govinfo:USCOURTS-azd-2_21-cv-01089-1

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Marcella Fox, 
 
Plaintiff, 
 
v. 
 
State of Arizona, et al., 
 
Defendants. 
No. CV-21-01089-PHX-MTL 
 
ORDER 
 
 
 
 Pending before the Court are Plaintiff’s and the State of Arizona’s Joint Statement 
of D iscovery Dispute (Doc. 74) and supplemental briefing (Docs. 79, 86) , Defendant 
McClelland’s Motion for Mental Examination of Plaintiff (Doc. 75), Brittany Fountain and 
Kysha Slocumb’s Objections and Motion to Quash Deposition Subpoenas (Doc. 88), 
Plaintiff’s Motion to Quash Subpoena Duces Tecum (Doc. 90) , and the State’s Motion to 
Strike Plaintiff’s Reply (Doc. 112). The Court now rules. 
I. FACTUAL BACKGROUND 
Plaintiff Marcella Fox filed this action asserting claims for assault, battery, false 
imprisonment, intentional infliction of emotional distress, negligence, and violation of 
equal protection under 42 U.S.C. § 1983, based on allegations that Defend ant Jason 
McClelland sexually assaulted her while both were working for the Arizona Department 
of Corrections , Rehabilitation, and Reentry (“ADC”). (Doc. 33.) Plaintiff alleges that 
Defendant McClelland habitually made sexual advances toward his female cow orkers in 
front of others, but ADC took no action against him. ( Id., ¶¶ 17, 18, 22 .) For example, 

 
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Plaintiff alleges that Defendant McClelland sexually assaulted two female correctional 
officers and sexually harassed a nurse on multiple occasions throughout 2019 and 2020. 
(Id., ¶¶ 40 -44, 47, 48. ) Plaintiff further alleges that Defendant McClelland sexually 
assaulted her at work on July 15, 2020. (Id., ¶¶ 64, 71-78.) Plaintiff alleges that she escaped 
from Defendant McClelland’s control and immediately told h er supervisor, Stephanie 
Oplinger, about the incident. ( Id., ¶ 80.) Plaintiff further alleges that Defendant was 
arrested and indicted on several sexual assault, sexual abuse, and kidnapping charges 
related to four victims, including Plaintiff. ( Id., ¶¶ 97 , 104 -05.) The charges against 
Defendant McClelland have been dismissed. (See Doc. 79-1 at 36.) 
Brittany Fountain and Kysha Slocumb , two of Defendant McClelland’s other 
alleged victims, also filed civil lawsuits against him. Both cases have settled. During the 
pendency of those lawsuits, Plaintiff, Ms. Fountain, and Ms. Slocumb were all represented 
by the same counsel, Anne Findling. Ms. Fountain and Ms. Slocumb are now represented 
by Joy Bertrand. 
II. DISCOVERY OF PLAINTIFF’S TEXT MESSAGES 
A. Background 
Fact discovery in this case closes on January 6, 2023. (Doc. 44.) The parties filed a 
Joint Statement of Discovery Dispute regarding Plaintiff’s responses to the State ’s 
Requests for Production (“RFP”). (Doc. 74.) The Court ordered supplemental briefing 
(Doc. 78), which the State and Plaintiff filed (Docs. 79, 86). 
Pursuant to Federal Rule of Civil Procedure 34, the State requested all of Plaintiff’s 
communications with Ms. Fountain (RFP No. 1), Ms. Slocumb (RFP No. 2), and Defendant 
McClelland (RFP No. 4). The State also requested Plaintiff’s communications with Ms. 
Oplinger (RFP No. 5), and Jessica Todd (RFP No. 6) from July 15 to December 31, 2020. 
(See Doc. 74; see also Doc. 79-1 at 3.) Plaintiff initially responded without producing any 
text messages, asserting various objections and privileges. Plaintiff then supplemented her 
original responses to include redact ed messages from Ms. Fountain’s cell phone and a 
privilege log previously produced in Ms. Fountain’s lawsuit. (See Doc. 79-1 at 6-9.) 

