Rumors, Lies, & False Accusations Travel With Joy, Confronting AT and Gailon with Truth Options

[princessdi]

Gurl, let me hug you before you go back to lurk mode!!! Could not have said it better!

At last! A question that I, a lurker in danger of being duped, can answer!!

First of all, you are assuming that sister's word is "accepted". Your first mistake. I am smarter than that. I don't "accept" the word of ANY anonymous person, be their name "sister" or "appletree". I listen, evaluate, weigh, take into consideration, see how it fits with other evidence, but don't just accept. As time goes on, what has been said will either gain more credibility or less credibility with me, depending on various factors. Your "yarns", when first spun, weigh just as much as hers do. And standing alone, with no other documentation, have equal validity. The patterns that emerge as the knitting needles click on tell me more, and here are some of the patterns I have observed from both sides. Just a glimpse, for you, of what I as a lurker am perceiving as you and the others work hard at enlightening me and keeping me from being duped.

The things that keep me from "accepting" your credibility:

1. Your name. I already addressed that above--but wanted it in the list.

2. The polarization scale. When a conflict reaches this level, the sides tend to be so far apart that there is little hope of bringing them together. The further out someone is towards either end of the scale, the less objective they are and thus the less their posts weigh on my scale. The stories that paint Linda as the total victim, making no mistakes, the damsel in distress, needing to be rescued from the awful Danny are as un-credible to me as your charges that all the negative accusations against Danny are merely sour grapes from disgruntled employees. When someone paints everything as either black or white, their opinions are less credible to me. Do I think they are lying? Not necessarily. Just that they may not be so personally invested that they are not capable of seeing past their own position.

3. Threats. Your veiled and not so veiled threats of being added to the lawsuit kinda feel like someone named Vinnie in a B-grade movie might use. (Apologies to any Vinnie's or producers of B-grade movies who read this) Post #409 of the unauthorized history threat you said "I'm glad you specified that you were "just asking" and not making judgements" to J4J. Now it could be taken more than one way, but after all the threats you have floated, it could easily be construed as another one. No matter what I believe about who is right and wrong, the threats rub me the wrong way, and do nothing to add to your credibility on my scale.
...And no, I won't go back through and "prove" that you have threatened anyone, just in case you are thinking of doing it. That response is REALLY getting old. Any parent of an 18 month old can tell you that the old "if I don't see it, it didn't happen" ploy (while the babies face is hidden under the bed, but it's little tush is sticking out in plain sight--the baby is the only one being fooled) doesn't work for adults. Yes, I know, in a court of law, proof must be provided, but this is not a court, or YOU would not be able to hide behind that old, gnarled treetrunk yourself, making statement after proof-less statement while demanding that what everything anyone else claims must be documented. And yes, I know, you are not the only one making the demands--it is like a sandbox in here with toys and sand being hurled all directions--and it is just as pointless from both sides. But you asked the question and I am answering you, not everyone else.

4. You hold one standard for yourself and ask another of us. You have demanded "proof", but as near as I can tell, there is nothing that can be presented by the other side that will meet that criterion for you. At the same time, you say that the truth will come out, that you have proof--but only at some future time, in court. Fair enough, that is your right to allege without providing proof, but in the meantime you can't understand why what you say is not accepted? OK. You won't believe anything without proof, but we are supposed to? C'mon, AT, can you see how that makes you look? Or what it tells about what you think of us? Your words..."If I say that I have seen documented proof of something then I have. If I say I have seen evidence of something, or witnessed it myself, then I have." Wow--I can take that to the bank! But just in case...can I at least use the guage that you use for proof?

5. Attitude and demeanor. I don't know you. So in order to weigh your credibility, all I have to go on are the things you post here. And phrases like "Pickle and Joy are the only ones foolish enough to just keep flapping their mouths at a time when they are being sued for that very thing" don't help. You mention the "arrogance and "know it all" attitudes of the other side, but to me you are painting with the same brush. The things you say and the way you say them make it hard for me to accept your credibility. And please, don't say "but they are doing it too." I may be just a lurker but I am smart enough to apply the same standards to both sides.

6. Motive. You say you are defending 3ABN, but 3ABN didn't do all the things that the PJ team, as you call them, are alleging. People did them. One person did many of them. And if 3ABN was really the issue, is there really no better way of restoring a network than dragging it through the mud? I do not see Sister criticizing a network, but a person. Your posts are not about saving the reputation of a network, but about a person(s). Your intensity ends up looking like you could be very personally invested in this whole mess, which gives you less ability to be objective and credible in my book.

Well, I will stop there. Maybe that is enough to answer your question. Back to lurking mode...

shepherdswife

[GRAT]

Shepherds Wife:

and That is a lot of what I have been thinking and you said it so well!

[princessdi]

If you mean proof of what Linda was accused of doing, I have said it many times before. 3abn never wanted to have to present any kind of evidence. That would be adding salt to the wound. But, if push comes to shove and they have to show it, it will be only in court, when ,it is an absolute necessity.

Notice appletree has to be oh so careful. He now calls it "what Linda was accused of doing." (like talking to this other man on the phone and causing a rage of unwarranted jealousy?)

What's wrong with this sad picture of not wanting to hurt her any further by adding salt to the wound? And portraying her to the world on TV as unfaithful, but not wanting to somehow hurt her...at least till push comes to shove...then we'll hurt her, but only as a last resort?

What's wrong is that first resort is worse than last resort.

What can be learned here from all this ballyhoo?

Everytime I allow that just the opposite is true, from what these defenders keep saying, I find towards the end it leads me closer to Christ.

