Colborn v. Netflix Inc.

608 F.Supp.3d 736

Andrew L. COLBORN, Plaintiff,

v.NETFLIX INC., et al., Defendants.

Case No. 19-cv-0484-bhl

United States District Court, E.D. Wisconsin.

Signed June 23, 2022

George Burnett, Law Firm of Conway Olejniczak & Jerry SC, Green Bay, WI, April Rockstead Barker, Schott Bublitz & Engel SC, Waukesha, WI, Michael C. Griesbach, Griesbach Law Offices LLC, Manitowoc, WI, for Plaintiff.

Emily S. Parsons, Matthew E. Kelley, Ballard Spahr LLP, Washington, DC, Isabella Salomao Nascimento, Ballard Spahr LLP, Minneapolis, MN, James A. Friedman, Godfrey & Kahn SC, Madison, WI, for Defendant Netflix Inc.

Elizabeth H. Baldridge, Jean-Paul Jassy, Jeffrey A. Payne, Kevin Vick, Meghan E. Fenzel, Jassy Vick Carolan LLP, Los Angeles, CA, James A. Friedman, Godfrey & Kahn SC, Madison, WI, for Defendant Chrome Media LLC.

Elizabeth H. Baldridge, Jean-Paul Jassy, Kevin Vick, Meghan E. Fenzel, Jassy Vick Carolan LLP, Los Angeles, CA, James A. Friedman, Godfrey & Kahn SC, Madison, WI, for Defendants Laura Ricciardi, Moira Demos.

DECISION AND ORDER GRANTING MOTION TO COMPEL

BRETT H. LUDWIG, United States District Judge

Lawyers and journalists comprise (perhaps apocryphally) two of our country's most respected professions. This order concerns efforts to enforce a subpoena against a person who, at different times, has served in both roles, and it is the combination of those roles that gives rise to the current dispute. Under Fed. R. Civ. P. 45(d)(2)(B)(i), a federal district court is empowered to compel production of materials responsive to a properly issued subpoena. The wrinkle here is that the target of the subpoena in question—Respondent Michael Griesbach—also happens to be one of Plaintiff Andrew Colborn's counsel of record. Defendant Netflix, Inc. asked Respondent to produce documents related to his journalistic work, which concerns the events underlying this case. Respondent has flatly refused, initially based on a number of written objections and, more recently, based on Wis. Stat. § 885.14, Wisconsin's "Reporter Privilege" statute. Pending before the Court is Netflix's motion to compel, which asks the Court to order Respondent to produce responsive materials. At a June 14, 2022 hearing, the Court concluded that Respondent's objections were unavailing and granted Netflix's motion to compel. This decision supplements the Court's prior ruling.

BACKGROUND

Today, Respondent Michael Griesbach is one of three lawyers acting as counsel for Plaintiff Andrew Colborn in this lawsuit. In this capacity, Respondent electronically signed the latest complaint, which accuses Defendants Netflix, Inc., Chrome Media, LLC, Laura Ricciardi, and Moira Demos of defamation, negligence, and intentional infliction of emotional distress in connection with their portrayal of Colborn in the popular docuseries Making a Murderer. (ECF No. 105.)

Over a decade before Making a Murderer premiered, though, Respondent was an assistant district attorney in Manitowoc County, Wisconsin, the epicenter of the events giving rise to the aforementioned series. (ECF No. 206 at 2.) He parlayed this front-row seat into the roles of chronicler and commentator. By his own admission, he "became obsessed" with the case against Steven Avery, the titular murderer. (Id. ) He authored three books on the Avery saga: Unreasonable Inferences: The True Story of a Wrongful Conviction and Its Astonishing Aftermath ; The Innocent Killer: A True Story of a Wrongful Conviction and its Astonishing Aftermath ; and Indefensible: The Missing Truth about Steven Avery, Teresa Halbach, and Making a Murderer. (Id. at 2-3). He also gave related radio, television, and print interviews and even appeared in the first episode of the allegedly defamatory Making a Murderer. (Id. at 3.)

Because of Respondent's extensive involvement in all things Avery, Netflix served a third-party subpoena on him, demanding discovery of documents and communications related, in general, to the research, drafting, and fact-checking of his books; his communications regarding Making a Murderer , Netflix, and the producer Defendants; and his work on Avery's cases during his time as assistant district attorney. (Id. ) Respondent objected on the grounds that: (1) the evidence sought did not meet the Fed. R. Evid. 401 standard for admissibility; (2) disclosure would prejudice Plaintiff by turning his attorney into a witness; (3) Respondent had no special knowledge concerning the evidence in the Avery case because he relied on public documents for his research; and (4) the evidence sought was available from alternative sources. (ECF No. 207-2 at 2-3.) He also made clear that he did not intend to produce any responsive documents. (Id. ) Fifteen days later, he added an objection based on Wis. Stat. § 885.14, Wisconsin's reporter privilege statute. (See ECF No. 239 at 4-5.) Netflix subsequently filed this motion to compel. (ECF No. 206.)

