Robinson v. San Joaquin County et al

Filing 32

ORDER denying without prejudice 30 Motion to preserve evidence signed by Magistrate Judge Gregory G. Hollows on 10/29/13. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY W. ROBINSON,

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Plaintiff,

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No. 2:12-cv-2783 MCE GGH PS

v.

ORDER

COUNTY OF SAN JOAQUIN, et al.,

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Defendants.

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Presently before this court is plaintiff’s “motion to preserve evidence,” filed October 15,

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2013, and noticed for hearing on November 7, 2013. Defendants have filed an opposition. For

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the reasons stated herein, the motion is denied.
Plaintiff’s motion does not seek to preserve evidence but rather seeks to compel the

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testimony of Malcolm Loungway, an EEOC investigator, as well as the production of documents

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from an EEOC fact finding conference. In that regard, the motion is both procedurally and

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substantively defective. It does not appear that plaintiff has sought Loungway’s testimony by

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issuing a subpoena. Nor has he subpoenaed the requested documents. Only after plaintiff has

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issued the subpoena in accordance with Fed. R. Civ. P. 45 (in conjunction with Rule 30), and

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nonparty Loungway has moved to quash the subpoena or otherwise failed to comply with it, may

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plaintiff move to compel his testimony or production of documents by filing a motion in this

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court.1 Plaintiff was previously advised “to refer to the Federal Rules of Civil Procedure in

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serving the discovery requests he desires. See Fed. R. Civ. P. 26-36. If there is a discovery

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dispute, plaintiff may file a motion pursuant to this court’s Local Rules. See E.D. Local Rule

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251.” Plaintiff is now informed that discovery sought from a non-party must proceed through the

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requirements of Rule 45.

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In regard to the substance of the motion, this court has previously informed plaintiff that:

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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.
1994).

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Order, filed October 11, 2013.

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Should plaintiff subpoena EEOC investigator Loungway, he is warned that any motion he

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brings before this court as a result of non-compliance will be viewed in light of the above law,

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and if the motion fails to distinguish his situation from that of the above law, plaintiff well might

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face monetary sanctions.

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Accordingly, IT IS ORDERED that: plaintiff’s motion to preserve evidence, filed October

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15, 2013, (ECF No. 30), is denied without prejudice, and vacated from the calendar for November

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7, 2013.

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Dated: October 29, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Robinson2783.mtnprsv

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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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