1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Marcella Fox, No. CV-21-01089-PHX-MTL
10 Plaintiff, ORDER
11 v.
12 State of Arizona, et al.,
13 Defendants. 14 15 Pending before the Court are Plaintiff’s and the State of Arizona’s Joint Statement 16 of Discovery Dispute (Doc. 74) and supplemental briefing (Docs. 79, 86), Defendant 17 McClelland’s Motion for Mental Examination of Plaintiff (Doc. 75), Brittany Fountain and 18 Kysha Slocumb’s Objections and Motion to Quash Deposition Subpoenas (Doc. 88), 19 Plaintiff’s Motion to Quash Subpoena Duces Tecum (Doc. 90), and the State’s Motion to 20 Strike Plaintiff’s Reply (Doc. 112). The Court now rules. 21 I. FACTUAL BACKGROUND 22 Plaintiff Marcella Fox filed this action asserting claims for assault, battery, false 23 imprisonment, intentional infliction of emotional distress, negligence, and violation of 24 equal protection under 42 U.S.C. § 1983, based on allegations that Defendant Jason 25 McClelland sexually assaulted her while both were working for the Arizona Department 26 of Corrections, Rehabilitation, and Reentry (“ADC”). (Doc. 33.) Plaintiff alleges that 27 Defendant McClelland habitually made sexual advances toward his female coworkers in 28 front of others, but ADC took no action against him. (Id., ¶¶ 17, 18, 22.) For example, 1 Plaintiff alleges that Defendant McClelland sexually assaulted two female correctional 2 officers and sexually harassed a nurse on multiple occasions throughout 2019 and 2020. 3 (Id., ¶¶ 40-44, 47, 48.) Plaintiff further alleges that Defendant McClelland sexually 4 assaulted her at work on July 15, 2020. (Id., ¶¶ 64, 71-78.) Plaintiff alleges that she escaped 5 from Defendant McClelland’s control and immediately told her supervisor, Stephanie 6 Oplinger, about the incident. (Id., ¶ 80.) Plaintiff further alleges that Defendant was 7 arrested and indicted on several sexual assault, sexual abuse, and kidnapping charges 8 related to four victims, including Plaintiff. (Id., ¶¶ 97, 104-05.) The charges against 9 Defendant McClelland have been dismissed. (See Doc. 79-1 at 36.) 10 Brittany Fountain and Kysha Slocumb, two of Defendant McClelland’s other 11 alleged victims, also filed civil lawsuits against him. Both cases have settled. During the 12 pendency of those lawsuits, Plaintiff, Ms. Fountain, and Ms. Slocumb were all represented 13 by the same counsel, Anne Findling. Ms. Fountain and Ms. Slocumb are now represented 14 by Joy Bertrand. 15 II. DISCOVERY OF PLAINTIFF’S TEXT MESSAGES 16 A. Background 17 Fact discovery in this case closes on January 6, 2023. (Doc. 44.) The parties filed a 18 Joint Statement of Discovery Dispute regarding Plaintiff’s responses to the State’s 19 Requests for Production (“RFP”). (Doc. 74.) The Court ordered supplemental briefing 20 (Doc. 78), which the State and Plaintiff filed (Docs. 79, 86). 21 Pursuant to Federal Rule of Civil Procedure 34, the State requested all of Plaintiff’s 22 communications with Ms. Fountain (RFP No. 1), Ms. Slocumb (RFP No. 2), and Defendant 23 McClelland (RFP No. 4). The State also requested Plaintiff’s communications with Ms. 24 Oplinger (RFP No. 5), and Jessica Todd (RFP No. 6) from July 15 to December 31, 2020. 25 (See Doc. 74; see also Doc. 79-1 at 3.) Plaintiff initially responded without producing any 26 text messages, asserting various objections and privileges. Plaintiff then supplemented her 27 original responses to include redacted messages from Ms. Fountain’s cell phone and a 28 privilege log previously produced in Ms. Fountain’s lawsuit. (See Doc. 79-1 at 6-9.) 1 In the parties’ Joint Statement of Discovery Dispute, the State asserts that 2 immediately after the alleged sexual assault, Plaintiff texted with Ms. Oplinger, Ms. 3 Fountain, Ms. Todd, and Ms. Slocumb about Defendant McClelland. (Doc. 74 at 1-2.) The 4 State also asserts that Plaintiff’s prior redacted production of messages is inadequate. (Id. 5 at 2.) Plaintiff admitted to previously dating Defendant McClelland and exchanging text 6 messages with him throughout that relationship. (Id. at 1.) Plaintiff generally asserts, as she 7 previously testified at her deposition, “the earliest text messages backed up to her iCloud 8 are dated November 18, 2020.” (Doc. 74 at 2.) Plaintiff also asserts that the text messages 9 sought are irrelevant, private, and not proportional to the needs of the case. (Id. at 3.) 10 The parties agree that the scope of the requested communications is limited to text 11 messages for this dispute. Plaintiff has not produced any text messages from her own cell 12 phone as of the date of this order. Rule 34 requires parties to produce any relevant and 13 responsive documents in their possession, custody, or control, including text messages, in 14 response to another party’s discovery requests. Fed. R. Civ. P. 34. 15 B. Legal Standard 16 Under Federal Rule of Civil Procedure 26 parties may obtain discovery concerning 17 any nonprivileged matter that is relevant to any party’s claim or defense and proportional 18 to the needs of the case. Fed. R. Civ. P. 26(b)(1). District courts have broad discretion in 19 controlling discovery, but discovery is not boundless. Hallett v. Morgan, 296 F.3d 732, 20 751 (9th Cir. 2002). Discovery must be limited if: 21 (i) the discovery sought is unreasonably cumulative or 22 duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; 23 (ii) the party seeking discovery has had ample opportunity to 24 obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by 25 Rule 26(b)(1).
