Elvis Presley Enters. v. City of Memphis
| Decision Date | 16 July 2020 |
| Docket Number | No. 2:18-cv-02718,2:18-cv-02718 |
| Parties | ELVIS PRESLEY ENTERPRISES, INC., EPPF, LLC, and GUESTHOUSE AT GRACELAND, LLC, Plaintiffs, v. CITY OF MEMPHIS, TENNESSEE Defendant. |
| Court | U.S. District Court — Western District of Tennessee |
Before the Court are five motions appealing discovery orders issued by the Magistrate Judge. The first is Plaintiffs Elvis Presley Enterprises, Inc., EPPF, LLC, and Guesthouse at Graceland, LLC's (collectively, "EPE") Appeal of Order Granting in Part and Denying in Part Plaintiffs' Motion to Compel ("Appeal of March 6, 2020 Order"), filed on March 20, 2020. (ECF No. 226.) Defendant City of Memphis, Tennessee (the "City") responded on April 3, 2020. (ECF No. 241.) EPE replied on April 16, 2020. (ECF No. 252.)
The second is EPE's Appeal of Order Granting in Part and Denying in Part Plaintiffs' Motion to Compel the City to Produce Documents Improperly Withheld Based on Joint Defense Agreement Privilege ("Appeal of March 12, 2020 Order"), filed on March 26, 2020. (ECF No. 233.) The City responded on April 9, 2020. (ECF No. 249.) EPE replied on April 22, 2020. (ECF No. 261.)
The third is EPE's Appeal of Order Granting the Defendant's Motion for Protective Order to Quash Deposition of Jim Strickland ("Appeal of March 20, 2020 Order"), filed on April 3, 2020. (ECF No. 242.) The City responded on April 17, 2020. (ECF No. 257.) EPE replied on April 29, 2020. (ECF No. 268.)
The fourth is EPE's Appeal of Order Granting Defendant's Motion to Quash Subpoenas Issued to Kemp Conrad and Commercial Advisors and Order Denying Plaintiffs' Motion to Compel Production of Documents ("Appeal of April 6, 2020 Order"), filed on April 20, 2020. (ECF No. 260.) The City responded on May 4, 2020. (ECF No. 273.) EPE replied on May 21, 2020. (ECF No. 291.)
The fifth is EPE's Appeal of Order Denying Plaintiffs' Renewed Motion to Compel Responses to Plaintiffs' Renewed Motion to Compel Responses to Requests for Production ("Appeal of April 24, 2020 Order"), filed on May 8, 2020. (ECF No. 276.) The City responded on May 22, 2020. (ECF No. 295.) EPE replied on May 28, 2020. (ECF No. 296.)
For the following reasons, EPE's objections are OVERRULED. The Magistrate Judge's orders are AFFIRMED.
In the Magistrate Judge's March 20, 2020 order, she accurately and aptly summarizes the substantive background of this case. (SeeECF No. 225 at 2-6; see also ECF No. 63 at 2-7.) The Court need not repeat it here. Relevant for our purposes, however, is the procedural and substantive background of the orders at issue.
In July 2019, EPE served the City with requests for production ("RFPs"). (See ECF No. 177-1.) In September 2019, the City responded to EPE's RFPs, objecting to many of them. (See ECF No. 137-1.) Between October 2019 and January 2020, EPE and the City exchanged letters between counsel and met in person to reach an agreement to limit the City's obligations. (See ECF No. 176 at 5-6.) On January 17, 2020, and January 30, 2020, in response to EPE's RFPs and pursuant to an agreement between the parties, the City produced multiple documents. (See id. at 6-7.) On January 31, 2020, EPE filed a motion to compel the City to produce more documents in response to its RFPs. (ECF No. 137.) Eleven of the RFPs were at issue. (See ECF No. 137 at 7-18.) The Court referred that motion to the Magistrate Judge. (ECF No. 154.) After briefing and a hearing on the motion, the Magistrate Judge denied in part, and granted in part, EPE's motion to compel. (See ECF No. 215 at 3-4.) The Magistrate Judge found that the parties had entered into a stipulation agreement that limited the scope of discovery under Federal Rule of Civil Procedure 29(b), and that that agreement, the Electronic Search Protocol Agreement ("ESPAgreement"),1 (ECF No. 176-7), dictated some, but not all, of the City's obligations to respond to the RFPs and to produce documents. (See ECF No. 215 at 2-5.) The Magistrate Judge ruled on the contested RFPs under the terms of the ESP Agreement. (See id.) On March 20, 2020, EPE timely appealed. (ECF No. 226.)
When the City produced documents to EPE on January 17, 2020, and January 30, 2020, it created a privilege log and withheld documents on the basis of a "joint defense agreement" privilege.2 (See ECF No. 136-1; No. 176 at 6-7.) On January 31, 2020, EPE filed a motion to compel the City to produce the documents withheld on the basis of that privilege. (ECF No. 136 at 3-6.) EPE argued that the City did not meet its burden of establishing the validity of a joint defense agreement. (Id. at 2.) Alternatively, assuming a valid agreement existed, EPE argued that the City improperly withheld documents dated prior to the commencement of the joint defense agreement. (Id.) In their reply, EPE asked that the Court hold an evidentiary hearing to determine whether the City hadwrongfully withheld documents. (See ECF No. 188 at 5.) The motion was referred to the Magistrate Judge. (ECF No. 154.)
