Steshenko v. McCay et al

Filing 8

ORDER denying 2 Motion to Quash, without prejudice. The Clerk is directed to mail a copy of this Order to Carolyn L. Katzorke, 1661 Garden Highway, Suite 100, Sacramento, CA 95833. The Court directs Steshenko to serve Katzorke with any future filing and give proof of service. The Court directs the Clerk to close this matter on 9/28/12, unless some party makes some filing before then. Signed by Judge D. P. Marshall Jr. on 9/10/12. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION GREGORY STESHENKO v. PLAINTIFF No. 4:12-mc-22-DPM THOMAS MCCAY et al. DEFENDANTS ORDER Steshenko moves to quash a subpoena duces tecum issued to the University of Arkansas for Medical Sciences. The motion is denied without prejudice. The subpoena, which the Court had to locate in the docket of the underlying California litigation (see attached), commanded production of the disputed records by 6 April 2012. Steshenko moved to quash on 16 July 2012, more than three months later. Document No. 2. A motion to quash must be timely. FED. R. CIV. P. 45(c)(3)(A). What is timely within the Rule’s meaning will, of course, vary with the circumstances. And here, the Court notes, there was a previous round of litigation in California about this subpoena. But given the passage of several months after the production date, the Court is concerned that the matter has become moot for any number of reasons. Without some showing that UAMS has not produced the records already and that a live controversy remains, the Court will not take the chance of issuing an advisory opinion on a moot dispute. The Court directs the Clerk to mail a copy of this Order to Carolyn L. Katzorke, 1661 Garden Highway, Suite 100, Sacramento, California 95833, who issued the challenged subpoena. The Court directs Steshenko to serve Katzorke with any future filing and give proof of service in the filing. The Court further directs the Clerk to close this matter on 28 September 2012 unless some party makes some filing before then. Motion, Document No. 2, denied without prejudice. So Ordered. _________________________ D.P. Marshall Jr. United States District Judge 10 September 2012 Case5:09-cv-05543-RS Document233-4 Filed03/23/12 Page2 of 7 C43327-L Issued by the UNITED STATES DISTRICT COURT EASTERN DISTRICT OF SUBPOENA IN A CIVIL CASE GREGORY STESBENKO V. WATSONVILLE COMMUNITY HOSPITAL Case Number: 1 C0905543RS NORTHERN DISTRICT OF CALIFORNIA TO: UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES 4301 WEST MARKHAM STREET, LITTLE ROCK, AR 72205 0 YOU ARE COMMANDED to appear in the United States District court at the place~ date~ and time specified below to testifY in the above case. COURTROOM PLACE OF TESTIMONY DATE AND TTM£ 0 YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. I DATE AND TIMil PLACE OF DEPOSITION IXl YOU ARE COMMANDED to produce and permit inspection and copying ofthe following documents or objects at the place, date, and time specified below (list dQcuments or objects): SEE ATTACHMENT 3 RECORDS OF: STESHENKO, GREGORY DOB: 10/2511%1 SSN: AKA: GREGORY NICHOLAS Sn:sQENKO PLACE 4301 WEST MARKHAM STREET LITTLE ROCK., AR 72205 DATE AND TIME April, 06 2012 09:00AM 0 I YOU ARE COMMANDED to pennit inspection of the following premises at the date and time specified below. PRBMfSES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent tl> testify on its behalf: and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6). ISSUING ()FACER'S SIGNATURE ANDTl'fLE(INDICNl1:<: IF AITORNEY FOR PLAINTIFF OR DEFENDANT) AT'tORNEY}?t)R: WATSONVll..LE COMMUNITY HOSPITAL lSI CAROLYN L. KATZORKE ISSUING OFFICER'S NAME, ADDRESS AND J'HONENUMBER CAROLYN L. KATZORKE 1661 GARDEN HIGHWAY, SACRAMENTO, CA 95833 (916) 929-9600 {See Rule 45, Federal Rules ofCivJII'~ Sul1divisions {c), (d), and {e), oil nel<t page) 1 If action is pending in district other'than district Of issuance, state diStrict under case number. DATE 03/lS/12 AQ!!