26 Fed. R. Civ. P. 26(b)(2)(C). Rule 26(b)(1) lists the following factors for courts to consider 27 when evaluating proportionality: the importance of the issues at stake in the action; the 28 amount in controversy; the parties’ relative access to the relevant information; the parties’ 1 resources; the importance of the discovery in resolving the issues; and whether the burden 2 or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). 3 C. Analysis 4 1. Motion to Compel Text Messages 5 a. Loss of Pre-November 2020 Text Messages 6 Plaintiff testified at her deposition that she no longer has access to any text messages 7 prior to November 18, 2020 because she purchased a new phone. (Doc. 86-1 at 5.) Plaintiff 8 asserts that she has attempted to access the prior messages through her iCloud but there are 9 no archived messages prior to November 18, 2020. (Id.) The State argues that “Plaintiff 10 either failed to preserve the messages or failed to conduct a competent search for them.” 11 (Doc. 79 at 1.) 12 The State has raised legitimate reasons to question whether Plaintiff is withholding 13 responsive communications. Plaintiff has not supplied an affidavit or sworn testimony that 14 she took any steps to recover her messages other than merely logging in to her iCloud 15 account. Certainly, Plaintiff could have at least contacted Apple or her wireless carrier in 16 an attempt to retrieve the messages. Additionally, the relevant time period for the RFPs 17 extends past November 18, 2020. It is not clear to the Court why Plaintiff could not search 18 for and produce any responsive messages in her possession dated November 18, 2020 or 19 later. The Court is not satisfied that Plaintiff’s representations adequately demonstrate that 20 there was a reasonable search for responsive messages. 21 The Court finds that Plaintiff has not done enough to establish that her text messages 22 prior to November 18, 2020 are irretrievably lost by inadvertent action. Thus, Plaintiff shall 23 be required to conduct an additional search for the messages and supply a sworn declaration 24 describing her additional search efforts. If Plaintiff can retrieve responsive text messages 25 after additional efforts, Plaintiff shall produce those messages within 21 days of this Order. 26 Such an attestation after limited additional searching would give the Court and the State 27 assurance that Plaintiff has complied with her duty under Rule 26 without unduly 28 burdening her. See Federal Trade Commission v. Noland, CV-20-0047-DWL, 2021 WL 1 2187021, at *3 (D. Ariz. May 28, 2021). 2 b. Brittany Fountain and Kysha Slocumb 3 Defendants’ RFP Nos. 1 and 2 requested all of Plaintiff’s communications with 4 Brittany Fountain and Kysha Slocumb. (Doc. 79-1 at 3.) In response, Plaintiff invoked “the 5 attorney-client privilege, the co-client (or joint client privilege), the common interest 6 privilege, and/or the joint defense privilege,” and protection under the Arizona Constitution 7 Victim’s Bill of Rights (“VBR”). (Doc. 79-1 at 6.) Plaintiff also objected to the requests as 8 overly broad, irrelevant, and intended to embarrass or harass Plaintiff. (Id. at 7.) Plaintiff 9 then supplemented her original responses to include redacted text messages from Ms. 10 Fountain’s cell phone and furnished a privilege log invoking the VBR, Federal Rule of 11 Civil Procedure 26(b)(1) and Federal Rules of Evidence 402 and 403. (See Doc. 79-1 at 12 12-14, 19-32.) 13 The State argues that because the criminal lawsuit against Defendant McClelland 14 has been dismissed with prejudice, the VBR is no longer applicable. According to the State, 15 Plaintiff should be required to produce additional, responsive messages between Ms. 16 Fountain, Ms. Slocumb, and herself, including those previously withheld under the VBR. 17 (Doc. 79 at 3.) The State notes that after the criminal lawsuit was dismissed, both Plaintiff 18 and Defendant McClelland submitted to depositions that were previously unavailable 19 under the VBR. Notwithstanding her agreement to sit for deposition, Plaintiff reiterates the 20 existence and applicability of the VBR to the State’s discovery requests. (Doc. 86 at 3.) 21 Crime victims’ rights are protected by the Arizona Constitution through the VBR, 22 which provides, in relevant part: 23 (A) To preserve and protect victims’ rights to justice and 24 due process, a victim of crime has a right: 1. To be treated with fairness, respect, and dignity, and to 25 be free from intimidation, harassment, or abuse, throughout the 26 criminal justice process. . . . 