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Black v. Wrigley

United States District Court, S.D. California

June 28, 2019


         Underlying action pending in the Northern District of Illinois: 1:17-cv-00101


          Bernard G. Skomal, Judge

         On October 12, 2018, nonparty Anthony J. Dain, Esq. (“Dain” or “movant”) moved to quash a subpoena, issued under Federal Rule of Civil Procedure 45, by Katherine Black in the matter of Katherine Black v Cherie Wrigley, Melissa Cohenson, Brian A. Raphan, P.C., and Pamela Kerr, Case No. 1:17-cv-00101 (N.D. Ill.). (ECF 1) In his motion, Dain also requested that this Court impose sanctions against Black and her counsel, Michael H. Schaalman, Esq., for having served the improper subpoena. Dain, an attorney, is representing himself in this matter.

         On October 26, 2018, this Court issued a briefing schedule as to the substantive issues raised in the motion as well as the issue of whether this Court should transfer the motion to the federal district court presiding over the underlying action pursuant to Rule 45(f). (ECF 3) Plaintiff Black did not file any opposition by November 9, 2018 as directed. On November 16, 2018, Dain filed a reply. (ECF 5)

         By Order dated April 26, 2019 (ECF No. 7), this Court found that a transfer was not warranted under Rule 45(f) and granted Dain's motion to quash the subpoena pursuant to Fed.R.Civ.P. 45. This Court found that the subpoena was facially improper, beyond the geographical limits specified in Rule 45, and failed to allow Dain a reasonable time to comply. (Id. at 8-9) In the Order, the Court also found that “sanctions against Black and/or Schaalman appear to be appropriate in this case” (Id. at 13) and ordered Black and Schaalman to show cause “as to why an order imposing sanctions should not be entered against them for service of the improper subpoena upon non-party Anthony J. Dain and the failure to withdraw same. Black and Schaalman must address whether there was substantial justification for the subpoena, whether they acted in bad faith with respect to the subpoena, whether Black or Schaalman should be sanctioned for the improper subpoena and whether the sanction should be apportioned between them in some way. Black and Schaalman may also include any objections to Dain's request for sanctions in the amount indicated.” (Id. at 15)

         The Court directed Black and Schaalman to file statements outlining their respective positions by May 17, 2019, after which date the Court would issue an order determining sanctions. Black and Schaalman filed a joint response on May 17, 2019. (ECF No. 11) By Order dated May 23, 2019 (ECF No. 13), this Court directed Movant Dain to file any reply on or before June 7, 2019. Dain filed his reply on June 7, 2019. (ECF No. 14)

         For the reasons set forth herein, Dain's request for sanctions is GRANTED IN PART.

         The background of this matter was set forth in detail in the Court's prior Order, which is incorporated by reference herein. (See ECF No. 7)


         In their joint response, Black and Schaalman assert through their counsel, Sharan R. Abraham, Esq. of Roslyn Heights, NY that the subpoena at issue here was served with a proper justification, not in bad faith and that sanctions are not warranted. They acknowledge that the service of the subpoena was untimely, but they contend that it was justified because Dain's production of documents and his privilege log in response to a prior subpoena “appeared to be incomplete.” (ECF No. 11 at 1-2) Citing discrepancies between Dain's privilege log and those of other defendants in the underlying action pending in the Northern District of Illinois, Black and Schaalman allege that Dain failed to produce a letter responsive to the prior subpoena. They claim that when asked about the letter at his deposition in San Diego on September 6, 2018, Dain said that “if you have some evidence that I in fact sent [the letter] to [Wrigley], then I'll be happy to provide you with the draft.” (Id. at 3)

         Black and Schaalman go on to assert that they did not have “evidence” that proved Dain sent the letter, so they decided to send Dain another subpoena on September 14, 2018, the closing date of discovery, which was broader than the prior subpoena served in August 2018. They claim that this latest subpoena was meant to “capture or at least identify additional communications” with respect to discovery about the letter. (Id. at 4) Rather than challenging Dain's prior production, Black and Schaalman claim that they hoped Dain would recognize with the second (improper) subpoena that his prior production and disclosure needed supplementing. They add that they could have requested these same documents in another case pending in the Eastern District of New York, Black et al v Dain et al, 16-cv-1238, in which Dain is a party and fact discovery is still available, but they failed to do so. They concede that would have been the better procedure; but argue that this demonstrates they did not send the subpoena without justification or in bad faith. Black and Schaalman assert that they had a reasonable basis to believe that Dain had additional documents in his archive that he may have failed to produce. (Id. at 4-5)