On March 2, 2020, the Magistrate Judge held a hearing on the motion. (ECF No. 208.) At that hearing, the Magistrate Judge found the descriptions of the log deficient and ordered the City to file a revised privilege log. (See ECF No. 217 at 2.) On March 10, 2020, the City filed a revised privilege log with updated descriptions. (ECF No. 216.)
On March 12, 2020, the Magistrate Judge granted in part, and denied in part, EPE's motion to compel, and denied EPE's request for an evidentiary hearing. (ECF No. 217.) The Magistrate Judge found that the City had entered into a valid oral privilege agreement with its co-defendants in EPE's Shelby County Chancery Court suits and had properly withheld documents under that privilege. (See id. at 7-8.) The Magistrate Judge found that the privilege did not apply to documents dated before the date the agreement was formed. (See id. at 8-9.) The Magistrate Judge ordered the City to produce the documents it had withheld before the oral agreement. (See id. at 9.) On review of the revised privilege log, the Magistrate Judge found that the communications were properly described, classified, and withheld. (See id.) On March 26, 2020, EPE timely appealed. (ECF No. 233.)
In December 2018, the City filed a motion to quash the depositions of Memphis Mayor Jim Strickland and City Chief Operating Officer Doug McGowen. (ECF No. 24.) After oral arguments had been heard on the motion, EPE withdrew the notice to depose Mayor Strickland and McGowen and the motion was denied as moot. (See ECF No. 35; see also ECF No. 33.) On February 7, 2020, after EPE had renewed the notice to take the depositions of Mayor Strickland and McGowen, the City renewed its motion to quash. (ECF No. 176.) That motion was referred to the Magistrate Judge. (Admin. Order 2020-10, Feb. 28, 2020.)
On March 6, 2020, a hearing was held on the motion. (ECF No. 212.) At the hearing, the City agreed to withdraw its motion to quash as to McGowen, and the Magistrate Judge subsequently denied that part of the motion as moot. (See ECF No. 225 at 2.) On March 20, 2020, the Magistrate Judge granted the motion to quash as to Mayor Strickland. (ECF No. 225.) The Magistrate Judge found that EPE had not shown "extraordinary circumstances" to depose Mayor Strickland, a "high-ranking government official" who is generally protected from being deposed, (id. at 13-15 (citing Murray v. U.S. Dep't of Treasury, 2010 WL 1980850, at *2 (E.D. Mich. May 18, 2010)); under Rule 26(c)(1), there was "good cause" to quash the deposition to protect Mayor Strickland from "annoyance, embarrassment, oppression, or undue burden," (see id. at 16); andunder Rule 26(b)(2)(C)(i), other sources could provide the information EPE sought in a "more convenient, less burdensome, or less expensive," way, (id. at 16-17). On April 3, 2020, EPE timely appealed. (ECF No. 242.)
On February 21, 2020, the City filed a motion to quash, or in the alternative, for a protective order prohibiting discovery, of subpoenas duces tecum issued to nonparties Kemp Conrad and Commercial Advisors, LLC. (ECF No. 185.) EPE responded to the motion and filed a contemporaneous motion to compel production of the relevant documents. (See ECF No. 213.) The Court referred the motions to the Magistrate Judge. (ECF No. 240.) On April 6, 2020, the Magistrate Judge granted the City's motion to quash and for a protective order and denied EPE's motion to compel. (ECF No. 245.) The Magistrate Judge found that, under Rule 26(b)(2)(C)(ii), there was "good cause" to issue a protective order because the deadline for written discovery had passed and EPE could have obtained the documents it sought through written requests pursuant to the ESP Agreement. (Id. at 12-13.) On April 20, 2020, EPE timely appealed. (ECF No. 260.)
In the Magistrate Judge's March 6, 2020 Order, the Magistrate Judge instructed the City to review former City Attorney Bruce McMullen's cellular telephone for text messages responsive toEPE's RFP No. 12. (ECF No. 215 ¶ 5.) The City followed that directive and produced twelve pages of text messages between McMullen and other parties. (ECF No. 265 at 5.) On further review, the City produced an additional responsive text message that it had not previously identified. (See id. at 5-6.) On April 1, 2020, EPE filed a renewed motion to compel, arguing that the City should be compelled to produce further documents and should be sanctioned for its failure to produce text messages.3 (ECF No. 238.) On April 17, 2020, EPE filed a supplement to its renewed motion to compel, asking that the Court order the City to submit McMullen's cellular telephone to a third-party forensic analyst. (ECF No. 256.)
On April 24, 2020, the Magistrate Judge denied EPE's renewed motion to compel, denied the request for sanctions, and denied as moot EPE's request to have McMullen's telephone searched by a forensic analyst. (...
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