UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ANTHONY E. ELLO and )

EVELYN ELLO, )

Plaintiffs, )

)

v. )

)

GARY R. BRINTON and )

SEVEN PEAKS MARKETING )

CHICAGO, LLC, )

Defendants, )

___________________________________ ) CAUSE NO. 2:14-CV-299-TLS-JEM

)

SEVEN PEAKS MARKETING )

CHICAGO, LLC, )

Counter-Claimant, )

)

v. )

)

ANTHONY E. ELLO and )

EVELYN ELLO, )

Counter-Defendants. )

OPINION AND ORDER

This matter is before the Court on the following: 

(1) Plaintiffs’ Motion to Quash Subpoena [DE 87], filed by Plaintiffs on February 8,

2017, to which Defendants responded and Plaintiff replied. 

(2) Gary Brinton’s Renewed Motion to Quash and for Protective Order Re: Horizon

Bank Subpoena [DE 90] and Monica Brinton’s Motion to Quash and for Protective

Order Re: Horizon Bank Subpoena [DE 92], both filed on February 22, 2017, to

which Plaintiffs responded and Monica Brinton replied. 

(3) Plaintiffs’ Motion to Quash Horizon Bank Subpoena and for Protective Order [DE

106], filed by Plaintiffs on March 27, 2017, to which Defendants responded and

Plaintiffs replied. 

(4) Plaintiffs’ Motion to Quash Subpoenas and for Protective Order [DE 111], filed by

Plaintiffs on April 17, 2017, to which Defendants have not yet responded. 
(5) Plaintiffs’ Motion to Withdraw Their Motion to Quash Subpoenas and for Protective

Order [DE 115], filed by Plaintiffs on April 26, 2017, to which Defendants have not

yet responded. 

I. Background

This case concerns a bowling alley lease agreement between Plaintiffs and Defendant Seven

Peaks Marketing Chicago, LLC (“SPMC”). Plaintiffs allege that Defendant SPMC improperly

terminated the lease in June 2014 and seek to hold both Defendant SPMC and Defendant Brinton,

through an alter ego claim, liable for the breach. As demonstrated by the several motions listed

above, discovery between the parties has been contentious. The Court addresses each contested

subpoena, below. 

II. Defendants’ Subpoena to Dorothy L. Kittredge, CPA

On January 10, 2017, Defendants served a subpoena on Dorothy L. Kittredge, Plaintiffs’

accountant. The subpoena requested documents related to Plaintiffs and their company, Ello & Ello,

LLC, among others. Plaintiffs move to quash that subpoena. Defendants contend that Plaintiffs have

waived any objection to the subpoenas because Plaintiffs filed their Motion to Quash more than 14

days after the Kittredge subpoena was served. Plaintiff concedes that the Motion to Quash was filed

after the 14-day period for objections expired, but argues that the Court should nonetheless consider

the merits of its request to quash. 

Rule 45(d)(2)(B), which governs objections made by anyone “commanded to produce

documents or tangible things or to permit inspection,” provides that objections must be served on

the subpoenaing party within 14 days. However, Plaintiffs’ objections do not fall under this Rule,

as theywere not commanded to produce anything by the Kittredge subpoena – their accountant was. 

Rule 45(d)(3), which governs motions to quash, provides that the motion must be “timely” filed.

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Some courts have interpreted Rule 45(d)(3)’s timeliness requirement to require objections within 14

days, although the Rule does not explicitly include that time frame. See, e.g., Edin v. Garner Family

Enters., Inc., No. 1:11-CV-1300, 2012 WL 364088, at *1 (S.D. Ind. Feb. 1, 2012).

