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Medina v Holt, MA, Opp Def Mot to Inspect, Inmate Telephone Records, 2012

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Case 1:11-cv-10256-NMG Document 39 Filed 02/24/12 Page 1 of 7

Plaintiff submits this memorandum both in opposition to Defendants’ Motions to Inspect
Inmate Telephone Records of Plaintiff Carlos Medina [Dkt. 35], nonparty Tomeka White [Dkt. 36],
and nonparty Julio Medina [Dkt. 37], and in support of Plaintiff’s Motion to Quash and for a
Protective Order [Dkt. 38]. Defendants’ request for all recorded telephone conversations of each
individual, along with other information, over a period of three years, is overbroad. Defendants
claim, without any foundation, that discovery of these telephone calls will yield impeachment
evidence in the form of prior inconsistent statements and, in the case of Plaintiff, party admissions.
Defendants have not shown that any of the calls are relevant to the parties’ claims and defenses,
much less shown good cause for discovery solely for impeachment material. The request will cause
Plaintiff and the nonparties annoyance, embarrassment, and undue burden under Rule 26(c)(1). To
the extent the correctional facilities may produce phone calls with Plaintiff’s counsel or other
attorneys in response to the subpoena, this will invade the attorney-client privilege and work product
protection. The Court should deny Defendants’ motions, quash the subpoenas, and/or enter a
protective order forbidding the requested discovery.

Case 1:11-cv-10256-NMG Document 39 Filed 02/24/12 Page 2 of 7

This case arises out of an incident on February 28, 2009, in which Plaintiff, who was
homeless at the time, alleges that Defendants, two Boston Police officers, assaulted him and broke
his nose with a flashlight because they incorrectly believed he was concealing drugs. Tomeka White
is a nonparty witness to the incident; Julio Medina, Plaintiff’s brother, did not witness the altercation
but saw Plaintiff before and after.
A few days after the incident, Plaintiff filed a complaint with the Internal Affairs Division of
the Boston Police Department. As part of its investigation, the BPD interviewed Plaintiff, Ms.
White, and Julio Medina within two months of the incident. Since that time, all three of these
individuals have been and continue to be incarcerated.
Plaintiff filed suit in February 2011. Discovery has closed. The deadline was February 10,
2012, having been extended from December 9, 2011. During discovery, Defendants took the
depositions of Plaintiff, Ms. White, and Julio Medina. Defendants also obtained complete CORI
information on all three individuals.
On February 10, 2012, the last day of discovery, Defendants filed the motions at issue. The
same day, defense counsel prepared subpoenas of Massachusetts Department of Corrections (DOC)
and the Suffolk County Sheriff’s Department (SCSD), which are returnable March 13 and March 15,
2012.1 The subpoenas, which Defendants did not attach to their motions, are different from the
proposed orders.2 Defendants’ motions and proposed orders seek, for each of the three individuals,
from each of two agencies, “all prisoner phone PINs, authorized call lists, visitor logs, prisoner call
logs, and all recordings of phone conversations excluding those calls protected by the attorney-client
The record does not reflect when or if they were served on the DOC and SCSD. There is also no indication that copies
of the subpoenas, or of Defendants’ motions, were sent to Tomeka White and Julio Medina, permitting them to assert
any interest they may have in the subpoenaed materials.
2 The subpoenas are attached. Exhibits 1 and 2 are subpoenas for Plaintiff’s records from DOC and SCSD, respectively.
Exhibits 3 and 4 are for both nonparties’ records from DOC and SCSD, respectively. The last page of each subpoena,
Schedule A, describes the materials sought and is identical for all four subpoenas except for the names.


Case 1:11-cv-10256-NMG Document 39 Filed 02/24/12 Page 3 of 7

privilege, from February 28, 2009 – present.” The subpoenas, however, contain no exception for
calls protected by the attorney-client privilege, seeking “a complete list of all phone calls … [and] all
recordings of any and all telephone conversations.”3

The Court Should Deny Defendants’ Motion, and Quash the Subpoenas, for
Plaintiff’s Calls and Records
The Court should quash the subpoenas and deny Defendants’ motion for Plaintiff’s phone

calls. Plaintiff has standing to challenge the subpoenas directed to nonparties because Plaintiff has a
“personal right or privilege” regarding the documents sought – the attorney-client privilege for
attorney calls, and a privacy interest in avoiding unwarranted disclosure of personal calls. See
Minnesota Sch. Boards Ass'n Ins. Trust v. Employers Ins. Co. of Wausau, 183 F.R.D. 627, 629 (N.D. Ill.
1999); Sierra Rutile Ltd. v. Katz, 90 CIV. 4913(JFK), 1994 WL 185751 (S.D.N.Y. May 11, 1994).
Further, “[i]t is well settled … that the scope of discovery under a subpoena is the same as the scope
of discovery under Rules 26(b) and 34. Thus, the court must examine whether a request contained in
a subpoena is overly broad or seeks irrelevant information under the same standards as set forth in
Rule 26(b) and as applied to Rule 34 requests for production.” Goodyear Tire & Rubber Co. v. Kirk's
Tire & Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 662 (D. Kan. 2003); see also, e.g., Cofield v.
City of LaGrange, Ga., 913 F. Supp. 608, 614 (D.D.C. 1996) (“A federal court has the authority to
quash a subpoena that seeks material which is clearly irrelevant.”)(citing 9A Charles A. Wright &
Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 2459, at 42 (1995)).
As discussed more fully below in the section concerning Plaintiff’s motion for a protective
order, Defendants have not shown that any of the phone calls or other information sought contain
any information relevant to this lawsuit. It is pure speculation that the calls contain prior
inconsistent statements or relevant admissions. To discern whether any such statements exist will

Exhibits 1-4, Schedule A (emphasis in originals).


