Forte v. Jones

Filing 55

RESPONSE and ORDER re 54 Plaintiff's Request for Blank Signed Subpoena Forms signed by District Judge Anthony W. Ishii on 4/11/2013. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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EUGENE FORTE

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Plaintiff,
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v.
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TOMMY JONES, an individual, and
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DOES 1-100, et al.,
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Defendants.
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____________________________________ )

1:11-cv-0718 AWI BAM
RESPONSE AND ORDER RE:
PLAINTIFF’S REQUEST FOR
BLANK SIGNED SUBPOENA
FORMS
Doc. # 54

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On or about March 25, 2013, the court received a telephone communication from

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Plaintiff requesting that he be provided with a number of signed, but otherwise blank,

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subpoena forms which Plaintiff intends to issue in preparation for the anticipated trial in this

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action. Plaintiff was informed by the deputy clerk that he would be required to submit a

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request for subpoenas identifying the case number (because Plaintiff is currently the plaintiff

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in two cases before this court), the record, information, thing, or person to be subpoenaed and

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an explanation of why the subpoena(s) is/are necessary. On March 29, 2013, Plaintiff filed a

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document in the form of a memorandum expressing Plaintiff’s concern that the requirement

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that subpoena’s must be requested from and approved by the court would created prejudice to

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Plaintiff. Plaintiff avers that Defendants have an adequate remedy to the issuance of
objectionable subpoenas by way of motion to quash. Plaintiff contends that providing

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Defendants with an opportunity to oppose a subpoena prior to its issuance by way of

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opposition to a request for issuance is prejudicial to Plaintiff’s ability to prepare for trial.

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Although Rule 45(a)(3) of the Federal Rules of Civil Procedure provides for the

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issuance of forms for obtaining subpoenas to litigants who are not officers of the court, Rule

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45(c) requires that the court assure that there is no abuse of the process. With regard to the

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issuance of subpoenas for production of records or information (subpoenas duces tecum), this

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court has discharged its responsibility to prevent abuse of the process by requiring that the

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pro se litigant clearly identify (1) the documents that are sought and from whom; and (2) the

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reason why the documents are only available through the third party and are/were not

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available through the adverse party in the normal process of discovery. See, e.g., Davis v.

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Ramen, 2010 WL 1948560 (E.D. Cal. 2010) at *1; Williams v. Adams, 2010 WL 148703

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(E.D. Cal. 2010) at *1.

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In this action, the court has three specific concerns that relate to the court’s role in

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preventing abuse of the process. First, to the extent Plaintiff seeks subpoenas for the purpose

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of securing witnesses at trial, the trial date in this case has been vacated and has not been

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reset as of this writing. Any issuance of subpoenas for the purpose of testimony at trial is

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therefore premature. Second, with regard to the issuance of subpoenas duces tecum for the

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purpose of securing documentary evidence to be presented at trial, the court notes that the

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expert discovery cut-off deadline was November 1, 2012, and non-expert discovery closed on

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October 15, 2012. The court has not been informed of any issues regarding discovery in this

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case and is not inclined to issue subpoenas for the purpose of further discovery without an

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explanation of why the material sought could not have been obtained during the normal

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discovery period.

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Finally, the court has serious concerns with Plaintiff’s ability to maintain a relevant

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focus during future proceedings in this case. Plaintiffs past pleadings in this case have

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strongly hinted that Plaintiff may contemplate a trial in this action as an opportunity to: (1)

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vindicate grievances against non-parties (Larry Morse, McClatchey Newspapers, Corey Pride,

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and others); (2) to vindicate his idea of a wide-ranging conspiracy to impair an as-yet
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undefined right to expose to the public information concerning malfeasance by public

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officials; or (3) to vindicate the substance of allegations against Defendant that Plaintiff was

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trying to advance in his recall effort. The maintenance of this action is dependent to a great

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extent on the court’s ability to find that Plaintiff is capable of confining his focus at trial on

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the single narrow question of whether Defendant Ford impermissibly restricted Plaintiff’s

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right to speak freely for a full five-minute period on the occasion of the public comments

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period at the city council meeting of March 19, 2008. The court emphasizes that this is the

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only issue in this case. Plaintiff will not be allowed to present evidence of a broader

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conspiracy to silence him or to publically vindicate the substance of any claim Plaintiff has

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made against Ford or anyone else. Again, this case is about Plaintiff’s time at the

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microphone on March 19, 2008, and whether Plaintiff was prematurely and improperly

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hustled out of the city council meeting. Nothing more.

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CONCLUSION AND ORDER

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Under the facts of this case, the court has a strong duty to supervise the process of

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issuance of subpoenas and, in particular, the issuance of subpoenas duces tecum, which it

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will carry out by requiring that Plaintiff obtain leave of the court before issuing any

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subpoenas. To the extent Plaintiff may feel prejudiced by this decision, Plaintiff may file,

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along with his request to issue subpoenas, a motion to seal that request. Upon receipt of both

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the request or requests and the motion to seal, the Clerk of the Court will seal the requests for

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subpoenas and the court will not permit examination of the request by Defendants unless and

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until due process so requires. The court will examine any requests for subpoena and will

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issue subpoena forms to the extent the court determines the subpoena does not abuse the

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interests of non-parties in this action and to the extent the court is satisfied that Plaintiff is

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entitled to the issuance of each subpoena consistent with the concerns expressed in this

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response. Any request for subpoena shall include the purpose of the subpoena – whether to

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secure a person for testimony at trial or to secure a thing or document for evidence – the

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person to be served, an explanation of the relevance of the information sought and an

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explanation of why any information sought by way of subpoena now could not have been
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acquired during the normal course of discovery.

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IT IS SO ORDERED.

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Dated:
0m8i78

April 11, 2013
SENIOR DISTRICT JUDGE

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