27 5. To refuse an interview, deposition, or other discovery 28 request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant. 1 Ariz. Const. art. II, § 2.1. The Arizona Court of Appeals applied the VBR to prevent a 2 criminal defendant from taking their alleged victim’s deposition in a related civil case prior 3 to the criminal trial. State v. Lee, 245 P.3d 234, 238-39 (Az. Ct. App. 2011). The Lee court 4 noted that “[t]he purpose underlying a victim’s right to refuse a pretrial deposition is to 5 protect the victim’s privacy and minimize contact with the defendant prior to trial.” Id. at 6 239. But the court expressly “decline[d] to address [whether] a victim’s right to refuse 7 [discovery] could extend beyond the conclusion of the criminal trial.” Id. at 238 n.7. No 8 other Arizona appellate court has addressed this issue to date. Other courts in this District 9 have relied on the reasoning in Lee to hold that victims’ rights under the VBR expire at the 10 conclusion of the state court criminal proceedings and do not carry over into subsequent 11 federal habeas litigation. Forde v. Shinn, No. CV-21-00098-TUC-SHR, 2021 WL 12 2555430, at *3 (D. Ariz. Jun. 22, 2021); Miller v. Shinn, No. CV-21-00992-PHX-ROS, 13 2021 WL 4503461, at *3 (D. Ariz. Oct. 1, 2021); Burns v. Shinn, No. 14 CV-21-1173-PHX-SPL, 2021 WL 5280601, at *2–4 (D. Ariz. Nov. 12, 2021). 15 The Court need not reach this issue of first impression here because, by its plain 16 text, the VBR is limited to a victim’s right to refuse discovery requested “by the defendant, 17 the defendant’s attorney, or other person acting on behalf of the defendant.”1 Ariz. Const. 18 art. II, § 2.1; see also Winterbottom v. Ronan, 258 P.2d 182, 184 (Az. Ct. App. 2011). The 19 discovery requests at issue were propounded by the State of Arizona, not by Defendant 20 McClelland. Although the State and Defendant McClelland are both defendants in this 21 action based on the same underlying events, it is not clear to the Court that their interests 22 are aligned. The First Amended Complaint (“FAC”) asserts separate counts against each 23 party. (See Doc. 33.) The State and Defendant McClelland also filed separate answers to 24 the FAC and served separate discovery requests on Plaintiff. The State is represented by 25 the Arizona Attorney General’s Office and Defendant McClelland has retained his own 26 counsel. In the absence of specific evidence that the State is acting on behalf of Defendant 27 McClelland in propounding its discovery requests, the Court cannot say that the State is
28 1 Moreover, the parties have not fully briefed their positions on the application of the VBR to the State’s pending discovery requests. 1 representing Defendant McClelland’s interests such that the VBR applies.2 2 Additionally, Plaintiff concedes that her text messages with Ms. Fountain and Ms. 3 Slocumb are relevant and “include[] extensive information the women shared about their 4 mental health and psychological distress.” (Doc. 86 at 3.) Plaintiff’s FAC asserts a claim 5 for intentional infliction of emotional distress against the State and seeks emotional distress 6 damages. (Doc. 33 at 14, 18.) After putting her emotional status at issue, Plaintiff cannot 7 now seek to exclude this evidence as irrelevant or disproportional to the needs of the case. 8 The Court does find that the State’s request is disproportional as to time frame and scope, 9 however. It would be unduly burdensome and intrusive to require Plaintiff to produce all 10 messages with Ms. Fountain and Ms. Slocumb, regardless of the content and time of 11 receipt. Non-privileged messages relating to the events underlying this action, however, 12 are relevant to Plaintiff’s claims against Defendant and must be produced. The Court thus 13 limits Plaintiff’s obligation under RFP Nos. 1 and 2 to non-privileged communications in 14 Plaintiff’s possession on or after July 15, 2020 pertaining to the events underlying this 15 action. The Court finds that by limiting the scope of the messages to the events underlying 16 Plaintiff’s own asserted claims, the appropriate balance is achieved between Defendant’s 17 need for the information and Plaintiff’s right to be protected from undue harassment. 18 Thus, the Court orders Plaintiff to produce any additional, responsive text messages 19 with Ms. Fountain and Ms. Slocumb in her possession, unless they are subject to another 20 relevant privilege. If Plaintiff claims privilege over any of those messages, Plaintiff must 21 provide an updated privilege log setting forth specifically which privilege she seeks to 22 invoke and how that privilege precludes disclosure.3 See Rodriguez v. Seabreeze Jetlev 23 LLC, --- F.Supp.3d ---, 2022 WL 3327925 (N.D. Cal. Aug. 11, 2022) (“If a party withholds 24 2 Because the Court denies application of the VBR on the ground that the party 25 propounding the discovery is not the criminal defendant, his attorney, or someone representing his interests, the Court need not consider whether the VBR applies beyond the 26 end of the related criminal proceeding. See Winterbottom, 258 P.3d at 184 n.2. 3 The Court notes that although Plaintiff’s prior responses to Defendants’ RFPs invoke “the 27 attorney-client privilege, the co-client (or joint client privilege), the common interest privilege, and/or the joint defense privilege,” none of those privileges were asserted in the 28 attached privilege log or addressed in the parties’ briefing. (Compare Doc. 79-1 at 6-7 with id. at 19-32.) 