Robinson v. San Joaquin County et al
ORDER denying without prejudice 30 Motion to preserve evidence signed by Magistrate Judge Gregory G. Hollows on 10/29/13. (Kaminski, H)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ANTHONY W. ROBINSON,
No. 2:12-cv-2783 MCE GGH PS
COUNTY OF SAN JOAQUIN, et al.,
Presently before this court is plaintiff’s “motion to preserve evidence,” filed October 15,
2013, and noticed for hearing on November 7, 2013. Defendants have filed an opposition. For
the reasons stated herein, the motion is denied.
Plaintiff’s motion does not seek to preserve evidence but rather seeks to compel the
testimony of Malcolm Loungway, an EEOC investigator, as well as the production of documents
from an EEOC fact finding conference. In that regard, the motion is both procedurally and
substantively defective. It does not appear that plaintiff has sought Loungway’s testimony by
issuing a subpoena. Nor has he subpoenaed the requested documents. Only after plaintiff has
issued the subpoena in accordance with Fed. R. Civ. P. 45 (in conjunction with Rule 30), and
nonparty Loungway has moved to quash the subpoena or otherwise failed to comply with it, may
plaintiff move to compel his testimony or production of documents by filing a motion in this
court.1 Plaintiff was previously advised “to refer to the Federal Rules of Civil Procedure in
serving the discovery requests he desires. See Fed. R. Civ. P. 26-36. If there is a discovery
dispute, plaintiff may file a motion pursuant to this court’s Local Rules. See E.D. Local Rule
251.” Plaintiff is now informed that discovery sought from a non-party must proceed through the
requirements of Rule 45.
In regard to the substance of the motion, this court has previously informed plaintiff that:
In general, EEOC investigators are not required to submit to
deposition in cases where the EEOC is not a party. Baker v.
Dupnik, 2010 WL 9561922, *3-4 (D. Ariz. Jan. 27, 2010). In
regard to notes and transcripts from the EEOC case, plaintiff is
advised that such documents may be subpoenaed, but rules of
relevance apply, and certain privileges or other limitations may
restrict or prevent their disclosure. See Fed. R. Civ. P. 45; Leyh v.
Modicon, Inc., 881 F.Supp. 420, 426-27 (S.D. Ind. 1995); Exxon
Shipping Co. v. U.S. Dept. of Interior, 34 F.3d 774, 779 (9th Cir.
Order, filed October 11, 2013.
Should plaintiff subpoena EEOC investigator Loungway, he is warned that any motion he
brings before this court as a result of non-compliance will be viewed in light of the above law,
and if the motion fails to distinguish his situation from that of the above law, plaintiff well might
face monetary sanctions.
Accordingly, IT IS ORDERED that: plaintiff’s motion to preserve evidence, filed October
15, 2013, (ECF No. 30), is denied without prejudice, and vacated from the calendar for November
Dated: October 29, 2013
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
The motion is not defectively noticed as motions to compel require only twenty-one days notice.
E.D. Local Rule 251(a).
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