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R.B. v. Hollibaugh

United States District Court, M.D. Pennsylvania

March 31, 2017

R.B., Plaintiff,
v.
LISA HOLLIBAUGH, et al., Defendants.

          KANE, J.

          MEMORANDUM

          KAROLINE MEHALCHICK United States Magistrate Judge

         This is a civil rights action in which Plaintiff R.B., appearing through counsel, asserts claims under 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and state law against the Pennsylvania Department of Corrections (“DOC”), several DOC employees at SCI-Smithfield and SCI-Waymart (collectively, the “DOC Defendants”), and independent medical care providers at SCI-Smithfield. (Doc. 1). Now pending before the Court are three motions to compel discovery against nonparties, filed by Plaintiff in December of 2016. (Doc. 37; Doc. 39; Doc. 41). Plaintiff additionally requests contempt sanctions in the form of costs and fees associated with the filing of these motions. In the first motion, Plaintiff seeks the following materials from SCI-Waymart Superintendent Jack Sommers: the duty rosters from the time of his alleged assault in September of 2014 at the hands of several DOC Defendants; the incident report from that assault; and the DOC-issued photo identification of Corrections Officer Toy. (Doc. 37, at 2). In the second motion, Plaintiff seeks the DOC's records of his medical and mental health from the records custodian at SCI-Mahanoy. (Doc. 39, at 1; Doc. 39-1, at 1). In the final motion, Plaintiff requests SCI-Smithfield Superintendent Eric Tice to produce the duty rosters from the time of his alleged sexual assault in June of 2014 and the reports produced as a result of the DOC's investigation into the sexual assault, including any surveillance video.[1] (Doc. 41, at 1; Doc. 41-1, at 1). Counsel for the DOC assumed responsibility for the handling of the subpoenas and corresponding motions to compel because all three subpoenas were served on DOC employees, and responded to the motions by asserting several reasons why the DOC employees should not be ordered to produce the materials requested by Plaintiff. (Doc. 43; Doc. 45; Doc. 46).The motions to compel have been fully briefed and are now ripe for disposition. For the reasons that follow, the Court will grant the motions in part and deny them in part.

         I. Standard of review

          The general scope of discovery is outlined by Federal Rule of Civil Procedure 26(b)(1):

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         Rule 26 establishes a liberal discovery policy. Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 300 F.R.D. 225, 226-27 (M.D. Pa. 2014); Great West Life Assurance Co. v. Levithan, 152 F.R.D. 494, 497 (E.D. Pa. 1994). Issues relating to the scope of discovery permitted under Rule 26 rest in the sound discretion of the court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus, a court's decisions regarding the conduct of discovery, and whether to compel disclosure of certain information, will be disturbed only upon a showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). “Although the scope of relevance in discovery is far broader than that allowed for evidentiary purposes, it is not without its limits.” Banks v. Beard, 2013 WL 3773837, at *2 (M.D. Pa. July 17, 2013) (citing Stabilus v. Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 265 (E.D. Pa. 1992)). “Discovery requests may be curtailed to protect a person from whom discovery is sought from ‘annoyance, embarrassment, oppression, or undue burden or expense.'” In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 238 (E.D. Pa. 2014) (quoting Fed.R.Civ.P. 26(c)(1)).

         Here, Plaintiff submits motions to compel discovery materials from nonparties pursuant to Rule 45. Rule 45 sets forth the procedure that a party must follow to request the production of “designated documents, electronically stored information, or tangible things in [the] possession, custody, or control” of a nonparty.[2] Fed.R.Civ.P. 45(a)(1)(A)(iii). “After being served with a subpoena duces tecum, a nonparty may object to producing any or all of the requested information by serving a written objection on the party or person designated in the subpoena . . . within fourteen days after the subpoena is served . . . .”[3] In re Domestic Drywall Antitrust Litig., 300 F.R.D. at 238 (citing Fed.R.Civ.P. 45(d)(2)(B)). As an alternative to serving objections on the subpoenaing party, a nonparty may file a timely motion for a court to quash the subpoena pursuant to Rule 45(d)(3).

