Bailey v. City of Bellevue, Nebraska

              IN THE UNITED STATES DISTRICT COURT                        
                 FOR THE DISTRICT OF NEBRASKA                            

ROBERT BAILEY,                                                           

              Plaintiff,                     4:18CV3132                  

    vs.                                        ORDER                     

CITY OF BELLEVUE, NEBRASKA, a                                            
political subdivision of the State of Nebraska,                          

              Defendant.                                                 

    This matter is before the Court on the following discovery motions filed by Defendant, 
City of Bellevue, Nebraska: Motion to Compel Discovery (Filing No. 118); Motion for Leave to 
Serve Subpoena Duces Tecum (Filing No. 123); and Supplemental Motion for Leave to Serve 
Subpoena Duces Tecum.  (Filing No. 156). For the following reasons, the Court will deny 
Defendant’s motion to compel and grant Defendant’s request for leave to serve the Rule 45 
subpoenas.                                                                

                 Defendant’s Motion to Compel Discovery                  
    On November 20, 2016, Plaintiff and his wife met with Chief Elbert.  Plaintiff recorded 
that meeting on his cell phone.  However, Plaintiff states he forgot to turn off the recorder after the 
meeting ended and recorded close to two hours of conversation between him and his wife on their 
drive home from the meeting and while at home.  (Filing No. 119-1; Filing No. 147-2).  Plaintiff 
provided  Defendant  with  the  recording  of  the  meeting  with  Chief  Elbert,  but  redacted  the 
remainder of the recording after the meeting ended.  Plaintiff maintains that the redacted portion 
of the recording contains only private communications between him and his wife, which are 
confidential and privileged marital communications.  Plaintiff states he did not mean to continue 
recording after the meeting ended and intended for his conversations with his wife to remain 
private.  (Filing No. 119-1; Filing No. 147-2).  Defendant has filed the instant motion to compel 
disclosure of the entire recording.  As ordered by the Court, see Filing No. 127, Plaintiff provided 
the undersigned magistrate judge with the withheld portion of the recording, which the Court 
reviewed in camera.                                                       
    The marital confidential communications privilege prohibits testimony regarding private 
intra-spousal communications during the marriage.  United States v. Evans, 966 F.2d 398, 401 (8th 
Cir. 1992).  For the privilege to apply, the communication (1) must be made during a valid 
marriage; (2) must be words or acts by one spouse that are intended as a communication to the 
other spouse, and (3) must be made in confidence.  See id.  Defendant argues the privilege is 
inapplicable to the redacted portion of the recording because Plaintiff’s communications with his 
wife were not made in confidence.  Defendant contends that, because Plaintiff chose to create the 
recording, he accepted the risk that he might record something he would want to keep confidential.  
Defendant also argues that Plaintiff waived the privilege because he did not take reasonable 
precautions to prevent his conversation from being recorded.  Defendant asserts Plaintiff cannot 
selectively choose which part of the recording to use as evidence and which part to withhold.  
(Filing No. 120 at pp. 6-9).                                              
    In support of its position, Defendant cites Wolfle v. United States, 291 U.S. 7 (1934), 
wherein the court found that a letter dictated by a husband to his wife using a  third-party 
stenographer was not privileged because the communication was disclosed to a third-party.  The 
Court does not find Wolfle analogous to this case because there was no third-party present for 
Plaintiff and his wife’s conversation after they left the meeting with Chief Elbert.  The remainder 
of Defendant’s cited cases are also distinguishable because of one key fact: the parties in those 
cases all knew, or were warned in advance, that their conversations were being recorded.  In this 
case, it is clear that Plaintiff and his wife did not know or believe their conversation was being 
recorded after the meeting ended.  This is evident after the Court’s in camera review.  No other 
person was privy to the conversations between Plaintiff and his wife, and it is apparent that they 
intended their conversations to be private.  The recording abruptly ends a little after two hours 
when Plaintiff realized his cell phone was still recording.  After review, the Court concludes 
Plaintiff properly withheld the portion of the recording after Plaintiff and his wife left the meeting 
with Chief Elbert on the basis of the marital confidential communications privilege, and will 
therefore deny Defendant’s motion to compel.                              

