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Shell v. Hilliard

February 13, 2007

MICHAEL W. SHELL, PLAINTIFF,
v.
J.J.B. HILLIARD, W.L. LYONS, INC., AND THE PNC FINANCIAL SERVICES GROUP, INC., DEFENDANTS.



The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

(Phillips/Guyton)

MEMORANDUM AND ORDER

This matter is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Doc. 58] of the Honorable Thomas W. Phillips, United States District Judge, for disposition of the plaintiff's motions to quash subpoenas [Docs. 54 and 56].

The plaintiff Michael W. Shell moves the Court for an Order quashing the subpoenas served by the defendants J.J.B. Hilliard, W.L. Lyons, Inc. ("Hilliard Lyons") and The PNC Financial Services Group, Inc. upon non-parties Raymond James Financial Services, Inc. ("Raymond James") and LPL Boston and/or for an Order of sanctions against the defendants to exclude any documents produced as a result of the improper subpoenas, as well as an award of attorney's fees. [Docs. 54, 56]. The defendants oppose the plaintiff's motions, arguing that the documents sought are clearly relevant and discoverable and that any deficiency in the service of the subpoenas was inadvertent and did not result in any prejudice to the plaintiff. [Docs. 59, 60]. For the foregoing reasons, the plaintiff's motions to quash subpoenas [Docs. 54 and 56] will be DENIED.

I. Factual Background

This is an action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq.; and Tennessee common law for breach of contract. The plaintiff was employed by Hilliard Lyons as a financial advisor from October 2001 through his resignation in August 2003. The plaintiff alleges that he was constructively discharged from his employment with Hilliard Lyons as a result of a hostile work environment caused by severe and pervasive sexual harassment he received from another male employee.

The plaintiff alleges that the harassment he was subjected to caused a decline in his production while at Hilliard Lyons. In support of this allegation, the plaintiff's economic expert estimates that the plaintiff incurred over $48,000 in back pay damages for the first eight months of 2003, while the plaintiff was still employed with the defendant. [Doc. 60 Ex. B]. The defendants dispute the cause of the plaintiff's decline in production in 2003 and argue instead that his declining numbers were a result of his efforts to seek employment elsewhere. Specifically, the defendants cite the plaintiff's deposition, in which the plaintiff admitted to traveling to Florida in 2003 to meet with representatives of Raymond James, the brokerage firm with which he is now affiliated. He also stated that during this time period, he traveled to Boston, Massachusetts to meet with representatives of LPL Financial Services. [Doc. 60 Ex. A at 189-90].

A. The Raymond James Subpoena

On November 10, 2006, defendants' counsel, Brian Pezza, sent a subpoena duces tecum to an attorney in his firm's West Palm Beach, Florida office with instructions to retain a process server to serve a subpoena on "Raymond James Financial, Inc." [Doc. 60 Ex. C]. The subpoena was sent to a process server in Fort Lauderdale, Florida and served in hand on November 29, 2006. [Doc. 60 Ex. E]. The subpoena sought the production of documents concerning the plaintiff's efforts to obtain employment with Raymond James, including correspondence and travel expense reimbursements while he was being recruited, as well as information concerning the plaintiff's income, expenses, and reimbursements once he began a Raymond James franchise. The return date for the documents requested by the subpoena was December 1, 2006. [Doc. 55 Ex. A].

On November 30, 2006, Raymond James sent a letter to defense counsel, requesting that the subpoena be re-issued in the name of "Raymond James Financial Services, Inc." and that the defendant pay an up-front fee for the initial expenses incurred in the search for responsive documents. Raymond James further requested proof of service on all parties to the litigation. [Doc. 60 Ex. F]. On December 1, 2006, defense counsel re-issued the subpoena by facsimile and express mail [see Doc. 63 ¶ 4] and, for the first time, sent a copy to plaintiff's counsel by regular mail. [Doc. 60 Ex. D]. Plaintiff's counsel received a copy of the subpoena on December 8, 2006. Thereafter, the plaintiff filed the present motion.

Attorney Pezza states in his affidavit that he did not send a copy of the November 10, 2006 Raymond James subpoena to plaintiff's counsel, as he mistakenly believed that the process server would provide notice in connection with the service. Pezza states that this was an oversight and was not intentional. Raymond James has not yet responded to the subpoena, as defense counsel requested that Raymond James suspend its processing of the subpoena pending resolution of the present motion. [Doc. 60 Ex. D].

B. LPL Boston Subpoena

On November 13, 2006, defense counsel sent a subpoena duces tecum for LPL Boston to process server, Dewsnap & Associates. [Doc. 59 Ex. C]. The subpoena was personally served upon a representative of LPL Boston at its offices in Boston, Massachusetts. [Doc. 59 Ex. E]. The subpoena sought production of documents concerning the plaintiff's efforts to obtain employment with LPL Boston, including correspondence and travel expense reimbursements. The return date for the documents requested by the subpoena was December 1, 2006. [Doc. 57 Ex. A].

Defense counsel Pezza states in his affidavit that he did not send a copy of the LPL Boston subpoena to plaintiff's counsel, as he mistakenly believed that the process server would provide notice in connection with the service. [Doc. 59 Ex. C]. Pezza states that this was an oversight and was not intentional. Pezza provided notice to plaintiff's counsel of the LPL subpoena by correspondence dated December 1, 2006, which plaintiff's counsel received on December 8, 2006. On December 7, ...


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