I just have a question concerning the statements above. Ok so, Appletree is saying that 3ABN never wanted to present the evidence of Linda's accussed adultery. However, I think I understand that there have been several court cases concerning the divorce, including one to determine the legitamacy of the Guam divorce. Would that not be the time to bring out such information? Or was did Danny win that judgement because Linda was a day late and a dollar short in contesting the Guam divorce, because she initial just signed the papers?(I don't know why she didn't get Gloria Allred, she would have made sure Linda got enough to pay her he! LOL!!!)

[justice4jesus]

3. Threats. Your veiled and not so veiled threats of being added to the lawsuit kinda feel like someone named Vinnie in a B-grade movie might use. (Apologies to any Vinnie's or producers of B-grade movies who read this) Post #409 of the unauthorized history threat you said "I'm glad you specified that you were "just asking" and not making judgements" to J4J. Now it could be taken more than one way, but after all the threats you have floated, it could easily be construed as another one.

I didn't even read it that way, but I can see where you would have taken it as such. Regardless, I'd hate to think they're actually that stupid where I am concerned.

[appletree]

Dear Appletree, I seem to recall that a primary reason for the lawsuit against Pickle and Joy, was the assertion that 3ABN was LOSING donations and support because people were believing what Pickle and Joy said. Are you contradicting the very premise of the lawsuit here? You talk about the increase of donations, and state that the people don't believe Pickle and Joy.

Try reading my posts again. I said donations, viewers, phone calls have been on the increase.....That means they are rising from a lower point. Pickle and Joy have hurt the ministry but thankfully people are starting to see the light.

If you are telling the truth, perhaps it is time to either remove those assertions from the suit as false, or drop the suit. If 3ABN is thriving, as opposed to suffering loss, because of Pickle and Joy, then where is the case? Make up your mind, would you?

The suit is about losses that 3abn has experienced through this time period. Things are looking better now, but that doesn't mean 3abn is back where it should be. I don't have to go into all that. Financial records will be proof enough.

If this "internet attack" is just a bump in the road, and God is truly in control, then why have you made such a big deal of it? A person could take your attitude as one of hate and anger that comes from fear. Does the hate, anger and fear that you seem to exude come when God is in control?

So now you have the ability to judge my heart and have found that I am full of hate, anger and fear? You couldn't be any further from the truth. Non of my posts drip with venom, hate or anything close to that. Fear? Absolutely not. You keep repeating this "fear" scenerio when in truth, if those at 3abn were so "fearful" of unholy deeds coming to light, they would have never filed a lawsuit. I mentioned before, that would have been suicide if they had something to hide. Someone commented that they think I make threats when I mention the suit but in reality, you are the one who is stuck in the mire of these "threatening witnessess" you are always talking about. You have said this numerous times in a threatening way but it's not working. Aside from the obvious above about the lawsuit, do you think that we are not aware that you can drag witnessess out of the woodwork to say whatever you want them to say, but the court will examine every witnessess's background in connection to 3abn and to Danny. That, in itself, will tell the tale of the credibility of all of these "scary" witnessess. Also, what documentation will they have to back up their claims. He said this and I said that, won't get it in a Federal Court.

I find it very interesting that it is always "one donor who paid..." bla bla bla for something...always. So, that "donor"s money is ok, but if it were from more than "one donor" it would be wrong your eyes? That one donor didn't have better things to give to? You seem to spend your entire day justifying everything in order to be perfect - have YOU ever noticed that? YOU have not done anything wrong, but EVERYONE else has? Now, really, how can that be? or are you God or some special prophet that makes no mistakes or does wrong? You know, non-human? Sometimes I do wonder.

I think you may have confused me with someone else on this donor subject. I really don't know what you are talking about concerning "one donor" and all that.

And one other thing; do you REALLY want to see Alyssa in the witness stand? I know you don't. You know you don't, along with many others you hope will never be there. You will and are doing all you can to keep from being there....like d r a a a a g i n g it all out for e v e r a n d e v e r...hoping it will never really get to that point. Now, you KNOW I am right. [/color]

Of course I don't want to see Alyssa on the witness stand. It would be an extreme disappointment to those who know and loved her to see her make an untrue accusation just to help her mother seek revenge. Alyssa knows that molestation never happened and she also knows that Danny would never do such a thing. He helped raise her from the time she was 5 or 6 years old and loved her as a daughter and she loved him in return. But the saying that "blood is thicker than water" certainly holds true for this situation. IMO she was put between a rock and a hard place and placed her loyalty with her mother. I am not really even blaming her for it. I'm sure she felt it was her obligation to do so.

As far as draaaaging it out, no one at 3abn is in control of the time tables of the courts. That is a ridiculous statement. They can no more control the slow wheels of justice than Pickle and Joy can. If 3abn had their way, it would be over and done with as quick as possible so, if you have complaints in that area, email the judge.

On a more personal note, correct me if I'm wrong but are you always calling me Dan? I can't stop you from doing so but saying it doesn't make it so. I am not Danny and as I have stated over and over Danny does not have time to sit around and read the gossip about him and all those associated with 3abn. That is for the attorney's to deal with.

[appletree]

So it was just fine that Danny denied that any section 4958 excess benefit transactions had taken place? Under penalty of perjury?

The horse can't get any deader, I promise.

[appletree]

At last! A question that I, a lurker in danger of being duped, can answer!!



Well, I will stop there. Maybe that is enough to answer your question. Back to lurking mode...

shepherdswife

SW, some of your points are well taken. There are several things I agree with. What I don't agree with is your assumption that because I defend allegations that I know to be false, that I am saying that Danny, 3abn, the board etc are perfect. If I felt that way, you would be correct to say there would be a loss of credibility on my part. To say that a ministry the size of 3abn, where hundreds of monumental decisions have been made over the course of 23 years, has never made a wrong decision, would be ludicrous. Danny has not made perfect decisions in every situation. He is a fallible human being like everyone else that lives on this planet. What I am trying to bring to light is that he has not made purposful decisions that he knew were wrong, illegal, immoral..etc...He certainly may have made a mistake, or a wrong decision and hindsight is always 20/20 but there isn't a person alive who wouldn't have made mistakes in that position or any other. My fight is against those that paint him as this evil man sitting in a palace of wealth, controlling everything and everybody and committing every intentional sin imaginable. That is so unjust, unfair, and wrong that I can't even put it into words. I don't agree with every decision that Danny has made through the years but through my many experiences and associations with him I am 100% confident that nothing has been done with evil intent or to purposely hurt someone. He has tried to do what he thought was best for the ministry at that time.

