MARGIE HENDRICKS AND * NO. 2021-CA-0109 MYRTIS HENDRICKS WILLIAMS * COURT OF APPEAL VERSUS * FOURTH CIRCUIT WELLS FARGO INSURANCE, * STERICYCLE, INC., STATE OF LOUISIANA SHADRACK LONG, ORTEGAS ******* COLEMAN AND EAN HOLDINGS, LLC
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-01575 C\W 2018-02116, 2018-07267, 2018-08066, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)
Donald Edward McKay, Jr. McNeil Kemmerly Katie F. Wollfarth Robert McKnight LEAKE & ANDERSSON, LLP 1100 Poydras, Suite 1700 Metairie, LA 70163
COUNSEL FOR DEFENDANT/APPELLANT
Matthew S. Chester Matthew C. Juneau BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC 201 St. Charles Avenue, Suite 3600 New Orleans, LA 70170
COUNSEL FOR APPELLEE/SEAN ALFORTISH
AFFIRMED
October 27, 2021 RLB This is an appeal from the trial court’s granting of a motion to quash a pre- EAL trial discovery subpoena directed to a non-party’s cell phone provider. For the RML reasons that follow, the ruling is affirmed.
Facts
The underlying lawsuit consists of four consolidated personal injury cases
filed subsequent to an August 15, 2017 motor vehicle accident between a van and
an 18-wheel tractor trailer (hereinafter “2017 accident”). The named defendants
that are relevant to this appeal are Shadrack Long, the driver of the tractor trailer,
his employer, Stericycle, and its insurer, Greenwich Insurance Company
(collectively “the Appellants”) and the driver of the van, Ortegas Coleman. In the
course of discovery, the Appellants associated Ortegas Coleman with Cornelius
Garrison through phone calls between the men before and after the 2017 accident.
Cornelius Garrison had been indicted in federal court for conspiring to fraudulently
stage motor vehicle accidents. Further discovery revealed that Cornelius Garrison
had been in contact with another cell phone number and Appellants issued a
subpoena duces tecum to the cell phone provider, Sprint Spectrum, LP (“Sprint”)
1 requesting two years of records for the specific cell phone number. That subpoena
was met with a motion to quash filed on behalf of the owner of the cell phone
number, Sean Alfortish.
Additionally, the Appellants filed a motion for leave of court to file
supplemental and amending pleadings to assert a reconventional demand against
Plaintiffs, a cross-claim against co-defendant Ortegas Coleman, as well as a third-
party demand against Cornelius Garrison, alleging that the 2017 accident was
fraudulently staged. The pleadings further asserted that the subject accident was
part of a wide-ranging conspiracy between the plaintiffs, Ortegas Coleman, and
Cornelius Garrison to stage motor vehicle accidents and file personal injury claims
against companies operating 18-wheel tractor trailers.
After a hearing, the trial court granted the Appellants’ motion for leave to
file the amendment and additional claims. The trial court also granted Sean
Alfortish’s motion to quash the subpoena issued to Sprint. This appeal followed.
Discussion
On appeal, the Appellants maintain that the trial court abused its discretion
when it granted the motion to quash by placing the burden of proof to show good
cause to warrant the discovery on the Appellants or alternatively, by not finding
that the Appellants showed good cause to obtain the discovery.1
The subpoena that was issued to Sprint sought cell phone records for the
period of July 1, 2017 and January 1, 2019, including but not limited to billing
statements, cell sites activations, numbers dialed, and sent and/or received text 1 Appellants also challenge, for the first time on appeal, Sean Alfortish’s standing in this case claiming he failed to prove ownership of the cell phone number. However, the record indicates that the Appellants’ opposition to the motion to quash declared that Sean Alfortish’s ownership was judicially confessed. See, C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, p. 5 (La. 12/3/03), 861 So.2d 156, 159 (“A judicial confession has the effect of waiving evidence as to the subject of the admission”). 2 messages. In response, the motion to quash argued that Sean Alfortish is a non-
party to the litigation, is not a witness to the 2017 accident, and has no connection
with the facts at issue. Thus, his personal information is irrelevant to this matter
and the subpoena should be quashed. Opposing the motion to quash, the
Appellants revealed that Sean Alfortish’s cell phone records were sought because
his cell phone number appeared numerous times in the cell phone records of
Cornelius Garrison. In arguing why that was relevant to this case, the Appellants
informed the trial court that Cornelius Garrison had been indicted in a federal court
case, United States v. Garrison (“the Indictment”).2 The Indictment alleged that
Cornelius Garrison had been involved in staging as many as fifty accidents with
18-wheel tractor trailers with “Co-Conspirator A.” The Appellants further
revealed that Cornelius Garrison had been in contact with the driver in this case
Ortegas Coleman several times before and after the 2017 accident including
several calls the day of that accident. The record supports those facts.