& mex. g2tn6)Subse'MW!f6;Sl9aiV-05543-RS Document233-4 Filed03/23/12 page3 of 7 PROOF OF SERVICE .PLACE DATE SERVED ON (PRINT NAME) MANNER OF SERVICE SERVED BY (PRINT NAME) TITI..l! DECLARATION OF SERVER I declare under penalty ofpeljury under the laws ofthe United States ofAmerica that the foregoing information contained in the Proof of Service is true and correct. Executed on DATE ~ SIGNATURE OF SERVER ADDRESS OF SERVER Rule 45, Federal Rules of Civil PI'QCedure, Subdivisions (c), (d), and (e), as amended on December I, 2006: to or a:fflleted by the subpeeua, q!lllsh or mndify the subpoena Qr, if the party in wbuse behalf (c) Pit~ OF PERSPNS SUI»ECTTOS!JIIf!OI!!IAS. (l) A party or an an~>mey responsible f~>rthe issuance and service ofa$ubpoena Shall take reasonable steps to av1>id imposm1J undue burden or expet~se on a persoo ~ubject to that subpoena. The court on belm'll' of which the~ Wllll l$Ued shall enforce this duty ~~nd impose IIPOn the P3riY or attorney in breach of thls duly an appropriate ~etion, which may include. but is not limited to, lost eamings lind a reaSOJiable attorney's feQ. (2) (A} A person commanded to prnduee and J)l!rmit in!IJ"'(:tton, <:opying, testing. or slll!lpling ofdesigns!¢d electronicallystored infomla.iiO», bnoks, papers, documents ot tangible things, or inspe<:lion of prcmiscs.aeed not appear in person at the plw:e of production or iru!peclion unless oommanded 10 appear funkposition, hearing or trial. (B) Subject topam!!Jll!lh (d)(2) oflbisrulo, &J)l!fSOO commanded toprnduco andJ)l!tmit inspection, copying, resting, or sampjing may, within :14 days after servi<:e ofthe,subpeena or before lbe time specified for compliance if sm;h time is I<:Ssthiln 14 days afler service, serve upon the party or attlmley designated in the sUbpoena written o~ectioo to producing lillY or all ofthe designated mmerialsor inspeetionofthe premises-ortoprodueif!$clectrnnically st<n:W information in the form or forms requested. IfObjection is made, the party serving the subpoena shall not be entitled to inspect, copy, test, or swnplelbll materi!llsoduspeet the p~l~e,.o:cpt porsiWittO an order oftheeourt by whiebthesubpoena was issued. If objeetion basbeeo made, the P3fly serving the subpoen;~ may, upon notice to the person commanded to prnduee, II'IOYe atuny time for nn order to <:lllllJ)l!l the produetflln, in(!jm:tion, wpying, tellting, or swnpling. Such an order to compel Shali proteel ~ny persoo wbo is not a party ot an offieer of¥ party !rum significant expanse resulting from lbe insj)l!ctlon. <:opying. testing. or sampling COillllllUlded. Q}{A)Olltimelymoti<m,theeourtbywbicllasubpoenawas issuedllhallquasltotmndil)' the subpoerm if it (i) fails to allow reusonable time fot compllanee; (ii) req~lres a person who is not 11 party or an o:lfreu ofa party to mwl to a plae<: mm:e than fOO mih1sfrom thepfa(:l: Wheretlllllp¢11Wn resides,isempk)yud or regularl)'trlUlsa<:ts buslne$5 in persoo, except lbat,subject to t!te pJDVisipns gfcl!lllse:(e){~)(B){iii} gfthlsrule, !