Herrmann et al v. Nata et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SARA HERRMANN, et al., 	)
Plaintiffs, 	)
)
v. 	) CIVIL ACTION NO. 1:24-00174-TFM-N
)
JODIE NATA, et al., 	)
Defendants. 	)
ORDER
This civil action is before the Court on the “Motion to Quash” filed July 1,
2025, by non-parties the Conecuh County (Alabama) Juvenile Court and the judge of
that court, Clinton H. Hyde (collectively, “the Movants”) (Doc# 49).1 In accordance
with the Court’s briefing schedule (Doc# 51), the Plaintiffs and issuers of the
challenged 	subpoena, 	Sara 	Herrmann 	and 	Melissa 	Hera, 	filed 	a 	response 	in
opposition (Doc# 55) to said motion, and the Movants timely filed a reply (Doc# 57) to
the response. The motion is now under submission and ripe for disposition.
I. 	Analysis
The Plaintiffs issued a subpoena dated April 25, 2025, commanding the
Movants to produce the following for inspection and copying, or alternatively provide
copies of same to the Plaintiffs’ counsel in Baldwin County, Alabama.
1. 	Any and all audible or inaudible recordings and/or transcripts of those
recordings of any Dependency hearing of or concerning Melissa Hera,
1 The 	assigned 	District 	Judge 	has 	referred 	said 	motion 	to 	the 	undersigned
Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule
of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b);
(7/2/2025 electronic reference notation).
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Annabelle Stewart and/or Harold Hera, Jr. held in the Juvenile Court of
Conecuh County, Alabama.
2. 	Any 	and 	all 	audible 	or 	inaudible 	recordings 	and/or 	transcripts 	of
recordings 	of 	any 	and 	all 	hearings 	of 	or 	concerning 	Melissa 	Hera,
Annabelle Stewart and/or Harold Hera, Jr. held in the Juvenile Court of
Conecuh County, Alabama.
(Doc# 49-1).
The Movants have moved to quash or modify that subpoena under Federal
Rule of Civil Procedure 45(d)(3)(A)(iii) and (iv),2 which provide that, “[o]n timely
motion, the court for the district where compliance is required must quash or modify
a subpoena that…(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies[,] or (iv) subjects a person to undue burden.”3
a. 	Rule 45(d)(3)(A)(iii)—Privileged or Other Protected Matter
2 Because Conecuh and Baldwin Counties are both located within this judicial
district, see 28 U.S.C. § 81(c)(2), the present motion to quash was properly filed with
this Court. See Fed. R. Civ. P. 45(d)(3) (granting “the court for the district where
compliance is required” the power to quash or modify a subpoena).
3 In their response, the Plaintiffs complain that “the movants did not engage in any
meaningful 	effort 	to 	resolve 	the 	purported 	issues 	prior 	to 	seeking 	judicial
intervention.” (Doc# 55, PageID.514). Notably, the Plaintiffs’ response gives no
indication that they made any effort to reach out to the Movants to attempt informal
resolution of the matter after the present motion was filed, nor does it propose any
compromise position. Regardless, while informal pre-motion attempts at resolution
are encouraged, unlike with motions to compel under Rule 37(a), or motions for
protective order under Rule 26(c), nothing in Rule 45 requires a movant to attempt
to informally resolve a dispute over a subpoena prior to bringing a motion to quash.
While the Court’s Federal Rule of Civil Procedure 16(b) scheduling order applies
pre-motion conferencing requirements to Rule 45(c) motions, it expressly limits that
requirement to “any motion by a party…” (Doc# 37, PageID.440). Accordingly, the
undersigned will not penalize the Movants for not doing something that was not
required of them.
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In arguing that the subject subpoena should be quashed or modified for
requiring disclosure of “privileged or other protected matter,” the Movants rely on
Code of Alabama § 12-15-133, which provides that certain enumerated “records,
reports, and information acquired or generated in juvenile courts concerning children
shall be confidential and shall not be released to any individual, department, agency,
or entity, except as provided elsewhere in this section…” Ala. Code § 12-15-133(a).