Next, the Appellants suggest that even though Sean Alfortish had no contact
with Ortegas Coleman at any time, and no contact with Cornelius Garrison on the
date of the 2017 accident, he was “Co-Conspirator A.” That assertion was based
on news outlets’ reporting but has not been substantiated. Sean Alfortish has not
been named in the Indictment. So, although Appellants were able to connect
Ortegas Coleman to Cornelius Garrison, none of the evidence presented establishes
a connection between Sean Alfortish and Ortegas Coleman or any plaintiff in this
case.
Generally, a party may obtain discovery of any information which is
relevant to the subject matter involved in the pending action. There are limitations
2 No. 2:20-CR-00092 (E.D. La. 2020). 3 to this rule, however, when justice requires that a party or other person be
protected from annoyance, embarrassment, oppression, or undue burden or
expense. Stolzle v. Safety & Systems Assur. Consultants, Inc., 2002-1197, p.2 (La.
05/24/02); 819 So. 2d 287, 289, (citing La. Code Civ. P. Art. 1422. La. Code Civ.
P. art. 1426; Laburre v. East Jefferson Gen. Hosp., 555 So. 2d 1381 (La. 1990)).
Additionally, a showing of relevancy and good cause for production has been
required in Louisiana cases where a party seeks production of records from a non-
party. Stolzle, 2002-1197, p.3, 819 So.2d at 289 (citing Ouachita Nat’l Bnk in
Monroe v. Palowsky, 554 So.2d 108 (La.App. 2nd Cir. 1989)); see St. Bernard Port,
Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 2014-0286, p. 5 (La.App.
4 Cir. 8/27/14), 147 So.3d 1266, 1268.
Further, La. C.C.P. Art. 1426 provides in pertinent part:
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MARGIE HENDRICKS AND * NO. 2021-CA-0109 MYRTIS HENDRICKS WILLIAMS * COURT OF APPEAL VERSUS * FOURTH CIRCUIT WELLS FARGO INSURANCE, * STERICYCLE, INC., STATE OF LOUISIANA SHADRACK LONG, ORTEGAS ******* COLEMAN AND EAN HOLDINGS, LLC
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-01575 C\W 2018-02116, 2018-07267, 2018-08066, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)
Donald Edward McKay, Jr. McNeil Kemmerly Katie F. Wollfarth Robert McKnight LEAKE & ANDERSSON, LLP 1100 Poydras, Suite 1700 Metairie, LA 70163
COUNSEL FOR DEFENDANT/APPELLANT
Matthew S. Chester Matthew C. Juneau BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC 201 St. Charles Avenue, Suite 3600 New Orleans, LA 70170
COUNSEL FOR APPELLEE/SEAN ALFORTISH
AFFIRMED
October 27, 2021 RLB This is an appeal from the trial court’s granting of a motion to quash a pre- EAL trial discovery subpoena directed to a non-party’s cell phone provider. For the RML reasons that follow, the ruling is affirmed.
Facts
The underlying lawsuit consists of four consolidated personal injury cases
filed subsequent to an August 15, 2017 motor vehicle accident between a van and
an 18-wheel tractor trailer (hereinafter “2017 accident”). The named defendants
that are relevant to this appeal are Shadrack Long, the driver of the tractor trailer,
his employer, Stericycle, and its insurer, Greenwich Insurance Company
(collectively “the Appellants”) and the driver of the van, Ortegas Coleman. In the
course of discovery, the Appellants associated Ortegas Coleman with Cornelius
Garrison through phone calls between the men before and after the 2017 accident.
Cornelius Garrison had been indicted in federal court for conspiring to fraudulently
stage motor vehicle accidents. Further discovery revealed that Cornelius Garrison
had been in contact with another cell phone number and Appellants issued a
subpoena duces tecum to the cell phone provider, Sprint Spectrum, LP (“Sprint”)
1 requesting two years of records for the specific cell phone number. That subpoena
was met with a motion to quash filed on behalf of the owner of the cell phone
number, Sean Alfortish.
