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Schlier v. Rice

December 20, 2006

JIMMY A. SCHLIER, ET AL., PLAINTIFFS,
v.
CAPT. JOHN G. RICE, ET AL. DEFENDANTS,



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Before me is Defendants' Motion to Quash and for a Protective Order. (Doc. 68.) Defendants seek to quash a subpoena served on Colonel Jeffrey B. Miller, Commissioner of the Pennsylvania State Police, seeking his presence at a deposition as well as enumerated documents. See Rule 45(c)(3)(A)(iv), Fed. R. Civ. P. Defendants also seek a protective order under Rule 26(c)(1) of the Federal Rules of Civil Procedure and Local Rule 7.1 to preclude Colonel Miller's deposition.

The motion is predicated on the contention that Count III of the Second Amended and Supplemental Complaint (Doc. 67) is without merit.*fn1 Defendants also claim the documents sought are documents regarding which Colonel Miller has no personal knowledge, are privileged, are irrelevant to Count III of the Second Amended and Supplemental Complaint, and are annoying, embarrassing, and unduly burdensome, have previously been produced, or are obtainable by other means. I will consider the stated bases of Defendants' motion.

(1) Futility of Count III

I have determined that Count III is not, at this juncture, futile. It states a claim for relief. Therefore, the disallowance of the Second Amended and Supplemental Complaint is not a basis for me to quash the subpoena or issue a protective order.

(2) Documents Sought are Privileged

Defendants make the blanket assertion that the documents sought in the subpoena are privileged, yet Defendants fail to satisfy Rule 26(b)(5) of the Federal Rules of Civil Procedure by describing the nature of the documents claimed to be privileged and disclosing them in a manner that will enable the other parties to assess the applicability of the privilege without revealing the privileged information. Fed. R. Civ. P. 26(b)(5). Fed. R. Civ. P. 45(d) has a similar requirement. See Fed. R. Civ. P. 45(d)(1) and (2).

However, the documents called for by Item 5 include correspondence and communication with counsel. On their face, they are privileged, and will not be produced.

Because the Defendants have failed to comply with the rules insofar as identifying the documents claimed to be privileged and why (without revealing the substantive privileged information), this likewise cannot support the Defendants' motion.

(3) Irrelevant to Count III

Again, the Defendants assert in blanket fashion that all documents sought by the subpoena are irrelevant to Count III of the Second Amended and Supplemental Complaint. Count III seeks to recover against Colonel Miller individually for his alleged part in the denial of towing privileges to the Plaintiffs.

The relevance of the documents called for by Items 1, 2 and 3 is unclear, and Plaintiffs have not convinced me of their relevance. Moreover, the good cause needed to trigger the discovery of information reasonably calculated to the discovery of admissible evidence has likewise not been established by Plaintiffs. Therefore, these documents need not be provided.

(4) Annoying, Embarrassing and Burdensome

There is nothing offered, other than the normal inconvenience and annoyance of having to be deposed, that qualifies as burdensome under the Federal Rules of Civil Procedure. Therefore, ...


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