Anthony v. O'Fallon Township High School District 203 Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

NIESHA ANTHONY, individually

and as parent and next friends of

ZARIAH ANTHONY, a minor,

Plaintiff,

v. Case No. 23-CV-00967-SPM

O’FALLON TOWNSHIP HIGH

SCHOOL DISTRICT 203 BOARD OF

EDUCATION, et al.,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

This matter comes before the Court for consideration of a Motion to Quash

Subpoenas or in the Alternative for Protective Order, and Sanctions (Doc. 62) filed by

Plaintiff Niesha Anthony on behalf of her herself and her minor daughter Zariah

Anthony. Defendants O’Fallon Township High School (“OTHS”) District 203 Board of

Education, Twana Dollison, Richard Bickel, and Dr. Darcy Benway (collectively the

“OTHS Defendants”) filed a Response. (See Docs. 63, 66). Having been fully informed

of the issues presented, Plaintiff Anthony’s Motion to Quash is GRANTED in part

and DENIED in part.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This case arises from incidents of alleged discrimination and retaliation

against Niesha Anthony and her minor daughter Zariah Anthony by the OTHS

Defendants while Zariah was enrolled at OTHS during the 2021–22 (Ninth Grade)

and 2022–23 (Tenth Grade) school years. (See Doc. 47).

Anthony initially filed a Complaint in state court in St. Clair County, Illinois

on February 23, 2023. (See Doc. 1, Ex. A). The OTHS Defendants removed the case to

federal court on March 24, 2023 (Doc. 1) and filed a Motion to Dismiss (Doc. 18) on

May 3, 2023. This Court granted Anthony leave to file an amended complaint (Doc.

24), which was filed on July 31, 2023. (Doc. 26). Another Motion to Dismiss (Doc. 32)

was filed on September 19, 2023, with Anthony responding on October 3, 2023. (Doc.

34). The Court held argument on November 29, 2023. (See Doc. 37). The Court

granted the OTHS Defendants’ Motion to Dismiss in part and denied it in part on

January 23, 2024. (See Doc. 38). The Court entered a Scheduling Order on February

20, 2024. (Doc. 46). Anthony filed a Second Amended Complaint on February 21,

2024. (Doc. 47). Anthony filed the instant Motion contesting the issuance of fourteen

subpoenas to various entities1 on July 23, 2024. (Doc. 62). The OTHS Defendants

responded on August 6, 2024. (Docs. 63, 66).

APPLICABLE LAW AND LEGAL STANDARDS

Rule 26(b)(1) of the Federal Rules of Civil Procedure permits a party to obtain

discovery “regarding any nonprivileged matter that is relevant to any party’s claim

or defense.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need

1 The subpoenas in dispute were issued to: Swansea Fire, Swansea Police, Ameren (the Plaintiff’s

electric and gas utility), Illinois American Water (the Plaintiff’s water utility), Village of Swansea (the

Plaintiff’s sewage utility), Spectrum Cable & Wireless (the Plaintiff’s internet and cable provider),

Verizon (a mobile phone provider), AT&T (a mobile phone provider), Hoyleton Youth and Family

Services, One Hope United, Christone Enterprises, Urban Air, Freddy’s Frozen Custard, and Claire’s.

(See Doc. 62, pp. 2–4).

not be admissible in evidence to be discoverable.” Id. In addition to being relevant,

the discovery sought must be proportional to the needs of the case, “considering 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 benefits.” Motorola Sols., Inc. v. Hytera Commc’ns

Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill. 2019) (citing Fed. R. Civ. P. 26(b)(1)).

“A subpoena issued pursuant to Rule 45 is subject to the general relevancy

standard for discovery described in Rule 26(b)(1).” Hazlitt v. Apple Inc., No. 3:20-CV-

421-NJR, 2021 WL 2457987, at *2 (S.D. Ill. June 16, 2021) (citing Northwestern Mem’l

Hosp. v. Ashcroft, 362 F.3d 923, 930 (7th Cir. 2004) (applying Rule 26(b)(1) to a

subpoena for hospital records)). “A court must quash or modify a subpoena, however,

if it would subject a person to undue burden, and a court may quash or modify a

subpoena if it would require disclosure of confidential information or sensitive

commercial material.” Id. (citing Fed. R. Civ. P. 45(d)(3)). “The party moving to quash

bears the burden of persuasion and must show how the information requested is

sensitive or creates an undue burden.” Id. (citing Malibu Media, LLC v. John Does 1-

14, 287 F.R.D. 513, 516 (N.D. Ind. 2012) (collecting cases)).