Case 1:11-cv-10256-NMG Document 39 Filed 02/24/12 Page 4 of 7

require listening to every phone call (most of which are likely in Spanish) over a several-year period,
an undue burden and expense, as well as an invasion of Plaintiff’s privacy. To the extent compliance
with the subpoenas results in production of phone calls from Plaintiff’s counsel, or from Plaintiff’s
criminal attorneys, this would violate the attorney-client privilege.

The Court Should Enter a Protective Order Prohibiting Discovery of All of the
Requested Records for Plaintiff and Both Nonparty Witnesses
The Court should deny all of Defendants’ motions and enter a protective order under Rule

26(c) with respect to all of the requested calls and records. Courts have recognized Rule 26 as an
appropriate vehicle for parties to challenge improper subpoenas to nonparties. See, e.g., Mfr. Direct,
LLC v. Directbuy, Inc., 2007 WL 496382, at *3 (N.D. Ind. Feb. 12, 2007) (“weight of authority”
permits such challenges) (collecting cases); G.K. Las Vegas Ltd. P'ship v. Simon Prop. Group, Inc., 2007
WL 119148, at *3 (D. Nev. Jan. 9, 2007) (collecting cases); see also Moon v. SCP Pool Corp., 232 F.R.D.
633, 636 (C.D. Cal. 2005) (permitting party to challenge subpoena, even though nonparty subject of
subpoena had not objected, where “the subpoena is overbroad on its face and exceeds the bounds
of fair discovery”). A protective order is appropriate here because the subpoenas exceed the scope
of relevance under Rule 26(b)(1), and will cause annoyance, embarrassment and undue burden and
expense under Rule 26(c)(1).

Defendants have not shown that any of the requested calls or records are

Discovery in a civil case is subject to the limitations of Rule 26(b)(1). Without a showing that
the materials sought are relevant to any party’s claim or defense, they are not subject to discovery.
See Surles v. Air France, 2001 WL 1142231, at *2 (S.D.N.Y. Sept. 27, 2001) (“[T]he information
sought by Defendant does not become relevant merely because Defendant speculates that it might
reveal useful material.”). Defendants have not even made this minimal showing, much less the
“good cause” required for discovery solely to unearth potential impeachment material, their avowed

Case 1:11-cv-10256-NMG Document 39 Filed 02/24/12 Page 5 of 7

purpose. See Dzanis v. JPMorgan Chase & Co., 2011 WL 5979650, at *6 (S.D.N.Y. Nov. 30, 2011)
(finding no good cause to discover potential impeachment material where the request is speculative)
(collecting cases).
Defendants’ request for recordings of all phone calls, along with all prisoner phone PINs,
authorized call lists, visitor logs, and prisoner call logs, for a three-year period is overbroad. The
subpoenas contain no limitation as to subject matter, and Defendants do not identify any basis for
supposing that the records contain relevant information. Courts have repeatedly rejected this kind of
“fishing expedition.” See, e.g., Martinez v. Rycars Const., LLC, 2010 WL 4117668, at *2 (S.D. Ga. Oct.
18, 2010) (denying request for plaintiff’s “cellphone records of every telephone call to and from
anyone” for a two year period) (collecting cases); Pendlebury v. Starbucks Coffee Co., 2005 WL 2105024,
at *2 (S.D. Fla. Aug. 29, 2005) (denying request for “[a]ll invoices, statements, or call logs that reflect
calls, text messages, electronic mail, or other communications made to or from a cellular telephone,
Blackberry, pager, or other portable communications device owned or used by plaintiffs during the
period June 2001-present”); Judicial Watch, Inc. v. U.S. Dept. of Commerce, 34 F. Supp. 2d 47, 52
(D.D.C. 1998) (denying request for all “telephone, facsimile, and mail records showing
communication … regarding the issues in this case” as “tremendously overbroad”).

The requested discovery will cause annoyance, embarrassment, and
undue burden .

