Berry v. Davis et al
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,
BRANDON DAVIS and
THE CITY OF FORT SMITH, ARKANSAS
Currently before the Court is the Motion to Quash Subpoena
Brandon Davis and the City of Fort Smith, Arkansas.
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.
Force Review Board (“Board”) which was convened to review and
evaluate the incidents surrounding the shooting death of Eric
Defendants contend that the subpoena should
Page 1 of 3
privileged, attorney-client communications.
contend that the subpoena must be quashed pursuant to Federal
Rule of Civil Procedure 45(c)(3)(A)(iv)2 because it presents an
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
Rules of Civil Procedure.
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.
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).
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).
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,
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
Page 3 of 3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?