1 material as privileged . . . it must produce a privilege log that is sufficiently detailed for the 2 opposing party to assess whether the assertion of privilege is justified.”) (internal 3 quotations omitted). Plaintiff is not required to reproduce texts from her phone that would 4 be duplicative of what has already been produced from Ms. Fountain’s phone. Nor is 5 Plaintiff required to produce messages that would contain information pertaining to Ms. 6 Fountain’s or Ms. Slocumb’s confidential settlement agreements with Defendant 7 McClelland. 8 c. Defendant McClelland 9 The State’s RFP No. 4 requested all of Plaintiff’s communications to and from 10 Defendant McClelland. (Doc. 79-1 at 3.) In response, Plaintiff objected to the timeframe 11 as overly broad and stated that “she may have exchanged text messages with Jason 12 McClelland in 2019 but no longer has access to those text messages.” (Doc. 79-1 at 8.) In 13 her supplemental response, Plaintiff further stated “Plaintiff does not believe that she ever 14 deleted these text messages” but that they were instead “lost at some point when she got a 15 new cell phone” because her messages did not transfer to her new phone. (Doc. 79-1 at 14.) 16 The State argues that Plaintiff’s messages with Defendant McClelland are “extremely 17 important” because they may contain information bearing on the relationship between the 18 parties. (Doc. 79 at 4.) In response, Plaintiff asserts that she has made a reasonable inquiry 19 into whether responsive documents exist and was unable to locate any. (Doc. 86 at 2.) 20 “A court may deny a motion to compel when the information sought is almost 21 certainly nonexistent or the object of pure speculation.” In re Pork Antitrust Litigation, No. 22 18-cv-1776, 2022 WL 972401 at *9 (D. Minn. Mar. 31, 2022). “A court will do so when 23 evidence shows that the responding party has searched for the information but cannot find 24 it or disclaims its existence after the search, and the movant shows no evidence to suggest 25 the information exists.” Id. Plaintiff asserts that she changed her phone number and 26 purchased a new phone after Defendant McClelland threatened her. (Doc. 74 at 2.) The 27 State does not refute this or provide any evidence that Plaintiff and Defendant McClelland 28 continued to correspond after she changed her phone number. The Court finds that Plaintiff 1 conducted a reasonable search for responsive text messages from the time she changed her 2 phone number. Based on Plaintiff’s assertion that she stopped communicating with 3 Defendant McClelland because he threatened her, responsive texts from that time period 4 are “almost certainly nonexistent.” Thus, the Court denies the State’s motion to compel 5 Plaintiff to produce messages with Defendant McClelland after she changed her phone 6 number. 7 As discussed above in Part II.C.1.a supra, Plaintiff has not shown that a reasonable 8 search was conducted for messages prior to November 18, 2020. Plaintiff shall conduct an 9 additional search for those messages, including messages with Defendant McClelland prior 10 to November 18, 2020, and provide an attestation of her search as discussed supra. 11 d. Stephanie Oplinger 12 The State’s RFP No. 5 requested “all of Plaintiff’s communications to and from 13 Stephanie Oplinger from July 15, 2020 to December 31, 2020.” (Doc. 79-1 at 3.) In 14 response, Plaintiff objected to the request as irrelevant, not proportional to the needs of the 15 case, and not likely to lead to the discovery of admissible evidence. (Doc. 79-1 at 8.) In her 16 supplemental response, Plaintiff further stated: 17 In addition, Stephanie Oplinger’s statement to CIU states that 18 on July 15, 2020, Plaintiff texted her and asked her to bring Plaintiff’s personal items to the front gate as she was leaving 19 for the night. Oplinger’s statement goes on to describe what 20 Plaintiff told her in person about the assault by McClelland. See STATE-0384. Thus, information responsive to this request 21 is already within the State’s possession. 22 (Doc. 79-1 at 15.) The State argues that Plaintiff’s supplemental response concedes that 23 relevant text messages with Ms. Oplinger relating to the investigation exist, but Plaintiff 24 has refused to produce them. (Doc. 79 at 5.) 25 The State has a reasonable basis to believe that messages responsive to RFP No. 5 26 exist that have not been produced. Plaintiff’s response states only that “information 27 responsive to this request is already within the State’s possession,” not that there are no 28 additional responsive communications in Plaintiff’s possession. The Court does agree with 1 Plaintiff, however, that Defendants’ request is not proportional to the needs of the case and 2 it would be unduly burdensome and intrusive to require Plaintiff to produce all messages 3 with Ms. Oplinger, regardless of the content. Messages relating to the events underlying 4 this action are relevant to Plaintiff’s claims against Defendants and must be produced. The 5 Court thus limits Plaintiff’s obligation under RFP No. 5 to non-privileged communications 6 within Plaintiff’s possession pertaining to the events underlying this action. 