Berry v. Davis et al

Filing 36

ORDER granting 34 Motion to Quash and the deposition notice is quashed. Signed by Honorable Robert T. Dawson on July 29, 2013. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CONNIE BERRY and J.W. BERRY, Individually
and as Co-Administrators of the
Estate of ERIC W. BERRY,
v.

PLAINTIFFS

No. 2:12-CV-2269-RTD

BRANDON DAVIS and
THE CITY OF FORT SMITH, ARKANSAS

DEFENDANTS

ORDER
Currently before the Court is the Motion to Quash Subpoena
with

the

supporting

brief

(Docs.

34-35)

filed

by

Brandon Davis and the City of Fort Smith, Arkansas.

Defendants
On July 24,

2013, Plaintiffs’ counsel issued a Subpoena to Attorney Wade,
one of the attorneys for Defendants in this matter, directing
Attorney Wade to appear for a deposition on Monday, July 29,
2013 at 11:00am.

Defendants filed their motion to quash the

afternoon of Friday, July 26, 2013.
Defendants
Plaintiff
Wade’s

state

indicates

service

to

that

the
the

“[u]pon

deposition

Fort

Smith

inquiry,

will
Police

relate

counsel
to

for

Attorney

Department’s

Deadly

Force Review Board (“Board”) which was convened to review and
evaluate the incidents surrounding the shooting death of Eric
Berry.”
be

(Doc. 35).

quashed

Defendants contend that the subpoena should

pursuant

to

Federal

Rule

Page 1 of 3

of

Civil

Procedure

45(c)(3)(A)(iii)1

because

it

requires

the

privileged, attorney-client communications.

disclosure

of

Defendants further

contend that the subpoena must be quashed pursuant to Federal
Rule of Civil Procedure 45(c)(3)(A)(iv)2 because it presents an
undue burden.
Defendants argue that Attorney Wade’s service to the Board
was in his capacity as attorney for the City of Fort Smith, and
any communications or advice exchanged between him and the Board
are

subject

Attorney

to

Wade

information

the

cannot

pursuant

attorney-client
be

to

compelled
Rule

Rules of Civil Procedure.

to

privilege;
testify

45(c)(3)(a)(iii)

therefore,

regarding
of

the

that

Federal

Defendants also argue that despite

Plaintiffs having information noting Attorney Wade’s role and
capacity on the Board since February 25, 2013, Plaintiffs waited
until within one week of the discovery deadline3 to subpoena
Attorney Wade as a potential witness.

1

Rule 45(c)(3)(A)(iii) provides, “On timely motion, the issuing court must
quash or modify a subpoena that: requires disclosure of privileged or other
protected matter, if no exception or waiver applies[.]”
Fed. R. Civ. P.
45(c)(3)(A)(iii) (emphasis added).
2

Rule 45(c)(3)(A)(iv) provides, “On timely motion, the issuing court must
quash or modify a subpoena that: subjects a person to undue burden.” Fed. R.
Civ. P. 45(c)(3)(A)(iv) (emphasis added).
3

On February 4, 2013, the Court entered a Final Scheduling Order setting a
discovery cutoff of July 1, 2013, as agreed by the parties. (Doc. 15). On
July 12, 2013, on Plaintiffs’ motion to enlarge scheduling order, the Court
continued the trial date and extended the discovery deadline to August 1,
2013.

Page 2 of 3

Plaintiffs did not respond to the motion.

The Court is

concerned about the timeliness of the issuance of the subpoena
and filing of the motion.
The Court being well and sufficiently advised, finds that
the motion (Doc. 34) should be and is hereby GRANTED and the
deposition notice is quashed.
IT IS SO ORDERED this 29th day of July 2013.
/s/ Robert T. Dawson________
Honorable Robert T. Dawson
United States District Judge

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