ANALYSIS

Anthony argues that “[t]he fourteen (14) Subpoenas request information and

documentation that have no bearing on the merits of this lawsuit.” (Doc. 62, p. 4). She

argues that, “[i]n seeking records related to both Plaintiffs’ current and previous

employment, their residence, and an unlimited review of their phone records, the

Defendants are engaging in a blatant fishing expedition searching for non-existent

District violations and propensity evidence which are not admissible under Fed. R.

Evid. 404(a).” (Id. (footnote omitted)). Anthony argues that the OTHS Defendants’

request for phone records and text messages also violates attorney-client privilege.

(Id., p. 9). Anthony also seeks sanctions in the form of “an award of attorneys’ fees for

filing this motion after Defendants failed to provide Plaintiffs with sufficient notice

of the subpoenas as required under Rule 45.” (Id., p. 10). Anthony argues that “while

Defendants provided ‘notice’ of the subpoenas on July 9, 2024, Defendants proceeded

to serve them on the non-parties within twenty-four (24) hours thereafter” and that

“[s]uch a practice clearly violates Rule 45 in that the Defendants did not allow

Plaintiffs sufficient time to object and have a good faith effort to resolve disputes over

the requests in the subpoenas.” (Id., p. 11).

In their Response, the OTHS Defendants argue that Niesha and Zariah’s

testimony during their respective depositions indicated that “plaintiffs deliberately

made false statements about their residence in order for Zariah to wrongfully obtain

the benefits and services from the District.” (Doc. 63, p. 2). The OTHS Defendants

argue that because Anthony’s “own complaint alleges that she has been deprived of

and continues to be deprived of access to educational benefits of the District, the

District is entitled to discovery on the issue of whether she actually resided in the

District during relevant time periods and thus is entitled to such educational

benefits.” (Id., p. 3). Regarding Anthony’s request for sanctions, the OTHS

Defendants argue that “[t]here is nothing in [Federal Rule of Civil Procedure 45] that

requires a party to hold off on issuing the subpoena for any period of time after giving

notice to other parties.” (Id., p. 9). They also argue that “plaintiffs’ actions, or rather

inactions, after they received notice belie any claim that they were prejudiced by not

being given at least 24 hours [sic] notice prior to service of the subpoenas” because

“Defendants notified plaintiffs of the subpoenas on July 9, 2024 [and] Plaintiffs did

not present defendants with objections until July 15, 2024, six days after receiving

notice.” (Id.). The OTHS Defendants argue that because “the phone companies are

not able to supply the substance of any phone calls or text messages,” instead only

providing “a log of calls and text [sic] made and received and the length of the call,”

that “[n]o attorney-client privilege issues are at stake here.” (Id., p. 10). They argue

that “Niesha Anthony not only misrepresented their living situation to the District

in her residency affidavit, she continued her misrepresentations to Dr. Benway

during the residency interview” as indicated by the fact that “Zariah testified under

oath that she and mother have been living in Swansea for four years.” (Id.). They

argue that “[t]he evidence set forth in this response demonstrates that plaintiffs have

made untruthful statements to the District before and during this litigation, that the

information sought by the subpoenas are relevant to the plaintiffs[‘] damages claim,

. . . and that sanctions are unwarranted.” (Id., p. 11).

Because Anthony has specifically alleged deprivation of education benefits in

her lawsuit, it is clear that the matter of her and her daughter’s domicile is highly

relevant to this case. Because of this, the Court holds that the subpoenas to Ameren,

Illinois American Water, the Village of Swansea, Spectrum Cable & Wireless, and

Christone Enterprises are relevant and likely to lead to the discovery of admissible

evidence. The same is true for employment applications and dates of employment.

However, the Court does not agree that Niesha and Zariah’s disciplinary records from

their employers are relevant in this case. The OTHS Defendants have not met their

burden to demonstrate how Niesha and Zariah Anthony’s potential disciplinary

infractions at their respective employers are relevant to the issues at stake in this

suit. Therefore, the subpoenas issued to Hoyleton Youth and Family Services, One

Hope United, Urban Air, Freddy’s Frozen Custard, and Claire’s must be limited to

Niesha and Zariah Anthony’s applications for employment and dates of employment

only.