7 e. Jessica Todd 8 The State’s RFP No. 6 requested “all of Plaintiff’s communications to and from 9 Jessica Todd from July 15, 2020 to December 31, 2020.” (Doc. 79-1 at 3.) In response, 10 Plaintiff objected to the request as irrelevant, not proportional to the needs of the case, and 11 not likely to lead to the discovery of admissible evidence. (Doc. 79-1 at 8.) 12 In her supplemental response, Plaintiff further stated: 13 In addition, the CIU investigative report states that Jessica 14 Todd was present for Plaintiff’s interview with Investigator Root on July 16, 2020, at Plaintiff’s request. The report 15 describes Plaintiff’s statement in detail. See STATE-0402. 16 Thus, the information responsive to this request is already within the State’s possession. 17 18 (Doc. 79-1 at 15.) The State argues that Plaintiff’s texts with Ms. Todd “likely contain 19 information” about Plaintiff, Defendant McClelland, and the investigation because Ms. 20 Todd and Plaintiff worked together and interacted during the investigation. (Doc. 79 at 5.) 21 Because Ms. Todd was present for Plaintiff’s interview with CIU regarding the alleged 22 assault, the State’s position that there may be relevant messages between Ms. Todd and 23 Plaintiff leading to the discovery of admissible evidence is reasonable. The Court does 24 agree with Plaintiff, however, that Defendants’ request is not proportional to the needs of 25 the case and it would be unduly burdensome and intrusive to require Plaintiff to produce 26 all messages with Ms. Todd, regardless of the content. See In re Pork Antitrust Litigation, 27 2022 WL 972401, at *10 (“[T]he fact that the texts were sent to or from work-related 28 contacts does not mean the content of the texts was work-related, let alone that the content 1 was relevant to the claims or defenses in this case.”) Messages relating to the events 2 underlying this action, however, are relevant to Plaintiff’s claims against Defendant and 3 must be produced if they exist. The Court thus limits Plaintiff’s obligation under RFP No. 4 6 to non-privileged communications in Plaintiff’s possession pertaining to the events 5 underlying this action. The Court notes that Plaintiff has separately filed a motion to quash 6 a subpoena issued to Jessica Todd requesting production of Ms. Todd’s text messages. (See 7 Doc. 90.) That motion is addressed below in Part III. 8 2. Motion for Protective Order 9 Plaintiff asks the Court to enter a protective order “prohibiting further discovery 10 into [her] private communications.” (Doc. 86 at 1.) Under Federal Rule of Civil Procedure 11 26(c)(1), a court may issue a protective order “to protect a party or person from annoyance, 12 embarrassment, oppression, or undue burden or expense” if good cause is shown. The 13 burden to prove good cause is on the person moving for a protective order, “which requires 14 a showing that specific prejudice or harm will result if the protective order is not granted.” 15 In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th Cir. 2011) 16 (cleaned up). “Broad allegations of harm, unsubstantiated by specific examples or 17 articulated reasoning, do not satisfy the Rule 26(c) test.” Federal Trade Comm. v. Noland, 18 No. CV-20-00047-PHX-DWL, 2021 WL 2187021, at *4 (D. Ariz. May 28, 2021) (quoting 19 Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). 20 Because the Court has ordered Plaintiff to produce her text messages and finds that 21 she has not met the burden to prove good cause, the Court declines to enter the protective 22 order that Plaintiff seeks. Instead, Plaintiff’s required production should be appropriately 23 designated under the preexisting protective order in this case. (See Doc. 24.) 24 III. DISCOVERY OF JESSICA TODD’S TEXT MESSAGES 25 The State of Arizona issued a subpoena to Ms. Todd for all her text messages and 26 emails with Plaintiff dating from April 1, 2019, through November 30, 2020, except for 27 those relating to inmate health care. (Doc. 90 at 2.) Plaintiff filed a Motion to Quash the 28 subpoena, arguing that it is unreasonably burdensome and an unwarranted invasion of Ms. 1 Todd’s and Plaintiff’s privacy. (Id. at 1.) The State responds that Plaintiff’s motion is moot 2 because Ms. Todd has “informed the State that she does not have any responsive 3 documents.” (Doc. 100 at 1.) The State also contends that Plaintiff does not have standing 4 to object to the subpoena because she does not assert that the documents requested from 5 Ms. Todd are subject to privilege. (Id. at 2.) While disputing the State’s position on her 6 standing to file her pending motion, Plaintiff agrees that it is likely moot considering Ms. 7 Todd’s response. (Doc. 101 at 1.) Plaintiff instead asks the Court to enter a protective order 8 “prohibiting the State from having Ms. Todd search for or produce communications from 9 devices other than her current cell phone.” (Id.) 10 The State notes that it has not asked Ms. Todd to search for responsive 11 communications on devices other than her current cell phone, so Plaintiff’s request for a 12 protective order is premature and does not demonstrate good cause for such an order at this 13 time. See Fed. R. Civ. P. 26(c)(1); see also In re Roman Catholic Archbishop of Portland 14 in Or., 661 F.3d at 424. Moreover, the parties seem to agree that Plaintiff’s motion is moot 15 because Ms. Todd avers that she does not have responsive text messages in her possession. 