 
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In the parties’ Joint Statement of Discovery Dispute, the State asserts that 
immediately after the alleged sexual assault , Plaintiff texted with Ms. Oplinger , Ms. 
Fountain, Ms. Todd, and Ms. Slocumb about Defendant McClelland. (Doc. 74 at 1-2.) The 
State also asserts that Plaintiff’s prior redacted production of messages is inadequate. (Id. 
at 2.) Plaintiff admitted to previously dating Defendant McClelland and exchanging text 
messages with him throughout that relationship. (Id. at 1.) Plaintiff generally asserts, as she 
previously testified at her deposition, “the earliest text messages backed up to her iCloud 
are dated November 18, 2020.” (Doc. 74 at 2.) Plaintiff also asserts that the text messages 
sought are irrelevant, private, and not proportional to the needs of the case. (Id. at 3.) 
The parties agree that the scope of the requested communications is limited to text 
messages for this dispute. Plaintiff has not produced any text messages from her own cell 
phone as of the date of this order. Rule 34 requires parties to produce any relevant and 
responsive documents in their possession, custody, or control, including text messages, in 
response to another party’s discovery requests. Fed. R. Civ. P. 34. 
B. Legal Standard 
 Under Federal Rule of Civil Procedure 26 parties may obtain discovery concerning 
any nonprivileged matter that is relevant to any party’s claim or defense an d proportional 
to the needs of the case. Fed. R. Civ. P. 26(b)(1). District courts have broad discretion in 
controlling discovery, but discovery is not boundless . Hallett v. Morgan , 296 F.3d 732, 
751 (9th Cir. 2002). Discovery must be limited if: 
(i) the d iscovery sought is unreasonably cumulative or 
duplicative, or can be obtained from some other source that is 
more convenient, less burdensome, or less expensive; 
(ii) the party seeking discovery has had ample opportunity to 
obtain the information by discovery in the action; or 
(iii) the proposed discovery is outside the scope permitted by 
Rule 26(b)(1). 
 
Fed. R. Civ. P. 26(b)(2)(C). Rule 26(b)(1) lists the following factors for courts to consider 
when evaluating proportionality: the importance of the iss ues at stake in the action; the 
amount in controversy; the parties’ relative access to the relevant information; the parties’ 

 
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resources; the importance of the discovery in resolving the issues; and whether the burden 
or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). 
C. Analysis 
1. Motion to Compel Text Messages 
a. Loss of Pre-November 2020 Text Messages 
Plaintiff testified at her deposition that she no longer has access to any text messages 
prior to November 18, 2020 because she purchased a new phone. (Doc. 86-1 at 5.) Plaintiff 
asserts that she has attempted to access the prior messages through her iCloud but there are 
no archived messages prior to November 18, 2020. ( Id.) The State argues that “Plaintiff 
either failed to preserve the messages or failed to conduct a competent search for them.” 
(Doc. 79 at 1.) 
The State has raised legitimate reasons to question whether Plaintiff is withholdin g 
responsive communications. Plaintiff has not supplied an affidavit or sworn testimony that 
she took any steps to recover her messages other than merely logging in to her iCloud 
account. Certainly, Plaintiff could have at least contacted Apple or her wireless carrier in 
an attempt to retrieve the messages. Additionally, the relevant time period for the RFPs 
extends past November 18, 2020. It is not clear to the Court why Plaintiff could not search 
for and produce any responsive messages in her possession dated November 18, 2020 or 
later. The Court is not satisfied that Plaintiff’s representations adequately demonstrate that 
there was a reasonable search for responsive messages. 
The Court finds that Plaintiff has not done enough to establish that her text messages 
prior to November 18, 2020 are irretrievably lost by inadvertent action. Thus, Plaintiff shall 
be required to conduct an additional search for the messages and supply a sworn declaration 
describing her additional search efforts. If Plaintiff can ret rieve responsive text messages 
after additional efforts, Plaintiff shall produce those messages within 21 days of this Order. 
Such an attestation after limited additional searching would give the Court and the State 
assurance that Plaintiff has complied wi th her duty under Rule 26 without unduly 
burdening her. See Federal Trade Commission v. Noland , CV-20-0047-DWL, 2021 WL 

 
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2187021, at *3 (D. Ariz. May 28, 2021). 
b. Brittany Fountain and Kysha Slocumb 
Defendants’ RFP Nos. 1 and 2 requested all of Plaintiff’s communications with 
Brittany Fountain and Kysha Slocumb. (Doc. 79-1 at 3.) In response, Plaintiff invoked “the 
attorney-client privilege, the co -client (or joint client privilege), the common interest 
privilege, and/or the joint defense privilege,” and protection under the Arizona Constitution 
Victim’s Bill of Rights (“VBR”). (Doc. 79-1 at 6.) Plaintiff also objected to the requests as 
overly broad, irrelevant, and intended to embarrass or harass Plaintiff. ( Id. at 7.) Plaintiff 
then supplemented her ori ginal responses to include redacted text messages from Ms. 
Fountain’s cell phone and furnished a privilege log invoking the VBR, Federal Rule of 
Civil Procedure 26(b)(1) and Federal Rules of Evidence 402 and 403 . (See Doc. 79-1 at 
12-14, 19-32.) 
The State argues that because the criminal lawsuit against Defendant McClelland 
has been dismissed with prejudice, the VBR is no longer applicable. According to the State, 
Plaintiff should be required to produce additional, responsive messages between Ms. 
Fountain, Ms. Slocumb, and herself, including those previously withheld under the VBR . 
(Doc. 79 at 3.) The State notes that after the criminal lawsuit was dismissed, both Plaintiff 
and Defendant McClelland submitted to depositions that were previously unavailable 
under the VBR. Notwithstanding her agreement to sit for deposition, Plaintiff reiterates the 
existence and applicability of the VBR to the State’s discovery requests. (Doc. 86 at 3.) 
Crime victims’ rights are protected by the Arizona Constitution through the VBR, 
which provides, in relevant part: 
(A) To preserve and protect victims’ rights to justice and 
due process, a victim of crime has a right: 
1. To be treated with fairness, respect, and dignity, and to 
be free from intimidation, harassment, or abuse, throughout the 
criminal justice process. 
. . . 
5. To refuse an interview, deposition, or other discovery 
request by the defendant, the defendant’s attorney, or other 
person acting on behalf of the defendant. 