§Ucll a person may in order to altf:Dd trial be commMded to U'avtl from .Uy suclrpl111.1e within the SUite in wbieh the trial is hel"' (iii) requires disclosure of privileged or otheqn'Qteeted matter and no Cltcep.iion or waiver applies; <If {iv) subjootso person ro Wid® bmden. (B} If a SUbPoena (i) ~uires disclosureofa trnd<i>secrel or other confidential research, development, or eommercilil infonnatioo, « (ii) requires disclost~re of an unremined e;J)Co/t's opinion or information not descn1lill$ speeific events or ooeum:noosin dispute and resUlting !rum lbe CJtpert's study made not 11! the request of any party, or (iii) ~uires a person who is nota party or an officer ofa party to incur substantial expense ro travel more lhiln 100 mlles to attend lril!l, the court may, to protect a person subje<:t the subpoena is issued shows a substantial need for the testimony or materialtbat cannot be otherwise met without undue hardship and nssures that the J)l!fSOO to wltom !be subpoenn is address¢4 will be reusonably <:OmpeiiSI'lted, the cuut! may order appearance or production Qnly upon speeified eonditioi!S. (d) Dtil'll!SIN Rl!SI'OND!NGTOSUBI'O£NA. (l) (A) A pet!(l)n r..-sponding to a $Ubpoena to produce document' .shall produce them as they are kept in the usualeourse ofbusiness or sha.ll organize and lahelthem to ~orrespond with the categories in the demand. (B)!fasubpeenadoesn<Jtspeeil)'theformorfonnsfurprodueingcleetronicallyst<>Nd information, a person responding to a subpoona must produce the information in a form or fom1s i" whiclllhe person o!dillllrily maintains II or in a form or l'l»Tns that are reasonably \l$llble. (C) A person responding loa subpoena need not produce the same electronically stored infurllllltion in more lhan one furm. {D) A person rejlponding !.o a subpoena need not provide diSCOVill)' of eleetronicuUy stored information frnot snurces that the person identifies as not reasonably acc:essible because of undue burden or cost. Oll motion to eomJ)l!l discovery or 10 quash, the ~'fSon from whom diseeve:ry is !l<)ught mnSI show tha!tho informatllln sought is nolre.>SOJ>nbly accessible because oftilldu~ burden Qr cost. lf that.shl>wing is made, lbe court may nonetheless older discovery frllm such sources ifthe reqlli:stlngparty soows good cause, eon~lderill$1he limitatlons ofRule 26(1>){2)(C~ The COOT! mi'IY $peeify eonditiollli for tbe disc<lwry. (2) {A)Wbe11 information subje(;l to a subpoena is wilhheld on a claim that it is privileged or subject to protootion as triaJ-prepa:ralion llll;lterials, the claim shall be made expressly and sluill be support¢d by adeser\ptiot! ofth~ 11ature of t)le documents, comrnunicutiQ!Ili, Qr things not pto®ced lbat is iiufficient to $able the demanding party to contest lbc claim. (8) lf information is prnduced in respQnse to a subpoona that is subject to a claim of privilege or of protection$ tn.l-preparation materlal, the J)l!ISOn muking tha claim 11111y notil)' any party tbM received the lnform~tion llfthe tlnlnt and tb.c llllsis for lt. After being notified, a party must promptly return, sequester, llr destroy the speeified information 311d any llOpies it has and may not use or disclose the information ontft !he claim is resolved. A receiving Pllr!Y 11111y promptly prasent llte informalion to the court onder sell! for a detennination cfthe claim. lfthe receiving party di~Wlosed the information before being notified, it must take reasonable steps to retrieve it The person wlto produced the information must preserve the informatiOn uniil the claim is resolved. (e)CoNTEMM'. Failllf9 ofany J)l!rson without adequate exeuse to obey a subpoena served upon tllllt J)l!rSOn 11111y be deemed a contempt of the court trom wbicll the subpoena i~. An adeqUI'lte cau.