16 Accordingly, Plaintiff’s Motion to Quash is denied as moot. 17 IV. MENTAL EXAMINATION OF PLAINTIFF 18 Defendant McClelland moved for a court order requiring Plaintiff Marcella Fox to 19 submit to a mental examination by a licensed psychologist pursuant to Federal Rule of 20 Civil Procedure 35. (Doc. 75 at 1.) In response, Plaintiff agreed to the mental examination 21 and indicated that the parties reached an agreement “to have their experts share raw data 22 from Plaintiff’s mental examinations directly with one another.” (Doc. 83.) The parties 23 then filed a joint Notice of Rule 35 Examination, setting Plaintiff’s mental examination for 24 November 1, 2022. (Doc. 85.) Thus, Defendant’s Motion for Mental Examination is denied 25 as moot. 26 V. THIRD-PARTY DEPOSITION SUBPOENAS 27 A. Background 28 On November 2 and 3, 2022, Defendant McClelland noticed the depositions of 1 non-parties Brittney Fountain and Kysha Slocumb (the “Movants”), respectively.4 (See 2 Doc. 88-1.) In response, Movants’ filed an objection to the depositions, a motion to quash 3 the deposition subpoenas, a motion for a protective order, and requested an evidentiary 4 hearing, if needed. (Doc. 88). Defendants separately responded (Docs. 98, 99) and Movants 5 and Plaintiff submitted replies (Doc. 103, 107). The State filed a motion to strike both 6 replies for raising new arguments. (Doc. 112.) 7 Defendant McClelland has previously offered to cancel the opposed depositions if 8 Plaintiff will stipulate to exclude their testimony and any references to their accusations 9 against him at trial. (Doc. 98 at 2.) Plaintiff stated that she will remove the Movants from 10 her witness list via email on September 21, 2022, but that position is not yet reflected in 11 Plaintiff’s latest supplemental disclosures served on October 21, 2022. (Id. at 4.) According 12 to Defendant McClelland, Plaintiff has also “declined to enter into a stipulation excluding 13 all evidence and testimony regarding [the Movants’] allegations against McClelland from 14 [Plaintiff’s] trial.” (Id.) Plaintiff’s reply vaguely asserts the depositions are not necessary 15 because “[t]hey settled their own claims with the State, left the Department, and have no 16 further role in this litigation.” (Doc. 103.) 17 B. Legal Standard 18 The Federal Rules of Civil Procedure govern the scope and method of discovery. 19 Rule 26 governs the scope of discovery, Rule 30 governs procedures for depositions, and 20 Rule 45 governs subpoenas. Both litigants and third parties are subject to discovery under 21 the Rules. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984). Rule 45(d)(3)(A) directs 22 a court to quash or modify a subpoena that “requires disclosure of privileged or other 23 protected matter, if no exception or waiver applies” or that “subjects a person to undue 24 burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)–(iv); see also Brown v. Sperber-Porter, No. 25 CV-16-02801-PHX-SRB, 2017 WL 10409840, at *1 (D. Ariz. Nov. 6, 2017). A party 26 issuing a subpoena has a duty to avoid causing undue burden or expense on the recipient. 27 4 Defendant McClelland’s response brief indicates that the parties have been attempting to 28 schedule the Movants’ depositions since August 2022 when their own cases against Defendant McClelland and the State of Arizona settled. 1 F.D.I.C. v. Garner, 126 F.3d 1138, 1145-46 (9th Cir. 1997). The Court may quash or 2 modify a subpoena to cure the objection. Flatow v. Islamic Republic of Iran, 305 F.3d 3 1249, 1254 (D.C. Cir. 2002). 4 Relatedly, Rule 26(c) requires that a court limit the extent of discovery—including 5 that which is obtained by a subpoena—if it “can be obtained from some other source that 6 is more convenient, less burdensome, or less expensive” or “is outside the scope permitted 7 by Rule 26(b)(1).” Fed. R. Civ. P. 26(c)(i), (iii). Rule 26(b)(1), in turn, broadly permits 8 “discovery regarding any nonprivileged matter that is relevant to any party’s claim or 9 defense and proportional to the needs of the case,” considering, among other factors, “the 10 importance of the discovery in resolving the issues, and whether the burden or expense of 11 the proposed discovery outweighs its likely benefit.” Hausauer v. City of Mesa, No. 12 CV-15-01796-PHX-ROS, 2017 WL 6515963 at *1 (D. Ariz. Apr. 5, 2017) (internal 13 quotations omitted); Fed. R. Civ. P. 26(b). Ordinarily, “[t]he burden is upon the party 14 seeking [a protective] order to ‘show good cause’ by demonstrating harm or prejudice that 15 will result from the discovery.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 16 2004), cert. denied, 544 U.S. 905 (2005). 17 C. Defendant State of Arizona’s Motion to Strike 18 The State of Arizona filed a Motion to Strike Plaintiff’s and Movants’ replies, 19 arguing that they both raise new legal arguments. (Doc. 112 at 1). In the alternative, the 20 State seeks the opportunity to file a sur-reply to address the arguments raised in the replies. 