 
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Ariz. Const. art. II, § 2.1. The Arizona Court of Appeals applied the VBR to prevent a 
criminal defendant from taking their alleged victim’s deposition in a related civil case prior 
to the criminal trial. State v. Lee, 245 P.3d 234, 238-39 (Az. Ct. App. 2011). The Lee court 
noted that “[t]he purpose underlying a victim’s right to refuse a pretrial deposition is to 
protect the victim’s privacy and minimize contact with the defendant prior to trial.” Id. at 
239. But the court expressly “decline[d] to address [whether] a victim’s right to refuse 
[discovery] could extend beyond the conclusion of the criminal trial.” Id. at 238 n.7. No 
other Arizona appellate court has addressed this issue to date. Other courts in this District 
have relied on the reasoning in Lee to hold that victims’ rights under the VBR expire at the 
conclusion of the state court criminal proceedings and do not carry over into subsequent 
federal habeas litigation. Forde v. Shinn , No. CV -21-00098-TUC-SHR, 20 21 WL 
2555430, at *3 (D. Ariz. Jun. 22, 2021) ; Miller v. Shinn , No. CV -21-00992-PHX-ROS, 
2021 WL 4503461, at *3 (D. Ariz. Oct. 1, 2021) ; Burns v. Shinn , No. 
CV-21-1173-PHX-SPL, 2021 WL 5280601, at *2–4 (D. Ariz. Nov. 12, 2021). 
The Court need not reach this issue of first impression here because, by its plain 
text, the VBR is limited to a victim’s right to refuse discovery requested “by the defendant, 
the defendant’s attorney, or other person acting on behalf of the defendant.” 1 Ariz. Const. 
art. II, § 2.1; see also Winterbottom v. Ronan, 258 P.2d 182, 184 (Az. Ct. App. 2011). The 
discovery requests at issue were propounded by the State of Arizona, not by Defendant 
McClelland. Although the State and Defendant McClelland are both defendants in this 
action based on the same underlying events , it is not clear to the Court that their interests 
are aligned. The First Amended Complaint (“FAC”) asserts separate counts against each 
party. (See Doc. 33.) The State and Defendant McClelland also filed separate answers to 
the FAC and served separate discovery requests on Plaintiff. The State is represented by 
the Arizona Attorney General’s Office and Defendant McClelland has retained his own 
counsel. In the absence of specific evidence that the State is acting on behalf of Defendant 
McClelland in propounding its discovery request s, the Court cannot say that the State is 
 
1 Moreover, the parties have not fully briefed their positions on the application of the VBR 
to the State’s pending discovery requests. 

 
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representing Defendant McClelland’s interests such that the VBR applies.2 
Additionally, Plaintiff concedes that her text messages with Ms. Fountain and Ms. 
Slocumb are relevant and “include[] extensive information the women shared about their 
mental health and psychological distress.” (Doc. 86 at 3.) Plaintiff’s FAC asserts a claim 
for intentional infliction of emotional distress against the State and seeks emotional distress 
damages. (Doc. 33 at 14, 18.) After putting her emotional status at issue, Plaintiff cannot 
now seek to exclude this evidence as irrelevant or disproportional to the needs of the case. 
The Court does find that the State’s request is disproportional as to time frame and scope, 
however. It would be unduly burdensome and intrusive to require Plaintiff to produce all 
messages with Ms. Fountain and Ms. Slocumb, regardless of the content and time of 
receipt. Non-privileged messages relating to the events underlying this action, however, 
are relevant to Plaintiff’s claims against Defendant and must be produced. The Court thus 
limits Plaintiff’s obligation under RFP Nos. 1 and 2 to non-privileged communications in 
Plaintiff’s possession on or after July 15, 2020 pertaining to the events underlying this 
action. The Court finds that by limiting the scope of the messages to the events underlying 
Plaintiff’s own asserted claims, the appropriate balance is achieved between Defendant’s 
need for the information and Plaintiff’s right to be protected from undue harassment. 
Thus, the Court orders Plaintiff to produce any additional, responsive text messages 
with Ms. Fountain and Ms. Slocumb in her possession, unless they are subject to another 
relevant privilege. If Plaintiff claims privilege over any of those messages, Plaintiff must 
provide a n updated privilege log setting forth specifically which privilege she seek s to 
invoke and how that privilege precludes disclosure .3 See Rodriguez v. Seabreeze Jetlev 
LLC, --- F.Supp.3d ---, 2022 WL 3327925 (N.D. Cal. Aug. 11, 2022) (“If a party withholds 
 
2 Because the Court denies application of the VBR on the ground that the p arty 
propounding the discovery is not the crim inal defendant, his attorney, or someone 
representing his interests, the Court need not consider whether the VBR applies beyond the 
end of the related criminal proceeding. See Winterbottom, 258 P.3d at 184 n.2. 
3 The Court notes that although Plaintiff’s prior responses to Defendants’ RFPs invoke “the 
attorney-client privilege, the co -client (or joint client privilege), the common interest 
privilege, and/or the joint defense privilege,” none of those privileges were asserted in the 
attached privilege log or addressed in the parties’ briefing. (Compare Doc. 79-1 at 6-7 with 
id. at 19-32.) 