    Defendant’s Motion and Supplemental Motion for Leave to Serve Subpoenas 
    In Plaintiff’s expert disclosures provided to Defendant on July 29, 2020, Plaintiff’s expert, 
Dr. Terry A. Davis, stated he had “not yet completed a formal and complete report” of his opinions 
because there were “additional psychiatric records” of Plaintiff’s that “may impact” his final 
opinions.  (Filing No. 124-1 at p. 23).  Specifically, Dr. Davis’ report indicates Plaintiff reported 
he was previously hospitalized at the Douglas County Community Mental Health Center (“DCCM 
Health Center”) and the Lasting Hope Recovery Center (“Lasting Hope”), which Plaintiff had not 
disclosed to Defendant. Therefore, on July 31, 2020, Defendant filed a motion asking the Court 
for leave to serve subpoenas duces tecum to those institutions to obtain records relating to 
Plaintiff’s treatment there.  (Filing No. 123).  In response to that motion, Plaintiff filed a declaration 
stating he was mistaken about where he received treatment and believes he actually received 
treatment at The Spring Center and UNMC sometime in 2007.  (Filing No. 149-1).  Thereafter, 
Defendant filed a supplemental motion on August 26, 2020, asking for leave to serve subpoenas 
duces tecum on all four institutions to obtain any records of Plaintiff’s psychiatric treatment.   
(Filing No. 156).                                                         
    The Court’s Second Amended Case Progression Order dated February 26, 2020, set May 
15, 2020, as the deadline for completing written discovery under Rules 33, 34, 36 and 45 of the 
Federal Rules of Civil Procedure.  (Filing No. 57).  Therefore, as recognized by both parties, 
Defendant’s request to serve Rule 45 subpoenas are untimely under the scheduling order.  A 
scheduling order may be modified only for good cause.  See Fed. R. Civ. P. 16(b)(4); Sherman v. 
Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008).  “To establish good cause, a party must 
show its diligence in attempting to meet the progression order.”  Petrone v. Werner Enterprises, 
Inc., 940 F.3d 425, 434 (8th Cir. 2019).  Although prejudice to the nonmovant resulting from 
modification of the scheduling order may be a relevant factor, the court will generally not consider 
prejudice if the movant has not  been diligent in  meeting the scheduling order’s deadlines.  
Sherman, 532 F.3d at 717 (citing Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)).   
    Plaintiff argues Defendant has not demonstrated good cause to untimely serve Rule 45 
subpoenas because Defendant did not request the information sought by the subpoenas during 
discovery.  Plaintiff also asserts that Plaintiff will be “highly prejudiced” if Defendant’s motion is 
granted.  Plaintiff points out that Defendant’s interrogatories and requests for production served 
on Plaintiff only asked him to identify and produce record for health care providers for 10-years 
prior to the allegations in his complaint (i.e., dating back to 2009), but the subpoenas seek 
Plaintiff’s medical records from 2007.  Therefore, Defendant requested these documents for the 
first time after written discovery closed.  Nevertheless, the Court finds that  Defendant has 
demonstrated good cause to permit the untimely service of Rule 45 subpoenas.  It was Plaintiff’s 
own expert that stated Plaintiff’s mental health records and hospitalization from 2007 may impact 
the expert’s final opinions.  Defendant first received this expert report on July 29, 2020, and filed 
the instant motion two days later.  Additionally, it is unlikely Plaintiff would have been willing to 
provide those records from 2007 during discovery as Plaintiff already objected to the 10-year time 
as being overbroad.  See Filing No. 125 at p. 1.  Plaintiff’s mental health, including his claimed 
disabilities of major depression, panic disorder, and anxiety, are at issue in this case.  It is in the 
interest of both Plaintiff and Defendant that they and their experts have all the records they need 
to accurately assess Plaintiff’s condition.  Because Defendant has established good cause, and 
because Plaintiff has not established undue prejudice, the Court will permit Defendant to serve the 
Rule  45  subpoenas  on  the  non-parties  as  requested  in  its  supplemental  motion.    Upon 
consideration,                                                            

    IT IS ORDERED:                                                       
    1.  Defendant’s Motion to Compel Discovery (Filing No. 118) is denied; 
    2.  Defendant’s Motion for Leave to Serve Subpoena Duces Tecum (Filing No. 123) is 
      denied as moot; and                                                
    3.  Defendant’s Supplemental Motion for Leave to Serve Subpoena Duces Tecum (Filing 
      No. 156) is granted.                                               
    Dated this 16th day of September, 2020.                              

                                  BY THE COURT:                          

                                  s/Michael D. Nelson                    
                                  United States Magistrate Judge