Plaintiffs filed their Motion to Quash almost a month after Defendants served the Kittredge

subpoena and 8 days after the subpoena’s response date of January 31, 2017. Plaintiffs provide no

reason for their delay in filing the Motion to Quash. Even setting aside the precedent requiring that

motions to quash be filed within 14 days, Plaintiffs’ Motion to Quash cannot be considered “timely”

under Rule 45(d)(3)(A) by any available standard. Nothing in Rule 45(d)(3) suggests that the Court

should consider whetherto quash a subpoena that has already been complied with. The Rule requires

a court to quash a subpoena that fails to allow a reasonable time to comply, requires compliance

beyond certain geographic limits, requires disclosure of privileged material, or subjects a person to

undue burden. Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). These listed categories require consideration of

prospective, rather than retrospective, concerns.

Even looking past the untimely nature of Plaintiffs’ Motion to Quash, Plaintiffs’ arguments

in the Motion are almost entirely undeveloped. Plaintiffs’ Motion to Quash was a total of three pages

and does not cite a single case or specific Rule suggesting that the Court should quash the Kittredge

subpoena. See Perez v. Illinois, 488 F.3d 773, 776-77 (7th Cir. 2007) (“[P]erfunctory and

underdeveloped arguments are deemed waived.”). Plaintiffs’ inadequate development of their

arguments in the Motion, in addition to their failure to raise those arguments in a timely manner,

prevents a decision on the Motion’s merits.

III. Defendants’ Horizon Bank Subpoena

On January 10, 2017, Defendants also issued a subpoena to Horizon Bank, seeking, among

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other information, documents relating to Plaintiffs and Ello & Ello, LLC. Without objection from

Plaintiffs, Horizon Bank complied with the subpoena and produced several documents. On March

22, 2017, counsel for Horizon Bank informed the parties’ counsel that Horizon Bank had Plaintiffs’

personal tax returns and personal financial data, which are responsive to the subpoena’s request but

were not turned over due to an oversight. Based on the parties’ briefing, it appears that Horizon Bank

has still not yet turned over the tax returns or financial data because of Plaintiffs’ current objection.

Plaintiffs ask that the Court quash the subpoena and issue a protective order preventing Horizon

Bank from producing the personal tax returns and financial data.

A. Quash

For reasons similar to those discussed above, the Court declines to consider the merits of

Plaintiffs’ Motion to Quash the Horizon Bank subpoena. The subpoena was issued on January 10,

2017, with responses due January 31, 2017, yet Plaintiffs waited to file their motion to quash until

March 27, 2017. Accordingly, their request that the Court quash Defendants’ Horizon Bank

Subpoena is untimely. See Fed. R. Civ. P. 45(d)(3)(A). That Horizon Bank notified the parties of

additional documents covered by the subpoena on March 22, 2017, does not change this analysis.

The original subpoena clearly requested all documents relating to Plaintiffs, yet they did not object

to it until months later. 

B. Protective Order

Plaintiffs’ request for a protective order is not similarly governed by Rule 45, so the Court

considers that request on the merits. Plaintiffs say that their personal tax returns and financial data

are irrelevant to this case, while Defendants argue that the Ellos’ tax returns and financial data are

relevant to potentially show that Plaintiffs did not suffer injury from the alleged breach of the lease.

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Specifically, Defendants contend that Plaintiffs’ limited liability company, Ello & Ello, LLC, which

is not a party to this case or to the underlying lease agreement, absorbed most of Plaintiffs’ loss. 

Federal Rule of Civil Procedure 26(c) allows the Court, for good cause, to issue an order to

protect a party from discovery “from annoyance, embarrassment, oppression, or undue burden or

expense,” including “forbidding inquiry into certain matters.” Fed. R. Civ. P. 26(c)(1). Rule 26(c)

“essentially operates to balance the public’s interest in open proceedings against an individual’s

private interest in avoiding annoyance, embarrassment, oppression, or undue burden or expense.”

