McCain v. California Highway Patrol et al

Filing 217

ORDER signed by Magistrate Judge Allison Claire on 2/16/16 ORDERING that the Clerk of the Court to send plaintiff six blank subpoena forms.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRYLYN MCCAIN,

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No. 2:11-cv-01265-KJM-AC

Plaintiff,
v.

ORDER

MANGHAM, et al.,

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Defendants.

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This matter is before the undersigned pursuant to Local Rule 302(c)(21). On February 10,

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2016, plaintiff filed a request for subpoenas upon (1) the Stockton Police Department; (2) the San

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Joaquin County Sheriff’s Department; (3) the California Department of Motor Vehicles; (4) the

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San Joaquin County Superior Court; (5) the “Superior Court of the State of California, Lodi

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Branch;” and (6) Clear Choice Lien Service, Inc. ECF No. 216. Plaintiff states that she is asking

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for the “production of documents, records to complete the discovery process.” Id. The court

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construes the request as one for a signed subpoena under Federal Rule of Civil Procedure 45 and

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will grant it.

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A non-party may be compelled to produce documents for inspection and copying pursuant

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to a subpoena duces tecum. See Fed. R. Civ. P. 34(c), 45(a). In order to obtain documents from a

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non-party, plaintiff must fill out subpoena forms and ensure that each person is served with the
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subpoena by a non-party. Fed. R. Civ. P. 45(b). If the person’s attendance is required, plaintiff

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must tender to each person “the fees for one day’s attendance and the mileage allowed by law.”

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Fed R. Civ. P. 45(b)(1). The current requisite fee for each person is forty dollars per day, 28

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U.S.C. § 1821(b), and cannot be waived for a plaintiff proceeding in forma pauperis. See Dixon

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v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).

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Federal Rule of Civil Procedure 45(a)(3) requires that “[t]he clerk must issue a subpoena,

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signed but otherwise in blank, to a party who requests it. That party must complete it before

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service.” Therefore, at the outset, the Clerk of the Court will be directed to send plaintiff a blank

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subpoena form. A subpoena may direct a non-party, pursuant to Federal Rule of Civil Procedure

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45, to produce documents or other tangible objects for inspection.

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Limitations on a subpoena include the relevance of the information sought as well as the

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burden and expense to the non-party in providing the requested information. Fed. R. Civ. P. 26,

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45. A motion for issuance of a subpoena duces tecum should be supported by clear identification

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of the documents sought and a showing that the records are obtainable only through the identified

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third-party. See, e.g., Davis v. Ramen, 1:06-cv-01216-AWI-SKO PC, 2010 WL 1948560, at *1

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(E.D. Cal. May 11, 2010); Williams v. Adams, No. 1:05-cv-00124-AWI-SMS PC, 2010 WL

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148703, at *1 (E.D. Cal. Jan. 14, 2010). “The Federal Rules of Civil Procedure were not intended

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to burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with

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a subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991); see also, U.S.

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v. Columbia Broad. Sys., Inc., 666 F.2d 364, 368 (9th Cir. 1982) (court may award costs of

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compliance with subpoena to non-party). Non-parties are “entitled to have the benefit of this

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Court’s vigilance” in considering these factors. Badman, 139 F.R.D. at 605.

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Because Federal Rule of Civil Procedure 45(b) requires personal service of a subpoena,

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“[d]irecting the Marshal’s Office to expend its resources personally serving a subpoena is not

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taken lightly by the court.” Austin v. Winett, 1:04-cv-05104-DLB PC, 2008 U.S. Dist. LEXIS

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103279, at *2 (E.D. Cal. Dec. 11, 2008); 28 U.S.C. § 1915(d). If plaintiff wishes the United

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States Marshal to serve a subpoena duces tecum on a non-party, plaintiff must submit to the court

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a completed subpoena form and the requisite fee. The form must describe the items to be
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produced with reasonable particularity and designate a reasonable time, place, and manner for

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production. Plaintiff must also show that she has not or cannot receive the documents she seeks

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by way of discovery propounded upon defendants. Failure to do so will result in denial of the

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motion.

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In accordance with the foregoing, THE COURT HEREBY ORDERS the Clerk of the

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Court to send plaintiff six blank subpoena forms.

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DATED: February 16, 2016

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