 
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material as privileged . . . it must produce a privilege log that is sufficiently detailed for the 
opposing party to assess whether the assertion of privilege is justified.”) (internal 
quotations omitted). Plaintiff is not required to reproduce texts from her phone that would 
be duplicative of what has already been produced from Ms. Fountain’s phone . Nor is 
Plaintiff required to produce messages that would contain information pertaining to Ms. 
Fountain’s or Ms. Slocumb’s confidential settlement agreements with Defendant 
McClelland. 
c. Defendant McClelland 
The State’s RFP No. 4 reque sted all of Plaintiff’s communications to and from 
Defendant McClelland. (Doc. 79 -1 at 3.) In response, Plaintiff objected to the timeframe 
as overly broad and stated that “she may have exchanged text messa ges with Jason 
McClelland in 2019 but no longer has access to those text messages.” (Doc. 79 -1 at 8.) In 
her supplemental response, Plaintiff further stated “Plaintiff does not believe that she ever 
deleted these text messages” but that they were instead “lost at some point when she got a 
new cell phone” because her messages did not transfer to her new phone. (Doc. 79-1 at 14.) 
The State argues that Plaintiff’s messages with Defendant McClelland are “extremely 
important” because they may contain information bearing on the relationship between the 
parties. (Doc. 79 at 4.) In response, Plaintiff asserts that she has made a reasonable inquiry 
into whether responsive documents exist and was unable to locate any. (Doc. 86 at 2.) 
“A court may deny a motion to compel when the information sought is almost 
certainly nonexistent or the object of pure speculation.” In re Pork Antitrust Litigation, No. 
18-cv-1776, 2022 WL 972401 at *9 (D. Minn. Mar. 31, 2022). “A court will do so when 
evidence shows that the responding party has searched for the information but cannot find 
it or disclaims its existence after the search, and the movant shows no evidence to suggest 
the information exist s.” Id. Plaintiff asserts that she changed her phone number and 
purchased a new phone after Defendant McClelland threatened her. (Doc. 74 at 2.) The 
State does not refute this or provide any evidence that Plaintiff and Defendant McClelland 
continued to correspond after she changed her phone number. The Court finds that Plaintiff 

 
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conducted a reasonable search for responsive text messages from the time she changed her 
phone number . Based on Plaintiff’s assertion that she stopped communicating with 
Defendant McClelland because he threatened her, responsive texts from that time period 
are “almost certainly nonexistent .” Thus, the Court denies the State’s motion to compel 
Plaintiff to produce messages with Defendant McClelland after she changed her phone 
number. 
As discussed above in Part II.C.1.a supra, Plaintiff has not shown that a reasonable 
search was conducted for messages prior to November 18, 2020. Plaintiff shall conduct an 
additional search for those messages, including messages with Defendant McClelland prior 
to November 18, 2020, and provide an attestation of her search as discussed supra. 
d. Stephanie Oplinger 
The State’s RFP No. 5 requested “all of Plaintiff’s communications to and from 
Stephanie Oplinger from July 15, 2020 to December 31, 2020. ” (Doc. 79 -1 at 3.) In 
response, Plaintiff objected to the request as irrelevant, not proportional to the needs of the 
case, and not likely to lead to the discovery of admissible evidence. (Doc. 79-1 at 8.) In her 
supplemental response, Plaintiff further stated: 
In addition, Stephanie Oplinger’s statement to CIU states that 
on July 15, 2020, Plaintiff texted her and asked her to bring 
Plaintiff’s personal items to the front gate as she was leaving 
for the night. Oplinger’s statement goes on to describe what 
Plaintiff told her i n person about the assault by McClelland. 
See STATE-0384. Thus, information responsive to this request 
is already within the State’s possession. 
(Doc. 79-1 at 15.) The State argues that Plaintiff’s supplemental response concedes that 
relevant text messages with Ms. Oplinger relating to the investigation exist, but Plaintiff 
has refused to produce them. (Doc. 79 at 5.) 
The State has a reasonable basis to believe that messages responsive to RFP No. 5 
exist that have not been produced . Plaintiff’s response states only that “information 
responsive to this request is already within the State’s possession,” not that there are no 
additional responsive communications in Plaintiff’s possession. The Court does agree with 

