United States District Court, M.D. Pennsylvania
KAROLINE MEHALCHICK United States Magistrate Judge
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. (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.
Standard of review
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).
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)).
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. 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 . . .
.” 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).
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).
Waiver of objections
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
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 ...