COA awards city of Carmel attorney fees in dispute over mayor’s emails

A lengthy legal dispute over obtaining emails from Carmel’s mayor stemming from a local summer camp incident has led to the city winning attorney fees twice.

In November 2017, Sophia Danley Edwards by Next Friend Katherine Danley Glaser and Katherine Danley Glaser, filed a complaint for damages against the city of Carmel alleging that while attending a summer day care program operated by the Carmel/Clay Parks and Recreation Department, Edwards was “subjected to various forms of bullying and pseudo sexual assault by at least one other child who was also under the care, control, and supervision of CARMEL.”

The plaintiffs sought $700,000 in actual and punitive damages for each of the various causes of action in their complaint.

After the city was denied its motion for summary judgment in February 2020, the plaintiffs sent a copy of a subpoena for Carmel Mayor James Brainard that requested copies of personal emails with numerous keywords pertaining to the allegations.

The plaintiffs also indicated they sent a similar subpoena to AOL, Brainard’s email provider. However, the city objected to the subpoenas, maintaining that they were “overly broad, unduly burdensome, harassing, and improperly seeking private communications.”

Carmel subsequently filed two motions to quash and two motions to compel, requesting the plaintiffs to respond to its first and second sets of interrogatories, a motion for contempt, and a motion for a protective order.

The trial granted Carmel’s motion to compel and ordered the plaintiffs to pay the city $750 in attorney fees. However, the trial court denied Carmel’s motion for contempt, its motion for protective order, and the motion to quash.

After an amended subpoena was proposed by the plaintiffs, which narrowed the specific search terms and the date range, Carmel filed another motion to quash the Brainard and AOL subpoenas.

In February 2021, the plaintiffs filed a motion for rule to show cause asserting Carmel and Brainard failed to comply with the trial court’s 2020 order and asked for attorney fees associated with the motion for rule to show cause. The same day, the trial court set a hearing on the plaintiffs’ motion to show cause for April 7, 2021, with Brainard ordered to attend.

Responding, the plaintiffs asserted Carmel filed its motion to quash “to avoid having to produce emails or documents about these horrific incidents that severely damaged an 8 year old [sic] child.” They contended Brainard had almost a year to produce the emails and “has it within his control to sift through his emails and determine which emails pertain to this incident and could have done so many months ago.”

Two weeks later, Carmel’s assistant corporation counsel, the city’s IT director, and outside counsel for the city, Phil Zimmerly, observed Brainard search his emails using the terms as set forth in the plaintiffs’ most recent subpoena, and Zimmerly provided a signed affidavit to the plaintiffs’ counsel, explaining each methodology and verifying that there were no responsive documents in the mayor’s AOL account.

Brainard was then sent additional questions, which he answered, and was subsequently excused from attending the hearing in April.

Plaintiffs filed a motion to withdraw their request for attorney fees and a motion to convert the show cause hearing to an attorney conference in March 2021, indicating that they had resolved “95%” of the mayoral issue but would be issuing a subpoena to AOL.

Carmel argued that the Electronic Communications Privacy Act prohibits a third party such as AOL from disclosing emails in a civil action. Regardless, the plaintiffs filed a motion to approve third-party subpoena and for protective order as to documents

In May 2021, Carmel filed its reply to the plaintiffs’ response to the city’s April 14 motion to quash third-party subpoena, protective order, and request for attorney fees. Specifically, Carmel asserted it had incurred $15,800 in attorney fees.

The trial court granted Carmel’s request for attorney fees in June 2021 and outlined the procedural history of the subpoena issue, awarded the city $8,700 in attorney fees. It concluded “The Court’s Order of April 14, 2021, quashed Plaintiffs’ proposed subpoena to AOL and entered a protective order ‘barring any further discovery into the Mayor of Carmel’s AOL account.’”

In an interlocutory appeal, the COA found no abuse of the trial court’s discretion in awarding attorney fees.

“Plaintiffs were on notice that their subpoena would be fruitless because the ECPA did not allow AOL to divulge information regarding Mayor Brainard’s emails in a civil action,” Judge Melissa May wrote. “As there was no way Plaintiffs would be able to successfully subpoena AOL to discover the information sought, we conclude there is no genuine issue of fact regarding whether the actions were substantially justified and the trial court did not abuse its discretion when it awarded the City of Carmel reasonable expenses associated with the litigation of the AOL subpoena discovery issue.”

It also awarded attorney fees for appellate costs on cross appeal, and in a footnote blasted the plaintiffs for violating “several” appellate rules, including Indiana Appellate Rule 48(A)(8)(a); Rule 50(A)(2)(a).

The trial court was ordered to calculate the attorney appellate fees on remand in the case of Sophia Danley Edwards (Minor Child), by Next Friend Katherine Danley Glaser and Katherine Danley Glaser v. City of Carmel, Indiana, 21A-CT-1823.

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