As far as my commenting on Pickle and Joy "flapping their mouths" that is just my way. I am and always have been a "straight to the point" kind of person and I call it like I see it whether it is politically correct or not. I could have said they are "continueing their smear campaign and it would have sounded a little more tactful but, why should I? Tact is a word they are not familiar with so let's play ball on the same playing field. JMO

[Observer]

SP you bring up some very valid and true points. Because Linda's name is on the documents I'm surprised the critics continue to bring up the house issue. However just because Linda's name is there does not make the documents any less damning to Danny, but to say Linda is was not involved is rather disingenuous IMO.

There has certainly been a lot of talk in regard to Linda, what she knew and her responsibility in regard to the purchase and sale of the house. This has come to the place where I am going to comment in regard to Linda's participation and understanding:

At the time that this event was proposed to Linda it came to her in a manner in which she was told that it had been blessed by the lawyers. IOW it was ppresented to her as being 100 per-cent legal. Linda believes that following the report from the lawyers, the transfer of the property was properly approved by the 3-ABN Board.

I am not aware of the details in regard to what the lawyers said. To be specific, I am not aware in regard to purchase of a life estate, or some of the other issues invovled in this transaction. All I am saying is: Linda understood and believed, that proper legal authority had approved the details and that the transfer was approved by the 3-ABN Board.

At this point in time, several years later, I am certain that if the same situation were to arise Linda would have more questions today than she did at that time several years ago. Linda has grown in wisdom and knowledge these past few years. She has gone through some experiences that have tought her some lessons. However, she has not yet reached perfection. She has not yet reached the full maturation of the person that God has in mind for her to be. I personally expect that over the years she will continue to grow. I expect that three years from now she will be different from what she is today.

Today Linda understands that she made some mistakes in some areas. She would do some things differently today from what she once did. In all probability three years from now she would be able to say the same about today.

Perhaps one might fault her for her paraticipation in the transactions involving the property? If so, she has learned a hard lesson. She is learning that ethical principles are not always easy to understand and to apply. She is growing.

I only hope tha all of us posting here in BSDA are also growing in our Christian and ethical maturation.

[PeacefulBe]

Ian, before you get too involved in your lovefest with Appletree and his "truth...

Sister

This caught my eye as I was reading through the discussions here today, perhaps because I spent time catching up on my reading over on Adventtalk first.

While I agree that some go overboard in their affirmations of fellow posters it seems almost disengenuous to make a remark that drips with sarcasm towards Ian and Appletree when the "lovefest" at Adventtalk has set the bar so high.

I must tip my hat to all who manage to post in respectful ways, in spite of the polarizing subject manner.

[Shiny Penny]

There has certainly been a lot of talk in regard to Linda, what she knew and her responsibility in regard to the purchase and sale of the house. This has come to the place where I am going to comment in regard to Linda's participation and understanding:

At the time that this event was proposed to Linda it came to her in a manner in which she was told that it had been blessed by the lawyers. IOW it was ppresented to her as being 100 per-cent legal. Linda believes that following the report from the lawyers, the transfer of the property was properly approved by the 3-ABN Board.

All I am saying is: Linda understood and believed, that proper legal authority had approved the details aInd that the transfer was approved by the 3-ABN Board.

At this point in time, several years later, I am certain that if the same situation were to arise Linda would have more questions today than she did at that time several years ago. Linda has grown in wisdom and knowledge these past few years. She has gone through some experiences that have tought her some lessons. However, she has not yet reached perfection. She has not yet reached the full maturation of the person that God has in mind for her to be. I personally expect that over the years she will continue to grow. I expect that three years from now she will be different from what she is today.

Today Linda understands that she made some mistakes in some areas. She would do some things differently today from what she once did. In all probability three years from now she would be able to say the same about today.

Perhaps one might fault her for her paraticipation in the transactions involving the property? If so, she has learned a hard lesson. She is learning that ethical principles are not always easy to understand and to apply. She is growing.

I only hope tha all of us posting here in BSDA are also growing in our Christian and ethical maturation.

Observer - what you have reported here seems plausible. Likely Danny would have felt the same way about the transaction. After all they were married to each other and I would expect that such an event would have been the topic of at least one, if not several of their personal conversations. It would give them the opportunity to build/buy their own house - and $100,000+ must have been an amount that was considerable to them - that much would not fly under the radar.

Danny must have learned some hard lessons as well and all the rest you have said about Linda growing etc, probably applies to Danny as well. But overall IMO there has been nothing shown on this site to indicate that the agreements were not drawn up properly and that it was not a perfectly legal transaction.

Pickle has tried to describe the transaction in such a way so as to mislead the readers or to throw around innuendos that have little basis in fact. He is doing no good service to Linda in such activities.

[Shiny Penny]

So it was just fine that Danny denied that any section 4958 excess benefit transactions had taken place? Under penalty of perjury?

If no excess benefit took place, what would you want him to do? (No need to answer).

[Ian]

And, by the way, just to be fair, here is Bob Pickle's response to Danny Shelton's Motion to Quash the subpeona for MidCountry Bank records:
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA.....