21 (Id. at 2.) Plaintiff responds that the State’s stated reason to strike her reply, that it “raises 22 new arguments regarding the scope of her deposition,” is too vague and unclear. (Doc. 115 23 at 1.) Plaintiff also asserts that her reply is entirely responsive to the State’s argument 24 regarding the burden of the proposed depositions on Movants. (Id. at 1-2.) 25 The Court agrees with Plaintiff and finds that both replies are responsive to 26 Defendant McClelland’s response to Movants’ motion. Defendant McClelland’s response 27 asserts that Movants have failed to establish “undue burden” because the relevant test is 28 limited to incurred expenses or lack of personal knowledge. (Doc. 98 at 7-8.) Both replies 1 respond to that argument by discussing the burden imposed by the emotional harm Movants 2 would experience at their depositions based on Defendant McClelland’s attorney’s conduct 3 at Plaintiff’s deposition. Any case law and legal theories referenced in the replies are 4 related to those responsive arguments and are properly before the Court. Thus, the State’s 5 Motion to Strike is denied. 6 D. Analysis 7 At the outset, both Defendant McClelland and the State of Arizona argue that 8 Movants’ motion, filed three days prior to the scheduled depositions and two months after 9 the depositions were noticed, is untimely. Given the importance of the issues at stake and 10 the potential for harm to nonparties if the depositions go forward as noticed, the Court will 11 consider the merits of the motion notwithstanding Defendants’ timeliness arguments. 12 Movants assert that their depositions would provide no value to the case while 13 causing severe emotional distress. (Doc. 88 at 4-5.) They further argue that Defendants fail 14 to show that the need for the depositions outweighs the substantial burden they would cause 15 because Defendant McClelland has already admitted to having sexual encounters with 16 them. (Id. at 6.) Defendant McClelland’s response argues that “Plaintiff has put, and 17 continues to put, [Movants’] allegations that [he] sexually assaulted them at issue in this 18 litigation, and apparently intends to introduce evidence of the alleged assaults at trial.” 19 (Doc. 98 at 1.) Specifically, Defendant McClelland argues that Plaintiff “attempts to 20 establish that [her] claims of assault are supported by evidence of a pattern or practice of 21 similar behavior.” (Id. at 4.) Defendant McClelland also notes that Plaintiff intends to 22 introduce investigative reports that reference Movants’ claims against him, and he is 23 entitled to depose Movants on that basis. (Id. at 6.) Finally, Defendant McClelland argues 24 that Movants “communicated with Plaintiff regarding her claim, and likely have 25 discoverable information about statements made by Fox regarding her claims of sexual 26 assault.” (Id. at 7.) 27 For its part, the State argues that Plaintiff’s theories of liability rely on Movants’ 28 allegations and information provided during the combined investigation of all three 1 women’s claims. (Doc. 99 at 1.) In particular, the State contends that Plaintiff must rely on 2 Movants’ allegations to avoid the State’s immunity defense raised in their pending 3 summary judgment motion. To avoid summary judgment, the State argues that Plaintiff 4 must establish that Defendant McClelland had a propensity to engage in inappropriate 5 contact with women, including Movants. (Id. at 3.) The State further argues that even if 6 Movants do not testify at trial, their depositions are still necessary “to provide context for 7 the statements they made or received” during the course of the investigation and to 8 “establish foundation for relevant documents.” (Id. at 4.) In response, Movants and Plaintiff 9 both argue that Defendant McClelland’s lengthy and intrusive deposition of Plaintiff 10 reveals his intention to “further humiliate and punish” Movants for reporting the alleged 11 assaults. (Doc. 103 at 5; Doc. 107 at 7-8.) 12 “Non-party status is a significant factor to be considered in determining whether the 13 burden imposed by a subpoena is undue.” Whitlow v. Martin, 263 F.R.D. 507, 512 (C.D. 14 Ill. 2009) (citations omitted). “Nonparty witnesses are powerless to control the scope of 15 litigation and discovery, and should not be forced to subsidize an unreasonable share of the 16 costs of a litigation to which they are not a party.” United States v. Columbia Broad. Sys., 17 Inc., 666 F.2d 364, 371 (9th Cir. 1982). “The proper way to afford this special consideration 18 is to ‘weigh the burden to the subpoenaed party against the value of the information to the 19 serving party. Generally, this requires consideration of relevance, the need of the party for 20 the [discovery], the breadth of the [] request, the time period covered by it, the particularity 21 with which the [discovery is] described and the burden imposed.’” Aquastar Pool Prods. 