Margie Hendricks and Myrtis Hendricks Williams v. Wells Fargo Insurance, Stericycle, Inc., Shadrack Long, Ortegas Coleman and Ean Holdings, LLC

MARGIE HENDRICKS AND * NO. 2021-CA-0109
MYRTIS HENDRICKS
WILLIAMS *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
WELLS FARGO INSURANCE, *
STERICYCLE, INC., STATE OF LOUISIANA
SHADRACK LONG, ORTEGAS *******
COLEMAN AND EAN
HOLDINGS, LLC

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-01575 C\W 2018-02116, 2018-07267, 2018-08066, DIVISION “N-8”
Honorable Ethel Simms Julien, Judge
******
Judge Roland L. Belsome
******
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Rosemary Ledet)

Donald Edward McKay, Jr.
McNeil Kemmerly
Katie F. Wollfarth
Robert McKnight
LEAKE & ANDERSSON, LLP
1100 Poydras, Suite 1700
Metairie, LA 70163

COUNSEL FOR DEFENDANT/APPELLANT

Matthew S. Chester
Matthew C. Juneau
BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC
201 St. Charles Avenue, Suite 3600
New Orleans, LA 70170

COUNSEL FOR APPELLEE/SEAN ALFORTISH

AFFIRMED

October 27, 2021

RLB
This is an appeal from the trial court’s granting of a motion to quash a pre-
EAL
trial discovery subpoena directed to a non-party’s cell phone provider. For the
RML
reasons that follow, the ruling is affirmed.

Facts

The underlying lawsuit consists of four consolidated personal injury cases

filed subsequent to an August 15, 2017 motor vehicle accident between a van and

an 18-wheel tractor trailer (hereinafter “2017 accident”). The named defendants

that are relevant to this appeal are Shadrack Long, the driver of the tractor trailer,

his employer, Stericycle, and its insurer, Greenwich Insurance Company

(collectively “the Appellants”) and the driver of the van, Ortegas Coleman. In the

course of discovery, the Appellants associated Ortegas Coleman with Cornelius

Garrison through phone calls between the men before and after the 2017 accident.

Cornelius Garrison had been indicted in federal court for conspiring to fraudulently

stage motor vehicle accidents. Further discovery revealed that Cornelius Garrison

had been in contact with another cell phone number and Appellants issued a

subpoena duces tecum to the cell phone provider, Sprint Spectrum, LP (“Sprint”)

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requesting two years of records for the specific cell phone number. That subpoena

was met with a motion to quash filed on behalf of the owner of the cell phone

number, Sean Alfortish.

Additionally, the Appellants filed a motion for leave of court to file

supplemental and amending pleadings to assert a reconventional demand against

Plaintiffs, a cross-claim against co-defendant Ortegas Coleman, as well as a third-

party demand against Cornelius Garrison, alleging that the 2017 accident was

fraudulently staged. The pleadings further asserted that the subject accident was

part of a wide-ranging conspiracy between the plaintiffs, Ortegas Coleman, and

Cornelius Garrison to stage motor vehicle accidents and file personal injury claims

against companies operating 18-wheel tractor trailers.

After a hearing, the trial court granted the Appellants’ motion for leave to

file the amendment and additional claims. The trial court also granted Sean

Alfortish’s motion to quash the subpoena issued to Sprint. This appeal followed.

Discussion

On appeal, the Appellants maintain that the trial court abused its discretion

when it granted the motion to quash by placing the burden of proof to show good

cause to warrant the discovery on the Appellants or alternatively, by not finding

that the Appellants showed good cause to obtain the discovery.1

The subpoena that was issued to Sprint sought cell phone records for the

period of July 1, 2017 and January 1, 2019, including but not limited to billing

statements, cell sites activations, numbers dialed, and sent and/or received text
1
Appellants also challenge, for the first time on appeal, Sean Alfortish’s standing in this case
claiming he failed to prove ownership of the cell phone number. However, the record indicates
that the Appellants’ opposition to the motion to quash declared that Sean Alfortish’s ownership
was judicially confessed. See, C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, p. 5 (La.
12/3/03), 861 So.2d 156, 159 (“A judicial confession has the effect of waiving evidence as to the
subject of the admission”).
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messages. In response, the motion to quash argued that Sean Alfortish is a non-

