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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

KIM BERRYMAN-DAGES,

Plaintiff,

v. CASE NO. 1:10-cv-00177-MP-GRJ

CITY OF GAINESVILLE FLORIDA,

Defendant.

_____________________________/

O R D E R

This matter is before the Court on Doc. 39, Motion to Quash Subpoenas by Nancy

Thayer, and Doc. 52, Motion to Amend the Scheduling Order by City of Gainesville, Florida. 

Ms. Thayer is not a party to this case; however, both parties have responded to her motion to

quash. Docs. 46 and 47. For the reasons given below the motion to quash is denied, but the

Court orders modification of the subpoenas under Fed. R. Civ. P. 45(c)(3)(A).

This case involves a claim that plaintiff was adversely treated and eventually demoted

within the Gainesville Fire Rescue service based on gender and sexual orientation discrimination

and in retaliation for her reporting unlawful employment practices. During discovery, defendant

subpoenaed the computer of a non-party, Nancy Thayer, because Ms. Thayer had claimed to

have written an anonymous letter sent to Plaintiff in which Plaintiff’s conduct and character were

criticized and reference was made to Plaintiff’s gender and sexual orientation. Later, Ms. Thayer

denied writing the letter and instead ascribed it to her ex-husband, who was the Gainesville Fire

Rescue Chief at the time of her demotion.

The subpoena asked for the following:

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Any and all computers, laptops, hard drives, or any other similar devices used by

NANCY THAYER (f/k/a NANCY NORTHCUTT) during the time period of

January 1,2008, to January 1,2009, while residing with and married to WILLIAM

K. NORTHCUTT at 5531 NW 34th Street. Gainesville, Florida. The drives of

such devices will be imaged for the purposes of inspection and/or copying of the

electronic document attached hereto as Exhibit A, which Ms. Thayer admitted to

sending to KIM BERRYMAN-DAGES in September of 2008, whether it exists

on such devices or not, any metadata associated therewith, and any electronic

information that was created, accessed, modified or deleted within one hour of the

creation, access, modification. or deletion dates for the electronic document

attached hereto as Exhibit A.

(Doc. 39, p. 5). Exhibit A is the anonymous letter described above. 

Ms. Thayer is willing to allow the computer to be examined, but asks that an impartial

computer forensics expert, not employed by the City of Gainesville, search the electronic

information on her personal computer; that any person investigating the personal computer be

punished for divulging any information outside the purview of this case; that Ms. Thayer be

allowed to sit down with said computer and impartial third party computer forensics expert

during the inspection; that the expert’s sole purpose be to extract the single piece of information

in question; that the expert be directed by the Court to keep confidential any and all information

outside the purview of this case; and that no information on said computer be altered, deleted or

copied.

Under Fed. R. Civ. P. 45(c)(3)(A)(iii) and (iv), a Court must quash or modify a subpoena

which "requires disclosure of privileged or other protected matter" or "subjects a person to undue

burden." As an initial matter, the Court agrees with defendant that the letter and associated data

and metadata on the computer are materials that are reasonably calculated to lead to admissible

evidence. Thus, defendant should be entitled to discover these materials. Additionally, the

Court agrees that a forensic examiner must be permitted to image the hard drive to allow for a

search for the letter in the hard drive’s unallocated space in the event that the letter has been

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deleted. Also, the Court agrees that the City need not incur the expense of retaining an impartial

third party forensic examiner. The mere fact that the City employs police officers and the

attorneys in this case is insufficient to justify this expense.

However, the Court agrees with Ms. Thayer that allowing this image of the hard drive to

be turned over to the defendant or any other party, or even allowing the review of the hard drive

by defendant, risks disclosure of protected matter without good reason. Additionally, allowing

the City to possess the computer for an extended period of days would be unduly burdensome. 

Thus, the subpoena must be modified under Fed. R. Civ. P. 45(c)(3)(A)(iii) and (iv). On review

of this order, if Ms. Thayer continues to have privacy or confidentiality concerns, she is directed

to address those concerns to the Court.

In addition, the City of Gainesville moves the Court to amend the scheduling order. Both

parties have expressed a need to conduct additional discovery past the current June 30, 2011

deadline. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The motion to quash, Doc. 39, is granted in part and denied in part. Ms. Thayer

must comply with the subpoena, but with the following modifications:

• A computer forensics expert, employed by the City of Gainesville Police

Department, shall be permitted to image the hard drive of the computer in

order to facilitate a search for the letter in question, and any related

metadata, including in the unallocated free space of the hard drive;

• Only this police forensics expert will be allowed search or review the

electronic information on her personal computer, and the police computer

forensics expert’s sole purpose shall be to extract information relating to

the letter referred to in the subpoena;

• Ms. Thayer shall be allowed to sit down with said computer and

Gainesville Police Department computer forensics expert during the

inspection, and may retain at her own expense, and have present during

the examination, her own computer forensics expert; 

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• The expert is directed to keep confidential any and all information other

than the information listed above; and 

• No information on said computer shall be altered, deleted or copied,

except the information listed above. The forensic examiner shall destroy

the image of the hard drive after completing the examination.

2. The motion to amend the scheduling order, Doc. 52, is GRANTED. The deadline

for completing discovery is extended until August 19, 2011 and the deadline for

filing motions for summary judgment is extended until October 3, 2011.

DONE AND ORDERED this 20th day of July, 2011

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

Case No: 1:10-cv-00177-MP-GRJ

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