Case: 45CH1:17-cv-00051 Document #: 15 Filed: 04/24/2017 Page 1 of 5

IN THE CHANCERY COURT OF MADISON COUNTY, MISSISSIPPI

ESTATE OF MARK STEVEN MAYFIELD,

ROBIN MAYFIELD, OWEN MAYFIELD, and
WILLIAM MAYFIELD PLAINTIFFS

V. NO. 2017-51-B

RICHARD WILBOURN, III DEFENDANT

MOTION TO SEAL THE COURT RECORD

COMES NOW, Defendant, Richard Wilbourn, III (Defendant), by and through

counsel, and respectfully moves the Court for an Order sealing the record in this action nunc pro

tunc. Because of the sensitive nature of the matters raised in Plaintiffs Complaint for

Discovery, Defendant seeks to protect both his personal information and the subject matter of

the Plaintiffs complaint from disclosure outside of the parties, their counsel, and the Court. In

further support of this Motion, Defendant states the following:

1. This action, styled as a Complaint for Discovery, was filed by Plaintiffs against

Wilbourn on January 18, 2017, the same day that the Hinds County Chancery Court quashed two

subpoenas duces tecum that demanded the identical discovery from Wilbourn via another

Complaint for Discovery still pending in that court. The court file in the Hinds County action

is under seal, because of, according to the Plaintiffs, the sensitive nature of the subject matter

and for the protection of the privacy of the individuals discussed therein. Plaintiffs Response

in Opposition to Motion to Dismiss and Objection to Subpoena Duces Tecum [Doc. 13], at 1,

n.1.

2. On March 10, 2017, the same day that Mr. Wilbourn was first served with a copy

of the complaint, Plaintiffs served Wilbourn with a subpoena duces tecum issued on March 9,
 Case: 45CH1:17-cv-00051 Document #: 15 Filed: 04/24/2017 Page 2 of 5

2017 [Doc. 6]. The requests in the March 9 subpoena are identical to those demanded by the

earlier subpoena served on Wilbourn in the Hinds County action and quashed by the Hinds

County Chancery Court on January 18, 2017. The March 9 subpoena commanded Mr. Wilbourn

both to appear for a deposition on April 6, 2017, and produce within fourteen days of service

several broad categories of documents related to Wilbourns law practice, phone records, and

other sensitive matters, as characterized by Plaintiffs themselves.

3. On March 23, 2017, Defendant filed a motion to dismiss Plaintiffs Madison

Complaint for lack of jurisdiction and failure to state any claim upon which relief can be granted,

pursuant to Rules 12(b)(1), (2), and (6) of the Mississippi Rules of Civil Procedure. [Docs. 10,

11].1 In the same document, Mr. Wilbourn also asserted objections to the subpoena on the

grounds that the subpoena requests are vague, overbroad, and unduly burdensome. Id. On April

5, 2017, Plaintiffs filed a Response in Opposition to Motion to Dismiss and Objection to

Subpoena Duces Tecum [Doc. 13] (hereinafter, Plaintiffs Response). Mr. Wilbourn intends to

file a separate Reply in support of his Motion to Dismiss and Objection. Defendants Motion to

Dismiss and Objection to Subpoena Duces Tecum [Docs. 10, 11] are thus pending before the

Court.

4. As discussed in his motion to dismiss, Defendant contends that this action is an

improper use of the ancient bill of discovery and should be dismissed. Whether this Court

grants Defendants motion to dismiss or not, Mr. Wilbourn respectfully requests that this Court

seal the court file nunc pro tunc.

5. This action is a matter involving private litigants, unseemly allegations, and

purported investigative discovery of confidential and business sensitive information,

1
Though filed twice in the Courts docket, once designated as the motion to dismiss and once as Defendants
objection to the subpoena duces tecum, Docket Nos. 10 and 11 are the same combined motion and objection.

2
 Case: 45CH1:17-cv-00051 Document #: 15 Filed: 04/24/2017 Page 3 of 5

purportedly sought by Plaintiffs to assess whether or not they have any viable claims. The

Plaintiffs Complaint for Discovery alleges that Mr. Wilbourn may have engaged in negligent

and/or tortious actions that harmed Mr. Mayfield and his business, embarrassed and humiliated

him, cause severe emotional distress, and caused his death. Complaint [Doc. 3], at 3 ( 14)

(emphasis added). From that conjecture, the complaint goes on to allege other repugnant and

prejudicial things against Mr. Wilbourn, but no actual dispute or claims. See id. at 3 ( 15-16).