 
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Plaintiff, however, that Defendants’ request is not proportional to the needs of the case and 
it would be unduly burdensome and intrusive to require Plaintiff to produce all messages 
with Ms. Oplinger, regardless of the content. Messages relating to the events underlying 
this action are relevant to Plaintiff’s claims against Defendants and must be produced. The 
Court thus limits Plaintiff’s obligation under RFP No. 5 to non-privileged communications 
within Plaintiff’s possession pertaining to the events underlying this action. 
e. Jessica Todd 
The State’s RFP No. 6 requested “all of Plaintiff’s communications to and from 
Jessica Todd from July 15, 2020 to December 31, 2020.” (Doc. 79 -1 at 3.) In response, 
Plaintiff objected to the request as irrelevant, not proportional to the needs of the case, and 
not likely to lead to the discovery of admissible evidence. (Doc. 79-1 at 8.) 
In her supplemental response, Plaintiff further stated: 
In addition, the CIU investigative report states that Jessica 
Todd was present for Plaintiff’s interview with Investigator 
Root on July 16, 2020, at Plaintiff’s request. The report 
describes Plaintiff’s statement in detail. See STATE -0402. 
Thus, the information responsive to this request is already 
within the State’s possession. 
(Doc. 79-1 at 15.) The State argues that Plaintiff’s texts with Ms. Todd “ likely contain 
information” about Plaintiff, Defendant McClelland, and the investigation because Ms. 
Todd and Plaintiff worked together and interacted during the investigation. (Doc. 79 at 5.) 
Because Ms. Todd was present for Plaintiff’s interview with CIU regarding the alleged 
assault, the State’s position that there may be relevant messages between Ms. Todd and 
Plaintiff leading to the discovery of admissible evidence is reasonable. The Cou rt does 
agree with Plaintiff, however, that Defendants’ request is not proportional to the needs of 
the case and it would be unduly burdensome and intrusive to require Plaintiff to produce 
all messages with Ms. Todd, regardless of the content. See In re Pork Antitrust Litigation, 
2022 WL 972401, at *10 (“[T]he fact that the texts were sent to or from work -related 
contacts does not mean the content of the texts was work-related, let alone that the content 

 
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was relevant to the claims or defenses in this case.” ) Messages relating to the events 
underlying this action, however, are relevant to Plaintiff’s claims against Defendant and 
must be produced if they exist. The Court thus limits Plaintiff’s obligation under RFP No. 
6 to non -privileged communications in Pla intiff’s possession pertaining to the events 
underlying this action. The Court notes that Plaintiff has separately filed a motion to quash 
a subpoena issued to Jessica Todd requesting production of Ms. Todd’s text messages. (See 
Doc. 90.) That motion is addressed below in Part III. 
2. Motion for Protective Order 
Plaintiff asks the Court to enter a protective order “prohibiting further discovery 
into [her] private communications.” (Doc. 86 at 1.) Under Federal Rule of Civil Procedure 
26(c)(1), a court may issue a protective order “to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense” if good cause is shown. The 
burden to prove good cause is on the person moving for a protective order, “which requires 
a showing that specific prejudice or harm will result if the protective order is not granted.” 
In re Roman Catholic Archbishop of Portland in Or. , 661 F.3d 417, 424 (9th Cir. 2011) 
(cleaned up). “Broad allegations of harm, unsubstantiated by specific examples or 
articulated reasoning, do not satisfy the Rule 26(c) test.” Federal Trade Comm. v. Noland, 
No. CV-20-00047-PHX-DWL, 2021 WL 2187021, at *4 (D. Ariz. May 28, 2021) (quoting 
Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). 
Because the Court has ordered Plaintiff to produce her text messages and finds that 
she has not met the burden to prove good cause, the Court dec lines to enter the protective 
order that Plaintiff seeks. Instead, Plaintiff’s required production should be appropriately 
designated under the preexisting protective order in this case. (See Doc. 24.) 
III. DISCOVERY OF JESSICA TODD’S TEXT MESSAGES 
The State of Arizona issued a subpoena to Ms. Todd for all her text messages and 
emails with Plaintiff dating from April 1, 2019, through November 30, 2020, except for 
those relating to inmate health care. (Doc. 90 at 2.) Plaintiff filed a Motion to Quash the 
subpoena, arguing that it is unreasonably burdensome and an unwarranted invasion of Ms. 