LEGAL STANDARD

The information a subpoena seeks must not exceed the limits of Fed. R. Civ. P. 26(b) ’s discovery standard. Hoerchler v. Equifax Info. Servs., LLC , 568 F. Supp. 3d 931, 935 (N.D. Ill. 2021). That standard provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). In other words, a subpoena should be enforced so long as it "is reasonable in the circumstances." McKevitt v. Pallasch , 339 F.3d 530, 533 (7th Cir. 2003). To make this determination, a court should consider "timeliness, good cause, utility, and materiality." CSC Holdings, Inc. v. Redisi , 309 F.3d 988, 993 (7th Cir. 2002). In addition, a court must weigh "the value of the material sought against the burden of providing it" and take account of "society's interest in furthering ‘the truthseeking function’ in the particular case." Patterson v. Avery Dennison Corp. , 281 F.3d 676, 681 (7th Cir. 2002). Importantly, it is the objecting party's burden "to show why a particular discovery request is improper." E.E.O.C. v. Klockner H & K Machines, Inc. , 168 F.R.D. 233, 235 (E.D. Wis. 1996) (citing 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure , § 2173 at 543-544 (1970) ) (other citations omitted). If they cannot, the motion to compel should be granted.

ANALYSIS

Respondent objects to Netflix's subpoena on five grounds: (1) the evidence sought does not meet the Fed. R. Evid. 401 standard for admissibility; (2) disclosure would prejudice Plaintiff by turning his attorney into a witness; (3) Respondent has no special knowledge concerning the evidence in the Avery case because he relied on public documents for his research; (4) the evidence sought is available from alternative sources; and (5) Wisconsin's reporter privilege shields the information sought from disclosure. (ECF No. 207-2 at 2-3; ECF No. 214 at 14-16.) Because none of these grounds demonstrates that the subpoena exceeds the limits of Rule 26(b) or is unreasonable in the circumstances, the motion to compel will be granted.

I. Respondent Mistakenly Conflates the Evidentiary Standards for Admissibility with the Standards Governing Discovery.

Respondent first objects that nothing Netflix has requested would be admissible at trial under Fed. R. Evid. 401 - 403. (ECF No. 214 at 2-4.) This is a classic category error. What is discoverable is not always, and indeed does not need to be, admissible. The key at the discovery stage is relevance. See Fed. R. Civ. P. 26(b)(1). And relevance does not turn on whether the evidence sought, itself, would be admissible at trial, but rather, whether the evidence " ‘reasonably could lead to other matters that could bear on[ ] any issue that is or may be in the case.’ " Varelas v. Crown Equip. Corp. , No. 17-CV-869-JPS, 2018 WL 1307961, at *1 (E.D. Wis. Mar. 13, 2018) (quoting Chavez v. DaimlerChrysler , 206 F.R.D. 615, 619 (S.D. Ind. 2002) ); see Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). So a party who refuses to respond to a subpoena on the grounds that nothing produced would be admissible at a trial propounds a position no more logical than a detective who rebukes fingerprint evidence simply because that, in and of itself, will not conclusively identify the culprit. The discovery provisions of the Federal Rules of Civil Procedure "are to be applied as broadly and liberally as possible" to allow parties to explore possible leads. Hickman v. Taylor , 329 U.S. 495, 506, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Respondent has not established that Netflix's subpoena does anything more.

II. The Subpoena Does Not Seek Purely Public Documents, Obtainable from Other Sources, for the Purpose of Turning Respondent into a Witness to His Client's Detriment.

Respondent's second, third, and fourth objections are effectively premises supporting his proposed conclusion that Netflix issued its subpoena in bad faith, as part of a strategy to embarrass him and prejudice his client. (ECF No. 214 at 4-14.) If, his theory goes, the only documents sought are publicly available, then the only reason to request them from Respondent and not any of the other possible sources is underhanded gamesmanship. Were this true, it would represent good cause to limit the scope of discovery under Fed. R. Civ. P. 26(b)(2). There is no reason to burden one party's attorney with the task of compiling and turning over documents that already exist in the public domain. See Patterson , 281 F.3d at 681. The problem for Respondent is that his argument strawmans Netflix's position, selectively ignoring multiple requests for overtly non-public information in his possession.¹

For instance, Respondent complains that he should not be required to respond to a subpoena seeking copies of his books when those books are in print and publicly available. (ECF No. 214 at 3.) But the subpoena does not simply request copies of the books. (See ECF No. 207-1 at 10-11.) Rather, it seeks "documents...