The opinion of the court was delivered by: Hon. John E. Jones III
Special Master Jennifer Walsh Clark
Ripe for disposition is the (second) motion of non-party Deborah Maye filed on January 31, 2012 for a protective order and/or to quash a subpoena issued to her by Plaintiffs' counsel commanding her appearance at a deposition on February 8, 2012. (Doc. 264). That deposition was postponed pending resolution of the instant motion. Pursuant to an expedited briefing schedule, Counsel for Mrs. Maye submitted a brief in support of the motion on February 7, 2012 (Doc. 266), and Defendants supported the motion with a brief on that same date*fn1 (Doc. 265). Plaintiffs opposed the motion on February 17, 2012 (Doc. 276), and Mrs. Maye replied to Plaintiffs' opposition on February 24, 2012 (Doc. 278). For the reasons that follow, Mrs. Maye's motion will be granted.
By way of background, this civil action was commenced in 2009 by multiple plaintiffs who assert various claims against Defendants premised upon alleged water contamination resulting from Defendants' Marcellus Shale gas well drilling activities in or around Dimock, Pennsylvania. According to the parties, Mrs. Maye lives in Dimock ("Maye property"), and her property neighbors that of the Sautners, who are included among the plaintiffs in this action.
Plaintiffs' submissions allege that the Maye property suffered contamination as a result of Defendants' drilling activities, that the Maye property was included among a number of other properties involved in a proceeding before the Pennsylvania Department of Environmental Protection, and that Mrs. Maye had a number of interactions with defendants relating to alleged water contamination. Consequently, Plaintiffs seek (and have sought for some months) to compel Mrs. Maye's attendance at a deposition by virtue of a subpoena ad testificandum.
In the context of discovery, Plaintiffs caused one such aforementioned subpoena ad testificandum to be "served" upon Mrs. Maye on September 26, 2011. Due to lack of proper service, I granted Mrs. Maye's first motion for a protective order and/or to quash the subpoena on January 5, 2012 (docketed on January 6 as Doc. 246), without prejudice to Plaintiffs to properly serve Mrs. Maye "pursuant to applicable Federal and Local Rules of Court and the Court's scheduling order then in effect." Doc. 246, p. 12.
Plaintiffs then caused a second subpoena to be "served" upon Mrs. Maye on January 19, 2012 by having a process server deliver it to her home, where it was handed to her son along with the required witness fee, but only part of the required mileage fee (apparently Plaintiffs provided Mrs. Maye with only one way mileage rather than round trip mileage). Doc. 266, p.3. That subpoena commanded Mrs. Maye's appearance at a deposition on February 8, 2012 ("second subpoena").
At that time, the Court's scheduling order closed the fact discovery period on January 16, 2012. Mrs. Maye argues, in part, that because fact discovery had closed at the time the second subpoena was delivered to Mrs. Maye's home and prior to the scheduled deposition date, the subpoena should be quashed. However, on February 13, 2012, Defendants and Plaintiffs filed a joint motion to extend the fact discovery deadline (Doc. 270), which the Court granted on February 14, 2012. (Doc. 271). Fact discovery is now scheduled to conclude on May 31, 2012, with expert discovery also being extended as reflected in the Order. Id.
In Mrs. Maye's motion, she argues that the second subpoena should be quashed and/or a protective order issued on the following grounds: (1) the subpoena is invalid because it was not delivered to her personally, but handed to her son; (2) the subpoena was 'served' and commanded Mrs. Maye's appearance at a deposition after the close of fact discovery; (3) the subpoena was not 'served' with the requisite mileage fee; and (4) the deposition commanded by the subpoena is not "intended to lead to the discovery of admissible evidence," but rather to harass Mrs. Maye and her family. Doc. 266, p. 4.
Plaintiffs counter that discovery deadlines have been extended by the Court, mooting one of Mrs. Maye's arguments, and that, in any event, Mrs. Maye is intentionally evading proper service, frustrating as many as six attempts to personally deliver a subpoena to her at her home. Doc. 276, p.3. Finally, Plaintiffs dispute that the deposition is designed to harass Mrs. Maye, asserting that, as the Sautners' neighbor, Mrs. Maye has relevant information relating to the condition of the water on her property prior to Cabot's drilling activities, the effectiveness of a "whole house gas treatment system" installed on her property intending to mitigate water contamination, and her various interactions with representatives of Cabot Oil & Gas, among other areas of purported inquiry. Doc, 276, pp. 3, 7-8.
Federal Rule of Civil Procedure 45 governs subpoena practice in federal court, while Rule 26 governs the duty to disclose and general provisions relating to discovery. As is relevant here, Rule 45(b)(1) provides that "[a]ny person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law."
As noted above, this is Mrs. Maye's second motion for a protective order/to quash a subpoena issued by Plaintiffs' counsel commanding her attendance at a deposition. In the first such motion, Mrs. Maye argued that the subpoena was not served in accordance with applicable rules because it was not personally delivered to her, lacked payment of the mileage fee, and was "issued as part of an ongoing campaign of harassment against the Maye Family by certain Plaintiffs, the Sautner Family, and [was] not intended to lead to the discovery of admissible evidence." Doc. 186, para. 4. The January 5 Order (docketed on January 6, 2012, Doc. 246) granted Mrs. Maye's motion on the basis that Rule 45(b)(1) requires delivery to the person named in the subpoena, along with payment of the appropriate witness and mileage fees. Doc. 246. Having concluded that the subpoena was invalid due to improper service, the issue of alleged harassment was not addressed in detail in the January 5 decision.
For the very same reasons cited in the Order granting Mrs. Maye's first motion to quash or for protective order, Mrs. Maye's second motion must also be granted, without prejudice to Plaintiffs to effectuate proper service of a subpoena in accordance with applicable rules and the Court's scheduling order. However, Plaintiffs' claim that Mrs. Maye has evaded no fewer than six attempts at proper service in an effort to frustrate Plaintiffs' ability to serve the subpoena in accordance with applicable Federal Rules warrants treatment here, as does Mrs. Maye's ...