 
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Todd’s and Plaintiff’s privacy. (Id. at 1.) The State responds that Plaintiff’s motion is moot 
because Ms. Todd has “informed the State that she does not have any responsive 
documents.” (Doc. 100 at 1.) The State also contends that Plaintiff does not have standing 
to object to the subpoena because she does not assert that the documents requested from 
Ms. Todd are subject to privilege. (Id. at 2.) While disputing the State’s po sition on her 
standing to file her pending motion, Plaintiff agrees that it is likely moot considering Ms. 
Todd’s response. (Doc. 101 at 1.) Plaintiff instead asks the Court to enter a protective order 
“prohibiting the State from having Ms. Todd search for or produce communications from 
devices other than her current cell phone.” (Id.) 
The State notes that it has not asked Ms. Todd to search for responsive 
communications on devices other than her current cell phone, so Plaintiff’s request for a 
protective order is premature and does not demonstrate good cause for such an order at this 
time. See Fed. R. Civ. P. 26(c)(1); see also In re Roman Catholic Archbishop of Portland 
in Or., 661 F.3d at 424. Moreover, the parties seem to agree that Plaintiff’s motion is moot 
because Ms. Todd avers that she does not have responsive text messages in her possession. 
Accordingly, Plaintiff’s Motion to Quash is denied as moot. 
IV. MENTAL EXAMINATION OF PLAINTIFF 
Defendant McClelland moved for a court o rder requiring Plaintiff Marcella Fox to 
submit to a mental examination by a licensed psychologist pursuant to Federal Rule of 
Civil Procedure 35. (Doc. 75 at 1.) In response, Plaintiff agreed to the mental examination 
and indicated that the parties reache d an agreement “to have their experts share raw data 
from Plaintiff’s mental examinations directly with one another.” (Doc. 83.) The parties 
then filed a joint Notice of Rule 35 Examination, setting Plaintiff’s mental examination for 
November 1, 2022. (Doc. 85.) Thus, Defendant’s Motion for Mental Examination is denied 
as moot. 
V. THIRD-PARTY DEPOSITION SUBPOENAS 
A. Background 
On November 2 and 3, 2022 , Defendant McClelland noticed the depositions of 

 
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non-parties Brittney Fountain and Kysha Slocumb (the “Movants” ), respectively .4 (See 
Doc. 88-1.) In response, Movants’ filed an objection to the depositions, a motion to quash 
the deposition subpoenas, a motion for a protective order, and requested an evidentiary 
hearing, if needed. (Doc. 88). Defendants separately responded (Docs. 98, 99) and Movants 
and Plaintiff submitted replies (Doc. 103, 107). The State filed a motion to strike both 
replies for raising new arguments. (Doc. 112.) 
Defendant McClelland has previously offered to cancel the opposed depositions if 
Plaintiff will stipulate to exclude their testimony and any references to their accusations 
against him at trial. (Doc. 98 at 2.) Plaintiff stated that she will remove the Movants from 
her witness list via email on September 21, 2022, but that position is not yet reflected in 
Plaintiff’s latest supplemental disclosures served on October 21, 2022. (Id. at 4.) According 
to Defendant McClelland, Plaintiff has also “declined to enter into a stipulation excluding 
all evidence and testimony regarding [the Movants’] allegations against McClelland from 
[Plaintiff’s] trial.” (Id.) Plaintiff’s reply vaguely asserts the depositions are not necessary 
because “[t]hey settled their own claims with the State, left the Department, and have no 
further role in this litigation.” (Doc. 103.) 
B. Legal Standard 
The Federal Rules of Civil Procedure govern the scope and method of discovery. 
Rule 26 governs the scope of discovery, Rule 30 governs procedure s for depositions, and 
Rule 45 governs subpoenas. Both litigants and third parties are subject to discovery under 
the Rules. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984). Rule 45(d)(3)(A) directs 
a court to quash or modify a subpoena that “requir es disclosure of privileged or other 
protected matter, if no exception or waiver applies” or that “subjects a person to undue 
burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii) –(iv); see also Brown v. Sperber -Porter, No. 
CV-16-02801-PHX-SRB, 2017 WL 10409840, at *1 (D. Ariz. Nov. 6, 2017). A party 
issuing a subpoena has a duty to avoid causing undue burden or expense on the recipient. 
 
4 Defendant McClelland’s response brief indicates that the parties have been attempting to 
schedule the Movant s’ depositions since August 2022 when their own cases against 
Defendant McClelland and the State of Arizona settled. 

 
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F.D.I.C. v. Garner , 126 F.3d 1138, 1145 -46 (9th Cir. 1997). The Court may quash or 
modify a subpoena to cure the objection . Flatow v. Islamic Republic of Iran , 305 F.3d 
1249, 1254 (D.C. Cir. 2002). 
Relatedly, Rule 26(c) requires that a court limit the extent of discovery —including 
that which is obtained by a subpoena —if it “can be obtained from some other source that 
is more convenient, less burdensome, or less expensive” or “is outside the scope permitted 
by Rule 26(b)(1).” Fed. R. Civ. P. 26(c)(i), (iii). Rule 26(b)(1), in turn, broadly permits 
“discovery regarding any nonprivileged matter that is relevant to any party ’s claim or 
defense and proportional to the needs of the case ,” considering, among other factors, “the 
importance of the discovery in resolving the issues, and whether the burden or expense of 
the proposed discovery outweighs its likely benefit.” Hausauer v. City of Mesa , No. 
CV-15-01796-PHX-ROS, 2017 WL 6515963 at *1 (D. Ariz. Apr. 5, 2017) (internal 
quotations omitted); Fed. R. Civ. P. 26(b). Ordinarily, “[t]he burden is upon the party 
seeking [a protective] order to ‘show good cause’ by demonstrating harm or prejudice that 
will result from the discovery.” Rivera v. NIBCO, Inc. , 364 F.3d 1057, 1063 (9t h Cir. 
2004), cert. denied, 544 U.S. 905 (2005). 
C. Defendant State of Arizona’s Motion to Strike 
The State of Arizona filed a Motion to Strike Plaintiff’s and Movants’ replies, 
arguing that they both raise new legal arguments. (Doc. 112 at 1). In the alterna tive, the 
State seeks the opportunity to file a sur-reply to address the arguments raised in the replies. 
(Id. at 2.) Plaintiff responds that the State’s stated reason to strike her reply, that it “raises 
new arguments regarding the scope of her deposition,” is too vague and unclear. (Doc. 115 
at 1.) Plaintiff also asserts that her reply is entirely responsive to the State’s argument 
regarding the burden of the proposed depositions on Movants. (Id. at 1-2.) 
The Court agrees with Plaintiff and finds that bot h replies are responsive to 
Defendant McClelland’s response to Movants’ motion. Defendant McClelland’s response 
asserts that Movants have failed to establish “undue burden” because the relevant test is 
limited to incurred expenses or lack of personal knowledge. (Doc. 98 at 7-8.) Both replies 

