Euell v. Rhode Island Department of Public Safety, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
ERIC EUELL, 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 22-101-MRD-PAS
:
STATE OF RHODE ISLAND, et al., 	:
Defendants. 	:
MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Plaintiff Eric Euell has sued the Rhode Island State Police (“RISP”) and the Rhode Island
Department of Public Safety1 alleging that they wrongly initiated a baseless 2019 criminal felony
information (subsequently dismissed by the Rhode Island Superior Court) against him in
derogation of his constitutional rights, as well as in violation of his state law rights to be free of
false arrest and false imprisonment. See ECF No. 1.
The allegedly wrongful prosecution arose from Plaintiff’s February 15, 2019, resignation
from employment at Overhead Door of Southeastern Massachusetts (“OD”) in connection with
his starting a competing company, Designer Garage Doors, Inc. (“Designer”). Id. ¶¶ 13, 23.
According to the Complaint, the criminal charges were based on Plaintiff having remained in
possession of items of de minimis value from his OD employment. Id. ¶ 42. Plaintiff alleges
that, after learning of his resignation, an OD principal (“James Scott Grace”) contacted a family
member who is an RISP Officer (Defendant Kevin Grace) to initiate allegedly groundless
criminal charges and that RISP performed no investigation to establish probable cause. Id. ¶¶
1 Plaintiff has sued the State of Rhode Island, its agencies and officials in their official capacities, as well as two
named RISP Officers who are also sued individually. Claims against the Rhode Island Office of Attorney General
and its employees have been dismissed with prejudice. ECF No. 30.
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13-15, 31-39, 44-47. On March 26, 2019, based solely on the request of OD, and not on any
RISP investigation, Plaintiff was charged with embezzlement and fraudulent conversion, arrested
and processed. Id. ¶¶ 37, 44, 45. On July 18, 2019, despite the lack of any investigation, a
criminal information charging Plaintiff with a felony was filed in the Rhode Island Superior
Court. Id. ¶ 49. On July 7, 2020, the Superior Court dismissed the criminal charges. Id. ¶ 51.
Based on this allegedly wrongful criminal prosecution, Plaintiff has filed two civil
lawsuits:
(1) 	A case was filed in state court on April 17, 2020, by Plaintiff and his company,
Designer, against OD and a principal of OD, alleging, inter alia, defamation,
malicious prosecution and abuse of process;2 and
(2) 	This case was filed in federal court on March 9, 2022, by Plaintiff against, inter
alia, RISP and RISP Officers, including the RISP Officer who is a brother of the
OD principal.
Now pending before the Court is Defendants’ motion to quash a non-party subpoena to
testify via Zoom addressed to Kelsey Marshall, a resident of Massachusetts, based on Fed. R.
Civ. P. 45(d). ECF No. 65 & Ex. A. As the motion explains, ending well more than a decade
ago, Ms. Marshall was an RISP officer. See ECF No. 65 at 4. However, since 2012 when she
retired from RISP, she has been a stay-at-home mother, who occasionally works part-time at a
canine academy. Id.; see ECF No. 71 ¶¶ 1-3. The motion asserts that Ms. Marshall has had
nothing to do with and has no knowledge of Plaintiff or of any aspect of the claims in issue and
Defendants’ defenses to them. ECF No. 65 at 1-2.
I. 	Background
2 This description of the state court case is derived from a filing made in connection with an earlier-filed motion to
quash a non-party deposition. See ECF No. 35 at 3.
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Issued pursuant to Fed. R. Civ. P. 45 (but not yet served on Ms. Marshall),3 a copy of the
subpoena was provided to the attorney from the Office of the Rhode Island Attorney General
who is representing Defendants. See ECF No. 65 at 4. Acting for Defendants and for Ms.
Marshall solely for purposes of the motion to quash, Defendants’ counsel pressed Plaintiff for an
explanation of how Ms. Marshall’s deposition is conceivably relevant to the claims and defenses
in this case. Id.; see ECF No. 65, Ex. B. After receiving no explanation and with nothing in the
record of this case to suggest that an individual who left RISP many years before the events in
issue in this matter could have any information within the scope of permissible discovery,
Defendants filed the motion to quash.
Plaintiff’s opposition to the motion to quash revealed in this case for the first time that
Ms. Marshall’s name arose because it was used by a principal of OD in an email produced in
discovery in the state court case (the “Email”). ECF No. 67 at 3. Importantly, the Email was not
produced in this case. The Email, ostensibly written by an OD principal, James Scott Grace, is
dated February 22, 2019, which is just a few days after Plaintiff resigned. Id. In the Email,
addressed to various named individuals congratulating them for doing a “[g]reat job” gathering
information and encouraging criminal action (for example by the Wellesley Police Department)
against Plaintiff, the writer states: “Let’s connect with Kelsey this morning and confirm next
steps” and “Kelsey can confirm next steps.” ECF No. 67 at 3. An email address for Kelsey
Marshall is listed as an addressee.