But the mere fact that § 12-15-133 protects certain material from disclosure does not
render that material “privileged” for purposes of the Federal Rules of Civil Procedure.
“[T]he existence of a [state] statute prohibiting disclosure does not, by itself, give rise
to a federal privilege. Federal evidentiary privileges in federal question litigation
arising in federal court”—such as this case (see Docs# 1, 22)—"are 	governed by
federal law, and a state evidentiary privilege does not automatically give rise to a
federal evidentiary privilege. And while federal courts are empowered by Federal
Rule of Evidence 501 to recognize new federal privileges arising from state law, they
generally are hesitant to do so.” Jordan v. Comm'r, Mississippi Dep't of Corr., 947
F.3d 1322, 1336 (11th Cir. 2020) (citation omitted).
Indeed, “there is a presumption against [recognizing new] privileges [under
Federal Rule of Evidence 501] which may only be overcome when it would achieve a
public good transcending the normally predominant principle of utilizing all rational
means for ascertaining truth.” Adkins v. Christie, 488 F.3d 1324, 1328 (11th Cir.
2007) (quotation omitted). “This is a high standard, and only the most compelling
candidates 	will 	overcome 	the 	law’s 	weighty 	dependence 	on 	the 	availability 	of
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relevant evidence.” Id. (quotation omitted). And more generally, “[w]hoever asserts
privilege has a burden of proof when information subject to a subpoena is withheld on
that claim of privilege.” 9A Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2463.1 (3d ed.
(electronic), last updated May 21, 2025). See also Texas Brine Co., LLC & Occidental
Chem. Corp., 879 F.3d 1224, 1230 nn.6-7 (10th Cir. 2018) (“[A]s the one asserting
attorney-client privilege [in a motion to quash], Texas Brine has the burden to show
the documents are privileged…Even an attorney subpoenaed to produce documents
would have to do more than assert a blanket claim of privilege to succeed in its
motion to quash.”). The Movants have cited no authority, and the undersigned is not
aware of any, recognizing § 12-15-133 as giving rise to a “federal privilege,” nor have
the Movants in any way attempted to argue that either should.
However, as the Jordan panel recognized, “the text of Rule 45(d)(3)(A)(iii)
indicates that the protection of that specific provision extends beyond the strict
bounds of ‘privileged’ information to encompass ‘other protected matter.’ ” 947 F.3d at
1336. The panel noted that “caselaw has not fleshed out the definition of the term
‘other protected matter,’ ” but ultimately declined to do any fleshing out of its own,
affirming the district court’s decision to quash the subject subpoena on other grounds.
Id. 	Nevertheless, 	the 	panel 	noted 	that 	“there 	are 	certainly 	sound
arguments…sufficient to prompt consideration whether [a matter] safeguarded by a
state statute forbidding disclosure…constitutes ‘other protected matter[]’ ” in some
circumstances. Id.
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The Plaintiffs have not argued that material protected by § 12-15-133(a) does
not 	constitute 	“privileged 	or 	other 	protected 	matter” 	for 	purposes 	of 	Rule
45(d)(3)(A)(iii). Nevertheless, even assuming it can be, the Movants have, though
perhaps unintentionally, disclaimed § 12-15-133(a)’s protection over the sought
material in their reply. In response to the present motion, the Plaintiffs argue that
they meet confidentiality exceptions set out in § 12-15-133(c), which lists certain
persons and organizations to whom, “[s]ubject to applicable federal law, the records,
reports, and information described in subsection (a) shall be open to inspection and
copying…, under the specified circumstances…4 In reply, the Movants argue that
the Plaintiffs cannot rely on § 12-15-133(c) because “transcripts and recordings are
not in the ‘information described in subsection (a).’ ” (Doc# 57, PageID.522). If that is
true, 	however, 	then 	juvenile 	court 	transcripts 	and 	recordings 	would 	not 	be
confidential under § 12-15-133(a); as such, there would be no reason for the Plaintiffs
to show entitlement to any exception under § 12-15-133 in order to access those
materials. Given the separate protections for recordings and transcripts of juvenile
court proceedings provided by Alabama Rule of Juvenile Procedure 20, see infra, the
argument that such materials are not covered by § 12-15-133(a) is at least plausible.