Felling v. Knight, 211 F.R.D. 552, 554 (S.D. Ind. 2003) (quotations omitted). “The partymoving for

a protective order must establish that good cause exists for the Court to exercise its discretion in

entering a protective order.” Nieves v. OPA, Inc., 948 F. Supp. 2d 887, 891 (N.D. Ill. 2013)

Plaintiffs have not shown good cause for the requested protective order. In their Motion,

Plaintiffs vaguely argue that they have a “legitimate privacy interest” in preventing disclosure of the

at-issue documents. Pl. Mot. at 3 [DE 106]. Without citing any supporting cases or law on this point,

the Motion goes on to argue that the “personal tax returns and financial data were produced to

Horizon Bank for Horizon Bank’s sole use and done so in confidence that they would not be

disclosed to another party” and that the subpoena is an “invasion into Plaintiffs’ personal privacy

interests, wholly unrelated to the litigation.” Pl. Mot. at 4 [DE 106]. As is the case with Plaintiffs’

other Motion, discussed above, these arguments are underdeveloped and do not provide the Court

with enough information to determine whether the documents at issue deserve legal protection. See

Perez, 488 F.3d at 776-77. 

In their reply, Plaintiffs do cite Indiana Code sections 25-2.1-14-1 and 25-2.1-14-2 to saythat

the tax returns and financial documents are privileged. Even assuming Indiana law applies – which

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it might not considering that the parties agreed Utah law governs most of this case – those sections

cover certified public accountants, public accountants, or accounting practitioners. Plaintiffs’ entire

privilege argument, one paragraph in length, does not explain why the at-issue documents qualify

under the accounting privilege, and, in any case, “arguments raised for the first time in a reply brief

are waived.” Griffin v. Bell, 694 F.3d 817, 822 (7th Cir. 2012) (citations omitted).

The tax returns and financial information possessed by Horizon Bank appear relevant to this

litigation. Defendants cite testimonial evidence demonstrating some possibility that the documents

will assist them in determining the amount of Plaintiffs’ losses. See Fed. R. Civ. P. 26(d)(1) (“Parties

may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or

defense.”). Plaintiffs have not demonstrated that the information is otherwise privileged,Id.; Nieves,

948 F. Supp. 2d at 891, and it does not appear that a protective order is necessary to avoid any kind

of “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).

Accordingly, a protective order is inappropriate.

IV. Plaintiffs’ Horizon Bank Subpoena

On June 30, 2016, Plaintiffs also issued a subpoena to Horizon Bank requesting several

categories of documents concerning, among others, Defendant Gary Brinton and his wife, Monica

Brinton – who is not a party to this lawsuit. The Brintons request that the Court quash that subpoena

and request a protective order to prevent Horizon Bank from turning over only a few documents

covered by the subpoena, namely the Brintons’ 2013 personal balance sheet and their 2010 tax return

summary. 

A. Quash

Federal Rule of Civil Procedure 45(d)(3)(A)(iii) requires a court to quash a subpoena seeking

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“disclosure of privileged or other protected matter, if no exception or waiver applies.” The Brintons

argue that both the Utah and United States constitutions protect their at-issue bank records.

According to the Brintons, article I, section 14 of the Utah Constitution privileges or protects

Utah citizens’ bank records. Assuming Utah law properly governs the privilege determination at this

stage, Utah law does not provide absolute privilege or protection for bank records, as the Brintons 1

argue. Instead, the Supreme Court of Utah has written: 

Article I, section 14 of the Utah Constitution does provide citizens in

our state with a measure of privacy. But its protections are not

absolute, and it does not accord bank records special status over other

personal information. Rather, section 14 recognizes the ‘right of the

people to be secure in their persons, houses, papers and effects

against unreasonable searches and seizures.’ Like the Fourth

Amendment of the U.S. Constitution, we have recognized that this

provision prohibits state actorsfrom unreasonablyintruding into areas

where citizens have a legitimate expectation of privacy. A state

intrusion is not unreasonable, however, when the state acts under a

valid warrant or subpoena.

Schroeder v. Utah Atty. General’s Office, 358 P.3d 1075, 1081 (Utah 2015). Because there is no

“freestanding privacyright in an individual’s bank records” under Utah law, the Brintons’ arguments

that their bank records somehow require special protection under Utah law are unfounded. Id.