ARGUMENT

I. THE THIRD-PARTY SUBPOENA SHOULD NOT BE QUASHED OR SUBJECT TO A PROTECTIVE ORDER

A. Plaintiff Shelton Lacks Standing to Object to the Third-Party Subpoena

Pursuant to Federal Rule of Civil Procedure 26('B), the scope of discovery permitted in civil litigation is quite broad:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense .... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26('B)(1).

In the absence of privileged information, Federal Rule of Civil Procedure 26('B) does not limit the discovery of otherwise confidential or private information.
Further, the U.S. Supreme Court has determined that bank records are "business records of the bank," not the private papers of a party, that the "issuance of a subpoena to a third party does not violate" a party's rights, and that a party possesses "no Fourth Amendment interest in the bank records that could be vindicated by a challenge to the subpoenas":
There is no legitimate "expectation of privacy" in the contents of the original checks and deposit slips, since the checks are not confidential communications, but negotiable instruments to be used in commercial transactions, and all the documents obtained contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.

United States v. Miller, 425 U.S. 435, 445 (1976).
Various courts have repeatedly cited and applied the above case:
Accordingly, the bank customer has no inherent right to assert ownership, possession, or inferentially, control over the release of a bank's records of his transactions. . . . Nothing in the Act [Financial Privacy Act], however, shields the records from discovery in a civil suit. . . . Absent a claim of privilege, a party has no standing to challenge a subpoena to a nonparty.

Clayton Brokerage Co. v. Clement, 87 F.R.D. 569, 571 (D. Md. 1980).
A more recent order that utilized United States v. Miller and that denied a motion to quash a third-party subpoena duces tecum seeking bank records stated, "Accordingly, the bank records at issue here are subject to discovery and do not warrant protection under Federal Rule of Civil Procedure 26©(7)." See Rotoworks International v. Grassworks USA, No. 07-05009, order issued on Apr. 25, 2007 (W.D. Ar.).

Plaintiff Shelton acknowledges that MidCountry intends to comply with the third-party subpoena. See Shelton Memo., pp. 3–4. Since MidCountry is the owner of the business records in question, it is MidCountry that should challenge the subpoena, not Plaintiff Shelton. Yet MidCountry, after careful review by their attorney, has chosen to comply with the subpoena.

Since the records sought do not belong to Plaintiff Shelton, and since he has no claim of privilege in the bank's records, he therefore lacks standing to challenge the third-party subpoena.

Interesting. So Danny Shelton doesn't have the right to ask the court to do anything about the subpoena? How'd his attorney miss that?

Pickle, Pickle, Pickle.... must you be so harsh?





UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Three Angels Broadcasting Network, Inc., an Illinois nonprofit corporation, and Danny Lee Shelton, individually, Case No. 0:08mc7

Plaintiffs,

v.

Gailon Arthur Joy and Robert Pickle, Defendants.

PLAINTIFF DANNY SHELTON'S MEMORANDUM IN OPPOSITION TO DEFENDANT PICKLE'S MOTION TO DISMISS

INTRODUCTION

Instead of simply responding to Plaintiff Shelton's Motions to Quash and to Stay and Remit, Defendant Pickle
("Pickle") seeks a rather unconventional use of Rule 12 to dismiss Plaintiff's motions altogether. The primary rationale for Pickle's Motion to Dismiss, an assertion that Plaintiff Shelton lacks standing to challenge the subpoena duces tecum (the "Subpoena") issued to nonparty MidCountry Bank ("MidCountry"), is simply incorrect. The Subpoena seeks the production of Plaintiff Shelton's personal bank records and those of two other nonparty entities under Shelton's control, facts which, as will be discussed, are sufficient to grant Plaintiff standing to challenge the subpoena. More importantly, Pickle has failed to

1 In light of Pickle's failure to cite to any Federal Rule or other authority providing him procedural grounds for the instant motion, it is assumed that Pickle meant to assert a "lack of standing" defense under Federal Rule of Civil Procedure 12.

provide any applicable legal authority warranting dismissal of Plaintiff's motions. Accordingly, Defendant Pickle's unorthodox Motion to Dismiss must be denied.

ARGUMENT

Though unstructured and somewhat convoluted, Pickle's memorandum appears to make two arguments in support of dismissing Plaintiff's Motions to Quash and to Stay and Remit. First, Pickle appears to argue that because Plaintiff Shelton has not asserted a claim of privilege in relation to the information sought by the subpoena, there is no legal limitation upon Pickle's discovery of that information. Second, Pickle argues that because the records at issue belong to the bank, and because Shelton has not claimed any privilege in relation to the documents, Shelton lacks standing to challenge the instant subpoena.

In fact, however, Plaintiff Shelton's personal right and interest in the financial records at issue is sufficient to convey him standing to challenge the instant subpoena, even though a claim of legal privilege has not been made. Second, contrary to Pickle's implications otherwise, legal privilege is not the only limitation upon discovery, and it is precisely because the discovery at issue runs afoul of two other important limitations—relevance and undue burden—that Plaintiff Shelton's Motion to Quash should not be dismissed and, instead, Pickle's Motion to Dismiss should be denied.

I. PLAINTIFF SHELTON HAS LEGAL STANDING TO CHALLENGE THE SUBPOENA AT ISSUE.

A. Shelton Need Only Assert a Personal Right to the Materials Subpoenaed to Have Standing to Challenge the Subpoena.

Though Pickle is correct that, in general, a party does not have standing to quash a subpoena served on a third party, he selfservingly cites only half of the wellestablished

exception to the general rule. When a party claims either a privilege or a personal right with respect to the subject matter requested, that party has standing to challenge the subpoena. See,

e.g. Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 555 (N.D.Ga. 2001); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 590 (D. Kan. 2003); United States v. Nachamie, 91 F.Supp.2d 552, 558 (S.D.N.Y. 2000); Windsor v. Martindale, 175 F.R.D. 665, 668 (D.Colo. 1997); Schmulovich v. 1161 Rt. 9 LLC, No. 07597 (FLW), 2007 WL 2362598 (D.N.J. 2007). In fact, this Court has recently acknowledged that a party who asserts a personal right relating to documents sought in a subpoena has sufficient standing to challenge the subpoena. Floorgraphics, Inc. v. News American Marketing InStore Services, Inc., No. 0727 (PJS/RLE), 2007 WL 1544572, at *3 (D.Minn. 2007).