Therefore, for present purposes the undersigned accepts the Movants’ concession
4 In their opening brief, the Movants argue that the Plaintiffs have not shown “a
legitimate need for access” to the requested information in order to meet the
confidentiality exception in § 12-15-133(d). (See Doc# 49, PageID.496). However, as
the Plaintiffs correctly point out, that subsection would not grant them relief even if
they could make such a showing, since it can only be utilized by “a prosecutor
representing the State of Alabama, department, entity, or agency.” Ala. Code §
12-15-133(d).
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that recordings and transcripts of juvenile court proceedings are not “‘information
described in,” and thus are not made “privileged” or “protected” by, § 12-15-133(a).5
For the first time in their reply, the Movants also argue that the Plaintiffs are
trying to “get around” Alabama Juvenile Rule 20, which states that recordings of
juvenile court proceedings “shall not be released except for the following purposes:
(1) In the event of an appeal[; or] (2) [u]pon written order of the juvenile court judge,
which shall include a specific finding that good cause exists for the creation and
release of a transcript of the proceedings.” Ala. R. Juv. P. 20(A). Raising arguments
for the first time in a reply brief is highly disfavored, deprives non-movants of an
opportunity to address them, and generally results in waiver or forfeiture of those
arguments. E.g., Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir.
2005); Ceccanti v. Thomas, No. 1:21-CV-195-TFM-MU, 2023 WL 4317649, at *7 (S.D.
Ala. May 9, 2023) (Moorer, J.). However, given the state interests implicated by
Alabama Juvenile Rule 20, the undersigned will give the Movants an opportunity to
more fully address this issue in a second motion to quash, see infra.
5 Even if juvenile court recordings and transcripts are protected by § 12-15-133(a),
Plaintiff Melissa Hera, at least, appears entitled, under § 12-15-133(c), to inspect
and copy recordings and transcripts of hearings of which she, Annabelle Stewart, or
Harold Hera, Jr. was the subject. “[T]he subject of the proceedings” is entitled to
inspect and copy § 12-15-133(a) material related to those proceedings. Ala. Code §
12-15-133(c)(4). Moreover, Melissa Hera represents in her response—without any
pushback from the Movants in their reply—that she “is the natural mother of
Annabelle Stewart and Harold Hera, Jr., and her parental rights have not been
terminated…” (Doc # 55, PageID.516). Thus, she would also be able to access
transcripts and recordings of hearings involving her children. See Ala. Code §
12-15-133(c)(3) (granting access to information described in § 12-15-133(a) to “[t]he
parent, except when parental rights have been terminated…”).
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b. 	Rule 45(d)(3)(A)(iv)—Undue Burden
The undue burden analysis requires the court to “balance the interests
served 	by 	demanding 	compliance 	with 	the 	subpoena 	against 	the
interests 	furthered 	by 	quashing 	it.” 	9A 	Wright 	& 	Miller, 	Federal
Practice and Procedure § 2463.1 (3d ed. 2019). Several factors have
been identified as pertinent to the analysis, including the “relevance of
the information requested” to the underlying litigation and the “burden
[that 	would 	be] 	imposed” 	by 	producing 	it. 	Wiwa 	v. 	Royal 	Dutch
Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). The status of the
subpoena recipient as a non-party is also a factor that can weigh
against disclosure in the undue burden inquiry. See id. (“[I]f the person
to whom the document request is made is a non-party, the court may
also consider the expense and inconvenience to the non-party.”).
Jordan, 947 F.3d at 1337 (citation to district court opinion omitted).
“Under Rule 45(d)(3)(A)(iv) the burden to establish that a subpoena duces
tecum imposes an undue burden is on the person who moves to have it quashed.”
Fed. Prac. & Proc. Civ. § 2463.1. Accord Wiwa v. Royal Dutch Petroleum Co., 392
F.3d 812, 818 (5th Cir. 2004) (“The moving party has the burden of proof to
demonstrate 	that 	compliance 	with 	the 	subpoena 	would 	be 	unreasonable 	and
oppressive.” (quotation marks and footnote omitted)). A ”person cannot rely on a
mere assertion that compliance would be burdensome and onerous without showing
the manner and extent of the burden and the injurious consequences of insisting
upon compliance with the subpoena.” Fed. Prac. & Proc. Civ. § 2463.1.