 
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respond to that argument by discussing the burden imposed by the emotional harm Movants 
would experience at their depositions based on Defendant McClelland’s attorney’s conduct 
at Plaintiff’s deposition. Any case law an d legal theories referenced in the replies are 
related to those responsive arguments and are properly before the Court. Thus, the State’s 
Motion to Strike is denied. 
D. Analysis 
At the outset, b oth Defendant McClelland and the State of Arizona argue that 
Movants’ motion, filed three days prior to the scheduled depositions and two months after 
the depositions were noticed, is untimely. Given the importance of the issues at stake and 
the potential for harm to nonparties if the depositions go forward as noticed, the Court will 
consider the merits of the motion notwithstanding Defendants’ timeliness arguments. 
Movants assert that their depositions would provide no value to the case while 
causing severe emotional distress. (Doc. 88 at 4-5.) They further argue that Defendants fail 
to show that the need for the depositions outweighs the substantial burden they would cause 
because Defendant McClelland has already admitted to having sexual encounters with 
them. ( Id. at 6.) Defendant McClelland’s response argu es that “Plaint iff has put, and 
continues to put, [Movants’] allegations that [he] sexually assaulted them at issue in this 
litigation, and apparently intends to introduce evidence of the alleged assaults at trial.” 
(Doc. 98 at 1.) Specifically, Defendant McClelland argu es that Plaintiff “attempt s to 
establish that [her] claims of assault are supported by evidence of a pattern or practice of 
similar behavior.” ( Id. at 4.) Defendant McClelland also notes that Plaintiff intends to 
introduce investigative reports that refere nce Movants’ claims against him, and he is 
entitled to depose Movants on that basis. (Id. at 6.) Finally, Defendant McClelland argues 
that Movants “communicated with Plaintiff regarding her claim, and likely have 
discoverable information about statements ma de by Fox regarding her claims of sexual 
assault.” (Id. at 7.) 
For its part, the State argues that Plaintiff’s theories of liability rely on Movants’ 
allegations and information provided during the combined investigation of all three 

 
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women’s claims. (Doc. 99 at 1.) In particular, the State contends that Plaintiff must rely on 
Movants’ allegations to avoid the State’s immunity defense raised in their pending 
summary judgment motion. To avoid summary judgment, the State argues that Plaintiff 
must establish that Defendant McClelland had a propensity to engage in inappropriate 
contact with women , including Movants . (Id. at 3.) The State further argues that even if 
Movants do not testify at trial, their depositions are still necessary “to provide context for 
the statements they made or received” during the course of the investigation and to 
“establish foundation for relevant documents.” (Id. at 4.) In response, Movants and Plaintiff 
both argue that Defendant McClelland’s lengthy and intrusive deposition of Plainti ff 
reveals his intention to “further humiliate and punish” Movants for reporting the alleged 
assaults. (Doc. 103 at 5; Doc. 107 at 7-8.) 
“Non-party status is a significant factor to be considered in determining whether the 
burden imposed by a subpoena is undue.” Whitlow v. Martin, 263 F.R.D. 507, 512 (C.D. 
Ill. 2009) (citations omitted). “Nonparty witnesses are powerless to control the scope of 
litigation and discovery, and should not be forced to subsidize an unreasonable share of the 
costs of a litigation to which they are not a party.” United States v. Columbia Broad. Sys., 
Inc., 666 F.2d 364, 371 (9th Cir. 1982). “The proper way to afford this special consideration 
is to ‘weigh the burden to the subpoenaed party against the value of the information to the 
serving party. Generally, this requires consideration of relevance, the need of the party for 
the [discovery], the breadth of the [] request, the time period covered by it, the particularity 
with which the [discovery is] described and the burden imposed.’ ” Aquastar Pool Prods. 
Inc. v. Paramount Pool & Spa Systems , No. CV-19-00257-PHX-DWL, 2019 WL 250429 
at *3 (D. Ariz. Jan. 17, 2019) . “As part of this inquiry, the Court m ay evaluate whether 
information requested through a non-party subpoena is readily available from a party.” Mi 
Familia Vota v. Hobbs, No. CV-21-01423-PHX-DWL, 2022 WL 15518274, at *4 (D. Ariz. 
Oct. 27, 2022). 
The subpoenas issued to Movants do not include any limitations on the scope of the 
deposition or identify what topics Defendant McClelland plans to raise. (See Doc. 88-1.) 