Plaintiff has standing to challenge the Subpoena because he has asserted a personal right to the records sought therein. The Subpoena seeks Plaintiff's personal financial records as well as the records of DLS Publishing and D&L Publishing, nonparty entities under Plaintiff's sole control. The federal courts have found that an interest in one's financial affairs is sufficient to grant standing for a motion to quash a subpoena issued to a nonparty financial institution. See AriasZeballos v. Tan, No. 06 Civ. 1268, 2007 WL 210112, at *1 (S.D.N.Y. 2007) (collecting cases). Accordingly, Plaintiff has asserted a personal right, including an interest in nondisclosure of irrelevant personal matters, with respect to the records sought in the Subpoena. Pickle attacks Plaintiff's motion to quash for failing to cite a legal privilege. But, in accordance with the aforementioned law, Plaintiff is not required to assert a legal privilege. The fact that he asserts a personal right to the materials subpoenaed is enough to afford him standing to challenge the Subpoena.

Pickle also cites United States v. Miller, 425 U.S. 435 (1976) in support of the assertion that, absent a claim of privilege, a party has no standing to challenge a subpoena upon a nonparty. Pickle's reliance on that authority, however, is misplaced. Miller involved a criminal defendant's invocation of the Fourth Amendment as a shield to a government subpoena for his bank records. Id. In citing to Miller, Pickle failed to demonstrate its relevance to a civil lawsuit and chose to avoid discussing the fundamental rule upon which the Miller decision was based, which is that the "Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities…." Id. at 443 (emphasis added).

Here, Plaintiff Shelton has not relied upon his Fourth Amendment rights because Defendant Pickle is not a governmental actor, but merely an adversary in a civil proceeding who is inappropriately seeking access to Plaintiff's personal and confidential financial records. Miller is simply not an appropriate authority for determining whether Plaintiff has standing to challenge the instant Subpoena.

Pickle also relies upon Clayton Brokerage Co. v. Clement 87 F.R.D. 569 (D. Md. 1980) for the assertion that a party has no standing to challenge a subpoena to a nonparty without a claim of privilege. [Def.'s Mem. at p. 2]. At first blush, quotes from Clayton Brokerage taken out of context, as they are in Pickle's memorandum, do appear to stand for this proposition. In fact, the Clayton Brokerage court never actually held that a claim of privilege is required but, instead, cited an outofdate version of secondary authority Wright & Miller, which asserted that proposition. See Clayton Brokerage, 87 F.R.D. at 571. However, Wright & Miller has since been updated2 to include the rule that standing exists upon either a claim of privilege or a personal right to the documents sought. See 9 Wright & Miller, Federal Practice & Procedure § 2459.

2 It should be noted that Clayton Brokerage was decided in 1980, prior to the 1991 amendments to Rule 45, when the rule for challenging a nonparty subpoena was in flux.

Ironically, the defendant in Clayton Brokerage was actually held to lack standing because he "failed to identify a personal right on which a challenge to the subpoena may be based." Clayton Brokerage, 87 F.R.D. at 571 (emphasis added).

Pickle's cited authorities fail to supply a basis upon which to dismiss Shelton's Motion to Quash for lack of standing. Plaintiff is not a criminal defendant, Defendant is not a governmental actor, and the Fourth Amendment has not been relied upon in Shelton's Motions to Quash and to Stay and Remit the Subpoena. Miller is inapposite to a determination of the issues at hand. In addition, Pickle has grossly misapplied the holding in Clayton Brokerage by essentially cherrypicking quotes that support his arguments, without regard to the court's decision as a whole or, more importantly, to the current state of the law.

B. Plaintiff Shelton Is The Proper Party to Challenge the Subpoena.

Pickle also claims that either DLS Publishing, a nonparty mentioned in the Subpoena, or MidCountry, not Plaintiff Danny Shelton, should be the ones filing motions to challenge the instant subpoena. Yet Pickle fails to acknowledge the undisputed fact that DLS Publishing is under the sole control of Plaintiff Shelton and, as such, Plaintiff (and Plaintiff alone) has standing to address the confidentiality and irrelevance of materials sought by Pickle pertaining to DLS Publishing. Pickle also misunderstands the protection offered by Fed. R. Civ. P. 45 to innocent third parties unduly burdened by a subpoena. MidCountry has "no dog in this discovery fight," and, as such, made the understandable decision not to expend resources objecting to the subpoena under Rule 45©(2)(B) or bringing a motion to quash. Contrary to Pickle's implications, however, Shelton's standing to challenge the subpoena is in no fashion diminished by MidCountry's refusal to mount a legal challenge to the subpoena.

The law is clear that, though Plaintiff Shelton might not assert a claim of legal privilege concerning the information sought by Pickle's subpoena duces tecum, he nonetheless has standing to challenge the subpoena if he has a personal right in the information at issue. The undisputed facts are clear that Shelton has a personal right and interest in his private financial information and in the confidential financial information of DLS Publishing that give him proper standing to challenge the instant subpoena. Pickle's motion to dismiss, which is neither procedurally appropriate nor legally supported, must be denied.

II. PRIVILEGE IS NOT THE ONLY LIMITATION UPON DISCOVERY IMPOSED BY THE FEDERAL RULES OF CIVIL PROCEDURE.

Pickle also argues that, in the absence of privilege, Fed. R. Civ. P. 26(b) does not limit the discovery of confidential or private information. [Defendant's Memorandum in Support of Motion To Dismiss at p. 2]. This is incorrect. There are at least two additional limitations on discovery imposed by the Federal Rules of Civil Procedure, both of which are threatened by the instant subpoena.

