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

[Pickle]

What type of expert? Credentials please.

And if someone was "standing there" are you saying you merely discussed this or provided either or both with the actual legal documents to review?

Try seminar presenter on trusts and such, and an accountant who has to deal with these kinds of things.

I kept it anonymous to protect the guilty, so I didn't show them the documents. But I told them what they said.

[Pickle]

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

Conventional filings by pro se litigants don't show up. But my filing today does.

[appletree]

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.

And you know this because Linda told you? In the first place that doesn't make it true, but, in this case, she is partially correct. She is correct that this was done by reputable attorney's and it fit all the life estate criteria. What is not correct is that she wasn't "told" anything. She was in attendance at the board meeting where the official papers were present to, and examined by, the board. She heard all there was to hear in the discussion and had the legal papers in front of her to examine the same as the rest of the board.

This subject has been discussed absolutely to death. I'm sorry but the attorney's and auditors are the authorities on the matter. Not Pickle and Joy. For those of you who still want to believe that Pickle and Joy have discovered some kind of "crime" when the experts pronounced it free and clear, then there is nothing that is going to convince you anyway. Let's move on.

[appletree]

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

Wow. I would say the best advice I could give you at this point, Bob is to just Cry Uncle!!!!

[Shiny Penny]

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.

From what I have read (and they are the documents that you and Joy have put online) - I don't think that your interpretation is correct. Linda and Danny were buying what remained after their life interest in the home.- the remainder interest. The right to live in the house for their lifetimes was theirs and it had a value. The remainder interest is what belonged to 3ABN. And that's what Linda and Danny bought.

Anyway, here is a link to the IRS actuarial values and perhaps someone with lots of time and the abilities to understand and explain the details can spell this out in laymen's language.

IRS Acturial Value for Remainders

:

[Shiny Penny]

Try seminar presenter on trusts and such, and an accountant who has to deal with these kinds of things.

I kept it anonymous to protect the guilty, so I didn't show them the documents. But I told them what they said.

"Protecting the guilty" - since when did you become judge and jury?

If you had already determined in your mind that they were guilty, then IMHO it would color what you told to whoever this seminar presenter is. Kindly let me know who this presenter was, so that I can verify your assertions.

"Protecting the guilty, so I didn't show them the documents" - The part where your logic becomes faulty is that you kept the documents anonymous from one person and then turn around and splash the documents all over the web with names.

Pickle, the stock you have bought into has no value. The train you are on is heading off the cliff. The car is out of gas. The patient is dying - nay - dead. Check to see if you aren't in bed with a viper.

This post has been edited by Shiny Penny: Feb 26 2008, 09:04 AM

[Observer]

And you know this because Linda told you? In the first place that doesn't make it true, but, in this case, she is partially correct. She is correct that this was done by reputable attorney's and it fit all the life estate criteria. What is not correct is that she wasn't "told" anything. She was in attendance at the board meeting where the official papers were present to, and examined by, the board. She heard all there was to hear in the discussion and had the legal papers in front of her to examine the same as the rest of the board.

This subject has been discussed absolutely to death. I'm sorry but the attorney's and auditors are the authorities on the matter. Not Pickle and Joy. For those of you who still want to believe that Pickle and Joy have discovered some kind of "crime" when the experts pronounced it free and clear, then there is nothing that is going to convince you anyway. Let's move on.

Appletree:

Let us not get hung up in my wording. I do not consider what I posted to differ from what you posted. I has always aassumed that Linda as a member of the Board attended Board meetings. I also assume that someone in her posiiton would have typically been briefed (told) prior to the meetings what was on the agenda and given such information as would be neded to make a responsible vote.

However, I can see that I probably did not word my post in the most intelligent manner possible. My wife tells me that such happens with me. In any case my major point was that Linda believed that everything about the transfer was proper on all counts.

