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In re Subpoena of Center for Military Readiness

United States District Court, E.D. Michigan, Southern Division

September 28, 2019

DONALD J. Trump, in his official capacity as President of the United States, et. al., Defendants. Underlying Cases: RYAN KARNOSKI, et. al ., Plaintiffs,

         United States District Court Western District of Washington Civil Action No.: 2:17-cv-01297- MJP



         This is a nonparty discovery dispute arising out of Karnoski, et al., v. Trump et. al., Case No 2:17-cv-01297, which is currently pending in the United States District Court for the Western District of Washington. In the underlying case, Plaintiffs are challenging the Trump administration's allegedly unconstitutional policies of prohibiting or disqualifying transgender individuals from serving in the United States military.[1] In this Court, Plaintiffs are seeking documents from a nonparty, the Center for Military Readiness, which Plaintiffs contend are relevant to their underlying claims. Specifically, Plaintiffs seek documents and communications between CMR and government officials related to the Ban. CMR refuses to voluntarily produce responsive documents to Plaintiffs, which resulted in this discovery dispute.

         Pending before the Court is the Magistrate Judge's Report and Recommendation granting in part and denying in part Plaintiffs' motion to compel and granting in part and denying in part CMR's motion for a protective order. (ECF No. 34.) The Magistrate Judge recommends the Court order CMR to comply with Plaintiffs' subpoena, but that the Court narrow the time scope of the subpoena to documents dated June 16, 2015 through March 23, 2018 and narrow the scope of individuals covered by the subpoena.

         CMR and the Government raise several objections to the R&R. Plaintiffs oppose their objections. After reviewing the parties' initial briefing, the Court took the R&R and the objections under advisement pending the Ninth Circuit's resolution of potentially related discovery matters in the underlying lawsuit. On June 14, 2019, the Ninth Circuit issued its opinion in Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019). Thereafter, the parties submitted supplemental briefing addressing the Ninth Circuit's opinion as it relates to this nonparty discovery dispute. Having now reviewed the complete record in this matter, including the parties' supplemental submissions, and for the reasons set forth below, the Court OVERRULES CMR's objections and the Government's objections, ACCEPTS and ADOPTS the Magistrate Judge's R&R, GRANTS IN PART and DENIES IN PART Plaintiffs' motion to compel, and GRANTS IN PART and DENIES IN PART CMR's motion for a protective order.

         I. Standard of Review

         The parties dispute the applicable standard of review. Under Federal Rule of Civil Procedure 72, a district court reviewing objections to an order issued on a non-dispositive matter that was referred to a magistrate judge may “modify or set aside any part of the order that is clearly erroneous or contrary to law.” See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). In contrast, when considering objections to an order issued by a magistrate judge on a dispositive motion, the district court must conduct a de novo review of the objected to portions of the magistrate judge's report and recommendation. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b).

         Discovery disputes between parties are typically considered non-dispositive and a magistrate judge's order on a motion to compel is typically reviewed by the district court under the clearly erroneous standard. See Brown v. Wesley's Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir. 1985) (stating that discovery motions are non-dispositive pretrial motions reviewed under the clearly erroneous standard). CMR and the Government contend, however, that Plaintiffs' motion to compel should be considered a dispositive motion because the dispute over this nonparty subpoena constitutes the “entire proceeding before this Court.”[2] In other words, resolution of the motion to compel is dispositive of CMR's role in the case, and this Court's role in this case, and therefore the motion should be treated as a dispositive motion. CMR and the Government point to one unpublished opinion from the Eastern District of Michigan[3] and a few unpublished opinions from other district courts around the Sixth Circuit to support their position. In addition, the Government notes that the Magistrate Judge issued a “report and recommendation, ” not an “order and opinion.”

