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)

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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 Page 3 of 3

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