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Motion to Order Third Party Production of Email Denied Absent Meet and Confer

Posted in CASE SUMMARIES

Bullis v. Nichols, 2005 WL 1838634 (W.D.Wash. Aug. 1, 2005)

Alana K. Bullis (“Bullis”) filed a claim which apparently alleges that City of Dupont (“City”) public officials are willing to “chill” her speech via an email campaign. In connection with this claim, Bullis sought email from the City via a subpoena duces tecum, which was issued on June 28, 2005.

Bullis contends that “City public officials are willing to use email as a tool for communicating with private citizens their dislike of plaintiff’s free speech in order to spur the private citizens to contact and to harass the Plaintiff in an effort to chill Plaintiff’s speech”.

The subpoena (which was issued along with an identical subpoena in connection with another case) asked the City to produce all email to/from City public officials from March 1, 2003 through June 30, 2005. The City refused to comply absent a court order, finding it unduly burdensome to produce email to/from all public employees. It asked Bullis to issue revised subpoenas if its interpretation of the request was incorrect. On July 25, 2005, Bullis filed a motion for contempt and for an order to compel production.

Bullis argued that she only requested email to/from public “officials,” the requested email is public record subject to Washington’s Public Disclosure Act and should have been printed out and filed as per General Records Retention Schedules, and the request is not unduly burdensome as those records should be readily available for inspection.

The City responded estimating that it would have to produce more than 166,000 emails, it was unsure whether such email could be feasibly obtained, Bullis’ complaint fails to state a claim, the email would be irrelevant, and Bullis should be required to pay $750 in attorneys’ fees as she failed to take reasonable steps to avoid undue burden on the City as required under FRCP 45(c)(1).

Bullis replied that the email is relevant, the request is not unduly burdensome since the City is required to provide the documents under state law, the broad request was only made since she received a mere 13 pages of email in response to her more narrow public disclosure request, the City is not due attorneys’ fees since she acted reasonably in issuing the subpoena, and the City should be sanctioned for noncompliance.

The court denied Bullis’ Motion to Produce Documents as well as the City’s request for attorneys’ fees. The court’s reasoning included the following:

-Bullis did not in good faith meet and confer with the City in an attempt to narrow the discovery request.

-She failed to include a certification with the Motion to Produce Documents which states that she had in good faith conferred or tried to confer with the City. This is required under FRCP 37(a)(2)(B). (The City apparently needed clarification regarding what she meant by “Public Officials” and the request appears overly inclusive and potentially subject to tailoring upon conferral with the City.)

-Bullis’ contention that the City’s response to her public disclosure request was insufficient is immaterial. She could have sought judicial review of the City’s response to that request – the subpoena is related to this case, not a public disclosure request made before this suit was filed. (Besides, the City may not have much email available for production because it does not maintain its own email server, relying instead on third-party providers.)

-Bullis apparently believed that her request was reasonable, and should not be sanctioned via an award of attorneys’ fees.