Additionally, the Appellants filed a motion for leave of court to file
supplemental and amending pleadings to assert a reconventional demand against
Plaintiffs, a cross-claim against co-defendant Ortegas Coleman, as well as a third-
party demand against Cornelius Garrison, alleging that the 2017 accident was
fraudulently staged. The pleadings further asserted that the subject accident was
part of a wide-ranging conspiracy between the plaintiffs, Ortegas Coleman, and
Cornelius Garrison to stage motor vehicle accidents and file personal injury claims
against companies operating 18-wheel tractor trailers.
After a hearing, the trial court granted the Appellants’ motion for leave to
file the amendment and additional claims. The trial court also granted Sean
Alfortish’s motion to quash the subpoena issued to Sprint. This appeal followed.
Discussion
On appeal, the Appellants maintain that the trial court abused its discretion
when it granted the motion to quash by placing the burden of proof to show good
cause to warrant the discovery on the Appellants or alternatively, by not finding
that the Appellants showed good cause to obtain the discovery.1
The subpoena that was issued to Sprint sought cell phone records for the
period of July 1, 2017 and January 1, 2019, including but not limited to billing
statements, cell sites activations, numbers dialed, and sent and/or received text 1 Appellants also challenge, for the first time on appeal, Sean Alfortish’s standing in this case claiming he failed to prove ownership of the cell phone number. However, the record indicates that the Appellants’ opposition to the motion to quash declared that Sean Alfortish’s ownership was judicially confessed. See, C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, p. 5 (La. 12/3/03), 861 So.2d 156, 159 (“A judicial confession has the effect of waiving evidence as to the subject of the admission”). 2 messages. In response, the motion to quash argued that Sean Alfortish is a non-
party to the litigation, is not a witness to the 2017 accident, and has no connection
with the facts at issue. Thus, his personal information is irrelevant to this matter
and the subpoena should be quashed. Opposing the motion to quash, the
Appellants revealed that Sean Alfortish’s cell phone records were sought because
his cell phone number appeared numerous times in the cell phone records of
Cornelius Garrison. In arguing why that was relevant to this case, the Appellants
informed the trial court that Cornelius Garrison had been indicted in a federal court
case, United States v. Garrison (“the Indictment”).2 The Indictment alleged that
Cornelius Garrison had been involved in staging as many as fifty accidents with
18-wheel tractor trailers with “Co-Conspirator A.” The Appellants further
revealed that Cornelius Garrison had been in contact with the driver in this case
Ortegas Coleman several times before and after the 2017 accident including
several calls the day of that accident. The record supports those facts.
Next, the Appellants suggest that even though Sean Alfortish had no contact
with Ortegas Coleman at any time, and no contact with Cornelius Garrison on the
date of the 2017 accident, he was “Co-Conspirator A.” That assertion was based
on news outlets’ reporting but has not been substantiated. Sean Alfortish has not
been named in the Indictment. So, although Appellants were able to connect
Ortegas Coleman to Cornelius Garrison, none of the evidence presented establishes
a connection between Sean Alfortish and Ortegas Coleman or any plaintiff in this
case.
Generally, a party may obtain discovery of any information which is
relevant to the subject matter involved in the pending action. There are limitations
2 No. 2:20-CR-00092 (E.D. La. 2020). 3 to this rule, however, when justice requires that a party or other person be
protected from annoyance, embarrassment, oppression, or undue burden or
expense. Stolzle v. Safety & Systems Assur. Consultants, Inc., 2002-1197, p.2 (La.
05/24/02); 819 So. 2d 287, 289, (citing La. Code Civ. P. Art. 1422. La. Code Civ.
P. art. 1426; Laburre v. East Jefferson Gen. Hosp., 555 So. 2d 1381 (La. 1990)).
Additionally, a showing of relevancy and good cause for production has been
required in Louisiana cases where a party seeks production of records from a non-
party. Stolzle, 2002-1197, p.3, 819 So.2d at 289 (citing Ouachita Nat’l Bnk in
Monroe v. Palowsky, 554 So.2d 108 (La.App. 2nd Cir. 1989)); see St. Bernard Port,
Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 2014-0286, p. 5 (La.App.
4 Cir. 8/27/14), 147 So.3d 1266, 1268.
Further, La. C.C.P. Art. 1426 provides in pertinent part:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had.
Prior to ordering discovery from a third party, which has invoked its right to be
protected, the trial court must be convinced of the relevancy and necessity of such
discovery in achieving its intended purpose. Channelside Services., LLC v.
Chrysochoos Group, Inc., 2015-0064, p. 19 (La. App. 4 Cir. 05/13/16); 194 So. 3d
751, 762. A trial court’s regulation of pre-trial discovery is afforded broad
discretion and will not be reversed by an appellate court in the absence of a clear
abuse of discretion. Channelside, 2015-0064, p.8, 194 So.3d at 756 (citing
4 Sercovish v. Sercovich, 2011-1780, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 600,
603).
