United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.
before the court are the pro se motions of Richard
D. Gaines, Esq., of Greentown, Pennsylvania, to quash the
subpoena, pursuant to Fed.R.Civ.P. 45, to testify and produce
documents issued to him by the defendant Brooks Harlow, Esq.,
in a case pending in the Oregon District Court, namely,
U.S.D.C., District of Oregon, Case No. 3:12-cv-01923. (Doc.
1, Doc. 3). Gaines is working with Frank G. Patrick, Esq., as
associated counsel, but not a counsel of record, for the
plaintiffs in the Oregon case and in related cases pending in
the courts in Oregon. Gaines was served with a subpoena by
the defendant to appear for his deposition on October 26,
2017, and to produce unredacted versions of all redacted
documents which were produced by the plaintiffs in the above
case. Gaines filed a brief in support of his motion on
November 9, 2017, with attached Exhibits. (Doc. 4). On
November 20, 2017, the defendant filed a motion to transfer
Gaines' motion to the U.S. District Court for the
District of Oregon, pursuant to Rule 45(f), and a combined
brief both in support of his motion to transfer and in
opposition to Gaines' motion to quash, with attached
Exhibits. (Doc. 6, Doc. 6-1 to 6-15). Gaines neither filed a
reply brief in support of his motion to quash nor did he file
a brief in opposition to the defendant's motion to
transfer, and the time within which to do so has expired.
defendant's subpoena to Gaines was issued under
Fed.R.Civ.P. 45. The court in Highland Tank & Mfg.
Co. v. PS Intern., Inc., 277 F.R.D. 374, 379 (W.D. Pa.
Generally, Federal Rule of Civil Procedure 45 authorizes the
issuance of a subpoena commanding a person to whom it is
directed to attend and give testimony, or to produce and
permit the inspection of designated documents. [footnote
omitted]. Rule 45(a)(1)(C). Rule 45 is the only discovery
method whereby information may be obtained from a nonparty to
the suit. See Adv. Comm. Note on 1991 Amendments to
essentially objected to the defendant's subpoena pursuant
to Rule 45 which provides protections for a non-party who is
the subject of a subpoena. “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.” In re Domestic Drywall Antitrust
Litigation, 300 F.R.D. 234, 238 (E.D.Pa. 2014). No doubt
that “only the non-parties whom are served with the
subpoenas may move to have them quashed under [Rule
45].” CedarCrestone Inc. v. Affiliated Computer
Services LLC, 2014 WL 3055355, *3 (M.D.Pa. July 3, 2014)
(citation omitted). “The party seeking to quash the
subpoena bears the burden of demonstrating that the
requirements of Fed.R.Civ.P. 45 [to quash a subpoena] are
satisfied.” Plastic the Movie Ltd. v. John Doe
Subscriber, 2015 WL 4715528, at *1 (D.N.J. Aug. 7, 2015)
court will deny Gaines' motion to quash particularly
since the judge presiding in the case pending in the District
of Oregon, namely, the Honorable Anna J. Brown, recently
clarified on November 16, 2017, with respect to her prior
Order of September 13, 2017 permitting the defendant to
depose Patrick, as follows:
Although the Court's Order inadvertently did not
specifically name Mr. Gaines, the Court did not intend to
exclude him from that portion of the Order that allowed
Defendant to take the depositions of Plaintiffs' counsel.
Accordingly, the Court GRANTS Defendant's Motion for
Clarification and CLARIFIES that Defendant is authorized to
take the deposition of Mr. Gaines in addition to the
deposition of Mr. Patrick.
there is no longer any dispute that Judge Brown intended the
defendant to be allowed to depose Gaines.
as Gaines contends that he did not receive adequate notice of
the subpoena directed to him, the defendant indicates that
his counsel “provided [Gaines] notice of the deposition
sixteen days in advance and e-mailed a copy directly to Mr.
Gaines ten days in advance.” (Doc. 6 at 2).
Specifically, the defendant's evidence indicates that on
October 10, 2017, defense counsel provided Gaines'
co-counsel, Patrick, with notice of Gaines' October 26,
2017 deposition. On October 16, 2017, defense counsel
e-mailed a copy of the subpoena to Gaines and requested him
to accept service via e-mail, but Gaines refused to accept
service. On October 23, 2017, a process server served Gaines
with the subpoena (Id. at 5). “A party issuing
a subpoena to a nonparty for the production of documents
during discovery must provide prior notice to all parties to
the litigation.” Id. at *6 (citing
Fed.R.Civ.P. 45(a)(4) (“[B]efore [a subpoena duces
tecum] is served on the person to whom it is directed, a
notice and a copy of the subpoena must be served on each
party.”)). Thus, Gaines did receive sufficient advance
notice of the subpoena.
as the defendant represents, (Doc. 6 at 2), the documents
Gaines was directed to produce in the subpoena are no longer
at issue “because defense counsel and Frank Patrick,
his co-counsel, already reached an agreement on those
documents.” The defendant also correctly indicates that
if Gaines had filed his certificate of concurrence or
non-concurrence with his instant motions and conferred with
defense counsel prior to filing his motions, as required by
Local Rules 7.1 and 26.3, M.D. Pa., he would have been aware
that the parties had reached a resolution with respect to the
the Court finds that Gaines has failed to demonstrate
sufficient grounds to quash the defendant's subpoena.
foregoing reasons, the court will DENY
Gaines' motions to quash the subpoena the defendant
served on him. (Doc. 1, Doc. 3). Also, since Gaines'
motions no longer have any merit, the court will
DENY the defendant's motion to transfer
in the interest of judicial economy since there is no need to
do so. Finally, the court will DENY the
defendant's and ...