Plaintiff’s Subpoena

Plaintiff’s Subpoena is Quashed, But They May Still Get What They Need: eDiscovery Case Law

eDiscovery Case Week concludes with an interesting ruling on a third-party subpoena! In Martley v. City of Basehor, No. 19-02138-DDC-GEB (D. Kan. May 2, 2022), Kansas Magistrate Judge Gwynne E. Birzer granted the defendants’ motion to quash the subpoena of former IT service provider, NetStandard Data Center. However, Judge Birzer finding some of the defendants’ production to be “troubling”, “order[ed] the parties to cooperate and share the expense to have a digital forensic or eDiscovery vendor run the searches set out in the subpoena to NetStandard”.

Case Discussion

In this case alleging violation of the Equal Pay Act (‘EPA”) by paying disparate benefits and wages to the plaintiff while he served the defendant as Police Chief and City Administrator, the plaintiff served a notice of intent to issue a subpoena just one week prior to the close of discovery to have NetStandard run certain searches on City email data that might still be housed on NetStandard’s servers and produce all responsive emails.

The defendants objected, arguing the subpoena was issued in violation of Fed. R. Civ. P. 45(a)(4) because they claimed they were not provided notice of the subpoena before it was served upon NetStandard. They also argued that the plaintiff attempted to use a subpoena to avoid compliance with Federal Rules 26 and 34 and that the plaintiff sought to obtain documents via subpoena after failing to obtain them when he served his Sixth Request for Production too late for the response to occur prior to the close of discovery.

The plaintiff argued the amended subpoena did not violate Fed. R. Civ. P. 45. The plaintiff also alleged the defendants’ purported failure to appropriately search the City and Police Department servers and produce documents he previously requested justified his use of a subpoena to NetStandard.

Judge’s Ruling

First addressing whether the defendants have standing to oppose the subpoena, Judge Birzer stated: “Where the subpoena seeks to have searches run on the City’s email data remaining on NetStandard’s servers for the period of time when Defendant Breuer was Mayor, the Court finds Defendants have a personal right regarding the information requested. Thus, the Court holds Defendants have standing to move to quash the subpoenas served on NetStandard.”


But Judge Birzer also addressed the issue of notice regarding the subpoena, stating: “As previously stated, Plaintiff alleges he filed the original notice around lunchtime on April 6, 2022 and his paralegal served the subpoena on NetStandard after he left work for the day. The amended notice and subpoena were purportedly handled in a similar fashion the following day. While the Court would certainly encourage parties to give more than half a day’s notice, court’s in this circuit have found less notice to be sufficient… On these facts, the Court finds Defendants received notice under Fed. R. Civ. P. 45(a)(4) to satisfy the purpose of the rule and will not quash the amended subpoena on this basis.”

Still, she addressed control of the documents, stating: “The Court is uncomfortable with Plaintiff’s tactic of going around Defendants to their former IT vendor to conduct searches on any of the City’s email data it may still have in its possession after its services were terminated. The Court questions whether the documents are in the control of NetStandard and questions whether it should be burdened with the production… Here, where Defendants have requested and been provided images of the City’s and Police Department’s servers which were in NetStandard’s possession, the Court finds the City has control over any of the City’s email data NetStandard might still have in its possession.”

Judge Birzer also stated: “Although this is anticipating arguments that would possibly be raised in any motion to quash filed by NetStandard, the Court questions whether NetStandard would be permitted to divulge the contents of the City’s communications under the Stored Communications Act without the City’s consent…For these reasons, the Court will quash Plaintiff’s subpoena, both the original and amended, to NetStandard. However, that does not mean the Court will leave Plaintiff without relief.”

Judge Birzer went on to note that: “it troubles the Court that documents continue to come to light are presumably responsive to requests for production Plaintiff has already served but have not been produced by Defendants. Plaintiff asked a deponent to run a search during a remote deposition that turned up documents that unintentionally had not been produced. Now it appears, Plaintiff’s counsel has reached out to a former city council member who had documents which Plaintiff alleges have not been produced in this case.” She also called it “troubling” that “Defendants have known there were issues with the images of the City and Police Department servers and of Plaintiff’s computer created by NetStandard, but the parties and the Court have seemingly never gotten to the bottom of the issues.”

As a result, Judge Birzer ordered the parties to “cooperate and share the expense to have a digital forensic or eDiscovery vendor run the searches set out in the subpoena to NetStandard”.

So, what do you think? Do you agree with the Court decision or do you think the subpoena should have been quashed with no recourse? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Watch Kelly Twigger of eDiscovery Assistant discuss this case on the next ACEDS #caseoftheweek next Tuesday, August 2, here!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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