6. When deciding whether or not to seal a case, courts must balance the publics

right to access with private interests favoring confidentiality. . . . [P]rivate interests favoring the

granting of confidentiality include cases with private litigants concerning matters that are not of

public concern . . . . Ewing v. Neese, 199 So. 3d 681, 684 (Miss. 2016); see Miss. Electronic

Courts Admin. P. Sections 5, 9. If a case involves private litigants, and concerns matters of

little legitimate public interest, that should be a factor weighing in favor of granting or

maintaining an order of confidentiality. Estate of Cole v. Ferrell, 163 So. 3d 921, 927 (Miss.

2012) (quoting State Farm Fire and Cas. Co. v. Hood, 2010 WL 3522445, *2 (S.D. Miss. Sept.

2, 2010)). Here, given the sensitive matters alleged in Plaintiffs complaint, the interests

favoring confidentiality outweigh the interest in open access of the Courts file in this action.

7. Plaintiffs should have no objection to sealing this action because they requested

that the Hinds County action proceed under seal; Plaintiffs request to seal that action was

granted September 6, 2016, before they ever served Mr. Wilbourn with the subpoena in that case.

To the contrary, Plaintiffs would be estopped from taking an inconsistent position in this Court

from their position that the Hinds County action should proceed under seal. While Mr. Wilbourn

has not been afforded the opportunity to access the Hinds County complaint, the court file, or the

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 Case: 45CH1:17-cv-00051 Document #: 15 Filed: 04/24/2017 Page 4 of 5

discovery adduced in that action,2 the Plaintiffs have represented that the underlying basis for

that action and the present Complaint for Discovery [Doc. 3] are the same: the tragic suicide of

Mr. Mark Mayfield on June 27, 2014. Plaintiffs Response [Doc. 13], at 1. If the Plaintiffs

(successfully) took the position that the Hinds County action should proceed under seal, similar

relief should be warranted here. Indeed, it appears that the Plaintiffs have not already requested

that this action be sealed as punishment for Wilbourns successful objections to both the

Complaint for Discovery and subpoenas filed thereunder in Hinds County Chancery Court:

[A]ny embarrassment to Mr. Wilbourn by being named a party to this action and
having court filings available to the public is of his own doing. The Hinds County
action, as previously stated, was (and still is) maintained under seal and in a
jurisdiction other than the one in which he resides. Had he wished to keep his
participation shielded from potential public knowledge, he could have agreed to
sit for deposition in that action, as other individuals did. By contesting that
subpoena, Wilbourn himself brought about his being named in this action.

Plaintiffs Response [Doc. 13], at 12-13.

8. Respectfully, in the light of the confidential and sensitive nature of the subject

matter of this action, it is necessary and proper to seal the court file as well as protect subsequent

filings, discovery, and deposition testimony from disclosure outside the parties, their counsel,

and the Court.

9. Given the straightforward nature of this Motion, Defendant requests that he be

excused from submitting a separate supporting memorandum.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the

Court enter an Order sealing this court record nunc pro tunc and protecting subsequent filings,

2
Attorney Robert Gibbs, counsel for Mr. Wilbourn in both this action and in the Hinds County action, was recently
served by third-party counsel with a set of responses to a subpoena Plaintiffs served on St. Catherines Village, Inc.
in 2015. While those responses are presumably covered by the Hinds County Chancery Courts order sealing that
action, preventing counsel from attaching those responses here, the responses actually suggest a lack of evidentiary
support for the Plaintiffs allegations of Mr. Wilbourns activities that form the basis for their requested discovery in
the Madison action.

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 Case: 45CH1:17-cv-00051 Document #: 15 Filed: 04/24/2017 Page 5 of 5

discovery, deposition testimony, and other proceedings in this action from disclosure outside of

the parties to the action, their counsel, the Court and the Clerk. Defendant requests such other

relief that the Court deems proper in the premises.

RESPECTFULLY SUBMITTED, this the 24th day of April, 2017.

RICHARD WILBOURN, III

BY: s/ Cory T. Wilson

CORY T. WILSON
OF COUNSEL:

ROBERT L. GIBBS, ESQ. (MSB #4816)

GIBBS TRAVIS PLLC
1400 Meadowbrook Road, Suite 100
Jackson, MS 39211
Phone: 601-487-2631
Email: rgibbs@gibbstravis.com

CORY T. WILSON, ESQ. (MSB #10168)

JERNIGAN COPELAND & ANDERSON, PLLC
Post Office Box 2598
Ridgeland, Mississippi 39158
Telephone: (601) 427-0048
Fax: (601) 427-0051
Email: cwilson@jcalawfirm.com

CERTIFICATE OF SERVICE

I, the undersigned, attorney for Richard Wilbourn, III, do hereby certify that the above

and foregoing was electronically filed and electronic notice was given to the following:

Dorsey R. Carson, Jr.

Carson Law Group PLLC
125 S. Congress Street, Suite 1336
Capital Towers
Jackson, MS 39201
Email: dcarson@thecarsonlawgroup.com

This the 24th day of April, 2017.

s/ Cory T. Wilson
CORY T. WILSON

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 Case: 45CH1:17-cv-00051 Document #: 10 Filed: 03/23/2017 Page 1 of 4

IN THE CHANCERY COURT OF MADISON COUNTY, MISSISSIPPI

ESTATE OF MARK STEVEN MAYFIELD,

ROBIN MAYFIELD, OWEN MAYFIELD, and
WILLIAM MAYFIELD PLAINTIFFS

V. NO. 2017-51-B

RICHARD WILBOURN, III DEFENDANT

MOTION TO DISMISS PLAINTIFFS COMPLAINT FOR DISCOVERY

AND OBJECTION TO SUBPOENA DUCES TECUM

COMES NOW, Defendant Richard Wilbourn, III, pursuant to Rules 12(b)(1), (2), and

(6), Rule 26(d), and Rule 45(d) of the Mississippi Rules of Civil Procedure, and files this

combined Motion to Dismiss Plaintiffs Complaint for Discovery [Doc. 3], and Objection to

the Subpoena Duces Tecum served on him on March 10, 2017 [Doc. 6]. In support of this

motion, Defendant would respectfully show as follows:

1. This action, billed as a Complaint for Discovery, was filed by Plaintiffs against

Wilbourn on January 18, 2017, the same day that the Hinds County Chancery Court quashed two

subpoenas duces tecum that demanded the identical discovery from Wilbourn via another

Complaint for Discovery still pending in that court.

2. The Hinds County complaint named no real parties in interest, and the Plaintiffs

conceded that their suit was based on no justiciable claims. Despite Plaintiffs superficial effort

to fix their improper discovery demands by simply naming Wilbourn as a defendant in this

action and attempting to obtain a better result in a different forum, Plaintiffs again fail to assert

any justiciable claims.

3. Plaintiffs also fail to make the required showing necessary to proceed with a

complaint for discovery under Mississippi law.

 Case: 45CH1:17-cv-00051 Document #: 10 Filed: 03/23/2017 Page 2 of 4

4. Accordingly, this Court has no jurisdiction over either the subject matter of this

action or the parties, and Plaintiffs repackaged Complaint for Discovery fails to state any

claim upon which relief can be granted and should be dismissed pursuant to Rules 12(b)(1), (2),

and (6) of the Mississippi Rules of Civil Procedure.

5. Further, on March 10, 2017, the same day that Defendant was first served with a

copy of the complaint, Plaintiffs served Wilbourn with a subpoena duces tecum issued on March

9, 2017 [Doc. 6] (the Madison Subpoena). The Madison Subpoena is identical to the subpoena

served on Wilbourn in the Hinds County action and quashed by the Hinds County Chancery

Court on January 18, 2017. The Madison Subpoena commands Mr. Wilbourn both to appear for

a deposition on April 6, 2017, and produce within fourteen days several broad categories of

documents related to Wilbourns law practice, phone records, and other sensitive matters, well

before the time afforded Defendant to file his responsive pleading to Plaintiffs complaint.

6. Even assuming Plaintiffs spurious Complaint for Discovery could justify using

the judicial process to issue and serve a subpoena on Defendant, Mr. Wilbourn objects to the

Madison Subpoena pursuant to Rules 26(d) and 45(d) of the Mississippi Rules of Civil

Procedure.

7. The Madison Subpoena is vague, overbroad, and unduly burdensome. It offers no

delineation of the subjects to be covered during Mr. Wilbourns deposition; the only specific

categories of discovery demanded are disclosed in the document requests. Those requests

demonstrate that the discovery commanded by the Subpoena is overbroad, requires disclosure

of privileged or other protected matter, Miss. R. Civ. P. 45(d)(1)(A)(ii), and subjects [the

witness] to undo burden or expense, Miss. R. Civ. P. 45(d)(1)(A)(iv).

8. Specifically, the Madison Subpoena seeks to require Mr. Wilbourn to produce

over three years of his private communications with or about Mark Mayfield including e-

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 Case: 45CH1:17-cv-00051 Document #: 10 Filed: 03/23/2017 Page 3 of 4

mails, phone records, call logs, monthly bills, video and audio recordings, photographs, and

other data compilations, as well as three years of cell phone records and data. Subpoena [Doc.

6], at 2-3 (requests 1, 2, & 3). The documents requested include e-mails, text messages and

notes from meetings or conversations Mr. Wilbourn may have had with a series of people

including law enforcement officers, prosecutors, and individuals implicated in criminal

investigations and legal proceedings raising questions of confidentiality, attorney-client

privilege, and other protected matters. Id. at 3 (request 2). Finally, the Subpoena requests

certain financial records. Id. at 3 (request 4).

9. Plaintiffs make no showing for seeking such wide-ranging confidential, protected,

and sensitive documents, and the requests are thus vague, overly broad, and unduly burdensome.

Respectfully, the Court should not indulge this improper use of the ancient bill of discovery

and should at the least quash the Madison Subpoena in order to protect Mr. Wilbourn from

annoyance, embarrassment, oppression, [and] undue burden [and] expense. Miss. R. Civ. P.

45(d)(2)(B); Miss. R. Civ. P. 26(d).

WHEREFORE, PREMISES CONSIDERED, Mr. Wilbourn respectfully requests that

this Court dismiss this action for lack of jurisdiction and because Plaintiffs fail to state any claim

upon which relief can be granted. In addition and in the alternative, Defendant requests that the

Court receive his Objection to the Madison Subpoena, quash the subpoena, and enter a protective

order (1) protecting from discovery any testimony or documents that are not relevant or

discoverable, and that are privileged or otherwise protected matters; and (2) protecting against

disclosure of any eventual deposition testimony and documents produced to anyone besides the

Court, parties and counsel in this action.

Mr. Wilbourn also requests that this Court award his costs, including his attorneys fees

expended as a result of Plaintiffs groundless attempt to invoke not only one, but two courts

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 Case: 45CH1:17-cv-00051 Document #: 10 Filed: 03/23/2017 Page 4 of 4

jurisdiction over their improper complaints for discovery and the subpoenas issued under the

guise of those complaints.

Mr. Wilbourn prays for any other relief the Court deems proper in the premises.

RESPECTFULLY SUBMITTED, this the 23rd day of March, 2017.

RICHARD WILBOURN, III

BY: s/ Cory T. Wilson

CORY T. WILSON

OF COUNSEL:

ROBERT L. GIBBS, ESQ. (MSB #4816)

GIBBS TRAVIS PLLC
1400 Meadowbrook Road, Suite 100
Jackson, MS 39211
Phone: 601-487-2631
Email: rgibbs@gibbstravis.com

CORY T. WILSON, ESQ. (MSB #10168)

JERNIGAN COPELAND & ANDERSON, PLLC
Post Office Box 2598
Ridgeland, Mississippi 39158
Telephone: (601) 427-0048
Fax: (601) 427-0051
Email: cwilson@jcalawfirm.com

CERTIFICATE OF SERVICE

I, the undersigned, attorney for Richard Wilbourn, III, do hereby certify that the above

and foregoing was electronically filed and electronic notice was given to the following:

Dorsey R. Carson, Jr.

Carson Law Group PLLC
125 S. Congress Street, Suite 1336
Capital Towers
Jackson, MS 39201
Email: dcarson@thecarsonlawgroup.com

This the 23rd day of March, 2017.

s/ Cory T. Wilson
CORY T. WILSON

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