 
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The Court finds that an unlimited deposition into any topics of Defendant’s choosing would 
be over broad, disproportional to the ne eds of the case, and unduly burdensome on 
Movants. Columbia Broad. Sys., Inc., 666 F.2d at 371. The Court also finds, however, that 
Defendants have stated a reasonable and compelling need to take the Movants’ depositions 
on limited, relevant issues. Movants’ testimony would provide context on their own 
statements to investigators not currently in any party’s possession. Moreover, Plaintiff has 
admitted that she spoke to Movants’ regarding her allegations against Defendant 
McClelland throughout the investigation. Thus, the Defendants are entitled to ask Movants 
about their version of those events that may undermine Plaintiff’s asserted timeline of 
events. 
In the interest of balancing Defendants’ need for this discovery with Movants’ right 
to privacy and right to be free from undue burden and harassment, the Court shall require 
Movants to sit for limited depositions on the following topics only: 
1. The specific facts underlying their allegations against Defendant 
McClelland; 
2. Statements made t o investigators during the ADC’s investigation of 
Defendant McClelland’s alleged misconduct, including any documents that incorporate 
those statements; and 
3. Conversations and communications they had with Plaintiff pertaining to 
Plaintiff’s claims against Defendants. 
Because Plaintiff has agreed that Movants will not testify at trial, any other topics 
pertaining to Movants’ personal lives, sexual and mental health histories, or that would 
bear on their credibility as a trial witness are not relevant or proportional to the needs of 
the case. Given the sensitive nature of the allegations, Movants have established good cause 
for a limited protective order preventing discovery of such information .5 Rivera, 364 F.3d 
at 1063. Defendants have established that the limited deposition topics above, however, are 
 
5 The Court finds that both parties have fully briefed the issues and an evidentiary hearing 
would not have aided the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 
926 (9th Cir. 1998); see also Fed. R. Civ. P. 78(b). 

 
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relevant and necessary to defend against Plaintiff’s allegations that Defendant McClelland 
had a pattern or practice of inappropriate sexual co nduct with female coworkers. See 
Hausauer, 2017 WL 6515963 at *1. 
VI. CONCLUSION 
Accordingly, 
IT IS ORDERED that the parties’ Joint Motion for Discovery Dispute (Doc. 74) is 
granted in favor of Defendant State of Arizona in part. Within 21 days of this order, 
Plaintiff shall: 
1. Conduct another search for text messages responsive to RFPs 1, 2, and 4-6, 
as modified by this Order, including text messages prior to November 18, 2020; and 
2. Upon completion of that search, produce any responsive, non-privileged 
messages. 
3. If any responsive messages are withheld as privileged, Plaintiff shall produce 
a privilege log setting forth which privilege she seek s to invoke and how that privilege 
precludes disclosure. 
4. If no additional responsive messages are located, Plaintiff shall file a sworn 
statement explaining her additional search and attesting that she could not find any 
responsive messages. 
IT IS FURTHER ORDERED that Plaintiff’s Motion for a Protective Order (Doc. 
86) is denied; 
IT IS FURTHER ORDERED that Plaintiff’s Motion to Quash Subpoena Duces 
Tecum (Doc. 90) and Defendant’s Motion for Mental Examination of Plaintiff (Doc. 75) 
are denied as moot; 
IT IS FURTHER ORDERED that Defendant State of Arizona’s Motion to Strike 
(Doc. 112) is denied; and 
IT IS FINALLY ORDERED that Ms. Fountain’s and Ms. Slocumb’s Motion to 
Quash (Doc. 88) is granted in part, as follows: 
1. Ms. Fountain’s and Ms. Slocumb’s request for an evidentiary hearing is 

 
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denied; 
2. Ms. Fountain’s and Ms. Slocumb’s motion to quash their deposition 
subpoenas is granted in part. The noticed depositions shall be limited to the following 
topics: (a) the specific facts underlying their allegations against Defendant McClelland; (b) 
statements made to investigators during the ADC’s investigation of Defendant 
McClelland’s alleged misconduct, including any documents that incorporate those 
statements; and (c) conversations and communications they had with Plaintiff pertaining 
to Plaintiff’s claims against Defendants; and 
3. Ms. Fountain’s and Ms. Slocumb’s motion for a protective order is granted 
in part, as discussed herein. 
 Dated this 19th day of December, 2022. 
 
 
 

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