Ensminger v. Credit Law Center, LLC a/k/a Thomas Andrew Addleman L.L.C., d/b/a Credit Law Center et al, 2:19-cv-02147, No. 70 (D.Kan. Jan. 24, 2020) (2024)

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`Case 2:19-cv-02147-JWL-JPO Document 70 Filed 01/24/20 Page 2 of 10
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`On November 6, 2019, Williston filed a motion to quash the first subpoena from
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`defendants.4 The undersigned U.S. Magistrate Judge, James P. O’Hara, denied the motion
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`because it was not filed in the district where compliance was required.5 Williston also filed
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`a motion for protective order, which the court denied.6 Defendants served a second
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`subpoena on December 9, 2019, this time for production in Overland Park, Kansas. For
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`the reasons below, the court respectfully denies Williston’s motion.
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`Analysis
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`Rule 45 governs subpoenas issued to non-parties, with section (d) of that Rule
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`relating to enforcement. Subsection (d)(3)(A) requires the court to quash or modify a
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`subpoena that (i) fails to allow a reasonable time to comply; (ii) requires a person to comply
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`beyond the geographical limits specified in Rule 45(c); (ii) requires disclosure of privileged
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`or other protected matter, if no exception or waiver applies; or (iv) subjects a person to
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`undue burden.7 Generally, non-parties answering a Rule 45 subpoena are offered
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`heightened protection from discovery abuse.8
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`Defendants assert the court has already rejected Williston’s arguments of privilege,
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`undue burden, irrelevance, and harassment. The court did consider these arguments in the
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`4 ECF No. 58.
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`5 ECF No. 59.
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`6 ECF No. 63.
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`7 Fed. R. Civ. P. 45(d)(3)(A).
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`8 Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164 MLBDWB,
`2007 WL 2122437, at *4 (D. Kan. July 20, 2007).
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`context of the protective order.9 The court looks at the substantive arguments now in the
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`context of the subpoena.
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`Relevance
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`Although Rule 45 doesn’t specifically include relevance or overbreadth as a basis
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`to quash a subpoena, “this court has long recognized that the scope of discovery under a
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`subpoena is the same as the scope of discovery under Rule 26(b) and Rule 34.”10 Rule
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`26(b) of the Federal Rules of Civil Procedure allows discovery regarding “any
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`nonprivileged matter that is relevant to any party’s claims or defenses and proportional to
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`the needs of the case.”11 The proportionality standard moved to the forefront of Fed. R.
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`Civ. P. 26(b) when the rule was amended in 2015, which reinforced the need for parties to
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`focus on the avoidance of undue expense to the parties.12 Although the court still considers
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`relevance, the previous language defining relevance as “reasonably calculated to lead to
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`the discovery of admissible evidence,” was deleted in the 2015 amendment “because of it
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`was often misused to define the scope of discovery and had the potential to ‘swallow any
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`9 ECF No. 63.
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`10 Butcher v. Teamsters Local 955, No. 18-2424-JAR-KGG, 2019 WL 3453714, at *2 (D.
`Kan. July 31, 2019) (quoting Parker v. Delmar Gardens of Lenexa, Inc., No. 16-2169-
`JWL-GEB, 2017 WL 1650757, at *3 (D. Kan. May 2, 2017)).
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`11 Fed. R. Civ. P. 26(b)(1). The proportionality standard takes into account “the importance
`of the issues at stake in the action, the amount in controversy, the parties’ relative access
`to relevant information, the parties’ resources, the importance of the discovery in resolving
`the issues, and whether the burden or expense of the proposed discovery outweighs its
`likely benefit.” Id.
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`12 Frick v. Henry Indus., Inc., No. 13-2490-JTM-GEB, 2016 WL 6966971, at *3 (D. Kan.
`Nov. 29, 2016).
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`other limitation.’”13 As such, the requested information must be nonprivileged, relevant,
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`and proportional to the needs of the case to be discoverable.14
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`When the discovery sought appears relevant on its face, the party resisting discovery
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`has the burden to establish the lack of relevance by demonstrating that the requested
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`discovery does not come within the broad scope of relevance as defined under Rule
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`26(b)(1), or is of such marginal relevance that the potential harm the discovery may cause
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`would outweigh the presumption in favor of broad disclosure.15 Conversely, when
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`relevance is not apparent on the face of the request, the party seeking the discovery has the
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`burden to show the relevance of the information or documents sought.16
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`The court did not have to decide whether the discovery requests were relevant in its
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`analysis of the protective order. In its analysis of the motion to quash, the court finds the
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`subpoena seeks relevant evidence. The subpoena seeks:
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`1. All correspondence and communications (including but not limited to
`emails, text messages, and direct messages) with Mark Ensminger that
`reference or discuss the Credit Repair Organizations Act; any potential
`lawsuit or claims against [Credit Law Center (“CLC”)] or any credit
`repair organization; or any payment, compensation or other benefit to be
`provided to or by you in connection with any potential lawsuit or claims
`asserted by Mr. Ensminger against CLC.
