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Franzen v. Myers

Court of Appeals of Iowa

March 21, 2018

JAMES N. FRANZEN, Petitioner-Appellant,
JODY C. MYERS and KENNETH M. O'REGAN, Defendants-Appellees.

          Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.

         In this interlocutory appeal, James Franzen challenges the district court's orders relating to a motion to quash a subpoena.

          Bruce J. Toenjes of Nelson & Toenjes, Shell Rock, for appellant.

          Eashaan Vajpeyi of Ball, Kirk & Holm, P.C., Waterloo, for appellee Kenneth M. O'Regan.

          Mark E. Mershon of Mershon Law Firm, Cedar Falls, for interested party Jackson Auction Company.

          Considered by Vogel, P.J., Mullins, J., and Mahan, S.J. [*]


         James Franzen commenced this action in 2013, with the filing of a "Petition and Complaint" against defendants "John Doe(s) and other unknown Defendant(s)." Franzen subsequently filed an amendment to the petition, identifying the current named defendants Jody Myers and Kenneth O'Regan and raising claims for trespass and conversion.[1] Franzen alleged Myers and O'Regan participated in the trespass of his premises and in the conversion of his property "whether jointly or singly" and "alone or in concert with other currently unknown defendants."

         In 2016, Franzen served a subpoena on Jackson Auction Company, directing Jackson Auction to produce documents and information relating to the sale of certain enumerated items "listed in the catalog for . . . auction sale" in 2004 and 2005. Jackson Auction filed an objection to the subpoena, a motion to quash, and a motion for a protective order with the district court. A month later, Jackson Auction filed an amended motion to quash. Jackson Auction objected to the subpoena, claiming Franzen had requested information and records from it for years-beginning in 2007 or 2008-based on Franzen's belief that Jackson Auction had sold property that had been stolen from his family. According to Jackson Auction, Franzen continued to add items "gleaned from the Jackson Auction website" to his list, but Franzen had "show[n] no proof of ownership, proof of pictures, any type of bills of sale, insurance policies, or any provenance that he or his family ever owned any of these items." Jackson Auction further pointed out that some of the items enumerated in the subpoena were subject to a prior probate case, in which Franzen had alleged property was stolen by a different individual and sold by Jackson Auction.[2]

         A hearing took place on Jackson Auction's motion to quash, in which the court received arguments from Franzen and Jackson Auction. Jackson Auction argued it was burdensome and costly for it to accommodate Franzen's never-ending requests for production. Jackson Auction also alleged Franzen's conduct negatively affected its business and reputation because, upon learning who purchased items from Jackson Auction, Franzen contacted and questioned the customers.[3] Jackson Auction emphasized Franzen had never presented any proof the items were stolen from him. Franzen's counsel responded, "The only issue about burden here is cost. And if there is a cost issue, then my client can be assessed the cost of obtaining the information." In light of Jackson Auction's concerns about Franzen's treatment of its customers, Franzen agreed the court could conduct an in-camera review of the requested documents.

         Following the hearing, the court entered an order staying the subpoena, prohibiting Franzen from contacting any further customers of Jackson Auction until further notice, and allowing Jackson Auction to "submit the documents requested by subpoena to the court for in camera review to possibly resolve the need for the [remainder of the] hearing." Jackson Auction submitted the materials to the court, and after conducting an in camera review, the court issued the following order on February 1, 2017:

The court ordered an in camera review of documents Plaintiff subpoenaed from Jackson [Auction] to determine whether they should be disclosed based on Plaintiff's prior treatment of Jackson customers. The court has reviewed the prepared materials and does not believe they should be placed in the hands of the plaintiff. However, his attorney should be allowed to review them in chambers in order to present any further argument as to why they should be released. However, that privilege shall be conditioned upon Plaintiff's payment of the expenses incurred by Jackson in assembling the materials.
1. Upon payment of the $3900.00 invoice presented by Jackson with the bound materials, plaintiff's counsel shall be allowed to review the materials in chambers in Chickasaw County by appointment with the undersigned. The materials will ...

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