileged or other protected matter, if no exception or waiver applies, ” or (4) “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). “The party seeking to quash a subpoena bears the burden of establishing the subpoena falls within the Rule 45 criteria.” Odongo v. City of Indianapolis, No. 1:14-cv-00710-TWP-MJD, 2015 WL 1097400, at *1 (S.D. Ind. Mar. 10, 2015) (quotation and citation omitted). The decision whether to quash a subpoena falls within the district court's discretion. See Ott v. City of Milwaukee, 682 F.3d 552, 556 (7th Cir. 2012).

         There are several reasons why Plaintiff's Counsel's motion should be denied. First, the motion appears to be a motion for reconsideration of the Court's Order on Motions to Quash. However, a motion for reconsideration “is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Jorling v. Anthem, Inc., No. 1:09-cv-0798-TWP-TAB, 2011 WL 3759189, at *1 (S.D. Ind. Aug. 25, 2011) (quotation and citation omitted). To the extent that the motion to quash is a thinly disguised motion for reconsideration, the motion should be denied.

         Second, as noted, Rule 45 requires a “timely motion.” Fed.R.Civ.P. 45(d)(3)(A). The rule does not define “timely, ” however, some courts have required that a motion to quash be filed within 14 days, see, e.g., Edin v. Garner Family Enters., Inc., No. 1:11-CV-1300, 2012 WL 364088, at *1 (S.D. Ind. Feb. 1, 2012). Other courts have required that a motion to quash be made “at or before the time of compliance.” Cent. States, Se. & Sw. Areas Pension Fund v. GWT 2005 Inc., 2009 WL 3255246, at *1 (N.D. Ill. Oct. 6, 2009). Still other courts have determined that the district court has discretion to decide whether a motion to quash is considered timely. See, e.g., Woodard v. Victory Records, Inc., 2014 WL 2118799, at *4 (N.D. Ill. May 21, 2014) (concluding that, “[w]hile the court does not wish to condone a party's failure to challenge a subpoena within the time delineated by the rules, ” the conduct between the parties indicated that the time for compliance had not yet lapsed).

         Attorney Thrasher filed his motion to quash on June 14, 2018, about three and one-half months after the subpoena was served on Dorn (February 28, 2018) and more than three months after the time for compliance with the subpoena (March 5, 2018). No reason is given for the belated filing. Under any standard, Thrasher's motion to quash cannot be considered “timely” under Rule 45(d)(3)(A). Thus, to the extent, if any, that the motion to quash is not a motion for reconsideration, the motion can be denied based on untimeliness alone.

         Furthermore, Attorney Thrasher's arguments do not entitle him to an order quashing the subpoena. He asserts the work product doctrine, which protects documents prepared by the client, attorney, or an attorney's representative “in anticipation of litigation for the purpose of analyzing and preparing a client's case.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010); see alsoBramlette v. Hyundai Motor Co., No. 91 C 3635, 1993 WL 338980, at *2 (N.D. Ill. Sept. 1, 1993). An “attorney has an independent privacy interest in his work product and may assert the work-product doctrine on his own behalf[.]” Id.However, voluntary disclosure of a document to a third party may waive the protection under the work-product doctrine. See, e.g.,Behnia v. Shapiro, 176 F.R.D. 277, 279 ...


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