         Black and Schaalman argue that they should not be sanctioned for their service of and failure to withdraw the subpoena. Schaalman asserts through counsel that he understood Dain's email to be an objection per Fed.R.Civ.P. 45(d)(2)(B), and that once he and Black received the objections they had the option to either file a motion to compel or let their subpoena lapse by failing to give notice of their intent to file a motion to compel. In support of this assertion, they cite Fed.R.Civ.P. 45(d)(2)(B)(i), which provides that “[a]t any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.” Black and Schaalman contend that Dain, an experienced litigator, knew that without a notice that they intended to move to compel, Dain had no obligation to comply with the subpoena. However, aside from reference to Rule 45, they do not cite authority for this claim.

         Black and Schaalman go on to argue that in filing the motion to quash, it appears that Dain was more interested in attacking Schaalman's character than avoiding a response to the subpoena. With respect to the case cited by Dain in which Schaalman was found in contempt, they claim that under Illinois Circuit Court practice, appellate review of a discovery order was only available if counsel accepted a contempt order. Concerning the case in which Schaalman was sanctioned, they write that the case “involved the misconduct in an unrelated case of another co-counsel, Ed Peters, who had been the district attorney for Hinds County, Mississippi for decades, which unfortunately tainted perfectly appropriate conduct in the Eaton case.” (Id. at 6-7)

         Turning to Dain's damages, Black and Schaalman argue that any undue burden or expense Dain incurred was the result of his efforts to move to quash, “an exercise that Dain did not have to pursue, ” and not by searching for or producing additional documents. (Id. at 7) They deny that the personal service of the subpoena on the general counsel for Dain's firm caused them undue burden or expense because they “receive and send subpoenas on a regular basis…” (Id. at 7) Black and Schaalman admit that they regret serving the subpoena and should have served it earlier, but that Dain suffered no undue burden or expense except for filing the motion to quash. (Id. at 7-8)

         With respect to the division of the sanction between Black and Schaalman, they state that “because Schaalman continues to represent Black, it would be inappropriate for either [of them] to suggest an allocation of any sanction. In practice, this Court's Order is already a strong sanction and will remain as evidence of this Court's disapproval of the decision to serve the September 14 subpoena. Black and Schaalman need no further demonstration that their service of the subpoena was a mistake.” (Id. at 8) They do not state in which capacity Black continues to represent Schaalman and they do not make any specific objections or comments to the amount of sanctions requested by Dain. They further fail to offer any explanation for their failure to withdraw the subpoena or submit any opposition to the motion to quash.

         In Dain's reply, he asserts that Black and Schaalman provide no justification for their improper subpoena, legally, ethically or morally. He points out that they admitted they intentionally served a subpoena they knew was in violation of discovery rules. Dain argues that actions taken with substantial justification are those that are “justified to a degree that could satisfy a reasonable person” (citing Pierce v Underwood, 487 U.S. 552');">487 U.S. 552 [1988]), and no reasonable person would believe that an intentional violation of the discovery rules would be justified. (ECF No. 14 at 1-2)

         Dain further contends that Black and Schaalman's purported reason for serving the improper subpoena was fabricated. He points out that even if their claim that they believed his response to the prior subpoena was incomplete, serving a subpoena in violation of the federal and local rules in response to that would “turn the law on its head [and] invite and encourage vigilante lawlessness in the discovery process.” (Id. at 2) Dain avers that the only response to a perception that discovery is incomplete is to meet and confer and then seek court intervention if that is unsuccessful. He notes that Black and Schaalman failed to seek leave from the Court to violate the scheduling order. Further, he argues, there is no substantial justification for their failure to withdraw the improper subpoena after multiple explanations why it was invalid and then proceeding to have the subpoena personally served after receiving those explanations from Dain. (Id. at 3)

         Dain submits as an exhibit a copy of a nearly identical subpoena to the one at issue here that was sent by email from Schaalman to Bartholomew Russo, Esq., the court evaluator for the related New York State court proceeding, on the same day, September 14, 2018 at 5:46 p.m. He points out that this subpoena was the first issued to Russo so Black and Schaalman cannot claim that it was the result of a prior incomplete production. This subpoena issued to Russo similarly left the date and time for production blank and commanded production at Schaalman's Milwaukee office. Dain argues that this second defective, untimely subpoena served on the same day around the same time as the one sent to him belies Black and Schaalman's claims that it was the result of an inadequate production and demonstrates that it was part of a ...

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