party to the litigation, is not a witness to the 2017 accident, and has no connection

with the facts at issue. Thus, his personal information is irrelevant to this matter

and the subpoena should be quashed. Opposing the motion to quash, the

Appellants revealed that Sean Alfortish’s cell phone records were sought because

his cell phone number appeared numerous times in the cell phone records of

Cornelius Garrison. In arguing why that was relevant to this case, the Appellants

informed the trial court that Cornelius Garrison had been indicted in a federal court

case, United States v. Garrison (“the Indictment”).2 The Indictment alleged that

Cornelius Garrison had been involved in staging as many as fifty accidents with

18-wheel tractor trailers with “Co-Conspirator A.” The Appellants further

revealed that Cornelius Garrison had been in contact with the driver in this case

Ortegas Coleman several times before and after the 2017 accident including

several calls the day of that accident. The record supports those facts.

Next, the Appellants suggest that even though Sean Alfortish had no contact

with Ortegas Coleman at any time, and no contact with Cornelius Garrison on the

date of the 2017 accident, he was “Co-Conspirator A.” That assertion was based

on news outlets’ reporting but has not been substantiated. Sean Alfortish has not

been named in the Indictment. So, although Appellants were able to connect

Ortegas Coleman to Cornelius Garrison, none of the evidence presented establishes

a connection between Sean Alfortish and Ortegas Coleman or any plaintiff in this

case.

Generally, a party may obtain discovery of any information which is

relevant to the subject matter involved in the pending action. There are limitations

2
No. 2:20-CR-00092 (E.D. La. 2020).
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to this rule, however, when justice requires that a party or other person be

protected from annoyance, embarrassment, oppression, or undue burden or

expense. Stolzle v. Safety & Systems Assur. Consultants, Inc., 2002-1197, p.2 (La.

05/24/02); 819 So. 2d 287, 289, (citing La. Code Civ. P. Art. 1422. La. Code Civ.

P. art. 1426; Laburre v. East Jefferson Gen. Hosp., 555 So. 2d 1381 (La. 1990)).

Additionally, a showing of relevancy and good cause for production has been

required in Louisiana cases where a party seeks production of records from a non-

party. Stolzle, 2002-1197, p.3, 819 So.2d at 289 (citing Ouachita Nat’l Bnk in

Monroe v. Palowsky, 554 So.2d 108 (La.App. 2nd Cir. 1989)); see St. Bernard Port,

Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 2014-0286, p. 5 (La.App.

4 Cir. 8/27/14), 147 So.3d 1266, 1268.

Further, La. C.C.P. Art. 1426 provides in pertinent part:

Upon motion by a party or by the person from whom discovery
is sought, and for good cause shown, the court in which the action is
pending or alternatively, on matters relating to a deposition, the court
in the district where the deposition is to be taken may make any order
which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
one or more of the following:

(1) That the discovery not be had.

Prior to ordering discovery from a third party, which has invoked its right to be

protected, the trial court must be convinced of the relevancy and necessity of such

discovery in achieving its intended purpose. Channelside Services., LLC v.

Chrysochoos Group, Inc., 2015-0064, p. 19 (La. App. 4 Cir. 05/13/16); 194 So. 3d

751, 762. A trial court’s regulation of pre-trial discovery is afforded broad

discretion and will not be reversed by an appellate court in the absence of a clear

abuse of discretion. Channelside, 2015-0064, p.8, 194 So.3d at 756 (citing

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Sercovish v. Sercovich, 2011-1780, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 600,

603).

