Berna v. Powell et al

Filing 30

ORDER DENYING 18 Motion for Subpoena, signed by Magistrate Judge Erica P. Grosjean on 7/7/2016. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRUCE BERNA,

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Case No. 1:15-cv-00283-AWI-EPG
Plaintiff,

ORDER DENYING MOTION FOR
SUBPOENA

v.
(ECF No. 18)
LUKE POWELL, et al.,
Defendants.

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On August 24, 2015, Plaintiff Bruce Berna (“Plaintiff”) filed a First Amended Complaint

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(“FAC”) in this action. (ECF No. 6.) Defendants Luke Powell and Frank Navarro

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(“Defendants”) filed an answer. (ECF No. 16.) Shortly thereafter, Plaintiff filed a motion for

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subpoena requesting several documents. (ECF No. 18.) The case was scheduled on July 1, 2016

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and initial disclosures in the case are to be exchanged no later than August 1, 2016.

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Plaintiff’s motion for subpoena seeks: (1) applicable policies or procedures for

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conducting searches and seizures; (2) documents related to the search and seizure that occurred at
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8210 E. Nees Avenue, Clovis, California on September 8, 2011, including arrest report # B0F-

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FR-2011-00124; (3) documents “from Frank Navarro and Luke Powell involving investigations

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of complaints as in evidence code 1043-1047”; and, (4) “Documents for Alfred Frausto, Alfredo

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Fuerto and Lee Cariaga on where they were and what they were doing on Sept 8 2011 at 3:00

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P.M.”

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As explained to the parties at the scheduling conference on July 1, 2016, the parties are

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first required to exchange relevant documents in their initial disclosures. The parties may serve
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other discovery requests on each other, including, for example, requests for the production of

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documents, interrogatories, and requests for admissions. These discovery requests should not be

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filed with the Court unless necessary to adjudicate a later discovery dispute (the procedures for

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which are detailed more thoroughly in the Court’s scheduling order (ECF No. 29)).

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In this instance, Plaintiff appears to be asking the Court to issue a subpoena for documents
that may be held by Defendants. Plaintiff must seek the documents from Defendants via a request
for the production of documents, not a subpoena duces tecum.1 Fed. R. Civ. P. 34. Plaintiff’s
motion for subpoena (ECF No. 18) is thus DENIED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated:

July 7, 2016

/s/

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UNITED STATES MAGISTRATE JUDGE

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Plaintiff is advised that the Court will authorize the Clerk’s Office to issue a subpoena duces tecum commanding a
third party to produce documents only if (1) Plaintiff is unable to obtain the documents directly from Defendants and
(2) he thereafter files a motion to compel which results in a determination that he is entitled to the documents but
Defendants lack possession, custody, or control over them. See Fed. R. Civ. P. 45(d) (parties have a duty to avoid
imposing undue burden or expense on person subject to subpoena and courts are required to enforce this duty)
(quotation marks omitted); Ollier v. Sweetwater Union High School Dist., 768 F.3d 843, 862 (9th Cir. 2014) (district
courts have “wide discretion in controlling discovery.”) (internal quotation marks and citation omitted).

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