Plaintiff’s counsel has raised the issue of text messages that may contain

material protected by the attorney-client privilege. (Doc. 62, p. 9). The OTHS

Defendants insist that “the phone companies are not able to supply the substance of

any phone calls or text messages” and that “[t]hey only produce a log of calls and text

[sic] made and received and the length of the call.” (Doc. 63, p. 10). Although the

OTHS Defendants have indicated that they do not seek the contents of text messages

sent and received from Niesha and Zariah Anthony’s phones, out of an abundance of

caution, the subpoenas issued to Verizon and AT&T shall be limited to outgoing and

incoming phone call records and shall exclude the content of text messages. Finally,

the Court is not convinced that the subpoenas issued to Swansea Fire and Police

requesting incident report records are relevant. While it could be argued that records

of use of emergency services could indicate whether or not the Anthonys resided at

their Swansea residence, the OTHS Defendants have not met their burden to indicate

why these particular subpoenas are relevant, especially with the twelve other

subpoenas issued to determine the exact same issue (the Anthonys’ domicile). With

these modifications and with the HIPAA Qualified Protective Order (Doc. 52) and

Confidentiality Order (Doc. 53) entered in this case, the Court holds that an

additional protective order is not required.

Regarding Anthony’s request for sanctions, the Court holds that the OTHS

Defendants followed the appropriate procedures in accordance with Federal Rule of

Civil Procedure 45—they are not required to wait to issue subpoenas until after

Anthony responds with objections, as Rule 45(a)(4) states “[i]f the subpoena

commands the production of documents, electronically stored information, or tangible

things or the inspection of premises before trial, then before it is served on the person

to whom it is directed, a notice and a copy of the subpoena must be served on each

party.” Anthony does not cite any Seventh Circuit caselaw to justify her argument

that the Defendants’ actions in issuing the subpoenas in question violated Federal

Rule of Civil Procedure 45(a)(4); instead, they cite an out-of-circuit district court case

from the Eastern District of Michigan. (See Doc. 62, p. 11 (citing Bronson v. Henry

Ford Health Sys., No. 2:15-CV-10111, 2016 WL 3197555, at *2 (E.D. Mich. June 9,

2016))). Therefore, the Court holds that the OTHS Defendants have not committed

sanctionable conduct and this portion of Anthony’s Motion does not survive scrutiny.

The Court notes that the deed for the Anthonys’ Swansea property may be

evidence that the Anthonys resided outside the O’Fallon School District while at the

same time representing to this Court that they were living within the boundaries of

the O’Fallon School District. (See Doc. 63, pp. 7–8). If the Anthonys fraudulently used

O’Fallon’s resources in the first place, this may prove fatal to their claims.

DISPOSITION

In accordance with the foregoing, Plaintiff Anthony’s Motion to Quash

Subpoenas or in the Alternative for Protective Order, and Sanctions is GRANTED

in part and DENIED in part. Anthony’s Motion to Quash is DENIED with respect

to the subpoenas issued to Ameren, Illinois American Water, the Village of Swansea,

Spectrum Cable & Wireless, and Christone Enterprises. Anthony’s Motion to Quash

is GRANTED in part with respect to the subpoenas issued to Hoyleton Youth and

Family Services, One Hope United, Urban Air, Freddy’s Frozen Custard, and

Claire’s—the subpoenas shall be restricted to the “Application for employment; and

Dates of employment.” Regarding the subpoenas issued to Verizon and AT&T,

Anthony’s Motion to Quash is GRANTED in part— the subpoena for Verizon shall

be restricted to “Any and all records pertaining to mobile services provided for the

below-listed cell phone number, including but not limited to an itemization of all

outgoing and incoming phone calls, call details, MUDs, and tolls for the date of

August 2021 to November 2022 for the VERIZON phones 618-305-9797 and 618-353-

4411” and the subpoena for AT&T shall be restricted to “Any and all records

pertaining to mobile services provided for the below-listed cell phone number,

including but not limited to an itemization of all outgoing and incoming phone calls,

call details, MUDs, and tolls for the date of August 2021 to November 2022 for the

ATT phone 618-353-4411.” Finally, Anthony’s Motion to Quash is GRANTED with

respect to the subpoenas issued to Swansea Fire and Swansea Police—those

subpoenas are hereby QUASHED.

This Court further ORDERS that any responses to the subpoenas that have

been received from Hoyleton Youth and Family Services, One Hope United, Urban

Air, Freddy’s Frozen Custard, Claire’s, Verizon, AT&T, Swansea Fire, or Swansea

Police as a result of the subpoenas that the Court has ordered either quashed or are

outside of the Court’s restrictions are barred from use in this litigation to the extent

that they include restricted records. Should the records be in transit, they shall be

submitted to the Court for in camera review.

IT IS SO ORDERED.

DATED: August 28, 2024

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge