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KITZMILLER v. DOVER AREA SCHOOL DISTRICT

August 2, 2005.

TAMMY KITZMILLER, et al. Plaintiffs
v.
DOVER AREA SCHOOL DISTRICT and DOVER AREA SCHOOL DISTRICT BOARD OF DIRECTORS, Defendants.



The opinion of the court was delivered by: JOHN E. JONES, District Judge

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Quash Subpoena or For Protective Order ("Motion to Quash") (doc. 80) filed by the Non-Party Subpoenaed Witnesses, Joseph Maldonado ("Maldonado") and Heidi Bernhard-Bubb ("Bernhard-Bubb"), on June 16, 2005 and a Motion to Compel Non-Parties to Comply with Subpoenas ("Motion to Compel") (doc. 85) filed by the Defendants on June 15, 2005 in this matter.

  For the reasons that follow, both Motions will be granted in part and denied in part as detailed herein.

  FACTUAL AND PROCEDURAL BACKGROUND: As we explained in our recent July 27, 2005 Order (doc. 111), which disposed of a Motion to Intervene, the procedural chronology of this case has been set forth in several prior orders and is well known to the parties. The following recitation of that history is therefore sufficient for purposes of this Court's review of the pending Motions.

  On December 14, 2004, Plaintiffs filed a complaint against Defendants, Dover Area School District and Dover Area School District Board of Directors (collectively "Defendants" or "DASD"), in this Court asserting that Defendants' October 18, 2004 Resolution and November 19, 2004 press release (collectively, "the policy") facially and as applied violate the Establishment Clause of the First Amendment to the United States Constitution and that Defendants' policy violates Art. 1, § 3 and Art. III, §§ 15 & 29 of the Pennsylvania Constitution facially and as applied.

  Maldonado, an independent contractor for a newspaper known as the York Daily Record, and Bernhard-Bubb, an independent contractor for a newspaper known as The York Dispatch (collectively "the Reporters"), cover Dover Area School Board meetings and have written articles about the Dover Area School District and this case in particular. The Reporters have been served with subpoenas by defense counsel to appear and testify at a deposition that was previously scheduled for June 15, 2005 in Dover, Pennsylvania.

  The Reporters became involved with this litigation when Plaintiffs served them with subpoenas and noticed their depositions for June 8, 2005. In response to the subpoenas, counsel for the Reporters filed a Motion to Quash the Subpoenas or For Protective Order. (See Rec. Doc. 80). The scheduled depositions were stayed pending the Court's consideration of the Motion. Subsequently, on or about May 24, 2005, Defendants served subpoenas for production of documents on the Reporters and York County Record, and The York Dispatch.

  On or about June 3, 2005, the parties received a letter from the Reporters' counsel enclosing affidavits from Maldonado, Bernhard-Bubb, York Daily Record, and The York Dispatch, attesting to the accuracy of the published newspaper articles. The affidavits were proposed in lieu of testimony at deposition or at trial. A week later, on June 10, 2005, the Court held a telephonic conference with the parties and counsel for the Reporters. During said conference, Plaintiffs indicated that they did not intend to seek enforcement of their previously served subpoenas, and that they would accept the aforementioned affidavits in lieu of deposition testimony of Maldonado and Bernhard-Bubb, subject to an agreed upon amendment to the Maldonado affidavit.*fn1 Relatedly, Plaintiffs reserved the right to call the Reporters as witnesses at trial and the Reporters have reserved the right to raise objections to their appearance as witnesses at that time. Also during the June 10, 2005 telephonic conference, the Court indicated that in light of these developments, Defendants would need to pursue the interests they had in obtaining testimony and documents from the Reporters, as it became clear that defense counsel were not amenable to using the affidavits in lieu of deposition testimony.

  Subsequently, on June 10, 2005, Defendants served the Reporters with subpoenas to appear for depositions scheduled for June 15, 2005. Three days later, counsel for the Reporters informed defense counsel that his clients would not appear and testify at their June 15, 2005 depositions and that he would be filing a Motion to Quash the subpoenas. Defendants agreed to postpone and stay the Reporters' depositions pending a ruling by the Court on the merits of the Motion to Quash and the Motion to Compel.

  The Motion to Quash was filed on June 16, 2005 and the Motion to Compel was filed on June 15, 2005. The Motions have been briefed by the parties. On July 14, 2005, the Court held a hearing on the pending Motions. The Motions are therefore ripe for disposition.

  STANDARD OF REVIEW:

  The Federal Rules that underlie a Motion to Quash or For Protective Order and a Motion to Compel are Federal Rules of Civil Procedure ("Fed.R.Civ.P.") 26(c), 37, and 45, which we will discuss below. First, Fed.R.Civ.P. 26(c) states, in pertinent part, the following:

 
Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires ...

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