As Pickle himself acknowledges by quoting from Rule 26(b)(1), the scope of discovery is also limited by the relevance of the information sought. "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense…." (emphasis added). Fed.R.Civ.P. 26(b)(1). In fact, relevancy is the touchstone of any discovery request. EEOC v. Univ. of Penn., 850 F.2d 969, 979 (3rd Cir. 1988) (citing 8 Wright & Miller, Federal Practice & Procedure § 2008). Confidential information that does not establish a constitutionally protected privacy interest is nevertheless entitled to relevancy protection against unwarranted public disclosure resulting from discovery in federal civil litigation. See Syposs v. United States, 181

F.R.D. 224, 227 (W.D.N.Y. 1998).

In this case, Shelton's Motion to Quash is based, in part, on the argument that the information sought by Pickle's subpoena duces tecum is simply not relevant to the claims in Plaintiff's Complaint and that Pickle has failed to demonstrate that the Subpoena seeks production of information relevant to his defenses in the underlying litigation. Pickle failed to wait for resolution of Plaintiff's Motion for Protective Order, pending in the District of Massachusetts, before subpoenaing the documents from a thirdparty. And, as the Motion to Quash also argues, Pickle failed to tailor the subpoena to any identifiable and immediate need related to the underlying litigation and, instead, made an overly broad demand for MidCountry to produce documents from an irrelevant period of time, from irrelevant parties that have no interest in the litigation, and related to Plaintiff's personal financial matters that have no relevant bearing on the underlying trademark infringement and defamation claims.

The discovery of confidential or private information is also limited by the burdensomeness of the information sought. Under Rule 26©, discovery that would subject a party to "annoyance, embarrassment, oppression or undue burden or expense" is prohibited. It is undisputed that disclosure of Shelton's private, confidential financial records (and those of his closelyheld corporation), would impose an undue burden on Shelton in the form of embarrassment, harassment and annoyance. It is also undisputed that the production of Shelton's financial records by MidCountry would impose a substantial burden on an institution that has no interest in the underlying litigation or its outcome.

Contrary to Pickle's assertions, privilege is not the only grounds upon which discovery may be limited, and Shelton's Motion to Quash, which seeks to enforce the relevance and burdensomeness limitations on discovery that are imposed by the Federal Rules, should not be dismissed.

CONCLUSION

Defendant Pickle has failed to demonstrate any basis upon which to dismiss Plaintiff's Motions to Quash and to Stay and Remit for lack of standing. Plaintiff therefore prays that this Honorable Court deny Defendant Pickle's Motion to Dismiss and award Plaintiff Shelton the reasonable costs and expenses incurred in opposing the motion, pursuant to Rule 37(a)(4)(B) of the Federal Rules of Civil Procedure.


Dated: February 25, 2008.

Respectfully Submitted,

Attorneys for Plaintiffs Three Angels Broadcasting Network, Inc. and Danny Shelton

SIEGEL, BRILL, GREUPNER, DUFFY & FOSTER, P.A.

/s/ Jerrie M. Hayes

Gerald S. Duffy (# 24703)
Wm. Christopher Penwell (#161847)
Jerrie M. Hayes (#282340)
Kristin L. Kingsbury (#346664)
1300 Washington Square 100 Washington Avenue South Minneapolis, MN 55401

(612) 3376100

(612) 3396591 Facsimile



format edit

This post has been edited by Ian: Feb 25 2008, 08:33 PM

[Ian]

Interesting. So Danny Shelton doesn't have the right to ask the court to do anything about the subpoena? How'd his attorney miss that?
Pickle, Pickle, Pickle.... must you be so harsh?
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Three Angels Broadcasting Network, Inc., an Illinois nonprofit corporation, and Danny Lee Shelton, individually, Case No. 0:08mc7

Plaintiffs,

v.

Gailon Arthur Joy and Robert Pickle, Defendants.

PLAINTIFF DANNY SHELTON'S MEMORANDUM IN OPPOSITION TO DEFENDANT PICKLE'S MOTION TO DISMISS

INTRODUCTION

Instead of simply responding to Plaintiff Shelton's Motions to Quash and to Stay and Remit, Defendant Pickle
("Pickle") seeks a rather unconventional use of Rule 12 to dismiss Plaintiff's motions altogether. The primary rationale for Pickle's Motion to Dismiss, an assertion that Plaintiff Shelton lacks standing to challenge the subpoena duces tecum (the "Subpoena") issued to nonparty MidCountry Bank ("MidCountry"), is simply incorrect. The Subpoena seeks the production of Plaintiff Shelton's personal bank records and those of two other nonparty entities under Shelton's control, facts which, as will be discussed, are sufficient to grant Plaintiff standing to challenge the subpoena. More importantly, Pickle has failed to

1 In light of Pickle's failure to cite to any Federal Rule or other authority providing him procedural grounds for the instant motion, it is assumed that Pickle meant to assert a "lack of standing" defense under Federal Rule of Civil Procedure 12.

provide any applicable legal authority warranting dismissal of Plaintiff's motions. Accordingly, Defendant Pickle's unorthodox Motion to Dismiss must be denied.

ARGUMENT

Though unstructured and somewhat convoluted, Pickle's memorandum appears to make two arguments in support of dismissing Plaintiff's Motions to Quash and to Stay and Remit. First, Pickle appears to argue that because Plaintiff Shelton has not asserted a claim of privilege in relation to the information sought by the subpoena, there is no legal limitation upon Pickle's discovery of that information. Second, Pickle argues that because the records at issue belong to the bank, and because Shelton has not claimed any privilege in relation to the documents, Shelton lacks standing to challenge the instant subpoena.

