United States of America v. Gachette

Filing 6

ORDER granting 3 Exparte motion for miscellaneous relief. Signed by Magistrate Judge Thomas B. Smith on 9/26/2014. (SMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No: 6:14-cv-1539-Orl-37TBS

WALNER G. GACHETTE,
Defendant.
ORDER
This matter comes before the Court on the United States’ Ex Parte Motion to
Commence Limited Early Discovery. (Doc. 3). In the motion, the United States asks
the Court’s permission to serve a subpoena on the Orlando Police Department (“OPD”)
commanding the production of documents OPD seized when executing one or more
search warrants in carrying out its own investigation of Defendant. (Id. at 2).
Rule 26(d)(1) of the Federal Rules of Civil Procedure prohibits parties from seeking
discovery prior to an initial Rule 26(f) conference “except in a proceeding exempted form
initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation,
or by court order.” A court will order expedited discovery pursuant to Rule 26(d)(1) only
upon a showing of “good cause.” Dorrah v. United States, 282 F.R.D. 442, 445 (N.D.
Iowa 2012); Digital Sin, Inc. v. Does 1–176, 270 F.R.D. 239, 241 (S.D.N.Y. 2012);
TracFone Wireless, Inc. v. Holden Property Services, LLC, 299 F.R.D. 692, 694 (S.D. Fla.
2004).1 Good cause may exist where, for example, discovery is necessary to resolve a

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Some courts require a party seeking expedited discovery to meet a more demanding test akin to
that for obtaining a preliminary injunction. See, e.g. Litwin v. OceanFreight, Inc., 865 F. Supp. 2d 385
(S.D.N.Y. 2011); Edgenet, Inc. v. Home Depot U.S.A., Inc., 259 F.R.D. 385 (E.D. Wis. 2009). However,
these courts appear to be in the minority. See Dorrah, 282 F.R.D. at 445. Moreover, applying the

threshold issue such as jurisdiction, see, e.g., Sky Angel U.S., LLC v. National Cable
Satellite Corp., 296 F.R.D. 1, 2 (D.D.C. 2013), to identify a John Doe defendant so that
the plaintiff may serve process and the case can proceed, see, e.g., Digital Sin, 279
F.R.D. at 242, or to preserve evidence that may be destroyed before it can be obtained by
ordinary discovery, see, e.g., Monsanto Co. v. Woods, 250 F.R.D. 411, 413 (E.D. Mo.
2008).
Here, the government maintains that OPD has custody of evidence including
“customer files, tax returns, financial documents, training materials, and scripts” which are
“relevant and vital” to the government’s case. (Doc. 3 at 3). While OPD has allowed the
government to view the evidence on site, it has not allowed the government to remove the
evidence. (Id. at 3). The government states that OPD has finished or will soon finish
processing the evidence it seized, and that once OPD has processed the evidence, “it
may transfer possession of some or all of the evidence to the Defendant or unknown third
parties, or destroy some or all of the evidence pursuant to protocol.” (Id. at 2–3).
The Court finds that the government has shown good cause for the requested
early discovery. Much of the evidence in OPD’s custody is related to Defendant’s tax
preparation business, which is the subject of this lawsuit. If the government is not able to
obtain this evidence from OPD, it may be destroyed, either by OPD, Defendant or
unknown third parties to whom OPD may return the evidence.
The Court will not, however, allow the government to take this discovery ex parte.
Rule 45(a)(4) requires that a subpoena must be served on each party before it is served

stringent preliminary injunction standard to expedited discovery requests seems inappropriate in light of the
“obvious” fact “that permission to commence discovery is a much less aggressive order than a preliminary
injunction.” 8A Wright & Miller, Federal Practice & Procedure § 2046.1 (3d ed.). Accordingly, this Court
will apply the “good cause” standard in evaluating the Government’s request to take early discovery.

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on the person to whom it is directed. See also FED. R. CIV. P. 5(a) (requiring that
discovery papers be served on every party who is not “in default for failing to appear,”
unless the court orders otherwise). The government may serve the subpoena on
Defendant in a manner acceptable under Rule 5(b)(2). The Court will allow the
government to accept documents responsive to the subpoena from OPD, but the
government is restricted from using the documents until Defendant has had an
opportunity to respond. This will ensure that the evidence in OPD’s custody is
preserved, while affording Defendant the opportunity to be heard regarding the propriety
of the government’s subpoena.
Therefore, it is hereby ORDERED:
1. The United States’ Ex Parte Motion to Commence Limited Early Discovery
(Doc. 3) is GRANTED.
2. The United States may serve a subpoena on the Orlando Police Department
requesting production of documents that OPD seized in its investigation of Defendant.
The United States shall serve the subpoena and a copy of this order on Defendant prior
to serving it on OPD.
3. The United States may accept documents responsive to the subpoena from
OPD, but it shall not examine or use the documents until the earlier of:
a. Written agreement between the parties that the documents are
discoverable;
b. In the absence of objection by Defendant, 14 days after service of a copy of
the subpoena on Defendant; or
c. By order of the Court.

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DONE and ORDERED in Orlando, Florida on September 26, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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