~ for failure to obey exists when a subpoena purports to .require a. nonparty to altand A:)r produ<:e at a plate not within the limi!S provided by clause (ii) of subpamgrapb {c)Q)(A}. Case5:09-cv-05543-RS Document233-4 Filed03/23/12 ATTACHMENT 3 Page4 of 7 C43327-L SUBJECT: STESHENKO, GREGORY AKA:GREGORYNiCHOLASSTESHENKQ DOB: 10125/1961 SSN: NOT PROVIDED ALL DOCUMENTS, RECORDS, REPORT CARDS, AND TRANSCRIPTS PERTAINING TO THE EDUCATION AND SCHOLASTIC ABILITY OF THE STUDENT, INCLUDING ALL OFFICE, DISCIPLINARY, AND SCHOLASTIC RECORDS, ABSENCE RECORDS, MEDICAL/NURSES NOTES AND RECORDS, INCIDENT REPORTS, TEACHER COMMENTS REGARDING THE STUDENT INCLUDING BUT NOT LIMITED TO, CD ROM, TAPE DRIVE, FLOPPY DRIVE, BARD DRIVE, SCANNED DOCUMENTS AND ALL OTHER DOCUMENTS STORED ELECTRONICALLY OR DIGITALLY, FROM THE FIRST DATE OF ADMITTANCE, UPTO AND INCLUDING THE PRESENT. ANY AND ALL ACADEMIC RECORDS, INCLUDING ANY APPLICATIONS FOR ADMISSION. Case5:09-cv-05543-RS Document233-4 Filed03/23/12 PageS of 7 REFERENCE: C43327-L 1 2 3 CAROLYN L. KA1ZORKE DUMMIT, BUCHHOLZ & TRAPP I661GARDENIDGHWAY SACRAMENTO, CA 95833 TELEPHONE: (916) 929-9600 State Bar No.237989 4 5 ATIORNEY(S) FOR DEFENDANT WATSONVILLE COMMUNITY HOSPITAL 6 7 8 UNITED STATES FEDERAL COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY STESHENKO " 12 13 PLAINTIFF (S) 14 15 VS. WATSONVILLE COMMUNITY HOSPITAL 16 DEFENDANT (S} ) ) } } ) ) ) ) ) ) ) CASE NO. C0905543RS NOTICE OF TAKING DEPOSmON NO APPEARANCE NECESSARY RECORDS ONLY DATE: APRIL06, 2012 TIME: 09:00AM 17 18 19 20 21 TO ALLAPPlrARlNG PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE A NOTE THAT AT THE HOUR OF 09:00AM ON THE 06 TH DAY OE APRIL, 2012, AT THE OFFICES OF COMPEX LEGAL SERVICES, INC.~ 325 MAPLE AVE, TORRANCE. CA 90503 THE DEFENDANT(S) WILL TAKE THE DEPOS1TION OF THE CUSTODIAN(S) OF 22 RECORD OF THE FOLLOWING BUSSINESS(ES): 23 24 25 26 27 28 29 UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES 4301 WEST MARKHAM STREET, LITTLE ROCK, AR 72205 Case5:09-cv-05543-RS Document233-4 Filed03/23/12 Page6 of 7 REFERENCE~ C43327-L 1 BEFORE ANY NOTARY PUBLIC AUTiiORlZED TO ADMlNISTER OATiiS IN THE STATE OF CALIFORNIA. 2 DATED: MARCH 15, 2012 3 4 DUMMIT, BUCHHOLZ & TRAPP 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 CAROLYNL. KATZORKE ATIORNEY(S) FOR DEFENDANT Case5:09-cv-05543-RS Document233-4 Filed03/23/12 Page7 of 7 REQUEST: C43327 PROOF OF SERVICE OF SUBPOENA (FEDERAL) I am employed in SACRAMENTO County; California. I am over the age of 18 and not a party to the within action; my business address is: 1824 TRIBUTE ROAD. SUITE J SACRAMENTO, CA 95815 On 03/16/12, I gave notice to: SEE SERVICE LIST BELOW On the above date, I served true copies of the following documents; Notice of Taking Deposition Subpoena Duces Tecum To each party appearing in this action. at the address below, by placing true copies thereof enclosed in a seated envelope with postage fully pre-paid, in the United States mail at 1824 TRIBUTE ROAD, SUITE J SACRAMENTO, CA 95815 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on 03116/12. SIGNID. 4t Heather Landi GREGORY N. STESHENKO (IN PRO PER) GREGORY NICHOLAS STESHENKO 3030 MARLO COURT APTOS, CA 95003 LYNCH & SHUPE, LLP JOHN SHUPE 700AIRPORTBOULEVARD, SUITE4l0 BURLINGAME, CA 94010 PROOF OF SERVICE BY MAIL

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