The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge
Presently before the Court is Defendant Governor Mifflin School District's Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 45 (Doc. No. 15). Plaintiff Andrea Coleman-Hill has opposed this motion (Doc. No. 17). The Court held oral argument on October 8, 2010.*fn1
Defendant's Motion for Sanctions arises out of the conduct of Plaintiff's counsel, Robin J. Gray, Esq. As will be detailed herein, in her zeal to build her client's case, Ms. Gray circumvented the Rules of Civil Procedure, and resorted to "self-help" in order to resolve a perceived deficiency in Defendant's discovery responses. Perhaps most disturbingly, Ms. Gray did so because she presumed that the Court was without authority and/or inclination to enforce the Rules of Civil Procedure to rectify perceived deficiencies in Defendant's discovery response.
As more fully set forth herein, Defendant's Motion for Sanctions is GRANTED IN PART and DENIED IN PART.
The underlying action involves alleged racial discrimination against Plaintiff Andrea Coleman-Hill ("Plaintiff") by her employer, Defendant Governor Mifflin School District ("the District"). Plaintiff alleges that the District's superintendent, Dr. Mary T. Weiss, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., by mistreating Plaintiff on account of her race.
In the course of discovery, Ms. Gray served Requests for Production of Documents on the District's counsel, Jonathan P. Riba, Esq., and conducted depositions. The Document Requests directed to Defendant were pursued in an unorthodox fashion. At least some of the Document Requests were set forth in a letter dated July 21, 2010. In that letter, Ms. Gray requested "[a]ny and all information, correspondence, emails, phone messages from Dr. Weiss to individual members of the Board regarding my client form [sic] the start of her employ with the school District until the present." (Pl.'s Am. Answer to Def.'s Mot. Sanctions Ex. D, at 2). Mr. Riba timely responded. (Def.'s Mot. Sanctions Ex. B, at 8). It is this response that Plaintiff later, and unilaterally, determined to be deficient.
Thereafter, on August 16, 2010, Ms. Gray deposed Ms. Rachel Dombrowski, who served as the District's Director of Technology. Because of her position, Ms. Dombrowski had access to all documents that are stored on the District's computer systems, even archived documents. During the deposition, it became evident that Ms. Dombrowski is no fan of Dr. Weiss. Ms. Dombrowski testified to her negative opinion of Dr. Weiss, calling her "racist." (Def.'s Mot. ¶ 3).
At some point in time after Ms. Dombrowski's deposition, Ms. Gray determined that "[t]he information given to Plaintiff by Defendant [in response to the Request for Production of Documents] did not add up." (Pl's Br. in Resp. to Def.'s Mot. Sanctions 8). Thus, on August 24, 2010, Ms. Gray served a subpoena duces tecum on Ms. Dombrowski, requesting "any and all emails from the email archives of Dr. Mary T. Weiss' Governor Mifflin email box regarding emails to and from the school board, the music program issue and any other emails regarding Andrea Coleman-Hill." (Def.'s Mot. Ex. A, at 4).
The subpoena served was improper and/or deficient, in multiple respects. First, the subpoena was directed to an employee of the District, and sought production of the District's documents. The Federal Rules of Civil Procedure direct that an opposing party's documents should be obtained through a properly served Request for Production of Documents, served on counsel of record for the party.
Second, although the subpoena ostensibly was served to address the presumed withholding of documents that Plaintiff "knew" to exist, it went further than the Request for Production of Documents. The Request sought communications between the Board and Dr. Weiss relating to Ms. Coleman-Hill. The Dombrowski subpoena goes further, and seeks email communications "regarding emails to and from the school board [and] the music program issue." (Def.'s Mot. Ex. A, at 4).
Finally, Ms. Gray failed to properly fill out the subpoena by neglecting to specify a date and time for the production of the requested documents, and merely wrote "See Attached" on the form. (Def.'s Mot. Ex. A, at 2). In a letter accompanying the subpoena, Ms. Gray asked for production "at [Ms. Dombrowski's] earliest convenience." (Def.'s Mot. Ex. A, at 1). According to Ms. Gray, she served the subpoena on Ms. Dombrowski and on Mr. Riba, simultaneously, via first class mail. Thus, Mr. Riba did not get prior notice of the subpoena, and thus had no opportunity to lodge objections. By the time Mr. Riba objected to the subpoena on August 27, 2010 (Def.'s Mot. Ex. D), Ms. Dombrowski had already provided voluminous documents to Ms. Gray, including at least three attorney-client privileged documents.*fn2
On September 8, 2010, the District filed the instant motion for sanctions for Ms. Gray's inappropriate use of a subpoena. Defendant seeks sanctions as follows: exclusion of the documents provided by Ms. Dombrowski directly to Ms. Gray; admonishment of Ms. Gray to comply with the Federal Rules of Civil Procedure; an affidavit by Ms. Gray that all documents provided by Ms. Dombrowski have been furnished to defense counsel; and payment of defense counsel fees associated with the instant motion.
At oral argument, Ms. Gray conceded that a motion to compel was appropriate for addressing the District's perceived failure to comply with her Requests for Production of Documents. Nevertheless, Ms. Gray did not file a motion to compel, asserting that she presumed that the District would continue to be non-compliant with its discovery obligations. Most disturbingly, Ms. Gray stated that she presumed that this Court was without the power and/or the inclination to compel the District's compliance.*fn3
A. Proper Use of Subpoena Power
Under Federal Rule of Civil Procedure 45, a party may obtain documents from a non-party through a subpoena duces tecum. In addition to other information, the subpoena must set forth "a specified time and place" for the production of documents. Fed. R. Civ. P. 45(a)(1)(A)(iii). Further, "[i]f the subpoena commands the production of documents, electronically stored information, or tangible ...