As to SP's comment that such likely applied to Danny: I do not challenge that position at all. As I have said before, my focus in posting is generally going to be on Linda and not Danny.

[LaurenceD]

"Protecting the guilty" - since when did you become judge and jury?

I see you're up to your old tricks again...this time editing your post almost five hours later. And not just typos, punctuation, or format.

Speaking of "guilty" and someone playing judge and jury, somehow I recall Ian, in the Hospitalization thread, saying, "you violated the rights of others." yet no one of any legal authority agreeing. Quite revealing.

[Ian]

I see you're up to your old tricks again...this time editing your post almost five hours later. And not just typos, punctuation, or format.
===========

Old tricks? Lawrence you need to stop, please.

The post plainly says edited and identifies who did so and when, and no one had replied so there's no harm no foulplay. Your issues are mere minutia AFAIC.

Speaking of "guilty" and someone playing judge and jury, somehow I recall Ian, in the Hospitalization thread, saying, "you violated the rights of others." yet no one of any legal authority agreeing. Quite revealing.

Is it also quite revealing that Mr Pickle posted that Danny Shelton doesn't have the right to ask the court to do anything about Pickles subpoena, ( right here in this thread) and you can't notice that, or the legal document filed in response to his claims, showing that Danny Shelton clearly does have those rights, according to the law?

Will you see it when the Judge rules?

I hope so, but at this point your oneliner replies and constant ad hominems, which is all I ever see you posting, don't lead me to believe that likely.

This post has been edited by Ian: Feb 26 2008, 10:01 AM

[sonshineonme]

I see you're up to your old tricks again...this time editing your post almost five hours later. And not just typos, punctuation, or format.

Speaking of "guilty" and someone playing judge and jury, somehow I recall Ian, in the Hospitalization thread, saying, "you violated the rights of others." yet no one of any legal authority agreeing. Quite revealing.

Laurence, if you recall, the last time I pointed out that SP edited his post, he then preceded the entire day to just point out "typos" for the reason.
It wasn't typos that I was referring to when I posted, it was just plain words that went away...that's why I asked SP about it.

[LaurenceD]

Trouble is, I saw the before and after...all within a minute. The size of the post nearly doubled. And he wasn't the last poster when it was edited.

If those folks want to add something why don't they simply create a new post. Editing can become highly suspect....always doing so after the fact.

[LaurenceD]

I hope so, but at this point your oneliner replies and constant ad hominems, which is all I ever see you posting, don't lead me to believe that likely.

I don't expect you to always catch the substance of the posts...as when I pointed out to appletree the biblical meaning of "time is short" in contrast to his own meaning.

[sonshineonme]

Trouble is, I saw the before and after...all within a minute. The size of the post nearly doubled. And he wasn't the last poster when it was edited.

If those folks want to add something why don't they simply create a new post. Editing can become highly suspect....always doing so after the fact.

I believe in both cases we are talking, it wasn't adding, it was subtracting.
That is what catches my eye.
And, spelling, that is one thing, words???
You can change your mind, but I "suspect" there are interesting reasons for it.
Just a thought............

please if you notice, I am EDITING! I'm adding!

I wanted to add to this after just reading your last reply LD, I AWAYS appreciate and enjoy your posts. You say a whole lot in them words of yours...whether a few or a lot! Substance man!! I like it.

This post has been edited by sonshineonme: Feb 26 2008, 10:53 AM

[LaurenceD]

I like your moniker...sun, shine on me.





Hey editing is fun!

This post has been edited by LaurenceD: Feb 26 2008, 10:59 AM

[sonshineonme]

I like your moniker...sun, shine on me.





Hey editing is fun!

AHHHHH!!! I caught you!!! Right in the middle of editing!! SHAME!!

I see you are the highly intelligent super innovative person I knew you to be. Good job always!

Yes, my moniker was a two in one. I try to be efficient in life whenever possible.
Son (as in Jesus) and I love the sunshine. I need both to survive this world.