Disclosure of the records will create an undue burden and subject Plaintiff and the nonparty
witnesses to annoyance and embarrassment. Rule 26(c)(1). Allowing this type of request would
unfairly subject parties and nonparty witnesses who happen to be incarcerated to invasive scrutiny of
their personal lives based solely on the fact that they are incarcerated. The fact that inmates do not
have a reasonable expectation of privacy in their phone calls for constitutional purposes, and that
these calls may be subject to a grand jury subpoena or subpoena in a criminal case, see Matter of Grand
Jury Subpoena, 454 Mass. 685, 687-89 (2009), is not dispositive. The calls are not freely available to the

Case 1:11-cv-10256-NMG Document 39 Filed 02/24/12 Page 6 of 7

public; as Defendants’ motion attests, a court order is required to obtain them. See Tompkins v. Detroit
Metro. Airport, 2012 WL 179320, at *2 (E.D. Mich. Jan. 18, 2012) (denying defendants’ request for
non-public portions of plaintiff’s Facebook page even though the information was “not privileged,
nor is it protected by common law or civil law notions of privacy,” because “Defendant does not
have a generalized right to rummage at will” through nonpublic information without threshold
showing of relevance).4
Further, to the extent the subpoenas seek, or may result in, the production of conversations
protected by the attorney-client privilege or work product doctrine, it is improper.5 Even if the
facilities are instructed not to produce privileged materials, it is doubtful that they would devote the
time and effort to identifying which calls are privileged and which are not.6
Similarly, without listening to every conversation, there is no way of knowing whether it will
contain prior inconsistent statements from anyone, or, from Plaintiff, relevant admissions.7

If Plaintiff had subpoenaed all phone records of both Defendants since the date of the incident, as well as all such
records from the nonparty police officer and EMT witnesses, hoping to find impeachment material, such requests would
be equally objectionable under the Federal Rules, even though subscribers have no reasonable expectation of privacy in
these records. See Smith v. Maryland, 442 U.S. 735 (1979).
5 Plaintiff’s counsel’s conversations with Plaintiff are obviously privileged, as would be any conversations the nonparty
witnesses may have had with their attorneys. Plaintiff’s counsel spoke once on the phone with Ms. White. This
conversation, discovery of which would reveal counsel’s mental impressions, opinions, or legal theories, Rule 26(b)(3), is
protected by the work-product doctrine. See Connolly Data Sys., Inc. v. Victor Technologies, Inc., 114 F.R.D. 89, 96 (S.D. Cal.
1987) (holding conversations between lawyer and nonparty witness to be nondiscoverable work product); Phoenix Nat.
Corp., Inc. v. Bowater United Kingdom Paper Ltd., 98 F.R.D. 669, 671 (N.D. Ga. 1983) (same); Ford v. Philips Electronics
Instruments Co., 82 F.R.D. 359, 361 (E.D. Pa. 1979) (same).
6 Of course, if the facilities did listen to the calls to ascertain whether they were privileged, this would itself violate the
privilege. While the facilities are not supposed to record attorney phone calls, it is Plaintiff’s counsel’s understanding,
based on conversations with a criminal defense attorney familiar with this issue, that such calls are sometimes
inadvertently recorded.
7 Defendants’ alternative request, for the PIN numbers, visitor logs, and all call logs “as well as permission to seek leave
to come back for a court order on certain phone calls,” Dkt. 35 ¶ 9; Dkt. 36 ¶ 10; Dkt. 37 ¶ 10, suffers from the same
defect. The identity of the people Plaintiff and the nonparties spoke to on particular occasions will give no indication
about the substance of these conversations. See Pendlebury v. Starbucks Coffee Co., 2005 WL 2105024, at *2 (S.D. Fla. Aug.
29, 2005) (“It is unclear to the Court … how such records are reasonably likely to provide the information Defendant
seeks; the records will only indicate whether a call or other communication was made, and not the substance of those
communications.”); Martinez v. Rycars Const., LLC, CV410-049, 2010 WL 4117668, at *2 (S.D. Ga. Oct. 18, 2010)
(rejecting similar attempt to obtain list of all calls as “go-fish discovery”).


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Plaintiff’s and Julio Medina’s primary language is Spanish; production of their phone calls will
require Plaintiff’s counsel to expend substantial additional time and expense merely to learn their
content. These burdens far outweigh the purely speculative “benefit” of the proposed discovery.
Rule 26(b)(2)(C)(iii). This is especially so since all three individuals have not only been deposed in
this case, but also gave recorded interviews to the BPD soon after the incident. Defendants already
have prior inconsistent statements with which to impeach Plaintiff and the two witnesses. This is
not likely a large damages case given the identity of the Plaintiff, who was homeless and addicted to
drugs at the time of the incident; the substantial burden of the requested discovery is unjustified.
For the foregoing reasons, the Court should deny Defendants’ Motions to Inspect Inmate
Telephone Records of Plaintiff Carlos Medina [Dkt. 35], nonparty Tomeka White [Dkt. 36], and
nonparty Julio Medina [Dkt. 37], and allow Plaintiff’s Motion to Quash and for a Protective Order
[Dkt. 38].

Plaintiff Carlos Medina,
By his attorneys,
/s/David Milton
Howard Friedman BBO #180080
David Milton BBO #668908
Law Offices of Howard Friedman PC
90 Canal Street, Fifth floor
Boston, MA 02114-2022
(617) 742-4100
I certify that on this day a true copy of the above
document was served upon the attorney of record
for each party via ECF.
Date: February 24, 2012

/s/ David Milton
David Milton