         The Court finds some merit to CMR's and the Government's interpretation of Rule 72 as it relates to nonparty discovery motions. But their position also raises some concerns. First, the Court referred the motion to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(A), which applies to non-dispositive motions. Yet, neither CMR nor the Government objected to the referral order. Second, a motion to compel is a non-dispositive motion under the Local Rules for the Eastern District of Michigan, though there is an argument that the Local Rules may not contemplate nonparty discovery proceedings under Rule 45 in defining “dispositive” and “non-dispositive” motions. Finally, there are several examples within the Sixth Circuit and elsewhere of courts treating motions to compel a nonparty's compliance with a Rule 45 subpoena as non-dispositive motions.[4]See State Farm Mut. Auto. Ins. Co. v. Pointe Physical Therapy, LLC, No. 14-CV-11700, 2017 WL 5664183, at *1 (E.D. Mich. Nov. 27, 2017) (applying clearly erroneous standard to a magistrate judge's order compelling a nonparty's compliance with discovery subpoena); Anwalt Energy Holdings, LLC v. Falor Companies, Inc., No. 2:06-CV-0955, 2008 WL 2268316, at *1 (S.D. Ohio June 2, 2008) (applying clearly erroneous standard to magistrate judge's ruling on a motion to compel compliance with a nonparty subpoena); NetJets Aviation, Inc. v. NetJets Assocition of Shared Aircraft Pilots, No. 2:17-MC-038, 2017 WL 6497104, at *1 (S.D. Ohio Dec. 19, 2017) (same); 3B Med., Inc. v. Resmed Corp., No. 16-CV-2050-AJB-JMA, 2016 WL 6818953, at *2 (S.D. Cal. Oct. 11, 2016) (finding that motion to compel compliance with a subpoena is a non-dispositive motion). See also Jordan v. Comm'r, Mississippi Dep't of Corr., 908 F.3d 1259, 1264 (11th Cir. 2018) (finding that a nonparty's motion to quash a Rule 45 subpoena was a non-dispositive pretrial motion, concluding that the clearly erroneous standard applied to the district court's review, and rejecting arguments similar to those made by CMR and the Government here).

         The Sixth Circuit has not expressly addressed this issue. In an abundance of caution, the Court will apply the higher standard of review applicable to dispositive motions.[5] This means the Court performs a de novo review of those portions of the Magistrate Judge's R&R to which the CMR and the Government have objected. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b). The Court need not and does not perform a de novo review of the R&R's unobjected-to findings. Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, an objection that “does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” Aldrich v. Bock, 327 F.Supp.2d. 743, 747 (E.D. Mich. 2004).

         II. Analysis

         A. CMR's Objection No. 1: Whether the Magistrate Judge misapplied the scope of permissible discovery.

         1. Relevance objections

         CMR objects to the Magistrate Judge's finding that the documents and communications sought by Plaintiffs are relevant to the underlying dispute. CMR's relevance objection includes several subparts, each of which is addressed below.

         Relevance Objection Part 1(a)(1): Whether the Magistrate Judge misapplied the relevance standard.

         According to CMR, Plaintiffs were required to prove as a prerequisite to obtaining their requested discovery that CMR's policy positions and communications about the transgender policy with the Trump administration were grounded in animus. CMR argues that “the absence of any finding in the R&R that CMR's policy positions are grounded in animus eliminates any logical connection between CMR's state of mind and the allegedly biased state of mind of President Trump when he changed the policy.” (ECF No. 39 at 8.) The Court disagrees.

         Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed.R.Evid. 401. As the Magistrate Judge found, Plaintiffs satisfied their relatively low burden to establish that the discovery they seek from CMR is relevant to their claims. Plaintiffs met Rule 26's standard for discovery by demonstrating that CMR communicated with Government decisionmakers about the transgender policy, that those communications may have conveyed animus to those decisionmakers, and that such communications may make it more probable that the Ban was influenced by discriminatory intent or animus.

         Plaintiffs were not required to affirmatively prove that CMR harbored animus towards transgender individuals or that CMR's alleged animus was in fact communicated to Government decision makers. The purpose of the discovery process is, at least in part, to determine whether there is merit to Plaintiffs' allegations. Under CMR's view of relevancy, all litigants would be required to prove the essential elements of their claims before pursuing discovery to obtain the evidence they need to prove their claims. Such a circular standard is not supported by the Federal Rules of Civil Procedure and conflicts with the very purpose of discovery. Indeed, CMR's documents and communications will be equally relevant to this dispute if it turns out that CMR does not harbor animus towards transgender individuals or did not communicate such alleged animus to government decision makers. CMR's first objection is overruled.

         Relevance Objection Part 1(a)(2): Whether CMR's communications are relevant when CMR is not mentioned in Plaintiffs' complaint.

         CMR next argues that the Magistrate Judge erred in finding the requested discovery is relevant because CMR is not mentioned in Plaintiffs' complaint. In other words, according to CMR, a nonparty must be mentioned in the complaint to obtain discovery from that nonparty. The Court is not aware of any rule or authority that requires a party to name every potential witness or potential source of relevant information in its complaint. And the cases cited by CMR do not support its position. This objection is overruled.

         Relevance Objection Part 1(a)(3): Whether the R&R misreads Trump v. Hawaii as it applies to the relevance ...

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