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`13 Brown v. Panhandle E. Pipeline Co. L.P., No. 16-CV-2428-JAR-TJJ, 2018 WL 263238,
`at *2 (D. Kan. Jan. 2, 2018).
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`14 Funk v. Pinnacle Health Facilities XXXII, LP, No. 17-1099-JTM-KGG, 2018 WL
`6042762, at *1–2 (D. Kan. Nov. 19, 2018).
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`15 DIRECTV, Inc. v. Pucinelli, 224 F.R.D. 677, 684 (D. Kan. 2004) (citing McCoy v.
`Whirlpool Corp., 214 F.R.D. 642, 643 (D. Kan. 2003)).
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`16 Id.
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`2. All documents that reference or discuss Mark Ensminger, on the one
`hand, and, on the other hand, the Credit Repair Organizations Act; any
`potential lawsuit or claims against CLC or any credit repair organization;
`or any payment, compensation or other benefits to be provided to or by
`you in connection with any potential lawsuit or claims asserted by Mr.
`Ensminger against CLC.17
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`Although there is no time constraint placed on the subpoena, there is a subject
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`limitation: communication and documents referencing plaintiff, the Credit Repair
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`Organizations Act, and claims against credit repair organizations, including defendants.
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`Although defendants’ ultimate argument is not totally clear to the court, they insinuate
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`Williston may have a financial interest in this litigation and some financial agreements
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`exist between him and plaintiff’s counsel.18 Defendants contend Williston has relevant
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`information, related to plaintiff (the putative class representative) and his stake in the
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`controversy.19 Evidence related to the class representative’s stake in the controversy or
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`any interests conflicting with the interest of the class – which are sought by this subpoena
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`– are facially relevant. Williston does not meet his burden to show these documents are
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`not relevant.
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`Privilege
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`Next, Williston argues the subpoena seeks privileged information. Rule 45(d)(3)(A)
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`outlines circ*mstances under which a court must quash or modify a subpoena, including
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`17 ECF No. 68-1.
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`18 ECF No. 58 at 6; ECF No. 63 at 4.
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`19 ECF No. 60 at 5.
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`Case 2:19-cv-02147-JWL-JPO Document 70 Filed 01/24/20 Page 6 of 10
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`when the subpoena “requires disclosure of privileged or other protected matter, if no
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`exception or waiver applies,” and when the subpoena “subjects a person to undue burden.”
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`But, as the court noted in its prior order, “it is well-established in this District that blanket
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`claims of attorney-client privilege or work-product protection do not satisfy the objecting
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`party’s burden of proof.”20
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`The court previewed for Williston that any attorney-client privilege objection would
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`need to reference specific requests he contends are improper. Williston reasserts in his
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`motion that responsive documents would be protected by privilege because they would
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`“necessarily be either work-product or legal advice to a current client, past client, or
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`potential client.”21 But “the mere fact that one is an attorney does not render everything
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`he does for or with the client privileged.”22
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`Although Rule 26(b) doesn’t expressly require a privilege log, a party withholding
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`information on privilege grounds generally satisfies the rule by providing one. Cases in
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`this district have outlined in detail the specific requirements of a privilege log; it should, at
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`the very least, contain sufficient information so the opposing party and the court can
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`20 Kemp v. Hudgins, No. 12-2739-JAR-KGG, 2013 WL 4857771, at *2 (D. Kan. Sept. 10,
`2013) (citing Linnebur v. United Telephone Ass’n, No. 10–1379–RDR, 2012 WL
`1183073,*4 (D. Kan. April 9, 2012)).
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`21 ECF No. 66 at 5.
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`22 In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 675 (D. Kan.
`2005).
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`Case 2:19-cv-02147-JWL-JPO Document 70 Filed 01/24/20 Page 7 of 10
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`evaluate the claimed privilege.23 The court recognizes Williston may have responsive
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`documents protected by privilege, given his prior representation of plaintiff in a Fair Debt
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`Collections Practice Act action.24 But it seems unlikely all responsive documents would
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`be privileged.
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` Defendants expressly disclaim any request for documents or
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`communications related to that matter, and Williston has confirmed he does not and has
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`not represented plaintiff in connection with the topics at issue in this lawsuit. Regardless,
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`the court can’t evaluate Williston’s privilege argument on its face because he has not
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`provided any privilege log.
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`Williston argues he should “not be compelled to expend the time and energy to
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`create and submit a privilege log.”25 Compliance with a subpoena will inevitably involve
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`some measure of burden, so the court will not deny a party access to relevant discovery
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`merely because compliance inconveniences a non-party or subjects it to some expense.26
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`As the court previously stated, Williston is an attorney who can create a privilege log. His
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`23 See, e.g., In re Syngenta AG MIR 162 Corn Litig., No. 14-MD-2591-JWL, 2017 WL
`1106257, at *4–5 (D. Kan. Mar. 24, 2017) (listing the general requirements of a privilege
`log).