22 Inc. v. Paramount Pool & Spa Systems, No. CV-19-00257-PHX-DWL, 2019 WL 250429 23 at *3 (D. Ariz. Jan. 17, 2019). “As part of this inquiry, the Court may evaluate whether 24 information requested through a non-party subpoena is readily available from a party.” Mi 25 Familia Vota v. Hobbs, No. CV-21-01423-PHX-DWL, 2022 WL 15518274, at *4 (D. Ariz. 26 Oct. 27, 2022). 27 The subpoenas issued to Movants do not include any limitations on the scope of the 28 deposition or identify what topics Defendant McClelland plans to raise. (See Doc. 88-1.) 1 The Court finds that an unlimited deposition into any topics of Defendant’s choosing would 2 be over broad, disproportional to the needs of the case, and unduly burdensome on 3 Movants. Columbia Broad. Sys., Inc., 666 F.2d at 371. The Court also finds, however, that 4 Defendants have stated a reasonable and compelling need to take the Movants’ depositions 5 on limited, relevant issues. Movants’ testimony would provide context on their own 6 statements to investigators not currently in any party’s possession. Moreover, Plaintiff has 7 admitted that she spoke to Movants’ regarding her allegations against Defendant 8 McClelland throughout the investigation. Thus, the Defendants are entitled to ask Movants 9 about their version of those events that may undermine Plaintiff’s asserted timeline of 10 events. 11 In the interest of balancing Defendants’ need for this discovery with Movants’ right 12 to privacy and right to be free from undue burden and harassment, the Court shall require 13 Movants to sit for limited depositions on the following topics only: 14 1. The specific facts underlying their allegations against Defendant 15 McClelland; 16 2. Statements made to investigators during the ADC’s investigation of 17 Defendant McClelland’s alleged misconduct, including any documents that incorporate 18 those statements; and 19 3. Conversations and communications they had with Plaintiff pertaining to 20 Plaintiff’s claims against Defendants. 21 Because Plaintiff has agreed that Movants will not testify at trial, any other topics 22 pertaining to Movants’ personal lives, sexual and mental health histories, or that would 23 bear on their credibility as a trial witness are not relevant or proportional to the needs of 24 the case. Given the sensitive nature of the allegations, Movants have established good cause 25 for a limited protective order preventing discovery of such information.5 Rivera, 364 F.3d 26 at 1063. Defendants have established that the limited deposition topics above, however, are 27 5 The Court finds that both parties have fully briefed the issues and an evidentiary hearing 28 would not have aided the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also Fed. R. Civ. P. 78(b). 1 relevant and necessary to defend against Plaintiff’s allegations that Defendant McClelland 2 had a pattern or practice of inappropriate sexual conduct with female coworkers. See 3 Hausauer, 2017 WL 6515963 at *1. 4 VI. CONCLUSION 5 Accordingly, 6 IT IS ORDERED that the parties’ Joint Motion for Discovery Dispute (Doc. 74) is 7 granted in favor of Defendant State of Arizona in part. Within 21 days of this order, 8 Plaintiff shall: 9 1. Conduct another search for text messages responsive to RFPs 1, 2, and 4-6, 10 as modified by this Order, including text messages prior to November 18, 2020; and 11 2. Upon completion of that search, produce any responsive, non-privileged 12 messages. 13 3. If any responsive messages are withheld as privileged, Plaintiff shall produce 14 a privilege log setting forth which privilege she seeks to invoke and how that privilege 15 precludes disclosure. 16 4. If no additional responsive messages are located, Plaintiff shall file a sworn 17 statement explaining her additional search and attesting that she could not find any 18 responsive messages. 19 IT IS FURTHER ORDERED that Plaintiff’s Motion for a Protective Order (Doc. 20 86) is denied; 21 IT IS FURTHER ORDERED that Plaintiff’s Motion to Quash Subpoena Duces 22 Tecum (Doc. 90) and Defendant’s Motion for Mental Examination of Plaintiff (Doc. 75) 23 are denied as moot; 24 IT IS FURTHER ORDERED that Defendant State of Arizona’s Motion to Strike 25 (Doc. 112) is denied; and 26 IT IS FINALLY ORDERED that Ms. Fountain’s and Ms. Slocumb’s Motion to 27 Quash (Doc. 88) is granted in part, as follows: 28 1. Ms. Fountain’s and Ms. Slocumb’s request for an evidentiary hearing is denied; 2 2. Ms. Fountain’s and Ms. Slocumb’s motion to quash their deposition || subpoenas is granted in part. The noticed depositions shall be limited to the following 4|| topics: (a) the specific facts underlying their allegations against Defendant McClelland; (b) || statements made to investigators during the ADC’s investigation of Defendant 6|| McClelland’s alleged misconduct, including any documents that incorporate those statements; and (c) conversations and communications they had with Plaintiff pertaining 8 || to Plaintiff's claims against Defendants; and 9 3. Ms. Fountain’s and Ms. Slocumb’s motion for a protective order is granted 10 || in part, as discussed herein. 11 Dated this 19th day of December, 2022. 12 Wichal T. Hburde Michael T, Liburdi 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28
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