Indeed, Defendants did not cite, and the Court could not find, a single civil case preventing

disclosure of bank records based on Utah’s constitution, which closelytracksthe Fourth Amendment

of the United States Constitution. 

The Brintons also argue that the Fourth Amendment of the United States Constitution

The Brintons assume that Utah law guides the privilege inquiry. It seems strange, though, to apply out-of-state 1

privilege lawin weighingwhether to quash an in-state subpoena, determining whether bank records in Indiana are subject

to a Utah privilege. In their many briefs, the parties did not discuss which state’s privilege law governs their requests.

This is a moot point, though, because the Brintons’ privilege arguments are unfounded even under Utah law. 

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protects their bank records. To support this position, the Brintons cite the Supreme Court’s decision

in U.S. v. Miller, 425 U.S. 435 (1976). Strangely, the Brintons quote extensively from Justice

William Brennan, Jr.’s dissent in that case. Compare Def. Brinton Mot. at 10 [DE 90] and Monica

Brinton Mot. at 8 [DE 92] with Miller, 425 U.S. at 451 (Breyer, J., dissenting). Furthermore, the

entire quotation used in the Brintons’ briefs (which are nearly identical though they were submitted

by separate counsel) is taken from a California Supreme Court case quoted by Justice Brennan. See

Miller, 425 U.S. at 451 (quoting Burrows v. Superior Court, 529 P.2d 590 (1974)). Justice Brennan

explicitly acknowledged that “the California Supreme Court . . . reached a conclusion . . . contrary

to that reached by the Court today under the Fourth Amendment.” Miller, 425 U.S. at 447 (emphasis

added). 

Contrary to the Brintons’ current position, the Miller majority pointed out that:

The depositor takes the risk, in revealing his affairs to another, that

the information will be conveyed by that person to the Government.

The Court has held repeatedly that the Fourth Amendment does not

prohibit obtaining of information revealed to a third party and

conveyed by him to Government authorities, even if the information

is revealed on the assumption that it will be used only for a limited

purpose and the confidence placed in the third party will not be

betrayed.

Id. at 443. Consequently, Miller also does not support the Brintons’ argument that their banking

information is privileged. 

Accordingly, the Brintons fail to show that their bank records are “privileged or other

protected matter” under Rule 45(d)(3)(A)(iii), so the Court need not quash the subpoena requesting

those records. 

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B. Protective Order

Federal Rule of Civil Procedure 26(c) provides that “a party or any person from whom

discovery is sought may move for a protective order in the court where the action is pending.” As

an initial matter, Monica Brinton is neither a “party” nor a “person from whom discovery is sought”

under Rule 26. The Horizon Bank subpoena seeks documents not from Ms. Brinton, but from

Horizon Bank. Accordingly, the Court considers only Defendant Gary Brinton’s request for a

protective order. The relevant standard for protective orders is detailed above. 

Defendant Brinton argues that the Horizon Bank subpoena is overbroad.However,Defendant

Brinton requests only “that the Court enter a protective order blocking production of HZ-15, 23, and

24,” which are Gary and Monica Brinton’s 2013 Personal Balance Sheet (HZ-15) and Gary and

Monica Brinton’s 2010 Tax Return Summary (HZ-23, 24). Def. Brinton Mot. at 5-6, 11. Concerning

these three documents, Plaintiffs’ request is not overbroad. Plaintiffs have pleaded a claim for alter

ego liability against Defendant Brinton. As Judge DeGuilio wrote in his Order on the Motion to

Dismiss, Utah courts consider alter ego liability by assessing whether, among other things, an LLC

member has siphoned funds from the LLC and whether the LLC serves as a facade for operations

of the member. Order on Mot. to Dismiss at 7-8 [DE 19].