This reference to Kelsey Marshall was explored extensively in depositions taken in the
state court case. These transcripts are quoted in Plaintiff’s opposition and reveal that: (1) a
recipient of the Email who was deposed had no idea who Ms. Marshall is or why she was
3 Apparently, the subpoena was left at Ms. Marshall’s home with a child under the age of eighteen.
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mentioned; (2) the writer of the Email knew that Ms. Marshall had been an RISP Officer in the
past, claimed that she was briefly “retained” at the time when OD was dealing with Plaintiff’s
resignation but admitted that she was never “formally” hired, never billed for any work and did
not do any investigation of Plaintiff or of his company. ECF No. 67 at 3-6.
With this background proffered for the first time in Plaintiff’s opposition brief, Ms.
Marshall reviewed the Email to refresh her recollection. ECF No. 71 ¶ 16. She has now averred
under oath in a Declaration filed in this case that, while the email address is hers, she has no
recollection of receiving the Email. Id. The Declaration further explains that, in December
2018, she spoke briefly with an OD principal about the possibility of employment by OD as a
safety officer to ensure that safety standards were being met at job sites. Id. ¶ 5. In connection
with the exploration of that possibility, in early 2019, she had one short site visit and attended “a
couple” of safety meetings and one meeting about how to use security cameras. Id. ¶ 7. For
personal reasons, she declined the opportunity, was never hired and had no further involvement
with OD. Id. ¶ 11. Ms. Marshall further avers that she has never met Plaintiff, never
investigated Plaintiff (either for OD or for RISP or in any other capacity) and has no knowledge
of Plaintiff or his claims against RISP. Id. ¶¶ 13-15.
II. 	Standard of Review
Rule 45(d)(1) of the Federal Rules of Civil Procedure requires a “party or attorney
responsible for issuing and serving a subpoena” to “take reasonable steps to avoid imposing
undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Rule
45(d)(3)(A)(iv) requires the Court to “quash or modify” a subpoena if it “subjects a person to
undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). Such third-party discovery is also subject to
Fed. R. Civ. P. 26, which limits discovery to “any nonprivileged matter that is relevant to any
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party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1)
(emphasis added). Thus, it is well-settled that such discovery cannot be used as a fishing
expedition to pursue merely speculative inquiries. Heidelberg Americas, Inc. v. Tokyo Kikai
Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003) (“A litigant may not engage in merely
speculative inquiries in the guise of relevant discovery.”) (internal quotation marks omitted);
Milazzo v. Sentry Ins., 856 F.2d 321, 321 (1st Cir. 1988) (per curiam) (“Discovery,” after all, “is
not a fishing expedition; parties must disclose some relevant factual basis for their claim before
requested discovery will be allowed.”) (internal quotation marks omitted). The movant seeking
to quash a subpoena has the burden of demonstrating that compliance would result in an undue
burden, while the subpoenaing party must sustain the burden of establishing that the requested
information is relevant and proportional to the claims/defenses in the case. Jee Fam. Holdings,
LLC v. San Jorge Children’s Healthcare, Inc., 297 F.R.D. 19, 20 (D.P.R. 2014); see also Fed. R.
Civ. P. 26(b)(1).
III. 	Analysis
During the hearing before me, Plaintiff conceded that he has no reason to believe that
anything in Ms. Marshall’s Declaration is false.4 Further, he conceded that there is nothing
linking Ms. Marshall to the wrongful criminal prosecution claims against RISP. Her
“involvement” relates only to the state court case and is limited to her name having been used
(seemingly falsely) by an OD principal in the Email.5 Put differently, the evidence developed in
4 The Court asked if the parties would consent to the use of the Declaration for the truth of its content in further
proceedings in this case (though not to its admissibility, which is a determination to be made in the moment of use,
such as at trial). On the record, counsel for the RISP Defendants represented that they would not object to the use of
the Declaration to establish the truth of its content despite its status as hearsay and counsel for Plaintiff represented
that he would accept it as an admissible document on that basis.
5 It must be noted that, by making this observation regarding relevancy of the Email in the state court case, the Court
is not suggesting that a third-party subpoena for Ms. Marshall’s testimony in the state court case would be
appropriate or permissible. The permissibility of such a deposition is beyond the scope of what is before this Court.
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the state court case, confirmed by Ms. Marshall’s Declaration, establishes that she is not in
possession of any information conceivably relevant (or proportional) to this case. Nor has
Plaintiff provided the Court with anything to overcome Defendants’ persuasive presentation that
the deposition would be a speculative fishing expedition thereby imposing undue burden.
Accordingly, the subpoena must be quashed.
IV. 	Conclusion
Based on the foregoing, Defendants’ Motion to Quash Subpoena Addressed to Non-party
Kelsey Marshall (ECF No. 65) is GRANTED.
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
February 5, 2026
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