         “A non-party's failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objection . . . has been waived.” Wade v. City of Fruitland, 287 F.R.D. 638, 641 (D. Idaho 2013) (citing In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir. 1998); Wang v. Hsu, 919 F.2d 130, 131 (10th Cir. 1990)); see also Celanese Corp. v. E. I. duPont de Nemours & Co., 58 F.R.D. 606, 609 (D. Del. 1973) (“[A] party who fails to abide by the procedural rules governing litigation does so at his own risk and peril.”). However, a court may consider untimely objections in unusual circumstances or upon a showing of good cause. See Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996) (“In unusual circumstances and for good cause, however, the failure to act timely will not bar consideration of objections.”). Examples of situations where courts have found that unusual circumstances warrant consideration of untimely objections include “where: (1) the subpoena is overbroad on its face and exceeds the bounds of fair discovery; (2) the subpoenaed witness is a non-party acting in good faith; and (3) counsel for the witness and counsel for the subpoenaing party were in contact concerning the witness' compliance prior to the time the witness challenged the legal basis for the subpoena.” Am. Elec. Power Co. v. United States, 191 F.R.D. 132, 136-37 (S.D. Ohio 1999).

         II. Discussion

         A. Waiver of objections

         Here, none of the subpoenaed DOC officials filed a timely motion to quash. Furthermore, Plaintiff alleges that the subpoenaed DOC officials each waived their right to object to the subpoenas by failing to serve timely written objections. (Doc. 38, at 3; Doc. 40, at 3-4; Doc. 42, at 3-4). Indeed, the first subpoena was served on Superintendent Sommers on October 11, 2016, but counsel for the DOC did not object to the subpoena within fourteen days or produce the requested materials within the thirty-day period specified in the subpoena. (Doc. 37-1, at 2; Doc. 38, at 3). Likewise, the second and third subpoenas were both served on November 21, 2016, but again counsel for the DOC did not make any no objections or produce any records within the respective allotted timeframes. (Doc. 39-1, at 2; Doc. 40, at 3-4; Doc. 41-1, at 2; Doc. 42, at 3-4). The Court therefore finds that the subpoenaed DOC officials failed to comply with Rule 45's procedural requirements.

         Despite their failure to comply with Rule 45's time requirements, the Court finds that unusual circumstances warrant excusing the subpoenaed DOC officials' untimeliness. Namely, counsel for the DOC exchanged frequent correspondence with Plaintiff's counsel from shortly after the time the first subpoena was served in an effort to negotiate an agreement as to the extent of the DOC officials' compliance with the document requests. (Doc. 37-1, at 5-18; Doc. 40-1, at 5-54); see alsoAm. Elec. Power Co., 191 F.R.D. at 136-37 (noting that courts may find unusual circumstances exist where counsel for the witness contacted counsel for the subpoenaing party to discuss the witness' compliance without formally submitting objections to the subpoena). For example, counsel for the DOC provided Plaintiff's counsel with photographs of Corrections Officers Strasburger and Toy believing that they might be a sufficient substitute for the documents requested in the first subpoena. (Doc. 37-1, at 8-18; Doc. 43, at 3-4). Additionally, the DOC officials aver that they are willing to produce the materials requested in the second and third subpoenas, but they have been unable to agree with Plaintiff's counsel on a reasonable confidentiality stipulation. (Doc. 45, at 3-4; Doc. 46, at 3). In light of these communications between counsel for the DOC and Plaintiff's counsel, the Court finds that the DOC officials have not waived their objections to Plaintiff's subpoenas, and so the Court will proceed to consider these objections on their merits. See, e.g., Celanese Corp. v. E. I. duPont de Nemours & Co., 58 F.R.D. 606, 610 (D. Del. 1973) (holding that nonparty's ...


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