In fact, however, Plaintiff Shelton's personal right and interest in the financial records at issue is sufficient to convey him standing to challenge the instant subpoena, even though a claim of legal privilege has not been made. Second, contrary to Pickle's implications otherwise, legal privilege is not the only limitation upon discovery, and it is precisely because the discovery at issue runs afoul of two other important limitations—relevance and undue burden—that Plaintiff Shelton's Motion to Quash should not be dismissed and, instead, Pickle's Motion to Dismiss should be denied.

I. PLAINTIFF SHELTON HAS LEGAL STANDING TO CHALLENGE THE SUBPOENA AT ISSUE.

A. Shelton Need Only Assert a Personal Right to the Materials Subpoenaed to Have Standing to Challenge the Subpoena.

Though Pickle is correct that, in general, a party does not have standing to quash a subpoena served on a third party, he selfservingly cites only half of the wellestablished

exception to the general rule. When a party claims either a privilege or a personal right with respect to the subject matter requested, that party has standing to challenge the subpoena. See,

e.g. Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 555 (N.D.Ga. 2001); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 590 (D. Kan. 2003); United States v. Nachamie, 91 F.Supp.2d 552, 558 (S.D.N.Y. 2000); Windsor v. Martindale, 175 F.R.D. 665, 668 (D.Colo. 1997); Schmulovich v. 1161 Rt. 9 LLC, No. 07597 (FLW), 2007 WL 2362598 (D.N.J. 2007). In fact, this Court has recently acknowledged that a party who asserts a personal right relating to documents sought in a subpoena has sufficient standing to challenge the subpoena. Floorgraphics, Inc. v. News American Marketing InStore Services, Inc., No. 0727 (PJS/RLE), 2007 WL 1544572, at *3 (D.Minn. 2007).

Plaintiff has standing to challenge the Subpoena because he has asserted a personal right to the records sought therein. The Subpoena seeks Plaintiff's personal financial records as well as the records of DLS Publishing and D&L Publishing, nonparty entities under Plaintiff's sole control. The federal courts have found that an interest in one's financial affairs is sufficient to grant standing for a motion to quash a subpoena issued to a nonparty financial institution. See AriasZeballos v. Tan, No. 06 Civ. 1268, 2007 WL 210112, at *1 (S.D.N.Y. 2007) (collecting cases). Accordingly, Plaintiff has asserted a personal right, including an interest in nondisclosure of irrelevant personal matters, with respect to the records sought in the Subpoena. Pickle attacks Plaintiff's motion to quash for failing to cite a legal privilege. But, in accordance with the aforementioned law, Plaintiff is not required to assert a legal privilege. The fact that he asserts a personal right to the materials subpoenaed is enough to afford him standing to challenge the Subpoena.

Pickle also cites United States v. Miller, 425 U.S. 435 (1976) in support of the assertion that, absent a claim of privilege, a party has no standing to challenge a subpoena upon a nonparty. Pickle's reliance on that authority, however, is misplaced. Miller involved a criminal defendant's invocation of the Fourth Amendment as a shield to a government subpoena for his bank records. Id. In citing to Miller, Pickle failed to demonstrate its relevance to a civil lawsuit and chose to avoid discussing the fundamental rule upon which the Miller decision was based, which is that the "Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities…." Id. at 443 (emphasis added).

Here, Plaintiff Shelton has not relied upon his Fourth Amendment rights because Defendant Pickle is not a governmental actor, but merely an adversary in a civil proceeding who is inappropriately seeking access to Plaintiff's personal and confidential financial records. Miller is simply not an appropriate authority for determining whether Plaintiff has standing to challenge the instant Subpoena.

Pickle also relies upon Clayton Brokerage Co. v. Clement 87 F.R.D. 569 (D. Md. 1980) for the assertion that a party has no standing to challenge a subpoena to a nonparty without a claim of privilege. [Def.'s Mem. at p. 2]. At first blush, quotes from Clayton Brokerage taken out of context, as they are in Pickle's memorandum, do appear to stand for this proposition. In fact, the Clayton Brokerage court never actually held that a claim of privilege is required but, instead, cited an outofdate version of secondary authority Wright & Miller, which asserted that proposition. See Clayton Brokerage, 87 F.R.D. at 571. However, Wright & Miller has since been updated2 to include the rule that standing exists upon either a claim of privilege or a personal right to the documents sought. See 9 Wright & Miller, Federal Practice & Procedure § 2459.

2 It should be noted that Clayton Brokerage was decided in 1980, prior to the 1991 amendments to Rule 45, when the rule for challenging a nonparty subpoena was in flux.

Ironically, the defendant in Clayton Brokerage was actually held to lack standing because he "failed to identify a personal right on which a challenge to the subpoena may be based." Clayton Brokerage, 87 F.R.D. at 571 (emphasis added).

Pickle's cited authorities fail to supply a basis upon which to dismiss Shelton's Motion to Quash for lack of standing. Plaintiff is not a criminal defendant, Defendant is not a governmental actor, and the Fourth Amendment has not been relied upon in Shelton's Motions to Quash and to Stay and Remit the Subpoena. Miller is inapposite to a determination of the issues at hand. In addition, Pickle has grossly misapplied the holding in Clayton Brokerage by essentially cherrypicking quotes that support his arguments, without regard to the court's decision as a whole or, more importantly, to the current state of the law.

