United States of America v. Colorado City, Town of et al

Filing 520

ORDER - The motion 471 to compel the United Effort Plan Trust to produce documents in response to Hildale's subpoena is denied. Signed by Judge H Russel Holland on 10/27/2014.(KMG)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

)
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Plaintiff, )
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vs.
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TOWN OF COLORADO CITY, ARIZONA;
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et al.,
)
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Defendants. )
__________________________________________)

No. 3:12-cv-8123-HRH
(Prescott Division)

ORDER
Motion to Enforce Subpoena1
Defendant City of Hildale (“Hildale”) moves for an order requiring non-party
United Effort Plan Trust (“the Trust”) to respond to a subpoena issued by this court. The
motion is opposed. Oral argument has been requested but is not deemed necessary.
One of plaintiff’s claims in this case is interference with fair housing by Hildale.
Hildale asserts (and the court believes based on earlier information in this case) that the
Trust owns much of the property in Colorado City and Hildale. Alleged victims’ houses
may be on property owned by the Trust. By a subpoena issued on July 29, 2014, Hildale
sought production from the Trust of six categories of documents.2 The subpoena was
served on the Trust on August 7, 2014, and required production of documents to be made
at the offices of Hildale’s attorney in Salt Lake City, Utah, by August 20, 2014. By letter of
August 20, 2014, the trust objected to the subpoena. Hildale responded to the objection,
1

Docket No. 471.

2

Hildale Defendants’ Motion to Compel the United Effort Plan Trust to Produce
Documents in Response to Subpoena, Exhibit A (page 4 of 4), Docket No. 471-1.
Order – Motion to Enforce Subpoena

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demanded production of all the documents requested, and stated that a motion to compel
would be filed on September 15, 2014, and the instant motion was filed on that day. In the
meantime, the Trust had produced 804 pages of documents in response to the subpoena.
The Trust believes that it has complied with requests 1 and 3 through 6. The outstanding
request, request 2, has to do with Jethro Barlow’s notes from any meeting he attended on
behalf of the Trust.
Hildale asserts that the instant motion is brought pursuant to Rule 37, Federal Rules
of Civil Procedure, and Local Rule 37.1.

However, it is Rule 45 that governs the

enforcement of third-party subpoenas. Rule 45(d)(2)(B) addresses the subject of objections
to subpoenas such as that made by the Trust. Here, the trust timely objected to Hildale’s
subpoena. Pertinent to what is before the court, Rule 45(d)(2)(B) provides:
If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the
serving party may move the court for the district where
compliance is required for an order compelling production or
inspection.
In this instance, the “commanded person” is the Trust; the “serving party” is Hildale; and
the “district where compliance is required” is Utah.
As Rule 45(d)(2)(B)(ii) recognizes, the purpose of 2013 revisions to Rule 45 are aimed
at protecting persons such as the Trust who are neither parties nor affiliated with a party
from incurring significant expense in complying with a subpoena. The above-quoted
portions of Rule 45(d) make it clear that a motion to compel production pursuant to a thirdparty subpoena is to be filed in “the district where compliance is required.” As set out
above, compliance in this instance was to be at the offices of Hildale’s counsel in Salt Lake
City, Utah. Rule 45(d)(2)(B)(i) authorizes the type of motion before the court; but the
motion has been filed in the wrong court.
Hildale points out that Rule 45(f) makes provision for transferring of a subpoenarelated motion from the court where compliance is specified to the issuing court. This
Order – Motion to Enforce Subpoena

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provision, first and foremost, does not alter the rule which requires that a motion to enforce
a subpoena be first filed in the district where compliance is required. That district (in this
instance, Utah) may transfer subpoena enforcement proceedings to the issuing court “if the
person subject to the subpoena consents or if the [Utah] court finds exceptional
circumstances.”3 In this instance, the Trust has not consented to a transfer of a motion to
enforce a subpoena to this court. Whether or not there are exceptional circumstances is for
the court where compliance is required to decide.4
The motion to compel the United Effort Plan Trust to produce documents in
response to Hildale’s subpoena is denied.
DATED at Anchorage, Alaska, this 27th day of October, 2014.

/s/ H. Russel Holland
United States District Judge

3

The Advisory Committee notes with respect to Rule 45(f) expands upon both the
subsection (f) procedure and the reasons for it.
4

In this respect, the 2013 Advisory Committee notes expressly state that “it should
not be assumed that the issuing court is in a superior position to resolve subpoena-related
matters.” Indeed, the Trust’s long history of supervision by Utah courts suggests that a
Utah court may be in a better position to evaluate enforcement of the Hildale subpoena
than this court.
Order – Motion to Enforce Subpoena

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