Considered by themselves, the Movants’ opening arguments as to “undue
burden” are perfunctory and largely unconvincing. The Movants’ reply brief (Doc#
57) provides much more detail about how Conecuh County Juvenile Court hearing
recordings are (or at least have been) stored, and the process needed to search them
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for responsive recordings. These assertions, if true, more plausibly support a claim of
“undue burden.” However, as with the Movants’ arguments regarding Juvenile Rule
20, the Plaintiffs have not had an opportunity to address these additional claims of
“undue burden” because they were raised for the first time in reply. Moreover, the
Movants have not provided any evidence to support the representations regarding
the processes for storing and searching juvenile court hearing recordings, such as an
affidavit or 28 U.S.C. § 1746 declaration from Judge Hyde or another juvenile court
employee. Given it is the Movants’ burden to prove that the subject subpoena
imposes 	“an 	undue 	burden,” 	the 	undersigned 	hesitates 	to 	rely 	on 	their
representations made in an unsworn brief submitted for the first time in reply. See
Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (“a sentence in an
unsworn brief is not evidence”). However, since the Movants are already being
permitted to file a second motion to quash so that both sides may more fully address
the implications of Juvenile Rule 20, see supra, the Movants will also be permitted in
that second motion to more fully argue and support their claims of “undue burden”
raised in their reply brief (Doc# 57).6
6 As an alternative to quashing, the Movants request that the Court “modify the
subpoena to allow for the production of any juvenile records to be made under seal
and confidentially to the parties upon a showing of substantial need for the records
that cannot be otherwise be met without undue hardship; and ensuring that the
Juvenile Court and Judge Hyde will be reasonably compensated pursuant to Rule
45(d)(3)(C).” (Doc# 49, PageID.496). The proposed condition that produced records
“be made under seal and confidentially to the parties upon a showing of substantial
need for the records that cannot be otherwise be met without undue hardship”
appears derived from § 12-15-133(d). As noted above, § 12-15-133(d) is inapplicable
to the Plaintiffs, the Movants have since conceded in reply that the material sought
by the subpoena is not covered by § 12-15-133(a) anyway. As for the other proposed
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II. 	Conclusion
In accordance with the foregoing analysis, the following is ORDERED:
1. 	The “Motion to Quash” filed July 1, 2025 (Doc# 49) is DENIED.
2. 	No later than AUGUST 27, 2025, the Movants may file a second motion to
quash the subject subpoena (Doc# 49-1), limited to the following two issues:
a. 	Whether Alabama Rule of Juvenile Procedure 20 renders the material
sought by the subpoena “privileged or other protected matter” for
purposes of Federal Rule of Civil Procedure 45(d)(3)(A)(iii); and
b. 	Whether 	the 	allegations 	describing 	the 	keeping 	and 	searching 	of
Conecuh County Juvenile Court hearing recordings set out in the
Movants’ reply brief (Doc# 57) support a finding that the subject
subpoena 	would 	impose 	an 	“undue 	burden” 	on 	the 	Movants 	for
purposes of Federal Rule of Civil Procedure 45(d)(3)(A)(iv). On this
issue, any allegations of fact made by the Movants must be supported
by an affidavit or 28 U.S.C. § 1746 declaration from Judge Hyde or
another suitable juvenile court employee.
3. 	The Movants’ obligation to comply with the subject subpoena is hereby
STAYED. If no motion allowed by the preceding paragraph is timely filed, the
stay shall dissolve without further court order, and the Movants shall fully
respond to the subpoena no later than SEPTEMBER 10, 2025, unless the
modification conditions, the undersigned finds insufficient justification for them in
the Movants’ opening motion, but denies them without prejudice to the Movants’
ability to show entitlement to them in the second motion to quash permitted by this
order, should it be filed.
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Plaintiffs agree to a later date. If such a motion is timely filed, the stay shall
remain in effect pending disposition of that motion.
DONE and ORDERED this the 20th day of August 2025.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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