United States District Court, E.D. Missouri, Eastern Division
IN RE JONATHAN E. FORTMAN, Plaintiff,
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the court on the Motion to Quash or, in the
Alternative, Modify Subpoena (ECF No. 1).
Jonathan E. Fortman ("Fortman") is an attorney,
licensed in the State of Missouri. (ECF No. 1, ¶1).
Fortman represents Kelly Kress, an absent class member who
has objected to the proposed class action settlement and
award of attorneys' fees in Chambers v. Whirlpool
Corp., Case No. 8:llcvl733 (CD. Ca.). On May 27, 2016,
Ms. Kress filed her Objections to the parties' joint
motion for final approval of the class action settlement in
Chambers. (ECF No. 3 at 2). Her counsel of record
were John Kress, Steve Miller, and Johnathan Fortman. (ECF
No. 3 at 2). On June 18, 2016, Fortman was served with
subpoenas ad testificandum and duces tecum
from Chambers class counsel. The subpoenas commended
Fortman to appear for a deposition on August 1, 2016. In this
motion, Fortman moves to quash those subpoenas.
Rule of Civil Procedure 26 provides "parties may obtain
discovery regarding any matter, not privileged, that is
relevant to the claim or defense of any party."
Fed.R.Civ.P. 26(b)(1). Relevant information "need not be
admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible
evidence." Id. "The rule vests the
district court with discretion to limit discovery if it
determines, inter alia, the burden or expense of the proposed
discovery outweighs its likely benefit." Roberts v.
Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir.
2003)(citing Fed.R.Civ.P. 26(b)(1)); see also
Fed.R.Civ.P. 45(c) (authorizing the court to ensure a party
responsible for the issuance and service of a subpoena takes
reasonable steps to avoid imposing "undue burden or
expense" on a person subject to a subpoena).
moves to quash the subpoenas directed to him. Fortman claims
that class counsel's attempt to depose Fortman,
litigation counsel on behalf of Ms. Kress, is
"improper" because it "seeks documents and
testimony protected by attorney-client and work-product
privilege and seeks documents and testimony which is
irrelevant to the issue of whether the proposed class action
settlement and request for attorneys' fees in the
underlying case are fair, reasonable, and adequate."
(ECF No. 1, ¶5).
response, class counsel argues that they have a right to
depose Fortman. Class counsel identify Fortman, Ms. Kress,
and their "cohorts" as a "serial
objectors." (ECF No. 3 at 3); see also In re Law
Office of Jonathan E. Fortman, LLC, No. 4:13MC00042 AGF,
2013 WL 414476, at *1 (E.D. Mo. Feb. 1, 2013) (identifying
Fortman as a "professional objector attorney").
Class counsel has offered for Fortman, and his co-counsel,
Mr. Kress and Mr. Miller, to provide declarations instead of
testimony. The declarations were to comprise of information
related to objections filed in other class actions,
including: a list of all objections, identification of any
payments for dismissals with an accounting to whom such
payments were distributed, whether there was any notice to
the Court of such payments, and whether there were any
corresponding benefits to the class for the payments. (ECF
No. 3 at 3, n.1).
in this district has already held that the discovery
requested here is "relevant to assessing the merits of
the objection to the class action settlement." In re
Law Office of Jonathan E. Fortman, LLC, No. 4:13MC00042
AGF, 2013 WL 414476, at *2 (E.D. Mo. Feb. 1, 2013)(citing
In re Checking Account OverdraftLitig., 830
F.Supp.2d 1330, 1361 n. 30 (S.D. Fla. 2011); In re
Kentucky Grilled Chicken Coupon Marketing & Sales
Practices Litig., 280 F.R .D. 364, 383 (N.D. Ill.
2011)). Fortman attempts to distinguish that prior litigation
because the subpoena in that case was not addressed to
Fortman in his capacity as an attorney for the absent class
member and because the Order did not address what materials
were considered work-product and/or privileged. (ECF No. 2 at
7-8; see also In re Law Office of Jonathan E. Fortman,
LLC, 2013 WL 414476, at *2 ("Movant's other
arguments are also unpersuasive. Respondent has agreed to
limit the request to matters that are not work product or
privileged. Any remaining confidentiality concerns of Movant
can be addressed by an appropriate protective order, and the
parties are directed to attempt to come to an agreement on
the terms of such an order."). However, as noted by
class counsel in this case, any confidentiality concerns are
irrelevant because there is a protective order in place that
applies to non-party discovery. The Court does not find that
the discovery requested by class counsel, particularly
information regarding payments made to objectors, raises any
privilege concerns that cannot be addressed through a
protective order. Accordingly, the Court agrees with the
reasoning of the District Court in In re Law Office of
Jonathan E. Fortman, LLC, 2013 WL 414476 and denies the
Motion to Quash the subpoena.
IT IS HEREBY ORDERED that the Motion to Quash or, in the
Alternative, Modify Subpoena (ECF No. 1) is DENIED. Movant
Fortman shall produce the requested documents, along with a
privilege log (if necessary), or provide a ...