In Stolzle, supra, the trial court considered requests for production which,
although directed to a party, concerned the personal information of non-parties,
including credit card receipts, telephone bills, cellular telephone bills, fax changes,
travel ledgers, gas receipts, car rental receipts, airline receipts, and lodging
receipts. Stolzle, 2002-1197, p. 3, 819 So.2d at 289. Although the trial court denied
a motion for protective order, the Louisiana Supreme Court vacated and set aside
the trial court order and remanded the matter back to the trial court to grant the
protective order. Stolzle, 2002-1197, p. 4, 819 So.2d at 290. The Court noted, “The
trial court failed to determine whether Mr. Stolzle has made a showing of good
cause, nor did it make a finding he could not discover this information in a less
intrusive manner.” Stolzle, 2002-1197, p. 3, 819 So.2d at 289.
In addition, this Court in St. Bernard Port, Harbor & Terminal Dist. v.
Violet Dock Port, Inc., L.L.C., extended protection to a non-party with respect to
information and documents not necessary to determine the issues in dispute. In that
expropriation suit, the plaintiff issued a trial subpoena and subpoena duces tecum
non-parties to obtain a property valuation report, documents associated with the
report, and testimony regarding the report and documents. St. Bernard Port, 14-
0286, p. 2, 147 So.3d at 1267. The trial court granted a motion to compel and
denied a motion to quash. This Court reversed, finding that the trial court abused
its discretion because St. Bernard Port failed to make a showing of good cause.
This Court further stated that St. Bernard Port had not shown that the report was
necessary to establish the value of the Violet Dock Port property in the
expropriation action. Id. 5 Stolzle and St. Bernard Port demonstrate that the party seeking discovery
from a non-party must show good cause or the subpoena will be quashed. Federal
cases specifically addressing motions to quash subpoenas for cell phone records
Winter v. Bisso Marine Co., Inc., 13-CV-5191, 2014 WL 3778833, (E.D. La. July
29, 2014) and Scott v. Complete Logistical Services, LLC, No. 19-CV-11672, 2021
WL 2402161 (E.D. La. June 11, 2021), are guidance for this Court on the issue. In
Winter, defendant Bisso issued a subpoena duces tecum to Verizon Wireless,
plaintiff's cell phone provider, seeking all records related to plaintiff’s cell phone
number, including billing and usage charges, and all logs of incoming and
outgoing calls and texts, and data transfers for a specified period of time. Winter,
2014 WL 3778833, at *1. Bisso asserted that the records would reveal
information relevant to the plaintiff’s claim that the accident caused him to have
ongoing mental and physical problems. Id. The plaintiff moved to quash the
subpoena, arguing that it was overly broad, unduly burdensome and sought
irrelevant and possibly privileged materials and was not reasonably calculated to
lead to the discovery of admissible evidence. The district court granted the motion
to quash, finding Bisso’s arguments too tenuous to support a finding that the
requested records were relevant. Id.
In Scott, a more recent federal decision, the plaintiff, Joseph Scott filed a
seaman complaint after sustaining injuries when a crane fell on his shoulder. Scott,
2021 WL 2402161, at *1. Thereafter, defendants filed a subpoena for the
production of two years of Scott’s cell phone records for the purpose of
establishing that Scott was exaggerating his injuries. Scott filed a motion to quash
the subpoena claiming the subpoena was unreasonable and a fishing expedition
that was an invasion of privacy. Id. Relying on Winter, the district court reasoned 6 that the subpoena was not proportional to the needs of the case. Scott, 2021 WL
2402161, at *3. Both cases acknowledged an individual’s reasonable expectation
of privacy in the electronic contents of a cell phone.
In Winter and Scott, the defendants sought the cell phone records of a party
plaintiff to obtain information to bolster their defense against the plaintiff’s claims.
The district court in both cases found that the defendants failed to establish good
cause. Here, the Appellants rely on speculation and conjecture in asserting that
Sean Alfortish’s cell phone records will support their claims of fraud in this case.
The trial court provided the following oral reasons for quashing the subpoena:
Mr. Alfortish is not a party. He’s not an attorney in this case. I believe before you can get his telephone records, you need to get something more. So, for that reason I’m going to grant the motion to quash a subpoena for Mr. Alfortish’s telephone records.
Given the record and applicable law, this Court does not find that the
trial court abused its vast discretion in this matter. Accordingly, the ruling
of the trial court to quash the subpoena is affirmed.