B. Plaintiff Shelton Is The Proper Party to Challenge the Subpoena.

Pickle also claims that either DLS Publishing, a nonparty mentioned in the Subpoena, or MidCountry, not Plaintiff Danny Shelton, should be the ones filing motions to challenge the instant subpoena. Yet Pickle fails to acknowledge the undisputed fact that DLS Publishing is under the sole control of Plaintiff Shelton and, as such, Plaintiff (and Plaintiff alone) has standing to address the confidentiality and irrelevance of materials sought by Pickle pertaining to DLS Publishing. Pickle also misunderstands the protection offered by Fed. R. Civ. P. 45 to innocent third parties unduly burdened by a subpoena. MidCountry has "no dog in this discovery fight," and, as such, made the understandable decision not to expend resources objecting to the subpoena under Rule 45©(2)( or bringing a motion to quash. Contrary to Pickle's implications, however, Shelton's standing to challenge the subpoena is in no fashion diminished by MidCountry's refusal to mount a legal challenge to the subpoena.

The law is clear that, though Plaintiff Shelton might not assert a claim of legal privilege concerning the information sought by Pickle's subpoena duces tecum, he nonetheless has standing to challenge the subpoena if he has a personal right in the information at issue. The undisputed facts are clear that Shelton has a personal right and interest in his private financial information and in the confidential financial information of DLS Publishing that give him proper standing to challenge the instant subpoena. Pickle's motion to dismiss, which is neither procedurally appropriate nor legally supported, must be denied.

II. PRIVILEGE IS NOT THE ONLY LIMITATION UPON DISCOVERY IMPOSED BY THE FEDERAL RULES OF CIVIL PROCEDURE.

Pickle also argues that, in the absence of privilege, Fed. R. Civ. P. 26( does not limit the discovery of confidential or private information. [Defendant's Memorandum in Support of Motion To Dismiss at p. 2]. This is incorrect. There are at least two additional limitations on discovery imposed by the Federal Rules of Civil Procedure, both of which are threatened by the instant subpoena.

As Pickle himself acknowledges by quoting from Rule 26((1), the scope of discovery is also limited by the relevance of the information sought. "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense…." (emphasis added). Fed.R.Civ.P. 26((1). In fact, relevancy is the touchstone of any discovery request. EEOC v. Univ. of Penn., 850 F.2d 969, 979 (3rd Cir. 1988) (citing 8 Wright & Miller, Federal Practice & Procedure § 2008). Confidential information that does not establish a constitutionally protected privacy interest is nevertheless entitled to relevancy protection against unwarranted public disclosure resulting from discovery in federal civil litigation. See Syposs v. United States, 181

F.R.D. 224, 227 (W.D.N.Y. 1998).

In this case, Shelton's Motion to Quash is based, in part, on the argument that the information sought by Pickle's subpoena duces tecum is simply not relevant to the claims in Plaintiff's Complaint and that Pickle has failed to demonstrate that the Subpoena seeks production of information relevant to his defenses in the underlying litigation. Pickle failed to wait for resolution of Plaintiff's Motion for Protective Order, pending in the District of Massachusetts, before subpoenaing the documents from a thirdparty. And, as the Motion to Quash also argues, Pickle failed to tailor the subpoena to any identifiable and immediate need related to the underlying litigation and, instead, made an overly broad demand for MidCountry to produce documents from an irrelevant period of time, from irrelevant parties that have no interest in the litigation, and related to Plaintiff's personal financial matters that have no relevant bearing on the underlying trademark infringement and defamation claims.

The discovery of confidential or private information is also limited by the burdensomeness of the information sought. Under Rule 26©, discovery that would subject a party to "annoyance, embarrassment, oppression or undue burden or expense" is prohibited. It is undisputed that disclosure of Shelton's private, confidential financial records (and those of his closelyheld corporation), would impose an undue burden on Shelton in the form of embarrassment, harassment and annoyance. It is also undisputed that the production of Shelton's financial records by MidCountry would impose a substantial burden on an institution that has no interest in the underlying litigation or its outcome.

Contrary to Pickle's assertions, privilege is not the only grounds upon which discovery may be limited, and Shelton's Motion to Quash, which seeks to enforce the relevance and burdensomeness limitations on discovery that are imposed by the Federal Rules, should not be dismissed.

CONCLUSION

Defendant Pickle has failed to demonstrate any basis upon which to dismiss Plaintiff's Motions to Quash and to Stay and Remit for lack of standing. Plaintiff therefore prays that this Honorable Court deny Defendant Pickle's Motion to Dismiss and award Plaintiff Shelton the reasonable costs and expenses incurred in opposing the motion, pursuant to Rule 37(a)(4)( of the Federal Rules of Civil Procedure.
Dated: February 25, 2008.

Respectfully Submitted,

Attorneys for Plaintiffs Three Angels Broadcasting Network, Inc. and Danny Shelton

SIEGEL, BRILL, GREUPNER, DUFFY & FOSTER, P.A.

/s/ Jerrie M. Hayes

Gerald S. Duffy (# 24703)
Wm. Christopher Penwell (#161847)
Jerrie M. Hayes (#282340)
Kristin L. Kingsbury (#346664)
1300 Washington Square 100 Washington Avenue South Minneapolis, MN 55401

(612) 3376100

(612) 3396591 Facsimile



format edit

forgot to add the following:


 Quashdoc20022208.pdf ( 53.87K ) Number of downloads: 5



I'm sorry, but if anyone wants to read Pickle's motion that the Judges decision in the pdf file (given above) concerns they'll have to ask him for it.

For some reason Documents #10-15 all filed by Pickle in the Minnesota Court all say "no copies" and are not available on PACER,

This post has been edited by Ian: Feb 25 2008, 10:06 PM

[Pickle]

If no excess benefit took place, what would you want him to do? (No need to answer).

The problem is that the 990 says that one did take place. It says that 3ABN sold a house for $6,129, which was a steep loss. That is the definition of an excess benefit.

[Pickle]

The horse can't get any deader, I promise.

So it was just fine that Danny denied that any section 4958 excess benefit transactions had taken place? Under penalty of perjury? Is that what you're saying?