Accordingly, Defendant Brinton’s personal balance sheet and tax return summary remain

relevant to this case to determine if money flowing out of his LLC ended up in his personal bank

account and whether he was using the LLC as a facade for his own operations, rather than

appropriately observing the LLC’s independent form. See Jones & Trevor Mktg., Inc. v. Lowry, 284

P.3d 630, 635 (Utah 2012); Norman v. Murray First Thrift & Loan Co., 596 P.2d 1028, 1030 (Utah

1979). This inquiry relates only to Defendant Brinton’s relationship with Seven Peaks Marketing

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Chicago, LLC, and requires no connection to Plaintiffs or the lease at issue in this case, as Defendant

Brinton argues. 

Accordingly, Defendant Brinton has not shown that the personal balance sheet or tax return

summary are privileged, as discussed above, and those documents appear relevant to Plaintiffs’ alter

ego claim, see Fed. R. Civ. P. 26(b)(1). Defendant Brinton also has not shown that a protective order

is necessary to avoid any kind of “annoyance, embarrassment, oppression, or undue burden or

expense.” Fed. R. Civ. P. 26(c)(1). Accordingly, Defendant Brinton has not provided good cause for

a protective order covering HZ-15, 23, and 24. See Fed. R. Civ. P. 26(c). 

V. Plaintiffs’ Motion to Quash Subpoenas and for Protective Order [DE 111]

On April 17, 2017, Plaintiffs filed their Motion to Quash Subpoenas and for Protective Order

[DE 111], requesting that the Court quash subpoenas issued to Ello & Ello, LLC, Allegius Credit

Union, and Judy Johnson. Plaintiffs also requested a protective order. On April 26, 2017, before

Defendants responded to the Motion, Plaintiffs filed a Motion to Withdraw Their Motion to Quash

Subpoenas and for Protective Order [DE 115], requesting that the Court grant them leave to

withdraw their April 17 Motion to Quash and for Protective Order. 

In the interest of justice, the Court allows Plaintiffs to withdraw the Motion. 

VI. Conclusion

For the foregoing reasons, the Court hereby DENIES Plaintiffs’ Motion to Quash Subpoena

[DE 87], DENIES GaryBrinton’s Renewed Motion to Quash and for Protective Order Re: Horizon

Bank Subpoena [DE 90], DENIES Monica Brinton’s Motion to Quash and for Protective Order Re:

Horizon Bank Subpoena [DE 92], and DENIES Plaintiffs’ Motion to Quash Horizon Bank

Subpoena and for Protective Order [DE 106]. 

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The Court hereby GRANTS Plaintiffs’ Motion to Withdraw Their Motion to Quash

Subpoenas and for Protective Order [DE 115] and DIRECTS the Clerk of Court to show that

Plaintiffs’ Motion to Quash Subpoenas and for Protective Order [DE 111] is WITHDRAWN. 

The Court ORDERS Dorothy Kittredge to comply with Defendants’ January 10, 2017,

subpoena and produce all documents responsive to the subpoena by no later than May 12, 2017, if

she has not already done so. 

Similarly, the Court ORDERS Horizon Bank to produce all documents responsive to

Plaintiffs’ June 30, 2016, subpoena by no later than May 12, 2017, if it has not already done so. The

Court also ORDERS Horizon Bank to produce all documents responsive to Defendants’ January

10, 2017, subpoena by no later than May 12, 2017, if it has not already done so. 

The Court ORDERS Defendants to send Dorothy Kittredge and Horizon Bank each a copy

of this Order by first class certified mail, return receipt requested, by May 1, 2017. The Court also

ORDERS Plaintiffs to send Horizon Bank a copy of this Order by first class certified mail, return

receipt requested, by May 1, 2017. 

Other than the limited subpoena responses ordered above, the Court REAFFIRMS its

previous Order that all other discovery ends today.

SO ORDERED this 28th day of April, 2017.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN 

UNITED STATES DISTRICT COURT

cc: All counsel of record

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