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Landau v. Zong

United States District Court, M.D. Pennsylvania

December 12, 2017

BRIAN LANDAU, Plaintiff
v.
REBECCA AMBER ZONG, et al., Defendants

          MEMORANDUM OPINION AND ORDER

          MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE

         I. Factual Background

         This is a §1983 civil rights action brought by Brian Landau, a state inmate, against some 20 correctional defendants, arising out of allegations by Landau that he was sexually harassed and abused by a female correctional officer at SCI Rockview, Defendant Rebecca Zong, in 2013 and 2014, and other correctional staff failed to intervene and protect Landau from this conduct. The parties are engaging in what has been a halting, and often contentious, course of discovery, frequently marked by disputes that counsel could seemingly resolve with a modicum of mutual accommodation but which have instead been placed before the court for resolution.[1] While we commend to all parties the value of mutually cooperative discovery we stand ready to assist them in resolving their current discovery disputes, which include a motion to compel filed by the plaintiff which seeks further supplementation of responses to two subpoenas duces tecum served on Superintendent Garman, at SCI Rockview. (Doc.118.)

         The first of these subpoenas, issued on July 17, 2017, called for the production of staff daily rosters for certain dates in 2013 and 2014; print-outs of emails between and among twelve different correctional staff from November 2013 through July 2014; and copies of email retention policies. (Doc. 119-2.) The second subpoena duces tecum, dated September 30, 2017, called for production of certain pat search logs and punch-in records for time check points at the prison for various dates in 2013 and 2014. (Doc. 119-5.)

         Superintendent Garman has responded to these subpoenas, but in some instances has indicated that certain records, such as punch-in reports and emails sent by Defendant Zong, who was terminated as a state prison employee in 2014, no longer exist. In other instances, Garman has produced emails but not released the attachments to those emails, although Garman through Department of Corrections counsel has represented that they have offered to provide plaintiff's counsel with a mutually convenient opportunity to review these email attachments. Finally, Superintendent Garman has objected to the disclosure of pat search records from throughout the prison, arguing that only pat search records relating to physical contact between Landau and Zong have relevance to the issues in this lawsuit.

         For the reasons set forth below, while we find that these responses are generally adequate and fully responsive to the requests made in the subpoenas, we will direct some further clarification and supplementation of those responses, as set forth below.

         II. Discussion

         Several basic guiding principles inform our resolution of the instant motion to compel, which relates to compliance with subpoenas duces tecum. At the outset, “[r]ule 45 of the Federal Rules of Civil Procedure establishes the rules for discovery directed to individuals and entities that are not parties to the underlying lawsuit. Fed.R.Civ.P. 45. A subpoena under Rule 45‘must fall within the scope of proper discovery under Fed.R.Civ.P. 26(b)(1).' OMS Invs., Inc. v. Lebanon Seaboard Corp., No. 08-2681, 2008 WL 4952445, at *2 (D.N.J. Nov. 18, 2008).” First Sealord Sur. v. Durkin & Devries Ins. Agency, 918 F.Supp.2d 362, 382 (E.D. Pa. 2013). Thus, contrary, to plaintiff's assertion, concepts of relevance do define the scope of a subpoena response.

         Rule 45 also confers broad enforcement powers upon the court to ensure compliance with subpoenas, while avoiding unfair prejudice to persons who are the subject of a subpoena's commands. In this regard, it is well settled that decisions on matters pertaining to subpoena compliance rest in the sound discretion of the trial court and will not be disturbed absent a showing of an abuse of that discretion. R.J. Reynolds Tobacco v. Philip Morris Inc, 29 F. App'x 880, 881 (3d Cir. 2002). This far-reaching discretion extends to decisions regarding whether to enforce compliance with subpoenas, where “ ‘[i]t is well-established that the scope and conduct of discovery are within the sound discretion of the trial court.' Guinan v. A.I. duPont Hosp. for Children, No. 08-228, 2008 WL 938874, at *1 (E.D.Pa. Apr.7, 2008) (quoting Marroquin-Manriquez v. INS, 699 F.2d 129, 134 (3d Cir.1983)).” Coleman-Hill v. Governor Mifflin School Dist, . 271 F.R.D. 549, 552 (E.D.Pa. 2010).

         Another immutable rule defines the court's discretion when ruling on motions to compel discovery. It is clear that the court cannot compel the production of things that do not exist. Nor can the court compel the creation of evidence by parties who attest that they do not possess the materials sought by an adversary in litigation. See, e.g., AFSCME District Council 47 Health and Welfare Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL 5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698, 2009 WL 975251 (M.D.Pa. April 9, 2009).

         With these legal guideposts in mind, we turn to consideration of the instant discovery dispute which divides these parties.

         At the outset, we note that with respect to at least two categories of information sought by Landau through these subpoenas-emails from and between Defendant Zong and 11 other corrections employees as well as punch-in checks point records from 2013 and 2014-Landau has been told that these materials do not exist. While this report has inspired follow-up questions by Landau, there was nothing inappropriate about the initial response to these subpoenas which noted that certain records no longer existed. See, e.g., AFSCME District Council 47 Health and Welfare Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL 5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698, 2009 WL 975251 (M.D.Pa. April 9, 2009). Moreover, the use of a subpoena duces tecum may be an inefficient vehicle for posing follow up questions concerning non-existent documents. Thus, there is some great force to the suggestion that these follow up questions are more appropriately posed through a deposition rather than some awkward process of document subpoenas, replies, disputes, disagreements, and motions to compel.

         Nonetheless, Landau poses two additional questions, which in the exercise of our discretion we will direct the subpoenaed party to attempt to answer. First, Landau requests confirmation that the search for these records included not only electronic copies of any records, but also a reasonable search for any existing paper copies. In addition, with respect to those records which no longer exist Landau has requested confirmation, if known, regarding when these records were discarded. In the exercise of our discretion, we will direct that supplemental answers be provided on these two scores to Landau.

         As for the question of access to email attachments, we agree with Landau that such attachments should be considered components of the emails themselves. See In re Denture Cream Products Liab. Litig.,292 F.R.D. 120, 125 (D.D.C. 2013) (collecting cases); Cohen v. Trump, 13-CV-2519-GPC WVG, 2015 WL 3617124, at *19 (S.D. Cal. June 9, 2015) (same); Andy Hoang Nguyen v. Roth & Rau AG, CCB-06-1290, 2009 WL 10682036, at *2 (D. Md. July 28, 2009) (same). We note, however, that defense counsel has apparently extended what we regard as a reasonable offer to plaintiff's counsel to view these attachments, stating that: “Attempting to moot this issue, Undersigned offered Plaintiff's Counsel to view the attachments on his computer. Plaintiff's Counsel insisted on doing so the next day or having Undersigned burn onto a disc and mail overnight. The next day was not convenient for DOC Defense Counsel due to other obligations. Plaintiff's Counsel was offered to pick any time the following week. She declined to do so, opting instead for filing the present motion.” (Doc. 125, p. 5.) We regard this as a practical, reasonable alternative given ...


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