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`24 See Ensminger v. Fair Collections & Outsourcing, Inc., Case No. 16-2173-CM (D. Kan.
`2016).
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`25 ECF No. 66 at 4.
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`26 XPO Logistics Freight, Inc. v. YRC, Inc., No. 16-MC-224-CM-TJJ, 2016 WL 6996275,
`at *5 (D. Kan. Nov. 30, 2016), objections overruled, No. 16-MC-220-JWL, 2017 WL
`67878 (D. Kan. Jan. 6, 2017).
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`Case 2:19-cv-02147-JWL-JPO Document 70 Filed 01/24/20 Page 8 of 10
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`argument that he would be forced to do “extensive searches of his email despite being a
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`solo practitioner”27 is unpersuasive to the court.
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`Undue Burden
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`Finally, Williston argues the subpoena imposes an undue burden. The court
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`evaluates relevance, the need of the party for the documents, the breadth of the document
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`request, the time period covered by it, the particularity with which the documents are
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`described, and the burden imposed.28 The court must balance defendants’ needs for the
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`information with the potential for undue burden or expense imposed on the third-party
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`respondent. The status of a person as a non-party is a factor that weighs against
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`disclosure.29 However, the court will not excuse compliance simply because the non-party
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`asserts it is unduly burdensome. The subpoenaed party must show compliance would
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`seriously disrupt its normal business operations.30
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`On balance, the court finds the subpoena does not impose an undue burden. As
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`discussed above, the materials sought are relevant to the evaluation of class certification in
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`this case. The court takes Williston’s point that defendants should seek this discovery from
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`27 ECF No. 69 at 3.
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`28 Butcher v. Teamsters Local 955, No. 18-2424-JAR-KGG, 2019 WL 3453714, at *3 (D.
`Kan. July 31, 2019); Swift Beef Co. v. Alex Lee, Inc., No. 18-0105-EFM-KGG, 2018 WL
`5634003, at *4 (D. Kan. Oct. 31, 2018).
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`29 Swift Beef Co., 2018 WL 5634003, at *4 (quoting Goodyear Tire & Rubber Co. v. Kirk’s
`Tire & Auto Servicenter, 211 F.R.D. 658, 662-663 (D. Kan. 2003)).
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`30 Martinelli v. Petland, Inc., No. 09-529-PHX-DGC, 2010 WL 3947526, at *6 (D. Kan.
`Oct. 7, 2010).
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`Case 2:19-cv-02147-JWL-JPO Document 70 Filed 01/24/20 Page 9 of 10
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`plaintiff.31 The court agrees defendants may be able to obtain many of these documents
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`through plaintiff. But the court notes defendants are entitled to seek discovery from non-
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`parties, even though it is often more inconvenient and expensive than it is from parties.32
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`Furthermore, the scope of the subpoena goes beyond those overlapping documents; it also
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`seeks documents that “reference or discuss” plaintiff.33
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`The court is also mindful of the potential burden of combing through e-mails and
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`other files that include plaintiff’s name, given Williston represented him in prior, unrelated
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`litigation. The document request is not limited by a time period, but it is tailored in subject
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`matter. The parties seem to offer an initial strategy in their briefing. Defendants apparently
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`seek a search of Williston’s emails involving plaintiff’s name and email addresses, as they
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`relate to discussions about the Credit Repair Organizations Act, and claims against credit
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`repair organizations.34 Williston argues he will have to manually search through his e-
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`mails because he “may have responded to some other person and discussed the case without
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`using Ensminger’s name.”35 In his reply, he suggests the revised language “all documents
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`that can be found by using the standard search function for Ensminger’s name and email
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`31 ECF No. 69 at 1.
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`32 Hefley v. Textron, Inc., 713 F.2d 1487, 1497 n. 2 (10th Cir. 1983).
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`33 ECF No. 68-1.
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`34 ECF No. 68 at 2.
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`35 ECF No. 69 at 2.
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`address(es).”36 Although Williston uses this language to try to prove his point the subpoena
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`as written is too broad, the proposed language seems to accurately portray what defendants
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`are seeking. The court does not direct Williston to stop his search there, as other responsive
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`documents may exist. But the court believes the search method discussed by both parties
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`is a reasonable starting point that does not unduly burden Williston. The remaining effort
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`required to search his files is not so burdensome as to justify quashing the subpoena.
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`IT IS THEREFORE ORDERED that Williston’s motion to quash (ECF No. 66) is
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`denied.
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`Dated January 24, 2020, at Kansas City, Kansas.
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`s/ James P. O’Hara
`James P. O’Hara
`U.S. Magistrate Judge
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`36 Id. at 3.
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