In Stolzle, supra, the trial court considered requests for production which,

although directed to a party, concerned the personal information of non-parties,

including credit card receipts, telephone bills, cellular telephone bills, fax changes,

travel ledgers, gas receipts, car rental receipts, airline receipts, and lodging

receipts. Stolzle, 2002-1197, p. 3, 819 So.2d at 289. Although the trial court denied

a motion for protective order, the Louisiana Supreme Court vacated and set aside

the trial court order and remanded the matter back to the trial court to grant the

protective order. Stolzle, 2002-1197, p. 4, 819 So.2d at 290. The Court noted, “The

trial court failed to determine whether Mr. Stolzle has made a showing of good

cause, nor did it make a finding he could not discover this information in a less

intrusive manner.” Stolzle, 2002-1197, p. 3, 819 So.2d at 289.

In addition, this Court in St. Bernard Port, Harbor & Terminal Dist. v.

Violet Dock Port, Inc., L.L.C., extended protection to a non-party with respect to

information and documents not necessary to determine the issues in dispute. In that

expropriation suit, the plaintiff issued a trial subpoena and subpoena duces tecum

non-parties to obtain a property valuation report, documents associated with the

report, and testimony regarding the report and documents. St. Bernard Port, 14-

0286, p. 2, 147 So.3d at 1267. The trial court granted a motion to compel and

denied a motion to quash. This Court reversed, finding that the trial court abused

its discretion because St. Bernard Port failed to make a showing of good cause.

This Court further stated that St. Bernard Port had not shown that the report was

necessary to establish the value of the Violet Dock Port property in the

expropriation action. Id.
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Stolzle and St. Bernard Port demonstrate that the party seeking discovery

from a non-party must show good cause or the subpoena will be quashed. Federal

cases specifically addressing motions to quash subpoenas for cell phone records

Winter v. Bisso Marine Co., Inc., 13-CV-5191, 2014 WL 3778833, (E.D. La. July

29, 2014) and Scott v. Complete Logistical Services, LLC, No. 19-CV-11672, 2021

WL 2402161 (E.D. La. June 11, 2021), are guidance for this Court on the issue. In

Winter, defendant Bisso issued a subpoena duces tecum to Verizon Wireless,

plaintiff's cell phone provider, seeking all records related to plaintiff’s cell phone

number, including billing and usage charges, and all logs of incoming and

outgoing calls and texts, and data transfers for a specified period of time. Winter,

2014 WL 3778833, at *1. Bisso asserted that the records would reveal

information relevant to the plaintiff’s claim that the accident caused him to have

ongoing mental and physical problems. Id. The plaintiff moved to quash the

subpoena, arguing that it was overly broad, unduly burdensome and sought

irrelevant and possibly privileged materials and was not reasonably calculated to

lead to the discovery of admissible evidence. The district court granted the motion

to quash, finding Bisso’s arguments too tenuous to support a finding that the

requested records were relevant. Id.

In Scott, a more recent federal decision, the plaintiff, Joseph Scott filed a

seaman complaint after sustaining injuries when a crane fell on his shoulder. Scott,

2021 WL 2402161, at *1. Thereafter, defendants filed a subpoena for the

production of two years of Scott’s cell phone records for the purpose of

establishing that Scott was exaggerating his injuries. Scott filed a motion to quash

the subpoena claiming the subpoena was unreasonable and a fishing expedition

that was an invasion of privacy. Id. Relying on Winter, the district court reasoned
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that the subpoena was not proportional to the needs of the case. Scott, 2021 WL

2402161, at *3. Both cases acknowledged an individual’s reasonable expectation

of privacy in the electronic contents of a cell phone.

In Winter and Scott, the defendants sought the cell phone records of a party

plaintiff to obtain information to bolster their defense against the plaintiff’s claims.

The district court in both cases found that the defendants failed to establish good

cause. Here, the Appellants rely on speculation and conjecture in asserting that

Sean Alfortish’s cell phone records will support their claims of fraud in this case.

The trial court provided the following oral reasons for quashing the subpoena:

Mr. Alfortish is not a party. He’s not an attorney in this case. I
believe before you can get his telephone records, you need to get
something more. So, for that reason I’m going to grant the motion to
quash a subpoena for Mr. Alfortish’s telephone records.

Given the record and applicable law, this Court does not find that the

trial court abused its vast discretion in this matter. Accordingly, the ruling

of the trial court to quash the subpoena is affirmed.

AFFIRMED

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