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Black v. Youngue

United States District Court, W.D. Pennsylvania

December 19, 2014

DEBRA BLACK; EARL BLACK, Administrators of the Estate of Derek E. Black Plaintiffs,


CYNTHIA REED EDDY, Magistrate Judge.

Before the Court is Plaintiffs' "Motion for Sanctions Related to documents obtained from Defendants Subpoena to T-Mobile." (ECF Nos. 37). For the reasons explained below, said motion will be granted.


On July 2, 2014, the Court entered a Case Management Order which, inter alia , established that discovery was set to close on October 31, 2014. (ECF No. 24). At a Post-Discovery Status Conference on November 17, 2014, the Court ordered that motions for summary judgment be submitted by December 23, 2014. (ECF No. 36); see also Text-Only Order from 11/17/2014.

On December 10, 2014 (13 days before motions for summary judgment were due), Plaintiffs filed the present motion seeking to exclude Defendants from using five months of phone records obtained by Defendants from T-Mobile through a subpoena. Plaintiffs assert that the information was obtained in violation of Federal Rule of Civil Procedure 45 because they were not served with a copy of the subpoena prior to Defendants sending it to T-Mobile. According to Plaintiffs, they did not learn of the subpoena until Defendants forwarded copies of the responsive documents to them on December 10, 2014. Further, they assert that the subpoena was issued after the close of discovery, and that the subpoena was "simply calculated to harass and intimidate the Plaintiffs." Id . Attached to the Plaintiffs' motion is an email from Defendants' counsel Stanley A. Winikoff, dated December 10, 2014, stating: "enclosed you will find information received from T-Mobile this morning in response to a subpoena." (ECF No. 38-1). Plaintiffs' counsel replied requesting a copy of the subpoena, stating: "We did not receive a copy of the subpoena in advance." Id . Mr. Winikoff replied that he was unable to do so because "[t]he (Adobe) file is damaged and could not be repaired." Id.

Plaintiffs ask the Court to sanction Defendants by precluding the use of the documents for any purpose including a motion for summary judgment or at trial, and that defense counsel be ordered to destroy any documents obtained from T-Mobile.

Defendants respond that the subpoena was prepared on Monday, October 27, 2014. (ECF No. 39). A copy of the subpoena was provided to the Court. (ECF No. 39-3). The face of the subpoena submitted by Defendants actually requires production of the documents on October 27, 2014, but was apparently signed by Mr. Winikoff at a subsequent date, November 20, 2014. Id . No return of service was filed with the Court. He also states that a copy of the subpoena was mailed to counsel for plaintiffs with "a short transmittal note." (ECF No. 39). The "transmittal note states: "In the deposition of Earl Black taken last week, he mentioned his conversation with Derek black on April 29, 2012 in which Derek did not voice any complaints. I have sent a subpoena to T-Mobile for the cell phone records. A copy is enclosed." (ECF No. 39-4).[1]

Plaintiffs' counsel replies he never received the transmittal note and subpoena. The Affidavit of Crystal Schwartz was attached attesting to this assertion. (ECF Nos. 42 and 42-1). Plaintiffs argue that Mr. Winikoff's own submission, if believed, purports to evince that the Plaintiffs were sent a copy of the subpoena on the date that the subpoena was purportedly served on T-Mobile, thus Plaintiffs would not have had an opportunity to object to the subpoena. Moreover, Plaintiffs note that the date next to Mr. Winikoff's signature, November 20, 2014 demonstrates that the subpoena was served well after the close of discovery. (ECF No. 42). Plaintiffs also correctly observed that the Court held a post-discovery conference on November 17, 2014 wherein Mr. Winikoff made no mention of having served a subpoena on T-Mobile for phone records. Id

On November 17, 2014, Mr. Winikoff filed a Sur-Reply Brief, (ECF No. 45), [2] in which he failed to argue or even attempt to dispute that he sent a copy of the subpoena to Plaintiffs before sending it to T-Mobile. Additionally, he provided self-damaging documents that unquestionably establish that he was engaging in discovery past the deadline.


A. Obeying Court Scheduling Orders - Rules 16(f) & 37(b)(2)

Rule 16(f) provides that "on motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney... fails to obey a scheduling or other pretrial order." Fed.R.Civ.P. 16(f)(1)(C). In turn, Rule 37(b)(2)(A) provides, in pertinent part, that the court may enter an order:

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing ...

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